author: ROTHSTEIN-YOUAKIM, Judge.

text:
    ASSET MANAGEMENT HOLDINGS, LLC, a/k/a AMH USA, LLC; and Thierry Cassagnol, Appellants, v. ASSETS RECOVERY CENTER INVESTMENTS, LLC ; 19-Asset Management Holdings, LLC; Mia Funding, LLC; 17-Asset Management Holding, LLC; 16-Asset Management Holdings, LLC; 14-TP Funding, LLC; 12 Asset Management Holdings, LLC; 11 Asset Management Holdings, LLC; 10-Asset Management Holdings, LLC; 9-Comp Loan, LLC; 6-Misproperties, LLC; 5-Homecom.Loans, LLC; 4-Traders Trust, LLC; 21 Asset Management Holdings, LLC; 3-Student Loan, LLC; 2 Banking One Funding, LLC; 1, M, LLC, 1 M, Inc. ; John Olsen; and Daniel Coosemans, Appellees.
    Case Nos. 2D16-341 2D16-3599 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    February 23, 2018
    Appeals from the Circuit Court for Sarasota County; Stephen L. Dakan, Associate Senior Judge.
    John S. Jaffer, Sarasota, and Steele T. Williams of Steele T. Williams, P.A., Sarasota, for Appellants. Mark A. Levy of Brinkley Morgan, Ft. Lauderdale, for Appellees.
    BY ORDER OF THE COURT:
   The plaintiff entities' October 31, 2017, motion for rehearing is denied. The plaintiff entities' October 31, 2017, motion for clarification is granted to the extent that the prior opinion dated October 18, 2017, is withdrawn and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

ROTHSTEIN-YOUAKIM, Judge.

Defendants/Counterplaintiffs below, Asset Management Holdings, LLC, a/k/a AMH USA, LLC, and Thierry Cassagnol (collectively, AMH), appeal an amended final judgment awarding damages to Plaintiffs/Counterdefendants below, Assets Recovery Center Investments, LLC, and various other entities (the plaintiff entities), on the plaintiff entities' breach-of-contract claim and dismissing with prejudice all of the plaintiff entities' alternative claims for damages and AMH's counterclaims. We agree with AMH's argument that the trial court erred in denying its motion for an involuntary dismissal because the plaintiff entities failed to prove damages. Accordingly, we reverse the amended final judgment to the extent that it awarded damages to the plaintiff entities, affirm the amended final judgment to the extent that it disposed of the plaintiff entities' alternative claims for damages and AMH's counterclaims, and remand for entry of an involuntary dismissal of the plaintiff entities' breach-of-contract claim.

Background

In 2003, the parties orally agreed that AMH would locate distressed mortgages that holders were typically willing to sell for less than face value, the plaintiff entities would provide the capital to finance the purchase of the distressed mortgages, and AMH would service the loans on behalf of the plaintiff entities. Specifically, they agreed that any money that AMH collected when servicing these loans would be applied as follows: first, AMH would reimburse itself for certain hard costs incurred while servicing and collecting the loans; second, the plaintiff entities would be reimbursed for the capital expended to acquire the loans; and third, once the plaintiff entities had been fully reimbursed as to a particular group of loans, the parties would split the remaining proceeds from that group evenly. With the foreclosure crisis looming, however, AMH became indebted to the plaintiff entities, and the parties' business relationship went awry. Consequently, in November 2008, the parties orally agreed that AMH would stop servicing the loans and would transfer all active loan files to the plaintiff entities and that the plaintiff entities would not seek to recover any money that AMH owed them (the walkaway agreement). About six months after AMH transferred the files to the plaintiff entities, however, AMH claimed that it had accidentally included in the transfer approximately 170 loans that were not originally part of the walkaway agreement, and it resumed servicing and collecting payments on these 170 loans (the disputed loans).

The plaintiff entities sued AMH for breach of the walkaway agreement. The trial court bifurcated proceedings by holding a bench trial on all of the parties' substantive claims and counterclaims followed by a separate bench trial on damages. At the conclusion of the first bench trial, the court rejected AMH's assertions that the walkaway agreement was unenforceable and that it owned the disputed loans; found that the plaintiff entities owned the disputed loans and that, pursuant to the walkaway agreement, AMH owed the plaintiff entities any monies that it had collected on the disputed loans and was liable for any damages; reserved jurisdiction to determine the amount of damages, if any, due to the plaintiff entities; and dismissed with prejudice the plaintiff entities' remaining claims and AMH's counterclaims.

Before the damages trial, the plaintiff entities filed a written "memorandum regarding damage calculation" in which they requested damages in the amount of all monies that AMH had collected on the disputed loans after the parties had entered into the walkaway agreement. AMH responded, in pertinent part, that an award of damages in the amount of AMH's gross collections would fail to account for the costs that AMH had incurred in collecting and servicing the disputed loans and, as a remedy for breach of contract, would improperly put the plaintiff entities in a better position than they would have been if the walkaway agreement had not been breached.

At the damages hearing, the plaintiff entities relied on their memorandum and asserted that any costs that AMH had incurred in collecting and servicing loans covered by the walkaway agreement had been incurred through AMH's own wrongdoing. AMH responded that under a "breach of contract damage analysis, ...

the Plaintiff entities should not be put into a position better than they would have been, but for the breach" and asserted that the costs that AMH had incurred should be considered as "various setoffs to the overall gross number." AMH offered to establish an appropriate setoff by having Cassagnol testify, in pertinent part, to AMH's costs in servicing the disputed loans, and it noted that, in discovery, the plaintiff entities had acknowledged that fifty dollars per loan per month was a reasonable servicing fee. The plaintiff entities responded by reiterating that AMH should not be entitled to a setoff based on its wrongdoing.

The trial court agreed that AMH was not entitled to a setoff. The court noted that the first trial had addressed whether the walkaway agreement was valid and could be enforced, and it clarified its prior ruling that AMH had breached the walkaway agreement and that the disputed loans belonged to the plaintiff entities. Nonetheless, to preserve the issue for appeal, the court directed AMH to submit a written proffer of the setoff.

In addition to submitting this written proffer of their servicing costs, AMH moved for an involuntary dismissal. AMH reiterated its argument that awarding gross collections as damages would improperly put the plaintiff entities in a better position than they would have been had AMH not breached the walkaway agreement. AMH asserted that because the plaintiff entities had not introduced any evidence of the costs that they necessarily would have incurred in servicing the disputed loans, they had failed to satisfy their burden of proving damages under a lost-profits theory. The plaintiff entities responded that lost profits was not the correct measure of damages and that AMH could properly be denied a setoff based on its wrongful conduct. The plaintiff entities continued to rely solely on their original memorandum; they neither proffered nor requested an opportunity to proffer what costs they would have incurred in servicing the disputed loans absent the breach.

The trial court denied AMH's motion without explanation and, on the same day, entered an amended final judgment. The amended final judgment included the same findings and rulings as the original final judgment, including its finding that the plaintiff entities are the owners of the disputed loans, and awarded the plaintiff entities all monies that AMH collected on the disputed loans after November 2008. AMH timely appealed.

Analysis

Whether the trial court applied the correct measure of damages on a breach-of-contract claim is a question of law that this court reviews de novo. Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667, 673 (Fla. 3d DCA 2011). If the trial court employed the correct measure of damages, we review the damages award for support by competent, substantial evidence. Id.

On appeal, AMH argues that the trial court erred in denying its motion for an involuntary dismissal because the plaintiff entities did not present sufficient evidence of damages under the correct measure. AMH contends that, to recover on their breach-of-contract claim, the plaintiff entities had to prove lost profits, which required evidence not only of AMH's gross collections but also of the costs the plaintiff entities necessarily would have incurred in servicing and collecting payments on the disputed loans if AMH had not done so in the breach. We agree.

At the damages part of the trial, the trial court stated that it had previously found that the plaintiff entities owned the disputed loans, contrary to AMH's claim to ownership; that the walkaway agreement was enforceable; and that AMH had breached it. Therefore, contrary to the plaintiff entities' suggestion, the court was apparently proceeding solely on the plaintiff entities' breach-of-contract claim; the court did not indicate that it had made or was relying on any other findings that implicated the plaintiff entities' other causes of action. See Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) ("The elements of an action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach."). And, therefore, the plaintiff entities had to prove the third element of a breach-of-contract claim: damages resulting from the breach. See Siever v. BWGaskets, Inc., 669 F.Supp.2d 1286, 1300 (M.D. Fla. 2009) ("Under Florida law, damages are an essential element of an action for breach of contract." (citing Butland, 951 So.2d at 876 ) ).

The trial court's conclusion that AMH's wrongful conduct precluded a "setoff" misapprehends the purpose of a damages award on a breach-of-contract claim, which "is to restore an injured party to the same position that he would have been in had the other party not breached the contract." Verandah Dev., LLC v. Gualtieri, 201 So.3d 654, 659 (Fla. 2d DCA 2016) (quoting Lindon v. Dalton Hotel Corp., 49 So.3d 299, 305 (Fla. 5th DCA 2010) ). In so concluding, the court incorrectly focused on punishing AMH for its breach rather than on putting the plaintiff entities in the same position that they would have been but for the breach. See id. As a result, the court incorrectly put the plaintiff entities in a better position than they would have been, see id. ("In restoring the injured party to the 'same position,' he 'is not entitled to be placed, because of that breach, in a position better than that which he would have occupied had the contract been performed.' " (quoting Lindon, 49 So.3d at 305 ) ), because if AMH had not resumed servicing and collecting the disputed loans, the plaintiff entities would have incurred costs by doing it themselves or by outsourcing it to a third party.

