author: LOGUE, J.

text:
    PINNACLE HOUSING GROUP, LLC, et al., Petitioners, v. FLORIDA HOUSING FINANCE CORPORATION, Respondent.
    No. 3D17-1244
    District Court of Appeal of Florida, Third District.
    Opinion filed August 10, 2017
    Carlton Fields, and Peter D. Webster (Tallahassee); Alan Rosenthal, Natalie J. Carlos, and David L. Luck, for petitioners.
    Ausley McMullen, Michael J. Glazer, and Erik M. Figlio, (Tallahassee); Marisa G. Button, Assistant General Counsel (Tallahassee), for respondent.
    Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.
   LOGUE, J.

Pinnacle Housing Group, LLC, PHG Builders, LLC, and their principals, Felix Braverman, David O. Deutch, Mitchell M. Friedman, Michael M. Friedman, and Louis Wolfson, III (the Companies and their Principals) seek review of a temporary order of suspension entered by the Florida Housing Finance Corporation (the Agency). The order suspends the ability of the Companies and their Principals to participate in the Agency's funding programs until entry of a final order in the Agency's administrative action charging the Companies and their Principals with misrepresentation and fraud. We deny the petition.

Facts

The Companies and their Principals are in the business of developing affordable housing by obtaining funding from government sources. The Agency, a corporation created by the State of Florida and subject to the Administrative Procedures Act, is in the business of providing such funding for affordable housing. The temporary order of suspension bars the Companies from receiving funding from the Agency.

The temporary order of suspension stems from the circumstances in which the Companies and their Principals created and used a related company, DAXC, LLC, in its contracts with the Agency. In March 2017, the United States Attorney for the Southern District of Florida filed an indictment against DAXC. The indictment charged that DAXC "did knowingly and willfully embezzle, steal, purloin, and convert to its own use" Agency money by submitting inflated construction estimates.

In February 2017, DAXC entered into a deferred prosecution agreement with the U.S. Attorney in which DAXC agreed to pay a fine of $1 million and forfeit $4,212,825. In the agreement, DAXC admitted it "was a shell construction subcontractor, which was set up to inflate the cost of four low-income housing contracts and obtain excess federal funds that ultimately went for the personal benefit of five individuals associated with DAXC and its affiliates."

Upon learning of these circumstances, the Agency conducted a meeting pursuant to Florida Administrative Code Rule 67-48.004(2)(a), which provides that applicants for funding to the Agency will be ineligible if "the Applicant or any Principal, Financial Beneficiary, or Affiliate of the Applicant has made a material misrepresentation or engaged in fraudulent actions in connection with any Application for a[n Agency] program." The Rule further provides:

Before any such determination can be final or effective, the Corporation must serve an administrative complaint that affords reasonable notice to the Applicant of the facts or conduct that warrant the intended action, specifies a proposed duration of ineligibility, and advises the Applicant of the opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, F.S. Upon service of such complaint, all pending transactions under any program administered by the Corporation involving the Applicant, or any Principal, Financial Beneficiary or Affiliate of the Applicant shall be suspended until a final order is issued or the administrative complaint is dismissed.

Fla. Admin. Code R. 67-48.004(2)(b).

At the meeting, the Companies and their Principals appeared through David Deutch, Mitchell M. Friedman, and Louis Wolfson, III. Mr Deutch spoke at length. Mr. Deutch conceded the existence of the deferred prosecution agreement, but indicated he merely conceded to inflating costs-not stealing money. At the end of the meeting, the Agency entered the temporary order of suspension at issue and filed and served the required administrative complaint. In addition to contesting the administrative complaint, the Companies and their principals filed the instant petition for review.

Analysis

The Companies and their Principals seek review of the temporary order of suspension under section 120.68(1)(b), Florida Statutes, which provides that a "preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy."

The Companies and their Principals first argue that the temporary order of suspension is fundamentally flawed because the suspension includes five named projects already in the pipeline that the Agency Board expressly voted to exclude from the suspension. While the order was stayed and this matter was pending, the Agency requested that jurisdiction be relinquished so this issue could be addressed. We granted the motion and the Agency entered an amended temporary suspension order which removed from the suspension those five projects. The Companies and their Principals nevertheless argue that this change itself was irregular. We decline to review their complaint in this regard because the pending administrative procedure provides an adequate forum to address those concerns.

The Companies and their Principals next argue that Rule 67-48.004(2) is facially unconstitutional because it "provides no procedural safeguards." "A facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid." Fla. Dep't of Revenue v. DIRECTV, Inc., 215 So.3d 46, 50 (Fla. 2017) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). In making their facial challenge, the Companies and their Principals fail to demonstrate that no set of circumstances exist under which the Rule would be valid.

"[U]nlike some legal rules, due process is not a technical concept with a fixed content unrelated to time, place and circumstances." Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001) (citation omitted). "Instead, due process is flexible and calls for such procedural protections as the particular situation demands." Id. (citation and internal quotations omitted). "Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest." Id. at 948-49.

Regarding these factors, the government's interest here is heightened. Its interest is to prevent government funds and tax credits dedicated to promoting affordable housing from being waylaid by a person or the person's affiliates after a preliminary finding has been made that the person or the affiliates have already made misrepresentations or engaged in fraud regarding affordable housing programs. The interest of the person suspended in these circumstances is commensurately reduced: his interest is to continue to be eligible to apply for such funding after he has been preliminarily determined to have engaged in misrepresentation or fraud in prior applications.

With this background in mind, we turn to a review of the procedures in Florida Administrative Rule 67-48.004(2). In the first place, the Rule has a significant pre-deprivation safeguard to protect a person from being wrongfully made ineligible. A person cannot be suspended unless "[t]he Board determines that the Applicant or any Principal, Financial Beneficiary, or Affiliate of the Applicant has made a material misrepresentation or engaged in fraudulent actions in connection with any Application for a Corporation program." Fla. Admin. Code R. 67-48.004(2)(a). The requirement that such a determination be made by the Agency before any suspension serves to limit or prevent wrongful suspensions. Moreover, a process that allowed a suspension only after a full trial and hearing would create a substantial risk that the party might embezzle more money in the interim. Here, the Agency made this determination at a meeting at which the Companies and their Principals appeared and had input.

Moreover, due process can be provided by post-deprivation procedures in the proper circumstances. Massey v. Charlotte Cty., 842 So.2d 142, 146 (Fla. 2d DCA 2003) ("Procedural due process does not always require a predeprivation hearing. In some cases, a postdeprivation hearing is sufficient. This is particularly so in cases where there has been some initial predeprivation procedure."). Rule 67-48.004(2)'s substantial pre-deprivation safeguard is bolstered by its substantial post-deprivation safeguards.

The Rule provides that, even after this determination is made, no suspension will take effect unless and until the Agency files "an administrative complaint that affords reasonable notice to the Applicant of the facts or conduct that warrant the intended action, specifies a proposed duration of ineligibility, and advises the Applicant of the opportunity to request a proceeding pursuant to Sections 120.569 and 120.57[, Florida Statutes ]." Fla. Admin. Code R. 67-48.004(2)(b). This portion of the Rule provides parties who are suspended an immediate forum to litigate the merits of the suspension.

In order for these safeguards to be facially invalid, it must be shown they have no legitimate or constitutional application. But these safeguards would obviously be adequate to prevent undue wrongful deprivations where, for example, the pre-deprivation determination was based on a party's own admission that it had engaged in fraudulent actions in connection with its application. Frankly, another example would appear to be what occurred here-where an affiliated company paid fines, submitted to asset forfeiture, and admitted in an agreement with federal prosecutors that it had served as a shell in order to obtain the Agency's funds by inflating construction costs. And one can easily envision examples of where the pre- and post-deprivation procedures would also serve to prevent undue wrongful deprivations and immediate remedies in the form of administrative or judicial stays. Thus, while there might be instances in which these provisions do not provide adequate due process when applied to particular facts, we have no difficulty finding there are circumstances in which these procedures are adequate. We therefore uphold Rule 67-48.004(2) against the Companies' and their Principals' challenge that it is facially unconstitutional.

Finally, the Companies and their Principals contend Rule 67-48.004(2)(b) constitutes an invalid exercise of delegated legislative authority. We decline to review this claim as section 120.56, Florida Statutes, provides a fully adequate, and therefore required, administrative forum to raise this claim.

Petition denied.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Mary T. WISMAN, Appellant, v. NATIONSTAR MORTGAGE, LLC and Spruce Creek Golf & Country Club Homeowners Association, Inc., Appellees.
    Case No. 5D16-3236
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    C. Michael Duncan, of Duncan Law Offices, P.A., Tavares, for Appellant.
    Nancy M. Wallace and Ryan D. O'Connor, of Akerman LLP, Tallahassee, and William P. Heller, Fort Lauderdale, of Akerman LLP, Fort Lauderdale, for Appellee, Nationstar Mortgage, LLC.
    No Appearance for Spruce Creek Golf & Country Club Homeowners Association, Inc.
   ORFINGER, J.

Mary T. Wisman appeals the trial court's final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC. Because Nationstar failed to present competent, substantial evidence that it had standing to foreclose at the inception of the case, we reverse.

In December 2014, Nationstar filed a complaint against Ms. Wisman for mortgage foreclosure and to reestablish a lost note. Nationstar alleged that it had standing as "an entity not in possession of the Note which is entitled to enforce the Note pursuant to F.S. 673.3091." Nationstar attached to the complaint copies of the note, mortgage, and a lost note affidavit from a Nationstar employee ("Nationstar LNA"). The note, which identified Del Webb Mortgage Company as the lender, was certified as a "true and correct copy of the original" by Countrywide Home Loans, Inc. ("CHL Inc.") and contained an undated blank indorsement executed not by Del Webb but by CHL Inc. The mortgage similarly identified Del Webb as the lender and named MERS as Del Webb's nominee. The Nationstar LNA asserted that Federal Home Loan Mortgage Corporation ("FHLMC") had owned the note since December 27, 2001, having acquired it from the original lender, Del Webb. In making this assertion, the Nationstar LNA relied solely on an inter-office email exchange between the Nationstar LNA affiant, who provided a FHLMC loan number and stated that she was "unable to locate the ownership date on this file," and another Nationstar employee who responded with a "funding date" of "12/27/2001" along with an "S/S Loan" number. The Nationstar LNA further attested that BAC Home Loans Servicing, LP ("BAC") f/k/a Countrywide Home Loans Servicing, LP ("CHL Servicing, LP"), Bank of America, and Nationstar have serviced the loan on behalf of FHLMC.

