author: SALTER, J.

text:
    Rolando D. RODRIGUEZ, et al., Appellants, v. OCEAN BANK, etc., Appellee.
    No. 3D15-1802.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.
    Rehearing Denied Dec. 21, 2016.

      Perez & Rodriguez, and Javier J. Rodriguez, Johanna Castellon-Vega and Freddy X. Muñoz, for appellants.
    Piedra & Associates and Jeremy A. Koss, for appellee.
    Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.
   SALTER, J.

Rolando D. Rodriguez and Patricia Caballero-Rodríguez appeal a summary final judgment in favor of Ocean Bank (a) for a deficiency of $196,495.01 following a sale of the Rodriguezes’ property and (b) on the Rodriguezes’ counterclaims against Ocean Bank for wrongfully withholding most of the insurance proceeds held by the Bank after the residence was damaged in a fire. Applying the stringent standards of review applicable to summary judgments, we find that the Rodriguezes’ affirmative defenses and counterclaims presented triable issues of fact, and we reverse the summary final judgment.

Factual and Procedural Background

In 2007, the Rodriguezes purchased a home in Miami Beach. They secured a residential first mortgage loan from Ocean Bank in the principal amount of $840,000.00. On November 26, 2008, the home was destroyed by fire. The Rodri-guezes’ homeowner insurance policy with Citizens Property Insurance Corporation ultimately paid $501,415.24 on the Rodri-guezes’ claim. This amount was paid into an escrow account at Ocean Bank pursuant to the following terms within paragraph 5 of the mortgage:

Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender’s satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds, and shall be the sole obligation of the Borrower. If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.

In December 2008, and continuing through August 2011, the Rodriguezes obtained permits, architectural plans, and contractor bids in order to rebuild their home. Ocean Bank approved disbursement of a portion of the insurance proceeds held in escrow by Ocean Bank, approximately $157,000.00, for that purpose. During this period, the Rodriguezes continued to make the required payments on the loan. Thereafter, however, Ocean Bank’s inspector estimated that the cost of reconstruction would exceed the remaining insurance proceeds in escrow by approximately $74,000.00. In a letter in October 2011, Ocean Bank notified the Rodriguezes that Ocean Bank would not disburse additional funds until this alleged shortfall was deposited by them into the escrow account. The Rodriguezes disagreed that there was a shortfall and declined to make such a payment.

When the parties disagreed regarding Ocean Bank’s estimate and demand for additional deposits to the escrow account, they began negotiations toward a modification of the loan terms. Early in the negotiations, Ocean Bank’s legal counsel and legal managing attorney noted in an email that the preliminary negotiations were for settlement purposes only, and that nothing would be binding “unless and until there is a written agreement between us which is executed by you and your wife and by an officer of Ocean Bank.”

On February 5, 2012, the parties entered into a Loan Modification Agreement (the “LMA”) providing the following terms pertinent to this appeal:

1. From October 2011, and for a period of three years, Ocean Bank was to reduce the interest rate on the loan to a fixed rate of 4.25% per annum.
2. The Bank would apply the entire remaining escrow balance, $348,794.20, to reduce the loan balance.
3. The LMA provided “[ejxcept as stated herein, all of the terms, conditions, specific clauses, and paragraphs of the [mortgage] shall remain in full force and effect and are hereby ratified and confirmed,” and “[n]othing in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of the Note and [mortgage].”

What it did not include, however, was any waiver of claims, affirmative defenses, or counterclaims by the Rodriguezes relating to the delays and demands made by Ocean Bank regarding the escrowed insurance proceeds and the alleged cost to complete construction.

The LMA did not resolve the disagreements between the parties regarding the path forward — whether to list the mortgaged property, including the permits and construction documents, for sale, and whether Ocean Bank would seek a deficiency judgment if the sale produced net proceeds insufficient to pay the remaining balance of the loan in full. When further negotiations were unavailing, the Rodri-guezes began efforts to sell the property but stopped making interest payments to Ocean Bank. Ocean Bank commenced an action to foreclose the mortgage and to collect any deficiency under the promissory note in November of 2012.

The following month, and without a waiver of rights by either side, the Rodri-guezes sold the property for $365,000.00, and Ocean Bank applied the net proceeds to reduce the principal balance of the loan to approximately $150,000.00. Ocean Bank then voluntarily dismissed its mortgage foreclosure count, but continued to prosecute a deficiency claim under Count II, its claim under the note.

In response, the Rodriguezes raised affirmative defenses and counterclaims based on Ocean Bank’s alleged failure to mitigate damages, breaches of contract, estoppel, and misrepresentation.

Ocean Bank and the Rodriguezes filed cross-motions for summary judgment and affidavits in opposition. In July 2015, the trial court heard the motions, granted Ocean Bank’s motion, denied the Rodri-guezes’ motion, and entered a final summary judgment against the Rodriguezes for a total of $196,495.01. This appeal followed.

Analysis

“In ruling on a motion for summary judgment, the trial court (and this Court in its de novo review) must construe all the evidence, and draw every possible inference therefrom, in a light most favorable to the non-moving party.” JVN Holdings, Inc. v. Am. Constr. & Repairs, LLC, 185 So.3d 599, 600 (Fla. 3d DCA 2016).

The affidavits of the Rodriguezes in opposition to Ocean Bank’s motion for summary judgment provide a chronology of Ocean Bank’s control over their insurance proceeds: the Bank’s early determination that the rebuilding effort was economically feasible and disbursement of limited funds from the restricted escrow account; the alleged incorrectness of the Bank’s inspector’s construction cost estimates; the allegedly improper demand for the Rodriguezes to deposit additional funds to the restricted account before any disbursements would be allowed; the effect of Ocean Bank’s delays on the mounting loan balance; and the Rodriguezes’ ultimate loss of their own personal funds used to keep interest current and to fund preconstruction expenses that were not released by Ocean Bank from the restricted escrow account.

Regarding the question of whether the 2012 LMA amounted to a release or waiver of the Rodriguezes’ claims, affirmative defenses, and counterclaims against the Bank, the Rodriguezes’ affidavits denied any intention to release or waive their rights, and they pointed to the terms of the LMA which left Ocean Bank in the same position (i.e., not waiving or releasing Ocean Bank’s claims or defenses vis-á-vis the Rodriguezes).

In contrast, the Ocean Bank officer’s affidavit in support of Ocean Bank’s motion for summary judgment conceded the central chronology of facts pertaining to the escrowed insurance proceeds and the refusal to make further disbursements. In support of Ocean Bank’s “release or waiver” position, the officer’s affidavit referred to and attached emails “making three settlement proposals.” Any such proposals were not, of course, admissible or eligible for consideration as “summary judgment evidence” under Florida Rule of Civil Procedure 1.510(c). Moreover, and as already noted, the Bank’s legal counsel and legal managing attorney had noted at the outset of those email communications that the preliminary negotiations were for settlement purposes only, and that nothing would be binding “unless and until there is a written agreement between us which is executed by you and your wife and by an officer of Ocean Bank.”

Turning next to the central question — whether the LMA or short sale “Acknowledgment of Borrower(s)” effected a release or waiver of the Rodriguezes’ claims, affirmative defenses, and counterclaims, it is apparent that they did not. “[W]aiver is the intentional or voluntary relinquishment of a known right.” Popular Bank of Fla. v. R.C. Asesores Financieros, C.A., 797 So.2d 614, 619 (Fla. 3d DCA 2001). In order to constitute an express waiver of rights in a contract, the language must be clear and unambiguous, or sufficient to lead to no other conclusion. De Campos v. Ferrara, 90 So.3d 865, 869 (Fla. 3d DCA 2012). Waiver by conduct, on the other hand, is an issue for the finder of fact on a record such as this. Popular Bank, 797 So.2d at 619; Clear Channel Metroplex, Inc. v. Sunbeam Television Corp., 922 So.2d 229, 232 (Fla. 3d DCA 2005).

Typically, a loan modification, forbearance, or so-called “workout agreement” like the LMA includes explicit waiver and release provisions signifying that the borrowers are abandoning any claims and defenses that relate to acts and omissions pre-dating the agreement. See In re Holywell Corp., 49 B.R. 694 (Bankr.S.D.Fla. 1985). In the present case, however, Ocean Bank was careful to preserve its pre-existing rights under the loan documents, and it did not require the Rodri-guezes to waive or release their own claims relating to pre-LMA matters. Each side agreed to certain terms in order to reduce the sum in controversy and eliminate certain issues, but each side also preserved its respective right in the future to prosecute a deficiency claim (Ocean Bank) or to oppose that claim and seek damages for prior wrongful acts (the Rodriguezes).

Lender liability for the wrongful refusal to disburse funds, imposition of extra-contractual conditions, or delay of construction is now an established feature of Florida law. See generally Florida Real Property Litigation §§ 8.32, 8.42, 8.44 (6th ed.2011); Lentz v. Cmty. Bank of Fla., Inc., 189 So.3d 882 (Fla. 3d DCA 2016). Although we express no opinion regarding the merits of the Rodriguezes’ affirmative defenses and counterclaims, those pleadings are not insufficient as a matter of law, they were supported by competent affidavits in opposition to the Bank’s motion for summary judgment, and they establish genuine issues of material fact for resolution at trial.

