author: May, J.

text:
    CHILDREN’S MEDICAL CENTER, P.A., Theodore Morrison, M.D., Kenneth Budowsky, M.D., Jacinta Magnus, M.D., and Nancy Chiang, M.D., Petitioners, v. Jakyung KIM and Yoochan Kim, as parents and next friend of Baby Seahyun Kim, a minor, Respondents.
    No. 4D16-4319
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein,'- P.A., Miami, and Michael A. Petruccelli and Steven A. Osher of Petruccelli & Osher, P.A., Fort Lauderdale, for petitioners.
    Alan Goldfarb and David C. Appleby of Alan Goldfarb, P.A., Miami, for respondents.
   May, J.

The defendants in a medical malpractice action seek certiorari review of a.post-trial order granting juror interviews following a defense verdict. The trial court granted the plaintiffs’ motion based on the alleged failure of two jurors to disclose litigation history in their responses to the jury questionnaire. The defendants argue the trial court departed from the essential requirements of the law because the plaintiffs failed to establish the three requirements for granting juror interviews. We agree, grant the petition, and quash the order.

The plaintiffs filed a medical malpractice action against the defendants, alleging a-failure to diagnose their infant son’s skull fracture and brain bleed that were allegedly related to his birth. Their child was delivered with the assistance of a vacuum extraction device. Two weeks after his birth, the child experienced a severe brain bleed. The child underwent a craniotomy, but still suffered permanent brain-related and neurological injuries. The plaintiffs alleged the four defendant' pediatricians should have diagnosed the child’s condition. Following a three-week trial, the jury returned a defense verdict.

The plaintiffs moved to interview three jurors: L.H,, E.T., and the alternate. They alleged L.H, and E.T. failed to disclose their litigation history in responding to the following question on the jury questionnaire.

Have you or any family member ever been sued or have you sued someone else? (This includes suits which were settled after being filed.) If so, please explain.

Jurors L.H. and E.T. both answered “No” to the question. However, public records searches revealed that two individuals with the same names (or similar marital names) had previous encounters with the legal system. Records revealed that L.H. sought to register a restraining order against her ex-husband in California in 2008. The docket characterized the nature of the case as “domestic violence with children.” ■ -

The plaintiffs asserted that thé concealment of that information provided grounds to interview L.H. because “[a] salient, if not dispositive-issue” in their case-was whether the proximate cause of their child’s injury was “child abuse or so-called ‘non-accidental trauma.’ ” The plaintiffs claimed the defendants theorized pre-trial that the child’s injury was caused by abuse. They cited the defense expert’s deposition testimony. They noted the trial court had. ruled in limine that the expert could not testify at trial that the child’s injuries resulted from a drop or knock on the head.

Records also revealed that E.T. was the respondent in numerous “domestic violence” actions. The most recent injunction was entered against E.T. in 2001. And a 2015 stalking case had been dismissed.

■The plaintiffs alleged the alternate “may have significant information with respect to discussions amongst the jurors contrary to this court’s instructions.”

Plaintiffs’ counsel submitted two affidavits, attesting to his public records search, and that the individuals in those records were L.H. and E.T. The affidavits did not state that he would have exercised peremptory strikes on L.H. and E.T. had the information been disclosed.

The plaintiffs also moved for a new trial, arguing juror misconduct, and the verdict was contrary to the weight of the evidence. The defendants responded that the plaintiffs failed to demonstrate entitlement to juror interviews because the alleged non-disclosures were not material, the information had not been concealed, and plaintiffs’ counsel was not diligent in his inquiry during voir dire.

At the hearing on the motion for juror interviews, plaintiffs’ counsel argued he would have used his remaining peremptory challenges on L.H. and E.T. had he known about the jurors’ domestic violence cases— assuming the cases involved a child. The defendants argued the prior litigation was too remote in time and it was not clear that the individuals in those cases were the two jurors. The trial court reserved ruling.

A few weeks later, the trial court granted interviews of jurors L.H. and E.T., but denied an interview of the alternate juror. From this order, the defendants petitioned this court.

The defendants argue the trial court departed from the essential requirements of law by granting the interviews when the plaintiffs failed to demonstrate the three elements necessary to warrant post-trial juror interviews: materiality, concealment, and diligence. See De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995). The plaintiffs respond that they satisfied all three requirements, and the petition should be denied.

Certiorari has been used to review orders allowing post-trial juror interviews. See, e.g., Naugle v. Philip Morris USA, Inc., 133 So.3d 1235, 1236 n.1 (Fla. 4th DCA 2014); Parra v. Cruz, 59 So.3d 211, 212 (Fla. 3d DCA 2011).

“A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge.” Fla. R. Civ. P. 1.431(h). Nevertheless, “[pjost-trial juror interviews should be ‘rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected.’ ” Sterling v. Feldbaum, 980 So.2d 596, 599 (Fla. 4th DCA 2008) (citation omitted). Rule 1.431(h) “is a shield to prevent disgruntled parties and attorneys from harassing jurors after a verdict.” Naugle, 133 So.3d at 1238.

“Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono, 112 So.3d 620, 624 (Fla. 4th DCA 2013). To be entitled to interview a juror, the movant must satisfy the De La Rosa three-part test. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 427 (Fla. 4th DCA 2014); see also Penalver v. Masomere, 178 So.3d 533, 536 (Fla. 3d DCA 2015) (quashing order granting juror interview where one prong of De La Rosa test was not met).

The three-part test requires proof that:

(1) The concealed information was relevant and material to jury service in the case;
(2) The juror concealed the information during questioning; and
(3) The failure to disclose the information was not attributable to the complaining party’s lack of diligence.

McGruder, 137 So.3d at 427 (emphasis added). The trial court must analyze the “totality of the circumstances to determine whether a juror interview ... is warranted.” Pagono, 112 So.3d at 625.

I. Relevance & Materiality

The plaintiffs needed to show that L.EL’s and E.T.’s prior litigation history was relevant and material to the case. “Nondisclosure is considered material if it is substantial and important so that if the facts were known, [the moving party] may have been influenced to peremptorily challenge the juror from the jury.” Roberts v. Tejada, 814 So.2d 334, 341 (Fla. 2002) (citation omitted).

Assuming the plaintiffs made an initial showing the litigation history belonged to these jurors and that it was material, their counsel’s questioning of prospective jurors undermines that showing. In determining materiality, courts may look to a party’s questioning and acceptance of jurors with litigation histories similar to the challenged jurors. See Duong v. Ziadie, 125 So.3d 225, 228 (Fla. 4th DCA 2013).

Here, it is not clear that the litigation histories belonged to the two jurors. Even so, most of the history was remote, some occurring more than eight years prior, and were not seemingly .related to the subject of the instant case—medical malpractice. It was apparent that plaintiffs’ counsel was not concerned with either prior litigation, in general, or child abuse, in particular, during voir dire, by his questioning of the other jurors.

Out of more than 70 prospective jurors, 17 people answered affirmatively to the litigation history question. Most listed civil actions for money damages such as those arising from personal injuries, car accidents, medical malpractice, and property damage. One listed a foreclosure action. Two answered “Yes” without elaborating on the nature of the litigation.

One prospective juror even noted a domestic violence incident in her family—in response to a different question on the questionnaire—but plaintiffs’ counsel did not ask a single follow-up question concerning that response. Plaintiffs’ counsel asked one prospective juror during voir dire whether she had “been involved in any kind of case or a lawsuit.” That juror answered “No,” both to counsel and in her response on the questionnaire. Thereafter, plaintiffs’ counsel did not question any other prospective juror about prior litigation history, including those who answered ‘Tes” to the question concerning whether they had been sued.

Although L.H. answered “No” to the question, she voluntarily shared her own experience with a vacuum-assisted birth in response to a general question directed at the venire panel. Despite her own experience, L.H. said she would have “no issues” serving as a juror on the case.

Because plaintiffs’ counsel .failed to ask follow-up questions about prior litigation, it is unlikely he would have exercised peremptory strikes against L.H. and E.T. On this record, we conclude “the attorney’s post-verdict insistence that he would have challenged these two jurors was not genuine.” Pagono, 112 So.3d at 625 (citing Duong, 125 So.3d at 228). The plaintiffs failed the relevance and materiality requirement.

2. Concealment

In the second part of the test, the plaintiffs must establish concealment. To constitute concealment, a juror’s nondisclosure need not be intentional. Pagono, 112 So.3d at 624. Instead, concealment exists where a juror gives an inaccurate response and “the voir dire question was straightforward and not reasonably susceptible to misinterpretation.” Id. (emphasis added) (quoting Rodgers v. After Sch. Programs, Inc., 78 So.3d 42, 46 (Fla. 4th DCA 2012)).

“A juror’s response to a question cannot constitute concealment ... ‘where the juror’s, response ... about litigation history is ambiguous, and , counsel does not inquire, further to clarify that ambiguity.’ ” Rodgers, 78 So.3d at 45 (quoting Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011)).

Here, the circumstances indicate that litigation question was not straightforward and was reasonably subject to misinterpretation by prospective jurors. The question asked:

Have you or any family member ever been sued or havé you sued someone else? (This includes suits which were settled after, being filed.) If so, please explain.

(Emphasis added). This question narrowly framed the type of legal activity to which it referred. By its very wording, it excluded criminal, and other legal matters. Indeed, most of the positive responses to the question volunteered information about civil cases involving damages. None of the prospective jurors listed a criminal case, and only one juror mentioned a domestic violence case in response to another question.

