author: Gross, J.

text:
    Leslie D. MCMICHAEL a/k/a Leslie McMichael, Appellant, v. DEUTSCHE BANK NATIONAL TRUSTEE COMPANY, Appellee.
    No. 4D16-3879
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Michael Vater, Kyle M. Costello and Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellant.
    Anthony R. Yanez and Nicole R. Topper of Blank Rome LLP, Fort Lauderdale, for appellee.
   Gross, J.

We affirm the final judgment of foreclosure and write to address the circuit court's rejection of the borrower's unclean hands defense.

At trial the borrower testified in her defense. She stated that the original lender's employees appeared at her house one evening at 9:30 p.m. and asked her to sign all of the documents related to the subject note and mortgage, without giving her a chance to review what she was signing. The borrower testified that she reviewed the documents the next day and realized the terms were not consistent with her agreement with the lender.

She further said that she tried to rescind the loan for three days after the employees came to her home, but the messages were left unanswered. When she finally got in contact with the lender, she was informed that nothing could be done because the loan had been funded. The borrower also testified that she stopped making payments on her mortgage because an employee of the loan servicer told her she would need to stop making payments in order to modify her mortgage. On cross-examination, the borrower conceded that she was not coerced into signing the loan documents.

In the final judgment, the circuit judge rejected the borrower's assertion of the unclean hands defense:

To the extent [borrower] was in any way misled, any injury or damage was entirely self-inflicted. Despite the late hour, there was little or no credible evidence that [borrower] was in any way coerced into signing anything without the opportunity to read the documents or ask questions. Indeed, she admitted as much, having testified that there was no coercion at the loan closing and that she had no idea what documents she signed at the closing. In fact, she candidly admitted that she failed to pay attention during the closing and that any inaccuracies were her own fault. These inaccuracies would include information which [borrower] claims were falsely inserted into the documents. "Florida adheres to the principle that a party has a duty to learn and know the contents of a proposed contract before he signs it. Therefore, one who signs a contract is presumed to know its contents." Wexler v. Rich , 80 So.3d 1097, 1100-01 (Fla. 4th DCA 2012).
[Borrower] further argues that [bank] improperly induced her to stop making loan payments in order to obtain a loan modification. The more credible evidence is that she stopped making loan payments because she could no longer afford the payments on this loan and on her mother's mortgage.
In support of her defense of Unclean Hands, the [borrower] called Jason Harden as an expert witness. However, the court accords little weight to Mr. Harden's testimony, finding that even if qualified, his testimony was suspect, given that he relied solely upon a Comment Log prepared four years earlier and had spoken neither with the [borrower] nor anyone from the [bank]'s office in preparing his audit.

(footnotes omitted).

The circuit court concluded that the borrower failed to carry her burden in establishing the affirmative defense of unclean hands, or any other affirmative defense.

The borrower contends that the judgment of foreclosure was improper because the bank came to the court with unclean hands. She argues that the bank: (1) misled her regarding the terms of the loan, and (2) instructed her to stop paying her mortgage so she could obtain a loan modification, which resulted in this foreclosure action being filed against her.

The facts determined by the circuit court do not approach the level of wrongdoing necessary to support the application of the unclean hands defense. "Unclean hands is an equitable defense that is akin to fraud; its purpose is to discourage unlawful activity." Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co. , 105 So.3d 602, 609 (Fla. 4th DCA 2013). "To establish a defense of unclean hands, a defendant must have relied on the plaintiff's misconduct." Wells Fargo Bank, N.A. v. Williamson , 199 So.3d 1031, 1035 (Fla. 4th DCA 2016) (citation and quotation marks omitted). "In addition to acting in reliance on the misconduct, the defendant must also prove a harm that was caused by the misconduct." Id. (citing Jelic v. CitiMortgage, Inc. , 150 So.3d 1223, 1225 (Fla. 4th DCA 2014) ). This court has equated

"sneaky and deceitful" with "unclean hands".... "Equity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. Unscrupulous practices, overreaching, concealment, trickery or other unconscientious conduct are sufficient to bar relief." 22 Fla. Jur. 2d, Equity, § 50.

Hensel v. Aurilio , 417 So.2d 1035, 1038 (Fla. 4th DCA 1982).

The trial court's rejection of the unclean hands defense is supported by the record. As the trial court observed,

Florida adheres to the principle that a "party has a duty to learn and know the contents of a proposed contract before he signs" it. Mfrs.' Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So.2d 171, 172 (Fla. 4th DCA 1976). Therefore "[o]ne who signs a contract is presumed to know its contents." Addison v. Carballosa, 48 So.3d 951, 954 (Fla. 3d DCA 2010).

Wexler , 80 So.3d at 1100-01 (Fla. 4th DCA 2012). To the extent the borrower was misled, any injury was entirely self-inflicted, as she failed to read the loan documents before signing them.

On the borrower's second claim, there was contradictory testimony at trial concerning the reason she stopped making mortgage payments. The circuit court found "the more credible evidence" to be that the borrower "stopped making loan payments because she could no longer afford the payments on this loan and her mother's mortgage." We defer to the circuit court's "well-reasoned equitable findings." McCollem v. Chidnese , 832 So.2d 194, 196 (Fla. 4th DCA 2002).

Gerber, C.J., and Kuntz, J., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    OCEAN CONCRETE, INC. and George Maib, Appellants, v. INDIAN RIVER COUNTY, BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. 4D16-3210
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Stephen B. Burch, Geoffrey D. Smith and Susan C. Smith of Smith & Associates, Melbourne, for appellants.
    Paul R. Berg of Vocelle & Berg, L.L.P., and Dylan Reingold, Vero Beach, for appellee.
   Damoorgian, J.

Appellants, Ocean Concrete, Inc. and its principal, George Maib, appeal a final judgment entered in favor of Indian River County (the "County") in Appellants' property rights related lawsuit against the County. The substance of this appeal is comprised of the following issues: (1) whether the court erred in its conclusion that Appellants failed to prove entitlement to relief under the Bert J. Harris, Jr. Property Rights Protection Act; (2) whether the court considered irrelevant factors in reaching its conclusion that the County did not effectuate a regulatory taking of Appellants' property interests; and (3) whether the court made certain evidentiary rulings which require a retrial on Appellants' procedural due process violation claim. We affirm the second and third issues without further comment. As for the first issue, we conclude that the trial court reversibly erred and remand for further proceedings.

Factual Background

In 2002, Mr. Maib began formulating a plan to develop and run a concrete batch plant in the Treasure Coast area. A key element of the plan was acquiring a parcel of land with railway access which would allow him to keep costs down by importing raw material in bulk via freight train. With this is mind, Mr. Maib scouted the subject land, an 8.5+ acre parcel located near the city limits of the City of Sebastian in Indian River County. The parcel was zoned light industrial ("IL") under the County's zoning code which, at that time, provided that concrete batch plans were an allowed use in IL zoned districts. The lands surrounding the parcel, however, were primarily zoned for residential and limited commercial use. An aerial view of the parcel showed that the surrounding land was undeveloped.

In 2004, Mr. Maib entered into a contract to purchase the property for $575,000 with a 120 day inspection period. Mr. Maib retained an engineer to ascertain the feasibility of developing a concrete batch plant on the property. The engineer testified that after reviewing all relevant documents, he had no concerns about the feasibility of the project from either an engineering or development standpoint. The engineer drafted a conceptual, pre-application site plan for County review. Mr. Maib and his engineer attended a meeting with County planning staff where the staff represented that a concrete batch plant was a permitted use as a matter of right under the zoning code and provided feedback about the project. Mr. Maib and his engineer left the meeting believing that the development of the plant was feasible and that none of the feedback from the planning staff would prohibit the development. Based on the foregoing, Mr. Maib purchased the property.

In 2005, Mr. Maib filed a site plan application for review by the County's Technical Review Committee ("TRC"). The TRC responded to the application in writing by listing out several "discrepancies" which needed to be addressed before moving forward with the application. The TRC's discrepancy letter also noted that a concrete batch plant was a permissible use of the property as a matter of right, the discrepancies were not significant, and that no second TRC meeting would be required for reconsideration of the application. Mr. Maib then underwent efforts to remedy those discrepancies and also began improving the property. Specifically, Mr. Maib obtained permits to install storm water systems, installed wells, cleared and graded the property, planted a landscape buffer, and began to install a rail spur. He also formed Ocean Concrete, Inc., began developing a detailed business plan, and sought out financing for the project. During this process, Mr. Maib realized that it was going to take an additional two years to meet all of the technical requirements for approval of the site plan. Therefore, he let the site plan application expire in November of 2006 with the intent of filing a new site plan application and requesting a one year extension. Mr. Maib filed a new site plan application on December 6, 2006.

Thereafter, the TRC issued another discrepancy letter identifying the discrepancies in the site plan application which Mr. Maib was required to address, in writing, before proceeding. This discrepancy letter again noted that the "site is zoned IL, Light Industrial. Concrete batch plants are a use permitted by right in the IL district" and that "the discrepancies do not appear to be significant, therefore, no second TRC meeting will be required for reconsideration of the proposal." Mr. Maib continued to address the discrepancies but, as he did, the project began garnering public and governmental opposition.

The nearby City of Sebastian issued a resolution imploring the County to deny approval for the proposed Ocean Concrete project. Around this same time, a group of citizens formed an organization called "Stop Ocean Concrete." The leader of this organization appeared at a Board of County Commissioners ("BCC") meeting and asked the BCC to amend the zoning code to eliminate heavy process uses from the IL zoning district. The BCC then directed the planning staff to analyze the issue and shortly thereafter, the County's planning director issued a memo recommending that the BCC change the zoning code to "restrict industrial uses such as concrete plants and paper mills that process large quantities of materials, produce dust and noise, and have outdoor activities to the IG (General Industrial) district." At its next meeting, the BCC voted to have the staff change the zoning code as recommended.