The summary final judgment is reversed and remanded for further proceedings consistent with this opinion.

      . Any delays caused by Ocean Bank during this period resulted in additional interest charged and collected by Ocean Bank. The interest paid by Ocean Bank on the escrowed insurance proceeds (and merely added to the restricted account) was approximately 0.5% per annum, while loan statements in the record indicate the loan balance was accruing interest at a rate over 6% per annum greater than that rate.

      . Ocean Bank was to apply $340,000.00 to reduce principal and $8,794.20 to reduce unpaid interest. The Rodriguezes were required to make a further payment of outstanding interest from their own funds by January 1, 2012, and they made that payment as well.

      . A "short sale” ordinarily involves a consensual sale for a net proceeds amount acknowledged by the lender and borrower/owner to be less than the outstanding loan balance. Such agreements may or may not include an agreement by the lender to waive any resulting deficiency.

      , The Bank approved the sale after obtaining a signed "Acknowledgment of Borrower(s)” in which the Rodriguezes agreed that Ocean Bank was not waiving any rights to claim a deficiency judgment against them following the sale. Importantly, however, the "Acknowledgment” did not include any term whereby the Rodriguezes released or waived any of their rights or remedies against Ocean Bank,

      . The final summary judgment also denied any relief to the Rodriguezes under their counterclaims;

      . § 90.408, Fla. Stat. (2012).

      . The trial court denied Ocean Bank’s motion to strike five of the Rodriguezes’ eight amended affirmative defenses and denied Ocean Bank’s motion to dismiss as to all three of their counterclaims.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Herby LUMA, a/k/a Ronet Bastien, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2363.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.
    Herby Luma, a/k/a Ronet Bastien, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, LAGOA and LOGUE, JJ.
   WELLS, Judge.

Herby Luma appeals an order striking his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court’s basis for striking the motion was that it had precluded him from filing further pleadings without an authorized signature from a member of the Florida Bar. However, while the court below issued a rule to show cause why Luma should not be prohibited from the filing of further pro se motions attacking his convictions and sentences in this case, neither the scant appellate record before us nor the lower court docket conclusively confirm that the lower court ever entered an order prohibiting him from such pro se filings.

We treat the instant appeal of the order striking Luma’s motion as an appeal from the summary denial of a motion for post-conviction relief. See Cruz v. State, 981 So.2d 1272, 1273 (Fla. 3d DCA 2008). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order now before us and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that Luma is not entitled to any relief.

Reversed and remanded for further proceedings.


author: SCALES, J.

text:
    CITIBANK, N.A., etc., Appellant, v. Martin and Jitka OLSAK, Appellees.
    No. 3D15-1032.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2016.
    Rehearing Denied Dec. 21, 2016.

      Carlton Fields Jorden Burt, P.A., and Michael K. Winston, Dean A. Morande, and Alana Zorrilla-Gaston, West Palm Beach, for appellant.
    W.J. Barnes, P.A., and Jeff Barnes, Boca Raton, for appellees.
    Before SUAREZ, C.J., and SHEPHERD and SCALES, JJ.
   SCALES, J.

Appellant, plaintiff below, Citibank, N.A., as trustee for the BSARM 2007-2 trust (the “Trust”), appeals a final judgment involuntarily dismissing the Trust’s foreclosure complaint post-trial. The trial court entered final judgment against the Trust based exclusively on Appellees’ expert witness who testified at trial that the Trust was not, and never had been, the holder of the subject note. We reverse because the trial court impermissibly relied upon the expert’s legal conclusions rather than competent, substantial evidence.

I. Facts

In -September of 2006, the now defunct Orion Bank loaned Appellee Martin Olsak $540,000. Orion Bank’s loan was memorialized with a promissory note (the “Olsak Note”), and secured- with a mortgage (the “Olsak Mortgage”) encumbering Olsak’s real property in Key West, Florida. After Olsak defaulted on the note and mortgage by failing to make a required installment payment, the Trust — which had allegedly acquired the Olsak Note and Mortgage— filed a foreclosure action in Monroe County Circuit Court in June of 2009.

Prior to trial, the Trust filed with the Court the original Olsak Note payable to Orion Bank. The Olsak Note was endorsed by the loan’s servicer, Wells Fargo, as Orion Bank’s attorney-in-fact, and then endorsed in blank by Wells Fargo. The Trust introduced into evidence a September 2006 mortgage assignment showing that the Olsak Mortgage and Olsak Note were assigned by Orion Bank to Wells Fargo on the same day the loan was originated. In addition, the Trust introduced into evidence a Wells Fargo “screen shot” purportedly showing that the loan was placed into the Trust on June 28, 2007.

Olsak called one witness, Richard Kahn, a mortgage foreclosure fraud investigator and securitization auditor. Over the Trust’s objections, Kahn, a non-lawyer whom the trial court treated as an expert witness, gave opinion testimony that the Trust documents did not allow for the Trust to acquire a note, like the Olsak Note, that had been endorsed in blank. Kahn also testified that the Olsak Note endorsements violated IRS provisions related to real estate mortgage investment conduits (“REMICs”) such as the Trust. While Kahn was unable to identify who held the Olsak Note, he testified, in conclu-sory fashion, that the Trust was not the holder of the Olsak Note.

After allowing for post-trial submittals by the parties, and relying exclusively on Kahn’s testimony, the trial court entered the final judgment on appeal concluding that the Trust “[njever acquired any interest in either the Note or the mortgage” and, therefore, never acquired standing to institute the action. Citibank timely appealed.

II. Standard of Review

Generally, the determination of whether a plaintiff has standing is a legal issue subject to de novo appellate review. Reynolds v. Nationstar Loan Servs., LLC, 190 So.3d 219, 221 (Fla. 4th DCA 2016). To the extent that the trial court’s standing determination involves factual findings, we uphold such findings only if supported by competent, substantial evidence. Verneret v. Foreclosure Advisors, LLC, 45 So.3d 889, 891 (Fla. 3d DCA 2010).

III. Analysis

To have standing, a plaintiff who is not the promissory note’s original payee must have possession of the note at the inception of the foreclosure case. This plaintiff also must provide the trial court with either an assignment in favor of the plaintiff or a note that bears either an endorsement in blank or a special endorsement in favor of the plaintiff. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012); see also § 673.3011, Fla. Stat. (2016) (stating that a “person entitled to enforce” an instrument includes “[t]he holder of the instrument”); Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 321-22 (Fla. 5th DCA 2013). While the Trust had possession of the Olsak Note bearing a blank endorsement, the trial court nonetheless determined that the Trust never acquired any interest in the Olsak Note. The record reflects that the trial court’s conclusion was based exclusively on Kahn’s testimony.

Specifically, Kahn opined that: (i) the terms of the Trust documents required all notes held by the Trust to contain specific endorsement language not contained on the endorsed Olsak Note; (ii) the language of the 2006 mortgage assignment did not comport with the requirements of the Trust documents; (iii) Wells Fargo’s purported endorsement of the Olsak Note as attorney-in-fact for Orion Bank was invalid because Kahn had not located a recorded power of attorney document in which Orion Bank had appointed Wells Fargo as its attorney-in-fact; and (iv) the alleged infirmities regarding the Olsak Note’s endorsements and 2006 mortgage assignment violated IRS rules governing REMICs.

At the outset, it bears noting that witnesses, even witnesses qualified as experts, generally are precluded from providing testimony in the form of legal conclusions. See Palm Beach Cty. v. Town of Palm Beach, 426 So.2d 1063, 1070 (Fla. 4th DCA 1983) (“Regardless of the expertise of the witness, generally, and his familiarity with legal concepts relating to his specific field of expertise, it is not the function of the expert witness to draw legal conclusions. That determination is reserved to the trial court.”). Opinion testimony of experts amounting to conclusions of law are inadmissible because the determination of such questions is exclusively within the court’s province. Thundereal Corp. v. Sterling, 368 So.2d 923, 928 (Fla. 1st DCA 1979) (internal quotations and citations omitted). And, it constitutes reversible error for a trial judge to rely upon expert testimony to determine questions of law. Devin v. City of Hollywood, 351 So.2d 1022, 1026 (Fla. 4th DCA 1976).

Kahn’s testimony was devoid of facts to assist the trial court in making its own legal conclusions regarding the Trust’s standing. Rather, Kahn simply provided legal opinions — often of dubious relevance and in conclusory fashion — related to the Trust’s operating documents and the IRS tax code’s treatment of REMICs. Interestingly, when Kahn was asked on cross-examination if an endorsed-in-blank note is a transferrable instrument, the trial court sustained Olsak’s objection that the question called for a legal conclusion.

We are compelled to reverse the trial court’s determination that the Trust lacked standing, because the trial court based its standing conclusion exclusively on Kahn’s legal opinions regarding matters of questionable relevance.

