text:
    Anil DESAI, M.D., Appellant, v. LAWNWOOD MEDICAL CENTER, INC., Appellee.
    No. 4D15-4408
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Richard H. Levenstein and Abby M. Spears of Kramer, Sopko & Levenstein, P.A., Stuart, for appellant.
    Thomas E. Warner, Dean A. Morande and Michael D. Sloan, of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee.
    Glenn J. Webber of Glenn J. Webber, P.A., Stuart,' for Amicus Curiae Associa,tion of American Physicians & Surgeons.
    Mary K. Thomas of Florida Medical Association, Tallahassee, Jon N. Ekdahl and Leonard A. Nelson of American Medical Association, Chicago, IL, for Ámicus Curiae American Medical Association.
    Martin B. Goldberg and Jason A. Coe of Lash & Goldberg LLP, Miami for Amicus Curiae 41 Florida Hospital Facilities.
   Kuntz, J.

Dr. ■ Anil Desai (“Doctor’') appeals the circuit court’s order dismissing his lawsuit against Lawnwood Medical Center (“Hospital”) for failure to. exhaust administrative remedies provided in the Hospital’s procedures for challenging board decisions relating to the medical staff. We conclude that the court correctly dismissed the Doctor’s lawsuit for failure to exhaust administrative remedies and affirm.

Background

The Doctor, a pathologist and member of the Hospital’s medical staff, submitted his application for reappointment as all medical staff members are. required to do every two years. As required by the “peer review” statute, applications for reappointment are first considered by the -re-credentials committee which makes a recommendation .to the- medical executive committee. § 395.0193(2), Fla. Stat. (2009). The medical executive committee reviews the recommendation from the re-credentials committee and makes its own recommendation.

Recommendations in favor of reappointment by the medical executive committee are fórwarded to the Hospital’s board of trustees which has final decision-making authority. Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 506 (Fla. 2008) (“The Board’s bylaws, which were adopted in 1988, state that the Board has final decision-making authority in the areas of credentialing ... after considering the recommendations of the medical staff.”).

Recommendations against reappointment are not forwarded'to the board of trustees. Instead, if the medical executive committee recommends against reappointment, the doctor is entitled tó exercise procedural rights provided by the medical staff bylaws including the right to a hearing and the right to appeal.

The procedural rights provided in. the medical staff bylaws only apply to a recommendation by the medical executive committee that reappointment be denied, not a decision by the board of trustees to deny reappointment. However, Florida Administrative Code Rule 59A~3.272(4) requires the “governing body” to “provide a procedure for hearings and appeals on all actions , concerning appointment, reappointment or dismissal." Therefore, in order to ensure compliance with its governing regulations, the board of trustees issued the Board of .Trustees’ Fair Hearing and Appellate Review Procedures. The board’s-fair hearing procedures set forth a comprehensive hearing and appeal process for applicants adversely affected by board action. . . .

In this case, the medical executive committee recommended in favor of reappointment and submitted the favorable recommendation to the board of trustees. However, the trustees declined to accept the recommendation and denied reappointment. The Doctor was advised of his rights pursuant to the board’s fair hearing procedures and declined to exercise those rights.

In lieu of pursuing the board’s administrative-review procedures, the Doctor filed a complaint in the. circuit court against the Hospital seeking a temporary injunction and specific performance. The Doctor argued (1) he was not a party to the Hospital bylaws and thus “the Board cannot force its rules upon” him; and (2) the procedures themselves are unfair. In response to the Doctor’s request for- a temporary injunction, the Hospital argued that the Doctor failed to exercise his rights under the board’s fair hearing procedures and that his .time to do so had not expired. The circuit court agreed with the Doctor and issued a temporary injunction.

The Hospital appealed the issuance of the temporary injunction, and we reversed, holding that absent specific allegations of intentional fraud, the Hospital was immune from an action' for monetary damages or injunctive relief related to the appointment or reappointment of staff under section 395.0191(4), Florida Statutes (2009). Lawnwood Med. Ctr., Inc. v. Desai, 54 So.3d 1027, 1030 (Fla. 4th DCA 2011).

On remand, and after the complaint was amended, the court dismissed the Doctor’s claims for injunctive relief for failure to state a. cause of action. Later, the court dismissed his claims for specific performance, breach of contract, and fraud for failure to exhaust administrative remedies. The Doctor appeals both orders, arguing that his claims were not barred for failure to exhaust administrative, remedies.

Analysis

The Doctor makes- four arguments in favor of reversal. First, he-argues that he has a constitutional -right to access to the courts for redress of injury. Second, he argues that because the right to access to courts is a constitutional right, it cannot be limited .except by express agreement. Third, he argues' that the fair hearing procedures impermissibly amended the medical staff bylaws and, therefore, did not apply to him. Fourth, he and his amici argue that the Hospital’s status as a private entity render the administrative remedies unenforceable.

• With regard to the first two arguments, we find that the board’s fair hearing procedures do not limit the Doctor’s access to the courts. It is well-established that administrative remedies must be exhausted prior to seeking relief in the courts. City of Miami v. Fraternal Order of Police Lodge No. 20, 378 So.2d 20, 23 (Fla. 3d DCA 1979) (“No principle is more firmly established than the requirement that, before resorting to the courts, one must pursue and exhaust any extrajudicial or administrative remedy which may provide the relief sought.”).

The requirement to exhaust those remedies does not diminish the ultimate ability to raise issues in court. Baillie v. Dep’t of Nat. Res., Div. of Beaches & Shores, 632 So.2d 1114, 1119 (Fla. 1st DCA 1994) .(“The requirement that appellants pursue an administrative remedy .,. that can be fully efficacious and more expeditious, before resort to the courts, in no way diminishes judicial authority to remedy any wrong”). Instead, the board enacted procedures to be followed prior to accessing the courts and, after those procedures are followed, the Doctor would have the right to a challenge in court.

The Doctor also argues that the board’s fair hearing procedures were an impermissible attempt to amend the medical staff bylaws and, therefore, do not apply to him. The fair hearing procedures were enacted more than two years before the Doctor’s application for reappointment was submitted and, regardless, the medical staff bylaws do not provide a review procedure for the board’s rejection of a recommendation that a doctor be reappointed. Thus, the board’s fair hearing procedures do not impermissibly amend the medical staff bylaws. Rather, they cover a situation that is not provided for by the medical staff bylaws.

The board’s enactment of fair hearing procedures was also required by Florida law. The board was required to provide a fair hearing and review procedure for applicants who are denied reappointment, Florida Administrative Code Rule 59A-3.272(4), and the board cannot be faulted for enacting procedures in compliance with the law. Fla. Power Corp. v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980) (trial court should have dismissed action where owner failed to first pursue administrative remedies through the Florida Public Service Commission which were mandated by the Florida Administrative Code).

Finally, we reject the argument of the Doctor and his amici and conclude that the fact that the Hospital is a private entity does not render its administrative remedies unenforceable. Fla. High Sch. Athletic Ass’n v. Melbourne Cent. Catholic High School, 867 So.2d 1281, 1288 (Fla. 5th DCA 2004) (“As a general rule, when a private organization has procedures for internal review of its decisions, those procedures must be exhausted before seeking redress from a court.”); Nat’l Collegiate Athletic Ass’n v. Brinkworth, 680 So.2d 1081, 1084 (Fla. 3d DCA 1996) (“Under Florida law ... a-court may intervene in the internal affairs of a private association only in exceptional circumstances.”).

Until the administrative remedies provided by the Hospital were exhausted, the Doctor could not seek relief in the courts. Communities Fin. Corp. v. Fla. Dept. of Envtl. Regulation, 416 So.2d 813, 816 (Fla, 1st DCA 1982) (“It is now well settled that where adequate administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted.”).

Conclusion

The Doctor failed to exhaust his administrative remedies prior to seeking relief in the circuit court. Therefore, the court’s order dismissing the Doctor’s complaint for failure to exhaust administrative remedies is affirmed.

Affirmed.

Ciklin, C.J., and Gross, J., concur.


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    Eulogio LISCA, Appellant, v. FLORIDA ATLANTIC CONSTRUCTION, INC., and Symmetrical Stairs, Inc., Appellees.
    Nos. 4D15-3549 and 4D16-416
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellant.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for appellee Florida Atlantic Construction, Inc.
   Klingensmith, J.