Following the BCC's vote, County staff began the process of amending the zoning code. Inevitably, the impact of any changes on Mr. Maib's existing site plan application was a point of heavy discussion. A May 8, 2007 memo written by a senior planner noted:

The Ocean Concrete project is opposed by many residents of Sebastian and the north county, as evidenced by petitions and letters of objection submitted to staff. That project's application will expire on December 6, 2007 if it is not approved by that date. Because that site plan application is active, changes to the IL district regulations will not affect that application unless special effective date provisions are added to the amendment ordinance. At this time, the County Attorney has not issued an opinion as to whether or not the county can legally apply the proposed amendment to an existing application. The proposed changes will certainly affect applications to develop IL zoned sites submitted after the changes are adopted.

During this time and unbeknownst to Mr. Maib, the county attorney and the planning director were engaged in a discussion about whether the proposed change to the zoning code would apply to the Ocean Concrete project. After the attorney opined that the change would apply to the project, the Planning and Zoning Commission voted to recommend approval of the changes to the zoning code. Thereafter, the BCC unanimously voted to adopt the amendments to the zoning code "void of any exception or merit for grandfathering of vested rights."

Appellants filed a declaratory action in the circuit court seeking clarification of their rights to proceed under the site plan application. They also filed a request for a one year extension with the County on their pending application. The County denied the extension and based on the expiration of the application, denied Appellants' application. Appellants administratively appealed and amended their declaratory action complaint to add a cause of action for violation of the Harris Act. Appellants' administrative appeals were denied, causing Appellants to file a petition for writ of certiorari with the circuit court sitting in an appellate capacity. The circuit court determined that the County must either grant the extension, state a valid reason for denial, or deny the site plan on its merits. The BCC voted to grant Appellants a one year extension under the "old code" provisions.

Following the reinstatement of Appellants' application, the County staff approved the site plan application under the old zoning code conditioned on a finding by the Community Planning Director of a vested right of development under the old code. The Community Planning Director, found that there was no vested right and denied Appellants' site plan application under the new code. Mr. Maib appealed the denial to the Planning and Zoning Commission but, while his appeal was pending, lost the property to foreclosure. The Planning and Zoning Commission then dismissed Appellants' appeal as moot. At this point, Appellants added a cause of action for a regulatory taking and violation of their due process rights to the declaratory action.

The matter proceeded to a simultaneous bench/jury trial with the court considering Appellants' regulatory taking, Harris Act, and substantive due process claims and a jury considering the procedural due process claim. At trial, Appellants presented expert testimony from a real property appraiser and construction business valuators. Appellant's experts valued the property with a completed concrete batch plant at $10 million. In turn, the County presented its own experts who opined that market value of the property before the zoning amendment was $1 million and that the change in the zoning amendment only reduced the property's value by 3.5%. The County also presented evidence to support its contention that operating a concrete batch plant on the property was not economically feasible.

At the conclusion of the trial, the jury found that the County did not violate Appellants' procedural due process rights. The trial court found that Appellants did not prove that the County effectuated a regulatory taking, violated the Harris Act, or violated Appellants' substantive due process rights. Holding that the court erred in finding no violation of the Harris Act, we reverse and remand.

Analysis

The Harris Act was enacted by the Florida Legislature in 1995 as a mechanism to protect and compensate any landowner whose property is affected by government action not rising to the level of a taking. §°70.001(1), Fla. Stat. (1995). To prevail under the Harris Act, the property owner must prove that "a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property." § 70.001(2), Fla. Stat. (2008). Accordingly, when a claim under the Harris Act is presented for judicial review, the court must first consider whether a claimed "existing use of the real property" or a claimed "vested right to a specific use of the real property" actually existed. If it finds either, it must next determine whether the government action inordinately burdened the property. § 70.001(6)(a), Fla. Stat. If the court also finds that that there was an inordinate burden, then it must impanel a jury to determine the total amount of compensation to the property owner for the loss caused by the inordinate burden to the property. § 70.001(6)(b), Fla. Stat. The party seeking relief under the Harris Act bears the burden of proof. See Town of Ponce Inlet v. Pacetta, LLC , 120 So.3d 27, 29 (Fla. 5th DCA 2013).

In this case, the court found Appellants did not establish that the use of the property as a concrete batch plant was an existing use. Alternatively, it found that the County's actions did not inordinately burden the property. We review these determinations de novo. City of Jacksonville v. Coffield , 18 So.3d 589, 594 (Fla. 1st DCA 2009).

a) Existing Use

The term "existing use" is defined by the Harris Act as:

[1] an actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity or
[2] such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.

§ 70.001(3)(b), Fla. Stat. (2008) (spacing and numbers added).

Because a concrete batch plant did not exist on the property, the court applied the second part of the "existing use" definition. Neither of the parties contend that this was improper. With this parameter in mind, the court then found that because a concrete batch plant was a permitted use as a matter of right under the County's old zoning code, it was a reasonably foreseeable use of Appellants' property. However, the court went on to find that a concrete batch plant was not a non-speculative use. This finding was rooted in economics, and more particularly, the court's determination that the project was not financially viable. The court also concluded that the use was not compatible with adjacent lands. For the reasons set forth below, we hold that the court's non-speculative use and compatibility analysis was legally incorrect.

i) Reasonably Foreseeable, Nonspeculative Use

Applying a plain language reading analysis to the statute leads us to conclude that the term relates to whether the actual land use is nonspeculative without concern to economics. The phrase "nonspeculative" appears in the definition of "existing use" as follows:

"reasonably foreseeable, nonspeculative land uses ..."

§ 70.001(3)(b), Fla. Stat. (2008).

The noun in the above phrase is "land uses." The terms "reasonably foreseeable" and "nonspeculative" are adjectives modifying the noun "land use." Thus, based on the grammatical structure, the key inquiry for the court is whether a concrete batch plant, as a land use , was foreseeable and nonspeculative at the time the County amended its zoning code. Notably, at least one appellate judge has arrived at the same conclusion. In his dissent in City of Jacksonville v. Smith , 159 So.3d 888, 913 (Fla. 1st DCA 2015), Judge Makar wrote:

The point of subsection 2 [within the existing use definition] is not to preclude "speculation" in the financial sense; if that were the case, no privately-held real property would qualify because land ownership always involves an element of financial risk. Instead [the definition] is designed to limit possible future land uses to only those that are within reason, i.e., "reasonably foreseeable" and "nonspeculative." Stated differently, future uses that are merely theoretical or hypothetical do not qualify; they are speculative in the sense of these two terms.

The plain language of the Harris Act is clear: the term "nonspeculative" refers to the land use and, therefore, a "nonspeculative use" analysis really only comes into play when a party is arguing that it may have been able to use its land in the future for a purpose not expressly provided for by the zoning code at the time of the government action. Conversely, when the use was expressly provided for, as it was here, there is no need for a speculation analysis. Accordingly, based on the plain language of the Act, the court erred in concluding that a concrete batch plant was not a nonspeculative land use when making its "existing use" determination.

ii) Compatible with Adjacent Land Uses

In addition to finding that Appellants did not meet the "nonspeculative land use" prong of the "existing use" definition under the Harris Act, the court also found that Appellants failed to establish that a concrete batch plant was compatible with adjacent land uses at the time the code was amended. The court's conclusion was based on the fact that the land west of the property and half of the land south of the property was zoned for residential use. Although much of that land remained vacant, the court concluded that based on east to west wind patterns, the residential areas would experience noise and dust pollution from the property if it was developed into a concrete batch plant. The court also gave weight to the County's determinations during the code amendment process that "heavy process uses such as concrete plants which involve outdoor storage and handling of large quantities of material that result in noise and dust impacts are more compatible with and appropriately located in IG [General Industrial] districts, removed from concentrations of residential areas and separated from commercial uses and light 'clean' industry."

It is axiomatic that if an area is zoned for a particular use, that use is deemed compatible with surrounding uses. See Nostimo, Inc. v. City of Clearwater , 594 So.2d 779, 781 (Fla. 2d DCA 1992) (holding that use of property was compatible with surrounding or adjacent uses because it was a permitted use under the zoning code). Before the County amended the code, concrete batch plants were a permitted use on Appellants' property. Therefore, the use of the property as a concrete batch plant was per se compatible with the surrounding land uses. With this in mind, none of the County's evidence established that anything about the adjacent land uses changed between the time the old IL zoning description was created and the time it was amended. Accordingly, the court erred when it concluded that a concrete batch plant was not an "existing use" for the property because a concrete batch plant was not compatible with adjacent land uses at the time the code was amended.

b) Inordinate Burden

The Harris Act provides that the terms "inordinate burden" or "inordinately burdened" mean:

[T]hat an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large....

§ 70.001(3)(e), Fla. Stat. (2008).

Here, although the court denied Appellants relief under the Harris Act based on its existing use analysis, it also cursorily addressed the inordinate burden prong of a claim under the Act, ruling that Appellants could not demonstrate a "reasonable, investment-backed expectation." The court's ruling on this point referenced its takings ruling, wherein the court found that Appellants did not establish that they had a reasonable, investment-backed expectation in developing a concrete batch plant because the "property contained site-specific conditions that entailed significant practical and financial impediments to its development as a concrete batch plant."