Furthermore, Kahn testified that the Trust documents did not allow for inclusion of notes that had been endorsed in blank. Olsak, however, is not a party to those Trust documents and therefore, lacks standing to challenge same. Castillo v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1069 (Fla. 3d DCA 2012) (Mem). Florida courts have repeatedly held that borrowers cannot defeat a foreclosure plaintiffs standing by relying upon trust documents to which the borrower is not a party. Id.

Similarly, Kahn testified that certain IRS and banking provisions would have precluded the Trust from receiving favorable tax treatment if the Trust owned the Olsak loan. Absent a relevant factual basis, however, this legal opinion, while certainly intei*esting, has questionable probative value on the dispositive issue in this case: whether the Trust actually held the Olsak Note at the inception of the case.

On remand, the trial court must determine, along with any other contested issues, whether the Trust had standing to bring the action at the case’s inception. McLean, 79 So.3d at 173. In making this determination, any facts upon which the trial court relies should be supported by competent, substantial, relevant evidence, and not merely legal conclusions of a party’s expert.

IV. Conclusion

Because the record on appeal reflects that the trial court impermissibly relied upon Appellees’ expert’s legal conclusions, we reverse the trial court’s final order involuntarily dismissing the Trust’s claim, and remand for further proceedings consistent with this opinion.


author: CRAGGS, A.M., Associate Judge.

text:
    S & M TRANSPORTATION, INC., etc., Appellant/Cross-Appellee, v. NORTHLAND INSURANCE COMPANY, etc., Appellee/Cross-Appellant.
    Case No. 5D14-4401
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 2, 2016

      V. Rand Saltsgaver, of Law Offices of Rand Saltsgaver, and Charles Parker, Jr., of Mapp & Parker, P.A., Orlando, for Appellant/Cross-Appellee.
    Maureen G. Pearcy, Andrew E. Grigsby, and John J. Cavo, of Hinshaw & Culbertson LLP, Coral Gables, for Appel-lee/Cross-Appellant.
   CRAGGS, A.M., Associate Judge.

S & M Transportation, Inc., (“S & M”) appeals and Northland Insurance Co. (“Northland”) cross-appeals the trial court’s “Final Declaratory Judgment for the Plaintiff, S & M Transportation, Inc.” entered following a jury trial. S & M argues that the trial court erred as a matter of law when it separately made findings of fact in the final declaratory judgment regarding S & M’s failure to establish damages, where the parties’ joint pretrial stipulation established that the only issue for determination by the jury was whether S & M’s Freightliner truck had been lost due to theft. In its cross-appeal, Northland argues that the trial court erred by denying its motion for summary final judgment and its post-trial motion to correct the final declaratory judgment. Concluding that the trial court erred when it made findings exceeding the scope of the parties’ joint pretrial stipulation, we reverse the final declaratory judgment. We affirm on Northland’s cross-appeal.

In this case, Northland issued a one-year commercial automobile policy to S & M that insured the truck at issue. S & M contracted with Broadway Premium Funding (“Broadway”) to finance the premiums owed on the insurance policy. Sometime after 12:01 a.m. on May 21, 2010, S & M’s truck was allegedly stolen, resulting in S & M filing a claim with Northland under the policy for the loss of the truck by theft. Northland denied coverage, asserting that it no longer had contractual responsibility to S & M for the claim because the policy had been cancelled, effective at 12:01 a.m. on May 21, 2010, due to S & M’s nonpayment of the monthly premium to Broadway. Thereafter, S & M filed a complaint, seeking a declaration of its rights under the policy, alleging, in part, that its truck had been stolen, that it had filed a claim under its policy with Northland, and that Northland wrongfully denied coverage for the loss under the policy.

After filing its answer and conducting discovery, Northland filed a motion for summary final judgment regarding one of its affirmative defenses, asserting that the policy was cancelled prior to the theft and, therefore, Northland was not liable for coverage. Northland attempted to prove cancellation of the policy by attaching to its summary judgment motion copies of certain documents, including: the cancellation notice from Broadway to Northland’s agent, J.M. Wilson; the notice of cancellation from Northland to S & M; and the notice of intent to cancel from Broádway to S & M. Although none of these documents attached to Northland’s motion were verified or authenticated by separate affidavit, they were attached to the sworn deposition of Northland’s representative, Drew Johnson, which had been filed with the court in advance of the summary judgment hearing. The trial court denied Northland’s motion for summary judgment by unelaborated order.

At a pretrial conference, the parties represented to the court that the sole issue to be resolved at trial was whether, under the terms of the policy, there was a theft of S & M’s truck. Thereafter, the parties filed a joint pretrial stipulation wherein they agreed that “[t]his is an action for declaratory relief as to whether the Plaintiff suffered the loss of the Freightliner tractor truck from any cause under the comprehensive coverage, or by theft, pursuant to the Physical Damage provisions of the insurance policy between the Plaintiff ... and the Defendant.” At the conclusion of the trial, the jury specifically found that S & M suffered a loss under the physical damage provision of the insurance policy with Northland for the theft of the truck.

Thereafter, the trial court issued the final declaratory judgment under review. The judgment provided that S & M “suffered a cause of loss that would be covered under the physical damage provision of the insurance policy with [Northland] for the theft of its Freightliner tractor truck,” but also went on to find that “there has been no proof of a loss for recovery of damages that would be payable under the insurance policy.” Therefore, by its final judgment, the court essentially determined that there was no covered loss under the policy.

We find that the trial court erred when it included additional findings in the final judgment that exceeded the agreed upon issues to be tried by the parties in the pretrial stipulation. The parties’ pretrial stipulation limited the issues of fact and law to be presented at trial and decided by the jury. “[T]he purpose of the pretrial stipulation is to put the parties on notice of what is in dispute .... ” Knight v. Walgreens, 109 So.3d 1224, 1228 (Fla. 1st DCA 2013) (citing Marin v. Aaron’s Rent To Own, 53 So.3d 1048 (Fla. 1st DCA 2010)). Although the parties could have also agreed to have the jury determine damages, they did not do so, and by their pretrial stipulation, they limited the only issue for the jury to determine was whether there was a theft of S & M’s truck that was covered under the insurance policy.

“A pretrial stipulation limiting the issues to be tried is ‘binding upon the parties and the court, and should be strictly enforced.’” LPI/Key W. Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So.3d 852, 854 (Fla. 3d DCA 2012) (quoting Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008)). Based upon the pretrial stipulation, S & M had no reason to attempt to establish quantifiable damages at trial. Moreover, Northland did not argue at trial that S & M should not prevail due to its failure to present evidence of damages. After the jury determined that S & M suffered a theft that was covered under the policy, the trial court’s entry of the final declaratory judgment should have been constrained to the coverage issue alone. Consequently, the trial court’s additional findings and rulings as to damages were error.

Turning to Northland’s cross-appeal, Northland argues that its motion for summary judgment was improperly denied because the insurance policy issued by Northland to S & M was cancelled prior to the truck being stolen, thus eliminating coverage for the theft. As we explain below, we find that the trial court properly denied Northland’s motion for summary judgment, albeit for the wrong reasons. Accordingly, pursuant to the “tipsy coachman” doctrine, we affirm the trial court’s denial of Northland’s motion for summary judgment. See Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (stating that the “tipsy coachman” doctrine “allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record’” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999))).

To obtain a summary judgment, North-land had the burden of presenting competent evidence to support the nonexistence of a genuine issue of material fact. See Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 197 (Fla. 5th DCA 2015) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966)). Northland was required to “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” on which it relied. Fla. R. Civ. P. 1.510(c). Additionally, supporting affidavits must

be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Id. at 1.510(e).

As previously described, Northland attached to its motion for summary judgment documents that were neither verified nor authenticated in support of its defense that the policy was cancelled prior to the theft of the truck. “[Mjerely attaching an unsworn document ... to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e).” First Union Nat’l Bank of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. 5th DCA 2001) (citing Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 708 (Fla. 4th DCA 1997)). Therefore, the unverified and unauthenticated copies of the notices of cancellation attached to Northland’s motion were insufficient for summary judgment purposes because only competent evidence that would be admissible at trial may be considered in ruling on a motion for summary judgment. See Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (citations omitted).

We acknowledge that the documents offered by Northland to prove cancellation were also attached to the timely filed, sworn deposition of Northland’s representative, Drew Johnson. Although the documents themselves are hearsay, under certain circumstances, “business records” can be admissible in evidence as an exception to the hearsay rule under section 90.803(6)(a), Florida Statutes (2015), and thus can be competent evidence in support of a motion for summary judgment. However, for these records to be admissible under this statute, the proponent must show that

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008) (citing Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999)).

Accordingly, for Northland to have been able to utilize the cancellation notices attached to Mr. Johnson’s deposition as proper summary judgment evidence under the business records exception to the hearsay rule, Mr. Johnson should have testified under oath as to the predicate requirements for the admissibility of these documents. See id. (citing § 90.803(6)(a), Fla. Stat. (2004)). Northland’s defense on this point failed because Northland took no steps to sufficiently authenticate the documents under the business records exception to the hearsay rule during Mr. Johnson’s deposition. See § 90.803(6)(a), Fla. Stat. (2015).

