author: SCALES, J. ROTHENBERG, C.J.

text:
    FLATIRONS BANK, Appellant, v. The ALAN W. STEINBERG LIMITED PARTNERSHIP, Appellee.
    No. 3D15-1396
    District Court of Appeal of Florida, Third District.
    Opinion filed December 6, 2017

      Perez & Rodriguez, P.A., and Javier J. Rodriguez, Johanna Castellon-Vega, and Freddy X. Muñoz, Coral Gables, for appellant.
    Schwed Kahle <& Kress, P.A., and Lloyd R. Schwed and Douglas A. Kahle (Palm Beach Gardens), for appellee.

      Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   SCALES, J.

Appellant, plaintiff below, Flatirons Bank (“Flatirons”) appeals the trial court’s final judgment in favor of Appellee, defendant below, The Alan W. Steinberg Limited Partnership (“Steinberg”). We affirm because the trial court’s determination that Steinberg was not unjustly enriched is supported by competent, substantial evidence; and because Flatirons’s unjust enrichment claim against Steinberg was filed beyond the applicable statute of limitations. Further, Flatirons’s claim under the Colorado civil theft statute was properly dismissed.

I. Facts

While somewhat complicated, the relevant facts are not in dispute. Flatirons is a small community bank located in Boulder, Colorado. In early 2009, Flatirons’s former board chairman and president, Mark Yost, arranged for Flatirons to issue bogus lines of credit which enabled Yost to steal approximately $3,845,000.00 from Flatirons.

Flatirons discovered Yost’s fraud in August of 2010. In March of 2012, Flatirons’s resulting investigation revealed that, on January 20, 2009, Yost transferred $1,000,000.00 from one of the bogus lines of credit to an account at Elevations Credit Union in Colorado. The Elevations account receiving the funds was owned by ICP II LP, an entity controlled by Yost.

Later on January 20, 2009, Yost transferred the sum of $1,050,000.00 from the ICP II LP account at Elevations to another account at Elevations owned by the Yost Partnership. The Yost Partnership was a Colorado limited partnership that operated from October of 1991 until August of 2010. The Yost Partnership was an investment vehicle controlled by Yost. Limited partners of the Yost Partnership invested cash into the Yost Partnership with the expectation that their investments would be responsibly managed by Yost and would realize positive returns.

Later that same day on January 20, 2009, the Yost Partnership transferred $1,000,000.00 from the Yost Partnership account, through an account at Merrill Group in New York, to a Florida bank account owned by Steinberg. Steinberg is a New York limited partnprship that also was a limited partner and' investor in the Yost Partnership. From January of 2000 through January of 2Ó04, Steinberg invested a total of $2,200,000.00 into the Yost Partnership.

As it turns out, not only was Yost embezzling funds from Flatirons, he was grossly misleading the Yost Partnership investors and limited partners regarding the status of their investments. For example, in 2005, the total assets for the Yost Partnership were approximately $11,500,000.00, but were reported to investors at over $30,000,000.00. In January of 2009, total Yost Partnership assets were approximately $1,200,000.00, but were reported at over $28,000,000.00.

Indeed, on January 20, 2009, the date on which the Yost Partnership transferred $1,000,000.00 to Steinberg, the actual value of Steinberg’s interest in the Yost Partnership was only $138,179.90—a far cry from the $2,200,000.00 Steinberg had invested in the Yost Partnership.

Seeking to recoup somp of the stolen funds, on February 1, 2013, Flatirons filed a three-count complaint against Steinberg ■ in the Miami-Dade Circuit Court. Flatirons alleged that: (i) Steinberg was unjustly enriched by Yost’s conduct (Count I); (ii) under Colorado’s civil theft statute, Steinberg was required to repay the $1,000,000.00 to Flatirons (Count II); and (iii) Steinberg had converted Flatirons’s funds and was therefore liable to Flatirons (Count III).

The trial court dismissed Flatirons’s statutory and conversion claims. The case proceeded to a bench trial on Flatirons’s unjust enrichment claim, and Steinberg’s two principal affirmative defenses to same (that Flatirons’s claim was barred by Florida’s four-year statute of limitations and that Flatirons had unclean hands).

After the trial, the trial court made several findings of fact:

—Flatirons and Steinberg had no relationship with each other;
—Steinberg received the $1,000,000.00 in good faith and without knowledge of Yost’s fraud;
—Upon receiving the $1,000,000.00 transfer, Steinberg actually suffered a net loss of approximately $1,200,000.00 as a result of the Yost Partnership’s fraud and misconduct;
—As a result of Steinberg’s investment into the Yost Partnership, Stein-berg, had paid adequate consideration for the $1,000,000.00 that the Yost Partnership transferred to Steinberg; and
—Flatirons conferred no direct benefit on Steinberg.

Ultimately, the trial court entered final judgment for Steinberg, determining that Flatirons failed to establish its unjust enrichment claim against Steinberg. The trial court also determined that Flatirons’s unjust enrichment claim against Steinberg was barred by Florida’s four-year statute of, limitations. Flatirons timely appealed this final judgment, including the trial court’s earlier dismissal of Flatirons’s claim under Colorado’s civil theft statute.

II. Standard of Review

We review de novo both the trial court’s dismissal of Flatirons’s statutory civil theft claim and the trial court’s determination that Flatirons’s unjust enrichment claim was barred by Florida’s statute of limitations. Saltponds Condo. Ass’n, Inc. v. Walbridge Aldinger Co., 979 So.2d 1240, 1241 (Fla. 3d DCA 2008). We review the trial court’s findings-of fact regarding Flatirons’s unjust enrichment claim to determine whether those findings are supported by competent, substantial evidence. Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682 (Fla. 4th DCA 2009).

III. Analysis

A. Flatirons’s claim based on Colorado’s civil theft statute

The trial court dismissed Flatirons’s claim under Colorado’s civil theft statute, holding that Colorado’s civil theft statute was inapplicable to claims based primarily on activity occurring in Florida. The trial court reasoned that because the Florida Legislature .has enacted a civil theft statute, Florida’s statute—rather than Colorado’s—would apply because Flatirons’s claim against Steinberg was premised entirely upon Steinberg’s receipt of the stolen funds occurring exclusively in Florida.

On appeal, Flatirons argues that the trial court érred by not applying Florida “conflict of laws” tort jurisprudence to determine which civil theft statute applied. Flatirons argues that the trial court should have performed the' “significant relationships test” required by Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980)(adopting the’ significant relátion-ships test to determine which forum’s law applies in a tort action brought in Florida); and that, had the trial court correctly applied the Bishop test, Colorado’s civil theft statute would govern Flatirons’s claim because Colorado, rather than Florida, has the most significant relationships to the occurrence and the parties.

The record reflects that the trial court reviewed the four corners of Flatirons’s complaint, along with its extensive exhibits, in search pf a nexus between 'the state of Colorado and Flatirons’s claim against Steinberg. We engage in the same exercise, de novo, Morejon v. Mariners Hosp., Inc., 197 So.3d 591, 593 (Fla. 3d DCA 2016), and agree with the trial court. While Yost’s theft of Flatirons’s funds may have occurred in Colorado, nothing alleged in Flatirbns’s complaint or reflected in its exhibits, reveals any conduct, activity or omission by Steinberg that would warrant subjecting Steinberg to a Colorado statutory cause of action. Because Flatirons’s complaint is devoid of allegations establishing any nexus between Steinberg and Colorado, we need not speculate on what allegations may be sufficient to require a party, in a Florida state court, to defend against another state’s purely statutory cause of action. Suffice to say that when, as here, a complaint is devoid of allegations of conduct, activities or omissions occurring in another state, a Florida trial court has no basis to subject a .defendant to, a cause of action created by another state’s legislature.

The dissent adopts Flatirons’s argument and Suggests that the trial court reversibly erred by not conducting the significant relationships test established in Bishop. See dissenting opinion at 1215-16. Bishop holds that, in a personal injury case, the law of the state where the injury occurred generally determines the rights and liabilities of the parties, except that the law of another state will govern a particular issue in the case if that other state has a more significant relationship to that issue. Bishop, 389 So.2d at 1001.

Flatirons neither provides authority that would expand Bishop’s significant relationships test to a cause of action based on a state statutory remedy nor provides authority that would expand Bishop’s significant relationships test to a contract action. Flatirons mis-focuses its analysis on Yost’s fraudulent conduct occurring in Colorado, rather than on Steinberg’s innocent conduct resulting from its contractual relationship with the Yost Partnership, i.e., its receipt of funds in Florida. Absent at least some controlling, or even persuasive, authority, we are not inclined to subject a Florida defendant to another state’s civil theft statute when there is no allegation or inference that the Florida defendant undertook (or omitted) any activity in the other state; and of further consideration, when Florida maintains its own civil theft statute.

B. Flatirons’s unjust enrichment claim

After conducting an extensive ev-identiary hearing on Flatirons’s unjust enrichment claim, the trial court entered a detailed final judgment in Steinberg’s favor. Essentially, the trial court found that Flatirons had failed to establish the elements of unjust enrichment. We affirm because the trial court’s findings are supported by competent, substantial evidence. Specifically, the record supports the trial court’s factual finding that Steinberg had no knowledge that the sums it received on January 20, 2009, were tainted in any way, or, for that matter, originated from Flatirons. Thus, the trial court correctly determined that Flatirons had not established that Steinberg knowingly and voluntarily accepted any direct benefit conferred upon it by Flatirons. E & M Marine Corp. v. First Union Nat’l Bank, 783 So.2d 311, 312-13 (Fla. 3d DCA 2001); Coffee Pot Plaza P’ship v. Arrow Air Conditioning & Refrigeration, Inc., 412 So.2d 883, 884 (Fla. 2d DCA 1982); Nursing Care Servs., Inc. v. Dobos, 380 So.2d 516, 518 (Fla. 4th DCA 1980).

Additionally, and alternately, the trial court held that Flatirons’s unjust enrichment claim was precluded by Florida’s four-year statute of limitations. The trial court concluded that Flatirons’s cause of action accrued on January 20, 2009, when the Yost Partnership transferred the funds to Steinberg’s Florida account. Flatirons’s filed its complaint on February 1, „ 2013, more than four years after the alleged benefit was conferred.

