author: KHOUZAM, Judge.

text:
    DYCK O’NEAL, INC., Appellant, v. Kami WARD, Appellee.
    Case No. 2D15-2989
    District Court of Appeal of Florida, Second District.
    Opinion filed January 27, 2017.
    Rehearing Denied May 12, 2017
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, for Appellant.
    W. Justin Cottrell of Cottrell Law Group, LLC, Naples, for Appellee.
   KHOUZAM, Judge.

Dyck O’Neal, Inc. (DONI), timely appeals the final summary judgment entered in favor of Kami Ward in this action for a deficiency decree based on a final judgment of foreclosure. Because the trial court incorrectly determined that section 559.715, Florida Statutes (2013), creates a condition precedent to a deficiency action, we reverse.

In 2009, a final foreclosure judgment was entered against Ward. The property was sold at a foreclosure sale for $100— much less than either the amount due on the judgment or the value of the property. After the foreclosure sale, the judgment was assigned to DONI. DONI filed a complaint against Ward, seeking a deficiency decree based on the foreclosure judgment. Ward asserted as an affirmative defense that DONI had failed to comply with a condition precedent found in section 559.715, which provides as follows:

This part does not prohibit the assignment, by a ci-editor, of the right to bill and collect a consumer debt, However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

(Emphasis added.) She claimed that DONI had given her notice of the assignment only thirteen days before filing the deficiency complaint instead of waiting at least thirty days as required by section 559.715. The trial court agreed with Ward’s reasoning and granted final summary judgment in her favor.

Section 559.715 is part of the Florida Consumer Collection Practices Act, §§ 559.55-.785 (2013) (FCCPA), which is much like the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (2013) (FDCPA). See Read v. MFP, Inc., 85 So.3d 1151, 1153 (Fla. 2d DCA 2012) (explaining that both acts apply to the same types of conduct but are not identical). Because of this similarity, interpretations of the FDCPA are useful in interpreting the FCCPA. See § 559.77(5) (“In applying and construing [the FCCPA], due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.”).

On appeal, DONI argues that the court erred in granting summary judgment based on DONI’s failure to comply with section 559.715 because that section does not apply to deficiency actions. We agree. In interpreting a provision of the FDCPA, this court recently held that a “deficiency proceeding, rather than being an action on a consumer debt that has been reduced to judgment, is actually an action to enforce the result of a foreclosure proceeding and obtain a money judgment.” Aluia v. Dyck-O’Neal, Inc., 205 So.3d 768, 774, 41 Fla. L. Weekly D1660, D1661, 2016 WL 3766717 at *4 (Fla. 2d DCA July 15, 2016). We reasoned that:

A deficiency suit is not a “legal action on” the note; it is an action on the final judgment of foreclosure. The final judgment of foreclosure is not “an obligation ... of a consumer to pay money,” nor does it arise from a business dealing or consensual obligation. The final judgment of foreclosure is a judgment in rem or quasi in rem which arises from the foreclosure proceeding.

Id. (quoting the definition of “debt” found in 15 U.S.C. § 1692a(5)).

This analysis should apply equally to the FCCPA because the definition of “debt” under both acts is essentially the same. See 15 U.S.C. § 1692a(5) (“The term ’debt’ means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes-, whether or not such obligation has been reduced to judgment.”); § 559.55(6) (“ ’Debt’ or ’consumer debt’ means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”). It follows that a deficiency action is not an action to collect a consumer debt as contemplated by either act. Because a deficiency action is not an action to collect consumer debt, section 559.715’s requirement that notice must be given “at least 30 days before any action to collect the debt” does not apply. DONI was not required to give Ward notice pursuant to section 559.715 before filing a deficiency action.

Reversed and remanded for further proceedings.

LaROSE and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Linda WOLICKI-GABLES and Robert Gables, her husband, Appellants, v. DOCTORS SAME DAY SURGERY CENTER, LTD., d/b/a Doctors Same Day Surgery Center, Appellee.
    Case No. 2D15-2495
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2017.
    Rehearing Denied May 2, 2017

      See also 634 F.3d 1296.

      T. Patton Youngblood, Jr. of the Young-blood Law Firm, St. Petersburg, for Appellants.
    Joshua P. Welsh of Bush Ross, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Linda Wolicki-Gables and her husband, Robert Gables, appeal the trial court’s final summary judgment in favor of Doctors Same Day Surgery Center, Ltd. (the Surgery Center). The Gableses brought a third-party spoliation lawsuit against the Surgery Center. They asserted that if the Surgery Center had kept an allegedly defective pain-pump connector removed from Mrs. Wolicki-Gables, the Gableses could have maintained a civil action against Arrow International, Inc., on one of two grounds: (1) a first-party spoliation suit; or (2) a “parallel claim” for negligent design and/or manufacture under Florida law. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Because any potential state law claim for negligent design or manufacture against Arrow is preempted by federal law, and because the Gableses cannot assert a “parallel claim” against Arrow under Florida law, we are compelled to affirm.

Background

Mrs. Wolicki-Gables suffered from back and neck pain. To alleviate the condition, Dr. James of the Surgery Center implanted a “pain pump system” into Mrs. Wol-icki-Gables in the spring of 2002. The system consisted of: (1) an infusion pump to hold and release pain medication; (2) an intrathecal catheter that delivered the medication into Mrs. Wolicki-Gables’s spinal canal; and (3) a connector that linked these two components. Arrow manufactured all three components, which are Class III medical devices approved through the Premarket Approval Process (PMA) of the Food and Drug Administration (FDA). See Medical Device Amendments of 1976 (MDA) 5121 U.S.C. § 360e (2012); 21 C.F.R. §§ 814.1-.126.

Unfortunately, Mrs. Wolicki-Gables’s pain persisted. In response, Dr. James increased the dosage of the medication being dispensed from the pump in the summer of 2002. Mrs. Wolicki-Gables experienced no relief. About a year later, Dr. James performed a dye injection test to assess whether the pain pump system was operating properly. He concluded that the pain medication was not being directed through the intrathecal catheter into Mrs. Wolicki-Gables’s spine; rather, it leaked from the injection site and dripped down Mrs. Wol-icki-Gables’s sides. Dr. James scheduled Mrs. Wolicki-Gables for surgery and contacted an Arrow representative, Greg Nelson.

On July 15, 2003, Mrs. Wolicki-Gables arrived at the Surgery Center for the operation. She signed an Informed Consent to Treat and Disclose Information form. She handwrote on the form, “we want old pump.” She also noted on the form that she did not want technical support personnel, which would include Mr. Nelson, present during the surgery.

Dr. James proceeded with the surgery, during which Mr. Nelson was present. Dr. James removed the pain pump system and determined that the most likely cause of the malfunction was the connector between the pump and the intrathecal catheter. Dr. James replaced the connector and reinserted the pain pump system into Mrs. Wolicki-Gables’s body. Dr. James confirmed that the pain pump system was operating properly.

Following the surgery, Mr. Nelson approached Mr. Gables in the waiting room to explain that the connector had been replaced. Mr. Gables asked for the old connector. Mr. Nelson refused, stating that he had to take it to Arrow for testing. Mrs. Wolicki-Gables claims that she also made a similar request to Dr. James later that same day. He, too, stated that the connector had to go to Arrow.

When released from the Surgery Center, Mrs. Wolicki-Gables had no apparent complications. At a postoperative follow-up on July 17, 2003, she presented no signs of infection and the .pain pump system was working properly. Sadly, twelve days later, Mrs. Wolicki-Gables was rushed to the hospital where she was diagnosed with transverse myelitis—inflammation of the spinal cord. Several days later, the hospital released her. She returned three days later when her incision site became infected. The hospital again diagnosed Mrs. Wol-icki-Gables with transverse myelitis,, and added an infected pain pump to her diagnosis. Mrs. Wolick-Gables underwent another surgery where the pain pump system was permanently removed. During her convalescence from this third procedure, Mr. Gables contacted Mr. Nelson to obtain the old connector removed in the second surgery. Mr. Gables learned that Arrow tested the connector, found no defect, and destroyed it in accordance with company policy. The Gableses then sued Arrow in state court.

The Gableses asserted numerous claims against Arrow, including strict liability and negligence claims. Arrow removed the case to federal district court based on diversity jurisdiction. See 28 U.S.C. § 1332 (2011). Ultimately, the federal district court granted summary judgment to Arrow, concluding that their claims were expressly preempted by the Medical Devices Amendment (MDA) to the Federal Food, Drug, and Cosmetic Act (FDCA). Wolicki-Gables v. Arrow Int’l, Inc., 641 F.Supp.2d 1270, 1296 (M.D. Fla. 2009), aff'd, 634 F.3d 1296, 1303 (11th Cir. 2011). The federal district court also granted summary judgment in favor of Mr. Nelson on the Gableses’ claims of negligence and loss of consortium. Wolicki-Gables, 641 F.Supp.2d at 1292-96. The federal district court also concluded that they failed to demonstrate any causal relation between her injuries and the loss of the connector. Id. at 1295. Importantly, experts in the federal case were not impeded from offering meaningful testimony because the connector was unavailable. Id. at 1281..