There are only two reported cases interpreting the phrase "reasonable, investment-backed expectations" in the specific context of the Harris Act. This Court's opinion in Palm Beach Polo, Inc. v. Village of Wellington , 918 So.2d 988 (Fla. 4th DCA 2006), provides the most guidance. In that case, a developer made a Harris Act claim with respect to a wetland nature preserve which a local government required the developer to "restore, enhance, and preserve" as part of a Planned Unit Development. Id. at 990. On appeal, we held that the developer's claim under the Act was "frivolous" because, based on the physical characteristics and regulatory history of the preserve, there could be no reasonable expectation that the preserve would be used for anything other than conservation. Id. at 995. Citing our holding in Palm Beach Polo, Inc. , the First District later found that a landowner did not have a "reasonable, investment-backed expectation" of developing a parcel of land into a multi-family development after he learned that the only road leading to and from the property was being permanently closed. Coffield , 18 So.3d at 595, 599. These cases establish that whether a landowners expectations for development are "reasonable" and "investment-backed" depends on the physical and regulatory aspects of the property.

Despite the foregoing authority, the court relied on case law from the takings context when analyzing whether Appellants had a "reasonable, investment-backed expectation" of developing the property as a concrete batch plant. The court did so because the term "investment-backed expectations" is found in the test articulated by the United States Supreme Court for regulatory takings. Penn Cent. Transp. Co. v. City of N.Y. , 438 U.S. 104, 123, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Although, based on the foregoing, it would seem reasonable to rely on takings cases, the Harris Act itself proclaims that it is "separate and distinct ... from the law of takings" and, to that end, also provides that "[t]his section may not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking." §§ 70.001(1) ; 70.001(9), Fla. Stat. (2008). Thus, we hold that the court's reliance on federal takings cases as opposed to Florida law interpreting the Harris Act was misplaced.

Applying the applicable law, nothing about the physical or regulatory aspects of the property at the time of the government regulation made Appellants' expectations for the development of a concrete batch plant unreasonable. A concrete batch plant was a permitted use under the zoning code as a matter of right and throughout the site-plan approval process, Mr. Maib was led to believe that approval was inevitable. Further, Mr. Maib obtained the services of an expert engineer who told him that the development was feasible. Finally, the property abutted a railroad and Mr. Maib was able to install a spur to facilitate the importation and exportation of materials. That the overall undertaking may have been expensive and a significant task does not invalidate the fact that, based on the property itself, Appellants' investment-backed expectations were reasonable.

Based upon the foregoing, we reverse and remand this matter for a trial on damages suffered by Appellants under the Harris Act.

Affirmed in part, reversed in part and remanded.

Taylor and May, JJ., concur.

      The Bert J. Harris, Jr. Property Rights Protection Act is codified in section 70.001 of the Florida Statutes (2008). For purposes of this opinion, it will be referenced to as the "Harris Act."

      Our citation to the dissent in Smith is in no way meant to distinguish the majority holding as it is not applicable to the instant case. In Smith , the majority held that a landowner whose property abutted a vacant lot rezoned to allow a fire station was not entitled to relief under the Harris Act because the landowner's property "was not itself subject to any governmental regulatory action." 159 So.3d at 889. Based on this holding, the court did proceed to engage in an existing use or inordinate burden analysis under the Harris Act.

      See David L. Powell, Robert M. Rhodes & Dan R. Stengle, A Measured Step to Protect Private Property Rights , 23 Fla. St. U. L. Rev. 255 (1995). Discussing the definition of the term "existing use" at play in the Harris Act the authors (who happened to work on the legislation), stated:
      As a legal concept for an existing land use, the alternative definition is well-grounded in the law of eminent domain. In a condemnation proceeding, valuation of the property is based upon the highest and best use. The highest and best use is not limited to those uses authorized under the existing land development regulations. If on the date of taking there is a reasonable probability of a land use change, that probability may be taken into account in determining valuation. An important factor in determining the highest and best use of property is whether the property is suitable for that proposed future use. However, such a future use may not be wholly speculative....
      The proof necessary to establish that a future land use is reasonably foreseeable could come from such authorities as an adopted local comprehensive plan, local land development regulations, or a credible appraisal which relies at least in part on nonexisting but reasonably expected future uses.
      Id. at 267-68 (footnotes omitted).


author: Gerber, C.J.

text:
    A.N., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-704
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    A.N., Fort Lauderdale, pro se.
    Edmund M. Haskins, Fort Lauderdale, for appellee.
   Gerber, C.J.

The appellant appeals from a final order issued by the Department of Children and Families, finding that the appellant's receipt of a Florida Retirement System (FRS) pension disqualified him from being eligible to compromise an overpayment which he received from the Department for food assistance. The appellant argues, among other things, that the final order is incorrect as a matter of law. We agree with the appellant, and conclude that the appellant's receipt of an FRS pension did not disqualify him from being eligible to compromise the overpayment. Thus, we reverse.

The Department sent the appellant a notice informing him that for an eleven month period, he received $1,958.00 more in food assistance benefits than he was entitled to receive. The notice further informed the appellant that he could enter into a repayment agreement with the Department or request the Department to compromise the overpayment.

The notice referred to Florida Administrative Code Rule 65A-1.900, which outlines the procedure by which an individual may request the Department to compromise an overpayment. Rule 65A-1.900 states, in pertinent part:

(6) Compromising Food Stamp Claims....
(a) Individuals with an overpayment claim in the Food Stamp Program may request a compromise of their claim at any time after they are notified of the claim.
(b) For purposes of a compromise request made pursuant to this rule, the Department will determine [if] the economic household circumstances reasonably demonstrate the overpayment claim will not be paid within three years of being notified of the overpayment claim and will compromise to zero dollars when at least one of the following is present :
1. The death or prognosis of death of any liable individual within three years of being notified;
2. Pending litigation in a court, including a bankruptcy court, that involves any liable individual's obligation to repay the overpayment within three years of being notified;
3. Any liable individual is sentenced to a period of incarceration that will expire after the three-year period the overpayment is expected to be paid; or
4. The liable individual(s) sole household's income is based only on either age or disability projecting a fixed, limited economic potential to repay the overpayment within three years.
(c) The Department requires verification of subparagraphs 1. through 4. above. When a decision is made concerning the compromise request, the Department will provide written notice of the decision including information about hearing appeal rights.
(d) Liable individual(s) can request a compromise even if subparagraphs (b)1. through 4. above do not apply. The request and any other related information provided must clearly show the overpayment claim will not be paid within the three-year period. The Department will not speculate about the liable individual's ability to repay the overpayment. If the Department must speculate about the liable individual's ability to repay the overpayment, the Department will deny the request and provide written notice of the decision.

Fla. Admin. Code. R. 65A-1.900(6) (2016) (emphasis added).

The appellant requested a compromise under rule 65A-1.900(6)(b)4. ("The liable individual(s) sole household's income is based only on either age or disability projecting a fixed, limited economic potential to repay the overpayment within three years.") and rule 65A-1.900(6)(d) ("The request and any other related information provided must clearly show the overpayment claim will not be paid within the three-year period.").

The Department notified the appellant that it denied his request for compromise, and that he remained liable for the full amount of the overpayment claim.

The appellant appealed the denial to the Department's Office of Appeal Hearings. One of the Department's hearing officers convened a hearing to consider the appellant's appeal.

At the hearing, the appellant indicated that he was seventy years old, had retired at age sixty-eight from a position with the Miami-Dade Public Schools, was receiving a Miami-Dade Public Schools pension of $257 per month, and was receiving Social Security payments of $957 per month, for a total fixed monthly income of $1,214. The appellant also submitted records indicating his necessary monthly expenses exceeded his fixed monthly income. Based on these facts, the appellant argued he was entitled to a compromise under rule 65A-1.900(6)(b)4. and rule 65A-1.900(6)(d).

The Department did not challenge the appellant's circumstances. Instead, the Department's compromise specialist testified that the appellant did not qualify for a compromise under either rule 65A-1.900(6)(b)4. or rule 65A-1.900(6)(d). More specifically, the Department's compromise specialist repeatedly testified that the appellant's receipt of his pension disqualified him from being eligible to compromise an overpayment because, according to the compromise specialist, the appellant's pension is not based on age or disability.

The appellant responded that his pension was solely based on his age. The hearing officer then asked the appellant to clarify whether his pension was based on his age or the amount of time he had been working. The appellant responded: "[I]t is based on age."

The hearing officer later entered a final order denying the appellant's appeal. In the final order, the hearing officer quoted the four compromise criteria specified in rule 65A-1.900(6)(b) and found: "The [appellant] did not meet any criteria in subparagraphs one through four above, especially number four (4), because his pension is not based on age or disability ." (emphasis added).

This appeal followed. The appellant argues, among other things, that the final order is incorrect as a matter of law because neither the Department nor the hearing officer cited any statute or rule supporting the finding that the appellant's receipt of an FRS pension disqualified him from a compromise on the overpayment. The appellant requests that pursuant to rule 65A-1.900(b)(6), he should be granted a full compromise resulting in his food assistance overpayment being reduced to zero.

Our review is de novo. See Nikolits v. Haney , 221 So.3d 725, 728 (Fla. 4th DCA 2017) ("Statutory construction and interpretation of administrative rules are ... legal issues subject to de novo review.").

We agree with the appellant's argument. The Florida Retirement System provides retirement income to a county employee upon the employee attaining a specified age. See generally § 122.08(1)(a), (2)(a), Fla. Stat. (2016). Thus, the appellant's receipt of an FRS pension based on his age did not disqualify him from a compromise on the overpayment under rule 65A-1.900(6)(b)(4)'s plain language.

Based on the foregoing, the Department and the hearing officer erred as a matter of law in denying the appellant's request for a compromise on the overpayment under rule 65A-1.900(6)(b)4. We reverse the hearing officer's final order, and remand for the Department to compromise the appellant's overpayment claim to zero dollars.

Reversed and remanded for proceedings consistent with this opinion.