The burden of proving damages rested solely with the plaintiff entities. See Montage Grp., Ltd. v. Athle-Tech Comput. Sys., Inc., 889 So.2d 180, 195 (Fla. 2d DCA 2004) ("The plaintiff bears the burden of proving an entitlement to lost profits."); James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So.3d 68, 75, 80 (Fla. 4th DCA 2010) (reversing lost profits award and remanding for entry of defense judgment because plaintiff introduced evidence of only some fees it would have incurred but failed to deduct general overhead expenses); Indian River Colony Club, Inc. v. Schopke Constr. & Eng'g, Inc., 619 So.2d 6, 8 (Fla. 5th DCA 1993) (holding that plaintiff failed to carry burden of proving costs and expenses that it had to deduct from income when calculating lost profits); Physicians Reference Lab., Inc. v. Daniel Seckinger, M.D. & Assocs., P.A., 501 So.2d 107, 109 n.1 (Fla. 3d DCA 1987) (rejecting nonbreaching party's argument that breaching party's failure to present evidence warranted affirmance of damages award because nonbreaching party bore burden of proving lost profits). Because they introduced no evidence of the costs they would have incurred in servicing and collecting the disputed loans, they failed to carry that burden, and the trial court should have granted AMH's motion for an involuntary dismissal. See Fla. R. Civ. P. 1.420(b) ; Allard v. Al-Nayem Int'l, Inc., 59 So.3d 198, 201 (Fla. 2d DCA 2011) ("Involuntary dismissal is proper where there is inadequate proof at trial on the correct measure of damages."); St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377, 1377 (Fla. 2d DCA 1998) (reversing order granting rehearing, entered after court had originally found that plaintiff failed to introduce sufficient damages of expenses to support lost profits, because "[t]his procedure improperly allows appellee a 'second bite at the apple' at proving damages, an element of proof that should have been proven at trial"); Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (reversing damage award, remanding for entry of defense judgment because plaintiff failed to prove expenses in support of claim of lost profits, and rejecting approach that would have "allow[ed] a second bite at the apple when there has been no proof at trial concerning the correct measure of damages").

Conclusion

The plaintiff entities failed to introduce evidence essential to their burden of proving lost profits on their breach-of-contract claim. In light of this failure, the trial court erred in denying AMH's motion for an involuntary dismissal. Accordingly, we reverse the amended final judgment only to the extent that it awarded damages to the plaintiff entities on their breach-of-contract claim; affirm the amended final judgment to the extent that it disposed of the plaintiff entities' alternative claims for damages and AMH's counterclaims; and remand for entry of an involuntary dismissal of the plaintiff entities' breach-of-contract claim.

Affirmed in part; reversed in part; remanded with directions.

LaROSE, C.J., and SLEET, J., Concur.

      We reject AMH's other arguments without further comment.

      In doing so, we do not disturb the trial court's finding that the plaintiff entities own the disputed loans.

      The plaintiff entities also raised alternative theories of recovery and ancillary claims not relevant to the issues we address on appeal.

      Judge Sleet has been substituted for Judge Wallace, who was on the original Asset Management Holdings panel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rachaun BLOUNT, DOC# H45167, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1949
    District Court of Appeal of Florida, Second District.
    Opinion filed February 28, 2018
    Anthony M. Candela of Candela Law Firm, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Rachaun Blount appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), in which he argued that he was entitled to resentencing with respect to his forty-year concurrent sentences for nonhomicide offenses that he committed when he was sixteen years old. The State correctly concedes that Mr. Blount is entitled to resentencing, and we reverse the order denying Mr. Blount's motion and remand for resentencing under the new juvenile sentencing guidelines in accordance with Johnson v. State, 215 So.3d 1237 (Fla. 2017), and Mosier v. State, 235 So.3d 957 (Fla. 2d DCA Oct. 13, 2017).

Reversed and remanded.

KHOUZAM, MORRIS, and SLEET, JJ., Concur.

      Ch. 2014-220, §§ 1-3, at 2869-75, Laws of Fla., codified at §§ 775.082, 921.1401, 921.1402, Fla. Stat. (2014).


author: Per Curiam.

text:
    Charles DAVIS, Appellant, v. Bay County Jail, Rick ANGLIN, et al., Appellees.
    No. 1D16-1708
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied April 2, 2018
    Charles Davis, pro se, Appellant.
    Jason Vail of Jolly, Peterson & Truckenbrod, P.A., Tallahassee, for Appellees.
   Per Curiam.

Charles Davis appeals the summary judgment entered against him. Appellees argue we lack jurisdiction to consider this appeal, contending the order at issue was not a final order. While appellees are correct that an order merely denying a motion for summary judgment is not a final, appealable order, see Cardiothoracic and Vascular Surgery, P.A. v. W. Fla. Reg'l Med. Ctr. , 993 So.2d 1060, 1061 (Fla. 1st DCA 2008), the order here did more. This order concluded by saying the appellees' summary judgment was granted, and "that judgment be entered in [appellees'] favor, and that Plaintiff's Amended Complaint ... be dismissed with prejudice." This language is enough to establish finality. See Hoffman v. Hall , 817 So.2d 1057, 1058 (Fla. 1st DCA 2002) ("Where an order stated that 'final summary judgment is hereby entered in favor of' a party, the language was self-executing, did not contemplate any further judicial labor with regard to the rights of the parties and was sufficient to establish finality.").

Turning to the merits of Davis's appeal, we conclude that after appellees filed their summary judgment motion, Davis did not meet his burden of demonstrating the existence of a genuine issue of material fact. See RNR Invs. Ltd. P'ship v. Peoples First Cmty. Bank , 812 So.2d 561, 564 (Fla. 1st DCA 2002) ("Where the moving party offers evidence to support its claim of the nonexistence of a genuine issue of material fact, the nonmoving party 'must demonstrate the existence of such an issue or issues either by countervailing facts or justifiable inferences from the facts presented.' " (quoting Fleming v. Peoples First Fin. Sav. & Loan Ass'n , 667 So.2d 273, 274 (Fla. 1st DCA 1995) ) ).

AFFIRMED .

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


text:
    Jason TOLBERT, Appellant, v. LAKEVIEW LOAN SERVICING, LLC, Appellee.
    No. 1D17-2418
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied April 2, 2018
    Jason Tolbert, pro se, Appellant.
    Matthew A. Ciccio of Aldridge Pite, LLP, Delray Beach, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying a motion for telephonic hearing. The order is not a final order or an appealable, non-final order. Accordingly, Appellee's motion to dismiss the appeal is granted, and the appeal is dismissed for lack of jurisdiction.

Wetherell, Rowe, and Jay, JJ., concur.


author: Winsor, J.

text:
    Keshon Brainard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1706
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

A jury convicted Keshon Williams of attempted second-degree murder, possession of a firearm by a convicted felon, and two counts of aggravated assault with a deadly weapon. Williams received a thirty-year sentence for the attempted murder, another thirty-year sentence for the firearm possession, and shorter concurrent terms for the aggravated assaults. On appeal, Williams challenges only the aggravated assault convictions.

The events that led to Williams's convictions all took place at some sort of neighborhood bonfire. Williams was there, as was his longtime friend Elroy Howard. In a tense and profane exchange, Williams accused Howard of speaking ill of Williams's grandmother. For whatever reason, Williams then pulled out a MAK-90 semiautomatic rifle, pointed it at Howard, and fired off several shots in Howard's general direction. This was the basis for the attempted murder and firearm-possession convictions, neither of which Williams challenges.

That leaves the two aggravated assault convictions, which Williams argues are not supported by evidence. The victims of the charged assaults were two of Williams's other longtime friends, Fredrika Dixon and Gary Byrd, who were standing nearby when Williams shot at Howard. Williams argues that he never actually threatened either of them, so the trial court should have granted his acquittal motion as to the assault charges. We review this claim de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

It is true that there was no evidence that Williams pointed his gun at Dixon or Byrd. And it is true that there was no evidence that Williams explicitly threatened either of them. He never said, for example, "I'm going to kill you." Cf. Schepman v. State , 146 So.3d 1278, 1285 (Fla. 5th DCA 2014). But an aggravated assault conviction requires neither a pointed gun nor an explicit threat. Instead, it requires an "assault," see section 784.021(1)(a), Florida Statutes (2014), which is "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." § 784.011(1), Fla. Stat. (2014). So the first question is whether a reasonable jury could have concluded from the evidence that Williams intentionally and unlawfully threatened Dixon and Byrd "by word or act." In addressing this question, we consider the evidence in a light most favorable to the State. See Lukaszewski v. State , 111 So.3d 212, 213 (Fla. 1st DCA 2013).

The jury heard evidence that Williams told Howard he wanted to kill him "so bad" he could "taste it." Around the same time, Williams said of Dixon and Byrd: "If those two motherfuckers want to stand right there I'll kill your ass. I know them two bitches going to put me in prison." Williams then started shooting in several directions-not just towards Howard-striking a fence, a gate, a chair, and a house. At some point, Byrd confronted Williams, trying to convince Williams to stop. Williams responded with a racial slur and a demand that Byrd "shut the hell up." Byrd and Dixon both hid behind a vehicle until Williams rode away on his bicycle.

From these facts, we have little trouble concluding that a reasonable jury could find Williams intentionally threatened Byrd. When Williams demanded that Byrd shut up, Williams was armed with a semiautomatic rifle, had just tried to kill someone, and had just screamed a racial slur at Byrd. A jury could infer from this that the demand to "shut the hell up" was more than an everyday request-that it was an intentional threat to harm Byrd if he continued talking. Cf. Manuel v. State , 16 So.3d 833, 835 (Fla. 1st DCA 2005) ("[T]aking the evidence in a light most favorable to the State, intent can be inferred from the circumstances of the incident.").