Undeterred, and convinced that they would have prevailed against Arrow if they had the old connector, the Gableses sued the Surgery Center in state court, asserting a third-party spoliation claim. A third-party spoliation claim arises when “a person or an entity, though not a party to the underlying action causing the plaintiffs injuries or damages, lost, misplaced, or destroyed evidence critical to that action.” Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 345 n.2 (Fla. 2005). In such a case, the plaintiff attempts to recover from the .third party “the loss of a probable expectancy of recovery against the first-party torfeasor.” Id. (citing Humana Worker’s Comp. Servs. v. Home Emergency Servs., Inc., 842 So.2d 778, 781 (Fla. 2003)). The Gableses alleged that but for the Surgery Center allowing Mr. Nelson to take the old connector, they could have proceeded successfully against Arrow on (1) a first-party spoliation claim, or (2) a negligent design/manufacture theory. The trial court granted summary judgment to the Surgery Center. The trial court found that neither a first-party spoliation claim nor a permissible “parallel claim” against Arrow for negligent design/manufacture existed under Florida law. This appeal followed.

Discussion

The Gableses argue that the trial court erred in concluding that they could not assert a “parallel claim” against Arrow under Florida law for negligent manufacture based on a violation of MDA regulations related to Class III medical devices. We write to explain why the trial court committed no error on this point. As to the first-party spoliation claim, we affirm without further discussion. See Martino, 908 So.2d at 347.

a. Express and Implied Preemption Statutes

We begin our “parallel claim” analysis by noting that the MDA bars virtually all state-based claims for allegedly defective Class III medical devices. Two statutes are relevant. 21 U.S.C. § 360k(a) provides that

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

This section expressly preempts any state requirement or other obligation that is “different from, or in addition to, any requirement applicable [under the MDA] to the device,” related to the “safety or effectiveness of the device.” Id.

The second statute, 21 U.S.C. § 337(a), provides that “all such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.” Section 337(a) impliedly preempts any action “for the enforcement, or to restrain violations,” of the MDA in any name other than that of the United States. Thus, enforcement of MDA requirements, in the first instance, is left to the federal government.

In tandem, §§ 360k(a) and 337(a) make it exceedingly difficult for a plaintiff to maintain negligence claims for allegedly defective medical devices that entered commerce through the PMA approval process. Often, state law claims, such as claims for negligent manufacture, are broad in scope and are expressly preempted by § 360k(a). This was the conclusion reached by the federal district court in the Gableses’ initial lawsuit against Arrow. Wolicki-Gables, 641 F.Supp.2d at 1288. But, when a plaintiff attempts to assert a claim specifically based on a violation of the MDA, the claim is impliedly preempted by § 337(a), which leaves enforcement of the MDA to the United States.

The PMA approval process does not swallow the entire universe of potential state law claims. Under our federal system, states may enact laws which create a private cause of action for “failure to comply with the federal standards which were established [for a medical device] through the PMA process.” Wolicki-Gables, 641 F.Supp.2d at 1284 (citing Riegel v. Medtronic, Inc., 552 U.S. 312, 330, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008)). Unfortunately for the Gableses, Florida has no such law.

b. Framework for Preemption Analysis

Three Supreme Court cases provide the primary framework for preemption analysis in the MDA context. The first is Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). There, the Court determined that the MDA did not preempt the Lohrs’ negligent manufacture claims against Medtronic for a faulty pacemaker. Id. at 503, 116 S.Ct. 2240. The Court noted, however, that Medtronic’s pacemaker device did not undergo the PMA process, as had Mrs. Wolicki-Gables’ pain pump system. Id. at 480, 116 S.Ct. 2240. The Court described the PMA process as a “rigorous” process during which the manufacturer “submit[s] detailed information regarding the safety and efficacy of their devices, which the FDA then reviews, spending an average of 1,200 hours on each submission.” Id. at 477, 116 S.Ct. 2240. Without FDA approval, a device which receives premarket approval cannot be modified by the manufacturer in a way which would affect the device’s safety or efficacy. 21 U.S.C. § 360e(d)(6).

In contrast, Mr. Lohr’s pacemaker had entered the market through the § 510(k) process (as amended, 21 U.S.C. § 360(k) (2012)), which compares a device created after the implementation of the MDA to one that was created before enactment of the MDA. The § 510(k) process determines whether a new device is “substantially equivalent” to one that entered the market before the MDA. Lohr, 518 U.S. at 492-93, 116 S.Ct. 2240. As the Court observed, the § 510(k) process involves a truncated, limited review-twenty hours on average. Id. at 478-79, 116 S.Ct. 2240. “Section 510(k) notification requires little information, rarely elicits a negative response from the FDA, and gets processed very quickly.” H. at 479, 116 S.Ct. 2240 (citations omitted). The Court emphasized that the § 510(k) process was based on equivalency to a pre-MDA device, not on the actual safety of the device that is carried out under the PMA process. Id. at 493, 116 S.Ct. 2240. As a result, the Court found that a “substantial equivalence” finding under the § 510(k) process did not preempt the Lohrs’ negligent manufacture claims against Medtronic; the § 510(k) process only was meant to “maintain the status quo with respect to the marketing of existing medical devices and their substantial equivalents .... [I]nclud[ing] the possibility that the manufacturer of the device [might] have to defend itself against state-law claims of negligent design.” Id. at 494, 116 S.Ct. 2240. Because of the approval process involved, Lohr lends little support to Mrs. Wolicki-Gables’ claim.

Subsequently, in Buckman Co. v. Plaintiff's Legal Committee, 531 U.S. 341, 346-47, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001), the plaintiffs asserted that Buckman defrauded the FDA when it separated its bone screw device, intended for spinal surgery, into component parts—the bone screws themselves and the nested bone plates—in order to obtain a § 510(k) exemption. Apparently, Buckman had been unsuccessful in obtaining such an exemption for the device as a whole. Id. at 346, 121 S.Ct. 1012. Allegedly, Buckman knew that the FDA would not approve of Buck-man’s intended use for the bone screw device components in their totality. As a result of the alleged fraud, plaintiff suffered injuries from Buckman’s bone screws. See id. at 346-47, 121 S.Ct. 1012 (discussing plaintiffs’ claims). Ultimately, the Court determined that the plaintiffs’ claims were impliedly preempted, finding that:

[T]he federal statutory scheme amply empowers the FDA to punish and deter fraud against the [FDA] .... [T]his authority is used by the [FDA] to achieve a somewhat delicate balance of statutory objectives. The balance sought by the [FDA] can be skewed by allowing fraud-on-the-FDA claims under state tort law.

Id. at 348.

Although Buckman, like Lohr, involved this § 510(k) process, the Court was unwilling to allow a private state law fraud claim to proceed. In reconciling Buckman with Lohr, the Court observed as follows:

[A]lthough [Lohr] can be read to allow certain state-law causes of actions that parallel federal safety requirements, it does not and cannot stand for the proposition that any violation of the FDCA will support a state-law claim ....
[W]ere plaintiffs to maintain their fraud-on-the-agency claims here, they would not be relying on traditional state tort law which had predated the federal enactments in questions. On the contrary, the existence of these federal enactments is a critical element in their case.

Buckman, 531 U.S. at 353, 121 S.Ct. 1012. Thus, the Court seemed willing to permit state law causes of action based on violations of state law requirements that mirrored federal requirements, but it was unwilling to permit a state law cause of action based upon a violation of federal law. Id.

The third and final ease to refine the MDA preemption analysis applicable here is Riegel. In Riegel, a balloon catheter used to dilate the plaintiffs coronary artery ruptured. 552 U.S. at 320, 128 S.Ct. 999. The plaintiff had to undergo emergency coronary bypass surgery. Id. The plaintiff sued Medtronic, alleging various common law claims, including “strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter.” M. He theorized that Medtronic’s catheter was “designed, labeled, and manufactured in a manner that violated New York common law.” Id.

In Riegel, the Court observed that unlike Lohr, where the device had been approved through the § 510(k) exemption process, the catheter went through the more exacting PMA process. Id. at 322-23, 128 S.Ct. 999. As noted earlier, PMA approval imposes rigorous requirements under the MDA. Id. The Court observed that PMA approval “is in no sense an exemption from federal safety review—it is federal safety review.” Id. at 323, 128 S.Ct. 999. With this in mind, the Court determined that the plaintiffs state common law claims for negligence and strict liability imposed requirements preempted by federal requirements specific to the medical device. Id. at 323-24, 128 S.Ct. 999. The Court explained that “[a]bsent other indication, reference to a State’s ‘requirements’ includes its common-law duties,” reasoning- that “[s]tate tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved [through the PMA process] disrupts the federal scheme no less than state regulatory law to the same effect.” Id. at 324, 128 S.Ct. 999. Thus, the Court stood by its holding in Lohr that “§ 360k does not prevent a State from providing a damages remedy for claims premised on a-violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements.” Id. at 330, 128 S.Ct. 999 (citing Lohr, 518 U.S. at 495, 116 S.Ct. 2240). But the Court concluded that Riegel’s claims were preempted because they asserted that “Medtronic’s device violated state tort law notwithstanding compliance with the relevant federal requirements.” Id. at 330, 128 S.Ct. 999. Seemingly, the Court would not tolerate the pursuit of state law claims that posed the risk of liability, even if the manufacturer complied with all requirements imposed by the PMA.

Taken together, Lohr, Buckman, and Riegel “create a narrow gap through which a plaintiffs state-law claim must fit if it is to escape express or implied preemption” under the MDA. Riley v. Cordis Corp., 625 F.Supp.2d 769, 777 (D. Minn. 2009). The Court maintained in Riegel that it was, in fact, still possible to bring a parallel claim under state law. Defining a parallel claim, however, remains frustratingly difficult.

c. Parallel Claims

The Gableses’ spoliation claim against the Surgery Center rises or falls on whether they could have asserted a parallel claim against Arrow. As the Eleventh Circuit noted in the Gableses’ federal lawsuit against Arrow:

State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to the requirements imposed by federal law.” Thus, § 360k does not prevent a State from providing a .damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements..