To show when the loss of possession occurred, the Nationstar LNA attached a lost note affidavit from "the prior holder of the promissory note ... in possession of the note when the loss of possession occurred." That lost note affidavit, dated February 25, 2002, was executed on behalf of CHL Inc. ("CHL Inc. LNA"), and attested that as of that date, the note was lost and that CHL Inc. had not previously hypothecated, transferred, sold, pledged or assigned the note. The CHL Inc. LNA did not provide any details regarding the date or circumstances of the asserted loss of the note but indicated that CHL Inc. purchased or was assigned the note from Del Webb on or about December 5, 2001. In her answer, Ms. Wisman asserted Nationstar's lack of standing as an affirmative defense.

The case proceeded to a nonjury trial. At trial, Nationstar introduced, among other things, a copy of the note, a copy of the mortgage, and a group of documents that showed that in 2001, CHL Servicing, LP was established as a "domestic entity other" and an affiliate of CHL Inc.; effective November 7, 2008, CHL Inc. transferred the servicing of certain unspecified mortgage loans to CHL Servicing, LP pursuant to an asset purchase agreement with Bank of America; on April 27, 2009, CHL Servicing, LP was renamed BAC; and effective July 1, 2011, BAC merged into Bank of America. Nationstar also entered into evidence two assignments of mortgage, showing that on March 24, 2011, MERS assigned the mortgage and the note to BAC, and then on November 13, 2012, CHL Inc. assigned the mortgage and the note to Nationstar.

According to the Nationstar witnesses' testimony, FHLMC is the owner of the loan and the note was lost in CHL Servicing, LP's possession, which, at the time it was lost, was the entity entitled to enforce it. At the close of the evidence, Ms. Wisman moved for an involuntary dismissal based on Nationstar's failure to prove standing. The trial court denied the motion and entered a final judgment of foreclosure in favor of Nationstar.

A party seeking foreclosure must prove by competent, substantial evidence that it has standing to foreclose at the time of filing the lawsuit. Wilmington Sav. Fund Soc'y, FSB, v. Louissaint, 212 So.3d 473, 475 (Fla. 5th DCA 2017) ; Schmidt v. Deutsche Bank, 170 So.3d 938, 940-41 (Fla. 5th DCA 2015). A person entitled to enforce the note and foreclose on a mortgage includes a person not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes. Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015) (citing § 673.3011, Fla. Stat. (2013) ).

Under Florida law, a lost instrument can be enforced if the person seeking to enforce the instrument was entitled to enforce it when the loss occurred or acquired ownership of it from someone entitled to enforce it when the loss occurred, the loss was not the result of a transfer or seizure, and the instrument cannot reasonably be obtained. § 673.3091(1), Fla. Stat. (2016). The person seeking to enforce the instrument must prove the terms of the instrument and the right to enforce it, and then it is as if the person has produced the instrument. Id. § 673.3091(2). The person may do so either through a lost note affidavit or by testimony from a person with knowledge. Home Outlet, LLC v. U.S. Bank Nat'l Ass'n, 194 So.3d 1075, 1078 (Fla. 5th DCA 2016).

"A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo." Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ; see Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So.3d 1110, 1115 (Fla. 5th DCA 2015). Here, the trial court erred in finding that Nationstar had standing to foreclose as a person not in possession of the note who is entitled to enforce under section 673.3091. Nationstar attempted to prove through the Nationstar LNA and its witnesses' testimony and evidence that FHLMC was the owner of the loan and had the right to enforce the instrument at the time that the note was lost because the note was sold by Del Webb to FHLMC and physical possession of the note was transferred to FHLMC's loan servicer, Bank of America (or its predecessor BAC f/k/a CHL Servicing, LP) and then to Nationstar before the foreclosure action was filed. However, its evidence does not support this claim.

To prove standing, Nationstar submitted a copy of the note with a blank indorsement from CHL Inc., not Del Webb, FHLMC, or CHL Servicing, LP. The mortgage further shows that on December 5, 2001, the original mortgagee, Del Webb, designated MERS as its nominee, and on March 9, 2011, MERS assigned the mortgage and note to BAC , which was formally known as CHL Servicing, LP, an affiliate of CHL Inc. On July 1, 2011, BAC merged with Bank of America. However, neither BAC nor by merger, Bank of America, assigned the mortgage and the note to FHLMC or Nationstar. Instead, on November 13, 2012, a different entity, CHL Inc., assigned the mortgage and the note to Nationstar. While Nationstar claims that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence demonstrates otherwise. Nationstar introduced several documents that showed that CHL Servicing, LP was an affiliate or "domestic entity other" of CHL Inc.; CHL Servicing, LP was later renamed BAC; and that only BAC, and not any other CHL-related entity, merged with Bank of America in 2011. By the 2012 assignment, the evidence fails to show that CHL Inc. was affiliated with either CHL Servicing, LP or BAC.

Further, Nationstar has not proven that FHLMC was the owner of the note entitled to enforce the note at the time of loss of possession. Nationstar relies on the November 6, 2014, inter-office email that shows a "12/27/01 funding date," a FHLMC loan number, and an "S/S loan number" as its only proof that FHLMC owns the note. However, this document does not prove standing, as it does not directly reference the specific note. Cf. Johnson v. U.S. Bank Nat'l Ass'n, 222 So.3d 635 (Fla. 2d DCA 2017) (holding that evidence was insufficient to show that mortgagee was holder of note, and thus, lacked standing to foreclose because copy of note contained no endorsements and screen printouts from mortgagee's servicer made no reference to specific note at issue). There is simply no showing that FHLMC is the owner of the note, and was entitled to enforce the note when it was lost.

We conclude that Nationstar failed to present sufficient evidence of standing. See Lacombe v. Deutsche Bank Nat'l Tr. Co., 149 So.3d 152, 156 (Fla. 1st DCA 2014) ("Absent evidence of the plaintiff's standing, the final judgment must be reversed."). Therefore, we reverse the final judgment and direct the trial court to grant Ms. Wisman's motion for involuntary dismissal.

REVERSED AND REMANDED for further proceedings.

TORPY and BERGER, JJ., concur.

      The agreement was not admitted into evidence.

      It is unclear what an affiliate is or what legal right such a status would confer.

      For instance, the inter-office email references an FHLMC loan number but that number is not found on the note. In fact, the loan or account number found on the note is the same loan number found on the CHL Inc. LNA, which states that CHL Inc. purchased the note from the original lender, Del Webb. The S/S loan number is the Nationstar loan number that is found on all of its documents.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. J.E.S., Appellee.
    Case No. 2D16-4565
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
   PER CURIAM.

Affirmed.

VILLANTI, KHOUZAM and SLEET, JJ., Concur.


author: BERGER, J. ORFINGER, J., concurring.

text:
    SPA CREEK SERVICES, LLC, Appellant, v. S.W. COLE, INC., Jerry Cole, Sue C. Cole, et al., Appellees.
    Case No. 5D15-3520
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017
    Robert Bruce Snow, of Robert Bruce Snow, P.A., Brooksville, for Appellant.
    Frank A. Miller, of Caglianone & Miller, P.A., Brooksville, for Appellees.
   BERGER, J.

SC Services, LLC, the assignee of a chose in action filed by Spa Creek Services, LLC, appeals the trial court's order granting final summary judgment to S.W. Cole, Inc., and S.W. Cole's officers, Jerry Cole, Sue C. Cole, Wendy Cole Lanning, and David W. Lanning (collectively "Appellees"), on Spa Creek's amended complaint for tortious interference, breach of contract, and civil conspiracy, which arose from alleged violations of confidentiality, non-solicitation, and non-competition agreements entered into by the parties. Because the trial court erred in concluding (a) that consent was required for assignment of the chose in action and (b) that SC Services could not maintain the action after it dissolved itself in Delaware, we reverse the trial court's entry of summary judgment for S.W. Cole and Jerry Cole on those grounds.

A trial court's entry of summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. (citing Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999) ).

S.W. Cole is engaged in the pest control business throughout Central Florida. The additional Appellees in this appeal are officers and directors of S.W. Cole with Jerry Cole serving as president. Spa Creek was a limited liability company also engaged in the pest control business in Central Florida. In 2002, Spa Creek and S.W. Cole entered into an asset purchase agreement whereby Spa Creek purchased all the assets of S.W. Cole's branch offices in Lakeland, New Port Richey, Dade City, Ocala, and Leesburg. The agreement contained merger and assignment clauses. The assignment clause stated:

Assignment. Neither this Agreement nor any obligation associated herewith may be assigned to any third party without the prior written consent of all parties to this Agreement, except that Purchaser may assign all obligations under this Agreement to a third party purchaser of the principal assets acquired hereunder, subject to payment of all obligations due to Seller or Cole as a condition of closing.

As part of the asset purchase agreement, Appellees were required to execute confidentiality, non-solicitation, and non-competition agreements. Under the agreements, Appellees were precluded from engaging in the pest control business in Lake, Pasco, Marion, Polk, and Alachua counties. While S.W. Cole was permitted to conduct business in other counties, it could not do so in a way that tortiously interfered with Spa Creek and its employees. S.W. Cole was also barred from hiring or soliciting its former employees to leave Spa Creek and work for any other entity.