Appellant Eulogio Lisca sued appellee Florida Atlantic Construction, Inc. (“FAC”) after he fell down an elevator shaft and was injured. During the litigation, FAC filed a motion to add a counterclaim against appellant for declaratory relief. When appellant failed to file a responsive pleading to that counterclaim, the court entered a default against him. For the .reasons set forth below, we affirm, the court’s entry of default.

Appellant was an employee for a subcontractor on a construction project for which FAC was the general contractor. Appellant received workers’ compensation benefits from his employer, and later filed a personal injury complaint against FAC.

FAC filed its first motion for final summary judgment on October 29, 2010, arguing that it was entitled to workers’ compensation immunity because appellant was not merely a “materialman.” After that motion was denied, FAC filed another motion for summary judgment on June 13, 2013, this time arguing that FAC was entitled to summary judgment because when appellant signed a workers’ compensation settlement agreement with his employer, he-agreed to release FAC from any liability as well. Two weeks later, FAC filed a motion to add a counterclaim against appellant for declaratory relief, arguing the same point it raised in its first motion for summary judgment that was denied. The court granted FAC’s motion to amend on September 11, 2013, and provided appellant twenty days to respond to FAC’s counterclaim.

Twenty days later, appellant filed a motion for extension of time to respond to FAC’s counterclaim. Based on an agreement between the parties, the court granted appellant’s motion for extension of time.However, instead of filing a responsive pleading, appellant then filed a motion to dismiss FAC’s counterclaim. In the motion, he argued that the counterclaim was untimely because it was compulsory, and improper because the court already ruled on the issue of whether FAC was entitled to workers’ compensation immunity when it denied FAC’s first motion for summary judgment. A hearing on the motion to dismiss was scheduled for December 9, 2013, and when appellant’s trial counsel failed to appear, the court decided it could render its decision based on the motions filed by the parties, and denied appellant’s motion to dismiss. The court ordered appellant to respond to FAC’s counterclaim for declaratory relief within ten days.

. On December 19, 2013, appellant then filed another motion for 'an extension of time. Appellant’s counsel stated- that she could not attend the prior hearing because she had a conflict with another case and unsuccessfully tried to inform the court. Counsel argued that her client would be denied due-process if he was not able to challenge the order denying appellant’s motion to dismiss.

The hearing on this request for an extension of time was. scheduled for March 27, 2014. However, on that date .appellant’s trial counsel filed a last-minute emergency motion for continuance, stating that she could hot attend the hearing due to “medical reasons.” Despite counsel’s absence, the trial court issued an order giving appellant another twenty days to file an answer to FAC’s counterclaim.

Instead of responding to the counterclaim as ordered, appellant’s counsel filed another motion on April 17, 2014. This time, counsel requested yet another enlargement of time to respond to FAC’s counterclaim and for reconsideration. In addition to requesting that the court reconsider its order denying the. motion to dismiss FAC’s counterclaim, counsel also argued that she should be given more time to respond- because of medical reasons.

On April 29, 2014, FAC filed its motion for default, arguing that, pursuant to Florida Rule of Civil Procedure 1.500(b), appellant failed to properly defend against FAC’s counterclaim by not filing an answer almost eight months after- being ordered to do so. The next day, appellant’s counsel responded by filing a “motion to strike and for sanctions and for a continuance.”

On August 12, 2014, the court conducted a hearing on FAC’s second motion for summary judgment. Although the court did not rule on the summary judgment during this proceeding, at the end of the hearing FAC asked the court about its motion for default based on appellant’s failure to answer the counterclaim. The following exchange then took place:

[FAC’s COUNSEL]: Your Honor, we have a—we’ve got a motion for default. We have a counterclaim based on the immunity issue, and we have a motion for default....
THE COURT: Okay.
[FAC’s COUNSEL]: Can we set it— getting—as you know, getting a special set with Your Honor is like March now. Is there any way we can call that on UMC? I believe it’s less than a five-minute hearing. It’s essentially they just haven’t responded to our counterclaim, and I just want them to answer or get defaulted.
THE COURT: Okay.
[APPELLANT’S COUNSEL]: We have a motion for extension.
[FAC’s COUNSEL]: This would be the third extension.
THE COURT: I’m not extending anything. I’m not—so let me just—I didn’t meant to be rude, but I’m not extending anything. You all need to file your answers and your paperwork in a timely fashion. This case has gone on for a long, long-time. So the answer is, is that if they’ve got a motion for default and you haven’t responded to it, I suggest you get your response in, like, right away before I get to the hearing.
[APPELLANT’S COUNSEL]: Yes, sir. Absolutely. I get it.
THE COURT: Okay. And then we’ll go on from there.
[APPELLANT’S COUNSEL]: I understand.
THE COURT: Okay. Good. So we’ll get that out of the way.
[FAC’s COUNSEL]: Your Honor, may I call that a UMC?
THE COURT: You can; but if they go ahead and file an answer, there won’t be a default.
[FAC’s COUNSEL]: Absolutely. I’ll withdraw it. Sure.

Appellant never filed .his answer. On September 18, 2014, the court conducted a hearing on FAC’s motion to default as well as appellant’s April. 17, 2014 motion for out-of-time enlargement .to respond to FAC’s counterclaim and for reconsideration. Appellant’s counsel argued that the court should not enter default because she was unable to attend earlier'hearings due to medical emergencies and because the trial court should have never allowed FAC to file its counterclaim since it was compulsory and the time for doing so had elapsed. The next day, the court issued its order denying appellant’s motion for out-of-time enlargement and for reconsideration, and granting FAC’s motion for default on the counterclaim. In that order, the court observed that f‘[t]his Plaintiff has been given every opportunity to plead and defend and has failed or refused to do so. The allegations of the Counterclaim aré deemed admitted.”

Inexplicably, appellant waited until December 1, 2014—nearly ten weeks after the default’s entry—to move to set aside the default. On March 25, 2015, a hearing on that motion was held before a successor judge. At the end of the-hearing, the judge stated that from the record it appeared that the default was not.entered s,s a sanction, but as ,a procedural ruling based on appellant’s inability to file an answer to FAC’s counterclaim despite numerous opportunities to comply. The court denied appellant’s motion to set aside the default, citing counsel’s failure to demonstrate excusable neglect in failing to file an answer to the counterclaim, lack of due diligence in timely seeking to set aside the default, and failure to.establish a meritorious defense. Over four months after this hearing, the court entered a final judgment for FAC based on the default. This appeal followed.

Appellant argues the court lacked jurisdiction to allow FAC to assert the counterclaim. Appellant also alleges error in the court’s entry of a default because of his failure to answer the counterclaim. We disagree on both issues.

We review a trial court’s ruling on a motion to amend the pleadings for abuse of discretion. Morgan v. Bank of New York Mellon, 200 So.3d 792, 794-95 (Fla. 1st DCA 2016).

Appellant relies on State, Department of Environmental Protection v. Garcia, 99 So.3d 539 (Fla. 3d DCA 2011), for the proposition that the court lacked jurisdiction to grant the right to file the declaratory judgment counterclaim. We do not find that case analogous to the situation presented here. The Garcias obtained a claims bill following a settlement in a lawsuit with a defendant municipality. Id. at 542. Another defendant, the Department of Environmental Protection, then filed a motion for summary judgment on one of its affirmative defenses, arguing that section 11.065(2), Florida Statutes (1978), precluded the Garcias from presenting another claims bill to the legislature for the same incident. Id. That motion was denied. Id. Because the court’s denial of the Department’s motion for summary judgment was not appealable, the Department asked the Garcias if it could file a declaratory action and make the same argument it made in its motion for summary judgment. Id. The Garcias agreed to the Department’s request and answered the declaratory action, maintaining that the submission of multiple claims bills was not barred by section 11.065(2). Id. at 542-43. The Garcias then filed a motion for summary judgment, and the court granted it and entered final declaratory judgment in the Garcias’ favor. Id. at 543.