Gross and Kuntz, JJ., concur.


author: Conner, J.

text:
    Roberto D. VIEIRA a/k/a Roberto Vieira and Shawn D. Vieira a/k/a Shawn Vieira, Appellants, v. PENNYMAC CORP. and the Timbers of Boca Homeowners Association, Inc., Appellees.
    No. 4D16-3430
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Kendrick Almaguer, Thomas Eross, Jr., and Kyle M. Costello of The Ticktin Law Group, PLLC, Deerfield Beach, for appellants.
    Nancy W. Wallace of Akerman LLP, Tallahassee, and William P. Heller and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellee PennyMac Corp.
   Conner, J.

Roberto D. Vieira and Shawn D. Vieira ("the Borrowers") appeal the final judgment of foreclosure in favor of PennyMac Corp ("PennyMac") asserting the trial court erred by (1) determining PennyMac had standing to enforce a lost note, and (2) rejecting their attempt to amend pleadings to conform to the evidence. Because we agree with the Borrowers' first contention, we do not address the second contention. We agree that PennyMac failed to prove at trial that the initial plaintiff had standing to enforce the note. We reverse the final judgment and remand for the trial court to enter judgment in favor of the Borrowers.

Background

In January 2015, JP Morgan Chase Bank, National Association ("JP Morgan") filed the initial complaint in this case, seeking to foreclose on a note and mortgage given by the Borrowers to Chase Bank USA, N.A. ("Chase Bank"), the original lender. The complaint also sought to re-establish the lost note secured by the mortgage. JP Morgan asserted that although the note was lost, it was entitled to enforce the instrument pursuant to section 673.3091, Florida Statutes (2017). Attached to the complaint was a copy of the note and mortgage. The complaint alleged in part that "Plaintiff will establish the terms and conditions of the subject note in addition to its right to enforce. A lost note affidavit is attached hereto as Exhibit 'A.' " The body of the three-page complaint made no reference to Chase Bank.

The lost note affidavit attached to the complaint stated, in part:

A copy of the original note and, if applicable, allonge(s) is/are attached hereto as Exhibit A.
The copy does not display endorsements .

(emphasis added). Exhibit A attached to the lost note affidavit included a copy of the note, but no copy of an allonge was attached.

The Borrowers eventually filed an answer, asserting that JPMorgan lacked standing and failed to fulfill conditions precedent. Subsequently, JP Morgan moved to substitute PennyMac as plaintiff and to change the case style, alleging that JP Morgan assigned the mortgage to PennyMac after the suit was filed, attaching a copy of the recorded assignment. The assignment only transferred the mortgage and not the note. An order was entered substituting PennyMac as the plaintiff.

At trial, PennyMac called two witnesses; one a JP Morgan employee and the other a PennyMac employee. We summarize the testimony that is most pertinent to disposition of this appeal.

The JP Morgan witness testified that Chase Bank was the first loan servicer, JP Morgan was the second servicer, and PennyMac was the current servicer. She testified that the Borrowers were given a notice of assignment, sale and transfer of servicing rights from Chase Bank to JPMorgan. She further testified about the process JP Morgan followed regarding a search for a lost note. According to the witness, JPMorgan was in possession of the note because there was an imaged copy that was uploaded during JP Morgan's servicing of the loan, though she did not recall the specific date of the upload, believing it to be around 2010. Additionally she testified that after reviewing JP Morgan's records and Chase Bank's records, nothing led her to believe that the note could be reasonably located. She admitted that she did not know the exact date the note was lost.

Through the JP Morgan witness, PennyMac introduced into evidence the original lost note affidavit, a copy of which was attached to the complaint. According to the witness, the affidavit was executed in September 2014 (four months before the complaint was filed). Unlike the copy of the affidavit attached to the complaint, the original affidavit had an original allonge attached to it, stating:

This Allonge is being prepared to evidence the transfer and assignment of ownership of that certain Mortgage Note described above, which was executed in favor of CHASE BANK USA, NA, to the below-named Purchaser. The original of the Mortgage Note has been lost or misplaced by the below-named seller. A copy of the fully-executed Mortgage Note is attached to that certain Lost Note affidavit dated SEPTEMBER 18, 2014 executed by the Seller.

The allonge was undated and contained a signature by a JP Morgan representative, but no signature by a Chase Bank representative. The JP Morgan witness could not say when the allonge was executed or when it was imaged into any system.

Through the JP Morgan witness, PennyMac also introduced into evidence the assignment of mortgage from JP Morgan to PennyMac.

PennyMac's witness testified that when PennyMac acquired servicing rights, the prior servicer, JP Morgan, sent all loan records. She further testified that the Borrowers' loan was part of a Purchase of Servicing Agreement ("PSA"), which governed how PennyMac serviced the loan. The PSA indicated that the Borrowers' loan was part of a pool of loans for which PennyMac purchased the servicing rights from JP Morgan in January 2015.

At the conclusion of the evidence, the trial court denied the Borrowers' motion for involuntary dismissal on the issue of standing. A final judgment was entered against the Borrowers, after which the Borrowers gave notice of appeal.

Analysis

The standard of review of whether the trial court's factual findings are legally sufficient to establish standing is a question of law subject to de novo review. Elman v. U.S. Bank , N.A. , 204 So.3d 452, 454 (Fla. 4th DCA 2016). A trial court's factual findings are reviewed for competent substantial evidence. Id. at 455 ; Jasser v. Saadeh , 91 So.3d 883, 884 (Fla. 4th DCA 2012) (quoting Acoustic Innovations, Inc. v. Schafer , 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ) (reciting that judgment entered after a nonjury trial is reviewed for competent, substantial evidence). "When reviewing a judgment rendered after a nonjury trial, the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous." State Tr. Realty, LLC v. Deutsche Bank Nat'l Tr. Co. Ams. , 207 So.3d 923, 925 (Fla. 4th DCA 2016) (quoting Stone v. BankUnited , 115 So.3d 411, 412 (Fla. 2d DCA 2013) ).

Because it was substituted as plaintiff after suit was filed, PennyMac had to prove at trial that JP Morgan had standing when the initial complaint was filed, as well as its own standing when the final judgment was entered. Lamb v. Nationstar Mortg. , LLC , 174 So.3d 1039, 1040 (Fla. 4th DCA 2015). Throughout the proceedings below, the note was lost. Thus, PennyMac had to prove standing and the right to enforce the note, using section 673.3091, Fla. Stat. (2017). Section 673.3091(1)(a), requires in part that "[t]he person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred ." (emphasis added).

Standing may be established by possession of the note specially indorsed to the plaintiff or indorsed in blank. Peoples v. Sami II Tr. 2006-AR6 , 178 So.3d 67, 69 (Fla. 4th DCA 2015) ; § 673.2031(1), Fla. Stat. (2017) ("An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument."); § 673.2031(2), Fla. Stat. ("Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course ...."). A plaintiff may also prove standing "through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer." Stone , 115 So.3d at 413 (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques , 28 So.3d 936, 939 (Fla. 2d DCA 2010) ). That is because "if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor ...." § 673.2031(3), Fla. Stat.

In this case, the original lender and payee of the note was Chase Bank. Although the parties make various arguments and counter-arguments regarding standing, we perceive the critical issue to be whether sufficient proof was presented at trial to show that Chase Bank transferred the note to JP Morgan, the original plaintiff, prior to suit being filed.

The Borrowers contend on appeal that PennyMac failed to prove that JP Morgan had standing to foreclose when it filed suit. More specifically, the Borrowers argue that PennyMac did not produce substantial competent evidence that JP Morgan was in possession of the allonge at the inception of the case. They point out that the allonge was not attached to the complaint when it was filed; instead, the allonge appeared at trial with no dates of creation on its face. Moreover, PennyMac's witness could not offer evidence that the allonge was created or executed prior to the filing of the complaint.

Additionally, the Borrowers argue there was no proof of transfer of the note from Chase Bank to JP Morgan. The allonge did not contain an indorsement from Chase Bank, and it was not signed by a representative of Chase Bank. The assignment of mortgage entered into evidence only transferred the mortgage and not the note. The Borrowers also assert that the notice of transfer or sale of servicing rights was not an effective transfer of the note.

Addressing the issue of standing at the inception of the suit, PennyMac contends on appeal that it presented sufficient evidence to prove that JP Morgan's authority to enforce the note derived from its status as a non-holder in possession of the note with the rights of a holder at the time of the loss. PennyMac acknowledges that its contention is based on "multi-tiered evidence" of transfer of the note by Chase Bank. It begins the analysis with the assertion that the evidence showed that Chase Bank and JP Morgan are "related entities." PennyMac argues that the allonge memorialized the transfer of the note from Chase Bank to JP Morgan. It further asserts that to agree with the Borrowers' position would require the absurd inference that JP Morgan made a six-figure sale of the note to PennyMac without authority from Chase Bank, a related entity that used the same address in the public records.

Additionally, PennyMac argues that despite case law to the contrary, the assignment of the mortgage alone, without the inclusion of the note, bolsters the proof that JP Morgan had standing at the inception of the suit. For this argument, PennyMac relies on section 701.01, Florida Statutes (2017). Finally, PennyMac argues that the evidence of escrow advances corroborate JP Morgan's standing.

However, there are problems with PennyMac's "multi-tiered evidence" arguments. First, it is unclear in what way Chase Bank and JP Morgan are "related entities." No evidence was presented that JP Morgan and Chase Bank merged or that Chase Bank was completely bought out by JP Morgan. As we have made clear in the past, separate corporate entities, even parent and subsidiary entities, are legally distinct entities. See Wright v. JPMorgan Chase Bank, N.A. , 169 So.3d 251, 251-52 (Fla. 4th DCA 2015) (noting a parent corporation and its wholly-owned subsidiary are separate and distinct legal entities and a parent corporation cannot exercise the rights of the subsidiary corporation); see also Houk v. PennyMac Corp. , 210 So.3d 726, 734 (Fla. 2d DCA 2017) (noting a conflict of allegations between affidavits and the complaint where the affidavits alleged PennyMac Loan Services, LLC was the servicer and the complaint alleged PennyMac Corp. was the servicer). There was no explicit testimony or other evidence that Chase Bank sold or equitably transferred the note to JP Morgan.