Each of the confidentiality, non-solicitation, and non-competition agreements contain, the following assignment clause:

Assignment; Successors, and Assigns, etc. Neither Seller nor Purchaser may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided that Purchaser may assign this Agreement without the consent of Seller in the event that Purchaser shall effect a reorganization, consolidate with or merge into any other corporation, partnership, organization, or other entity, or transfer all or substantially all of its properties or assets relating to the operation of the business in the Territory to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon Purchaser and Seller, their respective successors, executors, administrators, heirs and permitted assigns.

Spa Creek later sued S.W. Cole and Appellees for tortiously interfering with Spa Creek's non-compete agreements, tortiously interfering with its business relationship, civil conspiracy, and breach of the non-compete and non-solicitation agreements. After doing so, Spa Creek sold nearly all of its assets to another pest control company while retaining the chose in action at issue in this case. Later, Spa Creek assigned its remaining assets and liabilities, including the lawsuit against S.W. Cole and Appellees, to SC Services, a special purpose entity formed as a limited liability company in Delaware for the purpose of prosecuting the lawsuit.

In December 2012, while the suit was still pending, SC Services was dissolved through the filing of a certificate of cancellation in Delaware. Thereafter, Appellees filed a motion for summary judgment alleging, inter alia , that the assignment of the chose in action against them did not survive SC Services' dissolution. Appellees also argued that the assignment from Spa Creek to SC Services was void because the assignment clauses in the asset purchase agreement and the confidentiality, non-solicitation, and non-competition agreements required the prior written consent of all parties to the agreement and Spa Creek failed to obtain consent from S.W. Cole and Jerry Cole prior to the assignment. The trial court agreed with Appellees and granted summary judgment.

In concluding summary judgment should be granted in favor of S.W. Cole and Jerry Cole, the trial court found that the assignment clauses in the asset purchase agreement, and in the confidentiality, non-solicitation, and non-competition agreements prevented assignment of the chose in action without their consent and that SC Services could no longer maintain the action because it was dissolved in Delaware in December 2012. This was error.

Contractual language requiring consent for the assignment of contracts, contractual interests, rights, and obligations has no effect on the assignment of a chose in action for breach of the contract. C.P. Motion, Inc. v. Goldblatt, 193 So.3d 39, 43 (Fla. 3d DCA 2016) ; Aldana v. Colonial Palms Plaza, Ltd., 591 So.2d 953, 955 (Fla. 3d DCA 1991) ; Paley v. Cocoa Masonry, Inc., 433 So.2d 70, 70-71 (Fla. 2d DCA 1983) ("[T]he prohibition of a contract against assignment is against an assignment of rights and privileges under the contract. That prohibition does not prohibit the assignment of a claim for damages on account of breach of contract."). "[C]hoses in action arising out of contract are assignable and may be sued upon and recovered by the assignee in his own name and right." Spears v. W. Coast Builders' Supply Co., 101 Fla. 980, 133 So. 97, 98 (1931) (citing Robinson v. Springfield Co., 21 Fla. 203 (Fla. 1885) ).

S.W. Cole argues that because there had been no determination of liability at the time of the assignment, the chose in action was not an accrued claim for damages. However, a distinction exists "between the assignment of performance due under a contract and the assignment of a claim for damages." C.P. Motion, Inc., 193 So.3d at 43 (citing Cordis Corp. v. Sonics Int'l, Inc., 427 So.2d 782, 782-83 (Fla. 3d DCA 1983) ).

The language in the confidentiality, non-solicitation, and non-competition agreements required consent for assignments "of this Agreement or any interest herein" with the exception of when Spa Creek's principal assets were acquired by another corporation. The assignment clause in the asset purchase agreement required consent for assignments of the agreement and any obligations associated with the agreement. The agreement itself relates to performance and does not relate to the chose in action for the breach of contract claim. See C.P. Motion, Inc., 193 So.3d at 43 ; Aldana, 591 So.2d at 953 ; Paley, 433 So.2d at 70-71 ; Cordis Corp., 427 So.2d at 783. Indeed, the only obligation under the asset purchase agreement relevant to this case was Appellees' obligation to execute non-competition agreements. The alleged violations of the asset purchase agreement and of the confidentiality, non-solicitation, and non-competition agreements occurred before the assignment, as the complaint had already been filed before the assignment was made. Thus, the assignment was only of the chose in action for breach of the agreements and not of the agreements themselves. See C.P. Motion,Inc., 193 So.3d at 43 ; Aldana, 591 So.2d at 953 ; Paley, 433 So.2d at 70-71 ; CordisCorp., 427 So.2d at 783.

Here, the chose in action for breach of contract accrued at the time of the alleged breach, and the chose in action for tortious interference with contract accrued when S.W. Cole allegedly solicited and hired its former employees away from Spa Creek, and both occurred before the original complaint was filed in January 2004. See Tech. Packaging,Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008) (citing Holiday Furniture FactoryOutlet Corp. v. Dep't of Corr., 852 So.2d 926, 928 (Fla. 1st DCA 2003) ); see also QualityOptical of Jonesboro, Inc. v. Trusty Optical, LLC, 365 Ark. 106, 225 S.W.3d 369, 372 (2006). Therefore, the accrued choses in action were assignable, and the trial court erred as a matter of law in granting summary judgment on this point. See C.P. Motion, Inc., 193 So.3d at 43 ; Aldana, 591 So.2d at 953 ; Paley, 433 So.2d at 70-71 ; Cordis Corp., 427 So.2d at 783.

The trial court also erred when it relied on Delaware law to conclude that SC Services was precluded from prosecuting this case after it filed its certificate of cancellation in Delaware. As stated earlier, SC Services voluntarily dissolved itself in Delaware in December 2012. In Delaware, the dissolution of the corporation and the filing of the certificate of cancellation are separate steps: dissolution occurs first, followed by winding up of corporate affairs, and finally the certificate of cancellation is filed. Del. Code tit. 6, §§ 18-203(a), (b), 18-803(b) (2012). Delaware permits the dissolved limited liability company to "prosecute and defend suits, whether civil, criminal or administrative" only until the filing of the certificate of cancellation. Del. Code tit. 6, § 18-803(b) (2012). The final effect of the filing of the certificate of cancellation is made clear by the provision in the statute of a means to correct the premature filing of the certificate of cancellation so as to re-enable the dissolved limited liability company to finish winding up its affairs. Del. Code tit. 6, § 18-203(b). In Florida, prior to 2014, the cancellation of the articles of organization was an administrative step that immediately followed dissolution but which did not affect any pending court proceedings involving the dissolved limited liability company. §§ 608.446-.447, Fla. Stat. (2012). The new limited liability act, adopted in 2014, provides for the filing of a statement of termination after the limited liability company has finished winding up its affairs, but the act does not prohibit the dissolved entity from continuing to prosecute or defend court proceedings after that point. § 605.0709(7), Fla. Stat. (2014). Thus, the cancellation of the articles of organization in Florida (before 2014) and the filing of a statement of termination (after 2014) simply do not carry the same consequences that the filing of the certificate of cancellation does in Delaware. See § 605.0709(7), Fla. Stat. (2014) ; §§ 608.446-.447, Fla. Stat. (2012) ; Selepro, Inc. v. Church, 17 So.3d 1267, 1268-70 (Fla. 4th DCA 2009).

Under section 605.0709(2)(b) 2., Florida Statutes (2014), a dissolved limited liability company may "[p]rosecute and defend actions and proceedings, whether civil, criminal, or administrative." Section 605.0707(4), Florida Statutes (2014), states that "[u]pon the filing of the articles of dissolution, the limited liability company shall cease conducting its business and shall continue solely for the purpose of winding up its affairs in accordance with s[ection] 605.0709, except for the purpose of lawsuits, other proceedings, and appropriate action as provided in this chapter." Section 605.0717(1)(b), Florida Statutes (2014), states that the dissolution of a limited liability company does not "[p]revent commencement of a proceeding by or against the limited liability company in its name. ..."

While section 605.0904(1), Florida Statutes (2014), states that "[a] foreign limited liability company transacting business in this state or its successors may not maintain an action or proceeding in this state unless it has a certificate of authority to transact business in this state," the statutes that require a certificate of authority to maintain court actions in Florida only apply when the foreign corporation is actively transacting business.

Selepro,Inc., 17 So.3d at 1270 (citing Nat'l Judgment Recovery Agency, Inc., 826 So.2d 1034, 1036-37 (Fla. 4th DCA 2002) (Farmer, J. dissenting)). Maintaining, defending, or settling any court proceeding is not considered to be transacting business. §§ 605.0905(1)(a), 607.1501(2)(a), Fla. Stat. (2014). Neither is winding up affairs. Selepro, Inc., 17 So.3d at 1270 (citing PBF of Fort Myers, Inc. v. D & K P'ship, 890 So.2d 384 (Fla. 2d DCA 2004) ).

Accordingly, we reverse the order granting summary judgment in favor of S.W. Cole and Jerry Cole on these issues and remand for further proceedings. In all other respects, we affirm.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

WALLIS, J., concurs.

ORFINGER, J., concurs, with opinion.

ORFINGER, J., concurring.

I agree with the majority opinion in its entirety. I write separately to address a more general problem that occurs all too often.

The Empire State Building took only one year and forty-five days to build. Empire State Building Fast Facts, CNN, http://www.cnn.com/2013/07/11/us/empire-statebuilding-fast-facts/index.html (last updated July 14, 2017). The United States landed astronauts on the moon just eight years after President John F. Kennedy announced that ambitious goal. The Decision to Go to the Moon: President John F. Kennedy's May 25, 1961 Speech before a Joint Session of Congress, NASA, http://history.nasa.gov/moondec.html (last updated Oct. 29, 2013). By contrast, this case, filed in the trial court in January 2004 and now more than thirteen years old, is still far from being fully resolved.

