author: ROTHENBERG, J.

text:
    The REALTY ASSOCIATES FUND IX, L.P., etc., Appellant, v. TOWN OF CUTLER BAY, etc., et al., Appellees.
    No. 3D15-2407.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2016.

      Shubin & Bass, P.A., and John K. Shu-bin, Salvatore H. Fasulo, and Deana D. Falce, for appellant.
    GrayRobinson, P.A., and Mark N. Miller, Lakeland, Kristie Hatcher-Bolin, Lakeland, and J. Michael Marshall, Boca Raton, for appellees Publix Super Markets, Inc., and GCF Investments, Inc.
    Weiss Serota Helfman Cole & Bierman, P.L., and Laura K. Wendell and John J. Quick, for appellee Town of Cutler Bay.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   ROTHENBERG, J.

The Realty Associates Fund IX, L.P. (“RAF”) appeals the trial court’s final order dismissing RAF’s complaint, which included a consistency challenge pursuant to section 163.3215(3) of the Florida Statutes. RAF alleged that Resolution 13-44 (“the development order”), which was issued by the Town of Cutler Bay (“the Town”), was inconsistent with the Town’s Growth Management Plan (“the comprehensive plan”) because it approved the site plan for the development of a shopping center called the “Shoppes at Cutler Bay” (“the project”) even though the project did not include a residential component, as required by the comprehensive plan. Based on the following analysis, we reverse the trial court’s order dismissing Count I of RAF’s complaint because we conclude that: (1) the comprehensive plan is clear and unambiguous; (2) the comprehensive plan requires that the project include residential uses; (3) the project does not contain any residential uses; and thus, (4) the development order approving the project’s site plan is inconsistent with the comprehensive plan.

I. Procedural background

In March of 2013, GCF Investment, Inc. (“GCF”) filed a development application with the Town seeking approval of the project’s site plan and several other non-use variances that are not at issue in this appeal. In May 2013, the Town granted GCF’s development application and issued, among other things, the development order. In June 2013, RAF filed its complaint against the Town and GCF. Publix Super Markets, Inc. (“Publix”) was later joined as a defendant in the proceedings after it purchased most of the subject property from GCF. Thereafter, the Town, GCF, and Publix (collectively, “the defendants”) moved to dismiss RAF’s complaint, arguing that RAF has failed to cite to any language in the comprehensive plan that would require the project to include a residential component.

In its written order granting the defendants’ motion to dismiss, the trial court found that: (1) the project is located on a parcel of land within a Mixed Use District along the Old Cutler Road Corridor; (2) it is undisputed that the project does not include a residential component; and (3) the provisions that RAF cited to in the comprehensive plan do not require the inclusion of a residential component in the project’s site plan. After the trial court entered a final judgment in favor of the defendants, RAF timely appealed.

II. The disputed language in the comprehensive plan

RAF relies on three interrelated provisions of the comprehensive plan in support of its position that the comprehensive plan requires residential uses in new development projects located within the Old Cutler Road Corridor. First, Policy FLU-3A states that “Areas designated mixed use shall contain commercial, office, residential, community, institutional and recreation and open space uses integrated vertically or horizontally, in accordance with Policy FLU-1C.” Second, Policy FLU-1C states that “[t]he Town’s Land Development Regulations shall conform to, and implement, the use, intensity and density standards prescribed for the land use districts provided on the Future Land Use Map, and detailed in Table FLU-1.”

Lastly, Table FLU-1 depicts three columns: District, Uses, and Density and Intensity, as provided below.

District

Mixed Use

Uses

Sales and service activities, professional and clerical offices, hotels, motels, medical buildings and offices, cultural and entertainment uses, community facilities, institutional, parks and open space, and residential uses in a high quality mixed use environment, Vertical mixed use buildings are allowed in all underlying zoning districts in the Mixed Use districts, with the sales and service components being located on the ground floors and residential and office uses being located on higher floors. Horizontal mixed use development (different uses in different buildings on the same site or block face) is allowed, with specific uses determined by the underlying zoning district. Vertical mixed use buildings shall be encouraged on sites that can accommodate the mix of uses under the prescribed parameters, while horizontal mixed use development is encouraged on sites that cannot otherwise accommodate vertical mixed use.

Density and Intensity

US-1 Conidor

Mix of uses, with residential uses comprising no less than 20 percent and no greater than 80 percent of the total floor area of a vertical mixed use building, and no less than 20 percent and no more than 80 percent of the buildings on a development site or block face. Floor Area Ratio (FAR) of 2.5 multi-family residential at up to 75 units per gross aere. Maximum building height of 72 feet, with no more than three stories, 85 feet adjacent to residentially zoned areas. Architectural features can exceed maximum height limitations.

Old Cutler Road Corridor

Mix of uses, with residential uses comprising no less than 20 percent and no greater than 80 percent of the total floor area of a vertical mixed use building, and no less than 20 percent and no more than 80 percent of the buildings on a development site or block face. Floor area ratio of 2,0, multi-family residential density at 30 units per gross acre. Maximum building height of four stories, 45 feet for the frontage and three stories, 36 feet for the remainder. Architectural features can exceed maximum height limitations.

Lakes-by-the-Bay Mixed-Use Site

Commercial, office, community facilities, and recreation open space uses that serve the surrounding residential communities. Floor Area Ratio of ,5, maximum building height of two stories, 35 feet. Architectural features can exceed maximum height limitations.

Institutional Uses

Maximum FAR of .5 for Institutional uses in the US-1 and Old Cutler Road corridors, and .4 in the Lakes-by-the-Bay Mixed-Use sites.

The “District” column includes the broad designation of the type of use, such as “Mixed Use” or “Low Density Residential.” The “Uses” column includes specific permitted uses in a given district. For example, in the “Mixed Use” district, the “Uses” column permits “Sales and service activities, professional and clerical offices, hotels, motels, medical buildings and offices, cultural and entertainment uses, community facilities, institutional, parks and open spaces, and residential uses in a high quality mixed use environment.” The “Uses” column within the “Mixed Use” district also provides that vertical mixed use buildings “with the sales and services components being located on the ground floors and residential and office uses located on higher floors” are allowed and that “[v]ertical mixed use buildings shall be encouraged on sites that can accommodate the mix of uses under the prescribed parameters.” Horizontal mixed use development is encouraged only on the sites that cannot accommodate vertical mixed uses.

The next column is labeled “Density and Intensity.” The Density and Intensity column in Table FLU-1 is divided into subsections by area, prescribing various limits and regulations for each area. The subsection labeled “Old Cutler Road Corridor,” which is the subsection at issue in this appeal, contains the following text:

Mix of uses, with residential uses comprising no less than 20 percent and no greater than 80 percent of the total floor area of a vertical mixed use building, and no less than 20 percent and no more than 80 percent of the buildings on a development site or block face.

RAF argues that the plain and clear meaning of this text requires that every new development along the Old Cutler Road Corridor be comprised of between 20 to 80 percent residential uses, and because the project’s site plan undisputedly does not contain any residential uses, the development orders are inconsistent with and therefore in conflict with the comprehensive plan. Conversely, the Town, GCF, and Publix argue that the 20 to 80 percent residential use requirement is only triggered if the proposed development includes residential uses to begin with. Thus, the issue before us on appeal is whether these provisions in the comprehensive plan unambiguously require that new developments along the Old Cutler Road Corridor contain between 20 and 80 percent residential uses.

III. Analysis of the Town’s comprehensive plan

The trial court’s interpretation of a comprehensive plan is reviewed de novo. Nassau Cnty. v. Willis, 41 So.3d 270, 278 (Fla. 1st DCA 2010); Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000) (“It is well established that the construction of statutes, ordinances, contracts, or other written instruments is a question of law that is reviewable de novo, unless their meaning is ambiguous.”).

“Rules of statutory construction are applicable to the interpretation of comprehensive plans.” Katherine’s Bay, LLC v. Fagan, 52 So.3d 19, 28 (Fla. 1st DCA 2010). However, “[w]here the words used in an act clearly express the legislative intent no other rules of construction or interpretation are necessary or warranted.” Vill. of Key Biscayne v. Dade Cnty., 627 So.2d 1180, 1181 (Fla. 3d DCA 1993). Thus, our first task is to inquire as to the plain meaning of the language in the comprehensive plan, and if the language chosen by the drafters of the comprehensive plan is clear and unambiguous, then the plain meaning of that language will control. Turnberry Invs., Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010); Nassau Cnty., 41 So.3d at 279 (“When the language of a statute is unambiguous, courts are bound to follow the text.”). Additionally, “all provisions on related subjects [must] be read in pari materia and harmonized so that each is given effect.” Katherine’s Bay, 52 So.3d at 28.