It is a closer call as to Dixon. Williams said if Dixon wanted to stand where she stood, "I'll kill your ass," presumably referring to Howard. He also said that she "might want to move out from around here"-or something like that. And he said he knew she would put him in prison. Although we cannot discern exactly what Williams hoped to communicate, a reasonable jury could conclude from these statements-and the surrounding circumstances-that Williams intentionally threatened Dixon with harm.

Last, as to both Byrd and Dixon, a reasonable jury could find Williams had an apparent ability to do harm and that his firing the rifle and trying to kill someone would create a well-founded fear that violence was imminent. The trial court correctly denied the motion for judgment of acquittal.

AFFIRMED .

Lewis and Roberts, JJ., concur.

      One detective referred to the rifle as an AK-47, but a Florida Department of Law Enforcement firearms analyst testified it was a MAK-90.

      It also requires "a deadly weapon without intent to kill" or "an intent to commit a felony." § 784.021(1). There is no dispute that Williams had a deadly weapon.


text:
    Samuel BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3165
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Samuel Byrd, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges the denial of his Motion to Correct Illegal Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State concedes error. For the reasons provided below, we reverse and remand for resentencing.

Appellant was convicted of attempted second-degree murder with a firearm (Count I), a first-degree felony punishable by up to thirty years in prison. §§ 775.082(3)(b), 777.04(4)(c), 782.04(2), 775.087(1), Fla. Stat. (2011). He was sentenced to life in prison with a twenty-five year mandatory minimum term pursuant to section 775.087(2), Florida Statutes (2011), commonly referred to as the 10-20-Life statute. The jury made a specific finding that Appellant discharged a firearm which caused great bodily harm.

The trial court had the discretion, pursuant to section 775.087(2)(a) 3, to impose a mandatory minimum sentence anywhere within the range of twenty-five years to life for Count I, even if the selected mandatory minimum exceeded the general statutory maximum (thirty years for attempted second-degree murder). Hatten v. State , 203 So.3d 142, 145 (Fla. 2016). However, "if the trial court chooses to impose a sentence beyond the selected mandatory minimum pursuant to the 10-20-Life statute, additional statutory authority is required." Id. at 146. Here, Appellant's life sentence was not imposed pursuant to section 775.087(2), and there does not appear to be any additional statutory authority to support a sentence beyond the statutory maximum of thirty years. § 775.082(3)(b), Fla. Stat.

Accordingly, we reverse and remand for resentencing consistent with the Florida Supreme Court's ruling in Hatten .

REVERSED AND REMANDED with directions.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.

      Appellant was also convicted of armed robbery and sentenced to life in prison for that crime. That sentence is not affected by this opinion.


author: B.L. Thomas, C.J.

text:
    Dwayne PINESTRAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1730
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Dwayne Pinestraw, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
    ON MOTION FOR REHEARING EN BANC
   B.L. Thomas, C.J.

Appellant has filed a Motion for Rehearing En Banc of our per curiam affirmance, in which we upheld the denial of relief under Florida Rule of Civil Procedure 3.850. We deny Appellant's motion, but withdraw our opinion of August 24, 2017, and substitute this opinion in its place.

Following a jury trial, Appellant was convicted and sentenced to life imprisonment for first-degree murder, and two 15-year terms of imprisonment for attempted murder and shooting into an occupied building. The record reflects that one of the victims, Vincent Dennis, contacted Appellant under the pretense of purchasing a pound of marijuana from him on behalf of Dennis's friend, Vaurus Barnett. Dennis knew that Barnett was going to rob Appellant of the marijuana rather than pay for it. The parties met at a gas station, and Appellant had with him Shaquill Besst. While still seated in the car, Appellant handed over the marijuana; Barnett then punched Appellant in the face and took the gun off of Appellant's lap. Appellant stated they would "be back," and drove off.

Dennis and Barnett took the marijuana to a friend's apartment. A few hours later, while the two were still inside the apartment, the tenant's brother opened the front door and told Dennis there was a person outside wanting to buy marijuana. When Dennis got to the door, Besst stated, "That's him," and Appellant pulled a gun and started firing. Dennis shut the door, but Appellant's gunshots pierced the door and window of the apartment.

Appellant shot Dennis three times. He also shot a 22-month-old child located inside the apartment. The child received two gunshots to his chest, and died from these injuries.

Appellant fled the scene of the shooting, and later abandoned his residence, but was apprehended in Texas. Besst, having negotiated a deal to plead to second-degree murder, testified against Appellant. Besst described being present at the robbery and afterward going with Appellant to the apartment where Dennis and Barnett had retreated. He testified that only Appellant had a gun, and Appellant pulled it out of his shorts and shot at Dennis through the door and the window of the apartment. He testified that after the shooting, he and Appellant returned to Appellant's apartment, at which time Appellant called his mother to pick him up, and Appellant left with his mother.

Besides the co-defendant's testimony, the prosecution read to the jury the sworn deposition of Appellant's cousin, who was undergoing kidney dialysis for a terminal condition with a projected life expectancy of two months. The cousin stated that Appellant had come to his home in Louisiana. He stated Appellant had confessed to him that he shot at someone who had robbed him and he thought he might have "killed" this person, and he also admitted he might have "killed a baby."

In addition to this evidence, the State presented the testimony of Barnett, Dennis, and several eyewitnesses present at the shooting and during other events which inculpated Appellant in the crimes. These persons either personally knew Appellant or recognized him as the shooter and identified him when shown a photo spread. The State also presented testimony from a number of investigators and crime-scene analysts from the police department and the Florida Department of Law Enforcement who described the evidence located at the crime scene.

Appellant did not take the stand. The defense rested without presenting any testimony or evidence. The jury found Appellant guilty as charged on all three counts.

Appellant's direct appeal in this Court proceeded pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the initial brief, counsel cited the statement of judicial acts to be reviewed, and stated she could not in good faith argue trial court error or that the judgment and sentence was contrary to the weight of the evidence.

Appellant then filed his own pro se brief, arguing that the trial court erred in denying his motion for judgment of acquittal based on a lack of evidence that the murder was premeditated. He also argued that the trial court committed fundamental error by violating his right to confront his cousin, whom he asserted was actually available to testify, as evidenced by the fact that he was alive at the time Appellant wrote the brief. This Court conducted a full and independent review of the record to determine if any of Appellant's assertions had merit, or whether there were other arguable issues apparent on the face of the record. This Court concluded that the argued claims were meritless and no arguable claims were apparent, and affirmed Appellant's conviction. Pinestraw v. State , 151 So.3d 1238 (Fla. 1st DCA 2014). Thereafter, Appellant filed a petition in this Court, arguing appellate counsel had acted ineffectively by failing to challenge the sufficiency of the evidence as to premeditation. This Court denied Appellant's petition. Pinestraw v. State , 161 So.3d 1282 (Fla. 1st DCA 2015).

Appellant next filed a rule 3.800(a) motion, asserting that his life sentence is illegal pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), in which the Supreme Court held that mandatory life sentences without parole, imposed on juveniles for homicide offenses, are illegal. Because Appellant was 19 years old at the time of the commission of the offenses, he was not a juvenile; thus, Miller and its related progeny did not apply, and this Court affirmed the denial of relief. Pinestraw v. State , 178 So.3d 403 (Fla. 1st DCA 2015).

Appellant then filed a timely motion under Florida Rule of Civil Procedure 3.850. In it, he raised 18 total claims, 17 of which asserted ineffective assistance of trial counsel. The asserted claims included allegations that counsel should have: challenged the indictment, because the oath taken by the assistant state attorney who signed it had "expired," because it was required to be reviewed every four years, thus disqualifying her from presenting evidence to the grand jury to obtain an indictment; filed a pretrial motion in limine to stop the State from noting the child's age, how he died, or any reference to the child as a "child, kid, or baby," because the parties had stipulated to the child's birthdate; moved for a mistrial because the child's grandmother sobbed in the hallway outside the courtroom and some of the noise could be heard in the courtroom; and called Appellant's father to testify that he took Appellant to park his car near the father's house on a date which reflected he could not have visited his cousin on the date asserted by the cousin.

Due to pleading deficiencies, as required by Florida Rule of Criminal Procedure 3.850(f)(2), on April 4, 2016, the trial court struck the motion with leave to amend within 60 days. In its order, the court explained to Appellant that it was not required to provide legal guidance or suggestions on how to correct the pleading deficiencies, if correction was possible. The court explained that multiple allegations were "facially and/or legally insufficient. For example, [Appellant's] second ground is facially insufficient." The court provided further instruction that the motion should strictly follow the parameters of rule 3.850, and all allegations should be set forth in separate claims containing succinct facts and arguments. In its conclusion, the court told Appellant that "any allegation of prejudice in fact is 'strictly applied' and must be 'positive, specific, and factual .' Richardson v. State , 677 So.2d 43, 44 (Fla. 1st DCA 1996) (emphasis added)."

On May 18, 2016, Appellant filed a motion for an extension or enlargement of the 60 days, which was scheduled to conclude on June 3, until July 31. He stated his basis for the request was that he was seeking the assistance of a certified law clerk, and the correctional institution had more than 1000 inmates and only two certified law clerks. Notably, he did not identify any specific reason as to why he needed the assistance of a law clerk to correct the facial insufficiencies.

On July 12, 2016, the trial court denied the request, stating that the ground for the request failed to demonstrate good cause. The court cited Manning v. State , 28 So.3d 971, 973 (Fla. 2d DCA 2010), to inform Appellant that he should not appeal the order of denial, but should file the amended motion as soon as possible and allege the reason why he had untimely filed the motion. On July 22, 2016, pursuant to the "Mailbox Rule," Appellant filed the amended motion. This was 49 days past the June 3, 2016, due date. The motion was basically the same as the first motion, but Appellant used language from the memorandum of law which accompanied the original motion and inserted it into the amended motion. Appellant's motion continued to assert that the prosecutor should not have been allowed to reference the child as a "child" or "baby," which he asserted was the reason why he was convicted. Appellant asserted that counsel should not have permitted the medical examiner to testify as to how the child died. Appellant claimed that counsel haphazardly blundered through jury selection, because she was more focused on getting the trial over with in order to catch her flight three days later. Further, despite the trial court's instruction that he submit a reason to explain why the motion was filed outside of the 60 days granted to him, Appellant did not provide any such statement.