The Third District addressed a strikingly similar question in Tricam Indus., Inc. v. Coba, 100 So.3d 105, 112 (Fla. 3d DCA 2012), quashed on other grounds, Coba v. Tricam Indus., Inc., 164 So.3d 637 (Fla. 2015). There, like here, the challenged juror answered a similar litigation history question in the negative despite having litigation history. Id. Given “the context in which the .trial court asked the jurors about their litigation history” and because the responses from the other jurors all concerned personal injury suits, the Third District held, “the jurors may, not have fully understood the nature of the inquiry.” Id. at 112-13.

Similarly, it doe's not appear that plaintiffs’ counsel “squarely asked” L.H. and E.T. about their experience with all legal matters, including domestic violence or child abuse. McGruder, 137 So.3d at 429 (“The concealment prong is met when the juror is ‘squarely asked for’ the information and the juror fails to speak the truth.” (Citation omitted)). This conclusion does not mean, .as plaintiffs contend, that parties will no longer be able to rely on responses to jury questionnaires. What it does mean is that all lawyers will need to be diligent, clear, and precise in questioning prospective jurors concerning their litigation history.

Here, the question was generic and imprecise. “A differently phrased question may well have, resulted in disclosure.” Rodgers, 78 So.3d at 46. The plaintiffs failed to prove concealment given the wording of this question and the lack of follow-up questioning.

3. Due Diligence

The third part of the test for juror interviews is “whether the cause of the failure to elicit the information was due to the fault of the complaining party.” McGruder, 137 So.3d at 429. As discussed above, the plaintiffs did not satisfy the diligence prong because their counsel failed to “ ‘provide a sufficient explanation of the type of information which potential jurors are being asked to disclose.’ ” Pagano, 112 So.3d at 624 (citation omitted). Plaintiffs’ counsel did not articulate to the prospective jurors that the litigation history question sought disclosure of all prior legal matters; or, more specifically, if any of them had been involved in domestic violence or child abuse.

The lack of diligence is even more evident in the delay in researching the litigation history of the prospective jurors. In this case, the plaintiffs had ten days between the conclusion of their voir dire and the start of defendants’ voir dire to run a public records search. The plaintiffs had an additional ¿leven days between the close of evidence and closing argument to conduct the search. Instead, it was not until after the jury returned an unfavorable verdict that plaintiffs undertook their investigation.

While the diligence test does not require counsel to discover the concealed facts prior to the return of a verdict, the Florida Supreme Court has said that counsel should check juror records without delay “[w]here possible.” Roberts, 814 So.2d at 344-45. And, nothing in Roberts prevents consideration' of trial counsel’s failure to run a juror’s litigation history as oné of several factors under a due diligence inquiry. Tricam Indus., 100 So.3d at 114, quashed on other grounds, Coba, 164 So.3d 637 (quashing portion of decision analyzing inconsistent verdict); see also Pagano, 112 So.3d at 625 (suggesting that it was time “to rethink how the courts handle juror non-disclosure,” and suggesting that due to online availability of public records', searches could be conducted during voir dire).

To preserve the continued viability of the right to a jury trial, we reiterate “[p]ost-trial juror interviews should be ‘rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guard.ed and protected.’ ” Sterling, 980 So.2d at 599. The plaintiffs were unable to sustain their burden of satisfying.the three-part test of De La Rosa. We therefore grant the petition and quash the order ¡allowing the interview of the two jurors.

Petition granted; order quashed.

Gross and Damoorgian, JJ., concur.

      . Initials have been used to protect the names of the jurors.

      . Although the plaintiffs discovered other pri- or litigation involving L.H. and E.T., including evictions, traffic tickets, PIP lawsuits, and small claims, in their response they contend only the domestic violence cases are relevant and material to the case,


source: Caselaw Access Project

license: Public Domain

text:
    WELLS FARGO EQUIPMENT FINANCE, INC., Appellant, v. BACJET, LLC, a Florida limited liability company, Bernard A. Carballo, Carballo Ventures, Ltd., a Florida limited partnership, Bernard A. Carballo, as Trustee for the Bernard A. Carballo Living Trust, Carballo Family Ltd., a Florida limited partnership, ACP Jet Charters, Inc., a Florida corporation, and Carballo Aviation, LLC, a Florida limited liability company and Prime Bank of Oklahoma, Appellees.
    No. 4D16-2594
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Joseph H. Lang, Jr., and Donald R. Kirk of Carlton Fields Jorden Burt, P.A., Tampa, for appellant.
    Mark A. Levy and Brent V. Trapana of Brinkley Morgan, Fort Lauderdale for ap-pellee, Prime Bank of Oklahoma.
   May, J.

Whether Florida can exercise personal jurisdiction over an Oklahoma lender, whose subject loan is secured by homestead property in Florida is the question we must decide. A creditor of the Florida resident argues the trial court erred in determining that Florida did not have personal jurisdiction over the Oklahoma lender. We agree and reverse.

The creditor, Wells Fargo Equipment Finance, obtained a $7,200,000 judgment against an individual (“debtor”) in a dispute arising in Florida. The debtor lives in, and claims homestead on, his Florida home. The judgment was recorded in August 2014, in Florida.

After domesticating its judgment in Oklahoma, the creditor served a post-judgment garnishment summons on the lender in connection with debtor’s accounts at the lender. The lender is an Oklahoma corporation with its principal place of business in Edmond, Oklahoma. It is not in the business of making loans to residents of states other than Oklahoma.

In its answer, the lender indicated that the debtor is also indebted to the lender, and the debt is evidenced by a promissory note and security agreement dated June 7, 2013. The lender holds a “first security interest against” the accounts and stock certificates of the debtor.

When attempting to collect on the judgment against the debtor, the creditor learned that the lender loaned three million dollars to the debtor, who is a significant investor in lender’s corporation, and secured the loan with collateral valued at six million dollars. The collateral includes liens against several of the debtor’s deposit accounts, his stock in the lender’s Bank Group, and his unencumbered homestead property located in Jupiter, Florida. The Florida property serves as the primary security to provide collateral protection; but, according to the lender’s chief lending officer, the stocks and deposit accounts were included as main sources of repayment.

The lender held the liens as a result of a loan it made to the debtor in June 2013, one year before the creditor obtained its judgment. The lender was aware of the dispute concerning a multi-million dollar jet between the creditor and debtor when it issued the loan, but it did not know the magnitude of the dispute or that a legal action had been filed. The lender also knew the debtor was in default on a multimillion dollar loan with a second creditor, First Fidelity Bank.

After discovering the loan history, the creditor initiated proceedings supplementary by filing a complaint against the lender, alleging fraudulent transfers of certain stock certificates and bank accounts, and that the lender encumbered nearly all of the debtor’s unencumbered property in exchange for a loan .of half the value of the security interest transferred, with, the intent to defraud creditors. The creditor asserted the trial court had personal jurisdiction over the lender under section 48.193, Florida Statutes (2014), and the lender conducted business in Florida by making loans against the debtor’s real property located here.

The lender moved to dismiss the original complaint. At the hearing on the motion, creditor’s counsel explained that the mortgage facilitated the lender’s willingness to loan money to the debtor. Without the mortgage, the creditor would be able to seize the debtor’s bank stock and would not have a fraudulent transfer action against the lender. The court responded that the creditor needed to amend its complaint to make it more apparent that the Florida. property collateralizing the loan formed a substantial nexus to Florida.

The judge opined that, in his view, pleading in.this vein would “pass muster” for personal jurisdiction. In its amended complaint, the creditor alleged jurisdiction was proper under sections 48.193(l)(a)l. and 3., Florida Statutes, by canning on business in Florida and holding a lien on the debtor’s real property in Florida.

The lender filed a second motion to dismiss arguing the court lacked jurisdiction because the lender does not have sufficient minimum contacts with Florida to satisfy constitutional due process requirements. The lender filed an affidavit by its chief lending officer,-stating that it is a foreign entity that is not registered or licensed to do business in Florida, does not maintain a mailing address, telephone listing, or bank account in Florida, has never had employees, officers, agents, or other, representatives located in Florida, and does not own property in Florida.

The lender further asserted that it has never opened a bank account for a Florida resident other than for the debtor, it' has no outstanding loans to a Florida resident, and had only made, two loans secured by Florida property, both to Oklahoma residents. . The lender had. three customers that moved to Florida after opening their respective.,accounts in Oklahoma, one of which is the debtor.

At the hearing on the lender’s second motion to dismiss, the creditor clarified that section 48.193(l)(a)3. “was the provision that [it was] really traveling under” because the lender owned, used] or possessed a lien on real property within Florida. The court granted the lender’s motion to dismiss, finding no direct tie or nexus to Florida because the acts' that gave rise to the creditor’s 'cause "of action were all allegedly committed in Oklahoma.- The court described the residence in Jupiter as “tangential” to the cause of action. -The court only addressed the long-arm statute and did not address minimum contacts.

From this order, the creditor appeals.

The creditor argues the court erred by granting the motion to dismiss for lack of personal jurisdiction because it established jurisdiction pursuant - to' section 48,193(l)(a)3, by showing that without the Florida mortgage] there would be no loan and no reason for proceeding with proceedings supplementary. The lender responds the court did hot err by dismissing the case because there was no direct affiliation, nexus, or substantial connection between the creditor’s claims and the mortgage the lender holds.

The creditor replies that the lender mis-characterizes the claims because the creditor is seeking to avoid the mortgage lien on the Florida homestead; therefore, a nexus exists. It further replies that it is not requesting any relief against exempt property, but rather seeks to set aside the lender’s security interests created by its loan transaction with the debtor.

We have de novo review of dismissal orders based on a lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002).