After reviewing all of the relevant provisions in the comprehensive plan, we conclude that the plain meaning of the text in Table FLU-1 is clear and unambiguous. The words “with residential uses comprising ... no less than 20 percent” clearly demonstrate that the drafters of the comprehensive plan intended to require residential uses in all projects located within the Old Cutler Road Corridor, as the plain meaning of the phrase “no less than” indicates a floor or minimum requirement. Nothing in the text of the comprehensive plan suggests that this minimum requirement only applies if a developer chooses to include residential uses to begin with, and nothing in the text suggests that this language was only limited to certain projects within the Old Cutler Road Corridor. We are bound, as is the Town, to conform to the unambiguous language of the law as it is written. See Atwater v. Kortum, 95 So.3d 85, 90-91 (Fla.2012) (“This Court is bound to interpret statutes as they are written and give effect to each word in the statute.”) (internal citation and quotation omitted).

The defendants contend that this interpretation would lead to an absurd result because it would require that even the smallest developments include 20 to 80 percent residential uses. We disagree. First, we note that the comprehensive plan reflects that it was the Town’s intent when it adopted the comprehensive plan to transform the Old Cutler Road Corridor into a town center with residences, workplaces, shops, and civic activity centers in close proximity to one another. Policy FLU-3A, Policy FLU-3C, Policy FLU-3D, and page FLU-23 of the comprehensive plan all suggest that the redevelopment of the Old Cutler Road Corridor into a partly residential, pedestrian-friendly town center was of prime importance in the drafting of the comprehensive plan. Thus, the Town might reasonably have intended to require residential uses in all development projects within the Old Cutler Road Corridor in order to ensure the creation of such a town center.

Second, based on the same provisions, it is plausible that the Town intended to incentivize larger redevelopments within the Old Cutler Road Corridor, as opposed to small piecemeal redevelopment, in order to force developers to create a high quality mixed use environment, which would be in keeping with the drafters’ intention to redevelop the Old Cutler Road Corridor into a town center. Thus, we find that including a residential use requirement for all new developments within the Old Cutler Road Corridor is not absurd. See Nassau Cnty., 41 So.3d at 279 (“Courts may only legitimately rely on the absurdity doctrine without running afoul of the separation of powers ... where it is quite impossible that [the legislative body] could have intended the result.”) (citation and internal quotation marks omitted).

Of course, if the Town is dissatisfied with the language in its comprehensive plan, the Town has the power to amend its plan in accordance with sections 168.3184 and 163.3187 of the Florida Statutes. To that end, we note that a memo, written by the Town’s Director of Community Development in 2010, specifically addressed what the Town believes to be the undesirable consequences of the plain language of the text in the Old Cutler Road Corridor section of Table FLU-1 we have just discussed. This memo reveals that the Town has known about the effect of the plain language in the text since 2010, but has not amended its comprehensive plan to clarify the apparently undesired text. We do not condone nor will we be party to a process of what amounts to a judicial amendment, based upon a municipality’s attempt to circumvent the requirements of the legislative process that led to the adoption of the comprehensive plan by altering the plain meaning of its comprehensive plan. To do so would usurp not only the power of the Florida legislature by casting aside the laws regarding the proper comprehensive plan amendment procedure, but also the power of the municipality, whose comprehensive plan would no longer yield to the collective will of the residents of the Town, but would instead bend to the will of the judiciary. Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 838 (Fla.2011) (stating that “courts are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power’ ”) (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998)).

IV. Conclusion

Because the plain and ordinary meaning of the language in Table FLU-1 of the Town’s comprehensive plan requires all new development projects located within the Old Cutler Road Corridor to contain a residential use component of between 20 and 80 percent, we conclude that the development order, which approved the project’s site plan even though it did not include any residential uses, is inconsistent with the Town’s comprehensive plan, and we therefore reverse the trial court’s order dismissing Count I of RAF’s complaint as it relates to Town Resolution 13-44. Because it is undisputed that the project does not contain any residential uses, we remand for the entry of a final judgment in RAF’s favor on the basis that the development order is inconsistent with the comprehensive plan. Based on this Court’s ruling that the development order is inconsistent with the comprehensive plan, we decline to address RAF’s arguments regarding the trial court’s order as to Counts TV and V of its complaint, the trial court’s order denying RAF’s motion for leave to amend, and the trial court’s order dismissing Counts II and III of RAF’s complaint. We also find that the defendants’ remaining arguments are without merit, and we decline to address them further.

Reversed and remanded with instructions.

      . We have only included the relevant "Mixed Use” section of Table FLU-1.

      . "Areas designated mixed use shall contain commercial, office, residential, community, institutional and recreation and open space uses integrated vertically or horizontally, in accordance with Policy FLU-1 C.” (emphasis added).

      . "The area located along the Old Cutler Road corridor and designated 'Mixed Use’ on the Future Land Use Map shall be redeveloped as a place where living, working, shopping, and civic activities can take place within a town center type environment.” (emphasis added).

      . “New development and redevelopment along Old Cutler Road shall consist of a variety of buildings and uses that will encourage pedestrian activity with wide sidewalks, balconies, outdoor cafes, squares, and plazas.” (emphasis added).

      .This section, titled "Mixed Use,” states that a guiding principle of the Future Land Use Element is to redevelop the Old Cutler Road Corridor in accordance with the goals set forth in the Old Cutler Road Charrette Area Plan, such as the creation of a framework that, in part, "enhanced the livability" of the area in a manner that created a "civic district/town center and public gathering space for the surrounding area,” and reintroduced “pedestrian-scale improvements in lighting and landscaping [while rebalancing] vehicular movement in the corridor.” (emphasis added).


source: Caselaw Access Project

author: SALTER, J. LOGUE, J.,

license: Public Domain

text:
    ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o Alexia Blake, Respondent.
    No. 3D16-38.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2016.
    Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm, Tampa; Cozen O’Connor, and Peter J. Valeta, Chicago, IL, for petitioner.
    Marlene S. Reiss, for respondent.
    Before SALTER, LOGUE and SCALES, JJ.
   SALTER, J.

Allstate Fire and Casualty Insurance Company seeks a writ of certiorari quashing a circuit court appellate division opinion affirming a county court judgment for a medical provider in a personal injury protection (PIP) auto insurance case. The appellate division decided an interpretive question regarding the sufficiency of PIP policy language following the Legislature’s amendments to section 627.736, Florida Statutes, in 2008.

In doing so, a three-judge panel of the appellate division carefully considered pertinent decisions by this Court and by the Supreme Court of Florida: Geico Indemnity Co. v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3d DCA 2011); Geico General Insurance Co. v. Virtual Imaging Services, Inc., 90 So.3d 321 (Fla. 3d DCA 2012); and Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla.2013). The appellate division panel also considered, though conflicting, prior opinions issued on the question by the circuit court appellate division, as well as conflicting opinions issued by the First and Fourth District Courts of Appeal. The appellate division opinion correctly observed that, through the date the panel rendered its decision, this Court had not issued an opinion on the conflict issue.

The Pending Conflict of Decisions in the Supreme Court of Florida

Following the issuance of the present appellate division opinion in December 2015, the Supreme Court of Florida accepted for review a conflict of decisions on the same issue. Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, 2016 WL 282060 (Fla. Jan. 20, 2016). In the conflict cases, the First District interpreted the PIP insurance policy and statute as Allstate argues it should be interpreted here, Allstate Fire & Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1st DCA 2015), and the Fourth District (in a split decision) interpreted the policy and statute just as the appellate division did in the judgment before us, Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19 (Fla. 4th DCA 2015).

Under the standard for second-tier cer-tiorari review established in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010), and Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), we do not have jurisdiction in this case. There was no violation of a “clearly established principle of law resulting in a miscarriage of justice,” Custer Med. Ctr., 62 So.3d at 1092, when the appellate division of the circuit court issued its opinion. At that time, the applicable principle of law was sufficiently unsettled that the Supreme Court of Florida accepted jurisdiction to resolve conflicting decisions regarding the issue.

In First Liberty Insurance Corp. v. O’Neill, 190 So.3d 136 (Fla. 4th DCA 2016), the Fourth District addressed a petition for certiorari directed to a circuit court decision rendered at a time when the Fourth District had not addressed the pertinent legal issue, and when there existed “a split of authority from our sister courts on that issue.” Id. The Fourth District denied the petition, concluding:

Given the lack of binding authority from this court on the underlying issue, and given the split of authority between our sister courts on the underlying issue, we cannot say that the circuit court’s apparent decision to follow the First District’s authority was a departure from the essential requirements of the law at the time of its decision. Thus, because of that procedural posture, we are compelled to deny the petition for writ of certiorari and not decide the underlying issue until a final appeal-able judgment is entered.

Id. at 137.

This CouH’s July 2016 Decision on the Legal Issue

The uncertainty confronted by the county courts and the circuit court appellate division in this district at the time the appellate division issued its opinion has since been dispelled. In a recent decision, a panel of this Court accepted and decided the same underlying legal issue: the sufficiency of PIP policy language following the 2008 amendments to section 627.736. The question was certified to this Court by the County Court for Miami-Dade County in five eases. All were consolidated here. Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So.3d 169, 41 Fla. L. Weekly D1619, 2016 WL 3745527 (Fla. 3d DCA July 13, 2016).

