text:
    CARNIVAL CORPORATION, Appellant, v. Mirta GARCIA, Appellee.
    No. 3D17-0445
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018
    Ross and Girten, Miami, FL, and Lauri Waldman Ross, and Theresa L. Girten ; Foreman Friedman, P.A., Miami, FL, and Jeffrey E. Foreman and Noah D. Silverman, for appellant.
    Alvarez, Carbonell, Cooke, Feltman, & DaSilva, PL., Coral Gables, FL, and Paul B. Feltman, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   LINDSEY, J.

Carnival Corporation appeals the trial court's denial of its motion for reconsideration of its motion to dismiss (the "motion to dismiss") which sought dismissal of this action for improper venue. Because the federal court has admiralty jurisdiction over this action, and because the cruise contract that governs the relationship between Carnival Corporation ("Carnival") and the plaintiff below required this lawsuit to be filed in the United States District Court for the Southern District of Florida in Miami, we reverse for the reasons more fully set forth below.

I. BACKGROUND

Mirta Garcia purchased a ticket to cruise on the M/V CARNIVAL VICTORY, a cruise ship she alleges is owned and/or operated by Carnival departing on November 7, 2013. Bold, capitalized language on the top of the "ticket contract" stated:

IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND CONDITIONS APPEARING BELOW.
NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO CLAUSES 1, 4 AND 10 THROUGH 13, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.

Paragraph 13, entitled "Jurisdiction, Venue, Arbitration and Time Limits for Claims," contains the following forum selection provision:

(c) [I]t is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest's cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.

Garcia sued Carnival in state court for injuries allegedly sustained at the Port of Miami terminal while riding on an escalator to embark on her cruise. Garcia asserted jurisdiction is proper in state court under "general maritime law" and the "savings to suitors clause" of 28 U.S.C. section 1333. In her complaint, Garcia alleged she was a business invitee of Carnival and that Carnival undertook the duty to supervise, control, and direct the embarkation of its business invitees using the escalator and, specifically, that "[i]n order to board the vessel, she and a crowd of people were directed [by Carnival] to utilize an escalator leading up a ramp, the upper landing of which led to the vessel's gangway." Garcia claimed she was injured when she fell because the escalator jolted, purportedly due to "crowded conditions on board the escalator[ ] and a lack of crowd control," all of which Garcia attributed to negligence on the part of Carnival. Further, Garcia contended Carnival, among other things, breached its non-delegable duty to provide safe ingress and egress to the vessel by failing to provide an "appropriately designed entranceway to the M/V [CARNIVAL VICTORY]." And, Garcia alleged Carnival breached its assumed duty to supervise, control, and direct the embarkation of business invitees on board various ships including the M/V CARNIVAL VICTORY.

Carnival moved to dismiss, arguing that venue was improper because the ticket contract between Garcia and Carnival contains a forum selection clause which requires all suits for personal injuries to be filed in the United States District Court for the Southern District of Florida in Miami. In her response, Garcia asserted that the case was properly filed in state court because the United States District Court lacked subject matter jurisdiction. After a hearing in July of 2015, the trial court entered an order denying the motion to dismiss.

In November of 2015, after this Court decided Newell v. Carnival Cruise Lines, 180 So.3d 178 (Fla. 3d DCA 2015), Carnival moved for reconsideration of the trial court's prior order denying dismissal and for dismissal based on Newell. Over a year later, the trial court entered an order reconsidering its prior order but adhering to its initial ruling denying dismissal. The trial court found venue proper in state court in Miami-Dade County because the United States District Court lacked subject matter jurisdiction. This timely appeal follows.

II. JURISDICTION

This Court has jurisdiction to review non-final orders that concern venue under Florida Rule of Appellate Procedure 9.130(a)(3)(A). "This rule enables a party to seek review of an adverse decision on venue before that party is forced to litigate the entire controversy in the wrong forum." Regal Kitchens, Inc. v. O'Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 290 (Fla. 3d DCA 2005) (quoting Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999) ).

III. STANDARD OF REVIEW

As the trial court's order denying Carnival's motion to dismiss was based on the interpretation of the contractual forum selection clause, this Court's standard of review is de novo. Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009).

IV. ANALYSIS

A federal court's authority to hear cases in admiralty flows initially from the United States Constitution, which " 'extend[s]' federal judicial power' to all Cases of admiralty and maritime Jurisdiction.' " Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (alteration in original) (citing U.S. Const., Art. III, § 2). Section 1333 prescribes: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1).

The mandatory forum selection clause contained in the ticket contract applies to "all disputes... incident to this Contract or the Guest's cruise, including travel to and from the vessel" and provides for venue in the United States District Court for the Southern District of Florida in Miami for those lawsuits over which the federal court has subject matter jurisdiction. See, e.g., Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (finding a forum selection clause in a commercial cruise ticket contract enforceable); Carnival Corp. v. Booth, 946 So.2d 1112 (Fla. 3d DCA 2006) (enforcing a forum selection clause identical to the one in the present appeal); Leslie v. Carnival, 22 So.3d 561 (Fla. 3d DCA 2008) (enforcing a nearly identical forum selection clause as the one in the instant appeal), aff'd by an equally divided court en banc, 22 So.3d 567 (Fla. 3d DCA 2009), rev. denied, 44 So.3d 1178 (Fla. 2010), cert. denied, 562 U.S. 1270, 131 S.Ct. 1603, 179 L.Ed.2d 499 (2011). Thus, it follows that only in the absence of admiralty jurisdiction, will proper venue lie in a state court in Miami-Dade County.

The issue before us, then, is whether the federal court or the state court has subject matter jurisdiction. Carnival contends that our recent decision in Newell, and the cases on which we relied therein, compels reversal and dismissal. 180 So.3d 178. In response, Garcia contends Newell does not apply because the injury here occurred prior to embarkation and seeks affirmance based on Fernandez v. Ceres Marine Terminals, Inc., 2013 WL 1663333, at *1, 2013 U.S. Dist. LEXIS 54992, at *1 (M.D. Fla. Apr. 17 2013) and Vincenzo v. Carnival Corp., 2012 WL 1428888, at *1, 2012 U.S. Dist. LEXIS 57040, at *1 (S.D. Fla. Apr. 24, 2012).

In Newell, a passenger who had just completed a Carnival cruise alleged she was injured in the Port of Miami after exiting the ship when she fell over a metal stand located on a pathway between the luggage claim area and the United States Customs station. 180 So.3d at 179. The passenger sued Carnival in state court in Miami-Dade County alleging that Carnival negligently maintained or created the walkway by its placement of the metal stands. Id. at 179-80. The ticket contract between Carnival and the passenger contained a forum selection clause requiring that any prospective clams "arising under, in connection with or incident to [the ticket contract] ... including travel to and from the vessel, shall be litigated, if at all, in the United States District Court for the Southern District of Florida." Id. at 180 (alteration in original). The ticket contract further provided if the federal court lacked subject matter jurisdiction, then the lawsuit must be filed in a state court located in Miami-Dade County. Id. We framed the issue in Newell as "whether admiralty jurisdiction exists when a cruise ship passenger alleges that, as a result of the negligence of the cruise line, she was injured after exiting the ship and while walking in a restricted area of the cruise ship terminal on her way to the United States Customs station." In answering the question in the positive, we found both the location and connectivity tests were met. Id. at 180-81, 183.

In Fernandez, on which Garcia relies, a plaintiff sued Ceres Marine Terminal, Inc. ("Ceres Marine") in state court for injuries allegedly sustained when she fell on the roadway in front of the Tampa port terminal. 2013 WL 1663333, at *2-3, 2013 U.S. Dist. LEXIS 54992, at *7. The plaintiff had a ticket for a cruise with Carnival Cruise Line, scheduled to depart from that port. Id. at *2, 2013 U.S. Dist. LEXIS 54992, at *6. At the time of injury, the plaintiff had stopped her car in the front of the terminal to drop off her luggage before parking to embark on the cruise. Id. at *2-3, 2013 U.S. Dist. LEXIS 54992, at *6-7. Ceres Marine removed the case to federal court and the United States District Court for the Middle District of Florida remanded the case back to state court upon finding there was no basis to exercise admiralty jurisdiction. Id. at *1, 3, 2013 U.S. Dist. LEXIS 54992, at *1, 8. In so doing, the District Court concluded that the locality test had not been met because the incident occurred entirely on land and not on navigable waters and was not caused by a vessel on navigable waters. Id. at *3, 2013 U.S. Dist. LEXIS 54992, at *8.

Similarly, in Vincenzo, on which Garcia also relied, the United States District Court for the Southern District of Florida dismissed a plaintiff's claim for negligence against Carnival Corporation for lack of admiralty jurisdiction because the location test had not been met, where a cruise ship passenger tripped and fell while stepping down a large step while exiting the port area of the terminal after departing the ship. 2012 WL 1428888, at *1, 2, 2012 U.S. Dist. LEXIS 57040, at *1-2, 5.

Pursuant to the Extension of Admiralty Jurisdiction Act "[t]he admiralty and maritime jurisdiction of the United States extends to and includes cases of damage or injury, to person or property, caused by a vessel on navigable water, even though the injury or damage is done or consummated on land." 46 U.S.C. App. § 30101(a) ). In determining whether admiralty jurisdiction exists, the United States Supreme Court has held:

[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved, to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.

Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal quotations omitted) (citations omitted).