The Third District Court of Appeal reversed the trial court’s final judgment in favor of the Garcias and remanded with instructions to dismiss the Department’s declaratory judgment action. Id. at 547. The court reasoned that trial courts only have jurisdiction to render declaratory judgments when the party seeking the declaratory judgment demonstrates that “he is in doubt as to the existence or nonexistence of some right or status ... [and] there is a bona fide, actual, present, and practical need for the declaration.” Id. at 544 (citations omitted). Thus, the Department’s complaint for declaratory relief was insufficient to invoke the jurisdiction of the trial court to render a declaratory judgment because the Department was not in doubt as to the existence of its rights or status:

The Department is not in doubt as to the existence of its rights or privileges, if any, under section 11.065(2). Rather, the Department was admittedly seeking an advisory opinion from this Court on the correctness of the trial court’s previous denial of summary judgment in the negligence proceeding in order to avoid the time and expense of trial in that proceeding if we decide that ruling was in error.

Id. at 545.

The Third District further reasoned that the trial court lacked jurisdiction since the Department did “not have a bona fide, actual, present need for a declaration” that the Garcias were prohibited from submitting another claims bill to the Legislature in part because “the decision whether or not to pass a claims bill and pay any or all of a claim is entirely a legislative function completely independent of judicial intervention.” Id. As the court explained:

The Department’s attempt to prevent the Garcias from obtaining a judgment in the negligence case is also legally meaningless because the Garcias are always free to go directly to the Legislature with their claim against the Department, without a judgment in hand, and pursue the non-judicial, purely legislative, claims bill process.

Id. at 546.

Alternatively, we find that Berrios v. Deuk Spine, 76 So.3d 967 (Fla. 5th DCA 2011), is better applied to the facts of this case. There, a plaintiff filed suit against Berrios, alleging he was negligent in causing a motor vehicle accident that resulted in her injuries, some of which were treated by Deuk Spine. Id. at 968. Among his affirmative defenses, Berrios asserted that certain invoices from Deuk Spine were not lawful or not properly payable. Id. Berrios then filed a counterclaim for declaratory relief, seeking to make Deuk Spine a party to the lawsuit. Id. The trial court dismissed the counterclaim with prejudice, finding that the reasonableness of the plaintiffs medical expenses would be determined through plaintiffs complaint and no additional parties were necessary. Id. at 969.

The Fifth District Court of Appeal affirmed the trial court’s dismissal of the counterclaim for declaratory relief. Id. at 972. However, instead of finding a lack of subject matter jurisdiction to hear the counterclaim, the appellate court held that the filing of the counterclaim was within the trial court’s discretion, and provided the following rule on when trial courts may hear such a counterclaim:

While the existence of another available remedy does not preclude a judgment for declaratory relief, a viable declaratory claim must be asserted and exceptional circumstances must be shown for the prosecution of such a claim where there is a pending suit at the time the action is initiated, and the issues raised in the action can be resolved in the pending suit.

Id. at 970. This is consistent with the principle that allowing a party to assert a counterclaim is a matter of discretion, and “[l]eave of court shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a); see also Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) (“As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.”).

Unlike the situation involving the complaint for declaratory judgment in Garcia, there is no indication that the declaratory judgment was filed by FAC despite a lack of doubt as to the existence of its rights or status, or that it was merely proffered as an attempt to obtain an advisory opinion from an appellate court and circumvent the rules against appealing non-final orders. 99 So.3d at 545. Nor was the subject matter of the FAC counterclaim as legally meaningless as it was in Garcia, where the complaint for declaratory relief was filed for the purposes of obtaining an impermissible judicial remedy for a purely legislative process. Id. at 545-46. Thus, even if we were to find the trial court erred in allowing FAC to file' the counterclaim because it prejudiced appellant by forcing him to respond to a needless counterclaim, the default judgment entered against appellant was not void for lack of subject matter jurisdiction.

“An order denying a motion to vacate a default is reviewed under an abuse of discretion standard.” Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001).

The default entered against appellant for failing to file a responsive pleading to the counterclaim was entered by the operation of Florida Rule of Civil Procedure 1.500(b), which provides:

When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default. :■

Fla. R. Civ. P. 1.500(b) (emphasis added).

' Appellant’s first argument is that the court erred when.it entered default because his April 17, 2014 motion for enlargement of time to respond to the counterclaim and for reconsideration was still pending. This’ argument is meritless. The court denied this motion at the end of the healing on FAC’s second motion for summary judgment on August 12, 2014, when the court, in response to appellant’s counsel’s- inquiry about the motion for extension, specifically told counsel that it was “not extending anything.” The court also denied appellant’s motion for enlargement of time and reconsideration in its September 22, 2014 order.

Appellant’s second argument is that the court should not have entered a default for his failure “to plead or otherwise defend” because, even though appellant failed to file an answer, he sufficiently responded to FAC’s counterclaim by filing a motion to dismiss, and when that was denied, by subsequently filing multiple motions for extensions and reconsideration. We disagree.

Under rule 1.500(b), trial courts are permitted to enter a default against a party engaged in inexcusable dilatory practices, such as the filing of numerous nonrespon-sive motions. See Ziff v. Stuber, 596 So.2d 754, 755 (Fla. 4th DCA 1992) (“The filing of a nonresponsive ‘paper’ filed as a delaying tactic, such as a notice of appearance, is an abuse of process supporting a default entered by the court under subsection (b) of the rule without notice of hearing.”); Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So.2d 813, 816 (Fla. 1st DCA 1989) (“The entry of default is appropriate where a defendant does not intend to appear and defend the merits of the action or engages in dilatory practices in bad faith solely for purposes of hindrance and delay.”).

Here, appellant failed to file an answer to the counterclaim or some other substantive response for over a year, despite being given multiple opportunities to do so. Appellant was also provided sufficient notice of FAC’s motion for default. More than a month before the hearing on that motion, the court explicitly warned appellant’s trial counsel that appellant must file an answer to avoid default. In -sum, .given that the trial court was in a better position to consider the ■ overall history of the litigation and the conduct of appellant’s trial counsel throughout the case, we,cannot say that the court abused its discretion when it entered a default against appellant and thereafter denied his motion to vacate the default.

Affirmed.

May and Kuntz, JJ., concur.

      . The conduct of appellant’s trial counsel in this case fell far below the standards, of practice and professionalism expected of attorneys of The Florida Bar. See R. Regulating Fla. Bar 4—8.4(d). In addition to failing to file an un-swer to FAC’s counterclaim for over a year, appellant’s trial counsel also sent insulting and racially charged emails referring to FAC’s counsel, one of which stated that ‘‘[FAC’s counsel] is a Japanese-American. He wouldn't know the truth if it hit him in the derriére.” Appellate counsel had no role in the underlying litigation and was not involved in representing appellant until after the default was entered.


author: Kuntz, J.

text:
    Irvin Basil KELLER, M.D., Appellant, v. LAWNWOOD MEDICAL CENTER, INC., Appellee.
    No. 4D15-4371
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Richard H. Leyenstein and Abby M. Spears of. Kramer, Sopko & Levenstein, P.A., Stuart,.for appellant.
    • Thomas E. Warner, Dean A. Morande and Michael D. Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee.
   Kuntz, J.

The Doctor failed to exhaust his administrative remedies prior to seeking relief in the circuit court. Therefore, the court’s order dismissing the. Doctor’s complaint for failure to exhaust administrative remedies is affirmed for the reasons set forth in our opinion released today in Desai v. Lawnwood Medical Center, Inc., No. 4D15-4408, 219 So.3d 869, 2017 WL 2350138 (Fla. 4th DCA May 31, 2017).

Affirmed.

Ciklín, C.J., and Gross, J., concur.


author: Forst, J.

text:
    SYMCON DEVELOPMENT GROUP CORPORATION, Appellant, v. Bindu PASSERO and Anand Amarnath, Appellees.
    No. 4D16-2641
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Susan E. Trench of Arnstein & Lehr LLP, Miami, for appellant.
    Robert S. Miller of Robert S. Miller, P.A., Fort Lauderdale, for appellee Anand Amarnath.
   Forst, J.

Appellant Symcon Development Group Corp. appeals the trial court’s denial of its motion to intervene, arguing the court should not have denied its motion because Appellant had a direct and immediate interest in the subject matter of the underlying lawsuit between Appellees Bindu Passero and Anand Amarnath. As set forth below, we agree with Appellant, and reverse and remand for the trial court to grant Appellant’s motion.