Our Court has now reached the same conclusion as the First District in StandUp MRI of Tallahassee, P.A., 188 So.3d 1, the Second District in Allstate Indemnity Co. v. Markley Chiropractic & Acupuncture, LLC, supra n. 1, regarding the pertinent policy language, and Judge May of the Fourth District in her dissent in Orthopedic Specialists, 177 So.3d at 29-31 (May, J., dissenting). So although we are constrained to dismiss the petition in the present case, we observe that the County Court wisely used its power to certify the issue directly to this Court under Florida Rule of Appellate Procedure 9.030(b)(4)(A) after identifying the conflicting county court and circuit court opinions on the topic, and in the absence of a binding decision from this Court. Rule 9.030(b)(4) allows an efficient determination on a substantial and recurring issue such as this one when there is no definitive and binding case law regarding that issue and the reported cases are in conflict.

Should We Apply Our July 2016 Decision in this Certiorari Case?

The dissent correctly observes that our refusal to accept jurisdiction, grant certio-rari, and quash the circuit court appellate opinion in the present case leaves intact a decision that we have since concluded is an incorrect interpretation of the pertinent insurance policy. If circuit court appellate division opinions are intended to be final, however — with further review tightly circumscribed as specified in Custer Medical Center and Kaklamanos (“something more than a simple legal error;” “when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice;” “an illegal or irregular act;” “grievous errors”) — we cannot grant a second level of review in a dispute such as this, originating as it did in the county court and decided by the circuit court appellate division without the benefit of our July 2016 decision.

Notably, the conflict cases that are currently under review by the Supreme Court of Florida, as well as the subsequent decision by the Second District in Markley Chiropractic, supra n. 1, and this Court in Fla. Wellness & Rehab., are not second-tier certiorari cases. Instead, all four of those opinions were based on cases certified directly to those district courts by county courts under Florida Rule of Appellate Procedure 9.030(b)(4)(A).

The exercise of our jurisdiction in second-tier certiorari cases reflects the variety of cases and issues that are the subject of such petitions. In State, Department of Highway Safety & Motor Vehicles v. Freeman, 63 So.3d 23, 27 (Fla. 3d DCA 2011), we applied the standards set forth in Custer Medical Center, concluding that the underlying issue involved a departure from “clearly established law” and a statutory interpretation (not, as here, the interpretation of an insurance contract) which “disobeyed the plain language of the statute.” This Court and the Second District (in a second-tier certiorari case involving the same issue) quashed the orders under review, and the Supreme Court of Florida upheld the exercise of that jurisdiction in Nader v. Department of Highway Safety & Motor Vehicles, 87 So.3d 712 (Fla.2012).

In the present case, however, conflicting decisions from District Courts regarding an issue of contractual interpretation are awaiting resolution of that conflict by the Supreme Court of Florida. Although we have now decided how we would resolve that conflict of decisions if we were empowered to decide it, we are not so empowered, given the procedural posture of the case, and we had not expressed this Court’s resolution of the issue at the time that the circuit court appellate division considered the language of the insurance policy and reached its own decision.

The appellate division’s decision was principled, applied the Fourth District’s 2015 opinion in Orthopedic Specialists, and was not a violation of a clearly established principle of law resulting in a miscarriage of justice. Indeed, if the Supreme Court of Florida upholds the Fourth District analysis and quashes the conflicting decisions of the First, Second, and Third Districts, the appellate division’s analysis may turn out to be the correct one. Granting the petition in this case would be tantamount to faulting the circuit court appellate division for lacking a crystal ball or Ouija board that would have revealed this Court’s decision issued seven months later.

For these reasons, we lack jurisdiction to grant the relief sought by the petitioner. Petition dismissed.

SCALES, J., concurs.

LOGUE, J.,

dissenting.

The issuance of a writ of certiorari to review the judgment of a circuit court sitting in its appellate capacity is strictly limited. In this case, we must decide whether those limits prevent us from issuing the writ involving a question of law that has already been accepted for review by the Florida Supreme Court. If we decline to issue the writ, the litigants in this case, and other litigants in the same procedural posture, would be barred from obtaining the benefit of the Supreme Court’s imminent decision. Because none of the reasons for limiting the writ apply here, and denying the litigants the benefit of the Supreme Court’s forthcoming decision would constitute a patent miscarriage of justice, I would issue the writ.

On the merits, the question is whether certain language in a personal injury protection insurance policy is sufficient to put insureds on notice that reimbursement of medical bills will be limited by the statutory schedule in section 627.736, Florida Statutes (2008). For some time now, different judges on the Miami-Dade county court and different panels of judges on the reviewing circuit court have been issuing a welter of conflicting decisions. Here, the county court entered the fray, made its decision, and the circuit court affirmed with an opinion which expressly conflicts with other panels of the same circuit. The losing party petitioned this court for a writ of certiorari.

After the circuit court issued its opinion, we addressed the same substantive question in a different case that had been directly certified to this court by the county court pursuant to section 34.017(3) & (4), Florida Statutes (2008), and Florida Rules of Appellate Procedure 9.030(b)(4)(A) & 9.160. Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So.3d 169, 170-71, 41 Fla. L. Weekly D1619, D1620, 2016 WL 3746527 (Fla. 3d DCA July 13, 2016). We agreed with the First District and Second District, which had reached a similar conclusion. Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1st DCA 2015); Allstate Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, — So.3d -, 41 Fla. L. Weekly D793, 2016 WL 1238533 (Fla. 2d DCA Mar. 30, 2016). We certified conflict with the Fourth District, which had reached a contrary conclusion. Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19 (Fla. 4th DCA 2015). We noted that the Supreme Court had already accepted jurisdiction of the conflict between the district courts. Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, 2016 WL 282060 (Fla. Jan. 20, 2016).

With this background in mind, we turn to the question of whether we have jurisdiction to issue the writ. The standard for issuing second-tier certiorari is whether the circuit court’s decision denies procedural due process or departs from the essential requirements of law that results in a miscarriage of justice. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010). The application of this standard is guided by the judicial policy that second-tier certiorari cannot be used to grant an individual litigant what is no more than a second appeal. Id. at 1093. The Supreme Court has explained:

The policy behind prohibiting certiorari to function as a second appeal is that the circuit court possesses final appellate jurisdiction in cases originating in the county court.... [I]f the role of certio-rari were expanded to review the correctness of the circuit court’s decision, it would amount to a second appeal that usurps the final appellate jurisdiction of the circuit court in contravention of the Florida Constitution. This would deprive litigants of final judgments obtained in the circuit court and ignore societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals. A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of general jurisdiction.

Id. (internal citations and quotation omitted). An expansive view of second-tier certiorari would also “destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 728 (Fla.2012) (Lewis, J., dissenting).

None of these concerns exist in the situation here where the Supreme Court has already accepted jurisdiction to resolve the underlying legal issue. When the Supreme Court has already accepted jurisdiction, we are not granting a second appeal by issuing the writ. To the contrary, we are simply allowing the parties to place themselves in the “pipeline” so that they can obtain the benefit of the Supreme Court’s pending resolution of the underlying issue. Allowing the parties to avail themselves of the benefit of an upcoming Supreme Court decision hardly constitutes a usurpation of the circuit court’s appellate jurisdiction, does not undermine the judicial policy of finality, falls far short of reflecting a mere disagreement by this court with the outcome in the circuit court, and wastes no limited judicial resources with excessive appeals because the issue is already slated for Supreme Court resolution.

The Supreme Court has noted that it is impossible to create an exhaustive list of when second-tier certiorari should issue. Id. at 726. For this reason, it has recognized that second-tier certiorari must be allowed some play in its joints if it is to fulfill its purpose. The Court “has repeatedly emphasized that district courts must be allowed a large degree of discretion so that they may judge each case individually.” Id. (citation and quotation omitted.). “[T]he district court’s exercise of its discretionary certiorari jurisdiction should ‘depend on the court’s assessment of the gravity of the error and the adequacy of other relief’ Custer, 62 So.3d at 1092 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d, 523 531 n. 14 (Fla.1995)). In so doing, the court must “not usurp the authority of the trial judge or the role of any other appellate remedy, but ... [must] preserve the function of this great writ of review as a ‘backstop’ to coiTect grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.” Id.

Failure to issue the writ here means the parties who filed identical lawsuits in the same circuit court, some of whom are commercial rivals, will have different legal outcomes based purely on the luck of which judges they drew. The parties to the present case will have the benefit of the uniform rule of law resulting from the Supreme Court’s imminent decision if, but only if, the clerk of court serendipitously assigned their case to one of the panels of circuit court judges that has accurately predicted the outcome of the Supreme Court’s decision rather than one of the panels that has not. And which panel is which becomes known only after the Supreme Court’s ruling comes down in the future. If we are not careful, the docketing of cases in such a system will take on the nature of a raffle: you get your case number and you take your chances.