Wolicki-Gables, 634 F.3d at 1300 (citing Lohr, 518 U.S. at 495, 116 S.Ct. 2240) (citations omitted). Thus, the Eleventh Circuit anticipated the existence of a state law that allows a private cause of action for a violation of the MDA and related regulations. Common law damage claims are inadequate to escape federal preemption.

An MDA parallel claim is much like a unicorn—existing in legend, but elusive in reality. “[C]laims alleging a failure to comply with the federal . standards which were established through the PMA process are not preempted. Such claims are ‘parallel’ claims, which do not add to or differ from federal requirements.” Wolicki-Gables, 641 F.Supp.2d at 1284 (citing Riegel, 552 U.S. at 330, 128 S.Ct. 999); accord Lohr, 518 U.S. at 495, 116 S.Ct. 2240 (“[section] 360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements”). Since Riegel, the “narrow gap” available to allow a parallel claim remains open where the state legislature provides a law that makes available the parallel private remedy for a violation of FDA regulations. Analogous to Goldilocks’ porridge, such a statute cannot be overly broad—and thus expressly preempted by § 360k—nor sound like an action to enforce or restrain violations .of the MDA— and thus impliedly preempted by § 337(a). See generally 21 U.S.C, §§ 360k(a), 337(a). The state law must be just right to allow passage through Riegel’s narrow gap.

A handful of post-Riegel cases involve a plaintiff who adequately alleged a parallel claim sufficient to survive a motion to dismiss. See, e.g., Waltenburg v. St. Jude Med., Inc., 33 F.Supp.3d 818 (W.D. Ky. 2014) (granting defendant’s motion to dismiss plaintiffs negligence per se claims premised on violations of federal law, but denying defendant’s motion to' dismiss plaintiff's claims for negligent manufacture, negligent failure to warn, and strict liability manufacturing defects, finding that they were not expressly or impliedly preempted by the MDA); James v. Diva Int’l, 803 F.Supp.2d 945 (S.D. Ind. 2011) (denying defendant’s motion to dismiss plaintiffs state law claims, finding that the claims were not preempted by the MDA). Many others conclude that plaintiffs’ claims are expressly preempted by § 360k(a) for imposing requirements “different from, or in addition to,” the MDA, or impliedly preempted by § 337(a) because they attempt to enforce, or restrain violations of, the MDA. See, e.g., Mink v. Smith & Nephew, Inc., 169 F.Supp.3d 1321 (S.D. Fla. 2016) (granting defendant’s motion to dismiss based on preemption under the MDA); Marmol v. St. Jude Med. Ctr., 132 F.Supp.3d 1359 (M.D. Fla. 2015) (granting defendant’s motion to dismiss, and holding that Florida does not recognize private causes of action—such as plaintiffs product liability claim—for violations of FDA regulations); Pearsall v. Medtronics, Inc., 147 F.Supp.3d 188 (E.D.N.Y. 2015) (dismissing plaintiffs state law claims, including claims for manufacturing defects, as preempted by the MDA); Gross v. Stryker Corp., 858 F.Supp.2d 466 (W.D. Pa. 2012) (holding that plaintiffs breach of implied warranty claim was expressly preempted because it imposed requirements different than, or in addition to, applicable federal requirements); In re Medtronic, Inc. Sprint Fidelis Leads Prod. Liab. Litig., 592 F.Supp.2d 1147 (D. Minn. 2009) (dismissing a consolidated complaint with prejudice due to preemption under the MDA).

As Judge Kyle noted in In re Medtronic, “nearly all types of claims concerning FDA-approved medical devices are preempted.” 592 F.Supp.2d at 1161. Despite the potential to assert a parallel claim, there appears to be little solid ground remaining on which to construct such a claim for a plaintiff who alleges injury from a PMA-approved medical device.

At the core, the Gableses hoped that with the old connector in hand, they could demonstrate that Arrow did not manufacture the connector in compliance with PMA requirements. Their only basis to proceed is by a parallel claim. Their proposed theory, however, lacks a firm footing under Florida law. “Florida law does not permit a private action to enforce violations of FDA requirements.” Marmol, 132 F.Supp.3d at 1367-68; accord Kaiser v. DePuy Spine, Inc., 944 F.Supp.2d 1187, 1192 (M.D. Fla. 2013) (“The Court also finds Plaintiffs claims should be dismissed since Florida law does not allow Plaintiff to bring a private cause of action to enforce FDA regulations.”); Wheeler v. DePuy Spine, Inc., 706 F.Supp.2d 1264, 1270 (S.D. Fla. 2010) (“Whether these claims are characterized as negligent design, manufacture, or sale of the product, Florida law does not authorize the only type of ‘negligence’ claims that might survive the MDA, i.e., a claim based on violation of federal requirements.”). Although frequently recited, the holdings in these cases are rarely explained.

Under Florida law, a statutory violation does not give rise to a private cause of action absent a clear legislative intent to do so. Wheeler, 706 F.Supp.2d at 1268 (citing Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994)). Certainly, the MDA does not reflect a congressional intent to create such a private cause of action. See 21 U.S.C. § 360 (including no specific language to indicate an intent to create a civil cause of action for violation). And the weight of authority in Florida, too, reflects no state legislative effort to create the statutory parallel claim.

The spoliation theory the Gableses assert, if allowed, would permit what the Florida Supreme Court prohibited in Mur-thy-creation of a private civil cause of action in Florida for violation of a federal statute absent clear legislative intent to do so. See 644 So.2d at 985-87 (declining to judicially create a civil cause of action based on a statute where the legislature had expressed no clear intent to create such a cause of action).

Conclusion

Congress has expressed a clear intent to limit liability for manufacturers of medical devices. Presumably, Congress intended to promote innovation in the medical device field. Florida law provides no parallel claim that would allow the Gableses to pursue Arrow. The Florida Legislature may choose to do so, but it is not within our ken to create a cause of action by judicial fiat. As a result, the spoliation claim must fail. Even if they had the old connector, the Gableses would not have been able to proceed further against Arrow.

Accordingly, we affirm the trial court’s entry of summary judgment in favor of the Surgery Center.

Affirmed.

SILBERMAN and BADALAMENTI, JJ., Concur.


author: VILLANTI, Chief Judge.

text:
    Dorothy S. TOWNE, Esquire, d/b/a Dottie Towne, Attorney at Law, and David Webster, Appellants, v. VAKA LAW GROUP, P.L., Appellee.
    Case No. 2D16-3171
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017
    Dottie Towne, Tampa, for Appellants.
    John V. Trujillo, Jr., Tampa, for Appel-lee.
   VILLANTI, Chief Judge.

Dorothy Towne and David Webster appeal various orders underlying a default judgment of liability entered in favor of Vaka Law Group, P.L., in an action for breach of contract arising from a retention agreement. We have jurisdiction over the order denying Appellants’ motion for order compelling arbitration and motion to stay judicial proceedings pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). Because Towne waived her right to arbitration, we affirm the order denying her motion to stay and compel arbitration. We also affirm the order denying Webster’s motion to stay and compel arbitration.

Appellants also seek review of various other orders entered prior to the order denying their motion to stay and compel arbitration. To the extent that Towne seeks review of the denial of her motion for judgment on the pleadings, we must dismiss the appeal as we do not have jurisdiction. See Fla. R. App. P. 9.130; Zaremba v. Harbison, 462 So.2d 80, 81 (Fla. 4th DCA 1985). To the extent that Towne seeks review of the denial of her motion to vacate the default judgment of liability, we must also dismiss the appeal as we do not have jurisdiction. See Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927, 929-30 (Fla. 3d DCA 2016). Finally, to the extent that Towne seeks review of the issuance of the clerk’s default, we affirm because the propriety of that default has not been preserved for review. See Shelden v. Shelden, 63 So.3d 78, 81 (Fla. 2d DCA 2011).

Affirmed in part; dismissed in part.

KELLY and WALLACE, JJ., Concur.

      . We are not convinced that Webster was a proper party to the action below, and as such, a proper party to this appeal. However, because we affirm, we do not reach this issue.


author: WINOKUR, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Cynthia ROBINSON, as Personal Representative of the Estate of Michael Johnson, Sr., deceased, Appellee.
    CASE NO. 1D15-0989
    District Court of Appeal of Florida, First District.
    Opinion filed February 24, 2017.
    Rehearing Denied May 17, 2017

      Charles R.A. Morse, Jones Day, Washington, D.C.; Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola; Jonathon A. Fligg and Christine Lawson of Womble, Carlyle, Sandridge & Rice, Atlanta, GA; Geoffrey K, Beach and Randal S. Baringer of Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for Appellant.
    David J. Sales of David J. Sales, P.A., Jupiter; Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens; Howard M. Acosta of the Law Office of Howard M. Acosta, St. Pe-tersburg; Willie E. Gary of Gary, Williams, Parenti, Watson & Gary, P.L., Stuart, for Appellee.
   WINOKUR, J.

This case concerns the boundaries of proper closing argument. Plaintiffs counsel crossed those boundaries repeatedly, flagrantly, and often in defiance of the trial court’s admonishments. The depth and pervasiveness of these improper arguments compel reversal of this case for new trial.

I.