The statute of limitations for an unjust enrichment claim begins to run at the time the alleged benefit is conferred and received by the defendant. Beltran, M.D., 125 So.3d at 859; Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571, 577 (Fla. 4th DCA 2006); Swafford v. Schweitzer, 906 So.2d 1194, 1195-96 (Fla. 4th DCA 2005).

As it did below, Flatirons argues on appeal that, because its cause of action against Steinberg was “founded upon fraud,” Florida’s delayed discovery doctrine applies, and the statute of limitations did not begin to run until Flatirons knew or should have known of Yost’s theft, which at the earliest occurred in August of 2010. While a feature of Flatirons’s unjust enrichment claim might have been Yost’s fraud and deceit, Flatirons’s unjust enrichment claim against Steinberg is not “founded upon fraud” so as to implicate Florida’s delayed discovery doctrine. Further, our Supremé Court has made-clear that the delayed discovery doctrine is inapplicable to extend the limitations period for unjust enrichment claims. Davis v. Monahan, 832 So.2d 708 (Fla. 2002); Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288, 296 (Fla. 3d DCA 2007). Therefore, the trial court correctly .ruled that Flatirons’s unjust enrichment claim was barred by Florida’s four-year statute of limitations.

IV. Conclusion

The trial court properly dismissed Flatirons’s statutory claim against Steinberg and correctly ruled that Flatirons’s unjust enrichment claim was precluded by Florida’s statute of limitations. Additionally, the trial court’s factual findings regarding Flatirons’s unjust enrichment claim' are supported by competent, substantial evidence.

Affirmed.

SALTER, J., concurs.

ROTHENBERG, C.J.

(dissenting).

Flatirons Bank (“Flatirons”), a Colorado bank and the plaintiff below, appeals: (1) the trial court’s order dismissing Count II of the amended complaint, which asserts a claim for civil theft under Colorado’s rights in stolen property statute, Colo. Rev. Staf. § 18-4-404 (2013), against the defendant below, the Alan W. Steinberg Limited Partnership (“Steinberg”); and (2) a final judgment entered" in favor of Steinberg following a non-jury trial as to Flatirons’ claim for unjust enrichment pled in Count I of the amended complaint. As will be demonstrated in this dissent, the trial court clearly erred by dismissing Count II and by entering final judgment in favor of Steinberg as to Count I.

First, the trial court erred by" dismissing Count II without first performing' a conflict of laws analysis, which requires the court to determine which state has the most significant relationship to the matter and, thus, which state’s law should be applied, The majority attempts to cure this obvious error, but it too has erred because it has failed to follow clear precedent from the Florida Supreme Court and this Court specifying the analysis that must be performed and instead applies its own test. The record, however, reflects that had the requisite analysis been performed, the unassailable conclusion would have been that Colorado has the most significant relationship to the matter, and therefore, Colorado law should be applied: And, under Colorado law, Flatirons has a viable “rights in stolen property” claim. Second, as to Cóunt I, Flatirons’ unjust enrichment claim, the majority affirms the trial court’s findings, that Flatirons failed to meet its burden of proof and that Flatirons’ unjust enrichment claim is precluded by Florida’s statute of limitations. I respectfully disagree as to both findings. ■

THE FACTS

I agree with the. majority opinion that the relevant facts are not in dispute. Yost Partnership, LP (“the Yost Partnership”) was an investment vehicle that operated from October 1991 until August 2010. At all times relevant to this case, the Yost Partnership was managed and operated by Mark Yost (‘Yost”) in Colorado. The Yost Partnership accepted money from investors for the purpose of trading securities, sometimes on margin, and making other investments in companies and real estate. Steinberg, which is located in Florida, began making investments in the Yost Partnership in 2000. Steinberg’s investments with the Yost Partnership from January 10, 2000 through January 2, 2004 totaled $2,200,000, and these investments were sent to, accepted by, and managed by Yost in Colorado.

By all accounts, the Yost Partnership was a legitimate company that suffered a sharp decline in 2005 due to bad investment decisions made by Yost, who is the President, the Chairman of the Board, and the largest shareholder of the Yost Partnership, and who was domiciled in Colorado. In order to hide this decline, the Yost Partnership began defrauding its investors by misrepresenting the company’s assets and the value of each of the limited partner’s assets. '

On September 29, 2008, Yost and other investors purchased Flatirons, a bank in Boulder, Colorado, through a holding company. Yost, who. held the largest shares in the holding company, was able to secure the positions of president, Chairman of the Board, and loan officer, and he also became the contact person for Flatirons. Based on these roles, Yost opened two lines of credit at Flatirons—one on January 16, 2009 for L. John-Drahota, and the other on February 12, 2009 for Peter Gotsch. Neither Drahota nor Gotsch, who were personal friends of Yost, were aware of or authorized these lines of credit. Yost forged their signatures on the documents that were necessary to open these lines of credit and on the subsequently issued promissory notes and loan agreements. After fraudulently securing these lines of credit, Yost submitted false collateral information, financial statements, and tax returns. Thereafter, by using the Drahota and Gotsch lines of credit, Yost fraudulently caused Flatirons to transfer a total of $3,845,000' from Flatirons to' various accounts that Yost controlled,' an -amount which was then used by Yost to make payments to the.Yost Partnership investors in order to conceal the declining value of their Yost Partnership membership interests. All of these acts were committed •in Colorado.

This appeal relates to the $1 million Yost caused Flatirons to transfer to Steinberg in Florida, through the use of the Colorado Drahota line of credit, as a purported “redemption” of a portion of Steinberg’s investments in the Yost Partnership. On January 20, 2009, using the Drahota line of credit, Yost had $1 million transferred to an account at Elevations Credit Union (“the credit union”) in Colorado in the name of an entity. controlled by Yost; transferred $1,050,000 from the first credit union account to another account at the credit union in Colorado in the name of the Yost Partnership; and then transferred $1 million from the Yost Partnership account in Colorado to Stein-berg in Florida. However, on January 20, 2009, when Steinberg received the $1 million, Steinberg was clearly not entitled to the $1 million return on its investments because, at the time, Steinberg’s membership interest in the Yost Partnership was worth only $138,179.90.

■ Yost’s fraudulent activities were not discovered until August 2010, when Flatirons contacted Gotsch to inquire about a missed loan payment. This phone call led to a full investigation and the revelation of Yost’s fraud. It was not until March 2012, however, that Flatirons discovered that Stein-berg had received $1 million of the stolen funds. Based upon a request by the Receiver appointed during the Yost Partnership investigation, Flatirons did not immediately initiate its action against Steinberg. However on February 1, 2013, less than one year -after the discovery -of the $1 million transfer to Steinberg, Flatirons filed its complaint seeking the return of the fraudulently transferred $1 million to Steinberg.

As previously stated, Flatirons appeals the trial court’s dismissal of Count II filed under Colorado’s rights in stolen property statute, Colo. Rev. Stat. § 18-4-405, and the final judgment entered in favor of Steinberg as to Flatirons’'Unjust enrichment claim pled in Count -I.’ Each -ruling and the majority’s findings .regarding Counts I and II will be addressed below.

. ANALYSIS

I. Dismissal of Count II

The trial court dismissed Count II of Flatirons’ amended complaint, which alleges statutory civil theft and ‘seeks recovery under Colorado’s rights in stolen property statute, C.R.S. § 18^4-405. The trial court dismissed Count II based-on its conclusion that because the lawsuit was filed in Florida, and there exists -a similar statute in Florida, a claim under the Colorado statute could not proceed in Florida. However, as will be fully discussed below, the trial court clearly and reversibly erred by dismissing Flatirons’ Colorado rights in stolen property claim without first performing a conflict in laws analysis and applying the “significant relationships test” as set forth in the Restatement (Second) of Conflict of Laws § 145-146 (1971), adopted by the Florida Supreme Court in Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980).

In adopting the Restatement (Second), the Florida Supreme Court in Bishop specifically stated as follows:

Instead of clinging to the traditional lex loci delicti rule, we now adopt the “significant relationships test” as set forth in the Restatement (Second) of Conflict of Laws § 145-146 (1971):
s 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in s 6.
(2) Contacts to be taken into account in applying the principles of s 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d)the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Bishop, 389 So.2d at 1001.

Several years after Bishop was decided, the Florida Supreme Court clarified that when determining whether to apply Florida law or the law of another state under Florida’s conflict of laws jurisprudence, the court must first determine if substantial rights and duties are affected or, in other words, if substantive law is an issue. Hertz Corp. v. Piccolo, 453 So.2d 12, 14 (Fla. 1984). “[I]f substantive law be an issue, the rule adopted by this court in [Bishop] applies: ‘[T]he local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship.’ ” Id. at 14 (internal citations omitted) (some alteration in original). In other words, the Court held that if the alternative state’s statute is substantive, then the significant relationships test adopted in Bishop controls.

This Court and other appellate courts of this state have performed the conflict of laws analysis and have applied the significant relationships test adopted in Bishop with respect to tort issues. For example, this Court applied the test set forth in Bishop in Avis Rent-A-Car Systems, Inc. v. Abrahantes, 517 So.2d 25 (Fla. 3d DCA 1987), and concluded that, although the lawsuit was filed in Florida, Cayman Island law should have been applied, and therefore, the trial court’s failure to apply Cayman Island law was reversible error. See also Barker v. Anderson, 546 So.2d 449, 450 (Fla. 1st DCA 1989) (concluding that the significant relationships test controlled the issue of which state’s law was applicable, where the lawsuit was filed in Florida but the injury occurred in Georgia and, after performing the Bishop analysis, finding that the trial court correctly applied Georgia law).

The trial court erred by failing to follow Bishop, Abrahantes, and Barker, and by dismissing Flatirons’ rights in stolen property claim filed pursuant to Colorado law, Colo. Rev. Stat. § 18-4-405, based on its mistaken conclusion that because there is a similar Florida statute, Florida law must be applied in the Florida court. The issue is not whether Florida law could be applied, but rather, the issue is whether Florida law should be applied.