Litigants want a timely and fair resolution to their dispute. "Inordinate delay ... reflects badly on both the bench and bar. It is a contributing factor in the continuing decline of public respect for lawyers ... and judges ...." Ritter v. Dep't of Child. & Fam.Servs., 700 So.2d 804, 807 (Fla. 5th DCA 1997) (Harris, J., concurring). The bench and bar have a duty to manage their dockets and workloads to ensure that the people's business is conducted fairly, efficiently and expeditiously.

While there are cases that, because of their complexity, present problems that cause reasonable delays, the Florida Supreme Court has established eighteen months as a presumptively reasonable time to complete most civil matters. See Fla. R. Jud. Admin. 2.250(a)(1)(B). Based on the record before us, I cannot say why this case has taken so long to get to this point. I suspect both the crowded dockets of the court and the conflicting schedules of the attorneys may have contributed, but thirteen years is too long by any measure. Prolonged delay in this case cannot be justified either by the complexity of the case, the workload of the court, or the schedules of the attorneys. The parties deserve better.

      "A 'chose in action' is a 'personal right not reduced into possession, but recoverable by a suit at law .... A right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty.' " Myd Marine Distrib.,Inc. v. Int'l Paint Ltd., 201 So.3d 843, 845 (Fla. 4th DCA 2016) (quoting Puzzo v. Ray, 386 So.2d 49, 50 (Fla. 4th DCA 1980) (omission in original)). It is "the 'right to bring an action to recover a debt, money, or thing.' " One Call Prop. Servs., Inc. v. Sec. First Ins.Co., 165 So.3d 749, 752-53 n.2 (Fla. 4th DCA 2015) (quoting Chose in Action , Black's Law Dictionary (9th ed. 2009)). A judgment also constitutes a cause of action or chose in action. Crane v. Nuta, 157 Fla. 613, 26 So.2d 670, 671 (1946). Thus, in this context, there is no difference between a cause of action and a chose in action.

      We find no error in the grant of summary judgment in favor of Appellees, Sue C. Cole, Wendy Cole Lanning, and David W. Lanning, and we affirm entry of final summary judgment in their favor without further discussion.

      Pursuant to the terms of the asset purchase agreement, a breach of the non-compete agreement is a breach of the asset purchase agreement. The agreements also state that they are enforceable by Spa Creek, its successors, and assigns.

      After the assignment, SC Services filed a motion to substitute itself as the party plaintiff in place of Spa Creek under Florida Rule of Civil Procedure 1.260(c). The motion was granted.

      The trial court acknowledged that Delaware law permitted an erroneously filed certificate of cancellation to be corrected but found that SC Services had not done so.

      Regardless, dismissal is not the proper remedy for non-compliance with the certificate of authority, as a stay is appropriate until the limited liability company comes into compliance or fails to comply. See § 605.0904(3), Fla. Stat. (2014) ; Super Prods., LLC v. Intracoastal Envtl., LLC, 210 So.3d 240, 241-42 (Fla. 2d DCA 2017).


text:
    Jeffrey Dale STORY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4025
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 26, 2017
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Clines v. State, 765 So.2d 947 (Fla. 5th DCA 2000).

ORFINGER, EVANDER and WALLIS, JJ., concur.


text:
    Eric HOPE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4086
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017 Rehearing and Rehearing En Banc Denied January 31, 2018
    James S. Purdy, Public Defender, and Sean K. Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence entered against Eric Hope without discussion but remand for correction of a scrivener's error in the judgment. See Ashley v. State, 850 So.2d 1265, 1268 n.3 (Fla. 2003) (defining scrivener's error as written clerical error that is not "the result of a judicial determination or error"). The judgment erroneously cites to section 782.07, Florida Statutes (2015), for the crime of burglary of a dwelling with an assault or battery and a firearm when the correct statutory citation is section 810.02(2)(a), Florida Statutes (2015), and erroneously cites to section 810.02(2)(a) for the crime of aggravated assault with a firearm when the correct citation is section 784.021(2), Florida Statutes (2015). The judgment also erroneously lists the burglary of a dwelling with an assault or battery and a firearm conviction as a second-degree felony when it is a life felony, and it lists the aggravated assault with a firearm conviction as a life felony when it is a third-degree felony. We therefore remand for correction of the scrivener's errors. In all other respects, we affirm.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERRORS.

SAWAYA, BERGER and LAMBERT, JJ., concur.


author: LOGUE, J. LUCK, J., dissenting.

text:
    Robert SIEGEL, etc., Appellant, v. CROSS SENIOR CARE, INC., et al., Appellees.
    No. 3D16-600
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018 Rehearing Denied March 5, 2018
    Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
    Fuerst Ittleman David & Joseph, PL, and Christopher M. David, Michael B. Kornhauser, and Jeffrey J. Molinaro, for appellees.
    Before LOGUE, SCALES, and LUCK, JJ.
   LOGUE, J.

At the age of 88, Sybil Siegel died at Mount Sinai Medical Center of end stage dementia and end stage chronic obstructive pulmonary disease. Robert Siegel, her son, sued Cross Gardens Care Center, LLC and several of its administrators. Cross Gardens operated the nursing facility where Ms. Siegel resided before admission to Mt. Sinai. In closing argument, Siegel asked the jury for $400,000 for pain and suffering and $90,161.86 in medical and funeral expenses. The jury entered a verdict for Siegel but awarded only $5000 in medical expenses and $1133 for funeral expenses. The trial court set aside this award and entered a judgment notwithstanding the verdict. Siegel appealed.

We affirm on all grounds and write only to address the court's decision to set aside the verdict. At trial, Siegel's theory rested almost entirely on the testimony of Dr. Lee Fisher, an expert in family medicine. Dr. Fisher never treated or examined Ms. Siegel. His opinions were based exclusively on his review of Ms. Siegel's medical records. However, his major opinions were contradicted by the medical records upon which they were purportedly based. The question presented on appeal is whether Dr. Fisher's opinions had sufficient evidentiary weight to be submitted to the jury. The trial court found that they did not. We agree.

Facts

Because the issue is the sufficiency of Dr. Fisher's opinions, we first provide Dr. Fisher's opinion and then review the medical evidence. Dr. Fisher's opinion focused on what he perceived as Ms. Siegel's lack of care in the nursing home prior to her transfer to Mt. Sinai. In particular, his opinion was based on the lack of entries in Ms. Siegel's nursing notes from February 10, 2013, when her condition was noted as stable, to February 25, 2013, when she was transferred to Mt. Sinai with pneumonia.

Focusing on this fourteen-day "gap" in the nursing notes, Dr. Fisher offered an opinion as follows: (1) during the fourteen-day gap, Ms. Siegel was not being properly monitored at the nursing home; (2) during the fourteen-day gap, Ms. Siegel's pneumonia flared up essentially unnoticed; (3) on February 21, 2013, Ms. Siegel's pneumonia reached a critical phase; (4) if Ms. Siegel had been monitored and if the nurse's notes had included the entries reflecting Ms. Siegel's worsening pneumonia, Ms. Siegel would have been transferred to Mt. Sinai on February 21, 2013, rather than February 25, 2013; (5) if Ms. Siegel had been transferred to Mt. Sinai on February 21, 2013, she would have recovered; (6) if she had recovered, Ms. Siegel would have lived another three years because she had been repeatedly hospitalized for pneumonia and other illnesses in the prior decades and she had always recovered; and (7) Ms. Siegel died of pneumonia.

The evidence showed that, in 1995, Ms. Siegel was debilitated by a stroke. After the stroke, she required assistance for everyday functions such as eating, dressing, bathing, and using the bathroom. Since as far back as 2005, Ms. Siegel had suffered from various maladies including urinary tract infections and a feeding tube infection. She had been hospitalized for pneumonia in January 2005, May 2005, June 2005, April 2007, August 2010, and July 2012. In 2012 alone, she suffered from urosepsis, septicemia, a urinary tract infection, an E. Coli infection, and two instances of pneumonia.

Ms. Siegel resided at the nursing home at issue for seventeen years. The Defendant, Cross Gardens, operated the facility during the last six months of Ms. Siegel's stay, from September 2012 through February 2013. At the time Cross Gardens took over the facility, Ms. Siegel was already suffering from dementia and chronic obstructive pulmonary disease, among other illnesses. All parties agreed that Cross Gardens did not cause Ms. Siegel to have these illnesses.

Cross Garden's nursing notes for Ms. Siegel on February 10, 2013 indicated her condition was stable. There were no other entries in the nursing notes until February 25, 2013, when she was transferred to Mt. Sinai with pneumonia.

While there were no other nursing notes during this period, there were other medical records. During the "gap" period, Cross Garden's records show that nurses screened Ms. Siegel for pain three times a day every day. In addition, the records show that on February 11, 2013, she was x-rayed. On February 12, 2013, her blood was drawn and tested (white blood cells elevated indicating possible infection). On February 15, 2013, she was seen by Dr. Suarez who prescribed Nuedexta, which moderates extreme mood changes like sudden laughing and crying.

On February 21, 2013, she was again x-rayed. Among other things, the x-ray showed no evidence of pneumonitis. Pneumonitis is inflammation of the lung tissue from all causes. A subcategory of Pneumonitis is pneumonia in which the inflammation is caused by infection. The x-ray indicated that Ms. Siegel did not have "consolidation" which, as Dr. Fisher himself testified, is what the x-ray would have shown if Ms. Siegel had pneumonia on February 21, 2017. Dr. Fisher agreed the February 21, 2013 x-ray "ruled out pneumonia."

On February 22, 2013, Ms. Siegel was examined and all of her vital signs were within normal ranges. On February 19, 20, 21, 22, 23, and 24, 2013, her respiratory condition was examined twice a day and was within normal ranges.

On February 25, 2013, the medical records indicated she was in distress and having trouble breathing in the morning. Her condition fluctuated during the day. A doctor was summoned around noon and the decision was made to transfer her to Mt. Sinai, where she was admitted that evening suffering from a urinary tract infection and pneumonia.