A. The Location Test

"[C]ase law interpreting and applying the location test unequivocally holds that the location test is met where it is alleged that the shipowner commits a tort before or while the ship is being unloaded, and the impact is felt on shore at a time and place not remote from the wrongful act." Newell, 180 So.3d at 181 (citing e.g., Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 210, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963) ). The "caused by" language in the location test has been interpreted to require "proximate causation." Newell, 180 So.3d at 181 (citing Grubart, 513 U.S. at 536, 115 S.Ct. 1043 ). In finding the location test was met in Newell, we relied on two cases involving injuries that occurred at the port terminal just after disembarkation, Lipkin v. Norwegian Cruise Line Ltd., 93 F.Supp.3d 1311 (S.D. Fla. 2015) and Duck v. Royal Carribean Cruises, Ltd., 2013 U.S. Dist. LEXIS 92974, at *1 (S.D. Fla. June 28, 2013). In both of those cases, although the claimed injury did not occur on navigable water, the court found it nonetheless bore a proximate causation to the vessel.

In Lipkin, a passenger who was using a cane was injured after he collided with a wheelchair that got stuck at the end of a moving walkway inside the port terminal leading to the baggage claim area. 93 F.Supp.3d at 1316. The passenger sued the cruise line in federal court claiming it was negligent for allowing or directing passengers using wheelchairs to use the moving walkway. Id. Lipkin held that the passenger's injuries occurred during the disembarkation process, that is, during the cruise ship's "unloading" of passengers "from the ship to a nearby point onshore," and thus, the passenger's claim against the cruise line satisfied the location test. Id. at 1318 (quoting Duck v. Royal Carribean Cruises, Ltd., 2013 U.S. Dist. LEXIS 92974, at *5-6 (S.D. Fla. June 28, 2013)). In other words, the Newell court explained, the location test was satisfied in Lipkin because "there was a proximate causal link between the act of unloading passengers and the activities of the vessel on navigable waters." 180 So.3d at 182.

In Duck, a passenger sued a cruise line for negligence for injuries sustained when he fell from a wheelchair while being pushed to a parking lot outside of the cruise ship terminal by the cruise line's employees. 2013 U.S. Dist. LEXIS 92974, at *2. The Duck court held that the location test was satisfied "when it is alleged that a ship owner's employee commits a tort while the vessel is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act." Id. at *5. Importantly, the Duck court explained that "[a]lthough the alleged incident did not take place on a gangplank or some other place one might more readily associate with disembarkation, the Supreme Court has 'taken the expansive view of admiralty jurisdiction and has stated that in modern maritime commerce the shore is now an artificial place to draw a line.' " Id. (citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900 (11th Cir. 2004) ). In concluding the location test was met, we reasoned in Newell that "[t]hese facts are highly analogous to the facts in Lipkin and display a proximate causal link similar to the one found in Duck. " Id. at 182-83.

Here, Garcia was allegedly injured on an escalator inside the cruise terminal leading up to the ship's gangway during the process of boarding the ship. In her complaint, Garcia alleged Carnival "direct[ed] its business invitees en masse to use the Port of Miami escalator." According to Garcia, the escalator led up to a ramp, the upper landing of which led to the vessel's gangway. It follows that the only way to board the cruise ship was to somehow rise to the level of the gangplank. Here, the escalator provided the necessary lift. As such, we find the instant facts more in line with those in Lipkin and Duck and our precedent in Newell than those in Vincenzo and Fernandez where the claimed injuries occurred outside the terminal in an area accessible to both ticketed passengers and non-ticketed individuals alike. Moreover, though Newell, Vincenzo and Fernandez all involved injuries claimed to have occurred after disembarkation, we find no distinction between embarking and disembarking for purposes of admiralty jurisdiction. Therefore, we conclude the location test is satisfied.

B. The Connectivity Test

Under the connectivity test, sometimes referred to as the "nexus" test, the inquiry focuses on maritime commerce. Courts look to whether the incident had a potentially disruptive impact on maritime commerce and whether a substantial relationship exists between the activity giving rise to the incident and maritime commerce. Newell, 180 So.3d at 180 (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043 ).

In Newell, this Court relied on Lipkin, noting that "[t]he failure to provide for the safe unloading of a commercial vessel such as a cruise ship has a rather obvious potential to disrupt maritime commerce," (quoting Duck, 2013 U.S. Dist. LEXIS 92974, at *7), and that "the failure to provide a reasonably safe means of debarking, with consequent injury to a passenger, is a tort within admiralty jurisdiction" (quoting Tullis v. Fid. and Cas. Co. of N.Y., 397 F.2d 22, 23-24 (5th Cir. 1968) ). Id. at 181 (citing Lipkin, 93 F.Supp.3d at 1318 ); see also Carlisle v. Ulysses Line, Ltd., S.A., 475 So.2d 248, 250 (Fla. 3d DCA 1985) ("[Case law] hold[s] that the duty of a common carrier extends to the point of debarkation and embarkation.... The cases do not, however, purport to define the limits of the duty.").

In Kirk v. Holland America Line, Inc., two cruise ship passengers were injured on an escalator in the port terminal while passengers were disembarking the ship at the final port of call. 616 F.Supp.2d 1101, 1102-03 (W.D. Wash. 2007). The passengers departed the vessel, proceeded on the vessel's gangway, then to a downward escalator, and then to baggage claim. Id. at 1103. In denying the cruise line's motion for summary judgment, the court, using a "totality of the circumstances" analysis, determined that material issues of fact existed as to the scope of duty of reasonable care during egress. Id. at 1104. The court in Kirk further stated that "any vessel which engages in the carriage of passengers for hire has a duty to provide for embarking and disembarking at the beginning and end of the voyage." Id. (citation omitted). Moreover, the court declined to establish a rigid rule that leaving the gangway is, as a matter of law, the endpoint of a carrier's duty. Id. at 1104-05.

Inasmuch, the failure to provide for the safe boarding of a cruise ship has "a potentially disruptive impact on maritime commerce" and "the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal quotations omitted) (citations omitted); see also Duck, 2013 U.S. Dist. LEXIS 92974, at *7 ("[I]ncidents occurring during embarkation/disembarkation can slow down the process of getting other passengers on and off the vessel and can potentially cause the vessel to depart port at a later time, causing delays."); Butler v. American Trawler Co., Inc., 887 F.2d 20, 21 (1st Cir. 1989) (finding that the boarding of a ship bears a significant relation to traditional maritime activities, as one does not normally board a ship in quite the same way one enters a building, an airplane, or a car). Thus, based on the facts alleged in Garcia's complaint and irrespective of whether she was embarking or disembarking-whether the escalator was going up or going down-we find that the connection test is satisfied.

This finding is consistent with the modern, expansive view of admiralty jurisdiction to provide for the uniform application of general maritime law. See Doe, 394 F.3d at 902 ("[T]he purpose behind the exercise of this Court's admiralty jurisdiction is to provide for the uniform application of general maritime law.... Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined is so important for maritime activity."); Norfolk Southern Ry. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 28-29, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (discussing its touchstone concern for the uniformity of general maritime law); Carnival Corp. v. Carlisle, 953 So.2d 461, 470 (Fla. 2007) ("[B]ecause this is a maritime case, this Court and the Florida district courts of appeal must adhere to the federal principles of harmony and uniformity when applying federal maritime law.").

V. CONCLUSION

Since the location test and connectivity tests are satisfied, we find that federal admiralty jurisdiction exists in this case. Because the cruise contract that governed the relationship between the parties required Garcia to file her lawsuit in the United States District Court for the Southern District of Florida, the trial court erred in denying the motion to dismiss. As such, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      The terms "admiralty" and "maritime" are used interchangeably for purposes of this opinion as the precedents discussed herein use both terms. As noted by a leading treatise, "insofar as the reference is to substantive law, the terms 'admiralty' and 'maritime law' are virtually synonymous in this country today, though the first derives from the connection of our modern law with the system administered in a single English court, while the second makes a wider and more descriptive reference." See Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 n.2 (7th Cir. 2001) (citing Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty § 1-1 (2d ed., 1975)); see also Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1057 n.1 (11th Cir. 2013) (citing Bryan Garner, A Dictionary of Modern Legal Usage 29 (2d ed. 1995) ("The terms "admiralty" and "maritime" are "virtually synonymous." We therefore use the terms interchangeably.)).

      Garcia initially filed this action in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, the county of Garcia's residence. The case was transferred to the Eleventh Judicial Circuit in and for Miami-Dade County, Florida on January 20, 2015, when the Fifteenth Judicial Circuit entered an order granting Garcia's motion to transfer venue. Prior to transfer, Garcia filed an amended complaint which is the operative pleading for purposes of this appeal.

      The terms "connectivity test" and "connection test" are used interchangeably for purposes of this opinion as the precedents discussed herein use both terms.

      Garcia also relies on Anderson v. United States, 317 F.3d 1235 (11th Cir. 2003). Anderson involves a suit by a contractor working at an observation post claiming injury from a bomb released by a United States aircraft carrier conducting a training exercise off shore at Vieques Island, Puerto Rico, and as such, is factually distinguishable. 317 F.3d at 1236.

      Grubart cites to an earlier version of the Extension of Admiralty Jurisdiction Act, which states that "the admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 513 U.S. at 532, 115 S.Ct. 1043 (citing 46 U.S.C. App. § 740 ). The court further explains that "[t]he purpose of the Act was to end concern over the sometimes confusing line between land and water, by investing admiralty with jurisdiction over 'all cases' where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land."Grubart, 513 U.S. at 532, 115 S.Ct. 1043 (citing e.g., Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 209-210, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963) ; Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) ).

      The terms "debarking" and "disembarking" are synonyms and are used interchangeably for purposes of this opinion as the precedents discussed herein use both terms.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    JOCKEY CLUB CONDOMINIUM APARTMENTS, INC., Appellant, v. B.V.K., LLC, etc., et al., Appellees.
    No. 3D17-0038
    District Court of Appeal of Florida, Third District.
    January 3, 2018
    Mark Perlman, P.A., and Mark Perlman (Hallandale Beach), for appellant.
    Luis G. Montaldo; Bilzin Sumberg Baena Price & Axelrod LLP, and Eileen Ball Mehta and Leah Aaronson ; Abigail Price Williams, Miami-Dade County Attorney, and Jorge Martinez-Esteve, Assistant County Attorney; Gary S. Glasser, P.A., and Gary S. Glasser, for appellees.
    Before SUAREZ, EMAS and SCALES, JJ.
   SCALES, J.