Additionally, PennyMac cites no case law in support of its argument that the assignment of mortgage (without an assignment of the note) bolsters the proof that JP Morgan had standing at the inception of the suit. Instead, PennyMac cites to section 701.01, which provides:

Any mortgagee may assign and transfer any mortgage made to her or him, and the person to whom any mortgage may be assigned or transferred may also assign and transfer it, and that person or her or his assigns or subsequent assignees may lawfully have , take and pursue the same means and remedies which the mortgagee may lawfully have , take or pursue for the foreclosure of a mortgage and for the recovery of the money secured thereby.

(emphases added). However, although the statute makes clear that an assignee has the "same means and remedies the mortgagee may lawfully have," we have previously held that "[t]he mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee." Tilus v. AS Michai LLC , 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat'l Ass'n , 137 So.3d 1130, 1133 (Fla. 4th DCA 2014) ); see also Lamb , 174 So.3d at 1041 ("A bank does not have standing to foreclose where it relies on an assignment of the mortgage only."). Therefore, we disagree with PennyMac's assertion that the assignment of mortgage alone, without a transfer of the note, establishes that JP

Morgan had standing at the inception of the suit.

PennyMac's argument that the allonge memorialized the transfer of the note from Chase Bank to JP Morgan reveals the biggest flaw in PennyMac's contention that JP Morgan had standing at the inception of the suit. The major stumbling block is that the allonge was signed by a representative of JP Morgan, and there is no signature on the document by Chase Bank. Section 673.2041, Florida Statutes (2017), clearly requires a signature by the current note holder to constitute an indorsement and transfer of the note to another payee or bearer. § 673.2041, Fla. Stat. ("The term 'indorsement' means a signature ... for the purpose of negotiating the instrument [or] restricting payment of the instrument."). We have previously said, "[t]o transfer a note, there must be an indorsement, which itself must be 'on [the] instrument' or on 'a paper affixed to the instrument.' " Jelic v. BAC Home Loans Servicing, LP , 178 So.3d 523, 525 (Fla. 4th DCA 2015) (second alteration in original)(emphasis added)(quoting § 673.2041(1), Fla. Stat.).

Next, in support of its argument that evidence of escrow advances corroborates JP Morgan's standing, PennyMac cites Peuguero v. Bank of America, N.A. , 169 So.3d 1198 (Fla. 4th DCA 2015), where we said that a foreclosure plaintiff paying taxes and fees associated with the mortgaged property prior to suit is "a noteworthy factor in determining standing, as financial institutions are not known to incur expenses on behalf of properties for which they do not hold an interest." Id. at 1202. However, our statement was in the context of facts where the lender originating the loan signed an indorsement to Countrywide Bank, the entity which filed the foreclosure suit. Id. at 1200. After suit was filed, Bank of America was substituted as plaintiff on the contention that Countrywide Bank merged into Bank of America. Id. In other words, we viewed the evidence of advanced fees as corroboration of more direct evidence of transfer of the note. Id. at 1202. We never held that such evidence, standing alone, would be sufficient to establish standing. In this case, there is no other more direct evidence of a transfer of the note for the evidence of the escrow advances to corroborate.

Finally, the remaining testimonial and documentary "multi-tiered evidence" discussed in PennyMac's brief does not demonstrate that JP Morgan had standing at the inception of the suit. As discussed above, neither of PennyMac's witnesses directly testified about the transfer of the note from Chase Bank to JP Morgan. Instead, the witness testimony referred a few times to Chase Bank and JP Morgan as "Chase entities." Likewise, the notice of sale and transfer of servicing rights, loan acquisition screenshots, and lost note affidavit do not constitute direct or circumstantial evidence of the transfer of the note from Chase Bank to JP Morgan.

Although we agree with PennyMac that the evidence proved that JP Morgan had possession of the note when the note was lost and prior to suit being filed, PennyMac failed to prove that prior to suit, Chase Bank had indorsed the note over to JP Morgan. Thus, we conclude that PennyMac failed to prove that JP Morgan had standing at the inception of the suit. Therefore, we reverse the final judgment in favor of PennyMac and direct the trial court to enter a judgment in favor of the Borrowers.

Reversed and remanded.

Warner and Forst, JJ., concur.


author: May, J.

text:
    R.L.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1379
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The juvenile appeals a disposition order committing him to a nonsecure residential program. He argues the trial court erred in failing to make the requisite findings to support its decision. We agree and reverse in part.

The State charged the juvenile, and he pled in three separate cases, including two violations of probation. The Department of Juvenile Justice ("DJJ") recommended probation. The trial court ultimately adjudicated him delinquent and committed him to a non-secure residential program.

In the first case, the juvenile pled no contest to one count of battery, a first degree misdemeanor. The State nolle prossed a second count. The trial court withheld adjudication and placed him on probation.

Two months later, the juvenile pled no contest to a disorderly conduct charge, a second degree misdemeanor, and the State nolle prossed a disruption of an educational institution charge. The juvenile also admitted a probation violation. The trial court withheld adjudication and again placed him on probation.

In the third case, the juvenile admitted the probation violations and pled no contest to one count of battery and one count of assault. The trial court requested a comprehensive evaluation, staffing, and predisposition report. The court specifically requested the DJJ to "include a written recommendation for a restrictiveness level as defined in Florida Statute 985.03(44)." The court placed the juvenile on home detention pending the disposition hearing.

In its predisposition report, the DJJ indicated that the juvenile could remain on probation and be treated in the community. But, if he continued to violate probation-including incurring new law violations-then program placement would need to be considered. The predisposition report indicated the juvenile was a moderate to high level risk to re-offend.

A week after his comprehensive evaluation interview, and while on home detention, the juvenile received a school disciplinary referral for assaulting a pregnant student. He was suspended from school and another probation violation was filed for the new substantive offense and for failing a drug test.

At the disposition hearing, the State requested the trial court to follow the DJJ's alternative recommendation and place the juvenile in a nonsecure residential program. Defense counsel asked the court to follow the DJJ's recommendation of probation.

The trial court then stated:

I am noting for the record that you entered your plea on April 6, 2017. You were placed on home detention April 22nd. There was a violation of that home detention for the-I'll call it an altercation, incident, whatever-however you want to phrase it that occurred at school. Now [the juvenile] is here for sentencing .... Now after entering his plea on April 6th after being put on home detention on April 22nd, [the juvenile] assaulted a young lady at school while on home detention pending placement for the pending disposition, excuse me, on two battery cases, an assault and a disorderly conduct by telling this pregnant young lady that "I'll kill you and your jit. I'm gonna sucker punch you in the stomach." That is while on home detention, that is while pending disposition. I find by the preponderance of the evidence that the protection of the public supports a commitment to non-secure residential. Sir, I am adjudicating you delinquent, I am committing you to non-secure residential. Due to your age, I am going to follow that with a direct discharge. As soon as you are complete with that program and successful, you will be released and whatever you do will be dealt with in the adult system if you break the law again.

The juvenile did not object to the disposition, but now appeals his disposition.

The juvenile argues the trial court erred in failing to make the written findings mandated by section 985.441(2)(d), Florida Statutes (2016). The State agrees, and so do we.

Section 985.441(2) provides:

[T]he court having jurisdiction over an adjudicated delinquent child whose offense is a misdemeanor, ... may not commit the child for any misdemeanor offense or any probation violation that is technical in nature and not a new violation of law at a restrictiveness level other than minimum-risk nonresidential. However, the court may commit such child to a nonsecure residential placement if:
...
(d) The court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. Such finding must be in writing.

(Emphasis added).

A court errs in ordering a juvenile to a non-secure residential program without making the required written findings. K.M.H. v. State , 91 So.3d 262, 264 (Fla. 1st DCA 2012). While the State agrees with the law, it suggests the lack of findings amounts to a scrivener's error. It acknowledges however that "[t]he case should be remanded so that the trial court can check the appropriate box and write down its findings orally pronounced at the disposition hearing." We reverse on this issue and remand the case to the trial court to comply with section § 985.441.

In his second issue, the juvenile argues there was insufficient evidence that he was a danger to the public and should be committed. We have reviewed the record and disagree. Here, the trial court orally pronounced the juvenile's history of multiple violent crimes against persons, multiple probation violations, and his violation of home detention while awaiting disposition. The court orally announced it was adjudicating the juvenile delinquent, and committing him to a non-secure residential program for the protection of the public. The trial court complied with the statutory requirements. We affirm on this issue without further comment.

Affirmed in part; reversed in part and remanded.

Gerber, C.J., and Damoorgian, J., concur.


text:
    Agustin TORRES, Appellant, v. STATE of Florida DEPARTMENT OF REVENUE, CHILD SUPPORT PROGRAM and Viviana Torres, Appellees.
    No. 4D17-1364
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Tracy Belinda Newmark and Natalie Suzanne Kay of Kelley Kronenberg, Plantation, for appellant.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellees.
   May, J.

The father challenges a final administrative support order. He argues among other issues that the retroactive child support was inaccurately calculated, and he is entitled to a $200 credit. We agree with him on the $200 credit and reverse in part.

The mother applied for child support services and submitted a financial affidavit and parental information form. The Department of Revenue Child Support Program ("DOR") served the father with a notice of proceeding to establish an administrative support order, and enclosed a financial affidavit and parent information form for the father to complete within 20 days. The father was instructed to submit written proof if he had already provided support for his children.