On March 2, 2013, Mt. Sinai records indicated her "pneumonia clinically improving."

On March 6, 2013, an advanced x-ray at Mt. Sinai revealed Ms. Siegel's condition was "not particularly impressive for pneumonia."

On March 18, 2013, Ms. Siegel died in the hospital. The death certificate listed the cause of her death as end stage dementia and end stage chronic obstructive pulmonary disease.

As mentioned above, in closing Siegel asked for approximately $500,000 and the jury awarded him approximately $6000. After the verdict, Siegel moved for new trial or additur and Cross Care moved for a judgment notwithstanding the verdict. The trial court denied the motions for new trial and additur and granted the judgment notwithstanding the verdict. In doing so, he commented:

This case, in the Court's view, is built on a total house of cards.... [T]he opinion of this doctor is pure ipse dixit; it was unsupported by anything. And ... there's no evidence she would have recovered if she had gotten to Mount Sinai three days earlier.

This appeal followed.

Analysis

"In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Gooding v. University Hospital Bldg., Inc., 445 So.2d 1015, 1017 (Fla. 1984). The burden was therefore on Siegel as the plaintiff to establish that the defendant's negligence caused Ms. Siegel's death. To meet this burden, Mr. Siegel could not rely on conjecture or simply prove that causation was possible. The plaintiff must carry the affirmative burden of proving causation was more likely than not:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id. at 1018 (citation omitted) (emphasis added).

An examination of Dr. Fisher's opinions indicate that, time and again, he drew inferences from the medical records that were not more-likely-than-not. Indeed, at critical points, his opinions are directly contradicted by the very medical records upon which they are purportedly based.

The one hard fact on which Dr. Fisher's opinions are based is that there were no entries in the nurse's notes from February 10, 2013 to February 25, 2013. This "gap" was undisputed. From this "gap," however, Dr. Fisher draws the inference that the nurses were not monitoring Ms. Siegel's condition. The problem with this inference is that it is contradicted by the raft of medical reports indicating that Ms. Siegel's condition was being constantly monitored, recorded, and reported throughout that period. During the two week "gap" period, she was screened for pain three times a day. She was x-rayed twice. Her blood was drawn and tested. She was prescribed and given a new drug. Her vital signs were repeatedly taken and recorded. When a breathing problem occurred (on February 25, 2013), the fact was immediately recorded, she was monitored all day, and a doctor was summoned. Dr. Fisher's inference that the "gap" in the notes signified that she was not monitored is worse than speculation: it is contradicted by the only evidence Dr. Fisher or the jury had.

Dr. Fisher's first opinion in his theory of liability, therefore, runs afoul of the holding of a legion of cases like Rodriguez v. Pino, 634 So.2d 681, 686 (Fla. 3d DCA 1994) (quoting Iden v. Kasden, 609 So.2d 54, 57 (Fla. 3d DCA 1992) ) that an " 'expert witness' opinion based on facts or inferences not supported by evidence has no evidentiary value; the opinion cannot constitute proof of the existence of facts necessary to support the opinion." See, e.g., Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla. 1957) ("It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value.").

The same is true for Dr. Fisher's next opinion that Ms. Siegel had pneumonia on February 21, 2013, which Dr. Fisher opined was so critical that the failure to hospitalize her on that day ultimately caused her death by pneumonia. As he himself admitted on cross-examination, an x-ray taken that same day "ruled out pneumonia." The x-ray ruled out pneumonia, he explained, because it did not show "consolidation" which would have appeared if Ms. Siegel had pneumonia that day. In fact, as he admitted, a medical examination the next day showed all of her vital signs within normal ranges. The results of this examination cannot be reconciled with his opinion she was dying of pneumonia. When asked to explain how the vital signs were normal when Dr. Fisher's theory was that she was purportedly dying of pneumonia, he responded, "I don't know."

When the actual x-rays and examinations, as Dr. Fisher himself admitted, "rule out pneumonia" on February 21, 2017, Dr. Fisher's contradictory inference that the patient had pneumonia on February 21, 2017 is entitled to no evidentiary weight. To support his opinion in this regard, Dr. Fisher would have had to provide a fact-based chain of reasoning based on some other medical record or evidence. He did not do so. Once again, his opinion is flatly contradicted by the medical records which provide the sole basis for his opinion. And, once again, Dr. Fisher's opinion on this point falls directly under the holding of Rodriguez that an " 'expert witness' opinion based on facts or inferences not supported by evidence has no evidentiary value." 634 So.2d at 686.

Also problematic in this regard is Dr. Fisher's next opinion that Ms. Siegel could have recovered and lived for three years if she had been admitted to the hospital on February 21, 2013 rather than February 25, 2013. In support of this opinion, he referred to the fact that she had previously been hospitalized for pneumonia and survived. This is a total non sequitur. It does not follow that because a person was admitted with pneumonia at age 60, 70, or 80 and survived that she will necessarily survive if she is admitted with pneumonia at age 88. The patient's chance of survival will turn on an analysis of much more specific factors including the severity of the pneumonia and the underlying physical condition of the patient. Dr. Fisher does not begin to undertake such a specific analysis. His facile explanation is too "conclusory in nature and ... unsupported by any discernible, factually-based chain of underlying reasoning." Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez, 98 So.3d 1198, 1202 (Fla. 3d DCA 2012) (citation omitted). The same is true of his pronouncement that she would have lived a further three years. Both opinions, therefore, can be afforded "no weight." Id. His opinions are, as the trial court properly characterized them, "pure ipse dixit."

Finally, Dr. Fisher's entire theory is based on his opinion that Ms. Siegel died of pneumonia. While Ms. Siegel was admitted to Mt. Sinai with pneumonia, the Mt. Sinai medical records indicate that Ms. Siegel was recovering from her pneumonia. Among other records, on March 6, 2013 (twelve days before she died), an advanced x-ray at Mt. Sinai revealed Ms. Siegel's condition was "not particularly impressive for pneumonia." There is no medical evidence that her recovery reversed itself, much less that it was pneumonia that killed her. To the contrary, the death certificate gives the cause of death as end stage dementia and end stage chronic obstructive pulmonary disease.

Dr. Fisher made no attempt to reconcile his opinion that Ms. Siegel died of pneumonia with the records indicating she was recovering from pneumonia and actually died of end stage dementia and chronic obstructive pulmonary disease. This discrepancy is significant because Dr. Fisher's opinions are based solely on the medical records (because he never treated, examined, or saw Ms. Siegel). Dr. Fisher's opinion that pneumonia caused her death, which is based entirely on the medical records, but which is flatly contradicted by the medical records, is entitled to no evidentiary weight.

"When deciding the appropriateness of a directed verdict or JNOV, Florida trial and appellate courts use the test of whether the verdict is, for JNOVs, or would be, for directed verdicts, supported by competent, substantial evidence." Lindon v. Dalton Hotel Corp., 49 So.3d 299, 303 (Fla. 5th DCA 2010) (citing Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 79 (Fla. 5th DCA 2006) ).

Moreover, "[a] motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party." Lindon, 49 So.3d at 303 (citing Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) ). Here, the only evidence that could have possibly supported the jury's verdict was Dr. Fisher's opinion. Because Dr. Fisher's opinions are directly contradicted by the medical records upon which they were purportedly based, the trial court properly concluded that they were entitled to no weight.

Affirmed.

SCALES, J., concurs.

LUCK, J., dissenting.

The majority opinion affirms the judgment notwithstanding the verdict for the nursing home because Dr. Fisher's expert testimony was contradicted by other evidence and did not have sufficient evidentiary weight. Because the legal principles for reviewing judgments notwithstanding the verdict do not allow us to reweigh testimony and choose between conflicting evidence, I respectfully dissent. I would reverse the judgment for the nursing home and reinstate the jury's verdict.

The Florida Supreme Court and our court have established four legal principles for reviewing the trial court's judgment notwithstanding the verdict. I will go through each of these principles and apply them to the facts of this case.

1. A trial court may grant a motion notwithstanding the verdict only where the jury's determination is not supported by the evidence.

"A trial court may grant a motion notwithstanding the verdict only where the jury's determination is not supported by the evidence." Skidmore, Owings and Merrill v. Volpe Constr. Co., 511 So.2d 642, 643 (Fla. 3d DCA 1987) ; see also Stirling v. Sapp, 229 So.2d 850, 852 (Fla. 1969) ("The trial judge is authorized to grant such motion only if there is no evidence or reasonable inferences to support the opposing position."); Melgen v. Suarez, 951 So.2d 916, 917 (Fla. 3d DCA 2007) ("A motion for JNOV may be granted only when there is no evidence or inferences to support the opposing party's position."); Collazos v. City of W. Miami, 683 So.2d 1161, 1164 (Fla. 3d DCA 1996) ("A J.N.O.V. motion may be granted only when there is no evidence or inferences to support the opposing party's position."); Unit. Farm Agency of Fla., Inc. v. DKLS, Inc., 560 So.2d 1212, 1213 (Fla. 3d DCA 1990) ("Trial courts may grant motions for judgments notwithstanding the verdict only when there is no evidence or inferences which may support the opposing party's position." (emphasis in original)). Here, the jury determined that the nursing home violated Florida Statutes chapter 400, which was the legal cause of loss, injury, or damage to the Siegel family. That determination was supported by the evidence.

Dr. Mary Shelkey testified that the nursing home violated chapter 400 in its care, treatment, and supervision of Ms. Siegel during the last two weeks of her stay at the facility. Dr. Fisher also testified the nursing home violated chapter 400 because it did not render appropriate and acceptable medical care to Ms. Siegel during those last two weeks. Dr. Fisher testified that the failure to provide Ms. Siegel appropriate care caused her to pass away sooner than she otherwise would have. The trial court denied the nursing home's Daubert motion seeking to exclude Dr. Fisher's expert testimony because he was unqualified, and his testimony was unreliable and unhelpful to the jury. Because Dr. Shelkey and Dr. Fisher's Daubert -tested evidence supported the jury's verdict, the trial court could not have granted judgment notwithstanding the verdict.