Jockey Club Condominium Apartments, Inc. ("Jockey Club") appeals a December 14, 2016 order denying its motion for rehearing (the "Rehearing Order") directed toward a September 30, 2016 order entered by the Miami-Dade Circuit Court (the "September 30, 2016 Order"). The September 30, 2016 Order, which is described more fully below, vacated an earlier summary judgment order. Because we lack jurisdiction to consider an appeal of either the September 30, 2016 Order or the Rehearing Order, we dismiss Jockey Club's appeal.

I. Procedural Background

The underlying case involves a dispute over the ownership and possession of a condominium parking lot (the "Parcel"). After the Parcel's property taxes were not paid, the appellee, plaintiff and counter-defendant below, B.V.K., LLC ("BVK"), purchased the property in a 2008 tax deed sale. Because the Parcel is located in a gated condominium community, BVK could not gain access to the Parcel. In 2012, BVK filed a lawsuit against Jockey Club and entities related to Jockey Club, and later added as parties the Miami-Dade County Clerk, the Property Appraiser and the Tax Collector. BVK's lawsuit sought declaratory relief and damages for unjust enrichment.

Jockey Club's answer and affirmative defenses, and a subsequent motion for summary judgment by co-defendant J.C. Property 2010, LLC, maintained that the tax deed sale to BVK was invalid because the Property Appraiser had sent the Parcel's ad valorem tax bills to the wrong entity. The Property Appraiser had sent the annual ad valorem tax bills, and the Tax Collector had given notice of the eventual tax deed sale, to an entity known as Jockey Holdings, Inc.; however, Jockey Holdings Inc. was not the owner of record of the Parcel. Apparently, in 1996, Jockey Holdings, Inc. acquired a portion of the property commonly known as The Jockey Club, but its purchase excluded the Parcel. An entity known as Jockey Club, Inc. appeared to retain ownership of the Parcel.

The limited record before us indicates that, during the summer of 2015, the parties filed cross-motions for summary judgment. In an amended summary judgment order, dated October 29, 2015, the trial court determined that Jockey Club, Inc. was the owner of the Parcel; in that order, the trial court invalidated the tax deed sale on due process grounds and also ordered the Tax Collector to conduct a new tax deed sale. Pursuant to Florida Rule of Civil Procedure 1.540, both the County Clerk and BVK filed motions seeking relief from the October 29, 2015 amended summary judgment order. The County Clerk's motion also sought clarification as to whom it should send notice of the new tax deed sale of the Parcel.

While these rule 1.540 motions were pending, an attorney ad litem appointed by the trial court filed a report that identified a successor owner of Jockey Club, Inc. Just prior to this report's filing, BVK struck a deal with this purported successor owner by which the successor owner quitclaimed the Parcel to BVK.

On September 12, 2016, the trial court conducted a hearing on the County Clerk's rule 1.540 motion. As reflected in its September 30, 2016 Order granting the rule 1.540 motion, the trial court's original concern about the due process issues arising from the tax deed sale to BVK was assuaged by the "cure" of the quitclaim deed. In this September 30, 2016 Order, the trial court (i) vacated its earlier October 29, 2015 amended summary judgment order, (ii) found that the tax deed sale was valid, (iii) found that the County Clerk did not need to re-auction the Parcel, and (iv) determined that BVK was the present owner of the Parcel.

On October 11, 2016, Jockey Club challenged the trial court's September 30, 2016 Order not by appealing the order but by filing a motion for rehearing, presumably pursuant to Florida Rule of Civil Procedure 1.530. On December 14, 2016, the trial court entered the Rehearing Order, denying Jockey Club's motion for rehearing.

On January 6, 2017, Jockey Club filed a notice of appeal of the Rehearing Order, characterizing the Rehearing Order as an appealable, non-final order determining the right to immediate possession of property. After BVK filed its February 17, 2017 motion to dismiss this appeal, Jockey Club filed a motion with this Court to amend its notice of appeal wherein Jockey Club sought to re-designate its appeal as one from a final order. Jockey Club now maintains that it is seeking appellate review of the September 30, 2016 Order-establishing BVK as the Parcel's owner-the rendition of which Jockey Club asserts was tolled by Jockey Club's October 11, 2016 motion for rehearing.

II. Analysis

We lack jurisdiction to review either the September 30, 2016 Order or the Rehearing Order, and dismiss Jockey Club's appeal accordingly.

A. The September 30, 2016 Order

In order for this Court to exercise jurisdiction to review a final or a specified non-final order, a notice of appeal must be filed within thirty days of the rendition of the order to be reviewed. Fla. R. App. P. 9.110(b), 9.130(b). If, however, an "authorized and timely" motion for rehearing of a final order has been filed, then the final order is not deemed "rendered"-and the time for filing the notice of appeal is therefore tolled-until the trial court adjudicates that "authorized and timely" rehearing motion. Fla. R. App. P. 9.020(i).

Florida Rule of Appellate Procedure 9.020(i)'s tolling provision, though, is inapplicable to orders entered on motions seeking relief from judgment pursuant to rule 1.540(b). Fla. R. App. P. 9.130(a)(5). Rehearing motions directed to such orders do not toll their rendition. Id.; see New Day Miami, LLC v. Beach Developers, LLC, 225 So.3d 372 (Fla. 3d DCA 2017).

The September 30, 2016 Order resulted from the County Clerk's rule 1.540 motion seeking relief from the trial court's October 29, 2015 amended summary judgment order. Therefore, Jockey Club's October 11, 2016 motion for rehearing directed toward that September 30, 2016 Order did not delay rendition of the September 30, 2016 Order or toll the time for filing a notice of appeal of the order. New Day Miami, 225 So.3d at 375. Jockey Club's January 6, 2017 notice of appeal was therefore untimely and did not fix jurisdiction in this Court to review the September 30, 2016 Order. Id. at 376 ; Medley Plaza, Inc. v. The Rama Fund, LLC, 196 So.3d 512 (Fla. 3d DCA 2016).

B. The Rehearing Order

1. Separate review of a rehearing order generally prohibited

We now address whether we have jurisdiction to review the Rehearing Order separately from the September 30, 2016 Order. Florida Rule of Appellate Procedure 9.130(a)(4) generally precludes appellate review of an order denying a rehearing motion separately from the final order from which rehearing is sought. This rule's express prohibition against separate reviewability, though, appears to apply only when the rehearing motion suspends rendition of the final order pursuant to rule 9.020(i). Because Jockey Club's motion for rehearing of the September 30, 2016 Order did not suspend rendition of the September 30, 2016 Order, rule 9.130(a)(4)'s separate review prohibition may be inapplicable in this case to prevent separate review of the Rehearing Order.

In any event, this Court has applied rule 9.130(a)(4)'s prohibition of an independent review of an order on a rehearing motion even when, as here, the rehearing motion did not toll the rendition of the rule 1.540(b) order. Ricardo v. Wells Fargo Bank Nat'l Ass'n, 166 So.3d 967 (Fla. 3d DCA 2015) (dismissing, for lack of jurisdiction, appeal of trial court's order that denied rehearing of an order denying appellant's rule 1.540(b) motion). Therefore, this Court's jurisprudence, informed by rule 9.130(a)(4) and Ricardo, generally prohibits our review of an order denying rehearing of a rule 1.540 order separately from the underlying rule 1.540 order.

2. The New Day Miami exception to separate review prohibition

Notwithstanding the dictates of rule 9.130(a)(4) and our holding in Ricardo, this Court recently allowed for separate appellate review of an order denying an authorized and timely motion seeking rehearing of a rule 1.540 order, despite the appellant being time-barred from seeking review of the underlying rule 1.540 order. New Day Miami, 225 So.3d at 376-77. The unique set of circumstances present in New Day Miami, though, are not present in this case.

In New Day Miami, we determined that the trial court's rule 1.540 order vacating the judgment was the first adjudication of the case as to New Day Miami, LLC ("NDM"), inasmuch as NDM was not a party to the case when the foreclosure judgment was entered. We therefore held that, consistent with Clearwater Federal Savings & Loan Ass'n v. Sampson, 336 So.2d 78 (Fla. 1976), NDM's rehearing motion directed toward the rule 1.540 order was "authorized," and the order denying same was separately reviewable from the underlying rule 1.540 order, because, vis-à -vis NDM, the issue adjudicated in that post-decretal order had not been adjudicated previously by the trial court.

Id. at 376 n.8. Indeed, NDM was a stranger to the case at the time the foreclosure judgment was entered.

In the instant case, Jockey Club was a party to the proceedings resulting in both the October 29, 2015 amended summary judgment order and the September 16, 2016 Order, and the issue adjudicated in both of these orders was virtually identical. From the amended summary judgment order of October 29, 2015, which invalidated the tax deed sale; to the September 30, 2016 Order that reversed course and validated the tax deed sale (determining BVK as the owner of the Parcel); to the Rehearing Order that upheld the September 30, 2016 Order, neither the parties nor the predominant issue varied. Therefore, Jockey Club is not at all similarly situated to NDM. Hence, the due process concerns articulated in Sampson and implicated in New Day Miami-warranting appellate review of a rehearing order separate from the underlying rule 1.540 order-are simply not present in this case, and we decline to expand our holding in New Day Miami beyond the unique factual situation present in that case. We therefore lack jurisdiction to review the Rehearing Order separately from the September 30, 2016 Order. Ricardo, 166 So.3d at 967.