But the Supreme Court never intended that the rules governing the issuance of a writ of certiorari should be interpreted in a manner that causes outcomes in the court system to take on random character of a sweepstakes. Indeed, the Supreme Court has recently made clear that a rule of law fashioned by the legislature that causes legal outcomes to result from “luck rather than conduct” is irrational and unconstitutional. Wright v. City of Miami Gardens, SC16-1518 slip op. at 21, 23, 200 So.3d 765, 777, 2016 WL 4945053 (Fla. Sept. 15, 2016), (holding an election statute unconstitutional because it disqualified a candidate “solely because luck was not on [his] side”). The Court applies this principle with no less force to rules of jurisdiction it has fashioned.

It is clearly a miscarriage of justice to prevent further review in a manner that causes the identical cases of similarly situated persons in the same court to be decided differently based on conflicting legal interpretations. And this clear miscarriage of justice resulting from the failure to allow review reflects a departure from the most essential legal requirement— equality before the law. No other legal remedy exists to stop this miscarriage of justice here except a writ of certiorari. The Supreme Court has expressly recognized that the district courts have jurisdiction when issuance of the writ is the only available “backstop” to prevent such a patently unjust outcome. Custer, 62 So.3d at 1092. For these reasons, I would grant the writ, quash the decision below based upon our decision in Florida Wellness, and certify conflict with the Fourth District’s opinion in Orthopedic Specialists so that these litigants receive — for good or for ill — the equal treatment under the law that will result from the Supreme Court’s impending decision.

      . Following the Supreme Court of Florida’s acceptance of review of the conflicting decisions, the Second District issued an opinion agreeing with the First District’s conclusion and disagreeing with the Fourth District’s majority opinion. Allstate Indent. Co. v. Markley Chiropractic & Acupuncture, LLC, — So.3d -, 41 Fla. L. Weekly D793, 2016 WL 1238533 (Fla. 2d DCA Mar. 30, 2016).

      . These criteria are considered in extensive detail in Custer Medical Center, 62 So.3d at 1092.

      . See, e.g., Allstate Ins. Co. v. Gables Ins. Recovery Inc., a/a/o Moran, No. 13-305 AP (Fla. 11th Cir.Ct. May 18, 2016) (language in policy not sufficient) (Lederman, Cohen, and Prescott, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir.Ct. Dec. 7, 2015) (language in policy not sufficient) (Hogan-Scola, Cueto, and Orshan, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, a/a/o Politesse, 21 Fla. L. Weekly Supp. 989 (Fla. 11th Cir.Ct. June 23, 2014) (language in policy sufficient) (Korvick, Bloom, and Walsh, JJ.); Allstate Indem. Co. v. Gables Ins. Recovery, Inc., a/a/o Jimenez, 22 Fla. L, Weekly Supp. 1146 (Fla. 11th Cir.Ct. June 8, 2015) (language in policy sufficient) (Bernstein, Hendon, and Manno Schurr, JJ,); Allstate Prop. & Cas, Ins. Co. v. Royal Diagnostic Ctr. Inc., a/a/o Mondy, 21 Fla. L. Weekly Supp. 627 (Fla. 11th Cir.Ct. Apr. 3, 2014) (language in policy sufficient) (Smith, Lobree, and Verde, JJ.).

      . Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir.Ct. Dec. 7, 2015) (noting prior conflicting panel opinions).


author: PER CURIAM.

text:
    Jerry McAFFEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-1791.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2016.
   PER CURIAM.

Affirmed. See § 775.084(4)(e), Fla. Stat. (1993); Duncan v. Moore, 754 So.2d 708 (Fla.2000); Deason v. Fla. Dep’t of Corr., 705 So.2d 1374 (Fla.1998); Hayles v. State, 608 So.2d 13 (Fla.1992); Whatley v. State, 640 So.2d 1201 (Fla. 2d DCA 1994); Lincoln v. Fla. Parole Comm’n, 643 So.2d 668 (Fla. 1st DCA 1994); Orr v. State, 597 So.2d 833 (Fla. 5th DCA 1992).

KHOUZAM, SLEET, and LUCAS, JJ., Concur.


author: EMAS, J.

text:
    Londan DAVIS, Appellant, v. Neftali BAEZ, Appellee.
    No. 3D16-13.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.

      Brill Rinaldi Garcia and David W. Brill, Weston; Joel S. Perwin, for appellant.
    Walter J. Harvey and John-Philip M. Iafelice; Haliczer Pettis & Schwamm and Debra P. Klauber and Eugene K. Pettis, Fort Lauderdale, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

INTRODUCTION

Londan Davis, the plaintiff below, appeals from the trial court’s entry of final summary judgment in favor of Neftali Baez, the defendant below and an employee of the Miami-Dade County School Board. The trial court determined that sovereign immunity barred Davis’ claim against Baez for individual negligence, as pleaded in Count II of the operative complaint. We reverse, and hold that the trial court erred in entering summary judgment on Davis’ individual negligence claim, as there remain disputed issues of material fact as to whether Baez acted in a manner that would place him beyond the protection of sovereign immunity and render him individually liable to Davis.

FACTS

At all relevant times, Londan Davis was an eighteen-year-old student at Sunset Senior High School in Miami-Dade County. She was struck by a car while crossing from the west side of the street to reach the school bus stop on the east side of the street. At the time of the accident (5:50 a.m.) it was dark outside, and the bus had not yet arrived at the bus stop on the east side of the street. Davis suffered serious injuries and she sued, among others, the Miami-Dade County School Board and Neftali Baez, a school bus driver employed by the School Board.

In her operative complaint, Davis alleged, inter alia, that Baez and the School Board were negligent for failing to instruct Davis and her brother to wait on the west side of the street (the street being Northeast 18th Avenue) until the bus arrived at the designated bus stop, halted traffic, activated its red flashing lights and extended its “STOP” arm, thereby allowing Davis and her brother to safely cross from the west side of the street to east side of the street. The issue on appeal involves only Count II of the complaint, which sets forth a claim of individual negligence against Davis only. Count II alleged, in pertinent part, that:

• Baez, the school bus driver, “on his own initiative, took it upon himself to advise the Davis children that he was going to be picking them up ... on the east side of the road way, necessitating Plaintiff ... to cross NE 18th Avenue.”
• Baez failed to instruct Plaintiff and her brother to wait on the west side of the street for the bus to arrive and to cross only after the bus arrived, stopped, and activated its red flashing lights and extended its stop arm.
• Baez required Davis and her brother to cross the street before the bus arrived, even though Baez knew or should have known that it would be dangerous for Davis to do so.

In his discovery deposition, Baez acknowledged that he affirmatively told Davis and her brother that they could not wait on the west side of the street; that he told them they were required to cross the street and be waiting on the east side of the street before the bus arrived; and that if Davis and her brother were not. already waiting on the- east side of the street when the bus arrived, Baez would not wait for them to cross and would not pick them up.

Ms. Kathryn Beasley is the Bus Route Manager for Miami-Dade County Public Schools, and is in charge of establishing ■and reviewing bus stops, bus routes, and overseeing bus drivers. She testified in deposition that the Davis children were not only permitted to wait on the west side of the street until the bus arrived, but that the proper procedure is that the ■ Davis children are supposed to wait on the west side of the street until the bus arrived. Only after the bus arrived and stopped, with its red lights flashing and its STOP arm extended, should the Davis children cross to the east side of the street. Ms. Beasley testified that Baez’s instructions to Davis and her brother was contrary to School Board policy and contrary to bus driver training.

Ms. Theodosia Davis is a Field Operations Specialist for Miami-Dade County Public Schools, and is a first-level supervisor for bus drivers and for receiving and resolving complaints from parents and school personnel. Ms. Davis agreed with Ms. Beasley that students are permitted to wait on the other side of the street for the bus to arrive and should cross the street to get to the bus stop only after the bus has arrived and activated its lights and STOP arm to permit safe crossing. Ms. Davis testified that she would not tell a student (as Baez did) that they are required to cross the street and be waiting at the stop before the bus arrives; that there is no reason to tell a student this; and that if she became aware of such a practice, she would take the necessary steps to correct it. Ms. Davis testified she could not think of any action that would be more dangerous to the students than telling them that they were required to cross the street before the bus arrived.

During her deposition, Ms. Davis was shown a copy of the Miami-Dade County Public Schools’ “Handbook for School Bus Drivers, Aides and Operations Staff’ and affirmed that this Handbook provided in part: “Students must cross the road only in front of the bus when traffic has been halted by means of the flashing red lights and stop arm extended.” She indicated that this procedure should be followed when students are waiting on one side of the street and the bus arrives on the opposite side of the street.

Another bus driver, Ms. Monica Smith, testified that the students are not supposed to cross the street until the bus arrives and turns on its lights and extends the STOP arm. Ms. Smith testified that she has never instructed students to cross the street before the bus arrives at the stop.