2. By filing a motion for judgment notwithstanding the verdict, the defendants have admitted all evidence against them.

"By filing a motion for judgment notwithstanding the verdict, the defendants have admitted all evidence against them." Heyman v. Weka, Inc., 333 So.2d 550, 551 (Fla. 3d DCA 1976) ; see also Stirling, 229 So.2d at 852 (a party moving for judgment notwithstanding the verdict "admits not only the facts stated in the evidence presented but he also admits every conclusion favorable to the adverse party that a jury might freely and reasonably infer from the evidence" (quotation omitted)); DKLS, Inc., 560 So.2d at 1213 ("[T]he party which moves for the judgment notwithstanding the verdict admits all material facts as attested by his adversary ...." (quotation omitted)). Dr. Shelkey and Dr. Fisher testified about two material facts: (a) the nursing home's care of Ms. Siegel was deficient; and (b) as a result, Ms. Siegel passed away sooner than she otherwise would have. By moving for judgment notwithstanding the verdict, the nursing home admitted these material facts, which supported the jury's verdict and precluded judgment for the nursing home.

3. In the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made.

"When presented with a motion for judgment notwithstanding the verdict, the trial court must view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made." Irven v. Dep't of Health & Rehab. Servs., 790 So.2d 403, 406 n.2 (Fla. 2001) (quotation omitted)); see also Melgen, 951 So.2d at 917 ("When presented with a motion for JNOV, the trial court must view all of the evidence, and all of the inferences drawn therefrom, in a light most favorable to the non-movant, and in the face of contradictory evidence, all conflicts must be resolved in favor of the party against whom the motion has been made."); Russell v. KSL Hotel Corp., 887 So.2d 372, 377 (Fla. 3d DCA 2004) ("When reviewing an order granting a judgment notwithstanding the verdict, we view the evidence in a light most favorable to the non-moving party, resolve all conflicts in the evidence in favor of the non-moving party, and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-moving party."); J.C. Penney Co. v. Dahlan, 356 So.2d 64, 65 (Fla. 3d DCA 1978) (affirming denial of motion for judgment notwithstanding the verdict because "the issue of negligence was properly left to the jury on conflicting evidence" and even though "the testimony is conflicting"). The majority opinion concludes that Dr. Fisher's testimony was contradicted by the other evidence in the case. But in reviewing motions for judgment notwithstanding the verdict, we resolve conflicting evidence in favor of the non-moving party, here, the Siegel family.

The majority opinion persuasively details the contradictory evidence, but there was also evidence consistent with Dr. Fisher's testimony. On February 9, 2013, for example, the medical records indicated that Ms. Siegel's condition changed, and she was in respiratory distress. Blood tests and a chest x-ray were ordered. On February 12, her blood test results came back and her white blood cell count was elevated, indicating that she had an infection. On February 15, Ms. Siegel was prescribed a medication for her mood changes, which indicated a change in her mental status. On February 21, Ms. Siegel was diagnosed with congestion and a chest x-ray was ordered "STAT," which means it was an emergency. Ms. Siegel was in distress, had increased pulmonary congestion and increased shortness of breath, and was on continuous oxygen. The standard of care would have been to have Ms. Siegel hospitalized, yet the lack of nursing notes indicated that she was not seen by the nursing staff during the critical days from February 9 to February 21, and was not hospitalized until four days later.

These records were consistent with Dr. Fisher's testimony that Ms. Siegel's health was deteriorating from February 9 to February 21, she was not being properly monitored, she should have been hospitalized on February 21, and if she had been, she would have survived longer than she did. Because there was conflicting evidence, I would resolve the conflict in favor of the jury's verdict.

4. A trial court may not reweigh the evidence and substitute its judgment for that of the jury.

In deciding on a motion for judgment notwithstanding the verdict, "[a] trial court may not reweigh the evidence and substitute its judgment for that of the jury." Collazos, 683 So.2d at 1164. "This is especially true in negligence cases where the function of the jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence." Melgen, 951 So.2d at 917 (quotation omitted); see also Stirling, 229 So.2d at 852 ("It is ordinarily the function of the jury to weigh and evaluate the evidence." (quotation omitted)); Thomas v. Lumbermens Mut. Cas. Co., 424 So.2d 36, 38 n.1 (Fla. 3d DCA 1982) ("A motion for judgment notwithstanding the verdict can not test the sufficiency of the evidence ...."); J.C. Penney Co., 356 So.2d at 65 ("It is not this court's province to substitute its judgment for that of the trier of facts."); Heyman, 333 So.2d at 552 ("[T]he trial court committed reversible error in vacating the jury's verdicts and substituting its own evaluation of the weight of the evidence."). Here, the majority opinion agrees with the trial court that-and affirms the judgment notwithstanding the verdict because-Dr. Fisher's testimony did not have sufficient weight.

The contradictory medical records were presented to the jury. Dr. Fisher was cross-examined on these records. Still, after reviewing the conflicting records, listening to Dr. Fisher's direct and cross-examination, and hearing the attorney's arguments during closing about why he should and shouldn't be believed, the jury credited Dr. Fisher's testimony in finding that the nursing home violated chapter 400, which caused the Siegel family's injuries. We should not reweigh Dr. Fisher's testimony and substitute our view for the jury's.

* * *

The trial court's power to grant judgment notwithstanding the verdict is limited, and should be done with "extreme caution." Heyman, 333 So.2d at 551. If there is any evidence supporting the jury's verdict, it is admitted by the party moving for JNOV and the verdict must stand. If there is a contradiction between the evidence, the conflict must be resolved in favor of the verdict. If the jury credits certain testimony over other evidence, we cannot reweigh it. Applying these principles to the trial court's judgment notwithstanding the verdict for the nursing home, I would reverse the JNOV and reinstate the jury's verdict.

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


author: Per Curiam.

text:
    Garrett ARROWOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4701
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 2, 2018
    David W. Collins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wetherell, Makar, and Kelsey, JJ., concur.


author: WALLIS, J.

text:
    RESTORATION 1 CFL, LLC a/a/o Alex Tchekmeian, Appellant, v. ASI PREFERRED INSURANCE CORPORATION, Appellee.
    Case No. 5D17-755
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Jordan Mejeur, of Cohen Grossman, Maitland; and Gray R. Proctor, of Fox & Loquasto, P.A., Richmond, Virginia, for Appellant.
    Kenneth B. Bell, Lauren V. Purdy, of Gunster, Yoakley & Stewart, P.A., Tallahassee; Anthony Russo and Thomas A. Keller, of Butler Weihmuller Katz Craig, LLP, Tampa, Appellee.
   WALLIS, J.

Restoration 1 CFL, LLC ("Appellant"), a/a/o Alex Tchekmeian ("the insured"), appeals the trial court's dismissal of its breach of contract action against the insured's homeowner's insurance provider, ASI Preferred Insurance Corp. ("ASI"). After suffering a covered loss, the insured assigned his claim benefits to Appellant in exchange for its provision of emergency water cleanup services. Wells Fargo, the insured's mortgagee, did not consent to the assignment. Appellant then filed suit against ASI for unpaid or underpaid invoices, asserting standing pursuant to the assignment. ASI moved to dismiss, arguing the following provision in its insurance policy rendered the assignment invalid: "No assignment of claim benefits, regardless of whether made before loss or after loss, shall be valid without the written consent of all 'insureds', all additional insureds and all mortgagee(s) named in this policy." The trial court granted the motion to dismiss, stating, "[I]t is not unlawful to require the mortgagee's consent to an assignment of benefits."

We recently affirmed the Office of Insurance Regulation's disapproval of identical anti-assignment language in an insurance policy. Sec. First Ins. Co. v. Fla. Office of Ins. Regulation, 232 So.3d 1157, ----, 2017 WL 5907449 (Fla. 5th DCA Dec. 1, 2017). Because here, as in that case, the clause improperly restricts the assignment of post-loss claim benefits, contrary to Florida law, we reverse the dismissal of Appellant's action and remand for further proceedings. See id.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    Gregory AZOR, Appellant/Petitioner(s) v. STATE of Florida, Appellee/Respondent(s)
    CASE NO.: 4D16-4053
    District Court of Appeal of Florida, Fourth District.
    February 01, 2018
    BY ORDER OF THE COURT:
   ORDERED that appellant's January 26, 2018 motion for extension of time is granted and appellant shall serve the reply brief on or before March 2, 2018. In addition, if the reply brief is served after the time provided for in this order, it may be stricken; further,

ORDERED that the opinion and mandate issued in this case are withdrawn.


author: ROTHENBERG, C.J.

text:
    Keith WROMAS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2782
    District Court of Appeal of Florida, Third District.
    Opinion filed February 14, 2018 Rehearing Denied March 27, 2018
    Keith Wromas, Jr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   ROTHENBERG, C.J.

Keith Wromas, Jr. ("the defendant") appeals the trial court's order denying his motion to correct an illegal sentence, which the trial court treated as a petition for removal from the sex offender registry. We affirm.

The defendant was convicted of lewd and lascivious battery on a child between the age of twelve and sixteen years, in violation of section 800.04(4), Florida Statutes (2000). Section 943.0435, Florida Statutes (2000), requires that all offenders convicted of committing certain offenses, including lewd and lascivious battery on a child between the age of twelve and sixteen years under section 800.04(4), be registered as sexual offenders. The defendant's sentence is therefore not illegal. We also conclude that, although the defendant met the requirements specified under section 943.04354, Florida Statutes (2015), which permits persons convicted of one of the enumerated sexual offenses to petition for removal from the sex offender registry, the trial court did not abuse its discretion by determining that the defendant was not an appropriate candidate for relief under section 943.04354.