III. Conclusion

We dismiss Jockey Club's appeal because we do not have jurisdiction to review either the September 30, 2016 Order or the Rehearing Order.

Dismissed.

      The Jockey Club is a thirty-acre property located in Miami, Florida. It contains three condominium buildings, each operated by a separate condominium association, along with a marina, parking areas, and recreational facilities. The appellant in this case is the first (Phase I) of the three condominium associations.

      The County Clerk, a party defendant in BVK's lawsuit, filed this motion jointly with and on behalf of the Property Appraiser and the Tax Collector.

      While the record before us indicates that both the County Clerk and BVK filed-and noticed for hearing-motions to vacate the October 29, 2015 amended summary judgment, the trial court's September 30, 2016 Order appears to have adjudicated only the County Clerk's rule 1.540 motion.

      Jockey Club's rehearing motion does not cite a rule pursuant to which the motion was filed.

      See Fla. R. Civ. P. 9.130(a)(3)(C)(ii).

      BVK's motion to dismiss suggests that this Court lacks jurisdiction to review the Rehearing Order because, below, Jockey Club is claiming an easement interest in the Parcel that is inconsistent with Jockey Club's assertion that the Rehearing Order determined immediate possession to property. Because our dismissal of this appeal is based upon other, more fundamental grounds, we need not, and therefore do not, reach the jurisdictional issue raised in BVK's motion to dismiss.

      Rule 9.130(a)(5) provides: "Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders will not toll the time for filing a notice of appeal. " (Emphasis added.)

      In relevant part, rule 9.130(a)(4) provides: "Orders disposing of motions that suspend rendition are not reviewable separately from a review of a final order ...." (Emphasis added.)

      See section II. A., supra.

      We recognize that there is little clarity for practitioners and trial courts regarding the circumstances in which a rule 1.530 rehearing motion directed toward a rule 1.540 order is authorized. Relatedly, the jurisprudence governing district courts' jurisdiction to review orders on such rehearing motions is similarly murky. By way of example, while rule 9.130(a)(5) states that rehearing motions directed to orders on rule 1.540 motions "will not toll the time for filing a notice of appeal," the 2008 comments to that same rule state, "... that motions for rehearing directed to these particular types of orders are unauthorized and will not toll the time for filing a notice of appeal." Fla. R. App. P. 9.130(a)(5) committee notes (2008) (emphasis supplied). Plainly, the rule does not prohibit such motions, notwithstanding the comment's characterization of such motions as "unauthorized." Similarly, as we recognize in both this opinion and in New Day Miami, Rule 9.130(a)(4)'s express prohibition of appellate review of a rehearing order, separate from the underlying order for which rehearing is sought, seems applicable to only those rehearing "motions that suspend rendition." Presumably then, it could be argued that rule 9.130(a)(4) would not prevent a district court from reviewing a rehearing order directed toward a 1.540 order separately from the underlying rule 1.540 order, because rule 9.130(a)(4) applies only to "motions that suspend rendition;" and the rehearing motion directed toward the rule 1.540 order does not "suspend rendition" per rule 9.130(a)(5). While we have tried in both New Day Miami and in this opinion to navigate the waters roughened by these appellate rules, we are mindful that piecemeal adjudication of these issues often creates less, rather than more, clarity. Thus it is preferable to have the Appellate Rules Committee of the Florida Bar review these issues holistically. Accordingly, we refer these issues to the Florida Bar's Appellate Rules Committee for consideration.


author: LOGUE, J.

text:
    The STATE of Florida, DEPARTMENT OF REVENUE, etc., Appellant, v. Farouto AUGUSTIN, Appellee.
    No. 3D16-622
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General (Tallahassee), for appellant.
    Farouto Augustin, in proper person.
    Before ROTHENBERG, C.J., and SUAREZ and LOGUE, JJ.
   LOGUE, J.

The Florida Department of Revenue appeals a trial court order granting Farouto Augustin's petition to disestablish paternity and terminate child support obligation as to the minor child. Because the trial court failed to make the requisite findings under section 742.18(2), Florida Statutes (2015), we reverse.

In 2013, the trial court determined Augustin's paternity to the child, Farouto Augustin, Jr., (born 11/15/2006) as a matter of law under section 742.10, Florida Statutes. In August 2015, Augustin filed a petition to disestablish paternity under section 742.18. The petition alleged that a 2009 DNA test was newly discovered evidence relating to the paternity of the child. It further alleged that "there is a 99.1% probability of paternity, indicating that the petitioner cannot be the father of the child for whom support is required." A copy of the results were not attached to the petition and the trial court never received the results in evidence.

Following a hearing, the trial court granted Augustin's petition to disestablish paternity. In its written order the trial court found that Augustin "testified that he had been aware that [the child] ... was not his child since 2009. [Augustin] testified that the Obligee agrees that he is not the father. [Augustin] testified that [the child] lives with his real mother and father." This appeal followed.

Section 742.18, Florida Statutes"establishes circumstances under which a male may disestablish paternity or terminate a child support obligation" when he receives "newly discovered evidence" demonstrating that he is not the biological father of the child. § 742.18(1). To grant relief under section 742.18(2), a trial court must find that seven factors enumerated in the statute are met. § 742.18(2)(a)-(g). Among these factors, a trial court must determine that "newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination," and that a scientific test to show a probability of paternity "was properly conducted." § 742.18(2)(a)-(b).

Here the trial court failed to make the requisite findings on these points and the record indicates these factors were not established. Thus, Augustin did not meet his statutory burden of proving the factors set forth in section 742.18(2)(a)-(g). Accordingly, we reverse.


author: PER CURIAM.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2006-NC5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NC5, Appellant, v. SFL PROPERTY HOLDING LLC, et al., Appellees.
    No. 3D16-55
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    McGlinchey Stafford, and N. Mark New II, Karin L. Posser, and William L. Grimsley (Jacksonville), for appellant.
    Wesoloski Carlson, P.A. and Erik D. Wesoloski, for appellee, SFL Property Holding, LLC.
    Before SUAREZ, LAGOA, and SALTER, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Deutsche Bank National Trust Company ("Deutsche Bank"), the plaintiff below, appeals the trial court's order granting final summary judgment in favor of the defendant below, SFL Property Holding LLC ("SFL Property"), and dismissing the instant mortgage foreclosure action. The trial court found that the action was barred by the statute of limitations.

Based upon the record before us and the defendant's confession of error, we reverse the trial court's order granting the motion for summary judgment and remand to the trial court for reinstatement of the complaint. See Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016) ; Deutsche Bank Tr. Co. Ams. v. Beauvais ("Beauvais II"), 188 So.3d 938 (Fla. 3d DCA 2016) (en banc); see also, e.g., Bollettieri Resort Villas Condo. Ass'n v. Bank of N.Y. Mellon, 228 So.3d 72 (Fla. 2017) ; Wells Fargo Bank, NA v. BH-NV Invs. 1, LLC, 230 So.3d 60 (Fla. 3d DCA 2017) ; Wells Fargo Bank, N.A. v. Spence, 213 So.3d 1142 (Fla. 3d DCA 2017) ; Arnoux v. Bank of N.Y., 193 So.3d 82 (Fla. 3d DCA 2016).

Reversed and remanded for reinstatement of the complaint.

      We note that the trial court did not have the benefit of Bartram or this Court's en banc opinion, Beauvais II, when it entered final judgment in favor of SFL Property.


text:
    Garris PERRY, Appellant, v. SURGERY CENTER OF AVENTURA, etc., et al., Appellees.
    No. 3D17-301
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    William C. Robinson, for appellant.
    Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A. and Scott L. Mendlestein and Richard A. Warren, for appellee Surgery Center of Aventura; Milton, Leach, Whitman, D'Andrea & Eslinger, P.A. and Eric L. Leach and C. Ryan Eslinger (Jacksonville), for appellee Florida East Coast Railway, LLC.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Univ. of Miami v. Francois, 76 So.3d 360 (Fla. 3d DCA 2011).


author: FERNANDEZ, J.

text:
    Herby LUMA a/k/a Ronet Bastien, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1344
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    Herby Luma a/k/a Ronet Bastien, in proper person.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Herby Luma, a/k/a Ronet Bastien, appeals the trial court's rejection of his motion to correct illegal sentence mailed to the clerk of the Eleventh Judicial Circuit on May 25, 2017. We treat this appeal as a petition for a writ of mandamus. The record in this case, at page 70, reflects a memorandum written by a deputy clerk of the Eleventh Judicial Circuit explaining as follows:

The Record on Appeal will be prepared without the Motion to Correct Sentence mailed to this office on May 25, 2017. A diligent search of the court file was conducted and it could not be located because it was returned to the defendant pursuant to the Order Prohibiting dated September 13, 2016.

Although an order to show cause why the appellant should not be precluded from further pro se filings was entered by the trial court, no order actually precluding pro se filings was ever entered. The September 13, 2016 order simply refers to a non-existent order that purportedly prohibited further pro se filings. Thus, it appears that the clerk of the Eleventh Judicial Circuit erroneously rejected the appellant's motion.