The Prior Appeal of the Order Dismissing the School Board

The School Board moved to dismiss the counts against it and Baez, asserting that both were sovereignly immune from tort liability and that the complaint failed to state a cause of action against the School Board because the School Board did not owe a duty of care to Davis at the time of the injury, nor a duty to warn her of the roadway’s dangerousness. The trial court granted the motion to dismiss, but only as to the School Board, and only on the issue of duty. All claims against the School Board (both direct and vicarious) were dismissed with prejudice and Davis appealed that decision to this court. Davis v. City of Homestead, 154 So.3d 443 (Fla. 3d DCA 2014) (Davis I). The only issue on appeal in Davis I was whether the trial court erred in ruling that the School Board owed no duty to Davis. This court affirmed the trial court’s decision per curiam, citing to Francis v. School Board of Palm Beach County, 29 So.3d 441 (Fla. 4th DCA 2010).

Baez answered Davis’ complaint below, asserting several affirmative defenses, including sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes. Thereafter, Baez moved for summary judgment, arguing he was entitled to summary judgment because the appellate court in Davis I had affirmed the trial court’s determination that the School Board, and by extension, Baez, owed no duty to Davis, and also argued that he was immune from liability under the sovereign immunity statute because (1) the location of the bus stop was a planning-level decision of the School Board; (2) Baez did not “undertake” a duty to Davis while she was within Baez’s physical custody or control; and (3) Baez was acting in the course and scope of his employment and Davis cannot show bad faith, malicious purpose, or willful and wanton disregard.

After a hearing, the trial court granted Baez’s motion for summary judgment on both the duty and the sovereign immunity issues, and entered judgment. This appeal followed, and we review de novo the trial court’s granting of summary judgment. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000). In doing so, we must view the record and reasonable inferences therefrom in a light most favorable to the non-moving party, and any doubt concerning the existence of a disputed issue of material fact must be resolved against the moving party. Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000); Colon v. Outback Steakhouse of Fla., Inc., 721 So.2d 769 (Fla. 3d DCA 1998).

Law of the case

The trial court determined that Davis could not proceed on Count II alleging individual negligence against Baez, under the apparent belief that such a conclusion was compelled by our decision in Davis I. Baez urges us to affirm this determination, contending that our decision in Davis I constitutes law of the case and forecloses Davis’ negligence action against Baez individually. While Davis I is indeed law of the case, we do not agree that our decision in that prior appeal forecloses the individual negligence claim against Baez, which is premised upon allegations that Baez acted outside the scope of his employment or acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the safety of Davis. These allegations, if proven, would constitute an exception to the sovereign immunity afforded to employees and agents of the School Board, permitting personal liability against Baez.

Davis I did not involve the question of sovereign immunity; instead the trial court’s order (affirmed by us) was based solely on a finding that the School Board owed no duty to Davis. The reason no duty was owed is that, as the Fourth District held in Francis, 29 So.3d at 444, the “school board does not have custody or control over students while they are en route to their bus stops” and thus “the school board does not have any duty to its students during this time.” Because Davis was not on the bus or within the custody or control of the School Board (or its employees) at the time of the accident, there was no duty of care owed by the School Board to Davis.

Therefore, while our affirmance of that order did determine that the School Board (and by extension, Baez) owed no duty to Davis based upon the fact that she was not on the bus or otherwise within the physical custody or control of the School Board at the time of the accident, our affirmance did not address or determine whether Baez could be held individually liable if, as alleged in Count II of the complaint, he voluntarily undertook to act, thereby creating a separate duty owed to Davis. Further, and as alleged in Count II, such individual liability could be imposed upon Baez only if, in undertaking to act, Baez did so in a manner that would place him beyond the protection of sovereign immunity and render him personally liable under section 768.28(9)(a). Upon our review of the record, we determine that genuine issues of material fact remain in dispute on this question, thereby precluding summary judgment on Count II of the complaint.

Sovereign Immunity and Personal Liability

We begin with the sovereign immunity statute, section 768.28(9)(a), which provides in relevant part:

(9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. ... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. (Emphasis added).

As can be seen, sovereign immunity is conferred upon Baez, as a School Board employee, so long as he acted in the scope of his employment and did not act in bad faith, or with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Reading this provision in conjunction with the allegations of the complaint and the record evidence in opposition to Baez’s motion for summary judgment, it is clear that there remain disputed issues of material fact that must be resolved by the trier of fact. There is record evidence that:

• Baez did not merely fail to instruct Davis and her brother to wait on the west side of the street for the bus to arrive and to cross only after the bus arrived, stopped, and activated its red flashing lights and extended its stop arm. Instead, Baez, on his own initiative, told Davis that she and her brother were required to cross the street and be waiting for the bus when it arrived at the bus stop, and that if they were not already there and waiting when the bus arrived, he would not wait for them to cross the street;
• This “requirement” by Baez was contrary to express School Board policy and bus driver training, by which Davis and her brother should have waited on the west side of the street until the bus arrived and stopped, with its red lights flashing and its stop arm extended, to permit safe crossing of the street by Davis and her brother;
• The Field Operations Specialist for Miami-Dade County Public Schools acknowledged that Baez should not have advised Davis and her brother of this “requirement,” that there is no reason to tell a student this; and that if she had been aware of Baez’s action, she would take the necessary steps to correct it. The Field Operations Specialist could not think of any action that would be more dangerous to the students than telling them that they were required to cross the street before the bus arrived.

Thus, while it may be true that ordinarily the School Board (and by extension, Baez) would not owe a duty to Davis before she was actually on the bus (see Davis I, affirming with citation to Francis, 29 So.3d at 443), there remains the question whether, by voluntarily undertaking to act, in requiring Davis and her brother to cross the street before the bus arrived, Baez created a foreseeable zone of risk for Davis, and thereby owed a duty to Davis.

The Undertaker Doctrine

The most recent decision of the Florida Supreme Court addressing the nature and scope of the undertaker doctrine is Wallace v. Dean, 3 So.3d 1035 (Fla.2009). In Wallace, a wrongful death action was filed by the mother of Brenda Wallace against the Marion County Sheriffs Office. The complaint alleged that the mother had attempted several times to call Brenda at home, but there was no answer. The mother called a neighbor to check on Brenda. The neighbor went to the house and knocked on the doors and windows, but there was no response. The neighbor then called 911. Two deputies responded to the 911 call. One of the deputies entered the home through an unlocked window, and then opened the door for the other deputy, the neighbor, and the neighbor’s father to enter the home. The deputies found Brenda Wallace inside the home, breathing but otherwise unresponsive, even when one of the deputies attempted to awaken her by calling her name loudly and shaking one of her legs. The neighbor and the neighbor’s father suggested to the deputies that Ms. Wallace was in a diabetic coma and that the deputies should call an ambulance, but the deputies declined to call an ambulance or summon any medical assistance. Instead, the deputies suggested that the neighbor leave the door unlocked and return to check on her later. The next morning, the neighbor found Brenda Wallace unresponsive and again called 911. Emergency medical personnel responded to the call and transported Ms. Wallace to the hospital, where she died several days later without ever regaining consciousness.

The complaint alleged that the deputies’ actions in undertaking a safety check, engaging with Ms. Wallace, and thereafter failing to take any additional action (e.g., calling an ambulance) placed Ms. Wallace in a zone of risk, either by increasing the risk of harm to Ms. Wallace or inducing third parties (who otherwise would have rendered aid) to forebear from doing so.

The trial court dismissed the complaint on the grounds that the deputies and the Sheriffs Office did not owe a common-law duty of care to Ms. Wallace, and that by responding to the 911 call and conducting a safety check, the deputies were performing a discretionary function for which the Sheriffs Office (and the deputies) were sovereignly immune. The Fifth District affirmed the trial court’s dismissal of the complaint.

The Florida Supreme Court quashed the district court decision, holding that under the facts as alleged in the complaint, the deputies owed Ms. Wallace a duty of care pursuant to the undertaker doctrine. The Wallace court observed, 3 So.3d at 1050:

This Court has long adhered to the common-law doctrine that
[i]n every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care.... [Ejven “where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.”
Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)).

The Wallace court reaffirmed the continued vitality of this well-entrenched principle quoting from its previous decision in Union Park Memorial Chapel v. Hutt, 670 So.2d 64, 66-67 (Fla.1996):

Voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking confers a duty of reasonable care, because it thereby “creates a foreseeable zone of risk.”
Wallace, 3 So.3d at 1050.

In the instant case, Baez told Davis that she could not wait on the west side of the street and cross to the east side of the street after the bus arrived. Instead, Baez told Davis that she was required to cross the street and be waiting at the bus stop when the bus arrived, and that if she and her brother were not on the east side when the bus arrived, he would not pick him up. By undertaking to act in this way, Baez increased the risk of harm to Davis, and by following Baez’s “required” procedure, Davis and her brother would be crossing the street without the safety provided by the presence of a bus with its flashing lights and its STOP arm extended. Baez’s “required” procedure was contrary to School Board policy, contrary to bus driver training, and even the School Board’s Field Operations Specialist stated she could not think of any action that would be more dangerous to the students than telling them that they were required to cross the street before the bus arrived.

We hold that the allegations and the evidence support the application of the undertaker doctrine and the conclusion that, by voluntarily undertaking to act and affirmatively telling Davis she was required to cross the street and be waiting at the bus stop when the bus arrived, Baez created a foreseeable zone of risk to Davis and was under a duty to act with reasonable care under the circumstances.