Background

Bindu Passero (“Plaintiff’) filed an amended verified complaint against her brother, Anand Amarnath (“Defendant”), alleging Defendant committed tortious acts leading to the improper transfer of certain real property from their father to Defendant. Allegedly, after their father suffered a stroke, Defendant “unduly influenced the Decedent [father] into executing a QuitClaim Deed dated November 16, 2011, which had the effect of removing Plaintiff as a remainder beneficiary of the subject real property upon the death of the Decedent.” Plaintiff attached the quit-claim deed to the verified complaint, and contended she “would have been a joint owner of the subject real property but for the improper conduct of the Defendant.”

After learning of the suit, Appellant filed an Emergency Motion to Intervene. Appellant sought intervention because “Interve-nor has a pending Residential Contract for Sale and Purchase with Defendant, ANAND AMARNATH, to purchase the Property .... ” Appellant attached the land sale contract to its motion, and stated that it was “affected in a direct and immediate manner such that Intervenor will either gain or lose by the direct legal operation and effect of the Court’s final judgment in this matter.”

The trial court denied the motion to intervene. The court’s decision found Appellant’s interest in the case was “merely indirect, inconsequential, or contingent,” and noted that Defendant could adequately defend Appellant’s interest in the underlying lawsuit. It also found that Appellant could sufficiently guard its interest in the property by bringing separate suit. Appellant filed a motion for reconsideration, but the trial court denied it, explaining that because Defendant “no longer desires to go forward with the sale” with Appellant, the matter was moot and intervention unnecessary. The court also noted it was denying the motion for reconsideration because Appellant had since initiated a separate lawsuit to enforce the contract.

Analysis

“We review an order denying a motion to intervene for abuse of discretion.” De Sousa v. JP Morgan Chase, N.A., 170 So.3d 928, 929 (Fla. 4th DCA 2015).

Pursuant to Florida Rule of Civil Procedure 1.230, “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Shedding light on the rule, the Florida Supreme Court has established the definitive test for determining whether a third party can intervene:

“It has generally been held that’the interest which will entitle a person to intervene under this provision must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.”

Miracle House Corp. v. Haige, 96 So.2d 417, 418 (Fla. 1957) (quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918)). The court recognized that “the aim of the rules [is] to allow liberal joinder of parties and claims and the policy of equity to grant complete relief and avoid a multiplicity of suits.” Id.) see also Nat’l Wildlife Fed’n Inc. v. Glisson, 531 So.2d 996, 998 (Fla. 1st DCA 1988) (“Intervention should be liberally allowed.”).

Here, we find that Appellant had a “direct and immediate” interest in the underlying lawsuit by virtue of its pending Contract for Sale and Purchase with Defendant. The underlying lawsuit between Plaintiff and Defendant could certainly have affected the validity of that sale. After all, Plaintiffs amended complaint sought to void the quit-claim deed by which their father made Defendant the sole remainder beneficiary of the subject real property. If Plaintiff prevails below, then the contract between Appellant and Defendant will be no more because Defendant would not have the whole interest the contract purports to transfer. The end result would be that Plaintiff, not Appellant, will be owner of the property. As Appellant explained in its motion, “Intervenor will either gain or lose by the direct legal operation and effect of the Court’s final judgment in this matter.”

The instant case is analogous to Miracle House Corp. There, the Florida Supreme Court reversed the denial of the appellant’s motion to intervene because the appellant had asserted a direct and immediate interest in the real property at issue in the underlying lawsuit. Miracle House Corp., 96 So.2d at 418. That appellant, like the one in the instant case, had executed a land sale contract with one of the appel-lees, and subsequently learned that the seller and another party were contesting ownership of the property. Id. The court held that the' appellant had a right to intervene because he “had a very real interest in a parcel of the property in litigation by virtue of a contract of purchase and sale thereof executed in its favor by one of the appellees. The determination of the rights of appellees would have a direct effect on the rights of the appellant under its contract.” Id. See also Bymel v. Bank of Am., N.A., 159 So.3d 345, 347 (Fla. 3d DCA 2015) (holding appellant purchaser had a right to intervene in the underlying mortgage foreclosure action because, given the particular facts, the purchaser had a reasonable basis for obtaining title to the subject real property). Here too, the resolution of property ownership in the underlying suit will have a direct effect on Appellant’s rights.

As a final matter, the trial court’s supplementary reasons for denying Appellant’s motion to intervene are flawed. First, the court denied the motion because it believed Defendant could adequately represent Appellant’s interest in the underlying lawsuit. But later, in an order denying Appellant’s motion for reconsideration, the court recognized that “Defendant testified that he does not wish to extend the subject matter contract with [Appellant] and no longer desires to go forward with the' sale.” The trial court’s conclusion is thus at odds with Defendant’s testimony, with the latter certainly .calling into question Defendant’s continued support for the sale of the property to Appellant. Moreover, the court denied the motion to intervene because Appellant could commence a separate lawsuit (and, in fact, it has done so). But again, as the Florida Supreme Court explained, one of the main reasons allowing for intervention of third parties is to avoid a multiplicity of lawsuits. See Miracle House Corp., 96 So.2d at 418.

Conclusion

We reverse and remand the trial court’s denial of Appellant’s motion to intervene because Appellant had a direct and immediate interest in the real property that was the subject of the underlying lawsuit..In conformity with the language of Rule 1.230,. as well as the case law discussed above (“[ijntervention should be liberally allowed”), we remand with instructions to the trial court to grant Appellant’s motion to intervene.

Reversed and remanded.

Damoorgian and Gerber, JJ., concur.

      . This doesn’t moot Appellant’s interest in intervention because it is seeking to enforce the contract even if Defendant is trying to back out.


author: Per Curiam.

text:
    KNAUF PLASTERBOARD (TIANJIN) CO., LTD., and Knauf GIPS KG and Leon Cosgrove, LLC, Petitioners, v. William Bart ZIEGLER, et al., Respondents.
    No. 4D17-844
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      James M. Talley and Kyle A. Diamantas of Baker, Donelson, Bearman, Caldwell & BerkoWitz, PC, Orlando, for' petitioner Knauf Plasterboard (Tianjin) Co., Ltd., and Knauf GIPS KG.
    Scott B. Cosgrove and Garrett Nemeroff of León Cosgrove, LLC, Coral Gables for petitioner León Cosgrove; LLC.
    Beverly A. Pohl of Broad and Cassel LLP, Fort Lauderdale, and Michael K. Wilson of Broad and Cassel LLP, Orlando, for respondents.
   Per Curiam.

The defendants, a Chinese drywall manufacturer and distributer (“drywall defendants”), petition this.court for a writ of certiorari seeking review of two non-final orders permitting discovery of the amount of punitive damages they actually paid in the post-judgment settlement of an unrelated case. They argue, the.trial court departed from the essential requirements of the law by construing section ,768.73(2), Fla. Stat. (2016) to allow for such discovery. We agree and grant the petition.

The drywall defendants were sued in a prior unrelated case (“Robin action”). On November 22, 2013, the " jury awarded $1,000,000 in punitive damages against Defendant KPT and $5,000,000 in punitive damages against Defendant Knauf Gips. The parties subsequently entered into a post-judgment settlement and recorded a satisfaction of judgment.

Here, the drywall defendants seek to avoid a punitive damages claim in this case based upon the punitive damage award in the Robin action. They filed a Proffer of Proof of Prior Punitive Damages Award and Renewed Motion to Strike Plaintiffs Punitive Damages Claim. They argued section 768.73(2) prohibits a subsequent punitive damage award if punitive damages were previously awarded in any action alleging harm from the same course of conduct for which punitive damages were already awarded.

Specifically, section 768.73(2) provides:

(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state.or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term “the same act or single course of conduct” includes acts resulting in the saíne manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.
(b) In subsequent civil actions involving the samé act or single course of conduct for which punitive damages have already been awarded, .if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant’s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court. .

(Emphases added).

The trial court held an evidentiary hearing to determine whether there was clear and convincing evidence that the drywall defendants were sufficiently punished. The trial court explained that the statute simply prevents multiple punishments for the same conduct as long as the defendant was sufficiently punished. The judge reasoned: “Now, if there was a nominal amount that ... didn’t really constitute any significant punishment then that might be an issue for the judge to decide whether or not we should allow the jury to entertain those thoughts.”