Personal jurisdiction can exist in two forms: specific, in which the defendant’s actions are directly connected to the forum state; and general, in which “the defendant’s connection with- the forum state is so substantial that no.specific or enumerated relationship between the alleged wrongful actions and the state is necessary.” Caiazzo v. American Royal Arts Comp., 73 So.3d 245, 250 (Fla. 4th DCA 2011). The creditor ■ limits its argument to specific jurisdiction only.

Specific jurisdiction over a non-resident defendant exists where: (1) the defendant’s conduct in Florida falls within the enumerated acts ■ listed in Florida’s long-arm statute, section 48.193(l)(a); and (2) where the defendant' has sufficient minimum contacts to satisfy federal due process-requirements. Caiazzo, 73 So.3d at 256.

Section 48.193(l)(a) lists enumerated acts allowing'a Florida court to exercise specific jurisdiction over a defendant if minimum contacts also exist. The non-r¿si-dent defendant’s actions fall within the statute if it does one of the enumerated acts and the plaintiffs claim “arose from” that act. Caiazzo, 73 So.3d at 256. For a plaintiffs claim to arise from the defendant’s actions, there must be., a “direct affiliation, nexus, or .substantial connection” between the basis for the plaintiffs claim and the defendant’s activity in the state. Ferguson v. Estate of Campana, 47 So.3d 838, 842 (Fla. 3d DCA 2010).

Here, the creditor alleges jurisdiction exists over the lender, pursuant to section 48.193(l)(a)3., because the creditor’s cause of action arose from the lender “owning, using, possessing, or holding a mortgage or other lien on [ ] real property within [Florida].” § 48.193(l)(a)3. However, this portion of Florida’s long-arm statute can only be satisfied if: (1) the lender holds a mortgage on Florida real property; and (2) the creditor’s claim “arose from” the mortgage. Caiazzo, 73 So.3d at 256. It is undisputed the lender holds a mortgage on real property in Florida. The issue .is whether the creditor’s claim arose from the mortgage.

Although the creditor seeks the stock and accounts held by the lender in Oklahoma, the creditor seeks .to avoid the loan and liens on the Florida residence, the stocks and -the accounts on a claim of fraudulent transfer. The lender admitted through sworn testimony by its chief lending officer that its three million dollar loan to the debtor was “based on the home in Florida” as collateral, while the bank stock and accounts “went hand-in-hand” as repayment. According to the lender, the loan could not have been made “just based on the. collateral” in the house; the stock and accounts in the lender were needed as a “package deal” for the loan.

Without the mortgage, the lender would not have made the loan that the creditor alleges was fraudulently transferred. At oral argument, the lender admits it requested the lien on the Florida property to secure the loan. The mortgage, stock, and accounts all make up the loan in dispute; without ■ the mortgage • 'that enabled the loan, there would be no lien on the stock and accounts because they were a “package deal” in securing the loan. - •

The debtor would not have initiated proceedings supplementary but for the .over-collateralized loan backed by the mortgage on the Florida property. Because the mortgage is the mechanism that facilitated the entire transaction at issue, the mortgage is directly connected to the creditor’s cause of action and allegations that'the security interests were fraudulently transferred.

Without the mortgage, the debtor’s stock and accounts in the lender would not have liens against them, and the creditor would be able to seize these assets. The lender maintains that the creditor does not seek to avoid the mortgage, but candidly admits there might be a direct affiliation if the creditor’s claims were to avoid the mortgage lien. Contrary to the lender’s assertions, the creditor’s amended complaint clearly seeks to avoid the mortgage lien:

WHEREFORE, the Judgment Creditor, Wells Fargo, seeks judgment against the Defendant, Prime Bank: (i) determining and declaring that Carballo’s grant of security interest to Prime Bank against the Jupiter Property, Stock, and Accounts, is a fraudulent transfer to Prime Bank; (ii) awarding Wells Fargo a judgment for damages against Prime Bank for the value of fraudulent transfer at the time of the transfer, or in the alternative, avoiding the fraudulent transfer. ...

Thus, the mortgage is directly connected to the creditor’s cause of action.

For this reason, this case is distinguishable from Forrest v. Forrest, 839 So.2d 839, 841 (Fla. 4th DCA 2003), and Marshall v. Marshall, 988 So.2d 644, 648 (Fla. 4th DCA 2008), in which we held Florida lacked personal jurisdiction because the claims did not arise out of the property. Here, the fraudulent transfer claim alleged in the proceedings supplementary arose directly out of the mortgaged Florida property that facilitated the over-collater-alized loan.

Because the lender’s Florida mortgage is directly related to the creditor’s claim and falls within section 48.193(l)(a)3., the creditor established jurisdiction, pursuant to Florida’s long-arm statute.

Step two of the jurisdictional analysis is whether the lender had sufficient minimum contacts to satisfy due process. Caiazzo, 73 So.3d at 257. To satisfy minimum contacts, the lender’s contacts: (1) must have been related to or gave rise to the creditor’s cause of action; (2) must involve some act by which the lender “purposefully availed itself of the privilege of conducting activities within the forum”; and (3) “must be such that [it] should reasonably anticipate being haled into court there.” Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 299 (Fla. 4th DCA 2011).

For a defendant to meet the purposeful availment requirement, he or she must do more than engage in “‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation omitted). The lender argues that the location of the mortgaged property in Florida does not satisfy the minimum contacts test because the location of the mortgaged property was merely fortuitous. This argument misses the mark.

First, the lender’s contact in Florida, the mortgaged property, gave rise to the creditor’s fraudulent transfer claim in the proceedings supplementary. This satisfies the first element of the minimum contacts test.

Second, while an individual’s contract with an out-of-state party alone cannot automatically establish personal jurisdiction, future consequences of contracting can subject a non-resident defendant to jurisdiction in the forum. Burger King, 471 U.S. at 478, 105 S.Ct. 2174. At the time of the loan, the lender knew the debtor was in dispute with creditors, including a “big loan” that was past due with First Fidelity and the dispute with the creditor and a loan involving a multi-million dollar jet. The lender also recognized the debtor lacked “any documented repayment source” for the three million dollar loan. The lender admits it asked for the mortgage on the Florida property, and would not have loaned the money without it.

These concessions combined with the twenty-four-month term of the three million dollar loan make it both reasonable and foreseeable that the lender would anticipate being haled into Florida eourt to foreclose the mortgage.

The lender also created “continuing obligations” between itself and the debtor as a resident of Florida when it retroactively extended the loan’s original maturity date of July 15, 2015 to July 15, 2017, two months after the loan became due. Burger King, 471 U.S. at 476, 105 S.Ct. 2174 (citation omitted). This extension occurred more than a year after the $7,200,000 final judgment was entered in favor of the creditor. Thus, the lender could have reasonably anticipated being haled into Florida to foreclose on an individual struggling against other creditors seeking his assets.

By mortgaging the Florida property and extending the loan’s maturity date, the lender purposefully availed itself of conducting activities in Florida. The “quality and nature” of its relationship to the mortgaged property in Florida cannot be viewed as “random” or “fortuitous.” Id. at 480, 105 S.Ct. 2174 (citation omitted). The lender’s lien on the Florida property was deliberate and purposefully “reachfed] out beyond” Oklahoma for the purpose of securing its loan. See id. at 479, 105 S.Ct. 2174 (citation omitted).

Because the lender deliberately and repeatedly engaged in securitizing a loan with a Florida property valued at 4.7 million dollars owned by a Florida resident, it availed itself of “the privilege of conducting business” in Florida. Id. at 476, 105 S.Ct. 2174. Because its mortgage on the Florida property is shielded by the protections of Florida law, “it is presumptively not unreasonable to require [it] to submit to the burdens of litigation” in Florida as well. Id.

The creditor established compliance with the long-arm statute and the requisite minimum contacts. Florida has personal jurisdiction over the lender. We therefore reverse the dismissal order and remand the case for further proceedings.

Reversed and Remanded.

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

      . The lender’s alternative argument that the Florida property is exempt homestead property is unsupported by the record on appeal. The record does not indicate if the subject property meets Florida’s requirements for homestead. As such, the lender’s argument that property cannot serve as the subject of proceedings supplementary and the fraudulent transfer claim is not germane to the analysis of personal jurisdiction.


author: Damoorgian, J.

text:
    CITIBANK, N.A., as Trustee FOR WAMU SERIES 2007-HE2 TRUST, Appellant, v. Tangerine J. MANNING, Corinthian Condominium Association, Inc., Hill York Corporation f/k/a Hill York Broward, Inc., John Abell Corporation, JPMorgan Chase Bank, N.A., as Successor to WAMU, Red Oaks Shutter, Inc. a/k/a Red Oak Shutters, Inc., and United States of America, Appellees.
    No. 4D15-4526
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      W. Aaron Daniel, Elliot B. Kula and William D. Mueller of Kula & Associates, P.A., Miami, for appellant.
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellee Tangerine J. Manning.
   Damoorgian, J.

-CitiBank, N.A., as Trustee for WAMU Series 2007-HE2 Trust (“the Bank”), appeals the trial court’s order granting final judgment in favor of Tangerine Manning (“Borrower”) following a bench trial based on the Bank’s failure to comply with conditions precedent. Borrower cross-appeals that same final judgment, arguing that affirmance is required regardless of the Bank’s compliance with conditions precedent due to lack of standing. We reverse the final judgment in favor of Borrower and remand for entry of a final judgment in favor of the Bank.