Colorado Revised Statute section 18-4-405, Colorado’s rights in stolen property-statute, provides that the transfer of stolen property to another does not divest the owner of his right to the property, and the owner may maintain an action against any person in whose possession he finds the property. Colorado’s rights in stolen property statute differs from Florida law because Florida law protects innocent third parties in possession of stolen property while Colorado’s law does not. Because the difference between Colorado law and Florida law regarding this issue is substantive, as opposed to procedural, the trial court whs required to perform a conflict of laws analysis to determine whether Colorado or Florida has the most significant relationship to the occurrence and the parties. See Hertz Corp., 453 So.2d at 14 (“The controlling question therefore is whether the Louisiana direct action statute is substantive. If it is, then the Bishop rule dictates that the Louisiana statute controls the question of indispensable parties. If the Louisiana statute is procedural, then Florida Law controls.”).

Had the trial court performed the significant relationships test, it would have been required to consider the following undisputed record evidence. Flatirons is a Colorado bank with its principal place of business in Boulder, Colorado. Over $3 million was stolen from Flatirons in Colorado by Yost, who resided in Colorado. The fraudulent lines of credit that were opened by Yost, were opened in Colorado. One million dollars of the $3 million stolen by Yost from Flatirons in Colorado was transferred from Flatirons to a Colorado credit union account in the name of an entity controlled by Yost, and then the funds were transferred from that account to another account at the same Colorado credit union in the name of the Yost Partnership. The Yost Partnership is an Illinois limited partnership, which was managed and operated by Yost in Colorado since 2000. One million dollars of the stolen funds were ultimately transferred to an account controlled by Steinberg. Steinberg, a New York limited partnership, with its principal place of business in Florida, was an investment vehicle with over $60 million in assets, and it made several investments in the Yost Partnership, investments which were managed by Yost in Colorado between January 2000 and January 2004.

As these undisputed facte clearly reflect, the theft and the injury occurred in Colorado; the party who committed the theft resided in Colorado; and the entity the funds were stolen from was located in Colorado. Thus, under Bishop, the law of Colorado must be applied unless Florida has a more significant relationship to the theft and resulting loss. “[T]he local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some otjier state has a more significant relationship. ...” Bishop, 389 So.2d at 999 (emphasis added); see also Hertz Corp., 453 So.2d at 14. The only relationship Florida has to the theft is that the stolen funds were transferred to Stein-berg, whose principal place of business was in Florida. Because Florida does not have a more significant relationship to the case and the injury occurred in Colorado, Colorado law controls.

The trial court erred by failing to.perform a conflict of laws analysis, and for that reason alone, the dismissal of Count II must be reversed as a matter of law. The majority, however, performs its own analysis, affirms the dismissal of Count II, Flatirons’ claim under Colorado’s rights in stolen property statute, and concludes that based on the four corners of the amended complaint and the extensive exhibits, there is no nexus between the state of Colorado and Flatirons’ claim against Steinberg. The majority’s “no nexus” conclusion is premised on its finding that there is nothing alleged in the amended complaint or reflected in the exhibits that would warrant subjecting Steinberg to a Colorado statutory cause of actibn.

The majority is, however, confusing personal jurisdiction jurisprudence with a conflict of laws analysis. The issue is not whether Flatirons could have or, should have filed its complaint against Steinberg in Colorado. The complaint was filed in Florida, and there is no dispute that venue in Florida is proper. The issue is, whether, after performing a conflict of laws analysis, as adopted by the Florida Supreme Court in Bishop, Colorado law should be applied in Count II.

To reiterate, under section 145 of the Restatement (Second) of Conflict of Laws, adopted by the Florida Supreme Court in Bishop, when determining which state has the most significant relationship to the “occurrence and the parties,” the court is required to consider:

(a) the place where the injury oc- , curred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

Bishop, 389 So.2d at 1001. Had the trial court and the majority performed the significant relationships test, they would have been required to consider the following undisputed record evidence as it relates to the four factors above.

(a) The place where the injury occurred

The $1 million transferred to Steinberg was stolen from Flatirons in Colorado. Flatirons is a Colorado financial institution located in Colorado and thus the injury occurred in Colorado. Therefore, as to the first factor, only Colorado has a significant relationship to the occurrence.

(b) The place where the conduct causing the ir\jury occurred

The conduct that caused the injury to Flatirons also occurred in Colorado, not Florida. Yost opened fraudulent lines of credit at Flatirons in Colorado, and he forged the signatures on the documents necessary to open these lines of credit and on the promissory notes and loan agreements in Colorado. After submitting this false collateral information, financial statements, and tax returns in Colorado, Yost fraudulently caused Flatirons to transfer $3,845,000 from Flatirons to various accounts in Colorado. The $1 million ultimately transferred to Steinberg was transferred from the funds stolen in Colorado. Thus, as to this factor, only Colorado has a significant relationship to the occurrence.

(c) The domicile, residence, nationality, place of incorporation and place of business of the parties

This factor is weighted equally as to Colorado and Florida. Yost was domiciled in Colorado, where all of these acts and the injury occurred. The Yost Partnership was managed and operated by Yost hr Colorado since 2000. On the other hand, Steinberg is a New York limited partnership with its principal place of business in Florida. Thus, as to this factor, both Colorado and Florida have .a significant relationship to the occurrence and the parties.

(d) The place where the relationship, if any, between the parties is centered

Colorado is also the place where the relationship between the parties was centered. Steinberg, an investment vehicle, invested substantial money with the Yost Partnership. These investments were sent to the Yost Partnership, and Yost managed the investments in Colorado. In order to hide the results of Yost’s poor investment decisions, Yost began defrauding the Yost Partnership investors by issuing false reports regarding the company’s assets and creating fraudulent lines of credit to funnel money into the Yost and Yost Partnership accounts. The $1 million Yost wired to Steinberg was not earned by the Yost Partnership’s investments. Rather, it was stolen from Flatirons. Thus, the relationship between Yost, the Yost Partnership, and Steinberg was based on Stein-berg’s investments in the Colorado-based Yost Partnership, and the relationship between Flatirons and Steinberg was as a result of Yost’s attempt to hide the poor health of the Yost Partnership and Yost’s misrepresentation of the company’s assets.

In summary, the trial court erred by dismissing Count II without performing a conflict in laws analysis as mandated by Bishop. The majority has also erred by (1) failing to apply Bishop, Abrahantes, and Barker, decisions from the Florida Supreme Court, this Court, and the First District Court’ of Appeal; (2) applying its' own “nexus” analysis; and (3) incorrectly determining that the allegations and the exhibits were insufficient to “warrant”’ subjecting Steinberg to a Colorado statutory cause of action. The allegations and exhibits clearly establish that Colorado has the most significant relationship to the occurrence at issue in Count II—Yost’s theft of money from a Colorado bank and his transfer of that money to Steinberg in Florida. . .. ..

II. Count I—unjust enrichment

After conducting a non-jury trial on Flatirons’ unjust enrichment claim, the trial court entered a final judgment in favor of Steinberg, finding that: (1) Flatirons failed to satisfy its burden of proof; and (2) the unjust enrichment claim was barred by the statute of limitations. The majority affirms these findings. For the following reasons, I disagree.

(a) Flatirons met its burden of proof

To prevail on its claim for unjust enrichment, Flatirons was required to prove that: (1) Flatirons conferred a benefit upon Steinberg; (2) Steinberg had knowledge of the benefit conferred; (3) Stein-berg voluntarily accepted and retained the conferred benefit; and (4) the circumstances are such that it would be inequitable for Steinberg to retain the benefit conferred without paying Flatirons the value of that benefit. Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1242 n.4 (Fla. 2004); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 404 (Fla. 3d DCA 2009).

(1) Flatirons conferred a benefit upon Steinberg

At trial, the parties stipulated that the $1’ million Steinberg received from Yost came from (was stolen from) Flatirons. Direct contact or privity between Flatirons and Steinberg is not required. See Aceto Corp. v. TherapeuticsMD, Inc., 953 F.Supp.2d 1269, 1288 (S.D. Fla. 2013); Williams v. Wells Fargo Bank N.A., 2011 WL 4368980, at *9 (S.D. Fla. 2011).

(⅜) Steinberg had knowledge of the benefit conferred

It was. undisputed that Steinberg had full knowledge of the transfer of $1 million into its account. The majority concludes that the record supports the trial court’s finding that Steinberg had no knowledge that the money it received was tainted. However, the majority does not provide any authority in support of its position that Florida law requires that the recipient of the conferred benefit, Steinberg, must have had knowledge that the benefit conferred was fraudulent. The only citation provided by the majority, E & M Marine Corp. v. First Union National Bank, 783 So.2d 311, 312-13 (Fla. 3d DCA 2001), does not support that position. The issue in E & M Marine was whether First Union, which held a promissory note on a thirty-two foot vessel and which took possession of the vessel after the vessel was repaired, should be required to pay for the repairs when the owner failed to pay for the repairs and the owner defaulted on the note. This Court concluded that First Union was not liable for the repairs because it did not request, authorize, or have knowledge of the repairs.

In the instant case, Steinberg was aware of and accepted the fraudulent transfer. Although Steinberg might not have initially known that the money transferred to its account had been stolen from Flatirons and that Steinberg was not entitled to a $1 million return on its investment in the Yost Partnership, Steinberg was ultimately made aware of the stolen nature of the funds, and it is undisputed that despite Steinberg’s full appreciation of the theft and its lack of entitlement to any appreciation or return on its lost investment in the Yost Partnership, it still refused to return the illegally transferred funds to which Steinberg clearly was not entitled.

(3) Steinberg voluntarily accepted and retained the benefit conferred

It is undisputed that between January 2000 and January .2004, Steinberg invested $2.2 million in the Yost Partnership. Gary Frohman, the corporate representative of Steinberg, testified at trial that he was aware that the Yost Partnership had the ability to trade on margin and that Stein-berg could lose all or part of its capital investment, and this is exactly what happened. By 2009, when Steinberg received the $1 million stolen from Flatirons, the Yost Partnership’s assets totaled only $1.2 million, and Steinberg’s $2.2 million investment had shrunk to $138,179.90. Thus, the $1 million “redemption” payment made to Steinberg was a benefit that Steinberg was not entitled to receive.