The trial court denied the motion after finding Appellant failed to demonstrate good cause as to why the motion was filed outside of the 60 days. Appellant then filed a timely motion for rehearing, arguing that he had provided the reason for the delay in his May 2016 motion for extension of time, which was the shortage of certified inmate law clerks. He corrected his prior assertion as to the number of inmates and law clerks to state there were instead 1900 inmates in the correctional institution where he was held, and three certified legal interns, not two. He protested that he had requested the extension in good faith, and not to cause any delay. The trial court denied the motion.

Appellant timely appealed, and argued in his initial brief that the trial court abused its discretion by denying the motion for extension of time. Appellant asserted that the trial court violated his due process rights by denying the motion as untimely, without first issuing a show cause order. Appellant argued that rule 3.850(f)(2), which allows for summary denial of an amended motion which continues to be facially insufficient, should require-as does subsection (n)(3), which concerns motions evincing frivolous or malicious claims submitted in bad faith or with reckless disregard for the truth-that the trial court first issue a show cause order before denying the motion. We find no merit in this claim, as subsection (n)(3) was drafted to address frivolous, malicious, and bad-faith filings, whereas subsection (f)(2) was intended to provide direction on how courts should process motions which remain facially insufficient.

As to Appellant's initial argument, Florida Rule of Criminal Procedure 3.050 provides that when a defendant is required by the rules to do an act within a specified time, "the court for good cause shown may ... order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or extended by a previous order ...." And "[g]ood cause is 'a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not ... [a] hardship on petitioner .' " Whittey v. State , 965 So.2d 362, 363 (Fla. 2d DCA 2007) (quoting State v. Boyd , 846 So.2d 458, 460 (Fla. 2003) ) (emphasis in original).

In reviewing a trial court's decision to deny an extension of time to file a rule 3.850 motion, this Court has noted that "[b]ecause the determination of good cause is based on the peculiar facts and circumstances of each case, the trial court's exercise of discretion in weighing the equities involved will be overruled only upon a showing of abuse." Criner v. State , 59 So.3d 196, 197 (Fla. 1st DCA 2011). The court in Whittey concluded that, in light of the standard for good cause and the trial court's broad discretion in denying motions for an extension of time, a need to schedule more time in the prison library to conduct research, but difficulty in doing so, did not establish good cause. 965 So.2d at 364. In reaching this conclusion, the court stressed that the deficiencies in the defendant's original postconviction motion were largely factual rather than legal, and thus the defendant failed to demonstrate why additional research was necessary to assist in restating his claims. Id.

In its analysis in Whittey , the Second District noted that this Court reached a different conclusion in Daniels v. State , 892 So.2d 526 (Fla. 1st DCA 2004), which involved the defendant's assertion that he needed to schedule time in the prison library and obtain the aid of a prison law clerk to complete his motion for rehearing. Whittey , 965 So.2d at 363. In Daniels , the defendant had filed a motion for an extension of time in which to file his motion for rehearing. Daniels , 892 So.2d at 527. The trial court denied the motion seeking the extension after expiration of the time period in which to timely file the motion for rehearing. Id. The defendant then filed the rehearing motion more than 30 days after rendition of the order denying the postconviction motion. Id. After the trial court denied the untimely filed motion for rehearing, the defendant filed a notice of appeal, more than five months after rendition of the order denying the postconviction motion. Id. In Daniels , which involved a petition for a belated appeal, we held that the trial court's belated denial of the motion for extension of time to seek rehearing thwarted the defendant's ability to timely pursue his appeal. Id. The Whittey court distinguished Daniels by noting that opinion did not discuss the trial court's broad discretion in denying a motion for an extension of time. Whittey , 965 So.2d at 364. It further noted that, unlike Daniels, Whittey did not lose his appellate rights due to the trial court's denial of the motion seeking the extension, which was timely rendered and did not thwart his ability to file a timely notice of appeal. Id. at 363.

Here, Appellant's motion for extension of time in which to file his amended postconviction motion was based upon his assertion that he had delayed access to one of the correctional institution's certified law clerks. But it is well established that a defendant does not have a constitutional entitlement to postconviction counsel. See Kokal v. State , 901 So.2d 766, 778 (Fla. 2005) ; Netting v. State , 129 So.3d 429, 432 (Fla. 1st DCA 2013) (both stating that there is no constitutional entitlement to the appointment of postconviction counsel). Thus, this ground is not legally sufficient to constitute good cause, if the case does not involve complex legal issues.

Additionally, although not required to do so, in denying Appellant's motion, the trial court provided some direction on how to address the deficiencies in Appellant's pleadings, explaining that Appellant should state succinct facts and arguments relevant to each claim. Importantly, the court instructed Appellant that "any allegation of prejudice " must be 'positive, specific, and factual .' " (First emphasis added; second emphasis in original).

In essence, the trial court commendably attempted to ensure that Appellant was given every opportunity to file an amended, adequate, and timely motion. Indeed, it is the factual assertions which fail to demonstrate that Appellant suffered prejudice: Appellant possessed knowledge of the facts concerning the proceedings, and consequently, it cannot be concluded that his delayed access to a certified legal intern constituted good cause to grant his motion for extension of time in which to file his amended motion. See Whittey , 965 So.2d at 364.

There being no cause to find the trial court abused its discretion by denying Appellant's motion for extension of time in which to file his amended motion, we affirm the trial court's order of denial.

AFFIRMED .

Wolf and Winokur, JJ., concur.

      This claim is that counsel acted ineffectively by failing to ensure no felon sat on his jury. It appears he is asserting that his counsel had a flight to catch three days later, and she was in a rush to get through the trial. He further asserts that the felons were presumed to possess prejudice against one of the parties, but does not actually assert they were prejudiced against him .


author: OSTERHAUS, J.

text:
    Horace Monroe WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-928
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   OSTERHAUS, J.

Horace Wood appeals his convictions for sexual battery on a child 12 years of age or younger and lewd or lascivious molestation on a child 12 years of age or younger. He raises six issues on appeal, one of which we find has merit and requires reversal. We otherwise affirm.

At trial, part of the State's evidence was the testimony of two other children, who testified that Mr. Wood had also sexually abused them. Mr. Wood asserted that the evidence was inadmissible, but after holding a pre-trial hearing, the court allowed the State to present the testimony.

In cases of child molestation, "evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." § 90.404(2)(b)(1), Fla. Stat.; see also Williams v. State , 110 So.2d 654 (Fla. 1959). Because of the possible danger of unfair prejudice, the "trial court's gatekeeping function is critical. In every case, the trial court must conduct the weighing required by section 90.403." McLean v. State , 934 So.2d 1248, 1261 (Fla. 2006). However, "before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence." Id. at 1262 ; Harrelson v. State , 146 So.3d 171, 173 (Fla. 1st DCA 2014).

Here, while the trial court properly performed the balancing required by § 90.403 and McLean , it failed to make the required finding that the collateral acts were proved by clear and convincing evidence. This defect requires us to reverse. Harrelson , 146 So.3d at 174 (reversing the judgment and sentence where the trial court failed to make the requisite finding that the collateral acts were proved, and declining to make such finding in the first instance). As in Harrelson , however, "we do not believe this conclusion mandates a new trial because the trial court did perform the section 90.403 'gatekeeping' analysis required under McLean ." Id.

Accordingly, we reverse Mr. Wood's conviction with directions that the trial court conduct the required clear and convincing inquiry. If the State cannot prove the collateral crimes by clear and convincing evidence, then the trial court shall hold a new trial excluding the evidence of the collateral crime or crimes that were not proved. Id.

REVERSED and REMANDED .

Lewis and Makar, JJ., concur.


author: COHEN, C.J.

text:
    S.M.K., Appellant, v. S.L.E., C.C. and M.C., Appellee.
    Case No. 5D17-1751
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    William S. Graessle and Jonathan W. Graessle, of William S. Graessle, P.A., Jacksonville, and J. Stephen Alexander, of Alexander Law Firm, LLC, St. Augustine, for Appellant.
    Bryan M. Callaway, of Robert P. Eshelman, P.A., Jacksonville, for Appellee, S.L.E.
    No Appearance for C.C. and M.C.
   COHEN, C.J.

This case involves a natural parent's constitutional right to raise his own child, even if that determination is not necessarily in the best interest of the child. For the reasons set forth below, we reverse the order terminating S.M.K's ("Father") parental rights, which deemed Father's consent unnecessary for the relative adoption of O.R.K. ("Child"), pursuant to section 63.062(2), Florida Statutes (2016). The trial court found that Father had abandoned Child. During the proceedings, Father's knowledge of Child's whereabouts was a critical issue in the court's determination.

In September 2015, S.L.E. ("Mother") gave birth to Child in Florida. There is no disagreement regarding Father's paternity. Soon after Child's birth, the family traveled to Indiana. The reason for the trip was in dispute, although both parties acknowledged that Father was renovating a house in Indiana. At one point, Mother testified that she believed the trip was a short term visit. At another point, she testified that the three were planning to move into the house, but when they arrived the house was uninhabitable. Father testified that the trip was intended to be a permanent move.