The father failed to submit either form or any other information. The DOR then sent the father a proposed administrative order and enclosed the child support guidelines worksheet and the mother's financial affidavit. The proposed order informed the father of the projected child support obligations, including retroactive support. The DOR advised the father that he could request a hearing or contact the DOR informally if he disagreed with the proposed order.

Once again, the father neither objected to the proposed order nor requested an administrative hearing. He did not provide any new information to the DOR. This led to the entry of the final administrative support order.

The final order contained the following findings of fact and conclusions of law:

• the father failed to timely request an administrative hearing;
• the father's actual net monthly income was 82% of the combined parental net income;
• the mother was imputed an income equal to full time employment at federal minimum wage because there was a lack of sufficient, reliable information concerning her actual earnings;
• the total monthly child support need;
• the father's share of the monthly child support;
• the father had to pay retroactive support for 28 months; and
• the father's total monthly payment.

From this order, the father now appeals.

In his third issue, the father argues he paid the mother directly during the retroactive period and never received a credit. And, he argues the retroactive period itself was miscalculated as a matter of law. The DOR answers that the father waived these arguments; but if the arguments are not waived, it agrees the father is entitled to a $200 credit.

We review retroactive child support awards for an abuse of discretion. Henry v. Henry , 191 So.3d 995, 997 (Fla. 4th DCA 2016).

The father claims he cannot determine whether he received a credit for actual payments made to the mother. But, the record reflects the mother received a $200 payment during the retroactive period. The proposed order fails to reflect that credit.

While not conceding its waiver argument, the DOR admits the father should receive a $200 credit. We agree. We therefore reverse and remand the case only for the father to receive the $200 credit toward retroactive child support.

We find the other issues either waived or without merit.

Affirmed in part; reversed in part and remanded.

Gerber, C.J., and Damoorgian, J., concur.

      The father claims his failure to respond was due to his former attorney's poor guidance.


author: Kuntz, J.

text:
    FINEST KNOWN LLC, GOld and Energy Options Trader LLC, James DiGeorgia, Geoffrey Garbacz, and Quantitative Partners, Inc., Appellants, v. WEISS RESEARCH, INC., and Brad Hoppmann, Appellees.
    No. 4D16-3667
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Brian M. Becher of Frank Weinberg Black, P.L., Boca Raton, for appellants.
    Jack J. Aiello, G. Joseph Curley, Michael W. Marcil and John W. Terwilleger of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.
   Kuntz, J.

Finest Known LLC appeals the circuit court's order dismissing defendant Brad Hoppmann as a counterclaim co-defendant. We reverse based upon Edwards v. Landsman , 51 So.3d 1208 (Fla. 4th DCA 2011), a case neither party presented to the circuit court.

The underlying action relates to a contract between Finest and Weiss Research, Inc. The two entered into an agreement where Weiss would market and promote Finest's publications for fifteen years in return for a percentage of the net revenue. Finest alleged that Hoppmann was Weiss's agent. When the relationship soured, Finest sued Weiss and Hoppmann in federal court asserting claims arising under both state and federal law. The federal court recognized its mandatory jurisdiction over the federal claims, but declined to exercise supplemental jurisdiction over the state claims and dismissed them.

One day after the federal court dismissed the state claims, Weiss sued Finest in state court. Finest answered the complaint and filed a counterclaim asserting claims against Weiss and Hoppmann. Hoppmann moved to dismiss the counterclaims, arguing he was not a proper counterclaim defendant. He argued Finest was "attempting to circumvent the plain language of Rule 1.180, which governs third-party practice, by claiming to 'bring this third party claim against Hoppmann pursuant to Rule 1.170(h).' " Later, he argued "his inclusion as a counterclaim defendant was not 'required to grant complete relief in the determination of the counterclaims' by Finest against Weiss." The court agreed and dismissed the claims against Hoppmann.

We recognize the logic of the arguments raised by Hoppmann to the circuit court, and again on appeal, as well as the plain language of the rules upon which he relies. That said, our case law requires us to reach a different result.

In Edwards , like Hoppmann here, the counter-defendant "argue[d] that we should affirm the trial court's dismissal of the third-party complaint because Edwards improperly joined Landsman," and "Edwards could join Landsman only in a claim for indemnity, contribution, or subrogation." 51 So.3d at 1215 (internal quotation omitted). We held that the argument would be correct if the defendant had joined the counter-defendant under Florida Rule of Civil Procedure 1.180(a). But the defendant joined the counter-defendant under Rule 1.170(h), "which permits a party to add additional parties to a counterclaim when the 'presence' of the additional party is 'required to grant complete relief.' " Id.

The procedural posture of this case is identical. Finest joined the counter-defendant under Rule 1.170(h), alleging sufficient facts to assert claims against Hoppmann in his individual capacity. As a result, the court erred in dismissing the claims against Hoppmann. In reaching this conclusion, we express no comment about whether Finest might prevail on its claims against Hoppmann in his individual capacity.

Reversed and remanded.

Gross and Forst, JJ., concur.


author: Per Curiam.

text:
    William O'MALLEY, Appellant, v. Brian FREEMAN, Esq., and The Freeman Law Firm, P.A., Appellees.
    No. 4D17-1500
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Steven R. Browning and Xavier T. Saunders of Spohrer & Dodd, P.L., Jacksonville, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellees.
   Per Curiam.

Appellant William O'Malley appeals an order awarding Appellees Brian Freeman and the Freeman law firm $83,379.47 in attorney's fees and costs for work performed by Freeman as attorney for Appellant on a contingency fee basis. We reverse the award because the trial court erred in finding the parties had an enforceable agreement. However, as services were performed by Freeman and a benefit was received by Appellant, the trial court may award Freeman fees and costs on a quantum meruit basis. As such, we remand this issue to the trial court, with the measure of fees to be calculated utilizing the analysis discussed in Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz , 652 So.2d 366 (Fla. 1995).

Background

Appellant was in a car wreck leaving him in a coma for months. During this period, his mother signed a personal injury contingency fee contract as "personal representative of the estate of William O'Malley." However, Appellant had not executed a power of attorney, had not been declared legally incompetent, and had not been appointed a legal guardian. Soon after waking, he signed a document giving his mother power of attorney. Appellant's mother later testified that he was "totally incapacitated at that time."

Freeman claimed that he had several phone conversations with Appellant and that Appellant knew Freeman had filed suit on his behalf. Appellant later terminated the representation without explanation. Freeman never claimed to have shown the fee agreement to Appellant or otherwise attempted to have him ratify it.

The trial court found that Appellant ratified the fee agreement signed by his mother and that the "times and fees submitted by Freeman [we]re fair and reasonable for like services within the community." The trial court made an oral ruling as well, noting that Freeman's work "probably would have been of great benefit if there had been better communication but under the circumstances it's unjust for someone ... to work on a case and ... get discharged without any real explanation." The court awarded the sum Freeman sought, minus the work performed after his discharge.

Analysis

To the extent that a trial court's order on attorney's fees is based on an interpretation of the law, we have de novo review. Ferere v. Shure , 65 So.3d 1141, 1144 (Fla. 4th DCA 2011). Otherwise, particularly with respect to the amount of the award, the standard of review is abuse of discretion. Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A. , 971 So.2d 955, 956 (Fla. 5th DCA 2007).

Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer's compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client , and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.

R. Regulating Fla. Bar 4-1.5(f)(2) (emphases added).

The trial court erred in finding that Appellant ratified the contingent fee agreement. There was no testimony-let alone competent substantial evidence-that he saw the written contingent fee agreement, nor that he signed it, as required by the Bar Rule. Contingent fee agreements that do not comply with the regulations are "void as against the public interest." Chandris, S.A. v. Yanakakis , 668 So.2d 180, 181 (Fla. 1995) ; see also Bakos v. Bakos , 950 So.2d 1257, 1259-60 (Fla. 2d DCA 2007) (noting that a void contract cannot be ratified).

Even if the agreement at issue here was merely voidable, Appellant did not ratify the agreement. Any finding below of ratification by Appellant's post-coma communications with Freeman was erroneous. A promise to honor a contingent fee contract after competency is restored may suffice for ratification, but the promise must be "positive and explicit.... A mere acknowledgment is not sufficient." Lee v. Thompson , 124 Fla. 494, 168 So. 848, 850 (1936). Freeman has not argued that Appellant was ever given a copy of the Personal Injury Contingency Fee Contract or had its terms explained to him, let alone signed an agreement with Freeman providing for retroactive application. In fact, there is no evidence that Appellant had knowledge of the details of the contingent fee agreement signed by his mother. Thus, there is no basis to conclude that Appellant ratified the fee agreement.

Nevertheless, even without a valid agreement, Freeman could still recover on a quantum meruit basis. See Chandris , 668 So.2d at 186 n.4 ; Lackey v. Bridgestone/Firestone, Inc. , 855 So.2d 1186, 1188 (Fla. 3d DCA 2003) (citing footnote four in Chandris for the proposition that "[u]nder Florida law, an attorney who has no contingent fee agreement with a client is only entitled to recover on a quantum meruit basis."). On remand, in calculating the proper amount of fees for work performed by Freeman prior to being discharged, the trial court must consider "the totality of the circumstances surrounding the professional relationship," taking "into account the actual value of the services to the client." Poletz , 652 So.2d at 369 (first quoting Rosenberg v. Levin , 409 So.2d 1016, 1022 (Fla. 1982) ); see also Santini v. Cleveland Clinic Fla. , 65 So.3d 22, 33 (Fla. 4th DCA 2011) (holding "the trial court erred as a matter of law by failing to consider the totality of the circumstances present in this case, instead considering only the time reasonably expended and the reasonable hourly rate for the services." (quoting Poletz , 652 So.2d at 369 ) ).