Accordingly, we reverse the trial court’s final declaratory judgment because it included findings of fact and conclusions of law that exceeded the parameters of the joint pretrial stipulation of the parties, and we remand for the entry of a final declaratory judgment consistent with this opinion and the jury’s verdict. As a result, we affirm the trial court’s denial of North-land’s motion to correct the final declaratory judgment. Finally, we affirm the trial court’s denial of Northland’s motion for summary final judgment for the reasons stated herein.

REVERSED and REMANDED with instructions.

ORFINGER and BERGER, JJ., concur.

      . Even though the court’s final judgment stated in the title that it was "for” S & M, as discussed infra, by finding in the judgment that S & M failed to prove damages, the net effect of the final judgment actually favored Northland.

      . Accordingly, we find it unnecessary to address S & M's other issues on appeal.

      . Whether or not Northland’s representative, Drew Johnson, would have been able to lay a proper predicate for Broadway's business records and testify regarding those records is unknown, as Mr. Johnson was never asked the necessary questions to authenticate the documents during his deposition.

      . S & M hied a post-trial motion for supplemental relief to recover damages. See § 86.011(2), Fla. Stat. (2015) (“Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”). This motion is not before us because the trial court had not ruled upon it by the time the notice of appeal was filed.


author: ROTHENBERG, J.

text:
    Leo AMATO and Donald Lewis Bouchard, Appellants, v. CITY OF MIAMI BEACH, et al., Appellees.
    No. 3D16-957
    District Court of Appeal of Florida, Third District.
    Opinion filed December 07, 2016

      Cannizzo & Chamberlin, P.A., and Lydia B. Cannizzo (Cooper City), for appellants,
    Raul Aguila, Miami Beach City Attorney, and Donald M. Papy, Chief Deputy City Attorney; Bryant Miller Olive P.A., and Denise M. Heekin and Elizabeth W. Neiberger, for appellees City of Miami Beach, Jorge Gonzalez, and Ramiro In-guanzo; Michael Pander (Pembroke Pines), for appellees IAFF Officials; Cole Scott & Kissane, P.A., and Scott A. Cole and Daniel M. Schwarz, for appellee Dr. David Santisteban.
    Before ROTHENBERG, LAGOA, and SCALES, JJ.
   ROTHENBERG, J.

Leo Amato and Donald Lewis Bouchard (“the appellants”) appeal the trial court’s final order granting the appellees’ motion to dismiss with prejudice the appellants’ amended complaint based on its findings that: (1) as to some of the appellees, the trial court lacked subject matter jurisdiction; and (2) as to all of the appellees, the appellants’ claims were barred by the statute of limitations. For the reasons that follow, we affirm.

The appellants, retired City of Miami Beach firefighters, filed a lawsuit on March 2, 2015, and an amended complaint on April 27, 2015, against fourteen defendants, including the City of Miami Beach (“the City”), the City’s former Manager, the City’s Director of Human Resources (collectively, “the City Defendants”), an outside consultant, and ten members of the City of Miami Beach International Association of Firefighters, Local 1510 (“the Union Officials”).

The appellants allege that in the summer of 2009, the City and the Union Officials engaged in secret talks during their collective bargaining negotiations to target and dupe the appellants into believing that the three-year Deferred Retirement Option Plan (“DROP”) would be eliminated in the 2012 collective bargaining agreement (“CBA”) in order to entice the appellants to retire early, which would create promotion opportunities within the City’s fee-fighter department. What the appellants allegedly were not told was that the new CBA would offer a five-year DROP option to replace the three-year DROP option. The appellants allege that they elected the three-year DROP option on August 31, 2009; they learned about the five-year DROP option on or about April 29, 2010; and the five-year DROP option was ratified by a majority of the union members on or about July 14, 2010. Bouchard retired on August 31, 2012 from his position as Fire Lieutenant, and Amato retired on March 31, 2013, from his position as Fire Chief.

I. The trial court correctly determined that it lacked subject matter -jurisdiction

Chapter 447, Part II, Florida Statutes (2009), which is commonly referred to as the Public Employees Relations Act (“PERA”), governs labor relations and collective bargaining activities between public employees, public employers, and employee organizations (unions) representing employees in Florida. Under PERA, the Florida Legislature created the Florida Public Employees Relations Commission (“PERC”), and empowered PERC “to settle disputes regarding alleged unfair labor practices.” § 447.503, Fla. Stat. (2009); see also Browning v. Brody, 796 So.2d 1191, 1191-93 (Fla. 5th DCA 2011). PERC was granted exclusive jurisdiction to resolve disputes between public employers and public employees. Fla. Educ. Ass’n v. Wojcicki, 930 So.2d 812, 813-14 (Fla. 3d DCA 2006). “Case law interpreting the jurisdictional scope of [PERA] has broadly included, as falling within PERC’s exclusive jurisdiction, those activities which ‘arguably’ constitute unfair labor practices as defined by section 447.501 ‘or the type of labor matter or dispute within the contemplation of Part II, Chapter 447.” Browning, 796 So.2d at 1192-93 (quoting Maxwell v. Sch. Bd. of Broward Cnty., 330 So.2d 177, 180 (Fla. 4th DCA 1976)). Whether a claim is within PERC’s exclusive jurisdiction depends of the nature and substance of the claim, not on how the plaintiff labels the claim. Gadzinski v. City of Fort Walton Beach, No. 3:10cv425, 2011 WL 2690403 at *3 (N.D. Fla. 2011) (applying Florida law).

The conduct alleged in the amended complaint clearly falls within PERC’s exclusive jurisdiction. The amended complaint alleges that the City and the City of Miami Beach International Association of Firefighters, Local 1510 (“the Union”) manipulated the appellants into selecting the three-year DROP option, which prevented them from selecting the five-year DROP option subsequently agreed to by the City and the Union in the 2009-2012 CBA, in order to create vacancies so that certain Union officials could be promoted. It is further alleged that these “side agreements” were not entered into in conformity with PERA and PERC regulations. Because the complained-of conduct allegedly occurred during the collective bargaining process and while the Union Officials were engaging in the scope of their official duties and responsibilities as Union Officials, and the alleged actions by the City Defendants and the Union Officials, if true, would constitute unfair labor practices, the appellants’ claims were subject to the exclusive jurisdiction of PERC.

The trial court correctly dismissed the appellants’ claims because these claims were within the exclusive jurisdiction of PERC; exhaustion of administrative remedies is required under Florida law before the courts may consider matters within the purview of an administrative agency, see Gulf Pines Mem’l Park v. Oaklawn Mem’l Park, 361 So.2d 695 (Fla. 1978); and the appellants failed to file a PERC complaint prior to bringing the instant lawsuit. Thus, as the trial court recognized, it lacked subject matter jurisdiction over the appellants’ claims.

II. The appellants’ claims were also time-barred

The jurisdictional statute of limitation to file a PERC complaint under section 447.503(6)(b) is six months. Fla. Marine Fisheries Comm’n v. Pringle, 736 So.2d 17, 20 (Fla. 1st DCA 1999). The appellants learned about the five-year DROP option on April 29, 2010; the five-year DROP option was ratified on or about July 14, 2010; Bouchard retired on August 31, 2012; and Amato retired on March 31, 2013. Whether the jurisdictional time-clock began to run when the appellants first learned of the five-year DROP option, or when the five-year DROP option was ratified, it is clear that the six-month time period to file their PERC complaints had expired well before they filed their civil complaint in 2015. Thus, the trial court correctly concluded that the applicable statute of limitations barred the appellants’ claims as to the City Defendants and the Union Officials.

As to the outside consultant, the appellants filed a claim against him for breach of fiduciary duty. A breach of fiduciary duty claim may be based on negligence or intentional conduct, but under either alternative, the statute of limitations is four years. See § 95.11(3) (a), (o), (p), Fla. Stat. (2010); Kelly v. Lodwick, 82 So.3d 855, 857 (Fla. 4th DCA 2011) (“Under the statute of limitations, actions for ... breach of fiduciary duty must be commenced within four years of when the cause of action accrued.”). The appellants’ cause of action against the outside consultant accrued either when they learned of the five-year DROP option on April 29, 2010, or at the latest, on July 14, 2010, when the five-year DROP option was ratified. Since the appellants did not file their lawsuit until March 2, 2015, the trial court correctly determined that the appellants’ claims against the outside consultant was also time-barred.

Conclusion

Although the trial court also found that the City Defendants were protected by sovereign immunity and that the outside consultant had no fiduciary relationship with the appellants, we need not address those findings based on our conclusions that the trial correctly determined that it lacked subject matter jurisdiction over the appellants’ claims against the Union Officials and the City Defendants, and the claims against all fourteen appellees were time-barred.

Affirmed.