Mother claimed that a few weeks after arriving in Indiana, Father stole her car and "went on a crack bender." In late November 2015, Mother returned to Florida with Child without Father's consent. Upon returning to Florida, Mother and Child temporarily lived with M.C. ("Aunt") and C.C. ("Uncle") in St. Augustine. Mother left with Child in January 2016 and returned to her place of residence, which was a boat in Titusville. Within a week, Mother returned Child to Aunt because she was unable to care for Child herself.

Father remained in contact with Mother subsequent to her departure, and in December 2015, followed Mother to Florida, residing in the Bradenton area with his sister. Father arranged a meeting with Mother in Daytona Beach and drove there from Bradenton, but minutes before the meeting and despite knowing Father had driven from Bradenton, Mother informed him that she would not attend.

In February 2016, Father requested that the Manatee County Sheriff's Department perform a wellness check on Child. Father provided law enforcement Aunt and Uncle's address as a possible location. He did not hear back from law enforcement on the results of the check, nor did he inquire.

While Mother claimed she communicated with Father through texts and that Father knew Child was living with Aunt and Uncle, Mother failed to produce any of the text messages to substantiate that claim. Father maintained that he did not know the whereabouts of Child: Child could have been at Aunt's home, at maternal grandmother's home, with Mother on her boat, or wherever else Mother was residing.

Mother also claimed that Father did not financially support her during their relationship or her pregnancy, maintaining that Father only marginally assisted with Child's care while in Indiana. Mother described her relationship with Father as "abusive, tumultuous," and testified that the police were called several times during their relationship. The volatility of the relationship was echoed by Aunt, who described Father as abusive and threatening toward Mother. Mother also testified that Father has four other children, all of whom he has abandoned.

In May 2016, Father filed a complaint to establish paternity of Child in St. Augustine. He listed Mother as respondent and Aunt and Uncle as interested parties. As of the filing date of the complaint, Child was less than one year old and residing with Aunt and Uncle. Mother and Aunt opposed the complaint, claiming that Father was abusive, unemployed, lacked a permanent residence in Florida or transportation, and had failed to financially support Child.

The trial court entered a final judgment of paternity finding Father to be Child's biological father and reserving jurisdiction to decide timesharing, child support, and related issues. The court later granted Father visitation with Child.

Aunt and Uncle filed a joint petition to terminate parental rights and for the relative adoption of Child, which sought to deem Father's consent to the adoption unnecessary. Following an evidentiary hearing, the court granted the petition, deeming Father's consent unnecessary pursuant to section 63.062(2), Florida Statutes (2016), and finding that Father abandoned Child.

Our review of the trial court's order is limited to determining whether there was clear and convincing evidence that Father abandoned Child. See Hinkle v. Lindsey, 424 So.2d 983, 985 (Fla. 5th DCA 1983). In deeming Father's consent unnecessary, the trial court concluded that "Mother did interfere with the Father's timesharing but in response the Father at best, made a lackadaisical halfhearted effort to see his child and made little or no effort to support his child, until Court ordered [Father] to do so." The court's order focused primarily upon Father's lack of financial support of Child to conclude that Father failed to demonstrate a "full commitment" to being a parent to Child.

Section 63.062(1) provides that the consent of certain persons is required before an adoption petition may be granted. See § 63.062(1), Fla. Stat. (2016). Nonetheless, a finding of abandonment under section 63.089(3) waives the consent requirement of any persons under section 63.062(1). See id. § 63.089(3)-(4); see also J.C.J. v. Heart of Adoptions, Inc., 989 So.2d 32, 35 (Fla. 2d DCA 2008) ("Abandonment waives the biological father's right to oppose adoption."). Section 63.032(1), Florida Statutes (2016), defines "abandoned" as follows:

(1) "Abandoned" means a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child's mother during her pregnancy.

In addition, section 63.089(4) provides that a finding of abandonment under section 63.032(1) must be supported by clear and convincing evidence and identifies additional factors for the court's consideration:

A finding of abandonment may also be based upon emotional abuse or a refusal to provide reasonable financial support, when able, to a birth mother during her pregnancy or on whether the person alleged to have abandoned the child, while being able, failed to establish contact with the child or accept responsibility for the child's welfare.
(a) In making a determination of abandonment at a hearing for termination of parental rights under this chapter, the court shall consider, among other relevant factors not inconsistent with this section:
1. Whether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or the unborn child;
2. Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;
3. Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment; and
4. Whether the amount of support provided or medical expenses paid was appropriate, taking into consideration the needs of the child and relative means and resources available to the person alleged to have abandoned the child.

§ 63.089(4), Fla. Stat. (2016). Here, the trial court made no specific findings under sections 63.032(1) or 63.089(4). Furthermore, it disregarded the evidence that Father did not know with certainty where Child was residing. Father would have no way of knowing either where or to whom to send financial support. When Mother left Indiana, she took Child without Father's consent and without providing Father an address where she and Child would be living.

Father's actions subsequent to Mother's departure do not constitute clear and convincing evidence of abandonment. Father filed a paternity action in Indiana in November 2015. Father then came to Florida in December 2015 and arranged the meeting with Mother in Daytona Beach, just weeks after her return to Florida. After the failed meeting, Father requested a wellness check on Child in February 2016. Father filed a paternity action in Florida in May 2016. While the complaint alleged that Child resided with Aunt and Uncle, it is not clear whether Father knew that with certainty. His efforts to call Aunt were unsuccessful, as was his attempt to locate Child by going to Aunt and Uncle's home. His efforts to obtain information from Mother as to Child's whereabouts were also unsuccessful. The first time Father definitively knew Child's location was when he was served with Aunt and Uncle's petition to terminate parental rights and for relative adoption.

Under these circumstances, the trial court misplaced reliance on Father's failure to provide past support for Child in concluding that he abandoned Child. The failure to pay support is a factor to consider in determining whether a party has abandoned a child, but it alone is not conclusive to support a finding of abandonment. See M.A.F. v. E.J.S., 917 So.2d 236, 237 (Fla. 5th DCA 2005). Here, the court primarily focused on Father's actions prior to being adjudicated Child's father in June 2016. Since December 2016, when the court ordered Father to provide support, he complied with that order and provided support through the time of the termination hearing in April 2017. The court granted Aunt and Uncle's request that Father be drug tested and he passed every test administered. Since Father had been living in Florida, he had not missed any visitation with Child.

The trial court's ruling is understandable. If the legal standard were the best interest of the child, we would affirm that determination. However, that is not the legal standard. Rather, there must be clear and convincing evidence that Father's actions "manifested a settled purpose to forego his parental rights." See Hinkle, 424 So.2d at 986. Termination of Father's rights can only be accomplished through "strict compliance with the law." See id. In this case, the record does not support a finding, by clear and convincing evidence, that Father's actions "manifested a settled purpose to forego his parental rights." See id. Instead, the record "supports the conclusion that he was attempting to assert those rights." See id. Therefore, we reverse the order terminating Father's parental rights.

REVERSED AND REMANDED.

EVANDER and WALLIS, JJ., concur.

      Pictures of the Indiana property admitted into evidence supported Mother's assessment of the living conditions.

      Mother consented to the proposed relative adoption of Child by Aunt and Uncle, has had minimal contact with Child since leaving Child with Aunt and Uncle, and has not financially supported Child.

      The trial court took judicial notice of Father's previous child support case, which indicated that he had been found in contempt of court for failing to support three children from a previous marriage, had been incarcerated twice for failure to pay child support, and was over $330,000 in arrears in alimony and child support payments.

      Father had previously filed a paternity action in Indiana in November 2015, which was dismissed for unknown reasons.

      Aunt and Uncle have been the de facto parents of Child since at least January 2016. The record indicates that they have provided Child a stable and loving home.

      Both parents contended that the other had substance abuse issues.


text:
    Paul WEDMORE, Appellant, v. Kevin Paul O'CONNOR and Fran O'Connor, Appellees.
    Case No. 2D17-2295
    District Court of Appeal of Florida, Second District.
    Opinion filed March 2, 2018
    Jeffrey D. Jensen and T.R. Unice, Jr. of Unice Salzman Jensen, P.A., Trinity, for Appellant.
    Michael C. Addison of Addison Law Office, P.A., Tampa, for Appellee Kevin Paul O'Connor.
    No appearance, for remaining Appellee.
   PER CURIAM.

In the order on appeal, the trial court awarded Kevin and Fran O'Connor attorney's fees and costs pursuant to an offer of judgment made under section 768.79, Florida Statutes (2013). We affirm the award of attorney's fees without comment. We reverse the costs award in two respects. First, as the O'Connors correctly concede, the trial court made a mistake by awarding costs for expert witness fees absent testimony concerning the reasonableness and necessity of the fee-which it was required to take upon Mr. Wedmore's timely objection. See Field Club, Inc. v. Alario, 180 So.3d 1138, 1141 (Fla. 2d DCA 2015). Second, the order incorrectly assessed costs for medical record copies at a rate in excess of the reasonable rate set by Florida Administrative Code Rule 64B8-10.003(2). We remand with instructions for the trial court to (1) as the O'Connors suggest, deduct the expert witness fees from the award of costs, see Alario, 180 So.3d at 1142, and (2) determine a reasonable amount of costs for copies of medical records and include only those reasonable costs in the cost award, see Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998).

Affirmed in part, reversed in part, and remanded with instructions.

LaROSE, C.J., and SILBERMAN and SALARIO, JJ., Concur.


author: KELLY, Judge.

text:
    James M. HEYWARD, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    Case No. 2D16-339
    District Court of Appeal of Florida, Second District.
    Opinion filed March 2, 2018
    Michael P. Fuino of Weidner Law, P.A., St. Petersburg, for Appellant.
    Kimberly S. Mello and Robert Schneider of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Ft. Lauderdale, for Appellee.
   KELLY, Judge.