Although Steinberg was unaware that Yost had lost most of Steinberg’s investment at the time it received the $1 million “redemption” payment, when Steinberg learned the truth—that when it received the $1 million transfer its investment was valued at only $138,179.90, and thus it was not entitled to a $1 million return or a redemption of its investment—it refused to return the funds that it then knew had been stolen from Flatirons.

(⅜) The circumstances are such that it would be inequitable for Steinberg to retain the $1 million

Although a thief can transfer legal title to money to a good faith recipient who has given good and adequate consideration for the money, Steinberg gave absolutely no consideration for the $1 million windfall it received. That is because when it received the $1 million from Yost, the actual value of its investment totaled only $138,179.90, and thus it had realized only a loss, not a profit from its investment. Steinberg had lost over $2 million. It did not earn $1 million from its $2.2 million investment.

To allow Steinberg to retain the $1 million it clearly is not entitled to would be inequitable because the $1 million Stein-berg received was stolen from Flatirons by Yost. The Yost Partnership operated as a legitimate investment company for many years. It was only after Yost’s poor investment decisions resulted in a sharp decline of the company’s assets that Yost- began defrauding the investors and stealing money from Flatirons to hide the true value of the company and the investors’ assets. Yost’s transfer of the stolen funds to Stein-berg, whose investment shrank from $2.2 million to $138,179.90, was made in furtherance of Yost’s scheme to hide the true value of Steinberg’s investment. To allow Steinberg to keep the $1 million it is clearly not entitled to would result in an unjustified windfall for Steinberg to the detriment of an innocent victim—Flatirons.

It is important to note that Flatirons is an innocent victim. This was not a Ponzi scheme, and Flatirons was not an investor. Steinberg was aware of the risk associated with its investment; Yost attempted to make investment decisions that would generate a profit for the Yost Partnership investors; Yost’s investment decisions resulted in the loss of most of Steinberg’s $2.2 million investment, not a profit of $1 million; and if Steinberg is permitted to retain this $1 million windfall, Flatirons, an innocent victim, will be made to pay for Yost’s poor investment decisions. This is a classic unjust enrichment claim.

(b) Flatirons’ unjust enrichment claim is not barred by the statute of limitations

The trial court and the majority have concluded that Flatirons’ unjust enrichment claim is barred by Florida’s four-year statute of limitations. The majority correctly notes that the statute of limitations for an unjust enrichment claim begins to run when the alleged benefit is conferred and received by the defendant. See § 95.11, Fla. Stat. (2013); Beltran, M.D. v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859 (Fla. 4th DCA 2013). The monies at issue were transferred to Steinberg on January 20, 2009, but Flatirons filed its lawsuit on February 1, 2013, four years and eleven days after the money was transferred. In other words, eleven days too late. Thus, unless either the delayed discovery doctrine or equitable tolling applies, Flatirons’ unjust enrichment claim is barred by the statute of limitations.

(1) The delayed discovery doctrine

The majority concludes that the delayed discovery'doctrine is inapplicable to unjust enrichment claims and cites to Davis v. Monahan, 832 So.2d 708 (Fla. 2002), and Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288, 296 (Fla. 3d DCA 2007). However, neither Davis nor Brooks prohibit application of the delayed discovery doctrine to unjust enrichment claims founded on fraud. In fact, the Florida Supreme Court in Davis specifically noted the fraud exception to the limitation of the application of the delayed discovery doctrine. Davis, 832 So.2d at 709. In quashing the Fourth District Court of Appeal’s decision applying the delayed discovery doctrine to evaluate the plaintiffs claims for breach of fiduciary duty, civil theft, conspiracy, conversion, and' unjust enrichment, the Florida' Supreme Court specifically recognized that although “the Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs,” there is an exception “for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred.” Id. at 709 (footnote omitted).

Section 95.11(3), Florida Statutes (2013), is the applicable statute governing the limitations period for Flatirons’ unjust enrichment claim, which the parties agree is four years. Florida’s delayed discovery doctrine, as codified in section 95.031(2)(a), Florida Statutes (2013), provides, in relevant part, as follows:

An action founded upon fraud under s. 95.11(3) ... must be begun within the period prescribed in this chapter, with the period ■ running from the time the facts giving rise to the cause of. action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95,11(3) ....

(emphasis added).

Flatirons’ unjust enrichment claim against Steinberg is founded upon fraud. Yost fraudulently misappropriated over $3 million from Flatirons and transferred $1 million of the $3 million to Steinberg in 2009. Yost concealed the fraudulent nature of his acts. Flatirons first discovered the misappropriation in 2010 and the fraudulent transfer to Steinberg.in 2012. Flatirons filed its lawsuit against Steinberg within one year of discovering the fraudulent transfer to Steinberg, well within the four-year statute of limitations of its initial discovery of Yost’s wrongdoing.

The Florida Supreme Court and other courts have applied the delayed discovery doctrine to similar facts. For example, the Florida Supreme Court in Miami Beach First National Bank v. Edgerly, 121 So.2d 417 (Fla. 1960), affirmed this Court’s decision to apply delayed discovery principles in an action filed by the Edgerlys (the depositors) against the bank for cashing a check drawn from their account which allegedly contained a forged endorsement. The Court held that the statute of limitations did not begin to run until discovery of the fact that a right, which-will support a cause of action, has been invaded. Id. at 420. “[T]he statute [of limitations] did not begin to run until the depositors knew, or in the exercise of ordinary business care would have discovered, that the endorsement on the subject check was forged, which is a question of fact to be determined by the trier of fact.” Id.

In Butler University v. Bahssin, 892 So.2d 1087 (Fla. 2d DCA 2004), the Second District Court of Appeal applied the delayed discovery doctrine to Butler University’s (“Butler”) action founded on the misappropriation of Butler’s property by George Verdak, a former employee of Butler, to an innocent recipient, Jennifer Bahssin. The complaint alleged that when Verdak left Butler, he took valuable dance costumes, sets, and other items belonging to Butler with him and sold them to Bahssin, an art dealer. In applying the delayed discovery doctrine, the Second District noted that “[t]he facts contained in Butler’s proposed, amended complaint are that it was prevented from discovering the loss of its property through the active concealment of Verdak’s original misappropriation by his successors in interest until Bahssin purchased the costumes in 2002.” Id. at 1092.

. In both Edgerly and Butler, the delayed discovery doctrine was applied to causes of action to recover property from a third party who had not committed the fraud that resulted in a loss to the owner of the property. Although the bank in Edgerly did not endorse the check, the Florida Supreme Court applied the delayed discovery doctrine to allow the account holder to seek recovery of its misappropriated funds from the bank that cashed the allegedly forged check. In Butler, the Second District applied the delayed discovery doctrine to allow Butler to seek recovery of its misappropriated costumes, etc. from Bahssin, who innocently purchased the stolen costumes from Verdak.

It is therefore error to preclude’ the application of the delayed discovery doctrine to Flatirons’ unjust enrichment claim against Steinberg. Although Steinberg did not commit the fraud, neither did Butler or Bahssin. However, in all three cases, the action was “founded upon fraud,” and the injured party did not immediately discover the theft due to the fraudster’s concealment of the fraud.

(2) Equitable tolling

The majority fails to address Flatirons’ alternative equitable tolling argument. “The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1133 (Fla. 1988) (footnote omitted).

The tolling doctrine is used in the interests of justice to accommodate both a defendant’s right not to' be called upon to defend a stale claim and a plaintiffs right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which focuses on the plaintiffs excusable ignorance of the limitations .period and on [the] lack.of prejudice to the defendant.

Id. at 1134 (citations and quotation-omitted) (alteration in original). Equitable tolling, unlike equitable estoppel, does not require active deception or misconduct, and “[generally, the: tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting, his rights, or has timely asserted his rights mistakenly in the wrong forum.” Id.

In the instant case, Yost • concealed the fraudulent transfer of monies from various Flatirons accounts to the Yost Partnership investors in- order to deceive the investors about the sharp decline in the company’s and the investors’ assets. ■ Based on his position of trust, Yost was able to open lines of credit by submitting forged documents and false- supporting documents without garnering suspicion.or a high level of scrutiny. When Flatirons discovered the thefts, it conducted an investigation and eventually learned that $1 million of the stolen funds had been transferred into Steinberg’s account. Based on a request by the Receiver,, Flatirons delayed the- filing of its complaint for approximately eleven months. Due to. the concealment by Yost and because Flatirons honored' the Receiver’s request, Flatirons. filed its complaint on February. 1, .2013., The filing of' the complaint was within one year of Flatirons’ discovery of the $1 million transfer to Steinberg, but eleven days,too late if the limitations period is calculated to run from the date of the transfer as opposed to the date of the discovery of the transfer.

Steinberg is clearly not entitled to the $1 million it received from Yost. At the time of the transfer, Steinberg’s investment had shrunk to $138,179.90 due to poor investment decisions made by Yost, not due to any fraud. Thus, the $1 million represents a windfall to which Steinberg is not entitled, to the detriment of Flatirons, an innocent victim, tinder these circumstances, the doctrine of equitable tolling should be applied to ':allow Flatirons to pursue its unjust enrichment claim against Steinberg. , , ■.

CONCLUSION

.- The' trial,, court erred by dismissing Count II; a' claim brought by Flatirons under Colorado Revised Statutes, section 18-4-405, without performing a conflict of laws analysis as required by Florida law. The majority also errs by failing to properly perform the same conflict of laws analysis. Thus, the dismissal of Count II should be reversed and remanded with directions to the trial court to perform a conflict of laws analysis under the test adopted by the Florida Supreme Court in Bishop.

The trial court erred by entering judgment in favor of Steinberg on Count I, unjust enrichment, because Flatirons met its burden of proof and the unjust enrichment claim is not barred by the statute of limitations. Under the delayed discovery doctrine, the unjust enrichment claim was timely filed, or in the alternative, equitable tolling is applicable based on the circumstances of this case, and therefore, Flatirons should be permitted to pursue its unjust enrichment claim against Steinberg.

Accordingly, I respectfully disagree with the majority opinion.

      . Yost had no ownership in Steinberg.