Cynthia Robinson, as Personal Representative of the Estate of Michael Johnson, Sr., brought action against R.J. Reynolds Tobacco Company (“Reynolds”), seeking damages on the ground that Johnson’s death was the result of lung cancer caused by addiction to cigarettes manufactured and distributed by Reynolds. Before trial, Reynolds filed a motion in limine seeking to preclude argument or comment disparaging Reynolds for defending itself or failing to “take responsibility” or “apologize” to the plaintiff. The trial court granted Reynolds’ motion in limine in part, ordering counsel for Robinson not to “disparage Reynolds for defending itself in litigation” nor to “suggest that Reynolds should apologize to Plaintiff.”

The trial consisted of two phases. Lasting approximately three weeks, Phase I encompassed issues of Engle class membership, liability, comparative fault, compensatory damages, and entitlement to punitive damages. Closing arguments ran three hours per side.

Beginning with a parable about a man named “Lie” who dressed himself in clothing stolen from a man named “Truth,” Robinson’s counsel used closing argument to characterize Reynolds’ defense as a scheme to deceive the jury, repeatedly comparing the company to a “drowning swimmer” willing to lie, cheat, and deceive to save itself. Robinson raised questions throughout closing argument about Reynolds’ failure to “accept responsibility,” at one point claiming that Reynolds was employing a strategy of deception modeled after the banking industry and suggesting one of Reynolds’ witnesses was part of a multi-corporation conspiracy to defraud the court system:

[Robinson’s counsel:] It kind of reminds me of the banking industry. The banking industry, toward the late ’90s, were making a lot of money.
[Reynolds’ counsel:] Objection, Your Honor. Improper argument.
[Robinson’s counsel:] May I respond, Your Honor?
[Court:] Finish your argument, Counsel.
[Robinson’s counsel:] The real estate. The real estate boom. Wall Street is doing well. Banks are doing well. And then the real estate bubble bursts. Now, Wall Street was driving that real estate bubble, banking was driving that real estate bubble, but the moment the bubble burst, who was to blame?
All the sudden, it was Middle America. Middle America for living beyond their means. Middle American, individual Americans for taking mortgages and buying houses that they knew they couldn’t afford in the first place, for being fiscally irresponsible, and now they can’t make their bills. But who created the environment? The bankers, mortgage companies. And some of big banks even bet on the bust, so they made money on the bubble growing—
[Reynolds’ counsel:] Objection, Your Honor. This is irrelevant.
[Court:] Sustained. Move along, Counsel.
[Robinson’s counsel:] Why is that relevant, ladies and gentlemen? Because the same model works for tobacco. Why is it even more relevant? Because what did we see in the presentation of evidence? The same big corporations not only employ the same strategies, they employ the same people. Some of the experts—
[Reynolds’ counsel:] Objection, Your Honor. This is irrelevant.
[Robinson’s counsel:] May I make—
[Court:] Counsel, finish up.
[Robinson’s counsel:] We had an expert on the stand, Dr. Bennett, who said not only had he testified for tobacco in defense, he’d also testified for Ford in defense. He’d also testified for a pharmaceutical company in defense.
And he also said, what? In all of the cases he’s testified in trial at, not once has he ever found that the company, for whom he was testifying, was at fault. Which means what, by implication? That the person, the plaintiff who was suing, was at fault.
That’s exactly what the banking industry did. When the bubble burst because they—
[Reynolds’ counsel:] Objection, Your Honor. Improper argument.
[Court:] Sustained. Move along, Counsel.
[Robinson’s counsel:] So, ladies and gentlemen, sometimes we have to consider the environment that’s created. And then consider the options that are there for people. And then consider if a company is really changed. If from—if it’s really a new day. If they’re really accepting fault.
[Reynolds’ counsel:] Objection; same issue.
[Court:] Counsel. Keep moving.
[Robinson’s counsel:] If they’ve really turned over a new leaf, if accountability is ultimately what’s important, then why isn’t the corporation accepting responsibility. Why are they taking—
[Reynolds’ counsel:] Objection.
[Court:] Overruled.

Having set the stage, Robinson’s counsel castigated Reynolds for refusing to “come clean:”

The first thing I want to tell you, if we go to the first slide I’ve got, the tobacco companies, Reynolds and the others, they’ve never come clean about what we’ve proven in this trial. They never have.
RJR, that’s Reynolds, has never admitted—they’ve never admitted this. And you might remember Dr. Proctor was on the witness stand. He’s the guy from Stanford, the professor from Stanford, historian of science. He says millions—they have never admitted millions of people have died from smoking. They haven’t admitted that.
They have never admitted that they’re marketing targeted kids. They haven’t admitted that.
They’ve never admitted lying to the public.
They’ve never admitted making cigarettes more addictive....
They’ve never admitted that they assured smokers that smoking was safe....
They’ve never admitted lying to the public, lying to congress. They’ve never admitted that.
They’ve never admitted that their filters and their low tar or light cigarettes are not safer.
But they refuse to this day to admit these things. They’re not a changed company. They’re the same old R.J. Reynolds that just thinks of an excuse and a way to continue to market its products—

The trial court overruled Reynolds’ objection to this line of comments.

Moments later, after proclaiming to the jury that tobacco is “one of the wealthiest, most powerful industries in this country,” and noting the “hundred billion on advertising” it has spent, Robinson’s counsel drew additional objections by accusing Reynolds of not admitting to “forming a conspiracy to hide the hazards of smoking” and “destroying documents to win lawsuits.” After arguing that Robinson’s claim that Reynolds engaged in spoliation was unsupported by the evidence, counsel for Reynolds argued that it was improper to argue that a defendant should be punished for not admitting fault:

And, frankly, Your Honor, this entire pitch about they didn’t accept responsibility or they didn’t do it is an improper argument. You cannot seek to punish a defendant for not admitting fault, and that’s exactly what they’re doing here.

Robinson’s counsel responded by clarifying that he was referring to Reynolds’ failure to admit its bad acts to the public, not the jury:

As far as them admitting these things, I’m not—I’m talking about to the public, and I thought I made that pretty clear that they’ve never admitted to the public that they do these things. And I think that that’s reprehensible.

The trial court overruled Reynolds’ objection, but told Robinson’s counsel to “crystallize” his argument.

Robinson’s counsel continued, “You might remember the last thing that Dr. Proctor testified about when I was asking him questions.... He talked about what this company and the other companies have refused to admit to the public. That’s what I’m talking about.”

Robinson’s counsel continued to develop the narrative that Reynolds’ defense and refusal to accept responsibility was part of a scheme to deceive the jurors, stating:

[Reynolds] could make a safer cigarette. Did they do it? No.
But they said, we got a good thing going here. We got [to] be able to snow the jurors. We’ve got a big legal team.
They are betting on the fact that they’re going to snow you. That’s what they’re betting on. They’re going to snow you either on the liability, or they’re going to snow you on the value of the loss to this young man, his father, and this lady, her husband....

The trial court sustained Reynolds’ objection to the first of these two comments, but Reynolds did not object to the second comment.

At the conclusion of Phase I of the trial, the jury found that the decedent was addicted to cigarettes containing nicotine, which was a legal cause of his lung cancer and death, and that smoking cigarettes manufactured by Reynolds was a legal cause of decedent’s lung cancer and death. The jury awarded approximately $9.59 million in non-economic compensatory damages to Michael Johnson, Jr., and approximately $7.3 million in such damages to Robinson, apportioning 70.5% of the fault to Reynolds and 29.5% of the fault to the decedent.

Phase II of the trial, regarding punitive damages, lasted for one day. The jury returned an award of approximately $23.6 billion dollars ($23,623,718,906.62),

Reynolds filed a post-trial motion for judgment, new trial, or remittitur. Its primary argument was that the punitive award was so excessive as to warrant a new trial on all issues. Reynolds further argued, among other things, that the compensatory awards were excessive and that various improper arguments made by Robinson’s counsel warranted a new trial.

In response, Robinson conceded that the punitive award was excessive and “ought to be remitted.” But she contended that any broader relief would be inappropriate because that award arose entirely from comments made by Reynolds’ trial counsel during Phase II. She also contended that the compensatory awards were not excessive. And she contended that Reynolds had not preserved any challenge based on improper arguments.

The trial court agreed with the parties that the punitive award was “admittedly and clearly constitutionally excessive.” The court remitted that award to $16,893,833— the total combined amount of the two compensatory awards. Pursuant to Waste Management, Inc. v. Mora, 940 So.2d 1105 (Fla. 2006), the court gave either party the option to reject the remittitur and instead demand a new trial on the amount of punitive damages. Reynolds rejected the remit-titur and demanded a new trial on punitive damages, which the trial court granted.

The trial court denied any broader relief to Reynolds. In concluding that the compensatory awards were not excessive, the court acknowledged that they were “high compared to other Engle progeny verdicts that have been sustained on appeal.” However, the court stated that there was no jury passion during Phase I because the jury appeared “alert and attentive, calm, deliberate, focused, inquisitive, and insightful in nearly every question they asked.” The court further reasoned that Mr. Johnson “appears to have been the youngest Engle class member found to have died from a smoking related illness”; that the parties presented conflicting evidence; and that the jurors might have disbelieved medical expert testimony presented by Reynolds, which could have led them to reason “that if a critical defense expert was not reliable, then how could the Defendant’s other positions be relied upon.”

Reynolds appealed pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) challenging the February 11, 2015 order insofar as it limited the grant of a new trial to the question of the punitive damages amount.

II.