On remand, the trial court shall consider and rule upon the appellant's motion, should he wish to re-transmit it to the trial court. We express no view as to the merits of the motion. The trial court is not precluded from again entering an order to show cause, if appropriate, and acting upon it based on the appellant's response, or lack thereof, by either entering an order prohibiting appellant from filing any additional pleadings in the trial court unless signed by a member of the Florida Bar in good standing, or by discharging the show cause order. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

Petition granted.


text:
    BANCO DE LOS TRABAJADORES, Appellant, v. Ricardo Rene CORTEZ MORENO, Appellee.
    No. 3D17-730
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018.
    Dorta & Ortega, P.A., and Omar Ortega, Rey Dorta and Rosdaisy Rodriguez ; Williams & Connolly LLP, and Peter J. Kahn, Jonathan M. Landy and Matthew H. Jasilli (Washington, D.C.), for appellant.
    Brill & Rinaldi, The Law Firm, and David W. Brill, Joseph J. Rinaldi and Michelle Y. Medina-Fonseca (Weston); The McKee Law Group, LLC, and Robert J. McKee (Davie); Joel S. Perwin, P.A., and Joel S. Perwin, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

I. Introduction

Appellant Banco de los Trabajadores ("Bantrab"), the defendant below, was sued by Appellee Ricardo Rene Cortez Moreno ("Cortez"). In this non-final appeal, Bantrab seeks review of the trial court's order denying its motion to dismiss two counts of Cortez's complaint for lack of personal jurisdiction. For the reasons that follow, we reverse the trial court's order denying Bantrab's motion to dismiss.

In November of 2015, Cortez filed a complaint against Bantrab, a Guatemalan bank, and against seven individual directors of Bantrab (the "Directors"). Cortez later filed an amended (and second amended) complaint that alleged the following twenty claims:

Counts I-VII: Assault and Battery (against the Directors);
Count VIII: Assault and Battery (against Bantrab);
Counts IX-XV: Florida RICO (against the Directors);
Count XVI: Florida RICO (against Bantrab);
Count XVII: Breach of Contract (against Bantrab);
Counts XVIII-XX: Tortious Interference with Contract (against three of the Directors)

(The counts relevant to this appeal are in bold. )

This appeal addresses only the portion of the trial court's March 14, 2017 order that found personal jurisdiction as to Bantrab, and only as to Counts VIII (assault and battery) and XVI (Florida RICO violations).

II. Background Facts

The second amended complaint contains the following allegations:

Bantrab is a Guatemalan corporation, with its principal place of business in Guatemala. Cortez was a citizen of Guatemala but has been a resident of Miami-Dade County since 2008, and is now a United States citizen.

In 2008, Bantrab entered into a written professional services agreement with Cortez, under which Cortez would assist in promoting and increasing Bantrab's business and business presence in Florida and the United States. Both parties further agreed to submit any type of dispute relating to the contract to the jurisdiction of the courts of Miami-Dade County.

The complaint alleges that Bantrab launched a "Bancarization project" that sought the business of Guatemalan residents who worked and lived in Florida and who sent money to their families in Guatemala. To help create and operate this business, Bantrab entered into a contract with Cortez's company, Union Expresso. To promote the Bancarization project, Bantrab sent officers and staff to Florida, set up small banking facilities ("mini-consulates") in Florida, advertised in Florida, contracted with money transfer companies based in Florida, and worked with several associate banks in Florida. Cortez acknowledged in his complaint that Bantrab's formal banking activities take place in Guatemala.

At some point, the President of the Republic of Guatemala became aware that Bantrab was allegedly involved in money laundering. He contacted Cortez and asked Cortez to investigate Bantrab's suspected money-laundering activities in Florida and elsewhere in the United States. From this point onward, as he acted upon the President's request, Cortez allegedly became a target of Bantrab and the Directors. Cortez alleges he discovered evidence that Bantrab and the Directors were participating in a large-scale conspiracy. Relevant to the jurisdictional issue presented, Cortez alleges he discovered that Bantrab and the Directors were aiding and abetting drug traffickers by laundering the proceeds of narcotics trafficking and transferring these proceeds to Florida through Bantrab. Further, Cortez alleges that the Directors were traveling to Florida to meet with members and representatives of drug cartels in furtherance of this unlawful activity.

When the Directors learned of Cortez's investigation, the Directors threatened Cortez that if he did not stop his investigation, leave Florida and come to Guatemala, they would ruin his substantial business in Guatemala. The Directors went to Florida to meet with Cortez in a further attempt to convince Cortez to halt his investigation and to bury his findings. When Cortez refused, Bantrab canceled its contract with Cortez's company, Union Expresso.

At that point, Cortez decided to travel to Guatemala in an attempt to reach some acceptable resolution with Bantrab. On August 20, 2009, Cortez met with the Directors but no real progress was made at that meeting. Two days later, while still in Guatemala and on his way to the airport to return to Florida, the vehicle Cortez was riding in was fired upon forty-two times, and Cortez was struck by two of the bullets. One bullet traveled through Cortez's right arm and into his chest and torso. The second bullet entered his lower back. Cortez alleges that the Directors, as agents or employees of Bantrab, hired a hitman to carry out this attack on Cortez because of Cortez's investigation into Bantrab's (and the Directors') conspiracy and money-laundering activities allegedly occurring in Florida. This attempted murder formed the basis for Cortez's assault and battery claims.

III. Procedural Background

In addition to pleading these case-specific facts, Cortez's second amended complaint also tracked the statutory language of the relevant portions of Florida's long-arm jurisdiction statute ( section 48.193 of the Florida Statutes (2015) ). Cortez alleged that Bantrab was subject to the jurisdiction of the courts of Florida for causes of action arising from Bantrab's alleged: (i) operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state; (ii) committing a tortious act within this state; or (iii) engaging in substantial and not isolated activity within this state.

After the second amended complaint was filed, Bantrab filed a motion to dismiss, contending that, even accepting all of the complaint's allegations as true, those allegations, as a matter of law, fail to establish personal jurisdiction over Bantrab for the assault and battery claim and the Florida RICO claim. Bantrab opposed all jurisdictional discovery and the trial court permitted no discovery on this issue. The trial court held a non-evidentiary hearing on Bantrab's motion and, on March 14, 2017, entered the order on appeal that denied Bantrab's motion to dismiss, concluding that the allegations of Cortez's second amended complaint established both general and specific personal jurisdiction over Bantrab. The trial court's order, though, did dismiss, without prejudice, Cortez's Florida RICO claim against Bantrab (Count XVI), requiring Cortez to file a more definite statement. Bantrab timely appealed the jurisdictional determinations in the trial court's March 14, 2017 non-final order. We have jurisdiction. See rule 9.130(a)(3)(C)(i).

IV. Analysis

On appeal, Bantrab contends that Cortez failed to allege sufficient jurisdictional facts to establish either general or specific jurisdiction over Bantrab, a non-resident defendant, as to the assault and battery and Florida RICO counts. Bantrab also contends that the trial court applied the incorrect standard in making its determination as to general jurisdiction.

In Florida, the appropriateness of exercising personal jurisdiction over a nonresident defendant involves a two-part inquiry. The court must:

first determine whether sufficient jurisdictional facts exist to bring the action within the ambit of Florida's long-arm statute ( section 48.193 ), and then [it must] determine whether the foreign corporation possesses sufficient "minimum contacts" with Florida to satisfy federal constitutional due process requirements.

Reynolds Am., Inc. v. Gero, 56 So.3d 117, 119 (Fla. 3d DCA 2011) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) ). Florida courts undertake the Venetian Salami inquiry by first determining whether the complaint's allegations are sufficient to bring the action within the ambit of Florida's long-arm statute. If the allegations are sufficient, the burden then shifts to the defendant to contest, via affidavit or other sworn proof, the jurisdictional allegations or whether sufficient minimum contacts exist; if properly contested, the burden then returns to the plaintiff to refute the defendant's evidence with similar sworn proof. Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787, 789 (Fla. 3d DCA 1998) (citations omitted).

First, we provide an overview of "general" and "specific" jurisdiction provided for in Florida's long-arm statute; then, we discuss whether Cortez's general jurisdictional allegations are sufficient under the statute as informed by recent United States Supreme Court precedent; and finally, we evaluate whether Cortez's specific jurisdictional allegations are sufficient under the statute.

A. "General" and "Specific" Jurisdiction under Florida's Long-Arm Statute

Cortez bears the initial burden of alleging sufficient allegations to bring the action within the ambit of Florida's long-arm statute, section 48.193 of the Florida Statutes. Id. at 789 ; see also Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854, 856 (Fla. 3d DCA 2007). Long-arm jurisdiction under section 48.193 may be established in one of two ways: "general" jurisdiction or "specific" jurisdiction. Rautenberg v. Falz, 193 So.3d 924, 928 (Fla. 2d DCA 2016). A Florida court has "general" jurisdiction over a nonresident defendant when the defendant has "engaged in substantial and not isolated activity within this state." See § 48.193(2), Fla. Stat. (2015). If a defendant is subject to the court's "general" jurisdiction, it is unnecessary to establish "whether or not the claim arises from that activity." Id. Conversely, "specific" jurisdiction is claim-specific. A Florida court may exercise "specific" jurisdiction over a nonresident defendant in those cases in which it is alleged that the nonresident defendant commits any of the specific acts enumerated in the statute in Florida, so long as the cause of action arises from that enumerated act committed in Florida. See § 48.193(1)(a) 1.-9. (Fla. Stat. (2015).

B. General Jurisdiction

In the instant case, not only did Cortez's second amended complaint track the statutory language of the general jurisdiction provisions of Florida's long-arm statute-alleging that Bantrab "engaged in substantial and not isolated activity within this state" § 48.193(2), Fla. Stat. (2015)-Cortez also included detailed allegations that Bantrab engaged in substantial and not isolated activity within this state, including the allegations that Bantrab:

• Launched a "Bancarization project" that sought the business of Guatemalan residents who worked and lived in Florida and who sent money to their families in Guatemala.
• Sent officers and staff to Florida, set up small banking facilities ("mini-consulates") in Florida;
• Advertised in Florida, contracted with money transfer companies based in Florida, and worked with several associate banks in Florida; and • Participated in a large-scale conspiracy to aid and abet drug traffickers by laundering the proceeds of this narcotics trafficking through Bantrab and through Florida financial institutions and by traveling to Florida to meet with members and representatives of drug cartels.