James Heyward appeals the final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A. Heyward raises a variety of issues in this appeal, none of which provide a basis to reverse the final judgment. We write only to address his contention that Wells Fargo's evidence was insufficient to prove it had standing.

In August 2007 Heyward executed and delivered a note and mortgage to World Savings Bank, F.S.B. The note was payable to "World Savings Bank, FSB, a Federal Savings Bank, its successors and/or assignees, or anyone to whom this note is transferred." In December 2007, World Savings amended its charter and bylaws to change its name to Wachovia Mortgage, F.S.B. Heyward later defaulted on the note, so in early 2009 Wachovia sued to foreclose. Later that year, Wachovia was converted into a national bank with the name Wells Fargo Bank Southwest, National Association, which then merged simultaneously into Wells Fargo Bank, N.A. Because of the merger, Wachovia had Wells Fargo substituted as Plaintiff in the foreclosure action. In the operative complaint, Wells Fargo alleges it "holds [the] Note and Mortgage by virtue of a merger or chain of mergers with and/or name change of the original lender."

Wells Fargo's evidence at trial consisted of a copy of the original note and mortgage, the originals of which had been filed with the court, the testimony of a Wells Fargo loan verification analyst, and certifications from the Office of the Comptroller of the Currency certifying that World Bank had changed its name to Wachovia in 2007 and that Wachovia had merged into Wells Fargo in 2009. The note bore no endorsements nor were any assignments attached to the note.

Heyward first contends Wells Fargo did not prove Wachovia had standing when it filed to foreclose "because there was no evidence that Wachovia acquired the Homeowner's note and mortgage via merger or that it possessed the original note on the day the lawsuit was filed." This argument is nonsensical because it rests on the fallacy that World Bank and Wachovia merged and therefore, the note must have changed hands. It ignores the actual evidence introduced at trial. The evidence showed that after Heyward executed and delivered the note to World Savings Bank, World Savings Bank changed its name to Wachovia. The note along with the certificate showing World Bank changed its name to Wachovia proved that Wachovia was the originating lender and, thus, the owner and holder of the note and mortgage when it filed to foreclose in 2009. See Wachovia Mortg., F.S.B. v. Goodwill, 199 So.3d 346, 347 (Fla. 4th DCA 2016) ; see also Lewis v. J.P. Morgan Chase Bank, 138 So.3d 1212, 1213 (Fla. 4th DCA 2014).

Continuing in the same vein, Heyward argues Wells Fargo did not prove standing at the time of trial. His argument, however, is that Wells Fargo was required to prove its entitlement to enforce the note under section 673.3091, Florida Statutes (2014), which provides for the enforcement of lost, destroyed, or stolen instruments. The inapplicability of this statute is obvious. No evidence suggests the note was lost, destroyed, or stolen. Rather, it shows that Wachovia merged into Wells Fargo. As a result of this merger, Wells Fargo became Wachovia's successor and the owner and holder of the note by operation of law. See 12 U.S.C. § 215a(e) (2012) (providing that when a national bank merges with another banking entity, the "receiving association shall be deemed to be the same corporation as each bank or banking association participating in the merger" and that "[a]ll rights, franchises, and interests of the individual merging banks or banking associations in and to every type of property (real, personal, and mixed) and choses in action shall be transferred to and vested in the receiving association by virtue of such merger without any deed or other transfer"); Goodwill, 199 So.3d at 348. The testimony of Wells Fargo's loan analyst confirmed that Wells Fargo, Wachovia, and World Bank were the same entity.

In conclusion, Heyward's standing arguments fail because, among other things, he bases them entirely on the notion that his note changed hands in some fashion after he delivered it to World Savings Bank in 2007. On the contrary, the evidence establishes that the note was never endorsed, assigned, or transferred and that from the time Heyward executed it in 2007 until the time of trial, the note continued to be held by the original lender despite the name change and the merger. Accordingly, we affirm.

Affirmed.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      In 2006 World Bank's parent company merged with Wachovia. The name change to Wachovia was part of the integration procedures the banks went through after the merger.


text:
    Michael William BOND, Appellant, v. Lauren Beth BOND, Appellee.
    Case No. 2D17-2312
    District Court of Appeal of Florida, Second District.
    Opinion filed March 2, 2018
    Michael W. Bond, pro se.
    Linda Fried of Fried & Fried, P.A., Fort Myers, for Appellee.
   PER CURIAM.

Michael Bond, the husband, appeals the circuit court's order awarding Lauren Bond, the wife, temporary appellate attorney's fees. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iii). The wife concedes error in light of our prior decision in Bond v. Bond, 224 So.3d 874 (Fla. 2d DCA 2017). We accept the wife's concession of error, reverse the order awarding temporary appellate attorney's fees, and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

CASANUEVA, SLEET, and LUCAS, JJ., Concur.


text:
    Nicholas Devon MCBRIDE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2628
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Nicholas McBride seeks review of an order revoking his probation in two separate cases and the corresponding sentences.

We affirm in all respects. We note that the revocation order erroneously states that the sentence in count four in case 2013-CF-3593 is consecutive, as opposed to concurrent, to the sentence in count two in that case. However, this scrivener's error has not been preserved for review, and it appears that McBride will not be prejudiced by this error as the actual written sentence is correct.

Affirmed.

NORTHCUTT, SILBERMAN, and MORRIS, JJ., Concur.


text:
    Richard EMANUEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2467
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 6, 2018
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Vennisee v. State, 42 Fla. L. Weekly D2170, D2172-73, 235 So.3d 947, ---- - ----, 2017 WL 4529658 (Fla. 3d DCA Oct. 11, 2017) ; Rogers v. State, 223 So.3d 281, 282 (Fla. 4th DCA 2017) ; Currie v. State, 219 So.3d 960, 960-61 (Fla. 1st DCA 2017).

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


text:
    TR & SNF, INC. d/b/a The Nursing Center at University Village, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-3596
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Philip J. Padovano of Brannock & Humphries, Tampa, and M. Stephen Turner and John F. Loar of Broad and Cassel, Tallahassee, for Appellant.
    Tracy Cooper George, Chief Appellate Counsel, Tallahassee, for Appellee.
   Per Curiam.

In this administrative appeal, a nursing home seeks review of the final order revoking its license for violating section 408.810(8), Florida Statutes (2014), by "not timely provid[ing] the requested proof" of its financial ability to operate to the Agency for Health Care Administration. We summarily reject the nursing home's argument that the Agency did not have grounds to request the proof, but we agree with the nursing home that the Agency did not have the authority to revoke its license solely because it did not timely provide the requested proof.

Section 408.810(8) requires the licensee to provide proof of its financial ability to operate upon request of the Agency, but the statute does not establish a timeframe within which the proof must be provided. Thus, while the failure to provide the requested proof at all would be a violation of the statute that could justify a license revocation, the mere failure to timely provide it is not. See Ocampo v. Dep't of Health , 806 So.2d 633, 634-35 (Fla. 1st DCA 2002) (explaining that disciplinary statutes must be strictly construed with any ambiguity interpreted in favor of the licensee). The fact that an Agency employee sent the nursing home a letter with a deadline to provide the requested proof is immaterial because, under the penalty statute applicable to this case, the license revocation had to be based on a violation of a statute or a rule. See § 400.121(1)(a), Fla. Stat. (2014) (authorizing the Agency to revoke a license for a violation of "any provision of ... part II of chapter 408, or applicable rules"); see also State ex rel. Volusia Jai-Alai, Inc. v. Bd. of Bus. Reg. , 304 So.2d 473, 476 (Fla. 1st DCA 1974) ("It has long been held that an administrative agency's authority to suspend or revoke licenses is restricted to the grounds enumerated in the statute.").

Accordingly, the final order is REVERSED.

Wetherell, Ray, and Makar, JJ., concur.

      At the time the administrative complaint was filed, the nursing home had not provided the requested proof to the Agency. However, the nursing home provided the proof about a month after the complaint was filed, and once it did so, the focus of the proceeding inexplicably did not shift to determining whether the proof provided by the nursing home was sufficient to establish its financial ability to operate. Indeed, although the record suggests that the Agency found the proof insufficient, the administrative law judge made no findings on the issue because, as he stated in the recommended order, "[t]he Agency chose not to offer testimony ... about an analysis of the document provided by [the nursing home]."


text:
    Rose SZYMANSKI, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-210
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018
    Howard L. Dimmig, II, Public Defender, and Caroline Joan Picart, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Rose Szymanski appeals her judgment and sentences for battery on a law enforcement officer, possession of cannabis, and possession of drug paraphernalia. We affirm in all respects but one. Ms. Szymanski argues-and the State correctly concedes-that the trial court erred by explicitly relying upon her lack of remorse in imposing her sentences. Our precedents require that we reverse Ms. Szymanski's sentences and remand the case to the trial court with instructions for Ms. Szymanski to be resentenced before a different judge. See Williams v. State, 164 So.3d 739, 740-41 (Fla. 2d DCA 2015) ; Brown v. State, 27 So.3d 181, 183 (Fla. 2d DCA 2010).

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA, CRENSHAW, and SALARIO, JJ., Concur.


text:
    Dominic Alan DIMAIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0089
    District Court of Appeal of Florida, First District.
    March 13, 2018
    Dominic Alan DiMaio, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Logan v. State , 846 So.2d 472 (Fla. 2003).

Rowe, Ray, and Makar, JJ., concur.


text:
    D.W., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-456
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018
    Robert Wesley, Public Defender, and Brooke Tharpe, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

D.W. petitions this Court for a writ of mandamus compelling the trial court to toll speedy trial, stay all proceedings, and appoint two experts to evaluate his competency pursuant to Florida Rule of Juvenile Procedure 8.095 and section 985.19(1), Florida Statutes (2016). We sua sponte treat this matter as a petition for certiorari, find the trial court's order departs from the essential requirements of law, and grant the petition.