The plaintiff argued the award in the Robin action was never actually paid because of a settlement. He argued that since the defendants had not paid the award, they had not been punished. The plaintiff argued that the defendants had taken the position that punitive damages were not recoverable in Germany where they had moved all of their assets.

The court denied the request to add a punitive damage claim without prejudice. The court explained the plaintiff could still conduct discovery and amend his motion. The plaintiff reminded the court that he had already been allowed to plead the punitive damages claim and, unless the court allowed plaintiff to depose a corporate representative, there was no way to get the relevant information.

Following the hearing, the court granted the drywall defendants’ motion to strike plaintiffs punitive damages claim without prejudice. The court found the drywall defendants met their initial burden of showing the prior punitive damages award was sufficient, and no clear and convincing evidence was presented that the prior award was insufficient to punish the drywall defendant’s behavior. But, the court granted plaintiff leave to conduct discovery as to whether the drywall defendants paid the punitive damages award in the Robin action.

Plaintiff then filed a request for production seeking the confidential settlement agreement and copies of the settlement payment check or wire payment in the Robin action. After receiving subpoenas, the Robins’ counsel moved for a protective order. The Robins’ counsel argued that Florida law disfavors disclosure of settlement agreements. The requested discovery sought potential attorney-client, private financial, and irrelevant information. Finally, the subpoena improperly sought information from the law firm rather than the drywall defendants.

The drywall defendants also moved for a protective order arguing the requested information was irrelevant, confidential, and privileged. They maintained that the only relevant consideration was the punitive damage “award,” not the amount paid in the Robin action. The drywall defendants argued the plaintiff wanted the information to aid him in negotiating a favorable settlement.

They reminded the court that deposing opposing counsel in a pending case is extraordinary and should only be allowed if there are no other means to obtain the information. Discovery of settlement agreements is rarely granted. Counsel acknowledged that such discovery was available where there was a setoff. But, counsel suggested that it would be impractical for the statute to take into account how much was paid.

The court pointed out that the statute would have no import if the drywall defendants actually paid nothing and were not punished. The court commented that it had seen this before in product liability and medical malpractice cases where there are confidential settlement agreements that are intended to hide wrongdoing from the public, contrary to the transparency that the judicial system should afford. In the court’s view, the statute’s protection implied the defendant paid a fair share of the punitive damages.

The court agreed the plaintiff should not depose opposing counsel because the requested information could be obtained through a request for production. The court also agreed that a defendant should not be punished repeatedly for the same conduct. The court noted that if defendants paid the punitive damages, the issue was moot. But, if the defendant did not pay, then the statute was not producing the protection intended.

The court ordered the drywall defendants to provide the documents under seal for an in camera inspection. The defendants advised they would ask for a stay for appellate review; the court advised it would not prolong the case. The court entered a written order consistent with its oral ruling.

The court subsequently entered an In Camera Inspection Order. After reviewing the sealed record, the court overruled the defense objections and ordered the drywall defendants to produce the following discovery within twenty days: (1) a copy of the August 5, 2016, original settlement, release, and indemnification agreement between the Robins and the Knauf defendants; (2) the May 13, 2016, wire transfer notification email; (3) the August 12, 2016, wire transfer notification email; and (4) the August 18, 2016, wire transfer notification.

The drywall defendants now seek certiorari review of the order requiring production of discovery and the In Camera Inspection Order.

Certiorari is available to review whether a defendant was afforded statutorily guaranteed process before allowing a claim for punitive damages. Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995). Certiorari is also proper to review an order allowing discovery of privileged or confidential information that could cause irreparable harm. Neiman v. Naseer, 47 So.3d 954, 954-55 (Fla. 4th DCA 2010). Discovery of “ ‘cat out of the bag' material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995).

The drywall defendants argue the trial court departed from the essential requirements of law by misreading the relevant statute, which is clear on its face, and by ordering production of irrelevant confidential terms of the settlement in an unrelated case. They suggest the trial court’s interpretation of the statute would discourage settlements and subject defendants to endless punitive damage awards. They maintain the amount paid in the Robin action settlement is irrelevant because the statute speaks only in terms of an award. They argue they are in a catch-22 situation because they will either have to provide the discovery or forgo their statutory protection against successive punitive damage awards. -

We agree with the drywall defendants’ argument that section 768.73(2) speaks only in terms of a prior punitive damage “award.” In fact, some derivation of the word “award” appears eight times within this subsection. But, not once does any derivation of the word “paid” appear.- The statute is clear on its face. We will not infer any other meaning than the plain words chosen by the legislature. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).

Accordingly, we quash the trial court’s two discovery orders.

Petition granted; orders quashed.

May, Conner and Forst, JJ., concur.

      . The plaintiff filed a response and raised a new argument not made to the trial court. Because the argument was not preserved, we do not address it in this opinion. See Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010).


author: Ciklin, C.J.

text:
    Myra L. BROOKS and Ronald R. Brooks, Appellants, v. Michael D. PAUL, M.D.; MacMillan, Paul and Burkarth, P.A., d/b/a Treasure Coast Neurosurgery; and Rene M. Loyola, M.D., Appellees.
    No. 4D16-2538
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      Jeffrey C; Fulford ,of Jeffrey C. Fulford, P.A., Stuart, for appellants.
    William T. Viergever of Sonneborn Rut-ter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for appellees;
   Ciklin, C.J.

Myra L. Brooks and Ronald R. Brooks, the plaintiffs below, appeal the final summary judgment' entered in this medical malpractice case in favor of the defendants below, Michael D. Paul, M.D., and MacMil-lan, Paul and Burkarth P.A., d/b/a Treasure Coast Neurosurgery. The plaintiffs argue that the trial court erred in finding that a release executed by the patient, Myra L. Brooks (“Myra”), unambiguously waived negligence claims. We agree that the release, read in its entirety, was unclear and ambiguous as to negligence claims. Accordingly, we reverse and remand for further proceedings.

In ■ 2013, the ■ plaintiffs brought suit against the defendants, and others not relevant to this appeal, alleging negligence. Specifically, Myra alleged that during a spinal fusion surgery, .her ureter was cut, resulting in significant injuries. The defendants moved for summary judgment based on a purported exculpatory release executed by Myra before the surgery. The release contains the following language:

As of January 1, 2003, Dr. Michael D. Paul, and the piofessional corporation of MacMillan, Paul and Burkarth, P.A., also known as Treasure Coast Neurosurgery, will not carry'any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason.' My reason for doing this is that I realize that Dr. Michael D. Paul and his staff will do the very best to take care of me according to community medical-standards.

The trial court entered summary judgment in favor of the defendants, finding the release to be , “completely unambiguous” in releasing claims of negligence.

“The standard of review of an order granting summary judgment is de novo.” Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006). When “the enforceability' of- [a] pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo.” Kirton v. Fields, 997 So.2d 349, 352 (Fla. 2008).

“An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury.” Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270, 272 (Fla. 4th DCA 2002) (quoting O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla. 5th DCA 1982)). “Exculpatory clauses are disfavored in the law because- they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Loewe v. Seagate Homes, Inc., 987 So.2d 758, 760 (Fla. 5th DCA 2008). Further, such clauses “will be strictly construed against the party claiming to be relieved of liability.” Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So.2d 565, 567-68 (Fla. 2d DCA 2008). “ ‘Such clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.’ ” Id. at 568 (quoting Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991)).

In them motion for summary judgment, the defendants relied on Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015). In that case, the parents of a seriously ill child sued a non-profit organization that provided free vacations to such children and their families at its resort village, alleging that the organization’s negligence resulted in a wheelchair lift collapsing and injuring one of the parents. Id. at 258-59. In connection with the free vacation, the parents signed a liability release form, which provided as follows:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind....
I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us....

Id. at 258-59.