In May of 2010, the Bank, in its capacity as trustee, filed a one count verified mortgage ■ foreclosure complaint against Borrower., The complaint alleged that the Bank had the right,to enforce the note and -mortgage; that-Borrower defaulted on the note; and that all conditions precedent to the filing of- the foreclosure, action had been performed or had occurred. Although the Bank did not attach a copy of the note to its complaint, it did attach a copy of the mortgage listing. Washington Mutual Bank as the original lender. The Bank later amended the -complaint and attached a note bearing an -undated, blank indorsement from the original lender. Borrower denied all-of the material allegations of the Bank’s and raised several affirmative defenses, including lack of standing and failure to - comply with the mortgage’s notice requirements.

The matter ultimately proceeded to a bench trial where the Bank presented its case through the testimony of a single witness. The witness worked as a research officer- for JPMorgan Chase Bank, N.A. (“JPMorgan”). which serviced Borrower’s loan on behalf of the Bank. The witness was extensively trained as to JPMorgan’s record keeping policies and procedures. Through its witness, the Bank introduced the original note indorsed in blank, and the witness testified that the blank indorsement was placed on the note sometime prior to September of 2008. - In other words, the note, was indorsed in blank prior to the filing of the Bank’s initial complaint in 2010.

As to how the Bank became the' holder of the note, the witness outlined the following series of transactions. On April 1, 2007, the original ■ lender transferred certain loans into the “WAMU Series 2007-HE2 Trust.” The pooling and servicing agreement (“PSA”) listed-the original lender as the “Seller and Servicer” and the Bank as the “Trustee.” The accompanying mortgage loan schedule identified Borrower’s loan as one of the loans maintained in the trust. In September 2008, JPMorgan acquired all of the original lender’s assets through the FDIC as evidenced by a purchase and assumption agreement. Section 3.1 of that purchase and assumption agreement, titled “Assets Purchased by Assuming Bank,” provided that “the Assuming Bank specifically purchases all mortgage servicing rights and obligations of the Failed Bank.” Then, on March 1, 2010, JPMorgan officially assigned Borrower’s mortgage “[t]ogether with the note” to the Bank. Ultimately, the witness testified that JPMorgan, as servicer of the loan, was the entity that physically held the original note for the Bank when the initial complaint was filed. Through the witness, the Bank introduced the PSA and the accompanying mortgage loan schedule, the purchase assumption agreement, and the assignment of mortgage.

In addition to the foregoing, the Bank also sought to introduce the breach letter sent to Borrower by “Chase Home Finance LLC.” In order to lay the foundation for the admission of the breach letter, the witness testified as follows with regard to his personal knowledge of how the ser-vicer, JPMorgan, creates and mails breach letters:

I have been to the breach letter department in Jacksonville, Florida where we had an in-class training on the red flag reports that ... the system generates when a loan is known to go into default. Then the quality team in the breach department reviews that red flag report on a daily basis to confirm that the loan is actually in default and needing a breach letter.
Once that has been confirmed through the quality control measure, then the letter is generated and it is sent ... [fjirst class mail.

The breach letter, dated February 4, 2010 and addressed to the mortgaged property, was thereafter entered into evidence. The witness then confirmed that the breach letter “went out.” The witness further explained that the entity that mailed the breach letter, Chase Home Finance LLC, was a wholly-owned subsidiary of JPMor-gan. In fact, at the time the letter was mailed, the witness explained that he was technically employed by Chase Home Finance LLC. The witness further explained that in May of 2011, JPMorgan and Chase Home Loan LLC officially merged, however the systems and procedures remained the same:

By May of 2011, when the merger happened, ... I was a short sale negotiator where I would get approval for short sales that would happen, and my job function on April 29 of 2011 was the exact same as it was May 2 of 2011. So ... Chase Home Finance LLC being owned by JPMorgan Chase Bank, NA, I had access to the exact same systems, I had access to the same portfolio of short sales that I was working on. Absolutely nothing changed for me in my day to day business except I have to change my voicemail that it was JPMorgan Chase Bank, NA and not you’ve reached Chase Home Loan .... Nothing was different. I sat in the same chair, all the same systems I had access to were the exact same, we were still working Chase Loans,

In other words, JPMorgan and Chase Home Finance LLC’s standard office practices were one and the same.

After the Bank rested, Borrower moved for an involuntary dismissal based on lack of standing. After the court denied the motion, Borrower rested without presenting any evidence and the matter proceeded to closing arguments. During closing, Borrower argued that the Bank failed to present any evidence that the breach letter was ever mailed out, pointing to the fact that no return receipt number appeared on the breach letter admitted into evidence. Alternatively, she argued that there was no evidence that Chase Home -Finance LLC had a sub-servicing agreement with JPMorgan. In response, the Bank’s attorney specifically referenced the portion of the transcript where the witness testified that the breach letter had been mailed out, as well as to the relationship between the servicer and its subsidiary which actually mailed out the letter. At the conclusion of the trial, the court found that the Bank failed to prove that the breach letter was sent out. On the issue of standing and damages, however, the court found in favor of the Bank. It then entered final judgment in favor of Borrower.

This appeal and cross-appeal follows.

“When reviewing a judgment rendered after a nonjury trial, the trial court’s findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous.” Stone v. BankUnited, 115 So.3d 411, 412 (Fla. 2d DCA 2013). As to standing, however, “ ‘[w]e review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.’ ” Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950, 951 (Fla. 4th DCA 2014) (quoting Lacombe v. Deutsche Bank Nat’l Tr. Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014)).

a) Conditions Precedent

“[A] mortgagee’s right to the security for a mortgage is dependent upon its compliance with the terms of the mortgage contract, and it cannot foreclose until it has proven compliance.” DiSalvo v. Sun-Trust Mortg., Inc., 115 So.3d 438, 439 (Fla. 2d DCA 2013). “In Florida, a party’s adherence to contractual conditions precedent is evaluated for substantial compliance or substantial performance,” including “a condition precedent in a mortgage requiring notice prior to foreclosure.” Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 13 (Fla. 2d DCA 2015). With regard to the condition precedent at issue in this case, namely the mailing of a breach letter, the “mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt.” Allen v. Wilmington Tr., N.A., 216 So.3d 685, 688, (Fla. 2d DCA 2017).

The mortgage in this case provides in relevant part that “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument”. It further provides that notice “shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.” In order to prove compliance with the mortgage’s notice requirements, the Bank introduced the breach letter associated with Borrower’s loan. The witness then testified, based on his personal knowledge and training, as to JPMorgan’s regular business practices of creating and mailing breach letters. The witness further confirmed that the breach letter associated with Borrower’s loan in fact “went out.” Moreover, although the breach letter was not actually, mailed by JPMorgan but rather by its wholly-owned subsidiary. Chase Home Finance LLC, the witness testified that he worked for both entities and that their general business procedures were essentially one and the same.

This evidence was sufficient to raise a presumption that the breach letter was indeed mailed to Borrower via first class mail in accordance with the servicer’s standard procedures for mailing breach letters, and in compliance with the mortgage’s notice requirements. See Brown v. Giffen Indus., Inc., 281 So.2d 897, 900 (Fla. 1973) (holding on rehearing that “reliance on the presumption of mailing on the basis of normal office procedure was. reasonable and proper, in light of the total lack of contrary evidence by petitioner”); Pupo v. City of Hialeah, 91 So.3d 925, 926 (Fla. 1st DCA 2012) (citing Brown and holding .that “[evidence of an office’s standard mailing practices creates a rebuttable presumption that a particular item was mailed”); This presumption, in turn, was not rebutted as Borrower did not present any evidence to the' contrary. See Jelic v. CitiMortgage, Inc., 150 So.3d 1223, 1225 (Fla. 4th DCA 2014) (holding that the bank was entitled to summary judgment because it “submitted an affidavit stating that notice was sent, along with an attached copy of the letter and records showing the letter was mailed” which the borrower did not rebut).

Borrower nonetheless argues that affirmance is required because the Bank failed to present any evidence showing that Chase Home Finance LLC, the entity that actually created and mailed the breach letter, was the Bank’s authorized sub-servicer. We reject this argument because the evidence established that JPMorgan' was authorized to use Chase Home'Finance LLC to mail the breach letter. Specifically, Section 3.01 of the PSA provides that “the Servicer shall have full power and authority, acting alone or through Sub-Servicers as provided in Section 3.02, to do or cause to be done any and' all things-in connection with such servicing and administration in accordance with policies and procedures generally accepted in the mortgage banking industry.”

In any event, as there was direct evidence; that the . breach letter was mailed and no evidence that Borrower attempted to cure the default, Borrower was clearly not prejudiced. See Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So.3d 1277, 1280 (Fla. 4th DCA 2016) (“ ‘Absent some prejudice, the breach of a condition precedent does not constitute a defense to. the enforcement of an otherwise valid contract.’ ” (quoting Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015)).

b) Standing

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to' foreclose” at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “A holder seeking to enforce a note indorsed in blank- must prove that it was in physical possession of the note at the time it filed suit ” U.S. Bank Nat’l Ass’n v. Becker, 211 So.3d 142, 144 (Fla. 4th DCA 2017). As this Court has recognized, “[e]ven where a third party has physical possession of the note, so long as the plaintiff ‘had the power to exercise control over it, then [the plaintiff] had constructive possession of the note.’ ” Caraccia, 185 So.3d at 1279 (quoting Deakter v. Menendez, 830 So.2d 124, 128 (Fla. 3d DCA 2002)).

In the present case, the Bank’s witness testified that the blank indorsement was placed on the subject note sometime before September of 2008, which predates the filing of the original complaint. The witness further testified that, JPMorgan, the servicer of the loan, physically possessed the indorsed note on behalf of the Bank at all relevant times. This testimony alone was more than sufficient to prove that the-Bank constructively possessed the indorsed note from the inception of the foreclosure action. See Caraccia, 185 So.3d at 1279 (holding that “when an agency relationship such as [a holder/servieer exists], the element of possession can be met through either actual -or constructive possession”); Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1202-03 (Fla. 4th DCA 2015) (“A plaintiff need not prove the exact date of a necessary [indorsement to show standing at the inception of the foreclosure action—testimony, that the [i]ndorsement was effectuated before the filing of the complaint will suffice.”). ..

