author: LUCK, J.

text:
    MICCOSUKEE TRIBE OF INDIANS of Florida, Appellant, v. LEWIS TEIN, P.L., et al., Appellees.
    No. 3D16-2826
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017.
    See also 92 So.3d 232, 165 So.3d 9, 814 F.3d 1202, 975 F.Supp.2d 1298, 2015 WL 235433, 2015 WL 9438244

      Saunooke Law Firm, P.A., and Robert 0. Saunooke (Miramar); Alston & Bird LLP, George B. Abney, Daniel F. Diffley, and Michael J. Barry (Atlanta, Georgia), for appellant.

      Colson Hicks Eidson, P.A., Curtis B. Miner, Roberto Martinez, and Stephanie Casey, for appellees.
    Rice Pugatch Robinson Storfer & Cohen PLLC, and Craig A. Pugatch, for United South and Eastern Tribes, Inc., as amicus curiae.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   LUCK, J.

“There are reasons to doubt the wisdom' of perpetuating the doctrine” of tribal immunity. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 758, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). It “can harm those who are unaware that they are dealing with a tribe, who do not know of tribal' immunity, or who have no choice in the matter, as in the case of tort victims.” Id. No one knows this more than Guy Lewis and Michael Tein. The Miccosukee Tribe of Indians of Florida, according to Lewis and Tein’s complaint, spent five years filing false lawsuits, suborning perjury, and obstructing justice, in an effort to damage' the attorneys’ finances, reputations, and law firm. Whatever its wisdom, tribal immunity endures, and Indian tribes are not subject to the civil jurisdiction of our courts absent a clear, explicit, and unmistakable waiver of tribal sovereign immunity or a congressional abrogation of that immunity. Because neither exception to tribal immunity has been established in this case, we reverse the trial court’s denial of the Miccosukee Tribe’s motion to dismiss.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Bermudez Wrongful Death Case. In 2000, the Bermudez family filed a wrongful. death action against Tammy Billie and Jimmie Bert, two members of the Micco-sukee Tribe, based on their involvement in a 1998 car accident in which Gloria Bermu-dez was killed and her husband and son were injured. The Tribe was not a party to the action. In 2005, Lewis and Tein were hired to take over Billie and Bert’s defense in the wrongful death action. Damages were awarded in 2009 in the amount of $3,177 million to the Bermudez family. Following entry of the 2009 civil judgment, the Bermudez family began collections proceedings . against Tammy Billie and Jimmy Bert; the family also sought to enforce the judgment against, the Tribe itself, even though .the Tribe was not a party to the suit, . .

In September 2011, Bernardo Roman, the Tribe’s new attorney, provided the Bermudez family attorney with copies of sixty-one checks and check stubs from the Tribe’s general account, payable to Lewis and Tein in the amount of -$3,111,567. By doing so, the Tribe falsely represented to the trial court that the Tribe paid for the defense of Tammie Billie and Jimmie Bert in the wrongful death action. (In fact; the Tribe loaned the money to Billie and Bert to pay for their attorney’s fees out of their quarterly dividends that all Tribe members receive.) Based on Roman’s actions, the Bermudez .attorney launched, what turned out to be, a false claim of perjury and fraud on the court against Lewis and Tein. During these proceedings, Roman filed a motion for protective order and to-quash a subpoena for deposition.

In Miccosukee Tribe of Indians of Florida v. Bermudez, 92 So.3d 232 (Fla. 3d DCA 2012), this court held that the Tribe and Roman’s conduct in providing the Ber-mudez attorney with the checks constituted a waiver of the Tribe’s sovereign immunity. This Court explained that:

[T]here can be no mistake about what occurred in our case. Mr. Roman, in an act approved by the Tribe, admittedly, has purposefully sought to participate in or influence a state court proceeding. We can conceive of no motive for the Tribe or Mr. Roman to have done so. The only plausible legal conclusion that can be drawn from the actions of Mr. Roman and the Tribe in this case is the one made by the trial court—the Tribe’s and Mr. Roman’s conduct constituted a clear, explicit, and unmistakable waiver of the Tribe’s claim to sovereign immunity.

Id. at 235. This Court further expressed bewilderment as to the purpose of the Tribe’s actions. Id. at 233 (“[F]or reasons mystifying to us ... [the Tribe] supplied plaintiffs counsel with copies of checks drawn on the Miccosukee Tribe General Account payable to Lewis Tein.”). After numerous hearings and discovery in the Bermudez proceedings, the trial court found that Lewis and Tein did not commit perjury and did not engage in fraud on the court or misconduct.