The court must consider any other factors surrounding the professional relationship that would assist the court in fashioning an award that is fair to both the attorney and client. For example, the fee agreement itself, the reason the attorney was discharged, actions taken by the attorney or client before or after discharge, and the benefit actually conferred on the client may be relevant to that determination. The determination as to which factors are relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount to be awarded are matters within the sound discretion of the trial court.

Poletz , 652 So.2d at 369 (footnote omitted).

Among the factors that the trial court should take into account in this case are: (1) the lack of a ratified fee agreement; (2) the circumstances under which Freeman commenced legal services on behalf of Appellant, with an agreement signed by the mother of an incapacitated adult who had not signed a power of attorney agreement, and for whom time was of the essence in commencing a legal claim; and (3) the initial miscommunication between Freeman and Appellant's second set of attorneys as to the time and services expended by Freeman prior to his discharge, resulting in the new attorneys duplicating work that Freeman had already completed in the case. These factors are not exclusive and are in addition to consideration of the actual value of the services to the client.

Conclusion

As set forth above, we reverse with respect to the trial court's determination that the fee agreement signed by Freeman and Appellant's mother had been ratified by Appellant. We remand for the trial court to conduct a Poletz "totality of the circumstances" analysis in determining Freeman's entitlement to a quantum meruit award and the specific calculation of such an award.

Reversed and remanded.

Levine, Conner and Forst, JJ., concur.


author: SALTER, J.

text:
    NORTHROP GRUMMAN SYSTEMS CORPORATION, etc., Appellant, v. Rosa-Maria F. BRITT, etc., Appellee.
    No. 3D16-2583
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017.
    DLA Piper and Fredrick H.L. McClure and J. Trumon Phillips (Tampa); Munger, Tolles & Olson and Michael B. DeSanctis (Washington, DC) and John B. Major (San Francisco, CA), for appellant.
    The Ferraro Law Firm and Juan P. Bauta, II, and Janpaul Portal, for appellee.
    Crowell & Moring and William L. Anderson ; Shook Hardy & Bacon and Frank Cruz-Alvarez for Florida Justice Reform Institute and Coalition for Litigation Justice, Inc., as amici curiae.
    Before SUAREZ, SALTER and LUCK, JJ.
   SALTER, J.

This is a mesothelioma case originally brought by Dennis Britt and his wife, Rosa-Maria Britt (as to loss of consortium), as plaintiffs ("Mr. and Mrs. Britt"), against Northrop Grumman Systems Corporation ("Northrop"). In 2014, Mr. Britt passed away, and Mrs. Britt (as personal representative of his estate), was substituted for Mr. Britt. Mrs. Britt also amended the complaint to add a claim for wrongful death.

At the end of a week-long trial, the jury rendered a verdict awarding Mr. Britt's estate a total of $519,265.60 in medical and funeral expenses, and awarding Mrs. Britt $8,500,000.00 in compensatory damages. Northrop appealed and has raised five issues here:

1. Northrop argues that Mrs. Britt failed to file and serve her motion for substitution within 90 days after Mr. Britt's death was "suggested upon the record," as required by Florida Rule of Civil Procedure 1.260(a)(1), requiring dismissal of the complaint.

2. Northrop asserts that Mrs. Britt failed to prove that Mr. Britt's exposure to asbestos while on the premises of Northrop (and companies acquired by Northrop) was a substantial cause of Mr. Britt's mesothelioma, and that the trial court erred when it denied Northrop's motions for a directed verdict.

3. Northrop claims error in the trial court's rulings allowing the admission of expert testimony by Mrs. Britt's expert witness, Dr. Murray Finkelstein. Northrop alleges that Dr. Finkelstein's methodology was equivalent to an "any exposure" or "single fiber" causation opinion-a methodology discredited by the courts and one which precluded the opinion from admission into evidence.

4. Northrop also maintains that a 2013 asbestos fiber analysis and report prepared by Dr. Anna Somigliana in Milan, Italy, was a "late-disclosed and prejudicial expert opinion" that should not have been admitted into evidence.

5. Northrop contends that the trial court should not have excluded evidence regarding nonparties that may have exposed Mr. Britt to asbestos during his career, depriving Northrop of an apportionment of liability on the verdict form under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Northrop argues that there was as much evidence of causation and Mr. Britt's exposure to asbestos on the premises of nonparties Mack Trucks and Bekins as there was regarding his exposure on the premises of Northrop.

We find no reversible error regarding any of these points, and thus affirm the verdict and final judgment below. Before addressing Northrop's contentions in order, we consider the pertinent facts and proceedings that culminated in the verdict and final judgment.

Pertinent Facts and Proceedings Below

Mr. Britt was an employee benefits advisor during the period 1978-97. As part of that work, Mr. Britt visited commercial and industrial facilities to speak with, and enroll, the employees at those facilities. Those facilities included workplaces owned and operated by Northrop and subsidiaries.

Mr. Britt testified before his death that, during the course of his visits to Northrop facilities in Bethpage, New York, and Hawthorne, California, he was exposed to, and inhaled, asbestos fibers while on the premises of the facilities. He, his physician, and his expert witness, testified that Mr. Britt's exposure to the asbestos was a substantial cause of his ultimately-fatal mesothelioma.

At trial, Mrs. Britt introduced evidence that Northrop's facilities where Mr. Britt had worked contained asbestos-insulated pipes that released airborne materials above him, and ten to fifteen feet away from him, during the maintenance activities he saw during his visits. His deposition testimony that he was on site at Northrop's facilities each year from 1979 to the "mid 80s," and working in areas where asbestos remediation and maintenance activities were taking place, provided an estimate of over 500 days of exposure.

Although Mr. Britt's deposition also included his description of visits to non-party facilities owned by Mack Trucks and Bekins Van Lines, and his observations of dust and maintenance performed on pipes and boiler rooms at those facilities, there was no evidence that the pipes and boilers at those facilities were asbestos-containing. In contrast, the evidence at trial contained extensive documents and testimony regarding the presence of asbestos in the pipes and boiler rooms at the Northrop sites visited by Mr. Britt, and regarding the repair and remediation work performed during the applicable period.

There was no dispute regarding the fact that Mr. Britt was diagnosed with, and died because of, mesothelioma. The expert medical testimony in the case addressed whether asbestos fibers from the Northrop premises were a substantial cause of the mesothelioma (a classification as "asbestos-related"), or whether the mesothelioma was instead "spontaneous," "idiopathic," or "non-asbestos-related." This differential diagnosis is primarily performed through a microscopic examination of a patient's lung tissue samples to count the types of asbestos fibers and asbestos bodies per square centimeter.

Northrop's expert, Dr. Roggli, concluded that the pathological assessment of Mr. Britt's lung tissue and lymph node samples was not consistent with an asbestos-related variant of mesothelioma. The plaintiff's expert, Dr. Finkelstein, assessed Mr. Britt's exposure history-taking into account Dr. Finkelstein's own published, peer-reviewed studies on workers diagnosed with asbestos-related mesothelioma after exposure to asbestos-laden insulation-and the asbestos fiber pathology reports on tissue samples from Mr. Britt's lungs. Dr. Finkelstein also testified regarding the two other known causes of mesothelioma, ruling them out based on the facts of Mr. Britt's work and medical history.

As already noted, an asbestos fiber report prepared by Dr. Anna Somigliana regarding her microscopic examination of tissue from Mr. Britt's lungs was identified and listed on the plaintiff's pretrial exhibit catalogue on August 22, 2016, four weeks before trial was scheduled to begin. The exhibit was hand-delivered to counsel for Northrop the following day.

The jury returned a verdict in favor of Mrs. Britt. The trial court denied Northrop's renewed motion for directed verdict and entered a final judgment against Northrop. This appeal followed.

Analysis

I. The Motion for Substitution and Rule 1.260(a)(1)

Northrop's argument that Mrs. Britt's motion for substitution was untimely (following Mr. Britt's death in 2014) involves the application of Florida Rule of Civil Procedure 1.260(a)(1), presents a pure question of law, and is thus reviewed de novo. D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003).

Rule 1.260(a)(1) states that a case must be dismissed as to a deceased plaintiff if a motion for substitution is filed over 90 days "after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion." In the present case, Mr. Britt passed away on June 13, 2014. On June 16, 2014, counsel for Mrs. Britt sent an email and attached letter to the trial judges and parties advising them of Mr. Britt's death. That communication was not filed or recorded, however, in the circuit court docket or in the official records of Miami-Dade County.

The motion for substitution (which also included a motion for leave to amend) was filed and served December 4, 2014. The trial court denied the motion, but with leave to refile upon a showing demonstrating reasons for failing to comply with the 90 day requirement of Rule 1.260(a)(1). When Mrs. Britt renewed the motion with legal argument regarding the proper application of Rule 1.260(a)(1), the court granted the motion to substitute and to amend.

The question of law presented is whether counsel's prompt email and letter, essentially a courtesy notice following an event that obviously would affect pretrial proceedings, was "suggested upon the record by service of a statement of the fact of the death in the manner provided for service of the motion." If so, the motion to substitute was untimely. But if not, the motion to substitute was timely and Mr. Britt's claim was not subject to dismissal.

In the Rule's existing text, we conclude that "suggested upon the record" and "served in the manner provided for service of the motion" compel the same result. The "statement of the fact of the death" must be both (a) filed with the clerk of court for docketing to make it part of the official record in the case, and (b) "served" pursuant to Florida Rule of Judicial Administration 2.516(d), which in turn includes the requirement for the document to be "filed with the court."