The trial court concluded that the allegations of the second amended complaint, which Bantrab's affidavit failed to refute specifically, were sufficient to establish general jurisdiction over Bantrab. The trial court found that Cortez sufficiently alleged that Bantrab engaged in "substantial and not isolated activity within this state," see section 48.193(2), which has been construed to mean a showing of "continuous and systematic general business contact" with the state. Vos, B.V. v. Payen, 15 So.3d 734, 736 (Fla. 3d DCA 2009) ; Gadea v. Star Cruises, Ltd., 949 So.2d 1143, 1145 (Fla. 3d DCA 2007) (quoting Carib-USA Ship Lines Bahamas, Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ); Bafitis v. Ara, 815 So.2d 702, 703 (Fla. 3d DCA 2002). We have held that the requirement of continuous and systematic general business contacts "must be 'extensive and pervasive, in that a significant portion of the defendant's business operations or revenue [are] derived from established commercial relationships in the state.' " Taylor v. Gutierrez, 129 So.3d 415, 419 (Fla. 3d DCA 2013) (quoting Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 259 (Fla. 4th DCA 2011) ) (additional citations omitted).

The constitutional due process standard, however, for determining general jurisdiction changed significantly with the United States Supreme Court's decisions in Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011).

In Daimler, the Court held that "approv[ing] the exercise of general jurisdiction in every State in which a corporation 'engages in a substantial, continuous, and systematic course of business' ... [represents a] formulation [that is] unacceptably grasping." 134 S.Ct. at 760-61. Instead, Daimler reaffirmed the principle announced earlier in Goodyear:

[T]he inquiry under Goodyear is not whether a foreign corporation's in-forum contacts can be said to be in some sense "continuous and systematic," it is whether that corporation's "affiliations with the State are so 'continuous and systematic' as to render [it] essentially at home in the forum State."

Id. at 761 (quoting Goodyear, 564 U.S. at 919, 131 S.Ct. 2846 ).

We conclude that the trial court applied the incorrect constitutional due process standard in determining whether it could exercise general jurisdiction over Bantrab on the counts for assault and battery and Florida RICO. Although our standard of review is de novo, and while we might have the discretion to make such a determination in the first instance, we conclude it is more appropriate, on this record and under these circumstances, for the trial court to make this determination in the first instance. We therefore reverse that portion of the trial court's March 14, 2017 order and, to the extent it may be necessary, remand so the trial court can apply Daimler and Goodyear in its determination of whether Cortez's operative complaint sufficiently alleges the court's general jurisdiction over Bantrab to adjudicate Cortez's assault and battery and Florida RICO claims.

C. Specific Jurisdiction

In addition to finding Cortez had adequately alleged a basis for the trial court to assert general jurisdiction over Cortez's claims under section 48.193(2), in its March 14, 2017 order, the trial court also determined that Cortez's second amended complaint provided a sufficient basis for the trial court to assert specific jurisdiction under section 48.193(1)(a) of Florida's long arm statute.

Cortez asserts that the court may exercise specific jurisdiction over Bantrab because his complaint tracks the language of sections 48.193(1)(a)(1) and (2), i.e., those provisions of Florida's long-arm statute authorizing the court to exercise specific jurisdiction over a nonresident defendant that operates a business venture in this state or commits a tort in this state. In relevant part this statute provides: "A person ... who ... does any of the acts enumerated in this subsection thereby submits himself ... to the jurisdiction of the courts of this state for any cause of action arising from ... 1. Operating, conducting, engaging in, or carrying on a business or business venture in this state .... 2. Committing a tortious act within this state ...." § 48.193(1)(a) 1.-2., Fla. Stat. (2015) (emphasis added).

Specifically, Cortez alleges that Bantrab committed a tort in Florida (the conspiracy to murder Cortez to prevent him from continuing his investigation into Bantrab's illegal activities in Florida) and that Bantrab was operating a "business" or "business venture" in Florida (the illegal money-laundering operation). Cortez contends that the assault and battery (the attempted murder in Guatemala) and the Florida RICO claims arose from tortious acts committed in Florida and from Bantrab's allegedly illegal business operations in Florida.

While sufficient allegations of general jurisdiction do not require any showing that the cause of action arises from the defendant's activity in the state (see section 48.193(2) ), those provisions of Florida's long-arm statute governing specific jurisdiction expressly require allegations both : (i) that the defendant does one of the enumerated acts within Florida, and (ii) that the plaintiff's cause of action "arise from" one of the enumerated acts occurring in Florida. See § 48.193(1)(a), Fla. Stat. (2015). These dual requirements-that the defendant's conduct occur in Florida and that the plaintiff's cause of action arises from such Florida activity-are known as the statute's connexity requirement. See, e.g., Wendt, 822 So.2d at 1260 ; see generally White v. Pepsico, Inc., 568 So.2d 886 (Fla. 1990) ; Wiggins v. Tigrent, 147 So.3d 76, 87 (Fla. 2d DCA 2014) ; Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1127 (Fla. 1st DCA 1994).

1. Assault and Battery (Count VIII)

a. Committing a tortious act within Florida- section 48.193(1)(a)(3)

Bantrab contends that, because the assault and battery (the attempted murder) was committed in Guatemala and not in Florida, and did not cause injury to Cortez in Florida, there can be no specific jurisdiction for this claim, as the cause of action is not one "arising from" a tortious act committed within the state.

Cortez acknowledges that no element of the assault and battery intentional tort occurred in Florida, but counters that the assault and battery is not the "tortious act" conferring specific jurisdiction under the long-arm statute. Rather, Cortez argues that the tortious act establishing specific jurisdiction is the conspiracy that Bantrab and its Directors undertook in the State of Florida.

The significant problem, however, with Cortez's argument is that Florida does not recognize civil conspiracy as a freestanding tort. SFM Holdings Ltd. v. Banc of Am. Secs., LLC, 764 F.3d 1327, 1338-39 (11th Cir. 2014) (applying Florida law). The gist of a civil conspiracy is not the conspiracy itself, but the underlying civil wrong occurring pursuant to the conspiracy and which results in the plaintiff's damages. Marriott Int'l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So.3d 902, 909 (Fla. 3d DCA 2015). The conspiracy does not give rise to an independent cause of action, but is a device to allow a plaintiff to spread liability to those involved in causing the underlying tort. Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 80 (Fla. 3d DCA 2013) (observing: "Conspiracy is not a separate or independent tort but is a vehicle for imputing the tortious acts of one coconspirator to another to establish joint and several liability.") (quoting Ford v. Rowland, 562 So.2d 731, 735 n.2 (Fla. 5th DCA 1990) ). The conspiracy, therefore, is inextricably linked with the underlying tort. Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 950-51 (Fla. 3d DCA 1984).

Just as the alleged conspiracy-alone and in isolation-is not actionable independently from the underlying tort, we similarly conclude that the conspiracy alleged by Cortez, standing alone, does not provide a sufficient basis to confer specific jurisdiction under section 48.193(1)(a)(2) to adjudicate the assault and battery. This is especially true here when not a single element of the underlying assault and battery is alleged to have occurred in Florida.

We cannot read section 48.193(1)(a)'s dual requirements-both that a defendant does an enumerated act in Florida and that the cause of action arises from an enumerated act in Florida-as authorizing the exercise of specific jurisdiction when the only tort relied upon to confer such jurisdiction is a civil conspiracy to commit a tort, and no element of the underlying tort is alleged to have occurred in Florida. Cortez has not provided us with, and we have not been able to locate, any authority for the proposition that Florida's long-arm statute confers such specific jurisdiction upon a Florida court. We decline Cortez's invitation to be the first Florida court to determine that the connexity requirement is met under such circumstances. We therefore conclude that Cortez's allegations are insufficient to confer specific jurisdiction under section 48.192(1)(a)(2) to adjudicate Cortez's assault and battery claim against Bantrab.

b. Operating a business venture in Florida-section 48.192(1)(a)(1)

Cortez also argues that the trial court has specific jurisdiction to adjudicate Cortez's assault and battery claim against Bantrab under section 48.193(1)(a)(1), because Cortez has alleged that Bantrab is conducting business in Florida, and the attack on Cortez arose out of such activities. Our reading of this Court's connexity requirement jurisprudence, however, obviates the need for us to evaluate whether Cortez's allegations regarding Bantrab's business activities are sufficient to confer jurisdiction to adjudicate Cortez's tort claim. Because we have determined that Cortez has not met the connexity requirement conferring jurisdiction to adjudicate Cortez's assault and battery tort, Bantrab's business activities are irrelevant. Small v. Chicola, 929 So.2d 1122, 1125 n.1 (Fla. 3d DCA 2006) ; Elmlund v. Mottershead, 750 So.2d 736, 737 n.2 (Fla. 3d DCA 2000).

Therefore, we reverse that portion of the trial court's order concluding that it had specific jurisdiction over Bantrab under Florida's long-arm statute to adjudicate Count VIII.

2. Florida RICO (Count XVI)

In Count XVI, Cortez alleged that Bantrab's conduct is actionable under Florida's RICO statute. While not entirely clear, it seems that, notwithstanding the trial court's dismissal of this claim without prejudice requiring Cortez to file a more definite statement, the trial court's March 14, 2017 order nonetheless determined that Cortez's allegations were sufficient to confer specific jurisdiction under section 48.193(1)(a) for the trial court to adjudicate this claim.