State Court Action. On April 2, 2012, the Tribe filed an action against Lewis and Tein in Miami-Dade circuit court, alleging malpractice, breach of fiduciary duty, fraud, fraud in the concealment, conspiracy to defraud, civil RICO conspiracy, civil racketeering, theft, and conversion. The trial court granted Lewis and Tein’s motion for summary judgment and, alternatively, dismissed the case for lack of subject matter jurisdiction because the complaint was predicated on an intra-tribal dispute. In Miccosukee Tribe of Indians of Florida v. Lewis, 165 So.3d 9 (Fla. 3d DCA 2015), this court affirmed the summary judgment because “the Tribe’s expert was unable to identify a single .invoice by the- Lawyers that he believed was fraudulent, illegal, or excessive.” Id. at 12. Subsequently, the trial court awarded Lewis and Tein reasonable attorney’s fees as a sanction against the Tribe. In its order the trial court expressly found that the Tribe knew the claims were unfounded and frivolous and that “[t]he Tribe and ■Roman filed this lawsuit in bad faith.”

Federal Court Action. On July-1, 2012, the Tribe filed an action against Lewis and Tein and. other parties in federal court, alleging, in part, federal racketeering, conspiracy to engage in racketeering, fraud, aiding and abetting fraud, state racketeering, and breach of fiduciary duty. See Miccosukee Tribe of Indians of Fla. v. Cypress, 975 F.Supp.2d 1298, 1301-02 (S.D. Fla. 2013). The federal court dismissed the lawsuit for lack of subject matter jurisdiction, id. at 1308, and the Eleventh Circuit Court of Appeals affirmed. See Miccosukee Tribe of Indians of Fla. v. Cypress, 814 F.3d 1202 (11th Cir. 2015). After a hearing on sanctions, the federal district court issued a written order sanctioning the Tribe and Roman in the amount of $975,750, and remarked that Roman’s “behavior [was] egregious and abhorrent.” See Miccosukee Tribe of Indians of Florida v. Cypress, No. 12-22439-CIV, 2015 WL 235433, at *19 (S.D. Fla. Jan. 16, 2015) (“Here, the wrongful conduct is the filing of the complaints with no reasonable factual basis to support their allegations”).

Second State Court Action. On November 16, 2013, the Tribe filed a second state court action, asserting essentially the same claims that were dismissed in federal court. On July 30, 2015, the trial court dismissed the second state court action based on res judicata grounds, stating that, “[a]t bottom, this case is simply another attempt to make the same claims that two prior judges have determined are factually baseless, or are outside the Court’s jurisdiction as tribal governance.” See Miccosukee Tribe of Indians of Fla. v. Cypress, No. 2013CA35936, 2015 WL 9438244, at *3 (Fla. 11th Cir. Ct. Jul. 30, 2015).

This Case. On August 22, 2016, Lewis and Tein filed a complaint against the Tribe, alleging one count of civil remedies for criminal practices pursuant to section 772.103(3), Florida Statutes, and four counts of malicious prosecution premised on the Bermudez wrongful death action (count two), the 2012 state court action (count three), the federal court action (count four), and the second state court action (count five). The complaint sought both economic and non-economic damages.

The Tribe filed a motion to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity. Lewis and Tein responded that the Tribe’s sovereign immunity waiver in the Bermudez case applied broadly to this case, too, and that, alternatively, the Tribe’s litigation conduct in knowingly filing frivolous lawsuits against Lewis and Tein waived the Tribe’s immunity.

The trial court denied the motion because, it concluded, the Bermudez decision found an explicit waiver of immunity, and the Tribe’s litigation conduct in the four prior cases “demonstrated a clear, explicit and unmistakable waiver of sovereign immunity with regard to this matter.” This appeal followed.

STANDARD OF REVIEW

We have jurisdiction to review appeals of non-final orders that determine, as a matter of law, a party is not entitled to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(C)(xi) (“Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... that, as a matter of law, a party is not entitled to qualified immunity.”). “The issue of sovereign immunity ... is a legal issue subject to a de novo standard of review.” Plancher v. UCF Athletics Ass’n, Inc., 175 So.3d 724, 725 n.3 (Fla. 2015); see also Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1285 (11th Cir. 2001) (“We review de novo the district court’s dismissal of a complaint for sovereign immunity.”).