      . The Yost Partnership's $1,000,000.00 transfer to Steinberg was only part of Yost’s efforts to mollify Yost Partnership investors and limited partners. The record reflects that, of the $3,845,000.00 Yost stole from Flatirons, approximately $2,650,000.00 was used to make payments to Yost Partnership investors and limited partners..

      . Flatirons did not appeal the trial court's ’ dismissal of Flatirons’s conversion claim.

      . Colorado’s civil theft statute reads, in relevant part, as follows:
      All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part'of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property.
      Colo. Rev. Stat. § 18-4-405 (2013).

      . See § 772.11, Fla.- Stat. (2013).

      . Understandably, Flatirons did not seek recovery against Steinberg under Florida’s civil theft statute. Unlike the Colorado statute, Florida’s civil theft-statute provides no right of action against an innocent third party in possession of stolen property.

      . We note that, from a- practical perspective, had Steinberg engaged in activity in, or had sufficient minimum contacts with, Colorado so to establish personal jurisdiction, Flatirons surely -would have brought this suit in Colorado. While we need not, and do not, reach any constitutional issue, we do note thát subjecting Steinberg to Colorado’s civil theft statute—when it would defy a reasonable expectation to hale Steinberg into a Colorado court—may implicate the same due process principles upon which modern personal jurisdiction jurisprudence is based. In both its general jurisdiction jurisprudence, Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) and its specific jurisdiction jurisprudence,' Bristol Meyers Squibb Co. v. Super. Ct. of Cal. San Francisco Cty., -U.S. -, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017), the United States Supreme Court’s recent trend has been to limit the reach of a court over a defendant where the activity has minimal affiliation with or connection to the forum state.'

      . The dissent engages in the same analysis. In citing to Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla. 1984), the dissent seeks to establish that Bishop's significant relationships test controls the instant case because Colorado’s civil theft statute is substantive in nature rather than procedural. See dissenting opinion at 1219.-This detour, though, ignores the cause of action underlying Hertz Corp's conflict of laws analysis: a tort alleging personal injury that arises from a motor vehicle accident.

      . The elements of a cause of action for unjust enrichment are: (i) plaintiff has conferred a direct benefit on the defendant, who has knowledge thereof; (ii) defendant voluntarily accepts and retains the conferred benefit; and (iii) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 404 (Fla. 3d DCA 2009).

      .The dissent suggests that the trial court’s unjust enrichment verdict in Steinberg’s favor was not supported by competent, substantial evidence. See dissenting opinion at 1219-21. While different triers of fact certainly can reach different conclusions, our standard of review requires affirmance if competent, substantial evidence supports the trial court’s findings. Reimbursement Recovery, Inc., 22 So.3d at 682. The record supports Steinberg’s good faith belief that its account held the sum of $1,814,824.56, and that the $1,000,000 it received from Yost was not tainted. The record also supports the inference that Flatirons’s negligence contributed to Yost’s fraudulent activities and that Flatirons was in a far better position than Steinberg to minimize Yost’s damage. Thus, competent, substantial evidence exists in the record to support the trial court’s conclusion that it would not be inequitable for Steinberg to retain the funds it received from Yost.

      . Section 95.11 reads, in relevant part, as follows:
      Actions other than for recovery of real property shall be commenced as follows:
      (3) Within four years.—
      (k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.
      § 95.11(3)(k), Fla. Stat. (2013); Beltran, M.D. v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 859 (Fla. 4th DCA 2013).

      . Florida's delayed discovery doctrine is codified in section 95.031(2)(a), and reads, in relevant part, as follows:
      An action founded, upon fraud under s. 95.11(3) ... must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3)....
      § 95.031-(2)(a), Fla. Stat. (2013) (emphasis added).

      . In this respect, we disagree with the dissent’s view on the applicability of the delayed discovery doctrine to this case. See dissenting opinion at 1221-23. We also disagree with the dissent’s view on the applicability of equitable tolling. See dissenting opinion at 1223-24. Neither Yost's nor Steinberg’s actions prevented Flatirons from a timely asserting of its rights.

      . Without citation to any authority, Flatirons suggests that Davis has been abrogated by the Legislature’s 2003 ‘amendment to section 95,03l(2)(a). We reject this argument without further comment.

      . Flatirons correctly does not rely on the doctrine of equitable estoppel, which requires misconduct by the opposing party, because Flatirons does not contend that Steinberg was guilty of any misconduct. See Major League Baseball v. Morsani, 790 So.2d 1071, 1076-77 (Fla. 2001) (noting that equitable estoppel differs from other legal theories that may relieve a party of the statute of limitations, such as equitable tolling, in that “[e]quitable estoppel presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Hazel E. MATHIS, etc., Appellee.
    No. 3D16-2630
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017.
    King & Spalding LLP, and William L. Durham II and Valentin Leppert (Atlanta, GA), for appellant.
    William J. Wichmann (Fort Lauderdale); David J. Sales, P.A., and David J. Sales and Daniel R. Hoffman (Jupiter), for ap-pellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. Wald v. Grainger, 64 So.3d 1201, 1204-05 (Fla. 2011); Philip Morris USA, Inc. v. Ledoux, 230 So.3d 530,-, 2017 WL 4654965 (Fla. 3d DCA Oct. 18, 2017).


author: SCALES, J.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, et al., Petitioners, v. LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Respondents.
    Nos. 3D17-1457, 3D17-1500, & 3D17-1527
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Shutts & Bowen LLP, and Suzanne Y. Labrit (Tampa), Frank A. Zacherl and Patrick G. Brugger; Law Offices of Charles M-P George, and Charles M-P George; Wadsworth Law, LLP, and Christopher W. Wadsworth and Katya H. Rehders, for petitioners.
    Herssein Law Group, and Reuven Hers-sein; Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for respondents.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

United Services Automobile Association (“USAA”), the defendant/counter-plaintiff below, and non-party the Wadsworth Huott, LLP law firm (“Wadsworth”), each filed a certiorari petition with this Court seeking to quash trial court discovery orders compelling petitioners to disclose information protected by Florida’s attorney-client privilege. We consolidated the petitions, and grant them both because, under the unique facts of this case, the implied waiver of the privilege asserted by respondent, Law Offices of Herssein & Herssein, P.A. (“Herssein”), is inapplicable.

FACTS, AND RELEVANT BACKGROUND.

In July 2008, USAA entered into a legal services contract with Herssein whereby Herssein agreed to defend USAA, USAA’s affiliates and USAA’s insureds. As relevant here, Herssein agreed to defend liability claims made against homeowners insured by USAA.

In 2011, a claimant sustained personal injuries when the claimant fell after an encounter with dogs owned by Colleen Brennan, a USAA insured. The claimant made a pre-suit demand for the $100,000 policy limit of Brennan’s insurance policy. USAA accepted the demand and tendered its check for the policy limits. Rather than cashing USAA’s settlement check, the claimant, in March 2013, filed a personal injury action against Brennan and others in the Palm Beach County Circuit Court (“Claimant’s Case”). Pursuant to the 2008 legal services contract, USAA appointed Herssein to defend Brennan in Claimant’s Case.

Herssein did not seek to enforce USAA’s settlement agreement with the claimant; instead,- in May 2013, Herssein withdrew the pre-suit policy limit tender. During the course of the ensuing litigation, in October 2013, the claimant served Brennan with a proposal for settlement, again offering to settle the claimant’s claim for Brennan’s policy limits. Following Hers-sein’s advice, Brennan rejected the claimant’s renewed policy-limit demand, and served the claimant with a $65,000 counter-proposal for settlement, which the claimant rejected.

In August 2014, the trial court in Claimant’s Case entered a partial summary judgment for the claimant, finding Brennan was strictly liable for the claimant’s personal injuries. Sometime later, Brennan hired a separate lawyer, Stephen Maher, who, on February 23, 2015, advised USAA in a letter that Brennan would pursue a bad faith action against USAA, and a malpractice action against Herssein, if Brennan was exposed to a judgment in Claimant’s Case in excess of Brennan’s $100,000 policy limits. Noting the ensuing conflict of interest created by Mr. Maher’s February 23, 2015 letter, Herssein, immediately withdrew as Brennan’s counsel in Claimant’s Case.

USAA then appointed Wadsworth to succeed Herssein in representing Brennan in Claimant’s Case, which went to mediation on 'May 19, 2015. At the mediation, USAA was represented by David Lichter, one of USAA’s in-house lawyerss and out-side bad faith counsel, Frank- -Zacherl. Wadsworth and Brennan’s own. private counsel, Fred Cunningham, also attended the mediation conference on behalf of Brennan. Claimant’s Case was settled at this mediation for an amount in excess of USAA’s policy limits..Claimant’s Case was dismissed on June 30,2015.

Shortly after the mediation, settlement and dismissal of Claimant’s Case, on July 1, 2015, USAA purported to terminate its legal services agreement with Herssein, and, two weeks later, on 'July 13, 2015, Herssein brought the instant lawsuit against USAA in the Miami-Dade Circuit Court. Herssein generally alleges that USAA violated ■ its legal services agreement with Herssein by, inter alia, failing to appoint Herssein to a sufficient number of PIP defense -cases. Herssein’s lawsuit seeks in excess of $20,000,000 in damages.

In February 2017, USAA filed a counterclaim against-Herssein alleging, in one of the counterclaim’s five counts, that .USAA suffered damages as a result of Herssein’s allegedly negligent handling of Claimant’s Case. On March 7, 2017, Hers-sein propounded interrogatories on USAA regarding USAA’s malpractice claim involving Claimant’s Case, including the following interrogatory relevant here:

INTERROGATORY NO. 15. Whose advice did USAA take to settle [Clai-maint’s Case] and pay over the insured’s policy limits, if that is what occurred?

USAA objected to this interrogatory based on the attorney-client privilege, and Hers-sein moved to compel USAA to answer the interrogatory. The trial court held a hearing on Herssein’s motion on May 23, 2017, and entered an order compelling USAA to answer the interrogatory.