      . The trial court also dismissed the amended complaint on other grounds, which we decline to specifically address because we concur with the trial court’s finding as to the other two grounds.


author: PER CURIAM.

text:
    Orestes G. WRVES, Appellant, v. Gabriel N. TABERNA and Nicolas G. Soria, Appellees.
    No. 3D16-1964
    District Court of Appeal of Florida, Third District.
    Opinion filed December 7, 2016
    Carlos A. Ziegenhirt, for appellant.

      Fowler Rodriguez and Michael A. Rosen and Santiago J. Padilla, for appellee Nicolas G. Soria.
    Before LAGOA, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Reyes v. Claria Life & Health Ins. Co., 190 So.3d 154, 157-58 (Fla. 3d DCA 2016) (forum selection clause was unambiguous and not contradictory in combination with the arbitration provision).


author: EVANDER, J.

text:
    Sandra BARTON and Gregory Barton, Appellants, v. CAPITOL PREFERRED INSURANCE COMPANY, INC., Appellee.
    Case No. 5D15-1587
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 9, 2016
    James J. Dye, Orlando, and Nicholas A. Shannin and Pamela R. Masters, of Shan-nin Law Firm, P.A., Orlando, for Appellants.

      Brandon S. Vesely and Nicole M. Ziegler, of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellee.
   EVANDER, J.

Sandra and Gregory Barton appeal the final summary judgment entered in favor of Capitol Preferred Insurance Company, Inc., on the Bartons’ first-party bad-faith complaint. In granting Capitol’s motion for summary judgment, the trial court found that by accepting Capitol’s proposal for settlement on their underlying breach of contract claim for an amount less than the policy limits, the Bartons had failed to obtain a determination of liability or the extent of their damages. We disagree and, accordingly, reverse.

Capitol provided homeowners’ insurance to the Bartons from April 28, 2003, through 12:01 a,m., April 28, 2011. The homeowners’ policy included sinkhole coverage up to policy limits of $312,000. Capitol did not renew the Bartons’ policy after April 28, 2011, and the Bartons then obtained homeowners insurance with Universal Property and Casualty Insurance Company, effective from April 28, 2011 through April 28, 2012. Within two weeks of obtaining insurance with Universal, the Bartons noticed damage to the walls and floor of their home. They filed a claim for sinkhole-related damages with Universal. Universal denied the claim, determining that the damage occurred prior to the effective date of its policy. Thereafter, by letter dated October 7, 2011, the Bartons, through their attorney, submitted a claim and request for sinkhole testing to Capitol, pursuant to section 627.707, Florida Statutes (2011). The Bartons did not provide a date of loss in their claim. Capitol denied the claim by letter dated October 17, 2011. In its letter, Capitol identified the date of loss as “Unknown” and stated that it could not process any claim payments because the policy was not renewed on April 28, 2011. The letter also stated, “However, if you believe you have documentation which confirms that the incident occurred within the policy effective period, please forward it to this office for review.”

The Bartons filed a breach of contract action against both Capitol and Universal in August 2012. Subsequently, Universal retained Ground Down Engineering (“GDE”) to perform sinkhole testing. GDE issued a report on January 8, 2013, determining that “the cracks and separations within and on the exterior of the Barton residence are likely the result of soil movement associated with sinkhole activity.” GDE estimated the cost of repairs would be between $129,220 and $146,220. The Bartons settled their breach of contract action with Universal for an undisclosed amount, but continued to pursue their action against Capitol.

In March 2013, pursuant to section 624.155, Florida Statutes (2013), the Bar-tons filed a “Civil Remedy Notice of Insurer Violation” with the Florida Department of Insurance. Section 624.155 of the Florida Insurance Code, requires insureds to file a civil remedy notice with the Department of Insurance (with a copy served on the insurer) as a condition precedent to bringing a bad-faith claim against an insurer. See § 624.165(l)(b), Fla. Stat. (2013). The notice must set forth the specific statutory provision the insurer allegedly violated, the facts giving rise to the violation, the relevant policy language, and a statement that the notice is given to perfect the right to pursue the civil remedy authorized by the statute. § 624.155(3)(b), Fla. Stat. (2013). If the insurer pays the damages or corrects the violation within sixty days of the filing of the notice, then the insureds are precluded from filing a bad-faith claim. § 624.155(3)(a), (d), Fla. Stat. (2013).

In their civil remedy notice, the Bartons alleged that rather than perform a “complete, thorough and statutorily compliant sinkhole/subsidence investigation,” Capitol merely summarily denied the sinkhole claim, thereby placing its interests ahead of those of its insureds. The civil remedy notice further alleged that Capitol wrongly denied a valid claim.

On April 5, 2013, Capitol responded to the civil remedy notice by denying all allegations. Approximately six months later, Capitol served the Bartons with a proposed settlement, pursuant to section 768.79, Florida Statutes (2013), offering to settle the Bartons’ claim for $65,000. Sig-nifieantly, the proposal did not require the Bartons to execute a release or to expressly waive their right to pursue a bad-faith action against Capitol. The Bartons timely accepted Capitol’s proposal for settlement. Shortly thereafter, Capitol paid the Bar-tons $65,000, and the Bartons dismissed their breach of contract complaint.

After settling the underlying action, the Bartons filed a first-party bad-faith action against Capitol, alleging that in handling the Bartons’ sinkhole claim, Capitol violated sections 624.155(l)(b) and 626.9541(1)(i)3, Florida Statutes (2013), by, inter alia, failing to properly investigate the Bartons’ claim and failing to act in good faith to settle that claim. Capitol filed an answer and affirmative defenses denying liability.

Capitol filed a motion for summary judgment in December 2014. It alleged that it was entitled to judgment as a matter of law on the Bartons’ bad-faith claim because the Bartons failed to establish the necessary prerequisites to maintain such a claim against Capitol. Specifically, Capitol alleged that the Bartons failed to prove that: (1) the underlying breach of contract case had been resolved in their favor; and (2) there had been a determination of the “actual extent of [their] loss.” In support of summary judgment, Capitol submitted an affidavit from one of its claims supervisors, who averred that as a claims supervisor she oversaw all claims, evaluated liability, and made coverage decisions. According to her affidavit, Capitol never admitted liability for the Bartons’ claim and the proposal for settlement was made in an effort to dispose of litigation costs. The claims supervisor further averred that there had not been a determination of liability against Capitol, nor had there been a determination of the extent of the Bartons’ alleged damages.

The Bartons filed a response in opposition to Capitol’s motion for summary judgment. They alleged that although a release was discussed, the parties ultimately agreed to a settlement without a release. Additionally, the Bartons’ posited that Capitol’s payment of $65,000 on the policy was a confession of judgment and constituted a determination of liability and damages. In support of their response, the Bartons filed the affidavits of the Bartons and their attorney. The trial court granted Capitol’s motion for summary judgment, stating that “a proposal for settlement does not equate to a determination of liability and the extent of damages.” The Bartons timely appealed the final summary judgment granted in favor of Capitol.

A cause of action for an insurer’s failure to settle its insured’s claim in good faith does not accrue until and unless the insured’s underlying first-party action for insurance benefits is resolved favorably to the insured. Blanchard v. State Farm Mut Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991). Furthermore, a bad-faith action is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla. 2000). However, the Florida Supreme Court has specifically stated that the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial, but may do so by other means — such as a settlement:

Certainly, the insured is not obligated to obtain the determination of liability and the full extent of his or her damages through a trial and may utilize other means of doing so, such as an agreed settlement, arbitration, or stipulation before initiating a bad faith cause of action.

Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1224 (Fla. 2016).

Here, Capitol’s payment of $65,000 constituted a favorable resolution for the Bartons. Cf. Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla. 2000) (holding that Allstate’s voluntary payment of additional monies after insured brought action to recover personal injury protection benefits operated as confession of judgment, thereby entitling insured to recover attorney’s fees). The settlement further served as a determination of liability and extent of the Bartons’ damages. See Fridman, 185 So.3d at 1224 (stating that settlement may serve as determination of liability and full extent of insured’s damages); Brookins v. Goodson, 640 So.2d 110, 112 (Fla. 4th DCA 1994), disapproved on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 62 (Fla. 1995) (holding that insurer’s payment of policy limits pursuant to settlement of underinsured motorist claim established that insured had valid claim for underinsured motorist benefits for purpose of first-party bad-faith action against insurer).

Capitol suggests that because it settled for an amount less than policy limits or the amount initially demanded by the Bartons, that there has been no determination of liability or extent of damages. We reject that argument. Section 624.155 authorizes an insured to bring a first-party bad-faith action where the insured has been damaged by the insurer’s failure to comply with certain enumerated statutory provisions. The statute does not condition the right to bring an action on the insured’s recovery of the policy limits or an amount equal to or greater than its initial demand in the underlying action.

REVERSED AND REMANDED.

LAWSON, C.J., and SCHUMANN, B.B., Associate Judge, concur.

      . Section 627.707 sets forth an insurer’s obligation to investigate sinkhole claims. Among other things, once an insurer receives a sinkhole claim for a covered building, the insurer must inspect the premises for structural damage that may have resulted from sinkhole activity and engage a professional engineer or geologist to conduct testing if the cause of damage cannot be ascertained or is consistent with sinkhole activity. § 627,707(1) — (2), Fla. Stat. (2011).