Moreover, as further evidence that it held the note at the time it filed the complaint, the Bank introduced the PSA. Section 2.01 of the PSA, titled “Conveyance of Mortgage Loans,” provides that:

In connection with such transfer and assignment; the Depositor does hereby deliver to, and deposit with, the Custodian acting on behalf of the Trustee ... the following documents or instruments with respect to each Mortgage Loan so transferred and assigned:
(a) the original Mortgage Note, [indorsed in blank or-in the following form; “Pay to the order of CitiBánk, N.A., as Trustee under the applicable agreement, without recourse.”

Such evidence, especially when coupled with the note indorsed in'blank by the original lender,- is sufficient to demonstrate the Bank’s standing to foreclose at the inception of the suit. See Bolous v. U.S. Bank Nat'l Ass’n, 210 So.3d 691, 694 (Fla. 4th DCA 2016) (relying on comparable PSA provisions and holding that the “pooling and servicing agreement’s terms arid corresponding mortgage loan schedule identifying the borrower’s loan at issue, along with the other evidence presented through the analyst, was sufficient to demonstrate that the bank was the .owner or holder of the borrower’s note at the time the bank filed the original complaint”). .

Based upon -the foregoing, we reverse and remand for entry of final judgment in favor of the Bank.

Reversed and remanded.

Ciklin, C.J., and Hanzman, Michael A., Associate Judge, concur.


author: Ciklin, C.J.

text:
    GROSSMAN ROTH, P.A., Appellant, v. Kristi MELLEN, Individually and as Personal Representative of the Estate of Michael Munson, deceased, Appellee.
    No. 4D14-1766
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Rachel Wagner Furst and Neal A. Roth of Grossman Roth, P.A., Coral Gables, and David J. Sales of David J. Sales, P.A., Jupiter, for appellant.
    Robin Bresky and Jonathan Mann of the Law Offices of Robin Bresky, Boca Raton, for appellee.
    Pamela Jo Bondi, Attorney General, and Rachel Nordby, Deputy Solicitor General, Tallahassee, for Amicus Curiae Office of the Attorney General of the State of Florida.
   Ciklin, C.J.

Grossman Roth, P.A. (“the law firm”) appeals an order granting final summary judgment in a declaratory judgment action in favor of Kristi Mellen, Individually and as Personal Representative of the Estate of Michael Munson. We find merit in the law firm’s first argument on appeal, that the trial court erred in upholding a provision of a claims bill limiting the law firm’s contingency fee. The Legislature’s claims bill provision is an unconstitutional impairment of the fee agreement between the parties, and we reverse. As to the second issue raised, we affirm without further discussion.

The law firm represented Mellen in a medical malpractice action against a hospital. The hospital was a state entity and thus enjoyed a sovereign immunity damages limitation of $200,000 per incident or occurrence under section 768.28(5), Florida Statutes (2008). However, section 768.28(5) permits a claimant to seek recovery of a judgment exceeding this amount from the Florida Legislature. Such recovery may be sought through a claims bill, but pursuant to the Rules of Senate, such a bill may not be heard or considered by the Senate “until all available administrative and judicial remedies have been exhausted.” Fla. S. Rule 4.81(6) (2012). Attorney’s fees under section 768.28 are limited to “25 percent of any judgment or settlement.” § 768.28(8), Fla. Stat. (2008).

The parties entered into a contingency fee contract under which Mellen agreed to pay the law firm an amount based on her gross recovery “in accordance with the guidelines and limits established by the Supreme Court of the State of Florida with regard to cases of this type.” The contract specifically accounted for claims against governmental entities, citing the twenty-five percent contingency fee limitation of section 768.28(8) and stating, “Certain claims against governmental entities may have statutory limits on attorney’s fees. In all cases the attorney’s fees will be the maximum amount permitted under law or by the Courts.”

Pursuant to discussions with the law firm, the hospital agreed to settle the matter for $3,000,000 and to support the passage of a claims bill by the Legislature to effectuate recovery. Pursuant to the agreement, the trial court entered a consent final judgment for $3,000,000 against the hospital and ordered the hospital to tender the statutory limit of $200,000. It also entered an order approving the settlement, including the payment of an attorney’s fee of “25% pursuant to contract” and costs.

The law firm then pursued and obtained a claims bill on Mellen’s behalf. Chapter 2012-250, Laws of Florida, awarded the remaining $2,800,000 to Mellen, limited attorney’s fees to “15 percent of the first $1,000,000 awarded under this act, 10 percent of the second $1,000,000 awarded under this act, and 5 percent of the remainder awarded under this act, for a total of $290,000,” and provided that taxable costs may additionally be recovered.

The law firm disputed the propriety of the legislatively imposed $290,000 fee limitation and Mellen agreed to the law firm holding an additional $410,000 in escrow pending settlement of the fee dispute. Mellen then brought an action for a declaratory judgment seeking an award of the escrow balance and the law firm counterclaimed for a declaratory judgment pronouncing the fee limitation provision of the claims bill unconstitutional.

The trial court entered judgment in favor of Mellen. It found two cases controlling, Gamble v. Wells, 450 So.2d 850, 853 (Fla. 1984), and Noel v. Sheldon J. Schlesinger, P.A., 984 So.2d 1265, 1267 (Fla. 4th DCA 2008), each of which generally holds that the Legislature is not bound by an existing contingency fee agreement when it voluntarily distributes funds as an “act of grace” through a private relief act or claims bill.

In ruling, the trial court did not have the benefit of the Florida Supreme Court’s recent opinion in Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State, 209 So.3d 1181 (Fla. 2017), a case very similar to the one at hand. There, a claims bill awarded a total of $15,000,000 to a claimant, but limited attorney's fees to $100,000 despite an existing agreement for a twenty-five percent fee. Id. at 1185-86. The trial court determined that Gamble and Noel compelled compliance with the bill’s limitation on attorney’s fees, and a majority of this court agreed. Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, 194 So.3d 349, 354 (Fla. 4th DCA 2015). However, on a motion for certification of questions of great public importance, we certified the following question to the supreme court:

AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND THE ADOPTION OF FLORIDA SENATE RULE 4.81(6), IS IT CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO LIMIT THE AMOUNT OF ATTORNEYS’ FEES PAID FROM A GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL?

Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, 190 So.3d 120, 121 (Fla. 4th DCA 2015).

■ In answering the question in the negative, the Supreme Court noted that in section 768.28, the Legislature “specifically directs that recovery of any amounts that exceed the limited waiver of sovereign immunity may be collected only by way of a legislative claims bill” and “provides for a limit on attorneys’ fees to be paid from the judgment amounts recovered.” Searcy, Denney, 209 So.3d at 1190. Read collectively “to achieve a consistent whole,” the Court concluded “that the Legislature intended in section 768.28(8) to allow fees to be charged, demanded, received, or. collected up to 25 percent of the judgment amount when payment is ordered by the circuit court, as well as when payment of all or part of that judgment is ordered by the Legislature in a claims bill, as expressly provided for in- section 768.28(5).” Id. at 1189-90 (citation omitted). The Court further found that the fee limitation in the claims bill at issue unconstitutionally impaired the preexisting contract between Searcy Denney and the claimant. Id. at 1193-94. It ultimately held “that the valid portion of the act may be severed from the invalid portion and still accomplish the beneficial purpose of the act in providing compensation due to the injured child” and quashed this court’s opinion. Id. at 1197.

Searcy, Denney is controlling in the instant case. Consequently, we reverse and remand for the trial court to proceed consistently therewith.

Reversed and remanded,

Warner and Taylor, JJ., concur.

      . In pertinent part, section 768.28(5) provides:
      Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when to-talled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

      . Within the contract, Mellen also expressly waived her rights under Article I, Section 26 of the Florida Constitution, which provides that a claimant in a medical liability claim involving a contingency fee is entitled to receive no less than seventy percent of the first $250,000 in damages and no less than ninety percent of damages in excess of $250,000.

      . Based on the parties’ agreement to a twenty-five percent fee, the law firm’s total contingency fee from the awards recovered from the hospital and the Legislature should be $750,000.


author: Per Curiam.

text:
    Pierre DOMVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2484
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    , Pierre Domville, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant’s claims are not properly raised in this appeal. We affirm without prejudice to appellant bringing his claims in a rule 3.850 motion for postconviction relief.

Affirmed.

Levine, Conner and Klingensmith, JJ., concur.


author: Warner, J.

text:
    Loues RAPHAEL, Appellant, v. Nadine Jean RAPHAEL, Appellee.
    No. 4D16-2433
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    Travis R. Walker of The Law Offices .of Travis R. Walker, P.A., Stuart, for appellant.
    No brief filed for appellee.
   Warner, J.

The former husband challenges the eq-. uitable distribution of liabilities in a final judgment of dissolution of marriage. At issue are several “loans” that the former husband testified he owed to various family members and a bank. He had no loan documents to prove their existence. In making equitable distribution, the judgment stated: “As to any debt not otherwise addressed herein each party shall be responsible for any and all debt that appears in his or her own name as his or her sole and separate debt and shall indemnify and hold harmless the other party therefrom.” The judgment did not otherwise identify the subject loans.