D.W.'s counsel filed a motion to determine competency on February 7, 2018. The trial court denied the motion without elaboration. The motion satisfies the requirements of rule 8.095(a)(1) and section 985.19, and should have been granted. Hence, we quash the order denying the motion to determine competency. On remand, the trial court shall stay the proceedings and order an examination in compliance with rule 8.095 and section 985.19.

PETITION GRANTED; ORDER QUASHED.

ORFINGER, BERGER and WALLIS, JJ., concur.


author: Kuntz, J. Gross, J., dissenting.

text:
    USAA GENERAL INDEMNITY COMPANY, Appellant, v. William J. GOGAN, M.D., a/a/o Tara Ricks, Appellee.
    No. 4D16-3313
    District Court of Appeal of Florida, Fourth District.
    March 14, 2018
    Douglas H. Stein of Association Law Group, P.L., Miami, for appellant.
    Andrew A. Harris and Nichole Segal of Burlington & Rockenbach, P.A., West Palm Beach, and Barry Aronin of LaBovick Law Group, Palm Beach Gardens, for appellee.
   Kuntz, J.

We are presented with the following question, certified by the county court, to be of great public importance:

IN A PERSONAL INJURY PROTECTION MATTER, IS AN INSURER REQUIRED TO APPLY THE DEDUCTIBLE TO THE TOTAL BILLED AMOUNT, OR TO THE TOTAL BILL AFTER SAID BILL IS REDUCED BY ANY APPLICABLE STATUTORY REDUCTION(S) AS CONTAINED IN FLORIDA STATUTE SECTION 627.736(5)(a)(1) ?

We rephrase the certified question as follows:

PURSUANT TO SECTIONS 627.736 AND 627.739, FLORIDA STATUTES (2013), IS AN INSURER REQUIRED TO APPLY A POLICY DEDUCTIBLE TO THE TOTAL AMOUNT OF A PROVIDER'S INVOICES TO AN INSURED PRIOR TO APPLYING ANY FEE SCHEDULE FOUND IN § 627.736, FLA. STAT.?

For the reasons explained in our opinion in State Farm Mutual Automobile Insurance Co. v. Care Wellness Center, LLC a/a/o Bardon-Diaz , No. 4D16-2254, --- So.3d ----, 2018 WL 1315026 (Fla. 4th DCA Mar. 14, 2018), also issued today, we answer the rephrased certified question in the negative, reverse the county court's summary judgment, and remand for further proceedings consistent with our opinion. We also certify conflict with Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Jonathan Parent , 236 So.3d 1183, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018).

Reversed and remanded; conflict certified.

Forst, J., concurs.

Gross, J., dissents with opinion.

Gross, J., dissenting.

I agree with the result reached by the Fifth District in Progressive Select Ins. Co. v. Florida Hospital Med. Ctr. a/a/o Jonathan Parent , No. 5D16-2333, 236 So.3d 1183, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018) (hereinafter Florida Hospital a/a/o Parent ). Applying the plain language of the PIP statute in light of its history, leads to the conclusion that insurers cannot use the Medicare fee schedule to reduce providers' bills to the insured before the deductible has been satisfied.

The issue in this case is whether section 627.739(2), Florida Statutes (2010), which mandates that an insured's deductible be applied to "100 percent of the expenses and losses described in section 627.736," allows an insurer to (1) reduce a provider's claim to an amount allowed under a fee schedule found at section 627.736(5)(a) 2, Florida Statutes (i.e., "200 percent of the applicable Medicare Part B fee schedule") and (2) apply the insured's unsatisfied deductible to that lower amount.

Under the PIP statute, medical claims following a motor vehicle accident are processed by insurers in three distinct phases: The Deductible Phase; the Benefits Phase; and the Post-Benefits Phase. The following chart demonstrates these phases:

Deductible Phase $250, $500, or $1,000 Benefits Phase Insured Pays until $10,000 Post-Benefits Phase deductible reached Insurer Pays (80%) Max. Policy Limits Reached Insurer applies Insured Pays co-pay deductible to: "100% of (20%) Insured pays 100% expenses & losses described in § 627.736"

The insurer seeks to use the fee schedule to reduce providers' bills during the Deductible Phase. The provider argues, and the lower court agreed, that the insurer may use the fee schedule to reduce providers' bills only during the Benefits Phase, or when the insurer is actually paying the provider.

1. RULES OF STATUTORY CONSTRUCTION

"The first principle of statutory construction is that legislative intent must be determined primarily from the language of the statute." Golf Channel v. Jenkins , 752 So.2d 561, 564 (Fla. 2000). If a statute is unambiguous, it must be given its plain and obvious meaning. Kingsway Amigo Ins. Co. v. Ocean Health, Inc. , 63 So.3d 63, 66 (Fla. 4th DCA 2011). Where a statute is ambiguous and statutory construction is required, the legislative intent "is the polestar that guides" a court's inquiry. Blish v. Atlanta Cas. Co. , 736 So.2d 1151, 1155 (Fla. 1999).

In matters requiring statutory construction, courts always seek to effectuate legislative intent. Where the words selected by the Legislature are clear and unambiguous, however, judicial interpretation is not appropriate to displace the expressed intent ... It is neither the function nor prerogative of the courts to speculate on constructions more or less reasonable, when the language itself conveys an unequivocal meaning.

Heredia v. Allstate Ins. Co. , 358 So.2d 1353, 1354-55 (Fla. 1978) (internal case citations omitted).

"Where possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act."

Woodgate Dev. Corp. v. Hamilton Inv. Trust , 351 So.2d 14, 16 (Fla. 1977). The Florida Motor Vehicle No-Fault Law should be liberally construed with any ambiguity interpreted "to effectuate the legislative purpose of providing broad PIP coverage for Florida motorists." Malu v. Security Nat. Ins. Co. , 898 So.2d 69, 74 (Fla. 2005) ; see generally Derius v. Allstate Indem. Co. , 723 So.2d 271, 274 (Fla. 4th DCA 1998). However, if the Act is not vague or ambiguous, it should not be construed in such a way as to broaden coverage. Govan v. Int'l Bankers Ins. Co. , 521 So.2d 1086, 1088 (Fla. 1988).

Two statutes are at issue here: section 627.739, Florida Statutes (the "Deductible Statute") and section 627.736, Florida Statutes (the "PIP Statute").

The Deductible Statute cross-references the PIP Statute. "[A] cross-reference to a specific statute incorporates the language of the referenced statute as it existed at the time the reference was enacted, unaffected by any subsequent amendments to or repeal of the incorporated statute." Preface to Florida Statutes, at viii; see also Overstreet v. Blum , 227 So.2d 197, 198 (Fla. 1969) ("the adoption of another statute by specific reference takes the second statute as it then exists, unaffected by any subsequent amendment or repeal unless a contrary intent clearly appears.").

The Deductible Statute's cross reference to the PIP Statute was inserted in 2003 and revived and reenacted in 2007 (effective 2008). Ch. 2007-324, § 15, Laws of Fla. Therefore, under Overstreet , this court should look to the 2007 version of the PIP Statute to determine what the Legislature intended when it directed that the deductible be applied to "expenses and losses described in section 627.736."

2. THE DEDUCTIBLE STATUTE ( § 627.739 )

"A 'deductible' is 'a clause in an insurance policy that relieves the insurer of responsibility for an initial specified loss of the kind insured against.' " General Star Indem. Co. v. West Florida Village Inn, Inc. , 874 So.2d 26, 33 (Fla. 2d DCA 2004) (quoting Merriam-Webster's Collegiate Dictionary 471 (deluxe ed. 1998) ). "[T]he functional purpose of a deductible, which is frequently referred to as self-insurance, is to alter the point at which an insurance company's obligation to pay will ripen." Int'l Bankers Ins. Co. v. Arnone , 552 So.2d 908, 911 (Fla. 1989). The deductible amount is chosen by the insured and the insured is responsible for payment of claims until the deductible is satisfied. Mercury Ins. Co. v. Emergency Physicians of Cent. , 182 So.3d 661, 667 (Fla. 5th DCA 2015). Once the deductible is met, the insured's right to access PIP benefits is "unlocked." Id.

Section 627.739 provides:

(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736.
After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1).

The focus in this case is the second sentence:

The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736.

Particularly, what are the "expenses and losses described in section 627.736" and why did the Legislature specify that the deductible amount must apply to "100 percent" of those expenses and losses.

A second consideration is the third sentence:

After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1).

The third sentence differentiates the "expenses and losses described in section 626.736" from the "total benefits described in section 627.636(1)." The term "benefits" refers to "the payment of medical bills" by the insurer. U.S. Sec. Ins. Co. v. Silva , 693 So.2d 593, 595 (Fla. 3d DCA 1997).

The second and third sentences were placed in the statute in 2003 after the Florida Supreme Court found that the previous version of the statute allowed insurers to reduce an insured's benefits by the amount of the deductible. Arnone , 552 So.2d at 908. The following table compares the pre-2003 and post-2003 versions of the Deductible Statute:

Deductible Statute (§ 627.739(2)) Pre-2003 Version Post-2003 Version Insurers shall offer to each applicant and to each Insurers shall offer to each policyholder ... deductibles, in applicant and to each amounts of $250, $500, and policyholder ... deductibles, in $1,000. The deductible amount amounts of $250, $500, $1,000 must be applied to 100 percent and $2,000, such amount to be of the expenses and losses deducted from the benefits described in s. 627.736. After otherwise due each person the deductible is met, each subject to the deduction. insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1).

Ch. 2003-411, § 9, at 31, Laws of Fla.