      , Section 624.155, Florida Statutes (2013), provides, in pertinent part:
      624,155 Civil remedy.—
      (1) Any person may bring a civil action against an insurer when- such person is damaged:

      (3)(a) As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days' written notice of the violation, If the department returns a notice for lack of specificity, the 60-day time period shall not begin until a proper notice is filed.
      (b) The notice shall be on a form provided by the department and shall state with specificity the following information, and such other information as the department may require:
      1. The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated.
      2. The facts and circumstances giving rise to the violation.
      3. The name of any individual involved in the violation.
      4. Reference to specific policy language that is relevant to the violation, if any. If the person bringing the civil action is a third party claimant, she or he shall not be required to reference the specific policy language if the authorized insurer has not provided a copy of the policy to the third party claimant pursuant to written request.
      5. A statement that the notice is given in order to perfect the right to pursue the civil remedy authorized by this section.

      (d) No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.
      (e) The authorized insurer that is the recipient of a notice filed pursuant to this section shall report to the department on the disposition of the alleged violation.

      (4) Upon adverse adjudication at trial or upon appeal, the authorized insurer shall be liable for damages, together with court costs and reasonable attorney's fees incurred by the plaintiff.

      (8) The civil remedy specified in this section does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to the common law of this state. Any person may obtain a judgment under either the common-law remedy of bad faith or this statutory remedy, but shall not be entitled to a judgment under both remedies. This section shall not be construed to create a common-law cause of action. The damages recoverable pursuant to this section shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the authorized insurer and may include an award or judgment in an amount that exceeds the policy limits.

      . The Florida Insurance Code is found at chapters 624-632, 634-636, 641-642, 648, and 651 of the Florida Statutes (2013).

      . Section 626.9541(l)(i)3, Florida Statutes (2013), provides:
      626.9541 Unfair methods of competition and unfair or deceptive acts or practices defined.—
      (1) Unfair methods of competition and unfair or deceptive acts. — The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

      (i) Unfair claim settlement practices.—

      3. Committing or performing with such frequency as to indicate a general business practice any of the following:
      a. Failing to adopt and implement standards for the proper investigation of claims;
      b. Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;
      c. Failing to acknowledge and act promptly upon communications with respect to claims;
      d. Denying claims without conducting reasonable investigations based upon available information;
      e. Failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after proof-of-loss statements have been completed;
      f. Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement;
      g. Failing to promptly notify the insured of any additional information necessary for the processing of a claim; or
      h. Failing to clearly explain the nature of the requested information and the reasons why such information is necessary.
      i. Failing to pay personal injury protection insurance claims within the time periods required by s. 627.736(4)(b). The office may order the insurer to pay restitution to a policyholder, medical provider, or other claimant, including interest at a rate consistent with the amount set forth in s. 55.03(1), for the time period within which an insurer fails to pay claims as required by law. Restitution is in addition to any other penalties allowed by law, including, but not limited to, the suspension of the insurer’s certificate of authority.

      . Capitol also filed a counterclaim alleging that the Bartons had breached the settlement agreement by filing a bad-faith claim.


author: WELLS, LINDA ANN, Associate Judge.

text:
    Maria Isabel GIRALDO and Juan Gonzalo Villa, as Co-Personal Representatives of the Estate of Juan L. Villa, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    CASE NO. 1D16-0392
    District Court of Appeal of Florida, First District.
    Opinion filed December 12, 2016.
    Rehearing Denied January 24, 2017.

      Floyd Faglie of Staunton & Faglie, PL, Monticello; Celene H. Humphries and Mhegen Peek Luka of Brannock & Hum-phries, Tampa, for Appellants. ;
    Alexander R. Boler, Tallahassee, for Ap-pellee.
   WELLS, LINDA ANN, Associate Judge.

On September 12, 2010, Juan L. Villa suffered catastrophic injury to his spine when the all-terrain vehicle he was riding overturned. Villa, claiming both economic and noneconomic damages, brought products liability and negligence claims against those allegedly liable for his injuries. Florida’s Agency for Healthcare Administration (“AHCA”), which administers Florida’s Medicaid program, paid for portions of Villa’s medical care. By accepting Medicaid benefits, Villa automatically subrogated his right to third-party benefits for the full amount of medical assistance provided by Medicaid and automatically assigned to AHCA his right, title, and interest to those benefits, other than those excluded by federal'law. See § 409.910(6)(a), (b), Fla. Stat. (20Í4); see also 42 U.S.C. § 1396k(a)(l) (requiring states participating in the federal Medicaid program to provide, as a condition of Medicaid eligibility, assignment to the state the right to payment for medical care from any third party). These same benefits also became subject to an automatic lien in AHCA’s favor “for the full amount of medical assistance provided by Medicaid” as soon as Villa began to receive treatment for which AHCA became obligated to pay. § 409.910(6)(c), Fla. Stat. (2014).

On March 2, 2015, AHCA asserted a $322,222.27 Medicaid lien against any future settlement of, or recovery from, the action Villa had brought to recover for the injuries he had incurred in the all-terrain vehicle accident. AHCA later updated the Medicaid lien amount to $324,607.25.

A month later, Villa settled his case against one of a number of defendants in his products liability/negligence action. Although the settlement agreement between these two parties did not itemize the different sums that Villa was to recover for each element of damage that he claimed, it did state that his “alleged damages have a value in excess of $25,000,000.00,” and that Villa and the settling defendant had agreed to allocate $4817.56 of the undifferentiated settlement total to Villa’s claim for past medical expenses.

Shortly after settling, Villa’s counsel notified AHCA of the settlement and provided AHCA with a copy of the executed settlement agreement, along with an itemization of Villa’s litigation costs in the tort lawsuit. The letter asked AHCA to advise Villa of the amount AHCA would accept from the settlement proceeds to satisfy its Medicaid lien. AHCA responded claiming entitlement to $321,720.16 of Villa’s settlement predicated on its calculation of the amount payable pursuant to the formula set forth in section 409.910(ll)(f) of the Florida Statutes. See § 409.910(ll)(f)l, Fla. Stat. (2014) (capping AHCA’s recovery at one half of the total amount of the settlement proceeds after deducting attorneys’ fees and costs).

Villa then petitioned the Division of Administrative Hearings (DOAH) for a formal administrative proceeding to contest the amount designated by AHCA “as recovered medical expense damages” and for a determination of the amount payable to AHCA to satisfy the agency’s Medicaid lien. See § 409.910(17)(b), Fla. Stat. (2015) (providing that a Medicaid recipient may contest the amount designated as recovered medical expense damages under paragraph (ll)(f)). The matter was tried before an administrative law judge (ALJ) the following October, but before a final order could be entered, Villa died, and the co-personal representatives of his estate stepped in.

On December 30, 2015, a comprehensive final order was entered rejecting Villa’s claim that less than the $321,720.16 allocated under the paragraph (ll)(f) formula should be allocated as reimbursement for Villa’s medical expenses. In doing so, the ALJ rejected the notion that the $13,881.79 allocation purportedly agreed to by Villa and the settling third-party tort-feasor (based on their $25,000,000.00 estimate of total damages) constituted clear and convincing evidence that an amount less than the paragraph (ll)(f) amount should be allocated, because “neither the agreed total value of ‘alleged’ damages nor the agreed allocation of settlement proceeds [between Villa and the settling third-party tortfeasor] to compensate for past medical expenses ... can be credited as reasonable products of arms-length adversarial negotiation.”

The ALJ also concluded that two-year old hearsay reports from a vocational rehabilitation specialist and an economist failed to supply the evidentiary support essential to the current paragraph (17)(b) challenge because neither report segregated medical damages from non-medical damages and neither reflected circumstances existing at the time of the eviden-tiary hearing. Lastly, the ALJ rejected Villa’s argument that section 409.910(17)(b) impermissibly required him to include any future medical expense award in calculating the amount that must be allocated from his total recovery as available to satisfy the lien at issue.

Villa here challenges the determination that he failed to “prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in [section 409.910](ll)(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency.” § 409.910(17)(b), Fla. Stat. (2014) (footnote omitted). Villa claims that the factual findings detailed in the final order are unsupported by competent substantial evidence and that the legal conclusions underpinning the final order are erroneous.

We find no error in any of the ALJ’s factual findings or legal determinations. First, we reject Villa’s claim that because the testimony of the two witnesses he called at the evidentiary hearing (one of whom was his trial attorney) was unrebut-ted, that the ALJ had no choice but to accept that testimony as probative. See Fox v. Dep’t of Health, 994 So.2d 416, 418 (Fla. 1st DCA 2008) (“It is well-established that the ALJ was not required to believe [witness’s] testimony, even if unrebut-ted.”). “[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted .... It is not our prerogative to judge the credibility of witnesses .... There is no substitute for seeing and hearing persons testify.” Walker v. Fla. Dep’t of Bus. & Prof'l Regulation, 705 So.2d 652, 655 (Fla. 5th DCA 1998) (J. Dauksch, concurring specially).