Section 61.075(3), Florida Statutes (2016), requires that the court make written findings of fact identifying marital assets and liabilities. Although at the final hearing the judge said that he thought these particular loans were non-marital, personal debts made after the date of separation, those findings were not included in the.final judgment.- Moreover, the judge did not establish a separation date, and the former husband testified that the loans were used to fix up or purchase two of the marital properties. Therefore, it is hard to square the testimony with the judge’s ruling, unless the judge simply did not believe the former husband and his relatives that the loans were made and were used for marital purposes.

Nevertheless, “failure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.” Patino v. Patino, 122 So.3d 961, 963 (Fla. 4th DCA 2013) (quoting Whelan v. Whelan, 736 So.2d 732, 733. (Fla. 4th DCA 1999)). We therefore reverse and remand for the trial court to make appropriate findings and to readjust the equitable distribution plan, if necessary.

Gerber and Forst, JJ., concur.


text:
    Krista GLOVER, Appellant, v. Thomas R. GLOVER, II and Mildred Phillips, Appellees.
    No. 4D17-154
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]

      Anne M. Lynch of Anne M. Lynch, P.A., West Palm Beach, for appellant.
    Charles R. Boning and Earl K. Mallory of Mallory Law Group, Jupiter, for appel-lee Mildred Phillips.
   Per Curiam.

We affirm the dismissal of appellant’s complaint against appellee, as the action was barred by the statute of limitations. § 726.110, Fla. Stat. (2014). None of the issues appellant raises have merit. We dismiss the appeal as to attorneys’ fees, as the trial court has not set the amount of the award. The fee order is therefore non-final and nonappealable, and this Court lacks jurisdiction presently to review it. See Greenberg v. Greenberg, 129 So.3d 470, 471 (Fla. 2d DCA 2014); Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997).

Affirmed in part; dismissed in part.

Warner, Gerber and Forst, JJ., concur.


text:
    Lorenza SESSION, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1525
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee,- and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges his conviction and sentence for attempted second degree murder. We affirm the conviction without further discussion. We reverse the sentence, however, as the state concedes that the trial court’s comments during sentencing—that appellant’s testimony at trial was “untruthful and not believable” and warranted the maximum sentence—constituted fundamental error. See Cherilus v. State, 199 So.3d 392, 394-95 (Fla. 4th DCA 2016) (finding that defendant was denied due process when the court relied upon his purported untruthfulness as a factor during sentencing, as reliance on such “would create a catch-22—the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial” (quoting Hannum v. State, 13 So.3d 132, 136 (Fla. 2d DCA 2009))); Ward v. State, 152 So.3d 679, 679 (Fla. 4th DCA 2014) (reversing sentence as fundamentally erroneous where judge justified the sentence by stating “I did not find your testimony credible”); Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (holding that “a defendant’s perjury committed while under oath during trial is not a proper sentencing factor” (quoting Bratcher v. State, 743 So.2d 112, 114 (Fla. 5th DCA 1999))). We remand for resen-tencing before a judge other than the original sentencing judge.

Warner, Gerber and Forst, JJ., concur.


text:
    Randall LACEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0666
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]
    Michael C. Minardi of Michael Minardi, P.A., Riverview, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Randall Lacey appeals the summary denial of his rule 3.850 motion for post-conviction relief. The State concedes that the trial court erred in failing to allow Lacey an opportunity to amend the motion. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754 (Fla. 2007). We therefore reverse and remand for the trial court to afford Lacey an opportunity to file a facially sufficient motion.

Reversed and remanded.

Taylor, Damoorgian and Conner, JJ., concur.


author: Taylor, J.

text:
    J.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-442
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

J.V. appeals a disposition order adjudicating him delinquent for multiple' crimes, including two counts of possession of drug paraphernalia. Appellant argues that .his adjudications on two separate counts for possession of drug paraphernalia arising from the same incident violated double jeopardy. We decline to reach the double jeopardy issue and, instead, reverse the adjudications on both paraphernalia counts because of a fundamental defect in the petition for delinquency.

After a traffic stop and search of the vehicle in which appellant was a passenger, police officers found a firearm and packaged narcotics inside the engine compartment. The narcotics were contained in a small piece of plastic that looked “like a corner of a grocery bag,” and inside the plastic was “a cellophane wrapper which contained the Heroin and then a loose piece of rock cocaine.” Appellant admitted that both the gun and the drugs belonged to him, and that he put them underneath the hood of the car.

Pertinent to this appeal, appellant was charged by juvenile delinquency petition with two counts of possession of drug paraphernalia under section 893.147, Florida Statutes (2015). This section states in relevant part:

(1) USE OR POSSESSION OF DRUG PARAPHERNALIA.—It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia:.
(a) To plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter; or
(b) To inject, ingest, inhale, or otherwise introduce into the human body a controlled substance’ in violation of this chapter.

§ 893.147(1), Fla. Stat. (2015).

, Count V of the petition charged appellant with possession of paraphernalia, specifically a plastic bundle, and Count VI charged him with possession of paraphernalia, specifically cellophane wrap. Both counts charged appellant with possession of “drug paraphernalia being used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, contrary to Florida Statute section 893.147(l)(b).”

" At trial, however, the state prosecuted appellant on the theory that appellant used or possessed drug paraphernalia to .“pack, repack, store, contain, or conceal” a controlled substance, which would be ,a violation of section 893.1,47(l)(a). Yet, as noted above, the state did not allege that element in the delinquency petition; nqr did the state cite section 893.147(l)(a) in the petition. The petition was thus fundamentally defective as to Counts V and VI because those counts cited the wrong statutory provision and failed to allege an essential element of the crime for which appellant was tried. See Morgan v. State, 146 So.3d 508, 512 (Fla. 5th DCA 2014 (“[A] criminal defendant is entitled to a trial on the charges contained in the information and may not be prosecuted for uncharged offenses, even if they are of the same general character or constitute alternative ways of committing the charged offense.”); see also Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006) (“It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.”).

Although appellant does not raise this issue on appeal,, we conclude that the fundamental defect in the charging document amounts to fundamental error which can be addressed sua sponte. See Honaker v. State, 199 So.3d 1068, 1070 (Fla. 5th DCA 2016) (“[W]e may. sua sponte address fundamental error apparent on the face of the record.”).

Accordingly, we reverse and remand for the trial court to enter a corrected disposition order reflecting a dismissal of Counts V and VI, Because we are remanding for a dismissal of these possession of paraphernalia counts, we need not address appellant’s double jeopardy argument regarding his adjudications for both counts of possession of paraphernalia. <»• ■

Reversed and Remanded.

May and Ciklin, JJ., concur.


text:
    OUTREACH HOUSING, LLC, and Blair L. Wright, Appellants, v. OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, State of Florida, United Home Front, and Bryan Berry, Appellees.
    No. 4D15-1173
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Claudia T. Pastorius, Tampa, Crane Johnstone and Robyn L. Sztyndor, Fort Lauderdale, for appellants.
    Pamela Jo Bondi, Attorney General, Fulvio Joseph Gentili and Laura J. Boeck-man, Assistant Attorneys General, Tallahassee, for appellee Office of the Attorney General, Department of Legal Affairs.
   ON MOTION FOR REHEARING

Warner, J.

We grant the motion for rehearing, withdraw our prior opinion, and issue the following in its place.

Appellants challenge a substantial judgment against them in favor of the Office of the Attorney General (“OAG”) for unfair and deceptive trade practices allegedly committed in connection with the provision of services for delinquent mortgagors. The court determined liability by summary judgment and damages through an eviden-tiary hearing. As to the liability judgment, disputed issues of material fact remain. As to the damage award, the evidence did not support the amount ordered. We reverse and remand for further proceedings.

Outreach Housing, LLC, and its principal, Blair Wright (collectively, “Outreach”), began operating as a service agent for homeowners facing foreclosure in 2007, and continued operating up until January 2009. After receiving many complaints against Outreach by its clients, the OAG launched an investigation. It found that Outreach solicited clients through TV commercials and. online ads by representing that Outreach would provide assistance to those facing foreclosure. In its marketing, Outreach urged homeowners: “Don’t loose [sic] your home. Get the assistance you need. Stop the foreclosure action by calling today.” Outreach represented to potential clients that it would interact with lenders to obtain mortgage or foreclosure relief. According to many of the homeowners who contracted with Outreach, the firm’s representatives falsely told them that they would obtain mortgage modifications, and that Outreach would provide attorneys to represent them in foreclosure proceedings.

As part of its solicitation process, Outreach representatives would conduct interviews of homeowners via telephone and elicit information about inaccuracies in their original loan. They would tell each homeowner that their lender had violated the law and solicit the homeowner to purchase Outreach’s services. Part of their protocol was to tell Outreach clients not to make mortgage payments to their lenders. Instead of working to mitigate the loans, Outreach’s strategy was to delay foreclosures while it collected monies from its clients.

Based upon the complaints and its investigation, the OAG filed a complaint against Outreach for violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). The second amended complaint alleged thaj; Outreach had actual knowledge or should have known of the unfair and deceptive trade practices of the corporation. It alleged that from 2007 until the date of the complaint, Outreach engaged in deceptive trade practices designed to induce consumers to purchase its services through a series of false and fraudulent misrepresentations, including that Outreach would render assistance in mortgage loan mitigation and foreclosure defense, and that homeowners should pay Outreach two-thirds of their monthly mortgage payments, in return for which Outreach would negotiate with the homeowners’ lenders. The OAG’s complaint quoted from a complaint filed by Outreach against one of its participating attorneys in which Outreach alleged that it collected monthly payments from homeowners which were deposited in an account from which the costs of litigation were paid, and Outreach and the attorneys shared the remainder based upon a pre-agreed fee structure. In contrast to these statements by Outreach, the OAG’s complaint alleged that Outreach represented to homeowners that the homeowner controlled the funds in the account, the attorney was not paid by Outreach, and there was no division of fees between Outreach and the attorneys.