Our conclusion comes with this proviso: As a result of our holding in Davis I, it has been determined that the School Board (and by extension, Baez) did not generally owe a common-law duty to Davis, because she was not on the bus or otherwise within the physical custody or control of the School Board at the time of the accident. Thus, the only count remaining in the instant case is a single count for the individual negligence of Baez. So, although the general facts of this case permit application of the undertaker doctrine, individual negligence as to Baez can be established only if, as alleged in Count II and as required by section 768.28(9)(a), Davis can prove that Baez’s actions were outside the course and scope of his employment or were committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

CONCLUSION

The allegations of Count II, together with the depositions and other record evidence presented in opposition to Baez’s motion for summary judgment, establish that there remain material facts in dispute regarding Davis’ claim for individual negligence against Baez. Our decision in Davis I established, as law of the case, that the School Board cannot be held liable, either directly or vicariously, based upon the absence of a duty owed by the School Board to Davis. However, Davis is not foreclosed from pursuing Count II of the complaint, which alleged individual liability against Baez for negligence, based upon the undertaker doctrine. By undertaking to act (i.e., by advising Davis and her brother that they were required to cross the street before the bus arrived at the bus stop), Baez was under a duty to act with reasonable care. Baez could be found personally liable if Davis can establish that Baez breached that duty and that, in doing so, Baez acted outside the scope of his employment or acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Reversed and remanded.

      . Londan Davis’ sixteen-year-old brother had already crossed to the east side of the street at the time his sister was struck and injured. Ms. Davis’ brother is not a party to the action.

      . Appellant concedes that, as a result of our affirmance in Davis I, no cause of action remains against the School Board, and the only remaining cause of action she can pursue is Count II of the operative complaint, alleging individual negligence by Baez.

      . See also Harrison v. Escambia Cnty. School Bd., 434 So.2d 316, 319 (Fla. 1983) (holding “[a]s a general rule, if a public school entity provided transportation for its pupils, it owes a duty of care with regard to that transportation. School boards, however, are not insurers of students’ safety, ... and a school board’s control over its students regarding transportation extends from when a school bus picks up a student at a bus stop to the school door. When a student is injured before reaching a designated bus stop, or after leaving one, that student is outside the board’s duly of care because the board’s duty stems from the fact of the school board's physical custody of its students”) (internal citations omitted).

      . The facts as alleged in the complaint are taken from the district court opinion. See Wallace v. Dean, 970 So.2d 864, 865-66 (Fla. 5th DCA 2007).


author: SCALES, J.

text:
    The TROPICANA CONDOMINIUM ASSOCIATION, INC., Appellant, v. TROPICAL CONDOMINIUM, LLC, etc., et al., Appellees.
    No. 3D15-2583.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2016.

      Heller Waldman, P.L., and Glen H. Waldman and Jason Gordon, for appellant.
    Shubin & Bass, P.A., and John K. Shu-bin, Juan J. Farach and Katherine R. Maxwell, for appellees.
    Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
   SCALES, J.

Appellant, the defendant below, The Tropicana Condominium Association, Inc. (the “Association”) appeals an order of the Miami-Dade County Circuit Court granting summary judgment to Appellee, the plaintiff below, Tropical Condominium, LLC (“Tropical”). We affirm in part and reverse in part.

I. Facts

The 2007 Florida Legislature amended section 718.117 of the Condominium Act to facilitate the termination of condominiums. In particular, the amendment provided that a condominium could be terminated upon an approval vote of eighty percent of unit owners, so long as not more than ten percent of the unit owners opposed the termination. § 718.117(3), Fla. Stat. (2013). This amendment also provided that “[t]his section applies to all condominiums in this state in existence on or after July 1, 2007.” § 718.117(1), Fla. Stat. (2013).

For economic benefits to accrue to its unit owners, the Association sought to take advantage of amended section 718.117 and to terminate the condominium status of the forty-eight unit Tropicana Condominium, located in Sunny Isles Beach, Florida. This condominium, established in 1983, was governed by a Declaration of Condominium that lacked “Kaufman” language, meaning that, when referencing Florida’s Condominium Act, the Declaration did not contain the words “as amended from time to time.” Absent this language in a Declaration, any changes made by the Legislature to the Condominium Act subsequent to the effective date of the Declaration do not become a part of the Declaration automatically.

In 2012, the Association’s board submitted to the unit owners a series of amendments to the Declaration. Among these amendments was one that responded inadequately to the 2007 amendment to section 718.117: it reduced from one hundred percent to sixty-five percent the vote required to consent to a termination of condominium. A second attempt occurred in March of 2013, which changed the consent threshold to eighty percent of unit owners, a percentage that aligned with section 718.117(3). Neither these first nor second Declaration amendments included the condition set forth in section 718.117(3), allowing for an eighty percent approval of unit owners so long as not more than ten percent did not object to termination.

A majority of Tropicana unit owners approved the Association’s amendments. Section 14.5 of the Declaration, however, requires the unanimous approval of unit owners to alter the Declaration’s termination provision. The Association had not pursued a simultaneous amendment of section 14.5’s requirement of a unanimous vote.

The Association submitted additional amendments to the unit owners during this 2012-13 time period. Among those was a restriction on unit ownership that limited unit owners from obtaining any kind of real estate interest in more than two units in the Tropicana Condominium. A majority of unit owners also voted to approve this amendment.

Tropical is composed of five unit owners who appear to oppose condominium termination (and who represent more than ten percent of unit owners who may object and halt a termination effort). The Association alleges that the Tropical owners are associated with the developer of an adjacent condominium tower, who does not favor a re-development of the Tropicana Condominium. In January of 2015, Tropical filed a complaint for declaratory relief, seeking a declaration that the Association’s amendments are invalid because: (1) the amendments relating to condominium termination were not approved by the required unanimous vote; and (2) the prohibition on having an ownership interest in more than two units represented an unreasonable restraint on alienation.

On August 31, 2015, the trial court granted summary judgment on all counts in favor of Tropical. After first finding that the Association failed to comply with its own Declaration’s requirement of unanimous consent of unit owners in order to terminate condominium status, the trial court then found that the Legislature’s 2007 amendments to section 718.117 could not be retroactively applied without causing a constitutional impairment of contract. The trial court also determined that the Association’s attempt to prevent a unit owner from having an ownership interest in more than two units constituted an unreasonable restraint on alienation. Accordingly, on September 10, 2015, the trial court entered final judgment on Tropical’s complaint for declaratory relief. The Association’s appeal ensued.

II. Analysis

A The Retroactive Application of Section 718.117

We agree with the trial court that the Association failed to amend its Deela-ration properly by accepting amendments that were not approved unanimously. On appeal, the Association argues that its effort to amend its Declaration was unnecessary and without import because the Florida • Legislature’s intent was that its 2007 amendment to section 718.117 had retroactive application to Tropicana, notwithstanding an absence of Kaufman language in its Declaration. The issue on appeal thus becomes whether a retroactive application of the statute exists to override the procedural defect of the Declaration amendments; and, if so, whether such retroactive application is constitutional.

Absent Kaufman language, an amendment to the Condominium Act will not have retroactive application to a condominium’s Declaration if it impairs contractual obligations. Cohn v. Grand Condo. Ass’n, Inc., 62 So.3d 1120, 1121-22 (Fla. 2011) (holding that an amendment to section 718.404(2) of the Florida Statutes, which altered voting rights for mixed-use condominium boards, constituted an impairment of contract under Article 1, section 10 of the Florida Constitution). Tropicana’s Declaration, established in 1983, sought to protect unit owners from any undesired effort to terminate condominium status. As a result, the condominium unit owners had a vested right in this contractual provision; indeed, the Declaration bestows this veto right on every unit owner. To what extent will impairment of this right be tolerated?

The question of tolerating impairment was examined in Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 780 (Fla.1979) (“To determine how much impairment is tolerable, we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy.”). In Pomponio, the Florida Supreme Court adopted a three-prong balancing test to determine whether a statutory change in the Condominium Act can be applied retroactively without running afoul of Florida’s Constitution. Id. at 779. The third prong is relevant in this case: “Does the law effect a temporary alteration of the contractual relationship of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?” Id

The Association argues that the third Pomponio prong is satisfied because the 2007 amendment to section 718.117 effects only “a temporary alteration of the contractual relationship.” Id. The Association argues that section 718.117 should be retroactively applied because it expands the contractual right of condominium unit owners to terminate their condominiums; and further, the 2007 amendment increases options and creates a more equitable situation because of the difficulty of achieving unanimous consent. This argument, however, loses focus on whether the 2007 amendment impairs contractual rights.

The trial court correctly determined that, irrespective of Tropical’s motives, the 2007 amendment, if retroactively applied, would eviscerate the Tropical owners’ contractually bestowed veto rights. According to Pomponio’s third prong, the amendment would “work a severe, permanent, and immediate change” in those unit owners’ safeguards against condominium termination that are built into the Declaration. Id.