More to the point, the burden was on Villa to prove by clear and convincing evidence that a lesser amount was to be allocated from the total recovery. Clear and convincing evidence requires:

that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

On the record before us, we cannot disagree with the ALJ’s rejection of trial counsel’s unilateral determination of the amount to designate in the settlement agreement as that portion of the total settlement to be allotted to medical expenses. Likewise, we find no error in the ALJ’s determination that out-dated hearsay expert reports, which did not segregate medical from non-medical damages, failed to support the relief sought by Villa — a determination that section 409.910(ll)(f) should not be applied. Nor can we disagree with the ALJ’s decision that it was proper to reject testimony that the formula used by the parties to the settlement agreement to arrive at a $13,881 allocation for medical expenses was a “reasonable” or “fair” approach, a fortiori because the settlement agreement prepared by Villa’s counsel allocated not $13,881 but only $4,817.56 as the amount against which AHOA could draw, and only later modified that figure. We therefore find no error in the ALJ’s factual determinations about which Villa complains.

Second, we find no error in the ALJ’s legal determination relating to AHCA’s right to secure reimbursement for payments already made for medical costs from not only that portion of the settlement allocated for past medical expenses but also from that portion of the settlement intended as compensation for future medical expenses. We do so initially because that is precisely what Florida law required the ALJ to do. Section 409.910(ll)(f) sets forth the formula for determining that portion of a Medicaid recipient’s “recovery” pursuant to a settlement with a third party that must be allocated to satisfy “the total amount” of medical costs Medicaid has provided. § 409.910(ll)(f), Fla. Stat. (2014). Specifically, the formula allocates one half of the gross (or entire settlement) recovered (which would include the recipient’s recovery for past and future medical costs) less only attorney’s fees and costs as designated to repay the state’s Medicaid agency for the medical expenses that it has paid.

Likewise, section 409.910(17)(b), which authorizes a Medicaid recipient to challenge the amount allocated under section 409.910(ll)(f), expressly requires consideration of the amounts the Medicaid recipient has “recovered” to reimburse him or her “for past and future medical expenses.” § 409.910(17)(b), Fla. Stat. (2014). Section 409.910(17)(b) then requires the Medicaid recipient to prove by clear and convincing evidence that a smaller portion of this recovery should be made available for payment to AHCA than the amount established under section 409.910 (ll)(f):

(17)(b) A [Medicaid] recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula in paragraph (ll)(f) by filing a petition under chapter 120 .... In order to successfully challenge the amount payable to the agency, the [Medicaid] recipient must prove, by clear and convincing evidence, that a lesser portion of the total [settlement] recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (ll)(f) ....

Id.

Pursuant to prevailing law, Villa was obligated to establish as part of his challenge that portion of his recovery that he claimed was attributable to reimbursement by the third-party tortfeasor for both his past and his future medical expenses. Since Villa intentionally introduced no evidence as to the amount recovered for future medical expenses, the ALJ was correct in determining that he failed to satisfy his burden under section 409.910(17)(b) to avoid application of the statutory formula contained in section 409.910(1l)(f).

Moreover, notwithstanding Villa’s assertion to the contrary, nothing in section 409.910(ll)(f), section 490.910(17)(b), or the ALJ’s application of those provisions runs afoul of either federal law or federal or state legal precedent. “Medicaid is a cooperative federal-state welfare program providing medical assistance to needy people.” Roberts v. Albertson’s Inc., 119 So.3d 457, 458 (Fla. 4th DCA 2012) (quoting Agency for Health Care Admin. v. Estabrook, 711 So.2d 161, 163 (Fla. 4th DCA 1998)); see also 42 U.S.C. § 1396a(a)(25)(A)-(B). Although state participation in this federal program is voluntary, once a state elects to participate, it must comply with federal Medicaid law. Roberts, 119 So.3d at 458; see also Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).

Federal law requires that participating states seek reimbursement for medical expenses incurred on behalf of Medicaid recipients who later recover from legally liable third parties. This obligation is not, however, unbounded. As Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 282, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), confirms, these obligations are circumscribed by the anti-lien (and the anti-recovery) provisions of the federal Medicaid Act, which authorize payment to a state only from those portions of a Medicaid recipient’s third-party settlement recovery allocated for payment of medical care. See 42 U.S.C. § 1396p(a)(l) (providing that no lien may be imposed against the property of any individual prior to death on account of medical assistance paid or to be paid on his behalf under a state plan); see also 42 U.S.C. § 1396p(b)(l) (providing no adjustment or recovery of any medical assistance correctly paid on behalf of an individual under a state plan may be made except in limited circumstances).

In Ahlborn, a Medicaid recipient filed a tort suit seeking to recover damages for past and future medical expenses, permanent physical injury, past and future pain and suffering, mental anguish, and lost earnings among other things. The Arkansas state Medicaid agency intervened in the action to assert a lien for the full amount it had paid for Ahlborn’s medical care. After the action settled, without the agency’s input and without allocation of the damage awards, Ahlborn sought a declaration that satisfaction of the state’s lien “would require depletion of compensation for injuries other than past medical expenses.” Ahlborn, 547 U.S. at 274, 126 S.Ct. 1752. The United States District Court for the Eastern District of Arkansas concluded that Ahlborn had assigned her right to any recovery from third-party tortfeasors to the full extent of Medicaid’s payments for her benefit and thus the state Medicaid agency was entitled to recover the full amount of its lien even if that amount exceeded the amount of her recovery for medical care. The Eighth Circuit reversed, holding that the state “was entitled only to that portion of the judgment that represented payments for medical care.”

On appeal to the United States Supreme Court, the state’s claim was that it was entitled “to more than just that portion of a judgment or settlement that represents payment for medical expenses.” Id. at 278, 126 S.Ct. 1752. The Court rejected that claim, concluding first that federal law authorizing the states to seek reimbursement from legally hable third parties for medical assistance to Medicare recipients extended only to the “legal liability of [the] third party ... to pay for care and services available under [a state’s Medicaid] plan.” Id. at 280, 126 S.Ct. 1752 (citing 42 U.S.C. § 1396a(a)(25)(A)). The Court next concluded that the federal law’s mandate that “that the State must be assigned ‘the rights of [the recipient] to payment by any other party’ ” sanctioned only “an assignment of rights to payment for [nothing] other than medical expenses — not lost wages, not pain and suffering, not an inheritance.” Id. at 281, 126 S.Ct. 1752 (citing 42 U.S.C. § 1396a(a)(25)(H)). Finally, the Court found that the requirement in section 1396k(b) of the Medicaid Act, like other provisions of the Medicaid Act relating to recoveries from third-parties, which requires a state to “fully” reimburse Medicaid from any “amount recovered ... under an assignment” before the remainder is remitted to the Medicaid recipient, “extends only to recovery of payments for medical care,” Id. at 282, 126 S.Ct. 1752:

Accordingly, what § 1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.

Id. at 281, 126 S.Ct. 1752 (citing 42 US.C. § 1396k(b)) (relating to “where the State actively pursues recovery from the third party”).

None of these determinations, as Villa argues here, “indicate” that a state Medicaid program may recover only from that portion of a Medicaid recipient’s third-party settlement recovery allocated to past medical expenses. Rather, these determinations confirm that a state Medicaid program is to be paid “first” from “any” recovery from a third-party for the “medical care” of a Medicaid recipient before any others may be paid — this would include recovery of amounts allocated to both past and future medical care. In fact, the Court acknowledged that while the anti-lien pi-o-hibition of the Medicaid Act appears to ban “even a lien on that portion of the settlement proceeds [from a third-party tortfeasor] that represents payments for medical care,” the Act carves out exceptions where a Medicaid recipient assigns the right or a chose in action to receive payments for medical care or where the recipient “ ‘assign[s]’ in advance any payments that may constitute reimbursement for medical costs.” Id. at 284, 126 S.Ct. 1752. Ahlborn does not, therefore, “indicate” that a Medicaid recipient’s future medical expense recovery may not be considered in determining that recipient’s total recovery for medical expenses when allocating the amount that should be paid to Medicaid under Florida law.

Wos v. E.M.A., — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), does not alter this conclusion. That decision does no more than confirm that a state may not take any portion of a Medicaid beneficiary’s tort settlement not designated as “payments” for medical care and does not attempt to distinguish or address settlement provisions designated as payments for past medical expenses as opposed to payments for future medical care.