The OAG’s complaint further charged that Outreach engaged in the unauthorized practice of law by analyzing homeowners’ mortgage documents for violations of federal law. It alleged that Outreach engaged in the unauthorized practice by employing attorneys to provide services for its clients and controlling the way that the attorneys would be paid. In addition, the complaint alleged that Outreach violated Chapter 817, Florida Statutes, regarding credit counselling and debt management services.

As a result of these deceptive and unfair trade practices, the complaint alleged that 1) homeowners paid for debt reduction services that they did not receive and that were not provided by Outreach; 2) Outreach failed to provide attorneys or to pay for attorneys; and 3) Outreach enriched themselves at the expense of the homeowners. The complaint sought to recover actual damages suffered by the consumers, as Well as to obtain injunctive relief against Outreach.

Outreach answered, generally denying the allegations and claiming as affirmative defenses that all actions Outreach took were done in good faith, based upon legal advice, and without any willful intent to violate any rules or regulations.

The OAG moved for summary judgment. It relied on a stipulation entered into by Outreach in proceedings before the Florida Supreme Court in which Outreach agreed to a permanent injunction preventing it from engaging in the unauthorized practice of law as described in the stipulation. The motion for summary judgment characterized the stipulation as an admission' by Outreach and asserted that Outreach had engaged in the unauthorized practice of law. The motion also relied on the statements of varibus Outreach customers that Outreach represented to them that it would render assistance in mortgage loan mitigation and foreclosure defense for homeowners. The customers also stated that Outreach made various representations to them regarding illegalities in their mortgage documents. The motion alleged that although Outreach referred its customers to licensed attorneys, the services' provided were minimal and, in many instances, rion-láwyers performed lawyer functions, such aS preparing and filing court documents. In part, the motion relied on section 501.1377(3)(b), Florida Statutes (2008), which provided that it is unlawful to charge for mortgage foreclosure related services before they are completed. However, this statute was not included in the allegations of the- complaint and was not in effect during the time period of activity covered by the complaint.

In addition to the unauthorized practice of law, the motion for summary judgment contended that Outreach engaged in an “illicit lawyer referral service,” because Outreach charged a fee to refer its customers to a lawyer. The Rules Regulating the Florida Bar .prohibit a lawyer from taking a referral from a service unless the service does not charge for a referral. The motion characterized this practice as a deceptive practice under FDUTPA because, it alleged,'consumers were deceived into thinking lawyers would take their foreclosure cases when, in actuality, lawyers would be prohibited from doing so.

Wright filed an affidavit in opposition, together with documents of support, stating that Outreach never provided credit reduction services. It did hot tell clients not to pay their mortgages, and it attached a client letter with standard'language informing the client to pay the mortgage. Wright’s affidavit attested that Outreach did not split fees with lawyers but was paid for non-legal services that it provided, which included use of claims management software and a database of mortgage foreclosure documents developed by Outreach. According to Wright, the customers chose their own. attorneys, and Outreach did not direct how the attorneys represented their clients. Each of the attorneys had a pre-negotiated fee agreement for a set fee for services to the homeowner. Outreach frequently facilitated communication between the attorney and client. Wright attested that Outreach did not draft any legal documents. Wright’s affidavit stated that all clients were fully informed as to the services Outreach provided, which included the review of the homeowner’s mortgage documents by an attorney. Wright also took issue with the specific persons upon whose testimony and statements the OAG relied in the summary judgment motion, noting that they were disgruntled employees, one of whom was sued by Outreach, and one of whom attempted to open a competing business. As to the specific customers cited by the OAG in its .motion, Wright attested that they had received all of the services for which they had paid.

After a hearing, the trial court granted summary judgment as to liability without further elaboration as to the grounds upon which it was granted. Subsequently, the trial court held a hearing to establish the amount of the judgment. Although the complaint had requested an award of actual damages, at the hearing, the OAG requested an award of restitution of all of the payments made by complaining clients of Outreach. A senior investigator stated that 252 customers had complained to the OAG regarding Outreach, although only 108 submitted statements which were admitted into evidence pursuant to section 501.207(7), Florida Statutes (2008). Nevertheless, the trial court ultimately granted restitution for all 252 complaining clients and entered judgment for $880,643, after subtracting reimbursements Outreach had already made to various clients.

The court then considered whether to grant a civil penalty pursuant to section 501.2075, Florida Statutes (2008), which permits the court to award a penalty of “not more than $10,000 for each ... violation” if the court finds that the person or entity has willfully used a method, act, or practice found to be a deceptive act under section 501.204, Florida Statutes (2008). The court heard testimony from one of the lawyers working with Outreach that he had been referred clients from Outreach, and Wright himself admitted that clients would appoint him as attorney-in-fact to control the “escrow account” where the client’s payments to Outreach were deposited. Out of those accounts, Wright transferred more than fifty percent of the funds to his wife, who deposited $517,000 into a CD held in her name. Wright also used client funds to' make payments on cars registered to him and his children as well as on the mortgage on his home and his American Express bills.

In its final judgment, the court found that Outreach engaged in conduct that constituted deceptive and/or unfair trade practices under section 501.204, Florida Statutes. Wright’s control of Outreach was conclusively established by a stipulation in which he admitted he solely controlled and directed the operations of Outreach, The court found that Wright failed to show a good faith defense to the deceptive practices because Of his payment of his own personal expenses from the escrow account where homeowners’ funds were deposited. Wright’s transfer of $517,000 from, homeowners’ funds to his then-wife belied Wright’s good faith defense. As 745 consumers engaged Outreach , to provide mortgage relief assistance and paid Outreach for assistance which was .not rendered, the court found 745 violations and entered a civil penalty judgment for $7,450,000. From this judgment, Outreach and Wright appeal.

A trial court’s ruling on a motion for summary judgment finding liability is reviewed de novo. Cambridge Credit Counseling Corp. v. 7100 Fairway, LLC, 993 So.2d 86, 88 (Fla. 4th DCA 2008).

A trial court' may enter summary judgment only when there are ho genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available. •

Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002) (citation omitted); accord Shreffler v. Philippon, 873 So.2d 1280, 1281 (Fla. 4th DCA 2004).

It appears from our review of this rather jumbled record that disputed issues of fact remain as to all issues’ of liability. Outreach, through affidavits and documents, contested every alleged deceptive practice, including whether its representatives had made false promises regarding loan reductions and whether to pay the underlying mortgage; whether Outreach, a non-lawyer entity, had given legal advice; and whether client funds received by Outreach were for the sole purpose of paying the lawyer or whether Outreach provided non-lawyer services for which it was entitled to be paid. It also provided evidence that it sought the advice of attorneys when setting up its business to make sure that it operated legally.

In seeking summary judgment, the OAG relied to a substantial degree on a stipulation entered into by Outreach and The Florida Bar to terminate a complaint of unlicensed practice of law by The Bar. However, in the stipulation, Wright and Outreach specifically did not admit any wrongdoing. Thus, the stipulation cannot be taken as an admission that Outreach engaged in the unauthorized practice of law and, further, cannot conclusively establish liability on the part of Outreach. In addition, the OAG claims that fee-sharing with lawyers violated rule 4-7.22 of the Rules Regulating the Florida Bar. Outreach denies that it split fees. Instead, it contends that it was paid for services which it provided to the clients and lawyers, including access to its very extensive database of foreclosure documents.

Moreover, the OAG also relied on evidence of a violation of section 501.1377, Florida Statutes, to support summary judgment. Not only was a violation of this section not pled in the complaint, but the statute also was not in effect for the time period of the complaint.

In sum, the summary judgment evidence and the affidavit in opposition showed that material issues of fact remain. While the OAG’s evidence is strong, if believed by the trier of fact, Outreach had a different version and explanation of what occurred. The OAG did not erase the doubt created by the opposing evidence. We must reverse.

Because this case will be remanded for further proceedings, we briefly address the damages. Although in the complaint the OAG sought actual damages suffered by consumers, it requested restitution at the final hearing. Section 501.207, Florida Statutes, provides:

The enforcing authority may bring:
(a) An action to obtain a declaratory judgment that an act or practice violates this part.
(b) An action to enjoin any person who has violated, is violating, or is otherwise likely to violate, this part.
(c) An action on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of this part.

§ 501.207(1), Fla. Stat. Actual damages are an essential element of a FDUTPA claim. Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). The question is whether restitution comes within the remedies available to the enforcing authority under the statute. Although no Florida case has directly held that restitution is an available remedy, several cases have permitted the enforcing authority to proceed on restitution claims. See, e.g., E-Racer Tech, LLC v. Office of the Attorney Gen. Dep’t of Legal Affairs, 198 So.3d 1107, 1110 (Fla. 4th DCA 2016); State v. Beach Blvd Auto., Inc., 139 So.3d 380, 394 (Fla. 1st DCA 2014).

One federal case has squarely held that restitution is an available remedy under FDUTPA. In Federal Trade Commission v. Mylan Laboratories, Inc., 99 F.Supp.2d 1 (D.D.C. 1999), the Federal Trade Commission and thirty-three states, including Florida, sued manufacturers of generic lo-razepam, alleging violation of antitrust laws as a result of illegal licensing agreements which allowed for excessive pricing of drugs. Id. at 4-5. The claims in Florida included claims for restitution under FDUTPA. Id. at 6. The district court first disallowed the restitution claims by a number of states, including Florida, on grounds that the statutes didn’t allow those remedies. Id. at 4-5. On rehearing, it concluded that restitution was available as a remedy. As to Florida, the court reinstated the restitution claims, specifically explaining that the broad language in section 501.207, Florida Statutes, indicated that the Florida Legislature intended to provide a full range of equitable monetary relief under FDUTPA. Mylan, 99 F.Supp.2d at 6.