In 2000, the defendant was convicted of lewd and lascivious battery on a child between twelve and sixteen years of age, in violation of section 800.04(4), which required that the defendant be registered as a sexual offender. Although the defendant was initially placed on probation for this offense, he violated his probation in 2001 by committing new offenses. Thereafter, the defendant pled guilty to the sale of cocaine within 1,000 feet of a school or church and trespass in case number F01-9129; he admitted to violating his probation in the instant case; he was sentenced to concurrent three-year prison sentences in both cases; and his probation was revoked.

In 2009, the defendant was arrested for committing various offenses, which resulted in convictions for resisting an officer with violence, battery on a law enforcement officer, possession of burglary tools, and burglary of a structure using a vehicle as an instrumentality (a first degree felony punishable by life imprisonment) in case number F09-19928(A), and the imposition of an eighteen-year prison sentence.

In 2015, the defendant filed the instant motion to correct an illegal sentence based on the sexual offender recordation in the instant case. Noting that the defendant's sentence was clearly not illegal, the trial court treated the defendant's motion as a petition for removal from the sex offender registry.

Section 943.04354 specifies the criteria necessary to be eligible for consideration for removal from the sex offender registry. The trial court correctly determined that the defendant met the criteria outlined in the statute, but declined to lift the sex offender registry requirement based on the defendant's extensive criminal history, convictions for committing numerous violent offenses, the violation of the defendant's probation in the instant case, and the fact that the defendant is currently serving an eighteen-year prison sentence for violent offenses. Because the decision whether to grant a petition for removal from the sex offender registry filed by an offender who meets the criteria under the statute is discretionary, see § 943.04354(2) (providing that if a defendant meets the criteria for removal, "[the court] may grant the motion") (emphasis added); Matos v. State, 184 So.3d 1194, 1195 (Fla. 5th DCA 2015), and because the record supports the trial court's findings, we find no abuse of discretion. Accordingly, we affirm the order on review.

Affirmed.


text:
    Adrian HINES and Klautrelle Long, Appellants/Cross-Appellees, v. NEW URBAN PINE ROAD LLC, Appellee/Cross-Appellant.
    No. 3D16-1168
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018. Rehearing Denied April 18, 2018
    The AJM Law Group, P.A. and Alix J. Montes ; James Jean-Francois (Hollywood), for appellants/cross-appellees.
    Waldman Barnett P.L., Eleanor T. Barnett, and Jason Gordon, for appellee/cross-appellant.
    Before SUAREZ, SCALES and LUCK, JJ.
   PER CURIAM.

Adrian Hines and Klautrelle Long appeal the trial court's judgment in favor of New Urban Pine Road LLC foreclosing on their North Miami home. Hines and Long contend that we should reverse the judgment because: (1) New Urban did not have standing to foreclosure on their home; and (2) there was insufficient evidence to reestablish the lost note under Florida Statutes section 673.3091. We disagree, and affirm.

Standing. At the bench trial, New Urban presented competent substantial evidence that there was an unbroken chain of assignments from Wells Fargo, to RWPO VI, LLC, to Goshen Mortgage, to GDBT I Trust 2011-1, back to Goshen Mortgage, and finally to New Urban. This unbroken chain was sufficient evidence to establish New Urban's standing to foreclose on the home. See Nationstar Mortg., LLC v. Marquez, 180 So.3d 219, 221 (Fla. 3d DCA 2015) ("To establish standing to foreclose on a mortgage and note, a plaintiff must demonstrate it is the owner of the note and mortgage and that it acquired such ownership prior to filing the action. Ownership may be proven by an uncontradicted chain of self-authenticating assignments." (citation and quotation omitted) ).

Re-establishment of lost note. "Where the plaintiff is not in possession of the original documents, it is still entitled to enforce the instrument if: '(a) [it] was entitled to enforce the instrument when loss of possession occurred ....; (b) The loss of possession was not the result of a transfer by [it] or a lawful seizure; and (c) [it] cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found....' " Id. (quoting § 673.3091, Fla. Stat.). Here, the unbroken chain of assignments and Mr. Corral's testimony were competent and substantial evidence supporting the trial court's findings that the lost note requirements of section 673.3091 had been met.

Affirmed; cross-appeal dismissed as moot.

      New Urban cross-appeals one of the trial court's evidentiary rulings but because we are affirming the foreclosure judgment, the cross-appeal is dismissed as moot. See Fla. Dep't of Agric. & Consumer Servs. v. Miami-Dade Cty., 790 So.2d 555, 556 (Fla. 3d DCA 2001) ("We conclude that the appellees lack standing to pursue this action and, accordingly, reverse the two temporary injunctions. As a result, the issue raised on the cross-appeal is moot.").


text:
    Wickberto MARIN, Appellant, v. INFINITY AUTO INSURANCE COMPANY, et al., Appellees.
    No. 3D17-891
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018 Rehearing Denied March 27, 2018
    DeMahy Labrador & Drake, P.A., and Orlando D. Cabeza, Frank L. Labrador, and Angel Castillo, Jr., for appellant.
    White & Case, LLP, and Raoul G. Cantero and Christopher W. Swift-Perez, for appellee Infinity Auto Insurance Company.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

Wickberto Marin ("Marin"), the plaintiff below, appeals the final order granting Infinity Auto Insurance Company's ("Infinity") motion to enforce settlement and dismissing with prejudice the action filed by Marin against Infinity's insured, Ricardo Valdes Blanco ("Blanco"), subject to the terms of the settlement agreement. Because the undisputed material facts support the trial court's finding that the parties entered into a valid settlement agreement, we affirm.

Background

In October 2014, Marin filed an automobile negligence action against Blanco. Thereafter, Infinity was permitted to intervene for the sole purpose of allowing it to seek enforcement of an alleged settlement agreement reached by Marin and Blanco prior to Marin's filing of the automobile negligence action. The facts relating to the automobile accident and the alleged settlement agreement are as follows.

On December 24, 2013, Marin was injured in an automobile accident allegedly caused by Blanco, an Infinity policyholder. Marin was treated at Jackson Memorial Hospital ("JMH") and discharged from JMH on January 16, 2014. Thereafter, Infinity sent Marin's then-attorney, Jason Deitch ("Deitch"), a letter tendering the $10,000 bodily injury policy limit to settle Marin's bodily injury claim against Blanco. The letter included a standard release and a $10,000 check made payable to Marin, Deitch, and JMH. In the letter, Infinity also explained that it included JMH on the check because JMH appeared to have a lien for the medical services provided by JMH to Marin. Infinity, however, offered to reissue the check if the lien had been resolved. Deitch did not respond to Infinity's letter or cash the check.

Marin subsequently retained a new attorney, and on April 7, 2014, Marin's newly-retained attorney, Jose Francisco ("Marin's attorney"), notified Infinity in writing that he had been retained to represent Marin and demanded that Infinity tender its full policy limits. The letter stated: "It is my understanding that your insured has $10,000 in available liability coverage, which I am requesting that your company tender by delivering the settlement draft to my office by the close of business on April 28, 2014." (emphasis added). The demand letter also included medical records from JMH documenting Marin's treatment.

On April 25, 2014, Infinity responded by sending Marin's attorney a letter, which specifically stated that Infinity "agree[d] to meet [Marin's] settlement demand." The letter also included a $10,000 check made payable to Marin, Marin's attorney, and JMH; a release; and an open invitation to submit modifications to the settlement draft. The letter again explained that JMH had been listed as a payee on the settlement check because JMH appeared to have a lien for the medical services it had provided to Marin. However, Infinity offered to reissue the check if the lien was resolved.

Because Infinity had included JMH as a joint payee on the settlement check, Marin's attorney treated the payment as a counteroffer and rejected the settlement payment on April 30, 2014. Infinity and Marin's attorney exchanged letters discussing whether a settlement had been reached, and thereafter, Infinity twice reissued the check without including JMH as a co-payee. Marin's attorney rejected both payments.

Following Marin's attorney's rejection of the checks issued by Infinity, Infinity filed a motion to enforce the settlement. Following a hearing, the trial court granted the motion and dismissed with prejudice Marin's action filed against Blanco subject to the terms of the settlement agreement. Marin's appeal followed.

Analysis

It is undisputed that Marin's April 7, 2014 letter constituted an offer to settle his bodily injury claim against Blanco. The only issue before this Court is whether Infinity's April 25, 2014 response constituted an acceptance or a counteroffer. The trial court found that: (1) the inclusion of JMH as a joint payee on the settlement check was not an essential term of the settlement agreement because Infinity did not condition settlement on Marin's agreement to that term, given that Infinity, in its letter tendering the check, invited Marin to propose modifications to the settlement draft; and (2) the inclusion of JMH was not an objectionable and unusual term because there was uncertainty whether JMH possessed a lien for the medical services rendered to Marin, which Infinity was required to protect under Florida law. Because we agree that Infinity's response to Marin's settlement offer constituted an acceptance, forming a valid settlement agreement, we affirm the trial court's order granting Infinity's motion to enforce the settlement and dismissing with prejudice the action filed by Marin subject to the terms of the settlement agreement.

The question of whether a contract was formed is a legal determination which we review de novo. Mercury Ins. Co. of Fla. v. Fonseca, 3 So.3d 415, 417 (Fla. 3d DCA 2009). Under Florida law, settlement agreements are governed by contract law. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985). "To form a binding contract there must be an offer and acceptance." Fonseca, 3 So.3d at 417. "[A]n acceptance must contain an assent-or meeting of the minds-to the essential terms contained in the offer." Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217, 219 (Fla. 1st DCA 2002). To determine whether a contract was formed, courts use an objective test, which focuses on what the parties said, not on what they meant. Robbie, 469 So.2d at 1385.

In the instant case, the parties agree that Marin's April 7, 2014 letter only contained two essential terms: (1) Infinity must tender the $10,000 bodily injury liability limit in the form of a settlement draft ; and (2) Infinity must do so by April 28, 2014. Infinity timely responded to Marin's letter on April 25, 2014, agreeing to meet all of Marin's settlement demands, thus, accepting Marin's offer to settle. See Erhardt v. Duff, 729 So.2d 529, 530 (Fla. 4th DCA 1999) (holding that a letter agreeing to meet the demands in a settlement offer constitutes an acceptance).