In the early days of this Court, a similar question was considered in the case of Pan American World Airways, Inc. v. Gregory, 96 So.2d 669, 671 (Fla. 3d DCA 1957). The Court considered Florida Rule of Civil Procedure 1.4, "Service of Pleadings and Papers," precursor to Florida Rule of Judicial Administration 2.516(d), "Service of Pleadings and Documents:"

[A]ll the rules bearing on the method of presenting pleadings to the court should be construed together. It therefore follows that the mere service of a pleading is not enough to present the pleading to the court. An additional act is necessary and an attorney has not presented his client's pleading to the court until he has complied with that portion of Rule 1.4(d) ... providing that the pleading shall be filed with the court.

As Mrs. Britt's email and letter were not "filed with the court," the 90-day deadline in Florida Rule of Civil Procedure 1.260(a)(1) did not commence until Mrs. Britt served her motion for substitution (which included a statement of the fact of Mr. Britt's death) and also filed that motion with the clerk of court. The same conclusion was reached by another district court of appeal in Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982) (time provision of Rule 1.260(a) is triggered by the recording or filing of the suggestion of death, not simply by service on counsel). Although the trial court committed no error in allowing substitution in this case, we take the occasion to suggest that "suggested upon the record" may be an archaic phrase worthy of review by The Florida Bar's Civil Procedure Rules Committee.

II. Causation

We review the trial court's denial of Northrop's motion for directed verdict on causation de novo, but in doing so we evaluate the evidence adduced at trial in the light most favorable to Mrs. Britt, drawing every reasonable inference from that evidence in her favor. We must sustain the jury's verdict if supported by competent, substantial evidence. Frieri v. Capital Inv. Serv., Inc., 194 So.3d 451, 454 (Fla. 3d DCA 2016) ; R.J. Reynolds Tobacco Co. v. Ballard, 163 So.3d 541, 545 (Fla. 3d DCA 2015).

Northrop contends that Dr. Finkelstein's opinion failed to establish the amount of asbestos Mr. Britt inhaled over the years he visited Northrop's premises. The evidence at trial included, however, Northrop's own industrial hygienist's report that in 1985 Northrop's Hawthorne plan had "no exposure monitoring records for employees engaged in maintenance-type functions on asbestos-containing fireproofing or pipe lagging materials." A Northrop witness testified that there was no routine air sampling done at either the Hawthorne or Bethpage facilities during the period Mr. Britt was there. Northrop's records substantiated the presence of asbestos and remediation activities at the Northrop facilities in Bethpage and Hawthorne during the pertinent time periods.

The pathology and medical records reflecting the existence and level of asbestos fibers in Mr. Britt's lungs, coupled with his personal testimony regarding his visits to the premises and what he observed while there-followed by his undisputed death from mesothelioma-constitute competent, substantial evidence supporting the verdict.

III. Admissibility of Dr. Finkelstein's Expert Testimony

Northrop contends that Dr. Finkelstein's testimony was an "any exposure" or so-called "single fiber" expert opinion excludible under either Frye or Daubert, the competing standards embroiled in the legislative amendments to the Florida Evidence Code (amending sections 90.702 and 90.704, Florida Statutes (2012) ) and the Florida Supreme Court's analysis of the constitutionality of those amendments, In re Amendments to Fla. Evidence Code, 210 So.3d 1231 (Fla. 2017). For our part, after reviewing Dr. Finkelstein's testimony, credentials, published and authoritative literature, and opinions, we find no abuse of discretion under either of those standards in the present case.

Applying the more rigorous standard, Daubert and its codification in sections 90.702 and 90.704, the trial court in the present case discharged its duty as "gatekeeper" for proffered expert testimony. Dr. Finkelstein's testimony established his background and experience as a physician and epidemiologist for the Ontario Department of Labor for 30 years, studying the health of workers ("particularly asbestos workers in the province"). His doctorate in experimental physics included studies of asbestos, other crystals, and asbestos fibers.

Dr. Finkelstein conducted and published studies of workers exposed to asbestos, rock dust, silica, radioactive gas (in mines in Ontario), and air pollution. He was invited to be an epidemiologist on the Asbestos Science Advisory Board established by the Environmental Protection Agency. He testified that he had published 50 to 60 peer-reviewed research papers dealing with asbestos disease.

Regarding Mr. Britt's exposure, Dr. Finkelstein testified that "in the aggregate" Mr. Britt's presence for "at least 150 days" of exposure to asbestos at Northrop facilities was a substantial contributing cause of his ultimately-fatal mesothelioma. Dr. Finkelstein directly rejected Northrop's invitation to opine that "any," "every," or "a single" exposure to airborne asbestos could be a contributing cause to a patient's mesothelioma, noting that the removal of asbestos-containing insulation of the kind present in the Northrop facilities would involve millions of asbestos fibers per cubic yard of insulation, and that cumulative exposure was significant in Mr. Britt's case.

Dr. Finkelstein's expertise, his application of reliable methodology and peer-reviewed, published studies, and the general acceptance by the scientific community of the relationship between the inhalation of asbestos fibers and mesothelioma, distinguish the present case from the rejection, based on Daubert, of proffered "every exposure" testimony by a medical toxicologist in Crane Co. v. DeLisle, 206 So.3d 94, 103-106 (Fla. 4th DCA 2016), review granted, Case No. SC16-2182, 2017 WL 3484484 (Fla. July 11, 2017). The trial court did not abuse its discretion in admitting Dr. Finkelstein's testimony and opinions.

IV. Dr. Somigliana's Asbestos Fiber Analysis Report

Dr. Somigliana was not offered as an expert on causation, but rather as the medical professional who prepared a pathology report and could authenticate the report as a business record under section 90.803(6)(a), Florida Statutes (2016). Her deposition was permitted when Northrop declined to stipulate to the authenticity of the document. Trial court rulings on the admissibility of evidence such as the pathology report are reviewed for an abuse of discretion. Lewis v. Sun Time Corp., 47 So.3d 872, 874 (Fla. 3d DCA 2010).

Nor do we find that the timing of the turnover of the pathology report was violative of the pretrial order, "trial by ambush," or so prejudicial as to warrant a new trial or other sanction. Northrop ultimately received the report, a certified translation, a summary of the methodology used in analyzing Mr. Britt's lung tissue samples, and a deposition of Dr. Somigliana. And Northrop did not ask for other relief when the trial court invited counsel to let the court know if Northrop needed additional consideration of the issue following the deposition. The trial court did not abuse its discretion in admitting Dr. Somigliana's report.

V. Prospective Fabre Defendants

Finally, Northrop maintains that two non-party entities, Mack Trucks and Bekins, should have been included on the verdict form as Fabre defendants. Northrop argues that Mr. Britt's testimony suggested exposure to asbestos during his visits to Mack Trucks and Bekins facilities, thereby indicating that those parties may also have been a substantial contributing cause of his mesothelioma.

This argument fails, because no evidence established that asbestos was present at the non-party sites during the time Mr. Britt visited those facilities. Mrs. Britt's pretrial motion in limine to exclude evidence regarding prospective Fabre defendants was granted after Northrop failed to provide the trial court with evidence that there was asbestos in any of the products for which those prospective defendants were responsible. This burden, the presentation of sufficient evidence "to prove the non-party's liability or fault by a preponderance of the evidence," was not satisfied by a Northrop proffer or by proof at trial.

Conclusion

Based on the foregoing analysis, the final judgment is affirmed in all respects.

      When the trial court granted Mrs. Britt's motion for substitution, Northrop filed a petition for certiorari in this Court. The petition was denied without elaboration. Northrop Grumman Sys. Corp. v. Britt, 210 So.3d 64 (Fla. 3d DCA 2016) (table).

      Mr. Britt met his wife while in the military and stationed in Italy. The couple moved to the United States, but traveled frequently to visit friends and relatives in Italy. Mr. Britt received his diagnosis and much of his treatment in Italy.

      Samples extracted from a patient's lymph nodes may also assist in the diagnostic process.

      Northrop's characterization of the listing and delivery of the document as a "surprise disclosure on the eve of trial" overstates the sequence of events. Between the disclosure of the report and trial, Northrop was provided a certified translation, a disclosure of the methodology used by Dr. Somigliana and her laboratory in preparing the fiber report, and a telephonic deposition of Dr. Somigliana. The trial court encouraged Northrop's counsel to advise him if there were any remaining issues regarding access to the report and witness. Finally, Northrop's expert, Dr. Roggli, testified that his review of the report and Dr. Somigliana's testimony did not change his opinion that Mr. Britt's mesothelioma was not asbestos-related.

      The pertinent part of Rule 2.516(d) states that "[a]ll documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules." A suggestion of death is not exempted from the filing requirement "by general law or other rules," and "filed with the court" plainly is not equivalent to "emailed to the judge," unless the judge actually files the document with the clerk of court to make it a part of the official case record. In this case, the email and letter sent to the trial judges and counsel three days after Mr. Britt's death were not docketed.

      Federal Rule of Civil Procedure 25(a)(1) was the original template for Florida Rule of Civil Procedure 1.260(a)(1). The term "suggested upon the record," has been deleted from the federal provision, in favor of the simple formulation: "If the motion [for substitution] is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." Though expressing no opinion regarding this or any other revision, we are directing the Clerk of this Court to forward a copy of this opinion to The Florida Bar's Civil Procedure Rules Committee for consideration.

      Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted in Florida in Bundy v. State, 471 So.2d 9 (Fla. 1985).

      Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      McCloud v. State, 208 So.3d 668, 680 (Fla. 2016) (trial court's decision to admit or exclude expert testimony is reviewed for an abuse of discretion).

      Mr. Britt's actual testimony regarding his time at the Northrop facilities can be calculated at approximately 560 days; the exposure computation of "at least" 150 days occurred during the cross-examination of Dr. Finkelstein by Northrop's counsel.

      See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

      Honeywell Int'l, Inc. v. Guilder, 23 So.3d 867, 870 (Fla. 3d DCA 2009).