The statute itself has language allowing the enforcing authority to seek any available remedy. Section 501.207(1), Florida Statutes, is amplified by section 501.207(3), Florida Statutes, which allows a court to grant “legal, equitable, or other appropriate relief’ in a FDUTPA action brought by an enforcing authority.

Different sections of the act refer to “restitution,” thus supporting the notion that restitution is a remedy available under FDUTPA. Section 501.2075, Florida Statutes, provides that the department or court may waive a civil penalty if a defendant “has previously made full restitution or reimbursement or has paid actual damages to the consumers or governmental entities” injured by an “unlawful act or practice,” Section 501.2077(3), Florida Statutes (2008), states that an “order of restitution or reimbursement based on a violation of this part committed against” certain classes of defendants • are to be given “priority over the imposition of civil penalties!)]”

Allowing the enforcing authority to seek the remedy of restitution is consistent with the policy statements in the statute itself. Section 501.202, Florida Statutes (2008), states that FDUTPA “shall be construed liberally to promote the following policies”:

(1) To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices.
(2) To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable,' deceptive, or unfair acts or practices in the conduct of any trade or commerce.
(3) To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.

§ 501.202, Fla. Stat. (2008). As Judge Gross noted in his concurring opinion in Dorestin v. Hollywood Imports, Inc., 45 So.3d 819 (Fla. 4th DCA 2010), “[p]art of the ‘liberal’ construction required by the statute is to construe statutory damage remedies in a way that makes consumers whole.” Id. at 826 (Gross, J., concurring). Restitution is a remedy that makes the consumer whole. Thus, we conclude that the enforcing authority can seek consumer restitution under FDUTPA.

Nevertheless, the trial court’s award must be revisited. The court awarded restitution for 252 customers who complained to the OAG regarding Outreach. The trial court admitted evidence of these complaints pursuant to section 501.207(7), Florida Statutes. While we conclude that the statements could be admitted pursuant to this section, only 108 such statements were admitted. As to the remaining 144 complaining clients, no statements were offered. Therefore, there was no competent evidence either of complaints or-of the amount'of the payments as to those consumers who did not bother to file a written complaint, ■

With respect to the civil penalty, we do not address the issue of whether or not it should apply, or in what amount, as the factual underpinning for an award will be litigated on remand.

For the foregoing reasons, we reverse the final judgment and remand for further proceedings consistent with this opinion.

Gross and Forst, JJ., concur.

      . We are unclear as to how fee-splitting could be a deceptive and unfair trade practice in this case, unless there were a representation to the client that all monies being collected were to pay for attorney’s fees when they were not.

      . This language .was moved to subsection (4) of section 501.2077, Florida Statutes, in 2013. See § 501.2077(4), Fla. Stat. (2013).

      . We note that in the second amended complaint, the OAG requested a penally based upon the number of complaining clients, not the total number of clients. We do not decide whether each client represents a separate violation of FDUTPA for the purposes of extracting the civil penalty.


author: Gerber, C.J.

text:
    Jorge GARRIDO Appellant, v. Patricia GARRIDO n/k/a Patricia Martinez, Appellee.
    No. 4D15-3677
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]
    Troy William Klein, West Palm Beach, for appellant. ,
    Mark A. Seff and Anna-Maria Capizzi of Seff & Capizzi Law Group, LLC, Hollywood, for appellee.
   Gerber, C.J.

The former husband appeals from the circuit court’s final judgment denying the former husband’s request for downward modification of his child support obligation. The former husband raises several arguments, but only one argument has merit— that the trial court incorrectly increased the child support arrearage by $15,000, presumably due to a mathematical error. The former wife appropriately concedes this error. We agree and reverse on this argument only., ,

In the final judgment, the circuit court indicated the child support arrearage was previously established in the sum of $94,780 ás of Novembér 17, 2014. The court added $15,000 in arrearage for the months of December 2014 through May 2015. Then the court added $5,000 in ar-rearage for the months of June 2015 and July 2015. The sum of these three amounts ($94,780 + $15,000 + $5,000) equals $114,780. However, the final judgment indicates that the sum of these three amounts is $129,780. Thus, the final judgment incorrectly determined that the ar-rearage was $15,000 more than the actual arrearage. This $15,000 error requires correction of the final judgment on this error only.

Based on the foregoing, we reverse the' final judgment only to correct the final judgment to show a child support arrear-age of $114,780. On the former husband’s remaining arguments, we affirm without further discussion.

Affirmed in part, reversed in part, and remanded for correction of final judgment consistent 'with this opinion.

Gross and Kuntz, JJ., concur.


text:
    Amaury DOMINGUEZ, Appellant, v. BAYVIEW LOAN SERVICING LLC, City of Dania Beach, Yanelvys Aguiar, and Unknown Tenant in Possession #1, Appellees.
    No. 4D16-3164
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]
    Michael Farrar, Doral, for appellant.
    Charles P. Gufford of McCalla Raymer Pierce, LLC, Orlando, for appellee Bay-view Loan Servicing, LLC.
   Per Curiam.

Amaury Dominguez challenges an order awarding the servicer the costs of post-foreclosure judgment expenditures in relation to the subject property. We reverse and remand because the affidavit of additional advances filed by the servicer and not admitted into evidence was wholly inadequate to prove the amounts of the ser-vicer’s expenditures. See generally Broxmeyer v. Elie, 647 So.2d 893, 895 (Fla. 4th DCA 1994) (“Where there is no proof of damages, there can be no recovery.”). On remand, the servicer must prove the expenses incurred and its entitlement to reimbursement for those expenses pursuant to the final judgment.

Reversed and remanded.

Damoorgian, Ciklin, JJ., and Harizman, Michael A., Associate Judge, concur,,


author: PER CURIAM.

text:
    Marco HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1702
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Rehearing Denied May 30, 2017
    Daniel Tibbitt, for appellant.
    Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney General, for appellee.

      Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

We reverse in part and affirm in part the order denying the defendant’s post-conviction relief motion. As the State commendably concedes in its response, we reverse and remand with a direction that the court is to resentence the defendant in case numbers F99-2549A and F99-3075B by removing the habitual violent felony offender designation, and by correctly designating the defendant as a habitual felony offender in those cases. Gonzalez v. State, 208 So.3d 143, 147 (Fla. 3d DCA 2016) (“Because the record does not conclusively establish that Gonzalez’s double jeopardy claim has been previously decided on the merits, Gonzalez’s argument has merit.”). The defendant need not be present. Holmes v. State, 100 So.3d 281, 283 n.5 (Fla. 3d DCA 2012).

We affirm the order in all other respects, and reject the defendant’s claim that his sentence in F99-10156B should run concurrently, rather than consecutively, with the sentence in F99-10155B. The court properly made these sentences con-secutivej to satisfy the original, total term of 30 years, as detailed in the 1999 plea agreement and sentence.

Reversed and remanded with instructions.


author: SCALES, J.

text:
    Janepsy CARBALLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-944
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Rehearing Denied June 8, 2017
    Nathan P. Diamond, P.A., and Nathan P. Diamond; Woodward & Reizenstein, P.A., and Philip L. Reizenstein, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

Janepsy Carballo was convicted of the first, degree murder of lian Nissim and sentenced to life, in prison. On appeal to this Court, she raises eight issues that divide into a inyriad of exceptions to and denunciations of the conduct of her murder trial. We conclude that Carballo’s trial was fair and affirm her conviction.

Carballo’s primary basis for objecting to the fairness of the trial is that the trial court’s grant of the State’s extensive motions in limine, together with the trial court’s steady sustaining of the State’s objections during Carballo’s opening argument and examination of certain witnesses, prevented Carballo from presenting the defense of self-defense. Our independent review of the record, however, establishes that the trial court did not abuse its discretion in its evidentiary rulings and in the manner it conducted a difficult trial. Simply because a trial court rules against a defendant repeatedly does not mean the trial was unfair. Because Carballo’s claims of error lack merit, they do not amount to cumulative error denying her a fair trial. Parker v. State, 904 So.2d 370, 380 (Fla. 2005).

The trial court did not abuse its discretion by not giving a jury instruction that lacked evidentiary support. Hooper v. State, 476 So.2d 1253, 1256 (Fla. 1985). The trial court did not err when it seated a juror over Carballo’s peremptory challenge to that juror. Melbourne v. State, 679 So.2d 759 (Fla. 1996). The trial court did not err when she declined to recuse herself upon an insufficient motion. Parker v. State, 3 So.3d 974, 981-82 (Fla. 2009). Finally, the trial court did not abuse its discretion in denying Carballo’s motion for a new trial based upon alleged juror misconduct. Murray v. State, 3 So.3d 1108, 1121-22 (Fla. 2009).

Affirmed.

      . Carballo argues that the trial court’s eviden-tiary rulings interfered with her examination of witnesses Detective Diana Roman, Sergio Alonso and Jenny Leon; limited Carballo’s cross examination of medical examiner Dr. Emma Lew; limited cross examination of undercover informant John Friskey; and generally prevented Carballo from introducing evidence, in support of the theme of self-defense, that she was fearful of lian Nissim. At trial, each of the aforementioned presented admissibility problems. Carballo’s appeal on this issue boils down to an argument that she was prejudiced by the trial court not allowing her to introduce prejudicial testimony.