Because the trial court had dismissed the claim, it was premature for the trial court to reach the jurisdictional issue. Until it had first been determined that Cortez could state a cause of action for Florida RICO against Bantrab, the trial court was unable to determine the question of specific jurisdiction. As the Florida Supreme Court observed in Wendt:

The threshold question that must be determined is whether the allegations of the complaint state a cause of action. Cf. 8100 R.R. Ave. Realty Trust v. R.W. Tansill Constr. Co., 638 So.2d 149, 151 (Fla. 4th DCA 1994) (where the threshold question of personal jurisdiction turns on whether a tort is committed in Florida, the court necessarily must review the allegations of the complaint to determine if a cause of action is stated); Silver [v. Levinson], 648 So.2d [240] at 241 [ (Fla. 4th DCA 1994) ] (same).

Wendt, 822 So.2d at 1260.

Indeed, as indicated above in footnote 4, the trial court, after apparently determining that it could exercise personal jurisdiction over Bantrab to adjudicate Cortez's Florida RICO claims, sometime later determined that Cortez could not state a Florida RICO cause of action against Bantrab, and dismissed that claim with prejudice. Hence, to the extent that the trial court's March 14, 2017 order purported to determine that the trial court had specific jurisdiction over Bantrab to adjudicate Cortez's Florida RICO claim, we reverse that part of the order as being premature.

V. Conclusion

We therefore: (i) reverse the trial court's order finding general jurisdiction over Bantrab for Count VIII alleging assault and battery and Count XVI alleging Florida RICO violations, and, to the extent it may be necessary, remand for further proceedings consistent with this opinion, including a determination as to whether the court can assert general personal jurisdiction over Bantrab applying the constitutional due process standard announced in Goodyear and Daimler; (ii) reverse the trial court's order finding specific jurisdiction over Bantrab for Count VIII; and (iii) reverse, as premature, that portion of the trial court's order purporting to find specific jurisdiction over Bantrab for Count XVI.

Reversed with instructions.

      The Directors were later dismissed on the basis of improper service, and therefore, only Bantrab has appealed the trial court's order.

      Bantrab did not appeal that portion of the trial court's order finding that Florida's long-arm statute conferred specific jurisdiction over Bantrab to adjudicate Cortez's claim for breach of contract (Count XVII).

      Although Bantrab filed an affidavit of Alba Virginia Marisol Garcia Escobar, the legal corporate manager and secretary of the board of directors of Bantrab, the trial court found that the averments of that affidavit failed to refute the specific jurisdictional allegations in the second amended complaint. On appeal, Bantrab does not contest this finding, but argues that even if the allegations of the second amended complaint are accepted as true, Cortez failed to establish either specific or general jurisdiction over Bantrab for the assault and battery and Florida RICO claims.

      During the pendency of an appeal of a non-final order, absent a stay, the trial court continues to exercise jurisdiction over a case except that a trial court may not render a final order disposing of the case while appellate review is pending. Rule 9.130(f). The docket in this case reflects that, on April 12, 2017, Cortez filed a third amended complaint, again alleging against Bantrab an assault and battery claim (in Count VII), a Florida RICO claim (in Count XIV), and a breach of contract claim (in Count XV). On June 20, 2017, the trial court granted, with prejudice, Bantrab's motion to dismiss all of Cortez's claims against Bantrab contained in Cortez's third amended complaint. The trial court determined that Cortez's claims are time-barred and, in the case of the Florida RICO claim, that Cortez failed to state a legally viable cause of action. Because rule 9.130(f) precluded the trial court from entering a final dismissal order consistent with its June 20 order granting Bantrab's motion to dismiss, Bantrab asked this Court to hold this appeal in abeyance, and allow the trial court to enter a final, appealable dismissal order. Cortez opposed Bantrab's relinquishment motion, and this Court denied Bantrab's motion. Generally, a determination that a plaintiff cannot state a cause of action against a defendant will render moot a personal jurisdictional determination. See Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002). We decline, however, to dismiss this appeal on mootness grounds. Any mootness of the jurisdictional determination might be only temporary. For example, the trial court might decide, for whatever reason, not to enter a final judgment for Bantrab; or, if the trial court does enter such a judgment for Bantrab, that judgment could be subject to rehearing or reversal on appeal. Importantly, we express no opinion on the viability of Cortez's claims Bantrab; but, because there remains the possibility that Cortez's claims against Bantrab may be reinstated, our review of the jurisdictional determinations in the trial court's March 14, 2017 order is not rendered moot.

      We review de novo the trial court's decision on a motion to dismiss for lack of personal jurisdiction of a defendant. Wendt v. Horowitz, 822 So.2d at 1256 ; Castillo v. Concepto Uno of Miami, Inc., 193 So.3d 57, 59 (Fla. 3d DCA 2016).

      Section 48.193(2) (general jurisdiction) provides in full:
      A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

      Section 48.193(1)(a) (specific jurisdiction) provides in full:
      A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
      1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
      2. Committing a tortious act within this state.
      3. Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.
      4. Contracting to insure a person, property, or risk located within this state at the time of contracting.
      5. With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.
      6. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
      a. The defendant was engaged in solicitation or service activities within this state; or
      b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
      7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
      8. With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.
      9. Entering into a contract that complies with s. 685.102.

      As this court observed in Tobacco Merchs. Ass'n of U.S. v. Broin, 657 So.2d 939, 941 n.4 (Fla. 3d DCA 1995) :
      The court in Venetian Salami did not create a default procedure whereby the mere filing of any affidavit by a defendant requires that a trial court rule in his favor. The defendant's affidavit must meet all requirements for legal sufficiency and must also refute all jurisdictional allegations in the plaintiff's complaint. But once this has been done, the burden shifts to the plaintiff to refute the legally sufficient affidavit.

      This is not a case involving an allegation of anti-competitive conduct where an independent conspiracy tort has been recognized. See, e.g., Buckner v. Lower Florida Keys Hosp. Dist., 403 So.2d 1025, 1029 (Fla. 3d DCA 1981).

      Because our holding in this regard is focused on Venetian Salami's first prong-i.e., whether sufficient jurisdictional facts exist to bring the action within Florida's long-arm statute-we need not, and therefore do not, reach the due process prong of theVenetian Salami test. We do note, though, that recent constitutional jurisprudence suggests that, to comply with the Fourteenth Amendment's due process requirement, a state court may exercise specific jurisdiction over a nonresident defendant only when the complained-of injury actually occurs in the forum state. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., --- U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017).


text:
    LBMP HOLDINGS, LLC, and AJK 21st Street, LLC, Appellants, v. BIARRITZ GH, LLC, and JHMB, LLC, Appellees.
    No. 3D16-2433
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018.
    The Alderman Law Firm and Jason R. Alderman, and Troy A. Tolentino ; Alonso Appeals and Cristina Alonso (Pembroke Pines); Broad and Cassel and Christina Lehm and Beverly A. Pohl (Fort Lauderdale) and Amy Steele Donner and Mark F. Raymond, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine, and Alan J. Kluger and Josh M. Rubens ; Samson Appellate Law and Daniel M. Samson, for appellees.
    Before SUAREZ, LAGOA and SALTER, JJ.
    On Concession of Error
   PER CURIAM.

Based on the appellees' proper and commendable concession of error, the circuit court order dismissing the appellants' counterclaim with prejudice is reversed. Dismissal was error because the appellants were not duly noticed or provided with an opportunity to be heard. This case is remanded for further proceedings, including consideration of any motion by appellants to amend the counterclaim, should the appellants so move.

Reversed and remanded for further proceedings.


author: LUCK, J.

text:
    Thomas Garrard BURTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1081
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General, for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   LUCK, J.

We grant the state's unopposed motions to recall mandate and for rehearing, withdraw our prior opinion dated December 13, 2017, and substitute the following in its place:

Thomas Garrard Burton murdered Carlos Figueroa during a botched robbery. A jury convicted Burton of first degree murder, and he was sentenced to a mandatory term of life in prison. Burton appeals the trial court's decision to admit a video recording of his confession where he was wearing jail clothes and handcuffs. Because the trial court did not abuse its discretion in finding that the unfair prejudice of the jury seeing Burton in jail clothes and handcuffs did not substantially outweigh the probative value of the video confession, we affirm.

Factual Background and Procedural History

The murder. On the morning of November 6, 2002, Carlos Figueroa was sitting outside his apartment with his son and another man, Antonio Carrero, drinking coffee, when a car pulled up. There were two people in the car-a driver and his passenger. The passenger got out of the car and asked the three men drinking coffee for directions. They gave the passenger directions and the car went on its way.

The car returned a few minutes later. This time, the passenger got out of the car holding a gun and yelled to the three men, "don't move." The passenger pointed the gun at Figueroa. Figueroa had trouble getting his wallet out of his pocket, so the passenger hit Figueroa on the head with the firearm three times. The passenger then pointed the gun at Figueroa's son when, suddenly, Carrero ran away. The passenger fired three shots at the fleeing Carrero, but they all missed.

The passenger then turned to Figueroa and shot him in the stomach. After this last shot, Figueroa's son struggled with the passenger for the gun. The passenger grabbed the son's wallet and cellular telephone, left the gun, and ran for the car, which drove away.

Figueroa died six weeks later from the gunshot wound to his stomach. For over a decade, the passenger was not identified and the case was cold.

The cold case investigation. In 2013, detectives with the Miami-Dade police department had the fingerprint examiner resubmit a latent fingerprint that had been found at the crime scene to the national database to see if there was a match. The latent fingerprint matched George Covington who was interviewed in connection with the cold case. Further investigation ultimately led to Burton as a suspect in the murder. The Miami-Dade detectives met with Figueroa's son to conduct a photograph lineup. The son identified Burton as the passenger.