DISCUSSION

The Tribe contends the trial court erred in concluding that it waived its immunity. First, the Tribe claims, its immunity waiver in Bermudez was limited to the issue in that case—the disclosure of the sixty-one checks and check stubs by the Tribe’s attorney—and did not extend beyond that to a separate lawsuit involving conduct over a five year period. Second, the Tribe argues, its litigation conduct in the first and second state court actions and the federal court action was not an express waiver of its tribal immunity.

“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Congressional waiver or abrogation of tribal' sovereign immunity must be unequivocal and does not arise by implication. Likewise, a waiver of tribal -immunity by a tribe must be clear.
“Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”

Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 358 (Fla. 2d DCA 2005) (Canady, J.) (citations omitted). This is a waiver case (there is no allegation that Congress abrogated the Tribe’s sovereign immunity), and for us to find the Tribe waived its immunity, the party claiming the waiver must “show a clear, express and unmistakable waiver of sovereign immunity by the Tribe.” Cupo v. Seminole Tribe of Fla., 860 So.2d 1078, 1079 (Fla. 1st DCA 2003).

1. The Limited Waiver in Bermudez

One of the basic principles of appellate law is that the holding of a decision cannot extend beyond the facts of the case. See Adams v. Aetna Cas. & Sur. Co., 574 So.2d 1142, 1153 (Fla. 1st DCA 1991) (“It is elementary that the holding in an appellate decision is limited to the actual facts recited in the opinion, so the supreme court’s statements hypothesizing about the absence of a written rejection, being contrary to the actual facts in this case, are pure' dictum.”); see also UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1293 (11th Cir. 2014) (“The holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision.” (quotation omitted)); Twyman v. Roell, 123 Fla. 2, 166 So. 215, 217 (1936) (“To be of value as a precedent, the questions raised by the pleadings and adjudicated in the case cited as a precedent must be in point with those presented in the. case at bar.”); Rey v. Philip Morris, Inc., 75 So.3d 378, 381 (Fla. 3d DCA 2011) (“No Florida appellate decision is authority on any question not raised and considered, although it may be involved in the facts of the case.” (quotation omitted)). Our conclusion in Bermudez— that “the Tribe’s and Mr. Roman’s conduct constituted a clear, explicit, and unmistakable waiver of the Tribe’s claim to sovereign immunity,” Bermudez, 92 So.3d at 235—is, likewise, limited to the facts of that case.

These are the facts of the Bermudez case. The Bermudezes sought to have the trial court reconsider its sanctions order based on new information they received showing that the Tribe had paid Lewis and Tein’s attorney’s fees. To their motion, the Bermudezes attached copies of sixty-one checks and check stubs showing payments from the Tribe to Lewis and Tein that the Bermudezes claimed they received from Roman, the Tribe’s attorney. In response, Lewis and Tein subpoenaed Roman for a deposition. Roman filed an emergency motion for protective order and to quash the subpoena based on tribal immunity.

. a., Response to Emergency Motions for Protective Order and to Quash Subpoenas. Lewis and Tein responded to Roman’s motion. In their response, Lewis and Tein said that if the Tribe authorized Roman to disclose the checks to the Bermudezes, then it “waived its sovereign immunity as to the subject matter of the act.” Roman’s “act” of giving the checks “waived sovereign immunity as to the subject matter of his action.” Lewis and Tein described the nature and limitation of the sovereign immunity waiver. “If [ ] Roman was actually working in his tribal capacity,” they wrote, “then he waived sovereign immunity as to the subject matter of his disclosure by injecting himself and the Tribe into this case.” Lewis and Tein, then, defined “the subject matter of the disclosure—the checks and the check stubs, as well as the underlying documents pertaining to them.”

Lewis and Tein relied, primarily, on' a federal district court decision out of Idaho, Knox v. United States Department of the Interior, No. 4:09-CV-162-BLW, 2012 WL 465585, at *1 (D. Idaho Feb. 13, 2012). Lewis and Tein, describing Knox, wrote that the tribal members in that case “had injected themselves into the litigation by seeking to file an amicus brief and declaration of the tribal officers concerning the Tribes’ gaming operation.” Lewis and Tein acknowledged" that “the filing of these documents did not waive the Tribes’ sovereign immunity generally.” However, quoting from the Knox case, Lewis and Tein wrote that by inserting' itself in the litigation, the Idaho tribe gave a limited waiver of-its immunity “to resist a deposition limited to the topics covered in their Declarations.” (This last part was bolded.) The Idaho federal court, the pair explained, “granted the plaintiffs the right to take deposition of the tribal members limited to the matters contained in the tribal official’s declarations.” In the. response’s conclusion section, Lewis and Tein sought the same limited relief as in Knox: to take the deposition of Roman in connection with the disclosure of the sixty-one checks and check stubs.

b. Hearing on Emergency Motions for Protective Order and to Quash Subpoenas. At the hearing on Roman’s -motion to quash,’ Lewi's and Tein made the same points. Citing again to the Knox case, they told the trial court:

' The [Knox] Court granted the motion to compel attendance of these [tribal] lawyers at the depositions to quote, “Answer questions limited to the matters relevant to the Contents of the declarations they filed in this case,” unquote.
That is'all we are seeking.