The Legislative History explains the change:

The bill changes the calculation of the PIP deductible to require that it must be applied to 100 percent of medical expenses, rather than to the current 80 percent of expenses that PIP pays. It also changes the calculation of the PIP deductible so that the full $10,000 in PIP benefits can be obtained. This latter provision has the effect of requiring PIP to pay more than it does currently if a deductible is elected.

Senate Staff Analysis and Economic Impact Statement, CS/SB 32-A, May 15, 2003 (emphasis added). The Legislature thus clarified the statute to prevent an insurer from amplifying the effect of a deductible by injecting a reimbursement limitation into the calculation, a tactic similar to what the insurer urges in this case. As the Fifth District explained:

The obvious intent of the Legislature was to replace the term "benefits otherwise due" with "expenses and losses" in determining what the deductible would be applied to, moving the term "benefits" to the next sentence, which discusses the insurer's liability after the deductible is satisfied. Thus, the current version of the statute provides a clear distinction between "expenses and losses" for purposes of applying the deductible and "benefits" that are due to the insured after the reimbursement limitations are applied.

Florida Hospital a/a/o Parent , 236 So.3d at 1188-89, 2018 WL 792012 at *5.

3. THE PIP STATUTE ( § 627.736 )

Section 627.736 is entitled "Required personal injury protection benefits; exclusions; priority; claims." The statutory framework provides:

(1) REQUIRED BENEFITS.-Every insurance policy ... shall provide personal injury protection to the named insured ... to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, ... as follows:
(a) Medical benefits.-Eighty percent of all reasonable expenses for medically necessary medical ... services....
(b) Disability benefits....
(c) Death benefits....
(2) AUTHORIZED EXCLUSIONS....
(3) INSURED'S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN TORT CLAIMS....
(4) BENEFITS: WHEN DUE....
(5) CHARGES FOR TREATMENT OF INJURED PERSONS.-
(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered...
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
* * *
f. For all other medical services, supplies, and care, 200 percent of the applicable Medicare Part B fee schedule....
* * *
5. If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured's personal injury protection coverage due to the co-insurance amount or maximum policy limits....

§ 627.736(1) - (5), Fla. Stat. (2007) ; Ch. 2007-324, §§ 13, 20, 23, Laws of Fla. (effective Jan. 1, 2008).

Subsection 627.736(1) requires an insurer to provide a minimum of $10,000 in "required benefits" to cover expenses and losses an insured sustains as a result of bodily injury sustained in a car accident. § 627.736(1)(a)-(c).

Subsection 627.736(5) covers medical "charges." Sub-paragraph (5)(a)1. mandates that a medical provider charge an "insurer and injured party" "only a reasonable amount" "for a bodily injury covered by personal injury protection." Subparagraph (5)(a)2. permits "the insurer" to "limit reimbursement" to a provider to a "schedule of maximum charges."

The provision in the PIP statute authorizing insurers to limit reimbursements for medical services rendered pursuant to the Medicare fee schedules, which is at issue in this case, has its genesis in a series of changes the Legislature made to the PIP statute, beginning in 2001, that were designed to regulate the amount providers could charge PIP insurers and policyholders for the medically necessary services PIP insurers are required to reimburse.

Geico General Ins. Co. v. Virtual Imaging Srvs., Inc. , 141 So.3d 147, 153 (Fla. 2013).

Under section 627.736, Florida Statutes (2008), the PIP statute, an insurer may elect to calculate medical reimbursements in one of two ways: (a) it can pay a reasonable amount consistent with subsection (5)(a)1. of the statute; or (b) it can elect to apply the Medicare fee schedules, as set forth in Subsection (5)(a)2. of the statute.

Northwest Ctr. for Integrative Med. & Rehab., Inc. v. State Farm Mut. Auto. Ins. Co. , 214 So.3d 679, 682 (Fla. 4th DCA 2017) ; see also Kingsway , 63 So.3d at 67 (under section 627.736, an insurer may "choose between two different payment calculation methodology options."). "Reimbursements made under section 627.736(5)(a) 2. satisfy the PIP statute's reasonable medical expenses coverage mandate." Allstate v. Orthopedic Specialists , 212 So.3d 973, 976 (Fla. 2017). The PIP coverage "mandate" is that the insurer "shall" reimburse eighty percent of reasonable expenses for medically necessary services." Id. (quoting Virtual Imaging , 141 So.3d at 155 ).

Subparagraph 627.736(5)(a)5. prevents "balance billing," prohibiting the provider from billing or attempting to collect from the insured "any amount exceeding the payment made from the insurer." Green v. State Farm Mutual Auto. Ins. Co. , 225 So.3d 229, 231 (Fla. 4th DCA 2017). If the provider's charge exceeds the statutory "maximum charge," and the insurer "limits payment" to the statutory "maximum charge" allowed by the fee schedule, even if the provider's charge is reasonable, the provider "may not bill or attempt to collect from the insured any amount in excess of such [fee schedule] limits." § 627.736(5)(a) 5.

4. READING THE PIP AND DEDUCTIBLE STATUTES TOGETHER

Under the Deductible Statute, the insurer must apply the deductible "to 100 percent of the expenses and losses described in § 627.736." After the deductible is exhausted, the insured "is eligible to receive up to $10,000 in total benefits described in § 627.736(1)."

As used in the statute, the term "expenses and losses" is something different from "benefits" required by law. Where it is applicable, the Medicare Fee Schedule is a limitation on benefits, not on a provider's charge-an "expense" or "loss" that the insured becomes obligated to pay before the deductible is satisfied.

While the phrase "expenses and losses" is not defined in the PIP Statute, the statute uses the terms to describe actual losses realized by the insured. Subsection 627.736(1) requires insurers to cover insureds for "loss sustained by [the insured] as a result of bodily injury." Sub-parts (a) and (b) to subsection (1) discuss medical expenses; loss of income and earning capacity; and "expenses reasonably incurred" in obtaining household services for chores the insured would ordinarily have performed. § 627.736(1)(a)-(b).

The PIP Statute includes three types of "benefits"-Medical Benefits; Disability Benefits; and Death Benefits. Medical Benefits payable by the insurer are a percentage of reasonable medical expenses. § 627.736(1)(a) (requiring medical benefits to be paid at 80% of expenses). Disability Benefits payable by the insurer are a percentage of loss of income and earning capacity and expenses incurred to reimburse the insured for necessary services. § 627.736(1)(b) (requiring disability benefits to be paid at 60% of loss and expenses). "[T]he 80% and 60% methodologies in section 627.736(1) are intended to limit reimbursements in order to establish benefits. They are not intended to describe the application of the deductible under the 100% methodology provided in section 627.739(2)." Florida Hospital a/a/o Parent , 236 So.3d at 1186-87, 2018 WL 792012 at *3.

The insurer argues that the fee schedules found in section 627.736(5)(a) 2. should be applied to lower the medical providers' bills during the Deductible Phase, and that those lower bills should be applied to satisfy the deductible. This interpretation of the statutes will result in the insurer paying less because the providers' charges will be reduced and more of the providers' bills would be applied to satisfy the insured's deductible (which the insurer does not pay).

The insurer's interpretation of the statutes is not supported by the plain language of § 627.736(5)(a) 1. and 2. which permit a provider to charge the insurer and the insured a reasonable amount for services while allowing the insurer to "limit reimbursement" to the provider based on a fee schedule. During the Deductible Phase, however, the insurer is not reimbursing the medical provider; it is the insured who is paying the provider. Section 627.736(5)(a) 2. and its schedule of "maximum charges" is triggered only after the deductible has been satisfied and the insurer is reimbursing the provider-i.e., during the Benefits Phase.

As the Fifth District observed:

We do not believe that the Legislature intended the statutory reimbursement limitations to be applied to expenses and losses that fall within the insured's deductible, which the insured alone is obligated to pay and which are not recoverable as benefits under the policy.

Florida Hospital, a/a/o Parent , 236 So.3d at 1191, 2018 WL 792012 at *8.

I also agree with the Fifth District that the plain language of the Deductible Statute negates the insurer's argument. Section 627.739(2) mandates that the deductible "must be applied to 100 percent" of the insured's expenses and losses. 100 percent means, well, 100 percent. All. Everything. Total. It does not mean 80% of "200 percent of the applicable Medicare Part B fee schedule," which is a reimbursement limitation. As the Fifth District wrote:

We believe that application of the optional reimbursement limitations to establish a reduced amount of expenses and losses from which the deductible amount is subtracted would render meaningless the requirement in section 627.739(2) that "[t]he deductible amount must be applied to 100 percent of the expenses and losses."

Florida Hospital a/a/o Parent , 236 So.3d at 1187, 2018 WL 792012 at *4.

For these reasons, I would rephrase the question certified by the county court as follows:

PURSUANT TO FLA. STAT. § 627.739, IS AN INSURER REQUIRED TO APPLY THE DEDUCTIBLE TO 100% OF AN INSURED'S EXPENSES AND LOSSES PRIOR TO APPLYING ANY PERMISSIVE FEE SCHEDULE PAYMENT LIMITATION FOUND IN FLORIDA STATUTE SECTION 627.736(5)(a) 1. (2013)?

I would then answer the question in the affirmative.

      In the 2010 version of the PIP Statute, the fee schedule was set forth at subparagraph (5)(a)2. The statute was amended effective January 1, 2013, and the fee schedule is now found at subparagraph (5)(a)1. Ch. 2012-197, § 10, at 20-21, Laws. of Fla. The 2010 version of the PIP Statute applies to this case. Unless otherwise indicated, references to the Florida Motor Vehicle No-Fault Law are to the 2010 version of the statute.


text:
    Christie Burkey HUNT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3778
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 16, 2018
    Robert Sirianni, Jr., Winter Park, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 29, 2017 judgment and sentence rendered in Case No. 2014-CF-024409-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, BERGER and WALLIS, JJ., concur.