On March 27, 2017, Herssein served Wadsworth with a non-party subpoena seeking information related to Wads-worth’s representation of Brennan in Claimant’s Case. The subpoena sought the following documents:

1. Any and all correspondence, emails, notes, documents, or electronic version of any correspondence, emails, notes, letters, documents by or between any person including you or your firm and any person or party involved [in Claimant’s Case], including USAA, of any kind.
2. Any emails, notes, letters, documents or electronic version of any correspondence, emails, notes, letters, document[s] regarding Hers-sein Law Group or Reuven Herssein from January 2015 to date.

Wadsworth objected to the subpoena based on the attorney-client privilege and, on May 30, 2017, the trial court entered an order requiring Wadsworth to produce the documents to the court for an in camera inspection.,

USAA seeks certiorari review of the trial court’s May 23, 2017 order, and Wads-worth seeks certiorari review of the trial court’s May 30, 2017 order. We consolidated the two petitions and grant same.

STANDARD OF REVIEW

“Certiorari review extends to discovery orders which depart from the essential requirements of law, cause material injury to a petitioner throughout the remainder of the proceedings, and effectively leave no adequate remedy on appeal.” Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998). “Orders compelling production of matters claimed to be protected by the attorney-client privilege ... present the required potential for irreparable harm.” Id.

ANALYSIS

1. Florida’s Attorney-Client Privilege and the “Malpractice Exception”

Florida’s attorney-client privilege is codified in section 90.502(2) of the Florida Statutes (2017), which provides that “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” A “communication” between a lawyer and a client is “confidential” if the communication is not intended to be disclosed to third persons. See § 90.502(l)(c), Fla. Stat. (2017).

The “malpractice exception” to the privilege is codified in section 90.502(4)(c), which provides that “[t]here is no lawyer-client privilege ... when ... [a] communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.”

2. USAA’s Petition—Case Number 3D17-U57

At first blush, it may seem that Herssein’s interrogatory seeks only the identity of a USAA lawyer, rather than any confidential communication between USAA and its lawyer. Generally, such identity information is not protected by the attorney-client privilege. See Coffey-Garcia v. S. Miami Hosp., Inc., 194 So.3d 533, 537-38 (Fla. 3d DCA 2016) (recognizing that because the lawyer-client privilege set forth in section 90.502 “protects only communications to and from a lawyer,” the plaintiff in a malpractice action .could be compelled to answer, deposition questions regarding “the names of the attorneys whom she consulted with” in pursuing her claim). After all, who attended the mediation conference in Claimant’s Case on behalf of USAA is certainly no secret to the parties; and, that USAA settled Claimant’s Case is no secret either. But, the wording of the interrogatory seeks the identity of the lawyer who advised USAA to settle the case at the mediation. There is no practical difference, then, between this interrogatory question and asking USAA to divulge the content of the legal advice each attorney attending the mediation provided to USAA. Plainly, then, the subject interrogatory seeks confidential communications between USAA and its lawyers and is protected by the attorney-client privilege. See id. at 538-39 (finding that while the plaintiff could be compelled to reveal “the names of the attorneys whom she consulted with” in pursuing a medical mal-

practice claim, “the- reasons why she sought out legal counsel and any subsequent counsel” was protected by the attorney-client privilege).

The trial court concluded, however, that the “malpractice exception” to the privilege applies to the subject communications and ordered USAA to answer the interrogatory. We find the trial court erred for the following reasons. The trial court determined that Herssein was entitled to know who advised USAA to settle Claimant’s Case for an amount in excess of policy limits at mediation—if that was, in fact, what happened—as USAA claimed that Herssein committed malpractice by advising Brennan against settling Claimant’s Case for policy limits. The trial court explained: “I can’t see how [Herssein can] defend the malpractice case-without this information.”

Nevertheless, while the contents of the confidential communications between USAA and its mediation counsel may have some relevancy regarding whether Hers-sein’s settlement advice breached a legal duty owed to USAA and its insured, we are persuaded by our sister court’s rationale that the “malpractice exception” applies only to communications between the client and the lawyer being sued. See Coyne, 715 So.2d at 1022-23. Just as the Fourth District did in Coyné, we decline to extend the “malpractice exception” to compel a lawyer’s former client to disclose confidential communications with that client’s other lawyers simply because such information may be relevant to the former lawyer’s defense of the client’s malpractice case against the lawyer. Id. at 1023; see also Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 509 (Fla. 2d DCA 2006) (citing Coyne, stating “[t]he possibility that the disputed documents may be relevant to or may assist the lawyers in their defense or in their third-party claims, or may perhaps assist in the lawyer’s efforts to impeach the clients, does not.create a waiver of the privilege”).

We, therefore, grant USAA’s petition, and quash the trial court’s May 23, 2017 order requiring USAA to answer interrogatory 15.

3. Wadsworth’s Petition—Case Nwmr . ber 3D17-1500

As mentioned above, USAA appointed Wadsworth to represent Brennan when Herssein withdrew from representing Brennan in Claimant’s Case. After USAA sued Herssein for Herssein’s alleged malpractice in representing Brennan, Herssein served Wadsworth with a non-party subpoena seeking communications regarding Wadsworth’s representation of Brennan in Claimant’s Case. Again, relying on the “malpractice exception/’ the trial court overruled Wadsworth’s objections and compelled Wadsworth to produce the documents—except for any communications between Wadsworth and Brennan—for an in camera inspection by the trial court.

As we did with USAA’s petition, we find here that the “malpractice exception” is applicable only to communications between the client and the lawyer being sued for malpractice. See Coyne, 715 So.2d at 1022-23. The “malpractice exception,” therefore, is inapplicable to communications between USAA and Wadsworth.

Interestingly, though, Herssein suggests that Wadsworth and USAA' did not have an attorney-client relationship. Herssein argues that Wadsworth’s actual client in Claimant’s Case was not USAA, but rather, only Brennan. Herssein additionally argues that once Brennan’s private counsel, Mr; Maher, notified USAA of Brennan’s intention to sue USAA for bad faith on February 23, 2015, USAA and Brennan’s interests were no longer aligned so that any imputed attorney-client relationship between USAA and Wadsworth was destroyed. Therefore, Herssein argues, any communications between Wads-worth and USAA are not protected by the attorney-client privilege.

These arguments are unpersuasive. While the insured is the attorney’s client when an attorney is hired by an insurance company to represent an insured in a liability case, it is well settled that communications between am insurer and the lawyer hired by the- insurer to protect the insured’s interests are protected by the attorney-client privilege because the insurer and insured share a common interest in the outcome of the case. See Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 908 (Fla. 3d DCA 2004) (“[W]hen an insurer accepts the defense obligations of its insured, certain interests of the insured and the insurer essentially merge.”). Similarly, an insurer’s fiduciary obligation to its insured, and the common interests of the insured and insurer, continue even after the insured notifies the insurer of a potential bad faith claim. See id. at 908, 909 (stating that “a liability insurer has a continuing duty to use the degree of care and diligence a person would exercise in the management of his or own business when it undertakes to defend it insured,” finding that where “‘[t]he relationship between [the parties] evolved from fiduciary to adversarial, or a combination of the two, with no clear line of demarcation separating them,”’ that the attorney-client privilege still applied (quoting Fla. Sheriff's Self-Insurance Fund v. Escambia Cty., 585 So.2d 461, 463 (Fla. 1st DCA 1991))); Cone v. Culverhouse, 687 So.2d 888, 893 (Fla. 2d DCA 1997) (recognizing “that ‘common interest’ can exist, even if some conflict is present or stands between the clients”).

Indeed, notwithstanding Mr. Maher’s February 23, 2105 bad faith letter to USAA, at all times relevant, the interests of both USAA and Brennan were common and aligned in defending against Claimant’s Case. Thus, the confidential communications between USAA and Wadsworth remain protected by the attorney-client privilege from discovery by Herssein. See Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 467 (Fla. 2d DCA 2007) (“[T]he confidential communications between the insured, the insurer, and any counsel representing them regarding the matter of common interest are protected by the attorney-client privilege from discovery by third parties.”).

We, therefore, grant Wadsworth’s petition, and quash the trial court’s May 30, 2017 order.

CONCLUSION

In sum, USAA’s communications with ■both of its own- lawyers, and with Wads-worth, the lawyer USAA hired' to’ represent Brennan, are protected by the attorney-client privilege, and, given this case’s unique situation, the “malpractice exception” is inapplicable to those communications.

' We grant both petitions, quash the challenged orders, and dismiss as moot, Wads-worth’s appeal.

      , While not relevant to the issues before us, we note that the agreement between USAA and Herssein is memorialized by several documents, various extensions, amendments, et cetera.

      . The settlement amount is confidential.

      . The hearing transcripts reflect that the trial court had already determined that the requested communications were not privileged, but ordered the in camera inspection to prevent the disclosure of irrelevant material.

      . The trial court’s order expressly states that Wadsworth is not.required to produce any communications between Wadsworth and Brennan.

      . Because we find the “malpractice exception” inapplicable in this case, we express no opinion on the relevancy of such communications.

      , Because Wadsworth is a non-party to, the lawsuit between USAA and Herssein, the trial court's May 30, 2017 order compelling Wads-worth to respond to Herssein’s non-party subpoena is, indeed, a final order as to Wadsworth. See Fla. House of Representatives v. Expedia, Inc., 85 So.3d 517, 520 (Fla. 1st DCA 2012) (finding that an order compelling discovery by third parties was final because it "adjudicates the legal rights of nonparties and because it otherwise meets the general test of ' finality”), Hence, in addition to filing the-instant petition for writ of certiorari, Wads- , worth also filed an appeal of the-trial court’s order. We assigned case number 3D17-1527 to this appeal. See Fla. R. App, P. 9.030(b)(1)(A); Office of the Public Defender v. Lakicevic, 215 So.3d 112 (Fla. 3d DCA 2017) (treating an order denying the public defender’s motion for a protective order from a third-party subpoena duces tecum for deposition as a final order reviewable on appeal, rather than via a petition for writ of certiora-ri). We consolidated Wadsworth's appeal with the two' petitions, and, because we are quashing the subject order, we dismiss, as moot, Wadsworth’s appeal in case number '3D17-1527. We need not, and therefore do not, reach the perplexing issue of whether it is a better practice for a non-party to seek appellate, father than certiorari, review of a final discovery order,

      .. see Marlin v. State Farm Auto. Ins. Co., 761 So.2d 380, 381 (Fla. 4th DCA 2000) (holding that where the insurer retains an attorney to represent the insured pursuant to 'an insurance policy, the attorney "acts in the capacity of an independent contractor” for the insured)


author: EMAS, J.

text:
    Torino Antwan BENTLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-893
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Woodward & Reizenstein and Philip L. Reizenstein, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   EMAS, J.