Lewis and Tein defined the scope of the inquiry to “questions about when [Roman] gave those records, what [he] said to the person [he] gave the records to, how [he] got the records, where [he] gave it to [the Bermudezes], [and his] communications with the [Bermudezes’ attorney].”

At the end of the hearing, the trial court explained that it was “inclined to say that there is a waiver by the production of those documents.” However, the trial court continued, “I think there is a limited issue here and I am limiting the scope of the discovery to those questions that [Lewis and Tein] just profferfed] that he wanted to ask,” “I’m going to find that there is sovereign immunity,” the trial court ruled, bút “I believe the actions of turning those checks over have at least resulted in a limited waiver of that immunity. So to that extent, I’m going to overrule [Roman’s] immunity objection.” After the trial court gave its oral ruling, Lewis and Tein clarified the scope of any appeal, “So the only thing that Your Honor is ruling on today .... is so it’s a narrow issue for the—the narrow issue for the Third DCA is [] Roman’s emergency motion.” The trial court’s written order denied Roman’s emergency motion to quash the subpoena, and confirmed its “find[ing] that Mr. Roman gave a limited waiver of sovereign immunity by disclosing checks and check stubs to plaintiffs’ counsel.”

c. Response to Miccosukee Tribe of Indians of Florida’s Petition for Writ of Certiorari, .As promised, the Tribe filed a petition for writ of certiorari with our court to quash the trial court’s order. In their response to the petition, Lewis and Tein summarized their position that “[e]ven if sovereign immunity applies, Mr. Roman gave a limited waiver, as the trial court found here, by voluntarily disclosing the checks and check stubs to [the Bermu-dezes].” Lewis and Tein described the. trial court’s order under review as finding “a limited waiver, thus permitting [Roman’s] deposition.” Lewis and Tein argued the trial court’s “decision to allow the deposition should be affirmed because ... Mr. Roman’s actions constituted a limited waiver of sovereign immunity.” Relying again on the Knox case, Lewis and Tein wrote that Roman “waived sovereign immunity as to the subject matter of his disclosure” and they “are permitted to take discovery from [ ] Roman regarding the subject matter of the disclosure—the checks and check stubs, as well as the underlying documentation pertaining to them,” Lewis and Tein concluded that the trial court was correct in “finding that [ ] Roman gave a limited waiver of sovereign immunity by injecting himself into the trial court litigation.”

d. The Bermudez Decision. In Bermu-dez, we described the Tribe’s petition as seeking “certiorari relief from an order denying the Tribe’s Motion for Protective Order and to Quash Subpoena for Deposition issued to” Roman, the Tribe’s attorney. Bermudez, 92 So.3d at 232. We, likewise, explained that “the inquiry desired to be made of [Roman] [was] solely whether Lewis Tein, PL’s legal bills were made by the Tribe or the individual defendants.” Id. at 234. It was in this context that we found “the Tribe’s and Mr. Roman’s conduct constituted a clear, explicit, and unmistakable waiver of the Tribe’s claim to sovereign immunity,” id at 235, and denied .the petition for writ of certiorari.

From this record, the extent of the Tribe’s immunity waiver in the Bermudez case is clear. The Tribe was immune from the Bermudez lawsuit but waived its immunity to a.limited, extent to allow Roman’s deposition about the disclosure of the sixty-one checks and check stubs. Lewis and Tein asked for a limited waiver, and described the waiver as allowing them to depose the Tribe’s attorney about the disclosure. The trial court granted a limited waiver on those terms. Lewis and Tein, in the Bermudez appeal, described the trial court’s order as a limited waiver in arguing to deny the Tribe’s certiorari petition.

We rely on the same Knox case that Lewis and Tein relied- on, and that we cited in Bermudez. In Knox, “the Tribes asked, and were granted, the right to file an.amicus brief accompanied by Declarations, [of three tribe members] that discussed the gribes’ gaming operations.” Knox, 2012 WL 465585, at *1. The federal district court concluded that although the filing of these declarations “did not waive the Tribes’ sovereign immunity generally, it did waive the right” of the three tribal executives “to resist a deposition limited to topics covered in théir Declarations.” Id. If the Tribe dips its toe in the litigation waters, the reasoning goes, it can be asked about its toe but not the whole body.