The charitable organization moved for summary judgment based on the release. Id. at 259. After the trial court denied the organization’s motion and the jury found in favor of the appellants, the Fifth District reversed, finding that the release encompassed negligence claims even though it did not expressly reference negligence actions. Id. (citing Give Kids the World, Inc. v. Sanislo, 98 So.3d 759, 761-62 (Fla. 5th DCA 2012)). On appeal, the Florida Supreme Court held that a negligence claim may be barred by a release even if the release does not explicitly reference negligence actions. Id. at 270. The Court explained that the test is whether the language of the exculpatory clause “unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.” Id. at 271. The Court found that the language of the release “clearly conveys, that Give Kids the World would be released from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment, and photographs.” Id. at 270. The Court further reasoned as follows:

[Tjhis agreement specifically operates to release Give Kids the World in connection with circumstances that are not inherently dangerous. Thus, this is not a situation where a person of ordinary intelligence would believe that the release “could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Accordingly, this agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of the legal terms of art “negligence” or “negligent acts” from the otherwise clear and unequivocal language in the agreement.

Id. at 271 (citation omitted).

The instant case is more akin to the exculpatory provisions that were found ambiguous in Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (Fla. 2d DCA 1981); Murphy, 974 So.2d 565; and UCF Athletics Ass’n v. Plancher, 121 So.3d 1097 (Fla. 5th DCA 2013). In Goyings, the exculpatory clause was contained in a contract between a children’s camp and the mother of a child. It provided the following:

It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned, does fully release Camp, and all persons concerned therewith, for any such liability.

403 So.2d at 1145-46. On appeal from a summary judgment in the camp’s favor, the Second Distinct reversed, finding the language was ineffective where there was no reference to negligence. Id. at 1146. Although this reasoning was subsequently found to be erroneous in Sanislo, the Second District also reasoned as follows:

By their own choice of language, appel-lees agreed to take reasonable precautions to assure [the child’s] safety. This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability. We cannot ignore this language because all terms of a contract provision must be read as a whole to give every statement meaning. Construing the exculpatory clause as a whole, appellees’ release from liability rests on their exercise of reasonable care to ensure [the child’s] safety and good health.

Id. at 1146-47 (citations omitted). This portion of Goyings was not expressly disapproved of by the Court in Sanislo.

In Murphy, 974 So.2d at 566-67, after a woman was injured while using exercise equipment at the YMCA’s gym, she sued the YMCA for negligence in failing to maintain, inspect; and repair its exercise equipment. With reservations, the trial court granted the YMCA’s summary judgment motion, which was based on an exculpatory provision in the membership application. Id. at 567. The waiver “specifically state[s] that' 'the YMCA is not liable for ‘any claims based on negligence,’ ” and also states, “I understand that even when every reasonable precaution is taken, accidents can sometimes still happen.” Id. at 566-68. The court reasoned that “the juxtaposition of the ‘every reasonable precaution’ provision with the provision for the release of ‘any claims based on negligence’ ” resulted in confusion'. Id. at 568. The court further reasoned as follows:

A reasonable reader might be led to believe that the waiver of liability extends only to claims for injuries that were unavoidable “even when every reasonable precaution” had been taken by the YMCA. In light of the “every reasonable precaution” language, the waiver does not clearly and unequivocally release the YMCA from liability and is therefore not enforceable. See Orkin Exterminating Co. v. Montagano, 359 So.2d 512, 514 (Fla. 4th DCA 1978)
(“[W]hen we consider that we do not look with favor on exculpatory clauses, we must .require the draftsmen .of all contracts which contain them to use clear and .unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.”). -

Id. at 568-69 (alteration in original).

In UCF Athletics Ass’n, 121 So.3d at 1102-03, quashed in part on other, grounds by Plancher v. UCF Athletics Ass’n, 175 So.3d 724, 729 (Fla. 2015), the Fifth District relied on the reasoning in Murphy in finding that an exculpatory provision-did not bar a negligence action brought by the parents of a college football player who collapsed during football practice after participating in a series of conditioning drills. In that case, the decedent executed a waiver that provided as follows in pertinent part:

I am aware that playing, practicing, training and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not limited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any athletic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforementioned dangers of participating in any athletic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercollegiate athletics.
In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, -I hereby voluntarily assume all risks associated-with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association’s athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.

Id. at 1100-01. The Fifth District observed that the exculpatory clause did not expressly inform the decedent that he would be waiving his right to sue the athletic association for its own negligence, but recognized that under its precedent; this was not sufficient reason, standing alone, to find the provision was not applicable to negligence claims. Id. at 1101-02. The court then reasoned that the athletic association immediately preceded the broad waiver language with a paragraph that outlined the risks inherent in any sport and stated that because of these risks, the decedent recognized the importance of following all instructions of staff, and understood that even catastrophic injury was possible even when proper rules and techniques are followed. Id. at 1102. The court further reasoned: ■

This preamble, when coupled with a clause that does not expressly state that [the decedent] would be waiving a negligence action, could have easily led [him] to believe that [the athletic association] would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport—that could occur “even though proper rules and techniques are followed to the fullest.”

Id. The athletic association argued that there was no confusion, as the two provisions are in separate paragraphs and not connected by the word “therefore.” Id. at 1102-03. The court rejected the argument:

[W]hen read together, the provisions underscoring the importance of following [the athletic association’s] rules and the risk of an accident regardless of whether the proper rules and techniques are followed, comes before the exculpatory clause, which could result in the reasonable reading asserted by the [appellees]. This is because the reader is first assured, inferentially, that the proper rules and techniques will be implemented before he comes to the language waiving liability.

Id. at 1103.

Here, the purported release is rife with ambiguity and uncertainty. The exculpatory provision appears in smaller font below a statutory notice regarding the doctor’s decision not to carry malpractice insurance. The provision is not thorough or detailed. It does not expressly release any particular type of claims and it comprises three sentences which, read together, are contradictory. The first sentence reiterates the fact that the doctor and his practice do not carry malpractice insurance. The second sentence acknowledges that Myra understands this and agrees not to sue for “any reason.” The third sentence provides Myra’s reason for agreeing not to sue— because she .believes the doctor and his staff will do their “very best to take care of me according to community medical standards.”

The first two sentences, read in isolation, are broad and arguably encompass a negligence claim. However,, as in Goyings, Murphy, and UCF Athletics Ass’n, Inc., there is additional language in the release that creates ambiguity about exactly what type of claims are being released. The third sentence, which qualifies, the first two sentences, creates an ambiguity. Indeed, if the defendants intended to be released from their own negligence, it begs the question as to why the third sentence is included in the release. Unlike the release in Sanislo, the language in the release here could lead “a person of ordinary intelligence [to] believe that the release could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Sanislo, 157 So.3d at 271 (quoting Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306, 311 (1979)).

Based on the foregoing, we reverse and remand for further proceedings.

Reversed and remanded.

Gross and Conner, JJ., concur.


author: Warner, J.

text:
    Clyde STOKES, Larcesta Stokes, Canesha Stokes and Caleb Stokes, Appellants, v. Delana WYNN, The Hertz Corporation and Nathanial Phillips, Appellees.
    No. 4D15-0873
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      Charles B. Patrick and Jeff Haberman of Schlesinger Law Offices, Fort Lauder-dale, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellants.
    Warren B. Kwavnick of Cooney Trubus Kwavnick Peets, Fort Lauderdale, for Ap-pellee The Hertz Corporation.
    James K. Clark of Clark, Robb, Mason, Coülombe, Buschman & Charbonnet, Miami, for Appellee Delana Wynn.
   Warner, J.

The plaintiffs below, Clyde Stokes and his family, appeal a final judgment finding no liability on the part of the defendants, the Hertz Corporation and its lessee, Dela-na Wynn. The jury found co-defendant Nathaniel Phillips, who was driving the . rental car, solely liable for the accident in which Stokes was injured. Appellants claim that the court erred by instructing the jury that if it found that Phillips’s actions in taking the vehicle amounted to a theft or conversion, then it could find Wynn, and thus Hertz, not liable. We conclude that the court did not err in so instructing the jury and affirm.

Stokes was injured when he was struck by a vehicle driven by Phillips, who fled the scene. At the trial on the negligence action, the main issue involved how Phillips gained access to the vehicle, which had been rented from Hertz by Wynn.

At the time, Wynn was living in a house in Sanford, Florida, which was owned by her husband’s parents. There were ten to twelve people with some familial relationship living in the house, and there were multiple vehicles in the driveway. This created a situation where people had to move others’ cars to get their own car out. The way some of the family dealt with the problem was to occasionally put their keys in a cabinet in the kitchen.