Villa points to no Florida decision that has specifically addressed the issue that we address here today, that is, whether amounts allocated for future medical expenses recovered by a Medicaid recipient in a third-party settlement may be considered in a section 409.910(17)(b) challenge to the application of the statutory formula provided in section 409.910(ll)(f). Not even Davis v. Roberts, 130 So.3d 264 (Fla. 6th DCA 2013), on which Villa relies, addresses this issue. Rather, the issue for resolution there was the same issue addressed in Wos as to whether a state Medicaid agency could “recover more than what [the Medicaid recipient’s] settlement allocated for past medical expenses.” In Davis, AHCA argued, and the trial court agreed, that no legal authority existed to allow Medicaid recipients to demonstrate that some amount less than the amount calculated under the statutory formula stated in section 409.910(ll)(f) should be allocated as that portion of a settlement available to pay for the recipient’s past medical expenses. The District Court of Appeal, without discussing or applying section 409.910(17)(b), determined that a Medicaid recipient “should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount [established by section 409.910(ll)(f) ] exceeds the amount recovered for medical expenses.” Id. at 270 (quoting Smith v. Agency for Health Care Admin., 24 So.3d 590, 592 (Fla. 5th DCA 2009)). That is now precisely what section 409.910(17)(b) provides and what Villa attempted to prove, albeit unsuccessfully.

In Harrell v. State, 143 So.3d 478, 480 (Fla. 1st DCA 2014), this court did no more than likewise conclude “we now hold that a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula outlined in section 409.910(ll)(f), by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. When such evidence is introduced, a trial court must consider it in making a determination on whether AHCA’s lien amount should be adjusted to be consistent with federal law.” More to the point, at no time did either Davis or Harrell discuss or determine that the amount recovered by the Medicaid recipient for future medical costs or expenses either could or could not be considered in determining whether the amount established by section 409.910(ll)(f) exceeds the amount recovered by the Medicaid recipient for medical care.

While it is true that AHCA may only secure payment for the amount it actually expended on Villa’s behalf, that does not mean that it cannot collect that amount from the sums that Villa recovers for both past and future medical expenses. And while we acknowledge that a few post-Ahlborn/Wos decisions have determined that a state Medicaid agency may be paid only from a recipient’s past medical cost award, we choose instead to align ourselves with what we believe are the better reasoned decisions of those courts which have held that a state agency may secure payment from both past and future recoveries for medical expenses. See In re Matey, 213 P.3d 389, 394 (Id. 2009) (holding that the state could recover past medical payments from an allocation for future medical care); Cardenas v. Henneberry, 795 F.Supp.2d 1189, 1197 (D. Colo. 2011) (concluding that because the Medicaid recipient intended to remain on Medicaid, “any funds allocated for future medical expenses should rightfully be exposed to the state’s lien”); see also Special Needs Trust for K.C.S. v. Folkemer, No. 08:10-CV-1077-AW, 2011 WL 1231319, at *12 (D. Md. Mar. 28, 2011) (“The fact that the settlement in this case contained unstipu-lated amounts that might represent payments for future medical expenses, and the fact that the Department is seeking to recover from this unstipulated amount does not violate the anti-lien provision, especially when Maryland’s recovery statute only allows Maryland to recover the amount that it has spent on past medical care.”).

Finally, we reject Villa’s argument that despite the fact that Villa and AHCA both agreed that Villa’s death had no impact on what the ALJ was to determine, the final order reached the incorrect legal conclusion that Villa’s death, nearly six months after the settlement, affected the analysis of how much of Villa’s settlement AHCA could recover. While the ALJ did indicate that with the litigation continuing, and Villa having died, a date different from the date of settlement might be applicable, a careful reading of the final order demonstrates that the ALJ’s decision is premised on' a total failure of proof, rather than the choice of dates on which calculations should have been based. Thus, we find no error meriting reversal in this regard.

As previously stated, “Medicaid is a cooperative federal-state welfare program providing medical assistance to needy people.” Roberts, 119 So.3d at 458 (quoting Agency for Health Care Admin. v. Estabrook, 711 So.2d 161, 163 (Fla. 4th DCA 1998)). To keep the Medicaid program viable, Congress recognized that it is necessary to obtain reimbursement when a third party makes payment to the Medicaid ben-efíciary for medical care already paid for by Medicaid. Roberts, 119 So.3d at 459. As Roberts explains, the goal of the reimbursement provision of the Medicaid Act was at least in part to protect tax dollars. 119 So.3d at 459 (citing Tristani v. Richman, 652 F.3d 360, 373 (3d Cir. 2011)). This, no doubt, is at least in part so that other “needy people” may secure the care they so desperately require. Writing on what we conclude as a nearly blank slate on this issue, we conclude the best way to satisfy that goal is to read section 409.910(17)(b) as meaning exactly what it says — that “[i]n order to successfully challenge the amount payable to the agency, the [Medicaid] recipient must prove, by clear and convincing evidence, that a lesser portion of the total [settlement] recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (ll)(f) ..,. ” (Emphasis added).

The order under review is, therefore, affirmed.

LEWIS and ROWE, JJ., CONCUR.

      . See § 409.901(2), Fla. Stat. (2014) (defining AHCA as the Medicaid agency for the state as provided by federal law).

      . The ALJ’s order concluded:
      9. Nearly all of Petitioner’s past medical expenses following the ATV incident were paid for by Medicaid. As of March 2, 2015, the total amount of medical assistance provided by the Medicaid program was $322,222.27, representing over 92 percent of the $347,044.67 paid in total for past medical expenses. The rest of Petitioner’s medical expenses were paid for by United Healthcare ($1457.40) and Medicare ($23,-365.00).

      12. By letter dated March 2, 2015, AHCA asserted a $322,222.27 Medicaid lien against Petitioner’s cause of action and any future settlement of, or recovery from, that action. Thereafter, AHCA updated the Medicaid lien amount to $324,607.25.

      . Among other things, Villa claimed damages for pain and suffering and mental anguish; for loss of wages and earning capacity; for mental and physical impairment; and for past and future medical expenses.

      . Villa’s counsel later testified that this amount was a mathematical error and that the correct sum was $13,881.79. Counsel admitted that he drafted this provision and intended to put in an amount that represented the same proportion to the total for past medical expenses as the total settlement amount represented to the total value of the damages claimed by Villa. That is, Villa settled for approximately 4% of the total damage amount claimed ($25,000,000), therefore, according to Villa, making AHCA entitled to only 4% ($13,881.79) of the amount of Villa’s past medical expenses.

      . Villa does not dispute the accuracy of the amounts utilized in AHCA’s calculations for attorney’s fees and costs and stipulated that the final sum requested by AHCA was accurately calculated pursuant to the parameters set forth in section 409.910(1 l)(f) of the Florida Statutes. He also does not deny that Medicaid paid more than the $321,720.16 requested to defray his medical costs.

      . Villa died on October 31, 2015, and the ALJ was put on notice before proposed final orders from the parties were due.

      . The co-personal representatives of Villa’s estate dispute the validity of the ALJ’s consideration of the fact that post settlement Villa had died. At most, this was just another reason the court found the dated expert reports unpersuasive.

      .While we refer to Villa, it is the two co-personal representatives who make the arguments advanced herein.

      . In Dillard v. Agency For Health Care Administration, 127 So.3d 820, 821 (Fla. 2d DCA 2013), the court explained:
      In Wos, the Court held that an "irrebutta-ble, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary's tort recovery except the share that is attributable to medical expenses.” 133 S.Ct. at 1399. The Court suggested that a State could remedy this problem by providing a process for determining which, portion of the recovery is attributable to medical expenses. Id. at 1401-02, 133 S.Ct. 1391.

      . Section 409.910(17)(b) became effective only four months before Davis was decided and apparently was not in effect at the time of the trial court’s ruling in that matter. See Ch. 2013-150, § 2, Laws of Fla. (effective July 1, 2013).

      . While several cases conclude any award of future medical expenses cannot be included in that sum available for a state’s lien, they provide little or no support for that proposition. In E.M.A. ex rel. Plyler v. Cansler, 674 F.3d 290, 312 (4th Cir. 2012), the court concluded "[a]s the unanimous Ahlborn Court’s decision makes clear, federal Medicaid law limits a state's recovery to settlement proceeds that are shown to be properly allocable to past medical expenses.” In In re E.B., 229 W.Va. 435, 729 S.E.2d 270 (2012), the West Virginia court, adopting Cansler's view of Ahlborn, concluded that the state’s lien interest in a Medicaid recipient’s lump sum settlement was limited to funds allocated solely to past, not future, medical expenses. However, as the dissent and concurring opinion in E.B, both conclude, the E.B. majority has Ahlborn all wrong — Ahlborn does not say future medical expenses cannot be considered. See In re E.B., 729 S.E.2d at 306 (Ketchum, C.J., dissenting) (“The majority’s holding is the result of an erroneous reading of the United States Supreme Court’s seminal case on this issue, known as Ahlborn. Contrary to the conclusion reached in the majority opinion, Ahlborn clearly held that West Virginia can be reimbursed from any part of a settlement representing damages for medical expenses, past and future.” (footnote giving citation omitted)); see also In re E.B., 729 S.E.2d at 308 (Workman J., concurring in part, dissenting in part) (“[Fjurther examination of Ahlborn and the Fourth Circuit’s treatment thereof in E.M.A. ex rel. Plyler v. Cansler, 674 F.3d 290 (2012), demonstrates the overly restrictive reading the majority undertakes to preclude DHHR from obtaining reimbursement from amounts. allocated to future medical expenses.”).