Therefore, we affirm the trial court’s ruling that the retroactive application of section 718.117 is impermissible, and that the Association’s amendment to section 14.1 of the Declaration is invalid.

B. The Restraint on Alienation

On October 17, 2012, prior to the individual Tropical owners’ acquisitions of their five units, the Association amended the Declaration to add a new section 13.10 in order to limit a unit owner from owning more than two Tropicana Condominium units at any given time. The trial court determined that this provision constituted an unreasonable restraint on alienation.

The Condominium Act allows a Declaration to establish restrictions on the transfer of units. § 718.104(5), Fla. Stat. (2013). Courts have acknowledged that condominium associations may impose restrictions on unit owners’ ability to transfer their units, either by lease or sale. Woodside Vill. Condo. Ass’n, Inc. v. Jahren, 806 So.2d 452 (Fla.2002); White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Due to the uniqueness of condominium living, condominium associations have a degree of control over the ownership of units and, concomitantly, individual owners tolerate a degree of intrusion into their property ownership. Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975). While a restriction on alienation of a condominium might be permissible, it still must be reasonable. Id. at 182; Seagate Condo. Ass’n, Inc. v. Duffy, 330 So.2d 484, 486 (Fla. 4th DCA 1976) (“The test which our courts have adopted and applied with respect to restraints on alienation and use is reasonableness.”). Properly enacted condominium Declaration restrictions are presumed valid, and the challenger of such restrictions has the burden to establish arbitrariness, unreasonableness or violation of law. Woodside Vill. Condo. Ass’n, Inc., 806 So.2d at 457.

We disagree with the trial court’s determination that Tropical met its burden of establishing that the ownership restriction is unreasonable. The record reflects that the majority of unit owners approved the restriction after a fellow owner, who owned six units in the building, allowed all six units to go into foreclosure. Given the relatively small size of Tropicana — forty-eight units — multiple foreclosures caused by a single owner’s financial circumstances, could have a significant, detrimental financial impact on the Association.

An additional and important consideration in our evaluation of the Association’s limit of not more than two units per owner is whether such a restriction impedes the improvement or marketability of a property. Aquarian Found., Inc. v. Sholom House, Inc., 448 So.2d 1166, 1168 (Fla. 3d DCA 1984) (citing Iglehart v. Phillips, 383 So.2d 610 (Fla.1980)).

Again, given the relatively small size of the Tropicana Condominium, in an area of Sunny Isles Beach that in recent decades has seen abundant development of large condominium buildings, the restriction will have a negligible effect on marketability. Tropicana unit owners are free to sell their units to the public at large (subject to the ordinary condominium association approval process), and are excluded only from selling to a tiny, almost inappreciable class of persons who already own two Tropicana units.

For these reasons, we reverse the trial court’s ruling that section 13.10 of the Declaration unreasonably restrains alienation of Tropicana units and remand to the trial court for entry of an amended judgment consistent herewith.

III. Conclusion

For the reasons stated above, we affirm the trial court’s invalidation of the Association’s amendment to section 14.1 of the Declaration. We reverse the trial court’s ruling that declared the Association’s amendment to section 13.10 of the Declaration an unreasonable restraint on alienation.

Affirmed in part, reversed in part. Remanded with instructions.

      . Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977).

      .Section 14.5 of the Declaration provides: "This § 14 cannot be amended without the consent of all Unit Owners and of all record owners of institutional Mortgages upon the Units.” The termination provision is in section 14.1 of the Declaration, which provides: "The Condominium may be terminated at any time by the written consent of all of the Owners of Units in the Condominium and all Institutional Mortgages holding Mortgages on Condominium Parcels,” The record reflects that the Association did not obtain approvals of mortgage holders of units,

      , The Association submitted and a majority of voters approved an amendment to the Declaration’s right of first refusal provision. The trial court found this amendment to be void. On appeal, the Association concedes its invalidity, and so we do not address it here.

      . The trial court’s summary final declaratory judgment is based on pure questions of law. Therefore, our review of both issues on appeal is de novo. Courvoisier Courts, LLC v. Courvoisier Courts Condo. Ass’n, Inc., 105 So.3d 579 (Fla. 3d DCA 2012).

      . It bears noting that, in 1983, the drafters of Tropicana's Declaration had the benefit of our 1977 Kaufman decision and could have cho- • sen to qualify the Declaration' to include any subsequent revisions to Florida’s Condominium Act enacted by the Florida Legislature. The drafters chose not to include such Kaufman language.

      . The other two prongs are: (1) "Was the law enacted to deal with a broad, generalized economic or social problem?” and (2) “Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?” Pomponio, 378 So.2d at 779.

      . This amendment was approved by a majority of the Tropicana unit owners. Section 14.5's requirement of unanimous consent applies only to amendments to section 14 of the Declaration.

      . Tropical argues that the two-unit ownership restriction unreasonably restricts alienability because it would impede a single lender from underwriting mortgage loans for more than two Tropicana condominium units. The definition of “Unit Owner” in section 2 of the Declaration provides: "Unit Owner ... means the owner of a Condominium Parcel (including the Developer when applicable).” Despite the broadness of this definition, in light of the Association’s intent in adding section 13.10 to its Declaration, we conclude that, for the purposes of section 13.10, a unit owner does not include a foreclosing mortgage holder.


text:
    ADWEISS LLLP, a Florida Limited Liability Limited Partnership, and Adweiss LLC, as General Partner of Adweiss LLLP, Appellants, v. John A. DAUM, individually, and JAD Services, a Florida Limited Liability Company, Appellees.
    No. 3D16-531.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2016.

      Law Office of Dennis Grossman, and Dennis Grossman; Law Office of Max R. Price, P.A., and Max R. Price, for appellants.
    Philip D. Parrish, P.A., and Philip D. Parrish; Loren S. Granoff, P.A., and Loren S. Granoff, for appellees.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

Adweiss, LLLP, a Florida Limited Liability Limited Partnership, and Adweiss, LLC (“the LLC”), a Delaware Limited Liability Company (collectively, “the plaintiffs”), appeal from an order granting John A. Daum’s and JAD Services LLC’s (collectively, “the defendants”) motion for advancement of attorney’s fees and costs (“Entitlement Order”), and from an order awarding $115,102 to the defendants in advancement fees and costs (“Awards Order”). For the reasons that follow, we affirm the Entitlement Order, but reverse the Awards Order and remand for an evi-dentiary hearing.

Applying Delaware law, the trial court found that pursuant to paragraph 6.6 of the LLC’s Limited Liability Company Agreement (“LLC Agreement”), the defendants are entitled to the advancement of attorney’s fees and costs. Paragraph 6.6 provides in relevant part as follows:

6.6. Indemnity. The Company shall indemnify, defend and hold harmless (i) the Managers, (ii) any person designated to act on behalf of the Managers, ... (severally, the “Indemnitee” and collectively, the “Indemnitees”), from and against any claims, losses, liabilities, damages, fines, penalties, costs and expenses (including, without limitations, fees and disbursements of counsel and other professionals) arising out of or in connection with any act or failure to act by an Indemnitee pursuant to this Agreement, or the business and affairs of the Company, to the fullest extent permitted by law; provided, however, that the Company shall not be required to indemnify an Indemnitee for any loss or damage which the Indemnitee may incur as a result of such Indemnitee’s willful misconduct or gross negligence,

(emphasis added).

The primary issue presented below and here on appeal is whether the inclusion of the term “defend” in the phrase “indemnify, defend and hold harmless,” as set forth in paragraph 6.6 of the LLC Agreement, provides for the advancement of attorney’s fees and costs to the defendants for their defense of the action filed by the plaintiffs. Based on our de novo review of the LLC Agreement, see Kuhn Constr., Inc. v. Diamond State Port Corp., 990 A.2d 393 (Del. 2010) (noting that the trial court’s interpretation of a contract is reviewed on appeal de novo), we conclude that the term “defend” unambiguously provides for the advancement of attorney’s fees and costs, and therefore, we affirm the Entitlement Order.

The plaintiffs suggest that paragraph 6.6 merely provides for indemnification, not for advancement. It is undisputed that paragraph 6.6 provides for indemnification based on the inclusion of the phrase “indemnify ... and hold harmless.” Thus, the plaintiffs’ suggestion would render the inclusion of the term “defend” meaningless. As stated by the Delaware Supreme Court in Kuhn, we must read the agreement “as a whole” and “give each provision and term effect, so as not to render any part of the contract mere surplusage.” Kuhn, 990 A.2d at 396-97 (emphasis added) (footnote omitted). Thus, the inclusion of the term “defend” in the phrase “indemnify, defend and hold harmless” signifies much more than an obligation to “indemnify” because the term “defend” is not necessary if the purpose of the phrase was merely to provide for indemnification.