Wynn had a mechanical problem with her car and took it into the shop to be fixed. She rented a car from Hertz for about three weeks, leaving the rental car at the house while she was working. The key fob had the Hertz name on one side and the details of the car on the other. During the time she had the rental car and was living at the house, no one had moved the car. She did not leave the keys to the rental car in the kitchen. Instead, she put the keys on the dresser in the locked room where she had been staying.

On the day of the accident, Phillips, the boyfriend of one of the residents of the house, visited the home. Phillips testified via deposition that he took the rental car keys off the kitchen counter and drove the car, supposedly to get milk for his girlfriend’s young child. He did not speak to Wynn before taking the rental car and Wynn never gave him permission to drive it. He denied going into Wynn’s bedroom to get the keys. While out, he ran into Stokes’s motorcycle, causing his injuries. Phillips ran from the scene of the accident. When he was apprehended, he admitted that two grams of crack cocaine were found in the car but denied that it belonged to him.

After the accident, appellants filed suit against Phillips, Wynn, and Hertz. As to Wynn, the complaint alleged that she was liable for Phillips’s negligence because Phillips was operating the vehicle with her express or implied consent. Alternatively, the complaint alleged that she had been negligent in making the keys available to Phillips because he did not have a driver’s license. As to Hertz, the complaint alleged negligence because it had attached key tags or fobs to the car keys given to its customers which identified the keys as belonging to a rental car.

At trial, Wynn requested a modification of the standard instruction on express and implied consent in order to address the issue of whether Phillips’s use of the vehicle exceeded the scope of Wynn’s consent and thereby relieved Wynn from liability. Over appellants’ objection, the trial court agreed to give the modified instruction before opening statements and again at the close of the case. The instruction, which included the objected-to language in bold, provided:

The other claims [sic] against Delana Wynn is that she impliedly consented to the operation of the Hertz rental car by Nathaniel Phillips and is responsible for any negligence by him in the operation of the vehicle at the time of the collision.
Delana Wynn also denies those claims and ... additionally asserts an affirmative defense on the issue of whether she impliedly consented to Nathaniel Phillips’ use of a vehicle. Specifically, she alleges that Nathaniel Phillips’ use of the vehicle exceeded the scope of any alleged implied consent, so that ... his use of the vehicle amounted to a species of theft or conversion.
On one of the claims of the plaintiff against Delana Wynn there’s a preliminary issue for you to decide. That issue is whether Nathaniel Phillips was operating the vehicle with the express or implied consent of Delana Wynn.
A person who rents a motor vehicle and who expressly or impliedly consents to another’s use of it is responsible for its operation.
A lessee of a vehicle is one.who has leased or. rented the vehicle from its owner.
Some of the factors that you may consider in determining whether there is evidence of implied consent are the following; one, the driver’s .prior use of the vehicle. Two, the location and accessibility of the keys. The existence of a familial relationship between the owner and the driver.. Four, the conduct of the parties after the accident.

The jury returned a verdict and answered “No” to the question, “Was Nathaniel Phillips operating the motor vehicle, with the express or implied consent of Delana Wynn at the time of the collision?” The jury found no negligence on the part of Hertz and found Phillips to be. 100% responsible for the accident. From the final judgment in favor of Wynn and Hertz, appellants now appeal.

Appellants argue that the trial court erred in giving the modified jury instruction, drafted by Wynn’s counsel, which exonerated Wynn if Phillips’s use of the vehicle exceeded the scope of any implied consent. According to appellants, one' of the theories of liability agairist Wynn was that' she had impliedly consented to Phillips’s use of the rental car by leaving her keys in the house kitchen, and that Wynn was thus vicariously liable for his use of the vehicle. Appellants argue that instructing the jury that Wynn could not be liable if Phillips simply exceeded the scope of Wynn’s consent was error.

The standard of review of a trial court’s decision regarding whether to give a particular jury instruction is reviewable under the abuse of discretion standard. Connell v. Riggins, 944 So.2d 1174, 1181 (Fla. 1st DCA 2006). Under the abuse of discretion standard of review, the party defending the jury instructions on appeal must show that the requested instruction accurately stated the applicable law, the facts- supported giving the instruction, and the . instruction was necessary in order to allow the jury to properly resolve all the issues in the case. Vitrano v. Fla. Power & Light Co., 190 So.3d 89, 91 (Fla. 4th DCA 2015).

The trial court’s instruction to the jury that Wynn would not be liable if Phillips’s use of the vehicle exceeded any express or implied consent and amounted to a species of theft or conversion is consistent with Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla. 1993), in which the supreme court held:

[Liability [of an owner for the negligence of a driver who is not the renter of the vehicle] should be determined on the basis of whether there has, in fact, been a conversion or theft of the vehicle prior to the negligence at issue. We hold that once a vehicle has been the subject of a theft or conversion, the owner’s initial consent has been vitiated and the vehicle is no longer on public highways “by authority of’ the owner.

Id. at 1053. Jackson relied on Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla. 1959). Jackson, 617 So.2d at 1053. In Susco, the supreme court also noted that an owner who consented to the operation of the vehicle by another would not be hable “when control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will reheve an owner of responsibihty for its use or misuse.” Susco, 112 So.2d at 835-36. The court further explained:

[W]hile the rule governing liability of an owner of a dangerous agency who permits it to be used by another is based on consent, the essential authority or consent is simply consent to the use or operation of such an instrumentality beyond his own immediate control. Only to that limited extent is the issue pertinent when members of the public are injured by its operation, and only in a situation where the vehicle is not in operation pursuant to his authority, or where he has in fact been deprived of the incidents of ownership, can such an owner escape responsibility.

Id. at 837 (emphasis added). In Ryder TRS, Inc. v. Hirsch, 900 So.2d 608 (Fla. 4th DCA 2005), we found that an instruction on conversion was not error in a case where a renter of a vehicle did not return it as promised and kept it after being told he would be arrested if he drove it. The vehicle was subsequently involved in an accident while being driven by the renter’s girlfriend. Id. at 610. We noted, “[T]o vitiate the owner’s initial consent and deem the vehicle ‘no longer on the public highways by authority of the owner,’ the vehicle must be shown to have been the subject of a theft or conversion.” Id. (alteration in original) (quoting Dockery v. Enter. Rent-A-Car Co., 796 So.2d 593, 598 (Fla. 4th DCA 2001)). Thus, whether the rented vehicle had been converted at the time of the accident was an issue which must have been submitted to the jury. Id.

In this case, the evidence supported the conclusion that Wynn did not give express authority to Phillips to drive the vehicle. Wynn testified that she kept the keys to the vehicle in her room, although Phillips said he obtained the keys from the kitchen counter. Nevertheless, there was ample evidence to support a conversion or theft of the vehicle by Phillips. Certainly, the evidence showed that the “the vehicle [was] not in operation pursuant to [Wynn’s] authority” when the accident occurred, as Phillips was either out to buy something for his child or buying drugs. Susco, 112 So.2d at 837. Thus, whether a conversion or theft of the vehicle had taken place was an issue, for the jury, and the court properly instructed the jury.

Appellants also challenge the trial court’s order of bifurcation of the trial of liability and damages. We conclude that the court did not abuse its discretion and affirm-on that issue, as well as the remaining issues in the case.

For the foregoing reasons, we affirm the judgment in favor of the appellees.

Taylor and Levine, JJ., concur.


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    Omar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3022
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2017]
    Carey Haughwout, Public Defender, Zainabu Rumala and Erika Follmer, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney -General, West Palm Beach, for appellee.
   Per Curiam.

During the underlying violation of community control proceedings, appellant was found incompetent and committed to the Department of Children and Families for services. Although the Department notified the court in'July 2012 that appellant no longer met the criteria for continued commitment, appellant was again found incompetent in January 2013. After many status hearings and continuances, the court held a violation hearing, found the defendant guilty, and sentenced him.

The record does not reflect that the trial court held a competency hearing and entered an order finding appellant competent to proceed. See Fla. R. Crim. P. 3.212(e)(7). There is some suggestion that an expert may have found appellant competent prior to the violation hearing. We therefore remand the case “to determine whether a nunc pro tunc competency determination can be made.” Bain v. State, 211 So.3d 139, 140 (Fla. 4th DCA 2017). If “the court cannot determine appellant’s competency consistent with due process guarantees,” the court shall vacate the violation convictions and sentence and hold a new hearing. Id.