INTRODUCTION

Torino Antwan Bentley appeals from his conviction and sentence for lewd and lascivious battery on a child (twelve years or older but less than sixteen years of age), in violation of section 800.04(4)(a), Florida Statutes (2013). We find no error and affirm.

BACKGROUND AND PROCEDURAL HISTORY

On April 9, 2013, a City of Miami Police Commander, assigned to the State Attorney’s Human Trafficking Task Force, was called by a woman who reported that her thirteen-year-old daughter had run away. The Commander conducted an investigation which led him to a phone number from which the victim had recently called. That phone number led the Commander and another officer to Bentley’s address.

When the officers arrived at the house, Bentley and his father were home. The officers advised they were looking for a thirteen-year-old girl who they believed was in danger, and that they were aware this girl had used Bentley’s phone. Bentley first told police that he had met the girl the night before at a convenience store, and let her use his phone. When the officers asked Bentley if they could search the home for the girl, Bentley became nervous, but nevertheless consented. When the officers entered Bentley’s bedroom, they noticed the bed skirt was moving. Upon being prompted by one of the officers, the victim emerged from under the bed naked. The officers noticed that there was blood everywhere, including on the bed, and bloody items in a plastic grocery bag hanging from the bedroom door.

The victim told the officers that she had run away from home, and was tired and hungry when she encountered Bentley at a corner store the previous evening. Bentley was in his car, and asked the victim if she needed a ride and if she wanted to “chill.” The victim said yes, and got in Bentley’s car. Bentley took her to his house, and into his bedroom, and asked her if she was hungry. He gave her some fries that were in the bedroom, and then she used his phone to call her mom and her aunt. The victim said she had no place to go, and did not want to go to her aunt’s house because she had run away and her aunt did not want to get into trouble.

The victim took a shower at Bentley’s house, and put on clothes he gave her. When she laid down to go to sleep, Bentley told her he wanted to have sex. She had sex with him twice, both times with a condom, which Bentley then put in a plastic bag. When the victim woke up in the morning, Bentley told her to hide under the bed, which she did until the police told her to come out. The victim told police that the stains on the bed were because she was menstruating.

Bentley later admitted that he lied to the police about the victim being at the house because he was scared. He told the officers that he met her the night before, and she did not have a place to stay, so he allowed her to come home with him, but he did not know she was thirteen, and thought she was eighteen. He admitted having sex with her. Bentley was arrested and later charged by information with lewd and lascivious assault on a child, older than twelve and younger than sixteen

Prior to trial, defense counsel sought production of records from a prior case involving the victim, in which she was a victim of human trafficking.. However, the State objected, contending that the defense should not be provided these documents because they were completely unrelated and irrelevant to Bentley and the present case. Defense counsel sought these documents in an attempt to establish a defense, and referred to tjie fact that the victim was a prostitute. The court advised defense counsel it could not cross examine the victim regarding her status as a victim of crime in another case, and that the State was not obligated to provide the documents sought. Further, the court instructed defense counsel not to “refer to her as a prostitute.”

The case proceeded to trial and, before the jury was brought into the courtroom* the State moved in limine to prevent defense counsel from going into specific instances of prior consensual sexual activity between the victim and any person other than Bentley. Defense counsel objected, arguing its defense was that the victim was a prostitute. The court reiterated its earlier ruling and prohibited defense counsel from referring to the thirteen-year-old victim as a prostitute and prohibited counsel from eliciting any evidence of prior-consensual sexual activity between the victim and any person other than Bentley. The court also prohibited the introduction of any evidence that the victim was previously a victim of human trafficking. Following trial, Bentley was convicted as charged of lewd or lascivious battery. The trial court sentenced Bentley to thirty-six months in prison.

ANALYSIS

.Bentley raises three claims on appeal. First, Bentley asserts that the .trial court erred in its finding that the State provided a genuine race-neutral and gender-neutral reason for its peremptory challenge of a prospective juror. Upon our review of the record, and applying an abuse of discretion standard, see Files v. State, 613 So.2d 1301 (Fla. 1992), we hold that the trial court did not abuse its broad discretion in permitting the peremptory challenge and in its determination of genuineness.

The State had initially moved the trial court to strike this juror for cause. The trial court denied this for-cause challenge, determining that the juror’s responses to'questions during voir dire did not justify striking the prospective juror for cause. See Fla. R. Crim. P. 3.300(c) and § 913.03, Fla. Stat. (2015) (addressing challenges of prospective jurors for cause). That determination by the trial court did not, however, foreclose the State’s subsequent use of a peremptory challenge to strike this same prospective juror. In exercising its peremptory challenge, the State gave race- and gender-neutral reasons, which the trial court found to be genuine. We find no error in-,this determination.

Second, Bentley asserts that the State made improper closing argument, requiring a new trial. However, defense counsel failed to preserve this issue by making a contemporaneous objection, and therefore, has waived the. issue 'on appeal. Bell v. State, 108 So.3d 639, 650 (Fla. 2013); Brooks v. State, 762 So.2d 879, 898 (Fla. 2000). The sóle exception to the contemporaneous objection requirement is where the unobjected-to arguments rise to the level of fundamental error. Id. at 899. To constitute fundamental error, “the error must ‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (quoting Brown v. State, 124 So.2d 481 (Fla. 1960)). The brief comments complained of here do not approach this level of error. In fact, a fair reading of the comment, in context, indicates that it was made in fair reply to the arguments made by the defense in its closing.

Finally, Bentley argues that the trial court improperly limited its defense by restricting cross-examination and excluding evidence on his theory of defense. This claim, reviewed for an abuse of discretion, King v. State, 89 So.3d 209 (Fla. 2012), is without merit. Bentley was charged with lewd and lascivious battery upon a thirteen-year old victim. The ostensible theory of defense, as best we can surmise from the record, is that the victim had previously been a victim of human trafficking, where she was “pimped out” as a prostitute; that Bentley (who had no involvement in the.prior acts of human trafficking) met the victim “in the street” and offered her food, a place to stay, and money, all of which the victim readily accepted; that he did not “force” the victim to engage in sex and that in fact it was the thirteen-year old victim, rather than Bentley, who initiated the sexual activity.

Prior to the trial, the defense announced its intent to cross-examine the victim on the fact that she had been a prostitute as a result of a prior unrelated instance of human trafficking, and that she was the “sexual aggressor” who initiated the sexual activity with Bentley. The trial court properly exercised its discretion in excluding evidence of the victim’s alleged unrelated acts of prostitution as a victim of human trafficking, as this was not relevant to, or probative of, the offense charged, a valid defense to the charge, or the issues in dispute. See, e.g., Carlyle v. State, 945 So.2d 540 (Fla. 2d DCA 2006).

The trial court also properly prohibited the defense from introducing evidence that the victim was the “initiator” of the sexual contact, as consent is not a defense to the crime charged. See § 800.04(2), Fla. Stat. (2013) (providing that “[n]either the victim’s lack of chastity nor the victim’s consent is a defense to the crime, proscribed by this section”); Khianthalat v. State, 935 So.2d 583, 586 (Fla. 2d DCA 2006) (consent is not ¿ defense to crime of lewd and lascivious battery on a child twelve years of age or older but less than sixteen years of age); State v. Raleigh, 686 So.2d 621 (Fla. 5th DCA 1996). Accord, Bullington v. State, 616 So.2d 1036, 1039 (Fla. 3d DCA 1993) (reversing conviction for sexual battery (under section 794.011) because the State failed to prove lack of consent, but noting that, had the State charged defendant with a crime under section 800.04, the evidence would have sustained the conviction, since under that statute “neither the victim’s consent nor the defendant’s belief that the victim is sixteen or older is a defense to the crime charged.”)

Bentley contends he was entitled to introduce this testimony as part of his theory of defense, relying upon Smith v. State, 98 So.3d 632 (Fla. 4th DCA 2012). However, Bentley’s reliance on Smith is misplaced. In that ease, Ms. Smith was charged with several counts of sexual battery on a child and lewd or lascivious molestation upon a child. The victim was D.S., Smith’s adoptive child. It was alleged that the unlawful contact began with Smith kissing D.S. when he was thirteen years old, followed by acts of improper touching and ending ultimately in acts' of sexual intercourse.

Smith admitted to kissing D.S., but she denied engaging in any lewd or lascivious molestation or sexual battery of D.S. Her theory of defense was that she had been sexually assaulted by D.S. against her will. Smith testified at trial that she had rejected incidents of sexual behavior initiated by D.S., and that it was D.S. who committed acts of sexual battery upon her. Smith testified that the first act occurred when she had fallen asleep watching television and was awakened to D.S. sexually attacking her. She did not immediately report this, because D.S. was her son. Six months later, however, he sexually assaulted her a second time, forcing her to have intercourse with him. At this point Smith contacted a therapist to get help for D.S., realizing that he needed counseling for his behavior. Smith introduced other evidence in support of her testimony, and in' support of her theory of defense.

At the conclusion of the evidence, Smith requested that the trial court instruct the jury:

[Smith] has asserted a defense that [D.S.] committed a sexual assault and or a sexual battery against her. It is a defense to the crimes charged if you find that [D.S.] committed a sexual assault and or a sexual battery against [Smith].

The trial court denied the requested instruction, and the Fourth District reversed, holding that Smith was entitled to the requested instruction on her theory of defense, a defense which our sister court described as a claim “that the sexual intercourse was an assault on her against her will.” Id. at 639. The Fourth District concluded that, in the absence of the requested instruction on Smith’s theory of defense, “the jury could find appellant guilty even if she was raped.” Id.