Reynolds contends that numerous comments of Robinson’s counsel regarding its alleged failure to accept responsibility and admit wrongdoing improperly disparaged the company for defending itself at trial. Robinson counters that the comments were proper in that they related to her request for punitive damages. A trial court’s denial of a motion for new trial based on improper closing arguments is reviewed for abuse of discretion. R.J. Reynolds Tobacco Co. v. Gafney, 188 So.3d 53, 57 (Fla. 4th DCA 2016). “If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)).

Litigants enjoy broad, but not unlimited, latitude during closing argument. As our supreme court explained in Murphy v. International Robotic Systems, Inc.:

The purpose of closing argument is to help the jury understand the issues in a case by “applying the evidence to the law applicable to the case.” Attorneys should be afforded great latitude in presenting closing argument, but they must “confíne their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Moreover, closing argument must not be used to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.

766 So.2d 1010, 1028 (Fla. 2000) (citations omitted).

A plaintiff may not suggest to the jury that a defendant is somehow acting improperly by defending itself at trial or that a defendant should be punished for contesting damages. See State Farm Mut. Auto Ins. Co. v. Thorne, 110 So.3d 66, 74-75 (Fla. 2d DCA 2013) (declaring improper plaintiffs “contention in closing that the defendants’ evidence and argument were an attempt ‘to avoid responsibility" and, as a result, the defendants exhibited shameful conduct”); Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012) (“Counsel’s arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper[.]”); Carnival Corp. v. Pajares, 972 So.2d 973, 977-78 (Fla. 3d DCa 2007) (“The arguments made by Pajares’ counsel, denigrating Carnival’s defense of Pa-jares’ claim and suggesting that Carnival should be punished for contesting liability, are the type of arguments previously condemned by this Court, and are equally condemned in the instant case.”).

The Fourth District recently applied this principle in Cohen v. Philip Morris USA, Inc., 203 So.3d 942 (Fla. 4th DCA 2016), an Engle progeny case involving comments remarkably similar to the ones made in this case. There, as here, the plaintiff repeatedly claimed that the tobacco company failed to “take responsibility” and admit wrongdoing. Id. at 945. For example, the plaintiff maligned the tobacco company for “a dozen things tobacco has never admitted to,” such as never having “admitted that the cigarettes smoked today are just as deadly as any cigarettes ever smoked” and that “hundreds of thousands of people have died.” Id. at 946.

The Cohen court affirmed the trial court’s order granting a new trial based in part on these comments, reasoning that “counsel made arguments which crossed the line into ‘take responsibility’ and ‘apologize’ territory.” Id. at 948. The court rejected the plaintiffs argument that such comments were proper because they related to its request for punitive damages, explaining that the comments were not “clearly linked” to proving what is required for punitive damages, that is, that the defendant acted with intent or gross negligence. Id.

We agree that it is improper to disparage an Engle defendant for contesting what is in dispute at trial. In every Engle case there are certain factual findings that have res judicata effect. The jury is required to regard these findings as conclusively established. However, such plaintiff-specific issues as legal causation, comparative fault, and damages must be proved on a jury-by-jury basis. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 424 (Fla. 2013). On these and other open issues of liability, Engle defendants are permitted to defend themselves vigorously. Plaintiffs may not denigrate defendants for contesting the very facts that they are, as plaintiffs, required by law to prove.

Here, Robinson’s comments are substantively identical to the comments condemned in Cohen. By reproaching Reynolds for its supposed failure to “come clean” and admit past wrongdoing, Robinson violated the principle that plaintiffs may not disparage defendants for contesting liability at trial. Reynolds was under no obligation to admit disputed facts helpful to Robinson’s case for punitive damages. Plaintiffs must carry their own burden, and to suggest otherwise is improper.

Similarly, we emphasize the manifest impropriety of Robinson’s suggestions that Reynolds was not “accepting responsibility.” Robinson made the extraordinary claim that Reynolds and other “big corporations” use legal defenses modeled after a dishonest strategy employed by the banking industry in the real estate market and that one of Reynolds’ witnesses was complicit in this scheme of deception. Such allegations of conspiracy do more to stir the imagination than encourage reasoned analysis of facts and evidence. As such, they are inappropriate.

The same tactic was recently used against Reynolds in R.J. Reynolds Tobacco Co. v. Gafney, 188 So.3d 53 (Fla. 4th DCA 2016). There, during closing argument, plaintiffs counsel suggested that Reynolds’ counsel was involved in a conspiracy, stating:

[I]f you wanted to have a window when the defendants, through the Tobacco Institute, were speaking privately, secretly among themselves, high-ranking officials of the Tobacco Institute, and want to know why the defense in these cases consistently tries to recast the jury instructions and the questions on the verdict form, you have information that helps you from one of their co-conspirators, and that’s the Tobacco Institute, and here it is.

Id. at 56 (emphasis in original). The Fourth District condemned the comment, stating, “[t]he insinuation that appellants’ attorneys were engaged in a conspiracy with either the defendants or third parties to mislead, conceal, or manipulate as part of an on-going scheme did not merely push the envelope, but instead went wholly beyond the pale.” Id. at 59.

The same is true here. Robinson’s allegation against Reynolds’ witness, which necessarily implicated Reynolds’ counsel, served no other purpose but to incite prejudice and undue suspicion. Again, the purpose of closing argument is to facilitate reasoned analysis of the facts and evidence, not to denigrate the opposing party with outlandish conspiracy theories.

III.

Again, Reynolds is entitled to a new trial if Robinson’s improper arguments were so highly prejudicial and inflammatory that they denied Reynolds its right to a fair trial. It is clear from the record that Robinson’s trial strategy was to utterly vilify their opponent. In addition to accusing opposing counsel of participation in a scheme of deception, counsel for Robinson denigrated Reynolds as an unrepentant, anti-military, criminal predator, whom the jury must fight and destroy., The jury, perhaps heeding Robinson’s ominous warning that “God’s not pleased,” answered with an unprecedented punitive verdict of $23.6 billion. On such a record, so replete with improper arguments and comments clearly intended to stir the passions of the jury, we must conclude that Robinson’s misconduct had its intended effect. Indeed, we regard the absurdly excessive punitive award as sure proof that the jury gave great weight to Robinson’s presentation. See Christopher v. Fla., 449 F.3d 1360, 1374 n.11 (11th Cir. 2006) (finding “the jury’s award of excessive damages as proof that Plaintiffs counsel’s misconduct probably influenced the jury”); Harbor Ins. Co. v. Miller, 487 So.2d 46, 47 (Fla. 3d DCA 1986) (finding that the excessiveness of the award was “evidence that the prejudicial conduct complained of by appellant was in fact so extensive that its influence pervaded the trial to the point that it was impossible for appellant to receive a fair trial”).

Our conclusion is reinforced by the absence of any meaningful effort on the part of the trial court to stop the wrongdoing, even when Robinson engaged in misconduct previously ruled improper. For example, during closing argument, the trial court sustained an objection to a remark accusing Reynolds of having one of its medical experts “come in from Montana and throw every Pensacola doctor under the bus.” Later, Robinson’s counsel made the same comment, stating, “they paid Dr. Bennett to come all the way from Montana and throw out not only Dr. Boatright but every other Pensacola doctor under the bus.” Reynolds objected, and the trial court merely asked Robinson’s counsel to “rephrase” the comment. This and other instructions such as “move along” or “finish up” likely aggravated the harm and may have encouraged future misconduct. The Fourth District recently addressed similar improper argument and consequent lack of assertive response by the trial court in R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 762 (Fla. 4th DCA 2016) (en banc):

[T]he record reflects no significant admonishment of any kind was delivered by the court, even after plaintiffs counsel chose to continue with similar improper comments when defendants’ objections had been sustained. The repeated sustained objections should have been sufficient to alert the court to the impermissible nature of these comments. Advising counsel to simply “move on” to another line of questioning was wholly inadequate. As a result, the prejudicial effect of these comments was compounded by the trial court’s failure to attempt any real intervention to curb them.

We agree. Where, as here, a litigant repeatedly ignores court rulings and exhibits flagrant disregard for the bounds of proper argument, it is not enough to simply sustain objections and offer flaccid admonishments such as “move along” or “finish up.” The trial court should clearly convey to counsel that misconduct will not be tolerated, even in the presence of the jury if necessary. See Gomez v. State, 751 So.2d 630, 633 (Fla. 3d DCA 1999). Because this did not occur here, in spite of counsel’s myriad improper and inflammatory comments, Reynolds was denied a fair trial.

IV.

For the foregoing reasons, we hold that the trial court erred in denying Reynolds’ motion for new trial. We reverse and remand for a new trial.

B.L. THOMAS and JAY, JJ., CONCUR.

      . Because we reverse this case for a new trial, we decline to address the other issues raised by Appellant.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      . We reject Reynolds’ argument that it is entitled to a new trial because Robinson "cannot prove that her trial counsel's improper arguments were harmless.” "Error,” in the context of harmless-error analysis, is an improper ruling by the trial court, not an improper comment by counsel or a witness. For example, in the case Reynolds cites for this proposition, Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014), the trial court improperly excluded evidence, and the supreme court undertook to determine whether the trial court’s errors were harmless. While the trial court here did erroneously overrule some of Reynolds’ objections, it sustained most of them and, therefore, did not commit "errors” that Robinson must prove are harmless. See e.g., Poole v. State, 997 So.2d 382, 391 n.3 (Fla. 2008). The "error” alleged here is the denial of the motion for new trial based upon these comments. Because we find that the comments deprived Reynolds of a fair trial, the trial court erred in denying Reynolds' motion. "Harmless error” plays no part in this analysis.