Marin contends that, although Infinity agreed to meet all of his settlement demands, Infinity's inclusion of JMH on the settlement check added a new essential term to the agreement, converting Infinity's purported acceptance into a counteroffer. The trial court properly rejected this argument based on the circumstances presented.

As the Second District Court of Appeal correctly noted in Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001), an " 'essential term' of a contract differs according to the circumstances. But surely, it must include the terms specified in an offer to make a contract." Id. Here, Marin's demand letter only provided two essential terms in order to reach a settlement, both of which were met when Infinity tendered the full policy limits by April 28, 2014. Nowhere in the demand letter did it state who should be included on the settlement check; the demand letter only stated that Infinity must submit a "settlement draft" by April 28, 2014.

Infinity's inclusion of JMH as a co-payee on the settlement check was also consistent with the information provided by Marin's attorney. Marin was a Medicaid patient, and this information was listed on the medical forms Marin's attorney provided to Infinity when making the demand. Under Florida law, a hospital lien attaches at the moment an injured person is admitted as a patient. See State Farm Mut. Auto. Ins. Co v. Palm Springs Gen. Hosp. Inc. of Hialeah, 232 So.2d 737, 738 (Fla. 1970). Section 25C-2, Miami-Dade County Code, provides that "[n]o person shall be entitled to recover or receive damages on account of hospital care, treatment and maintenance unless he shall affirmatively show that he has paid the cost thereof." Section 25C-3 additionally provides that hospitals operating in a Florida county with a population in excess of 325,000

shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims and demands ... and upon all judgments, settlements and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlement or settlement agreement and which necessitated or shall have necessitated such hospital care, treatment and maintenance.

The purpose of these provisions is to "assure a hospital of its rights to proceeds which are held by an insurance company whose insured is liable for the injuries suffered by the hospital's patient." Palm Springs Gen. Hosp., Inc. v. State Farm Mut. Auto. Ins. Co., 218 So.2d 793, 797-98 (Fla. 3d DCA 1969).

Although JMH had not perfected a lien against Marin at the time of the settlement request, "a tardy filing does not invalidate the hospital lien, but only results in the lienor or creditor being an unsecured creditor, at least until such time as the lien is filed." See Public Health Trust of Dade Cty. v. Carroll, 509 So.2d 1232, 1234 (Fla. 4th DCA 1987). Further, even though a patient may be covered by Medicaid, Medicaid recipients remain responsible for deductibles, copayments, and cost sharing. See 42 C.F.R. § 447.15 (2018).

At the time of Marin's settlement offer and Infinity's acceptance of the offer, it appeared that JMH may have had an actionable lien for its services based on the medical documents submitted to Infinity. This presented a dilemma for Infinity. Section 25C-3 provides that JMH was entitled to a lien for all reasonable charges for Marin's care, but Marin had made no attempt to affirmatively show that all of the costs had been paid or satisfied as required by section 25C-2. Based on the uncertainty this created, Infinity definitively agreed to the settlement terms and issued a check for the policy limits payable to both Marin and JMH with an invitation to Marin to provide information that JMH's lien had been resolved.

When faced with a similar dilemma in Government Employees Insurance Co. v. Gonzalez, 512 So.2d 269, 270 (Fla. 3d DCA 1987), this Court held that it was proper for the insurer to issue a check payable to both the hospital and the insured. In Gonzalez, GEICO was obligated to pay Gonzalez's PIP claim but the hospital had not formally released its claim to the proceeds. This Court held that GEICO had two choices: (1) issue a check for the limits payable to both the hospital and Gonzalez; or (2) file an interpleader action and let the court resolve the issue. Id. at 270-71 ; see also Margiotta v. State Farm Mut. Auto. Ins. Co., 622 So.2d 135, 136 (Fla. 4th DCA 1993) (noting that there was neither a hospital lien nor any evidence that the hospital had made a claim for the PIP benefits, but even if there had been competing claims by the insured and the hospital, the insurer should have either issued a joint check to the hospital and the insured or interpleaded the funds). Thus, if JMH was not going to pursue a lien against Marin for its services, all Marin needed to do to remove JMH from the settlement check was to notify Infinity of that fact, as Infinity had invited Marin and his attorney to do.

Our decision is this case is further bolstered by this Court's opinion in Boyko v. Ilardi, 613 So.2d 103, 104 (Fla. 3d DCA 1993). In Boyko, this Court held that, because the parties had expressly agreed to the settlement terms and "the execution of the settlement documents was not a condition precedent to the settlement agreement, but rather a procedural formality," a valid and binding settlement existed between the parties. In the instant case, who was to be included on the settlement check was merely a procedural formality to the agreement because only two conditions were demanded in the letter sent by Marin's attorney. Once the offer was made to Infinity, all that was required by Infinity to form a valid settlement agreement was acceptance. By tendering the full policy limits by April 28, 2014, Infinity accepted the demands stated in the offer by Marin, thus, forming a valid settlement agreement.

Conclusion

Because Marin's settlement demand only included two essential terms, both of which were met by Infinity when it tendered the full policy limits by April 28, 2014, we find that the trial court did not err by finding that a valid settlement agreement was reached between Marin and Infinity. The inclusion of JMH as a co-payee on the settlement check did not convert Infinity's unequivocal acceptance of the essential terms of the offer into a counteroffer, especially where it was unclear whether there remained a balance for the services JMH rendered for Marin's treatment, JMH was entitled to file a lien for any unpaid balance, Marin did not dispute that JMH had a lien for any unpaid balance, Marin did not notify Infinity that JMH did not intend to pursue its lien rights, and Infinity offered to remove JMH as a co-payee if JMH's lien was resolved. We therefore affirm the trial court's order finding that there existed a valid settlement agreement between Marin and Infinity; granting Infinity's motion to enforce that settlement; and dismissing with prejudice the action filed by Marin against Blanco subject to the terms of the settlement.

Affirmed.

      Based on the above findings, we decline to address the trial court's additional findings and Marin's arguments as to those findings.


text:
    M.Z., as Natural Mother and Legal Guardian of A.Z., a minor, Appellant, v. CARNIVAL CORPORATION, et al., Appellees.
    No. 3D17-1348
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018 Rehearing Denied March 27, 2018
    Brais Brais Rusak and Richard D. Rusak, for appellant.
    Mase Tinelli Mebane & Briggs, P.A., and Curtis J. Mase and Cameron W. Eubanks, for appellee Carnival Corporation.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

The plaintiff below (M.Z.), appellant here, is the mother and legal guardian of a minor who allegedly was sexually assaulted and raped on board a cruise ship operated by Carnival Corporation ("Carnival") in 2015. M.Z. filed a lawsuit against Carnival (and five alleged "John Doe" individual perpetrators) in the Miami-Dade Circuit Court, demanding trial by jury.

The issue presented to the trial court and to us is whether a forum selection clause in M.Z.'s and her child's tickets is enforceable. That clause states:

... it is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest's cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state, or country.

M.Z. maintains that the forum selection clause fails to disclose that it deprives her and her child of their right to a jury trial under the United States and Florida Constitutions, and that Carnival failed to obtain an enforceable waiver of that right in the passenger tickets.

Carnival moved for dismissal of the lawsuit on the basis of the mandatory, exclusive federal forum selection provision applicable to lawsuits in which the federal courts do not lack subject matter jurisdiction (as here), relying upon Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), and Leslie v. Carnival Corp., 22 So.3d 567 (Fla. 3d DCA 2009) (en banc). In its motion to dismiss, and at the hearing on the motion, Carnival represented that it would not object to a request by M.Z. for a trial by jury in admiralty in federal court following dismissal of the case and enforcement of the forum selection clause.

The trial court granted the motion to dismiss, "for Plaintiff to proceed in Federal Court in accordance with the forum selection clause if she so elects." This appeal followed.

Analysis

The panel in this case is bound by the en banc decision of the full Court in Leslie. Here, as in Leslie, the record contains no evidence of: (a) a bad faith motive, fraud, or overreaching on the part of Carnival; or (b) "evidence the plaintiffs will be mistreated or short-changed by the judges of the United States District Court for the Southern District of Florida, or that the judges will routinely deny cruise ship passengers, such as these plaintiffs, jury trials if requested." Leslie, 22 So.3d at 573-74 (Shepherd, J., concurring). On that basis, we are obliged to affirm the order of dismissal.

Here, also as in Leslie, M.Z. and her child are Florida citizens and domiciliaries, such that the federal lawsuit filed by them against Carnival is not based on diversity of citizenship jurisdiction, but rather on admiralty jurisdiction. Even with the consent of the parties to the federal lawsuit, Federal Rule of Civil Procedure 39(c)(2) grants federal courts the discretion to grant or refuse a trial by jury in an admiralty case (the federal court "may" try the case to a jury in such an event). But again, the records in Leslie and in this case have not shown that the federal court in the Southern District of Florida has denied, or would deny, such a request following Carnival's stipulated consent to trial by jury.

Affirmed.

      The tickets also contained bold, all upper-case, conspicuous notices regarding the binding nature of the ticket contracts and the "important limitations on the rights of guests to assert claims against Carnival Cruise Line, the vessel, their agents and employees, and others, including forum selection, choice of law, arbitration and waiver of jury trial for certain claims."

      Counsel for Carnival advised the trial court in open court that Carnival consented to such a jury trial in federal court, and that "It's in our motion. It's in Leslie. We consent to jury trial in this case."

      The trial court denied Carnival's motion for sanctions pursuant to section 57.105, Florida Statutes (2017), but Carnival did not appeal that aspect of the order. Based on the forum selection clause and the record before it, the trial court specified that its order of dismissal constituted a final order.

      The federal lawsuit was stayed pending disposition of the circuit court case.