Here, by contrast, Bentley’s “theory of defense” was not that the victim committed a sexual battery upon Bentley against his will. Rather, it was in the nature of a consent or quasi-consent defense, which, as previously discussed, is not a valid defense to the charged offense of lewd and lascivious battery upon the thirteen-year-old victim. It is irrelevant that the victim was not “forced” to go home with Bentley, was not “forced” to eat at his house or sleep in his room, was not “forced” to have sex with him (whether or not in exchange for food, shelter or money). In like fashion, whether the victim allegedly “initiated” the sexual activity (to which Bentley was a willing participant) was legally irrelevant. Bentley did not testify at the trial or seek to present any evidence that the sexual activity engaged in was “an assault on [him] against his will.” Id This case is therefore distinguishable from Smith and the trial court committed no error in excluding the proffered evidence.

Affirmed.

      . That subsection provides in pertinent part:
      (4) Lewd or lascivious battery.—
      (a) A person commits lewd or lascivious battery by:
      1. Engaging in sexual activity with a person 12 years of age or older but less than 16 years of age ....

      , We note that Bentley’s appellate counsel did not represent Bentley during the trial.

      . Nevertheless, at trial, defense counsel elicited significant testimony that the victim had previously been a victim of human trafficking.


text:
    The CITY OF MIAMI BEACH, Florida, Appellant, v. FLORIDA RETAIL FEDERATION, INC., et al., Appellees.
    No. 3D17-705
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Raul J. Aguila, City Attorney, and Donald M. Papy, Chief Deputy City Attorney, and Robert F. Rosenwald, Jr., First Assistant City Attorney, Miami Beach, for appellant.
    Fisher & Phillips LLP, and Charles S. Caulkins, James C. Polkinghorn and Candice Pinares-Baez (Fort Lauderdale); Pamela Jo Bondi, Attorney General, and Amit Agarwal, Solicitor General, and Jonathan L. Williams, Deputy Solicitor General (Tallahassee), for appellees.
    Ross & Girten, and Lauri Waldman Ross, and Theresa L. Girten, Miami, for Talbot “Sandy” D’Alemberte and other Legal Scholars as amicus curiae.
    Kozyak Tropin & Throckmorton LLP, and Corali Lopez-Castro, Miami; Craig E. Leen, City, Attorney, for City of Coral Gables as amicus curiae.
    Entin & Della Fera, P.A., and Richard F. Della Fera and Alvin E. Entin (Fort Lauderdale), for Main Street Alliance, as amicus curiae.
    Hunton & Williams LLP, and Michael J. Mueller, for The Academy of Florida Management Attorneys, Inc., Associated Builders & Contractors, Inc.—Florida East Coast Chapter, Associated. Industries of Florida, and National Federation of Independent Business, as amici curiae.
    Before EMAS, SCALES and LINDSEY, JJ.
   SCALES, J.

The City of Miami Beach (“City”), appellant and defendant below, appeals a summary judgment in favor of Florida Retail Federation, Inc. and other plaintiffs (“Ap-pellees”) that invalidated City’s minimum wage ordinance. We agree with the trial court, that section 218.077(2) of the Florida Statutes is a preemption statute that expressly prohibits political subdivisions of the state from establishing a minimum wage; and that Article X, Section 24 of the Florida Constitution, approved by the voters in 2004, did not invalidate section 218.077’s preemption provision.

I. Facts

The relevant facts are not in dispute. In 2003, the Florida Legislature enacted section 218.077 which established the federal minimum wage as the minimum wage for the state of Florida. Subsection (2) of this statute preempted local government ordinances that would seek to raise the minimum wage above the federal wage ■amount.

The following year, in 2004, Florida’s voters passed a citizens’ initiative to amend the Florida Constitution by adding Article X, Section 24 to it. This amendment established a higher, statewide minimum wage than the federal minimum wage. Included in this amendment was the following subsection (f):

This Amendment provides for payment of a minimum wage and shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this amendment. (Emphasis added.)

Notwithstanding section 218.077(2)’s express restriction, City construed this provision in the amendment as granting it authority to enact a minimum wage higher than the one authorized by Article X, Section 24. Thus, in 2016, City enacted into its code of ordinances “Article XVII—City Minimum Living Wage.” City’s ordinance requires every employer subject to City’s business tax receipt requirement to pay its workers City’s minimum wage if those workers are otherwise covered by the Federal Fair Labor Standards Act.

In December of 2016, Appellees filed a two-count complaint against City seeking to invalidate- City’s minimum wage ordinance. The parties filed cross motions for summary judgment and, on March 27, 2017, the.trial court entered a final summary judgment for Appellees. City timely appealed the trial court’s summary judgment.

II. Analysis

City’s principal argument is that the trial court erred by not concluding that the 2004 amendment to the Florida Constitution, which added Article X, Section 24, including subsection (f), nullified the preemption provision of section 218.077. City argues that the 2004 amendment was in “direct response” to the Legislature’s enactment of section 218.077 in 2003, and the trial court also erred by failing to give effect to the circumstances surrounding the adoption of this constitutional provision. Conversely, Appellees argue that the plain language of the constitutional amendment does not affect the Legislature’s express constitutional authority to'preempt, by law, municipal powers.

As the trial court did, we focus on the text of the relevant constitutional provisions, construing their meaning in the same manner as we would construe a statute. Graham v. Haridopolos, 108 So.3d 597, 603 (Fla. 2013). If the language of a constitutional amendment' is clear and unambiguous, then we must enforce it as written. Id. This particular constitutional amendment is a product of a citizens’ initiative approved by Florida voters pursuant to Article XI, section 3 of the Florida Constitution. As such, its explanatory history is limited, which can complicate a court’s effort to determine the intent of the formulators of the proposed amendment and the voters who encountered it in stark print in voting booths. See Benjamin, 998 So.2d at 570; Zingale v. Powell, 885 So.2d 277, 282 (Fla. 2004). There is, however, no better perspective on intent than from an explicit text.

Further, when we examine City’s argument that Article X, Section 24(f) nullifies the statute’s preemption provision, we must observe that the statute itself enjoys a presumption of correctness. Fla. Dep’t of Revenue v. Am. Bus. USA Corp., 191 So.3d 906, 911 (Fla. 2016) (explaining that “in all constitutional challenges,” statutes enjoy a “presumption of correctness and all reasonable doubts. are to be resolved in favor of constitutionality”). Indeed, it is without dispute that Article VIII, Section 2(b) of the Florida Constitution authorizes the Legislature to preempt municipal powers. Masone v. City of Aventura, 147 So.3d 492, 495 (Fla. 2014) (“Municipal ordinances must yield to state statutes.”); and-, further, that the Legislature’s enactment of section 218.077 was within the Legislature’s constitutional authority.

In this case, it is clear that the relevant provision of the amendment contains no language expressly nullifying, or limiting the statute’s preemption provision. Rather, the relevant provision of the amendment states that the amendment both “provides for payment of a minimum wage” and “shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public- body” to adopt a higher minimum wage. Art. X, § 24(f), Fla. Const. Thus, a plain reading of the text-of section 24(f) tells us that this constitutional provision (i) does not directly preempt City’s higher minimum wage, but also (ii) does not nullify or limit the effectiveness of section 218.077(2), in which the Legislature, through its power to preempt municipal regulation via statute, sought to prohibit political subdivisions from establishing their own minimum wage.

Certainly, had the drafters of Article X, Section 24 wanted to restrict the Legislature’s ability to prohibit a municipality from adopting its own minimum wage ordinance, they could have employed clear and direct language to achieve that purpose. For whatever reason, the drafters of the provision chose not to incorporate such language in the text of the amendment and we decline City’s invitation to do so by judicial fiat.

We conclude that the 2004 constitutional amendment did not nullify the State’s wage preemption statute, which indeed does prohibit local minimum wage ordinances such as the one enacted by City in 2016. Further, we reject the City’s argument that the 2003 statute and the 2004 constitutional amendment cannot be read in harmony. As we have explained, Article X, Section 24 and Florida Statutes section 218.077 can stand together without one toppling the other.

III. Conclusion

Because section 218.077(2) of the Florida Statutes prevents a municipality from adopting its own minimum wage, and the 2004 amendment to the Florida Constitution does not nullify or limit this statute, we affirm the trial court’s summary judgment invalidating City’s 2016 minimum wage ordinance.

Affirmed.

      . In addition to Florida Retail Federation, the Appellees are Cefra, Inc., Florida Chamber of Commerce, Inc., Gavin Shamrock, Inc., Start Again, Inc., and Florida Restaurant and Lodging Association. Because the constitutionality of a state statute is at issue in this case, the State of Florida intervened below, fifed a response in opposition to City's motion for summary judgment, and filed a brief in this appeal as an Appellee.

      . Section 218.077(2) reads, in its entirety, as follows: “Except as otherwise provided in subsection (3), a political subdivision may not establish, mandate, or otherwise require an employer to pay a minimum wage, other than a state or federal minimum wage, to apply a state or federal minimum wage to wages exempt from a state or federal' minimum wage, or to provide employment benefits not otherwise required by state or federal law.” Subsection (3)(a)l-3 excepts from subsection (2)’s preemption certain specified situations and authorizes local governments to establish a minimum wage other than a state or federal minimum wage for: the local government's employees, employees of contractors, and employees of an employer receiving a tax abatement or a subsidy from the local government. These exceptions are not implicated in this appeal.

      ; Count one of the complaint sought a declaration that the ordinance was invalid because it was preempted by Section 218.077 of the Florida Statutes, and Count two sought in-junctive relief based upon the same claim.

      . Appellees voluntarily dismissed their injunc-tive relief claim below pending the result of ' this appeal.

      .The trial court’s summary judgment is based on an interpretation of a constitutional provision. Therefore, our review is de novo, Benjamin v. Tandem Healthcare, Inc., 998 So.2d 566, 570 (Fla. 2008).

      . Article VIII, Section 2(b) reads, in relevant part: "Municipalities ... may exercise any power for municipal purposes except as otherwise provided by law." (Emphasis added.)

      . Although compelling in their concern that preemption statutes such as section 218.077 are eroding local government home rale, the two amicus curiae briefs essentially pose political issues to this Court, which are outside of this Court’s purview.