Although the terms “advancement” or “advance” are not utilized in paragraph 6.6, courts in Delaware have suggested that the term “defend” means something more than “indemnify.” For example, in Majkowski v. American Imaging Management Services, Inc., 913 A.2d 572 (Del.Ch. 2006), the Court of Chancery rejected Mr. Majkowski’s argument that he was entitled to advancement based on a provision in a limited liability company agreement that states that the company “shall indemnify and hold harmless the member(s) and their affiliates.” The court noted that the provision was “a standard, straight-forward indemnification provision, devoid of any advancement rights.” Id. at 587. The court, however, suggested that if the agreement “used the word ‘defend,’ Maj-kowski would have a stronger argument because the obligation to ‘defend’ comes closer to suggesting the active employment of attorneys and continual payment as the attorneys’ fees are incurred.” Id. at 587 n. 39.

Similarly, in Winshall v. Viacom International, Inc., 76 A.3d 808, 820 (Del.2013), a provision in a merger agreement imposed a duty to “indemnify,” but not a duty to “defend.” The Delaware Supreme Court rejected the defendants’ argument that the merger agreement also imposed an “independent duty to pay defense costs,” and in doing so, stated as follows:

Where parties to a merger agreement intend to create separate duties to indemnify and to defend, they employ an “indemnify and defend against claims” clause or similar language to that effect. But where, as here, the contract expressly imposes only a duty to “indemnify,” as opposed to “indemnify and defend,” the courts generally hold that there is no duty to defend.

Id. In support, the Delaware Supreme Court cited to Lear Corp. v. Johnson Electric Holdings Ltd., 353 F.3d 580, 584 (7th Cir.2003), which stated: “[N]o duty to defend means no duty to pay for the outlays of defense on a current basis.”

Based on Majkowski and Winshall, we affirm the trial court’s determination that the phrase “indemnify, defend and hold harmless” entitles the defendants to the advancement of attorney’s fees and costs to defend the action filed against them by the plaintiffs. Any other holding would render the term “defend” meaningless. Although we affirm the entitlement to the advancement of attorney’s fees and costs, we reverse the amount awarded and remand for an evidentiary hearing to give the plaintiffs an opportunity to contest the reasonableness and scope of the attorney’s fees and costs requested by the defendants, and in doing so, the trial couit is specifically instructed not to award any fees and costs relating to the defendants’ counterclaims filed against the plaintiffs.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . The parties agree that Delaware law governs the substantive issues in this appeal.

      . We reject the plaintiffs’ secondary argument that the defendants are not entitled to the advancement of fees and costs because they are guilty of unclean hands based on the surreptitious and illegal withdrawal of $858,146. At this point, there has been no determination as to whether the funds were illegally withdrawn, and therefore, this allegation cannot be the basis for denying the advancement of fees and costs.


author: SUAREZ, C.J.

text:
    CLASSICAL & INNOVATIVE DESIGNS, INC., Petitioner, v. MAX SOUTH CONSTRUCTION, INC. and BH Developers, LLC, Respondents.
    No. 3D16-987.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2016.
    Malka & Kravitz, P.A. and Ian T. Krav-itz and Harry Malka, Ft. Lauderdale, for petitioner.
    Peckar & Abramson and Melinda S. Gentile and Monique S. Cardenas, for respondent Max South Construction, Inc.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   SUAREZ, C.J.

Classical & Innovative Designs, Inc. (“CID”) petitions for certiorari review of the order granting Max South Construction, Inc.’s (“Contractor”), Motion for Judgment on the Pleadings, dismissing CID’s Motion for Leave to Amend, and releasing the cash security posted to secure CID’s Claim of Lien to Contractor from the court registry. We grant the petition, finding that the trial court departed from the essential requirements of the law, resulting in irreparable harm that cannot be adequately remedied on final appeal. See Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007).

CID was hired as a subcontractor by Contractor to furnish a portion of the work required of Contractor under its direct contract with the owner of the subject real property, BH Developers, LLC (“Owner”). CID claimed that it remained unpaid for finished work and recorded a claim of lien against Owner’s real property. Shortly thereafter, Contractor brought action against CID seeking to discharge the construction lien and requesting the Clerk to issue a summons to CID to show cause why the claims of lien should not be enforced by action or vacated and/or can-celled pursuant to Florida Statute Section 713.21(4) (2014). Contractor then transferred CID’s lien to cash security pursuant to Florida Statute Section 713.21(2014), thereby releasing Owner’s property as security for the claim of lien and replacing security for the claim of lien with the bond.

On June 23, 2015, CID filed a First Amended Complaint for Enforcement and Foreclosure of Claim of Lien. That Amended Complaint contained both Counterclaims against Contractor and Third Party claims against Owner. The Amended Complaint mistakenly asserted a claim for lien foreclosure against the bond in the Third-Party portion of the Complaint, rather than in the Counterclaim, but the count correctly named Contractor as the party against whom relief was sought. Contractor did not respond to the allegations of the lien foreclosure count.

Contractor later moved for judgment on the pleadings, claiming that one year had passed since it transferred the lien to cash security and the time for CID to bring an action against that cash security had lapsed before CID named Contractor as a party to the claim. The trial court granted the motion. We believe, under the circumstances of this case, that was error which caused material injury for which there is no adequate remedy on appeal. See Bayview Const. Corp. v. Jomar Prop., LLC, 97 So.3d 909 (Fla. 4th DCA 2012).

As required by Florida Statute Section 713.21, within one year of Contractor transferring the construction lien to cash security CID brought an action against that cash security, but through scrivener’s error that claim was not placed in the correct portion of CID’s Amended Complaint. It is obvious that CID intentionally amended its Complaint after the lien had been transferred to cash security to properly state a claim against Contractor and we find that the scrivener’s error at issue here should not deprive CID of its right to make a claim against the cash bond. “The nature and character of a pleading must be determined, not by its title, but by its contents and by the actual issues in dispute.” Scarfone v. Marin, 442 So.2d 282, 283 (Fla. 2d DCA 1983). See also Pub. Health Trust of Miami-Dade Cty. v. Acanda, 71 So.3d 782, 785-86 (Fla. 2011) (“We reject the use of ... ‘gotcha’ tactic[s] to dispose of potentially meritorious causes of action ... Causes of action should be decided on their merits, and not as the result of ‘surprise, trickery, bluff, and legal gymnastics’ ”).

Further, when the scrivener’s error became clear to CID, it properly moved to amend its Amended Complaint to move the lien foreclosure to the Counterclaim portion of its proposed Second Amended Complaint. The trial court should have granted that motion. “Where there is no doubt regarding the identity of the party intended to be named, it is not unfair or unjust to permit a plaintiff to correct its pleading particularly because the defendant suffers no prejudice.” Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 137 So.3d 487, 491 (Fla. 4th DCA 2014).

For the foregoing reasons, we grant the petition for certiorari, reverse the trial court’s order and remand with directions to vacate that order, to issue an order granting Petitioner’s Motion for Leave to Amend relating back to the date that the First Amended Counterclaim and Third Party Complaint was filed, and ordering that the cash security be reposted to the court registry within ten days.


author: SHEPHERD, J.

text:
    Taronn Kenard BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1188.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2016.
    Taronn Kenard Brown, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, LAGOA and EMAS, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, J.

On May 19, 2016, Taronn Kenard Brown filed an appeal from the trial court’s March 4, 2016, Order Denying Defendant’s Successive Motion for Postconviction Relief and Order Prohibiting Defendant from Filing Any Further Pro Se Proceedings. On September 12, 2016, we dismissed the appeal as duplicative of a prior appeal, and we ordered Mr. Brown to show cause why this court should not prohibit him from submitting further pro se appeals, petition or motions regarding lower tribunal case number F00-15843. Mr. Brown did not comply with this order, and, after careful review of the record and in consideration of the prior appeals by Mr. Brown, we are compelled to prohibit Mr. Brown from filing any additional pro se appeals, petitions or motions that concern his conviction and sentence in Case No. F00-15843, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Since his conviction of second degree murder in Case No. 00-15843, Mr. Brown has filed numerous motions and appeals, many raising claims of newly discovered evidence, which have been denied, including in this court case numbers 3D04-673, 3D06-539, 3D06-701, 3D06-703, 3D06-2592, 3D09-1697, 3D09-1906, 3D10-1843, 3D14-1470, 3D14-2837, 3D15-1237, and 3D16-865. As we have stated before, although “incarcerated persons have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations,’ ... frivolous post conviction motions and petitions are not among an incarcerated person’s procedural vehicles.” Dawson v. State 121 So.3d 63, 65 (Fla. 3d DCA 2013) (quoting Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012)). “The right to proceed pro se will be forfeited where a party abuses the judicial process by continued filing of ‘successive motions which have been heard, considered, rejected and then raised again.’” Jimenez v. State, 196 So.3d 499, 501 (Fla. 3d DCA 2016) (quoting Concepcion v. State, 944 So.2d 1069, 1072 (Fla. 3d DCA 2006)). We conclude Mr. Brown has forfeited his right to further pro se filings.

Accordingly, we direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, petitions or motions relating to Mr. Brown’s conviction and sentence in Case No. F00-15843, unless they are filed by a Florida Bar member in good standing.