      . "And now they come in and woe us down as if they're repenting, but they’re not. They’re not because the first thing of repenting is what? Admission. They haven't accepted any liability. They couldn't make it in any church with this argument."

      . "You won't believe this. After (U.S. soldiers] got back home—first, these tobacco companies gave cigarettes free. Free. They put a pack of cigarettes in breakfast, they put one in lunch, and they put one in dinner. They gave it to them free. They thought it was free. They knew they were getting them hooked on drugs.”

      . "[M]ost people don’t get to sell drugs without going to jail.”

      . “They got the money, they got the resources, they got the power, they can fight, and they’re fighting.”

      . "We got ambushed, some of our boys got ambushed on Sunday morning [referring to the 1941 attack on Pearl Harbor]. And you know that story. I won't go into that, but they were fighting for us, and you’ve got to fight for them.”

      . "You have a lot of power members of the jury ... [y]ou can bring major corporations to their knees when you catch them wrong a billion people going down."

      . To be sure, Reynolds’ counsel did not object to all of these comments. While we would not reverse the order denying new trial based upon these unobjected-to comments, the cumulative effect of preserved and unpreserved improper comments may be considered. See e.g., Allstate Ins. Co. v. Marotta, 125 So.3d 956, 961 (Fla. 4th DCA 2013).

      . “But when you withhold, when you refrain from telling the truth, and you flat out lie to people to get them hooked so you can make more money, that’s not right, and you know it’s not right. Nobody’s pleased with that. God’s not pleased with that.”


author: PER CURIAM.

text:
    Adonis VAZQUEZ, Appellant, v. State of FLORIDA, Appellee.
    Case No. 2D14-4865
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2017.
    Rehearing Denied May 16, 2017
    Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed, without prejudice to file a timely and sufficient postconviction motion. The trial court did not rely on Mr. Vazquez’s pending charges in imposing his sentence. Cf. Fernandez v. State, 42 Fla. L. Weekly D 502a, 212 So.3d 494, 2017 WL 788407 (Fla. 2d DCA Mar. 1, 2017) (holding that the trial court improperly relied on a subsequent charge in sentencing where the trial court stated she was imposing the sentence “based on the fact that you re-offended” among other reasons).

NORTHCUTT, SILBERMAN, and LaROSE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Jose APONTE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4245
    District Court of Appeal of Florida, Second District.
    Opinion filed March 17, 2017
    Rehearing Denied May 4, 2017
    Jose Aponte, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Jose Aponte appeals the order denying his June 2015 motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We conclude that the postconviction court did not err in denying relief and affirm. However, we note that Mr. Aponte raised an issue on appeal that he had not raised in his rule 3.800(a) motion. Therefore, we cannot address the issue. See Derrico v. State, 924 So.2d 970, 970 (Fla. 2d DCA 2006) (“[T]his court cannot address claims asserted for the first time on appeal.”). Our decision is without prejudice to any right Mr. Aponte may have to file a facially sufficient motion under rule 3.800(a) challenging the imposition of the special conditions of sex offender probation in circuit case number CF07-7464, See Villanueva v. State, 200 So.3d 47, 53-64 (Fla. 2016); Biller v. State, 618 So.2d 734, 734-35 (Fla. 1993). If Mr. Aponte files such a motion, the postconviction court should not consider the claim as successive to the claims raised in the rule 3.800(a) motion at issue in this appeal.

Affirmed.

NORTHCUTT and SALARIO, JJ., Concur.


text:
    John ALLEN, a/k/a John T. Allen, Appellant, v. WILMINGTON TRUST, N.A., Successor Trustee to Citibank, N.A., as Trustee f/b/o the Registered Holders of Structured Asset Mortgage Investments II Trust 2007-AR6, Mortgage Pass-Through Certificates, Series 2007-AR6; Constance Allen-Willoughby; and South Gate Community Association, Inc., Appellees.
    Case No. 2D15-2976
    District Court of Appeal of Florida, Second District.
    Opinion filed March 24, 2017.
    Rehearing Denied May 12, 2017

      Gregg Horowitz, Sarasota, for Appellant.

      Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee Citibank.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

John Allen seeks review of a final judgment of foreclosure which was entered after a nonjury trial. Allen argues that Wilmington Trust, N.A., failed to prove that it met the condition precedent of giving notice of acceleration. We agree and reverse.

Paragraph 22 of the mortgage requires that the lender give notice to the borrower prior to acceleration and sets forth several required terms of the notice. Paragraph 15 requires that the notice be written and provides that any such notice “shall be deemed to have been given to Borrower when mailed by first class mail.” In his answer to the foreclosure complaint, Allen denied that the Trust met all conditions precedent. He also asserted as an affirmative defense that the Trust failed to meet the condition precedent of giving notice of acceleration.

At trial, the Trust presented the testimony of Christine Coffron, a case manager with Select Portfolio, the current servicer for the Trust. Coffron testified about the boarding process Select Portfolio used to verify the records of the prior servicer, EMC Mortgage Corporation. Coffron also testified that the records contained a notice of acceleration letter addressed to Allen and dated March 12, 2010. She added that because the letter existed, it had been sent. Further, she stated that the account did not contain anything indicating that the letter was returned as undeliverable and “servicers aren’t in the habit of generating letters that they don’t send.” However, she acknowledged that there were no records reflecting that the letter actually had been mailed and that she did not know EMC’s mailing procedures.

Allen unsuccessfully objected to Cof-fron’s testimony that EMC had mailed Allen the notice letter. Allen asserted that the Trust had not established a foundation for the testimony. At the close of the evidence, Allen argued that the Trust had not proven that it met the condition precedent of giving notice of acceleration. The trial court disagreed, concluding that Coffron’s testimony describing the boarding process was sufficient to establish that the notice letter was mailed.

The court’s reliance on the boarding process to prove that the notice letter was mailed is misplaced. Generally, the boarding process is relevant to the admission of the prior servicer’s records under the business records exception to the hearsay rule. See Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 983 (Fla. 2d DCA 2016). That is, testimony by the current servicer adequately describing the boarding process is sufficient to support the admission of the prior servicer’s records under the business records exception. Id. Thus, Coffron’s testimony regarding Select Portfolio’s boarding process was sufficient to support the admission of EMC’s documents pertaining to Allen’s account, including the notice letter. See id.

That said, the admissibility of the notice letter is not at issue in this case. At issue is whether the evidence was sufficient to establish that the Trust satisfied the condition precedent of giving notice of acceleration by mailing the notice letter. We conclude that neither the boarded documents nor Coffron’s testimony established mailing.

The notice letter does not contain any proof that it was mailed. It is dated, but that simply establishes when it was drafted. The fact that a document is drafted is insufficient in itself to establish that it was mailed. See Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla. 5th DCA 2014). Instead, mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt. Id.

As for the other boarded documents, Coffron admitted that they did not include any evidence that the notice letter had been mailed, such as a return receipt or mailing log. And the fact that the boarded documents did not contain any records indicating that the notice letter was returned as undeliverable does not establish that the letter was mailed; it merely establishes that, if the notice letter was indeed mailed, it was not returned to the sender.

That leaves Coffron’s testimony as the only possible basis for establishing that the notice letter was mailed. Coffron testified that she knew the letter was mailed because it had been created, the account did not contain anything indicating that it was returned as undeliverable, and “servicers aren’t in the habit of generating letters that they don’t send.” The Trust argues that this testimony was sufficient to establish EMC’s routine business practices,

Evidence of a company’s routine business practices under section 90.406, Florida Statutes (2014), may be sufficient to establish a rebuttable presumption of mailing. CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016). However, the witness must have personal knowledge of the company’s general practice in mailing letters. Id. Coffron, who was employed by the successor servicer, admitted that she was not familiar with its predecessor’s mailing practices. Thus her testimony was not sufficient to establish EMC’s routine business practices.. Cf. Hoskinson, 200 So.3d at 192-93 (holding that the plaintiff established mailing with routine business practices testimony of an employee who had personally observed coworkers in the customer service department generate the breach letters and deliver them to the mail room).

Because neither the boarded documents nor Coffron’s testimony established mailing, the Trust did not meet its burden of proving it satisfied the condition precedent of giving notice of acceleration. Accordingly, we reverse and remand for dismissal of the action. See Blum v. Deutsche Bank Tr. Co., 159 So.3d 920, 920-21 (Fla. 4th DCA 2015) (reversing a final judgment of foreclosure and remanding for dismissal based on the plaintiffs failure to prove it complied with the notice requirement by mailing the notice to the defendant).

Reversed and remanded with directions.

KELLY and BLACK, JJ., Concur.


text:
    Jonathan MCNABB, Appellant, v. BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; Taylor Elevator Corp.; and D.G. Suitor & Associates, Inc., Appellees.
    Case No. 2D15-5613
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2017.
    Rehearing Denied May 9, 2017

      Thomas B. Deminieo of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant.
    Kelly Fantetti and Vanessa Ross of Groelle & Salmon, P.A., Sarasota, for Ap-pellee Bay Village Club Condominium Association, Inc.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Jonathan McNabb seeks review of a final summary judgment in favor of Bay Village Condominium Association, Inc., in this slip and fall case. The trial court determined as a matter of law that Bay Village did not have notice of the oil leak that allegedly caused the accident. We reverse because the court erroneously refused to consider an affidavit that created a genuine issue of material fact.