This case is remanded to the circuit court for further proceedings consistent with this opinion.

Gross, Conner and Kuntz, JJ., concur.


text:
    Christopher ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1153
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant, Christopher Roundtree, was convicted of criminal mischief, burglary of a dwelling, petit theft, grand theft of a motor vehicle, dealing in stolen property, and failing to appear. He raises two issues on appeal and we affirm with one exception.

He argues that the court erred in adjudicating and sentencing him for both petit theft and dealing in stolen property. The State properly conceded error on this issue.

While a defendant may be charged with both theft and dealing in stolen property when relating to the same property, he cannot be convicted of both crimes. § 812.025, Fla. Stat. (2012); Goddard v. State, 458 So.2d 230, 233 (Fla. 1984). Accordingly, we reverse the Defendant’s conviction for petit theft and otherwise affirm his convictions.

Reversed in part; and affirmed in part.

Gross and Conner, JJ., concur.


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    NATIONSTAR MORTGAGE LLC d/b/a Champion Mortgage Company, Appellant, v. Marie Ann GLASS, Unknown Spouse of Marie Ann Glass, United States of America, Acting on behalf of the Secretary of Housing and Urban Development, Citibank, National Association Successor by Merger to Citibank South Dakota, N.A., Unknown Tenant #1, Unknown Tenant #2, Appellees.
    No. 4D15-4561
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL., for appellant.
    Amy L. Fischer and F. Malcolm Cunningham, Jr. of The Cunningham Law Firm, P.A., West Palm Beach, for appellee Marie Ann Glass.
   ON MOTION FOR REHEARING EN BANC

Kuntz, J.

We grant the Borrower’s motion for rehearing en banc and, after en banc consideration, adopt the panel opinion as revised below.

The Lender appealed the court’s dismissal with prejudice of its amended foreclosure complaint. The Borrower timely filed a motion for appellate attorney’s fees and costs stating that she is entitled to her attorney’s fees and costs based upon a provision in the mortgage and the reciprocity provisions of section 57.105(7), Florida Statutes. We deny the motion for attorney’s fees on the merits, and deny the motion for costs without prejudice to seek any taxable costs in the appropriate court.

With regard to her request for attorney’s fees, it is well established that Florida follows the “American Rule”; thus, attorney’s fees may only be awarded when authorized by contract or statute. TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 614 (Fla. 1995) (Wells, J., concurring in part) (“There is a long-standing adherence in Florida law to the ‘American Rule’ that attorney fees may be awarded by a court only when authorized by statute or agreement of the parties.”).

Here, the Borrower relies upon section 57.105(7),' Florida Statutes (2016), in support of her motion. This section provides that a contractual fee provision is to be applied to, the benefit of both parties even if the fee provision, as written, is one-sided. HFC Collection Ctr., Inc. v. Alexander, 190 So.3d 1114, 1116 (Fla. 5th DCA 2016). However, because the statute is in derogation of the common law, it must be strictly construed. Sand Lake Hills Homeowners Ass’n, Inc. v. Busch, 210 So.3d 706, 709 (Fla. 5th DCA 2017) (citing Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003)). The plain language of section 57.105(7) has two requirements. First, the party must have prevailed. Second, the party had to be a party to the contract containing the fee provision.

The Borrower prevailed in the circuit court based on her argument that the Lender lacked standing under the contract. On appeal, she argued that the court correctly dismissed the Lender’s complaint for lack of standing. In a situation such as this, where a party prevails by arguing the plaintiff failed to establish it had the right pursuant to the contract to bring the action, the party cannot simultaneously seek to take advantage of a fee provision in that same contract. We acknowledge that the result is different when the plaintiff was also the originating lender. Nudel v. Flagstar Bank, FSB, 60 So.3d 1163, 1165 (Fla. 4th DCA 2011) (“[The originating lender] may not' seek affirmative relief under the mortgage and then take the position that provisions of the mortgage do not apply to it.”). In that situation, the lender was a party to the contract at issue.

The Third District recently addressed this issue in Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017). In Fitzgerald, following a non-jury trial, the trial court' entered a final judgment in favor of the borrower after concluding that the bank failed to establish standing. Id. at 118. Relying on Alexander, the Third District held that, “[b]ecause the trial court found no contract existed between the parties, which would entitle one to recover attorney’s fees in the first place, there [was] no basis to invoke the compelled mutuality provisions of section 57.105(7).” Id. at 121 (citing Alexander, 190 So.3d at 1117) (internal quotations omitted). Therefore, the Third District concluded that the circuit court, erred in awarding fees “based on a non-existent contract between the parties.” Id.

Alexander relied in part on this court’s opinion in Florida Medical Center, Inc. v. McCoy, 657 So.2d 1248, 1252 (Fla. 4th DCA 1995), where we held that if there is n'o contract between the parties, “there is no basis to invoke the compelled mutuality provisions” of the statute. The Fifth District also recehtly held that “a stranger to the contract cannot recover attorney’s fees based on the contract.” Busch, 210 So.3d at 709.

In foreclosure lawsuits, the Florida cout’ts require the lender to establish standing to bring suit at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat. Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (“[A] party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact.”); see also Corrigan v. Bank of Am., N.A., 189 So.3d 187, 190 (Fla. 2d DCA 2016) (en banc); Rincon v. Bank of Am., N.A., 206 So.3d 793, 795 (Fla. 3d DCA 2016); Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014); Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 (Fla. 5th DCA 2013). Thus, where the foreclosing plaintiff does not establish its right to enforce the mortgage note at the time of the filing of the suit, there is no ability to enforce the terms of the note, including the provision regarding attorney’s fees.

Simply put, to be entitled to fees pursuant to the reciprocity provision of section 57.105(7), the movant must establish that the parties to the suit are also entitled to enforce the contract containing the fee provision. A party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract. Therefore, the motion for appellate attorney’s fees is denied.

We also deny the borrower’s request for appellate costs .without prejudice as a request for costs is not properly presented to the appellate court. Fla. R. App. P. 9.400(a) (“Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order.”). We make no determination that there are, or are not, any costs to be taxed should such a motion be timely filed in the circuit court.

Motion for attorney’s fees and costs denied.

Ciklin, C.J., Warner, Gross, Taylor, May, Damoorgian, Gerber, Levine, Conner, Forst and Klingensmith, JJ., concur.


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    Mickael JACKSON a/k/a Michael Jackson, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4918
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

Per Curiam.

In our original decision, this court affirmed appellant’s consecutive sentences imposed under section 775.087(2)(d), commonly known as-the 10-20-Life statute, for armed carjacking and robbery with a firearm; which occurred on the same date and involved the same victim. On réview of a certified question concerning whether section 775.087(2)(d) requires consecutive sentences when the sentences arise from one criminal episode, the supreme court quashed our decision and remanded for reconsideration in light of Walton v. State, 208 So.3d 60 (Fla. 2016), and Williams v. State, 186 So.3d 989 (Fla. 2016), which were decided after the issuance of our opinion. Consistent with those decisions, we reverse appellant’s consecutive sentences and remand for resentencing consistent with the supreme court’s decision.

Reversed and remanded for resentenc-ing.

Ciklin, C. J., Taylor and Levine, JJ., concur.


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    Wylie BILLUPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3130
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]
    Wylie Billups, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

Per Curiam.

This court previously affirmed the denial of appellant’s rule 3.800(a) motion with a citation to Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013), rev. granted 123 So.3d 1148 (Fla. 2013). In part, his motion challenged the imposition of consecutive mandatory minimum sentences under section 775.087(2)(d), Florida Statutes (2008), the 10-20-Life statute. The Florida Supreme Court has quashed our decision and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016), and Williams v. State, 186 So.3d 989 (Fla. 2016). Because appellant’s offenses arose from the same criminal episode and did not involve discharge of a firearm, consecutive mandatory minimum sentences were not permitted. Accordingly, we reverse and remand for resentenc-ing consistent with the Florida Supreme Court decisions. The denial of appellant’s remaining claims is affirmed.

Reversed and remanded.

Ciklin, C.j., Damoorgian and Klingensmith, JJ., concur.