By then, Burton was serving a prison sentence in Pennsylvania. The Miami-Dade detectives flew to Pennsylvania to meet with Burton. Burton was willing to talk, waived his Miranda rights, and gave a video recorded statement. Burton told the detectives that his friend, Covington, picked him up in a stolen car and the two drove to Figueroa's apartment. Covington got out of the car holding a gun and Burton followed. Burton explained that there was a physical altercation between Covington and the other men. Covington asked Figueroa for the wallet. Burton took the gun and hit Figueroa on the head. Burton then gave the gun back to Covington who shot Figueroa. They fled in the car.

The trial. Burton was indicted for first degree murder. Before his trial began, Burton moved to have the jury hear the audio of his statement without the video because on the video the jury could see that he was wearing "prison garb" and "a chain around his waist hooked up to ... his wrists." The trial court, after hearing argument from both sides and reviewing case law, denied the motion. The jury found Burton guilty after watching the video, hearing Figueroa's son identify Burton as the shooter, and learning that Burton's deoxyribonucleic acid (DNA) was on a baseball cap left at the scene of the shooting.

Standard of Review

"A trial court's ruling on the relevancy of evidence and whether or not the probative value is outweighed by the danger of unfair prejudice is governed by an abuse of discretion standard of review." Peede v. State, 955 So.2d 480, 499 (Fla. 2007). "[A] large measure of discretion rests in the trial judge to determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect." Taylor v. State, 855 So.2d 1, 22 (Fla. 2003)

Discussion

Burton contends the trial court abused its discretion in denying his motion to exclude the video statement because the unfair prejudice of the jury seeing him in his prison uniform and handcuffs substantially outweighed the probative value of watching (as opposed to listening to) him confess. The state responds that the jury's exposure to Burton in prison garb and handcuffs was brief, incidental, and out-of-court, and therefore not so prejudicial that it would require excluding the video confession.

"The prerequisite to the admissibility of evidence is relevancy. All evidence tending to prove or disprove a material fact is admissible, unless precluded by law." Wright v. State, 19 So.3d 277, 291 (Fla. 2009). "Despite the fact that all relevant evidence is admissible, section 90.403 provides for the exclusion of relevant evidence if 'its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.' " Taylor, 855 So.2d at 21-22 (quoting § 90.403, Fla. Stat.).

Only when that unfair prejudice substantially outweighs the probative value of the evidence is the evidence excluded.
....
... In weighing the probative value against the unfair prejudice, it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.

State v. McClain, 525 So.2d 420, 422 (Fla. 1988) (quoting 1 C. Ehrhardt, Florida Evidence § 403.1 at 100-03 (2d ed. 1984)).

Here, there was no dispute the video confession was relevant. Burton concedes "the statement made ... to the police was relevant." The issue in this case was whether the probative value of the video confession was substantially outweighed by its unfair prejudice to Burton. We agree with the trial court that it was not.

Probative value. The probative value of the video confession cannot be overstated. Burton admitted he was the passenger in the car, had the gun in his hand, and hit Figueroa. Figueroa's murder was fourteen years before the trial. Even with the son's identification and the mixture of DNA on the cap left at the scene, the non-confession evidence was not overwhelming. The son's identification could reasonably be questioned given the decade between the murder and the identification of Burton in the photograph lineup. The DNA evidence only showed that Burton left his cap at the scene at some point-it did not put a gun in his hand or prove he participated in the murder.

Even so, Burton argues there was little additional probative value to be gained from playing the video version of the confession rather than an audio version where the jury could still hear what Burton said to the detectives. Burton's argument minimizes the importance the criminal justice system places on the jury seeing evidence and testimony in assessing its credibility. If Burton was right that hearing rather than seeing testimony was all that was necessary for the jury to assess credibility, then the criminal trial need be no more than reading deposition testimony, or playing prerecorded audio statements, before the jury decides the defendant's guilt or innocence. But our adversarial system isn't a test of competing affidavits because a critical part of the jury's decision-making process is watching, as well as listening, for cues to decide which evidence and testimony is reliable and credible (and which is not).

Specifically, in this case, the jury was instructed that in determining whether evidence was reliable, it "should consider how the witness has acted, as well as what they said." For a confession, like Burton's statement, the jury was instructed to treat it with "caution" and "great care," and consider the "total circumstances," before determining whether it was made knowingly and voluntarily. Watching Burton's statement was essential to the jury determining whether the confession-including the part where Burton said Covington was the shooter and not him-was reliable. The jury also had to watch how Burton acted and the circumstances of his confession to determine whether his statement that he was involved in the murder was freely made.

Consider, for example, the statement of a hostage that he was being treated well by his captors. The audio of that statement might tell us one thing. But if the video showed the hostage with bruises and blood on him, and one of the kidnappers holding a gun to the hostage's head, that would tell us another thing. So it is here. Seeing Burton's confession, the critical piece of evidence in this case, allowed the jury to assess its reliability and voluntariness in a way the audio statement would not.

Unfair prejudice. The Florida Supreme Court has twice found no abuse of discretion where the trial court admitted video of a defendant confessing while in jail clothes and handcuffs. In Singleton v. State, 783 So.2d 970 (Fla. 2001), the trial court admitted a one-and-a-half minute video of the defendant answering a reporter's questions "wearing jail clothing and handcuffs while in custody on the night of his arrest." Id. at 976. The Court held it was not error to admit the video because the jury's "brief exposure to [the defendant] in a prison uniform while handcuffed d[id] not outweigh the probative value of [the defendant]'s admission in the video that he killed the victim." Id.

In Alston v. State, 723 So.2d 148 (Fla. 1998), the trial court admitted a video of the defendant answering reporters' questions during a perp walk from the police station to the jail. Id. at 152, 155-56. The defendant argued "the unfair prejudice to [him] substantially outweighed any probative value of the evidence." Id. at 156. The Florida Supreme Court concluded the trial court properly balanced the probative value and unfair prejudice, and found there was "no abuse of discretion in admitting the evidence." Id. at 157 ; see also Black v. State, 120 So.3d 654, 655 (Fla. 1st DCA 2013) ("[W]e are persuaded that the trial court's decision allowing the state to present to the jury both the audio and visual portions of appellant's brief, videotaped police interview, in which appellant could be seen wearing a jail uniform, handcuffs, and leg chains, was not an abuse of the trial court's discretion.").

If anything, on the unfair-prejudice scale Burton's confession video was less prejudicial than the ones in Singleton and Alston because there was less exposure to prison garb and handcuffs. While Burton's video statement was longer than the videos in Singleton and Alston, the clothes he was wearing do not look like prison clothes. The video showed Burton wearing a navy-colored shirt with dark pants while he was sitting at a conference table. Burton was not wearing black-and-white stripes or a bright orange jumpsuit that one would typically think of as prison garb. There were no markings on Burton's clothes or inmate numbers that would indicate he was in prison. What Burton was wearing on the video does not result in unfair prejudice any more than a defendant confessing while wearing a dark sweatshirt and pants is prejudiced by playing his video confession for the jury.

Also, like his nondescript clothes, Burton was interviewed in a generic-looking conference room. There were no indications from the room that Burton was in jail or prison at the time of the confession. This is different and less prejudicial than the video in Alston, where the defendant was seen being "walk[ed]-over from the police station to the jail." Alston, 723 So.2d at 155.

The video does show Burton in handcuffs but the Florida Supreme Court has said that a jury's brief view of the defendant in the courthouse with handcuffs or shackles is not so prejudicial as to require a new trial. See Hernandez v. State, 4 So.3d 642, 658 (Fla. 2009) ("We have long held that a juror's or prospective juror's brief, inadvertent view of a defendant in shackles is not so prejudicial as to warrant a mistrial. Thus, the mere fact that a prospective juror saw the shackled ankles of a person whom he believed to be Hernandez underneath a chalkboard set up in the hallway outside the courtroom is not sufficient, standing alone, to warrant a mistrial or dismissal of the venire." (citations omitted)); Cooper v. State, 739 So.2d 82, 85 n.8 (Fla. 1999) ("Cooper, however, was not tried in shackles, and the fact that jurors may have inadvertently seen him in shackles when he was being transported to or from the courtroom does not require reversal.").

Here, the jury's exposure to the handcuffs was brief. The trial was spread out over five days, and the video confession was only sixteen minutes of those five days. The jury's exposure to Burton in handcuffs also was one step removed from a defendant shackled in court during trial. The prejudice of seeing a defendant in prison garb and handcuffs in the courthouse during a trial is far more visceral and lasting than seeing Burton interviewed by law enforcement officers years earlier in a prerecorded video. Just as in Singleton and Alston, the brief, non-courtroom view of handcuffs on a video recording was not unfair prejudice that would substantially outweigh the probative value of Burton's confession.

Conclusion

The trial court did not abuse the large measure of discretion given to it in determining the unfair prejudice of the video did not substantially outweigh its probative value. We affirm Burton's conviction and life sentence for first degree murder.

Affirmed.

      We commend the state for moving to recall the mandate and rehear the case.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      "A 'perp walk' involves the practice of walking a suspect after an arrest through a public place to create an opportunity for the media to photograph or videotape the defendant in a highprofile case." Brown v. Pete, No. CIV.A. 12-11687-JLT, 2013 WL 141671, at *1 n.1 (D. Mass. Jan. 8, 2013)


text:
    Aissa GONZALEZ, Appellant, v. U.S. BANK TRUST NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D16-2036
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Thompson Legal, P.A. and Stephanie M. Taylor (Davie), for appellant.
    Phelan Hallinan Diamond & Jones, PLLC and John D. Cusick (Ft. Lauderdale); Rothman & Robin, P.A. and Michael Rothman and Ellen Patterson, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. Spikes v. OneWest Bank FSB, 106 So.3d 475 (Fla. 4th DCA 2012) ; Countrywide Home Loans, Inc. v. Kim, 898 So.2d 250 (Fla. 4th DCA 2005).