McNabb filed a complaint for injuries he allegedly sustained when he slipped and fell on a foreign substance on Bay Village’s premises. McNabb alleged that Bay Village owed McNabb a duty to keep the premises safe, to keep the premises free from debris, and to warn of any dangerous conditions. Bay Village moved for summary judgment based on its defense that it did not have notice of the dangerous condition. In support of its motion, Bay Village presented the following deposition testimony.

McNabb testified that he slipped on what he assumed was hydraulic oil in a hallway outside the elevator on the ground floor of a condominium building. He did not see the oil before he slipped, and he did not know how long it had been on the floor. After he fell, he noticed oil seeping from under the door of the machine room next to the elevator into the hallway. It had made a puddle that was about four or five feet wide.

Karyn McNabb and Judith Maurer testified that they saw oil in the hallway when they returned home a short while after the accident. Karyn reported the oil to Brad Brian, who performed maintenance for Bay Village., Brian called Taylor Elevator Corporation, and Taylor sent out elevator technician Darren Gulmy a few hours later, Gulmy testified that there was oil about a quarter of an inch deep in the machine room and some had leaked into the hallway to form a puddle. Gulmy concluded that a leaking Victaulic seal on a pipe in the machine room was the source of the oil. He calculated that the pipe was leaking oil at a rate of about one drip every two seconds.

None of these people saw any footprints or marks in the oil which would indicate that it had been walked through. And none of the professionals could determine when the leak started or how long it would have taken for the leak to get from the machine room into the hallway where McNabb fell. Three days prior to the accident, the elevator had been inspected by inspector Stanley Rigby and Taylor Elevator’s elevator technician Roger Hicks. They did not see any leaks in the machine room.

Based on this testimony, Bay Village argued it was entitled to summary judgment because there was no evidence regarding how long the oil had been in the hallway. McNabb did not dispute Bay Village’s assertion that it did not have actual knowledge of the oil leak. The only disputed issue was whether Bay Village had constructive knowledge of the oil leak.

In opposition to Bay Village’s motion for summary judgment, McNabb presented the affidavit of Dr. Benedict, a professional engineer with a Ph.D. in mechanical engineering. Dr. Benedict relied on (1) Gulmy’s testimony describing the extent and source of the oil leak, (2) Brian’s testimony about the call from Karyn McNabb, (3) the testimony of Hicks and Rigby regarding code violations they discovered, (4) service records describing the leak and the condition of the equipment on the evening of the incident, and (5) his personal inspection of the machine room and hallway.

Dr. Benedict relied on Gulmy’s estimate that the depth of the oil in the machine room was 1/4 inch to conclude that the oil had been leaking for approximately eighteen days. He also testified that even if the depth of the oil was closer to 1/16 inch, the oil had been leaking for approximately 4.5 days. At any rate, Dr. Benedict believed the leak had been occurring for at least twenty-four hours prior to the accident.

The trial court discounted Dr. Benedict’s affidavit for the following reasons:

The expert affidavit filed by the Plaintiff lacked credibility &/or reliability as he was not an elevator expert; he first testified that the leak was possibly there for anywhere from 4.5 days to 18 days, and then changed his testimony and said it was there for more than 24 hours. His opinion was weak, and could only state that the leak was possibly long term. This leaves open that other possibilities are equally as likely.

The court made the following findings. The elevator had been inspected three days prior to the accident, and no leak was detected. The leak was not reported to Bay Village until after the accident. The puddle of oil did not have track marks going through it, and there was no other evidence that the oil had been in the hallway for a long time. In fact, Karyn McNabb did not see the leak until after the accident, and McNabb himself was not sure what he slipped on. While there was evidence that the elevator machinery was not up to code, none of the violations concerned any equipment that would have caused an oil leak. The court concluded that “Bay Village was not on constructive notice of the leak as a matter of law based on the undisputed facts.”

McNabb argues that the trial court erred in discounting Dr. Benedict’s affidavit based on a lack of credibility and reliability. He also argues that the court erred in granting summary judgment because Dr. Benedict’s affidavit created a genuine issue of material fact. We find merit in both arguments.

Summary judgment should only be granted when the evidence establishes “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Arce v. Haas, 51 So.3d 530, 531 (Fla. 2d DCA 2010) (quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006)). The trial court is precluded from weighing witness credibility and speculating about the nonmoving party’s chance of success. Id. at 531-32.

In rejecting Dr. Benedict’s affidavit, the trial court explicitly weighed witness credibility by finding that Dr. Benedict’s affidavit “lacked credibility &/or reliability.” The court also speculated about McNabb’s chance of success by finding that Dr. Benedict’s “opinion was weak” and “leaves open that other possibilities are equally as likely.” This was error. In fact, this court has already stated that the same judge made a similar error in determining that a previous affidavit of Dr. Benedict’s lacked credibility. See McNabb v. Taylor Elevator Corp., 203 So.3d 184, 185 n.2 (Fla. 2d DCA 2016).

We recognize that the trial court is not required to consider affidavits that are not based upon personal knowledge or are devoid of evidentiary support. See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So.2d 978, 980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp., 23 So.3d 817, 819 (Fla. 4th DCA 2009). However, Dr. Benedict’s affidavit was based on his personal knowledge as gleaned from record documents and his analysis as an expert. See McNabb, 203 So.3d at 186 (concluding that the trial court erred in rejecting Dr. Benedict’s previous affidavit, which relied on the same evidence, as devoid of factual support).

To the extent the trial court determined that Dr. Benedict made inconsistent findings in the affidavit, that finding was erroneous. According to Dr. Benedict’s specific calculations, the leak had been occurring between 4.5 and eighteen days prior to the accident. This finding is consistent with Dr. Benedict’s subsequent conclusion that the leak had been occurring for at least twenty-four hours before the accident.

A consideration of Dr. Benedict’s affidavit leads to the conclusion that there are disputed issues of material fact regarding whether Bay Village had constructive notice of the dangerous condition. We disagree with Bay Village’s assertion that Dr. Benedict’s affidavit does not create a disputed issue of material fact regarding notice because Dr. Benedict did not specifically state that the oil had been leaking in the hallway for at least twenty-four hours prior to the accident. This is a reasonable inference from the context of the affidavit, and we are required to interpret the evidence and all reasonable inferences in the light most favorable to McNabb. See Dewar v. Dough Boy Pizza, Inc., 184 So.3d 1169, 1170-71 (Fla. 2d DCA 2015).

In conclusion, the trial court erred by discounting Dr. Benedict’s affidavit after weighing the witness’s credibility and reliability and speculating on McNabb’s chance of success. Because Dr. Benedict’s affidavit created a genuine issue of material fact regarding whether Bay Village had constructive notice of the oil leak, summary judgment was improper.

Reversed and remanded.

CRENSHAW and SALARIO, JJ., Concur.

      . In McNabb, this court reversed a final sum-maty judgment entered in favor of Taylor Elevator in the underlying case, 203 So.3d at 186. The trial court had ruled that Taylor Elevator established it was not liable as a matter of law by presenting unrefuted evidence that it inspected the elevator machinery three days before the accident and observed no leakage. Id. at 185. In so doing, the court disregarded an affidavit of Dr. Benedict containing many of the same findings as the one in this case.


text:
    Curtis A. RUFF, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-552
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Rehearing and Rehearing En Banc Denied May 9, 2017
    Mark L. Horwitz and Cassandra Snapp, of Law Offices of Mark L. Horwitz, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Curtis Ruff appeals his convictions and sentences for conspiracy to traffic in cocaine 400 grams or more, trafficking in cocaine 400 grams or more, possession of a structure for the purpose of trafficking in a controlled substance, and unlawful use of a two-way communication device. We affirm the convictions and sentences but remand the case to correct a scrivener’s error. The judgment entered indicates that Ruff pleaded nolo contendere to each of these counts when he was actually adjudicated guilty on these four counts following a jury trial. Therefore, we remand the case to the trial court to correct the judgment accordingly.

AFFIRMED and REMANDED, with directions.

TORPY, WALLIS and LAMBERT, JJ., concur.


author: JAY, J.

text:
    WEST FLAGLER ASSOCIATES, LTD., Appellant, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    CASE NO. 1D16-2374
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017

      Thomas J. Morton, John M. Lockwood, and Kala Kelly Shankle of The Lockwood Law Firm, Tallahassee, for Appellant.
    Jason L. Maine, General Counsel, Dwight 0. Slater, Chief Appellate Counsel, and Chevonne T. Christian, Assistant General Counsel, Department of Business & Professional Regulation, Tallahassee, for Appellee.
   JAY, J.

Once again, “[sjummer jai alai permits are the focus of this appeal.” W. Flagler Assocs., Ltd. v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 139 So.3d 419, 420 (Fla. 1st DCA 2014). Specifically, we address whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”), erroneously interpreted the provisions of section 550.0745(1), Florida Statutes (2015), in denying the application of West Flagler Associates, Ltd. (‘West Flagler”), for a permit to conduct summer jai alai. Finding that the basis for the Division’s denial of the permit was premised on “an insupportable reading of the statute,” we reverse. W. Flagler, 139 So.3d at 420.

On September 3, 2015, West Flagler filed with the Division an “Application for New Summer Jai Alai Permit” for the 2011-2012 and 2012-2013 fiscal years pursuant to paragraph (1) of section 550.0745. Paragraph (1) states in pertinent part:

The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year .... If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permit-tee’s county to conduct summer jai alai games as provided by this section ....

The West Flagler application was filed after the permittee—who was found eligible to convert its existing permit—declined to make the statutory conversion. See S. Fla. Racing Ass’n v. State, Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 201 So.3d 57 (Fla. 3d DCA 2015).

On September 25, 2015, the Division issued a Letter of Intent in which it denied West Flagler’s application, claiming:

Section 550.0745, Florida Statutes, states in pertinent part “[t]he owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutual play from the operation of such parimutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton.” ([Ejmphasis supplied). Section 550.0745, Florida Statutes, creates an exception to the general requirements to obtaining a pari-mutuel permit found in section 550.054, Florida Statutes. Specifically, the statute exempts the applicant from mileage restrictions and referendum requirements imposed by the general permit statute. Thus, section 550.0745, Florida Statutes, must be strictly construed in determining whether a permit is eligible for conversion to a summer jai alai permit, or whether such permit is available if the eligible permit-holder declines to convert.
The application is based on the 2011/2012 and 2012/2013 fiscal years, which are not the 2 consecutive years next prior to the filing of this application. Therefore, your application is incapable of being approved and the division is not making any further determination on the merits of the availability of a permit.

West Flagler petitioned for an informal administrative hearing pursuant to section 120.57(2), Florida Statutes. In its petition, it argued that the Division erred in denying the application because the Division erroneously applied the “next prior” language found in the first sentence of section 550.0745(1) to its application for a new summer jai alai permit filed according to the second sentence of that paragraph. The “next prior” language, according to West Flagler, is limited to summer jai alai conversion applications.

In her Recommended Order, the hearing officer rejected West Flagler’s proposed interpretation and concluded that West Flagler’s application should be denied because the Division had correctly determined that the application was based on the 2011-2012 and 2012-2013 fiscal years, which, as she explained, were “not the two consecutive years next prior”—or the two years “‘immediately prior’”—to 2015. See W. Flagler, 139 So.3d at 422 (acknowledging that the phrase “ ‘next pri- or’—though clumsy and seemingly contradictory—has been consistently used to mean the ‘immediately prior’ instances,” citing Bryan A. Garner, A Dictionary of Modern Legal Usage, 588 (2d ed. 1995)). The Division concurred, concluding that the Recommended Order was “not premised on an erroneous or unreasonable interpretation of section 550.0745(1), Florida Statutes,” and that “West Flagler’s proposed substituted recommendation is not more reasonable than that of the Hearing Officer’s.” The present appeal followed.

Our analysis begins by recognizing that the “construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous.” Shell Harbor Grp., Inc. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 487 So.2d 1141, 1142 (Fla. 1st DCA 1986). However, “judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning.” PAC for Equality v. Dep’t of State, Fla. Elections Comm’n, 542 So.2d 459, 460 (Fla. 2d DCA 1989). Here, we find that the plain meaning of section 550.0745(1) creates two separate ways for permittees to obtain a summer jai alai permit and hold that the Division’s conflation of these two distinct permit opportunities improperly imposed unrelated timing requirements on the “new permit” language.

Under the first sentence of section 550.0745(1), a qualified pari-mutuel permit-tee “may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton” when its “mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county.” When those eligibility determinations have been established, that permittee may apply to the division for a “permit to conduct a summer jai alai fron-ton in such county during the summer season commencing on May 1 and ending on November 30 of each year ....”

The second opportunity occurs when the permittee—referenced in the first sentence—declines to convert its permit. In that event, the second sentence of section 550,0745(1) applies: “If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section .... ” § 550.0745(1), Fla. Stat. (emphasis added). At that point, paragraph (1) neatly dovetails into the remaining paragraphs of section 550.0745, which define the finer points governing the operation of a summer jai alai permit. See § 550.0745(2), (3), & (4), Fla. Stat.

Accordingly, we need not resort to cannons of statutory construction for, “try as we might, we cannot read the language of the statute as the Division has implemented it in this case.” W. Flagler, 139 So.3d at 422. Under the unequivocal terms of the statute in question, the period defined as “2 consecutive years next prior” to the filing of an application operates only as to the first sentence of section 550.0745(1). Under the circumstances of the second sentence, a “new” permit is created; conversion of an existing permit under the first sentence is simply not envisioned. The two separate instances are mutually exclusive, and the time limitation placed by the legislature in the first sentence is conspicuously absent in the second.

Because the Division’s interpretation of section 550.0745(1) “is not supportable,” we reverse the Final Order “with directions to reinstate West Flagler’s application for the new summer jai alai permit at issue.” Id

REVERSED and REMANDED.

OSTERHAUS and WINSOR, JJ., CONCUR.


text:
    Scottie D. LOWE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1554
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017.
    Rehearing Denied May 17, 2017
    Scottie D. Lowe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Scottie D. Lowe filed a Florida Rule of Criminal Procedure 3.800(a) motion in which he argues that his original 2008 sentence for felony theft, a third-degree felony, was illegal because the trial court sentenced him' to 48 months of probation plus 18 months of inpatient treatment, which exceeded the five-year statutory maximum for this offense. In his second claim he asserts he is entitled to 254 days of jail credit.

The record indicates that the trial court imposed inpatient treatment as a condition of probation. See § 948.035, Fla. Stat. (2008) (allowing for imposition of inpatient treatment as a condition of probation). This probationary condition did not extend the 48-month term of probation, and thus this claim is meritless.

As to the second claim, Appellant asserts he was entitled to 254 days of jail credit. He needed to raise this claim pursuant to Florida Rule of Criminal Procedure 3.801, which affords a defendant a one-year period, measured from the date the sentence becomes final, in which to raise a jail credit claim, gee Fla. R. Crim. P. 3.801(b). Appellant’s sentence became final when this Court issued its mandate in the direct appeal, 1D13-4567, on June 2, 2015. Appellant filed the instant motion on January 22, 2016, and therefore his jail credit claim was timely under rule 3.801.

In response to this Court’s show cause order, the state replied that it could not show cause as to why Appellant should not be afforded the opportunity to file a facially sufficient rule 3.801 motion. We therefore affirm this appeal but without prejudice to Appellant filing a rule 3.801 motion within 60 days, raising the claim of entitlement to the 254 days of jail credit.

AFFIRMED.

WOLF, RAY, and MAKAR, JJ., CONCUR.

       Subsection (e) of rule 3.801 incorporates five subsections of rule 3.850. One of those subsections, 3.850(f)(2), allows for the filing of an amended motion within 60 days when a defendant submits a timely but facially insufficient motion.


text:
    Francis FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2465
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017

      William R, Ponall, of Ponall Law, Mait-land, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions without prejudice to his right to file a motion pursuant to rule 3.850 of the Florida Rules of Criminal Procedure.

AFFIRMED.

PALMER and ORFINGER, JJ., and BOATRIGHT, J., Associate Judge, concur.


text:
    Roy W. MINTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0645
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017
    Rehearing Denied May 17, 2017
    Roy W. Minton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Appellant is serving concurrent life sentences after having been convicted of sexual battery of a child and other offenses. His. convictions and sentences were per curiam affirmed on direct appeal and have now been final for more than 22 years. See Minton v. State, 649 So.2d 237 (Fla. 1st DCA 1995) (mandate issued Feb. 3, 1995).

Prior to this case, Appellant had filed four motions for postconviction relief under Florida Rule of Criminal Procedure 3.850, all of which were denied in orders that were per curiam affirmed on appeal. See' Case Nos. 1D02-5139, 1D05-4042, 1D10-3418, 1D14-362. The order that was per curiam affirmed in this case summarily denied Appellant’s fifth rule 3.850 motion.

The order affirmed in this case clearly explained why the claims raised in Appellant’s motion were successive and why the newly discovered' evidence exception to the two-year time limit on postconviction claims did not apply to these claims. The initial brief filed by Appellant in this appeal did not present an arguable basis for reversal of the order. Accordingly, this appeal was frivolous and never should have been filed.

Based on Appellant’s filing history and continued frivolous attacks on his decades old convictions, we issued a Spencer order directing Appellant to “show cause why sanctions should not be imposed on him, including but not limited to a prohibition on the filing of any additional pro se appeals or petitions in this court relating to Suwannee County Case No. 1992-109-CF.” Appellant filed responses to the order in which he expressed some contrition for his prior filings, but primarily reargued the perceived merits of the claims in his current motion, complained about the prison law library system, blamed his filings on bad advice from prison law clerks, and made a frivolous argument that his current motion was not successive because the trial court never fully disposed of his initial rule 3.850 motion. We have carefully considered Appellant’s responses, but find that they fail to show cause why sanctions should not be imposed.

Accordingly, we hereby prohibit Appellant—Roy Minton, DOC Inmate No. 786933—from filing any pro se appeals, petitions, or other cases in this court relating to Suwanee County Case No. 1992-109-CF. The Clerk is directed not to accept any filings from Appellant related to that case unless they are signed by a member in good standing of The Florida Bar. Additionally, Appellant is cautioned that any future filings in violation of this order may result in the imposition of additional sanctions. See § 944.279, Fla. Stat.; Fla. R. App. P. 9.410(a).

It is so ordered.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.

      . This was the appeal of the order denying Appellant’s initial rule 3.850 motion that was entered on remand from Minton v. State, 702 So.2d 638 (Fla. 1st DCA 1997), in which the State conceded that an evidentiary hearing was necessary on one of the claims in the motion.

      . State v. Spencer, 751 So.2d 47 (Fla. 1999)