Here, too, Roman,.on the Tribe’s behalf, . dipped his toe in the ongoing Bermudez litigation by giving to the Bermudezes the checks and check stubs. As in Knox, the Tribe maintained its immunity generally, but waived it to the limited extent that its tribal attorney was subject to a deposition about the checks. That was the limited waiver advocated by Lewis and Tein, adopted by the trial court, and the subject of the petition for writ of certiorari that was before the court in Bermudez.

Importantly, filing the declarations in Knox, while a limited immunity waiver, did not open up the Idaho tribes to being hauled into court as defendants in that case. The federal district court had “already denied plaintiffs’ attempt to add the Tribes as defendants, holding that the Tribes were protected by sovereign immunity.” Id. The amicus brief and attached declarations didn’t open the sovereign immunity door any more than allowing the deposition of the tribal executives on the subject of the declarations.

Likewise in this case, the Bermudez limited immunity waiver did not open the door to the Miccosukee Tribe being hauled into court in the underlying Bermudez case, or any subsequent cases. The limited waiver in Bermudez opened the door a crack for the Roman deposition about the checks, but it didn’t -bust the door open to allow in everything that happened after the deposition, including the allegations of the Tribe’s perjury, obstruction of justice, and vexatious litigation in the five years that followed.

While participating in litigation is not a one-way street, as we explained in Bermu-dez, the length of the street extends only so far as the Tribe’s participation. In Knox, the Idaho tribes participated in the litigation to the extent they filed the ami-cus brief and attached the declarations of the three tribal executives. Tribal immunity was waived only to allow the plaintiffs in that case to depose the tribal executives about the substance of the declarations. In Bermudez, the Tribe participated by authorizing Roman to give the checks to the plaintiffs. Lewis and Tein argued for a limited immunity waiver to depose Roman about the checks and check stubs; the trial court granted the “limited waiver”; and we refused to quash the limited waiver by denying the petition for writ of certiorari.

Our holding in Bermudez could not have found a waiver of sovereign immunity beyond what the facts dictated, what Lewis and Tein requested, and what the trial court ordered. We did no more than deny the petition to review the trial court’s order allowing the Tribe’s attorney to be deposed about the checks and check stubs, and confirm the limited waiver of immunity. Reading Bermudez for a broader waiver of the Tribe’s immunity, as the trial court did here, is not supported by the facts of the Bermudez case, Lewis and Tein’s opposition to the motion to quash, the trial court’s order, and the parties’ arguments before this court.

2. The Tribe’s Litigation Conduct

In addition to the Bermudez limited waiver, the trial court found a clear, explicit, and unmistakable waiver of the Tribe’s sovereign immunity based on the Tribe’s litigation conduct during the five years after Bermudez—frivolous lawsuits, false statements, and obstruction of justice. The Tribe contends that bad litigation conduct in one case does not constitute an immunity waiver in a subsequent, related case.

We begin by noting that nothing in this opinion precludes a trial court from sanctioning a tribe for bad faith conduct or vexatious litigation in the case where the conduct occurred. Where the tribe chooses to litigate in our courts, it must follow the same rules that apply to all litigants: no lying; no destroying evidence; no filing claims without a basis in law or fact. Here, for example, the trial court sanctioned the Miccosukee Tribe in the first and second state court actions for claims that were “baseless” and brought in “bad faith.” Assuming the allegations in the complaint are true, the sanctions were entirely proper in the case where the Tribe was actively litigating.

This case presents a much narrower issue: Was the Miccosukee Tribe’s litigation in Bermudez, the first and second state court actions, and the federal court action a clear, explicit, and unmistakable waiver of its sovereign immunity, opening the door to the Tribe being sued by Lewis and Tein in a subsequent, related case for malicious prosecution and civil liability under section 772.103(3)? The general rule is that a tribe’s immunity waiver in litigating one ease does not waive immunity in subsequent cases. Two decisions of the federal appellate courts explain the point well.

In McClendon v. United States, 885 F.2d 627 (9th Cir. 1989), two couples sued the Colorado River Tribe for breach of a lease agreement. Id. at 628. The federal tidal court dismissed the case for lack of subject matter jurisdiction based on tribal sovereign immunity. Id. at 629. On appeal, the couples argued that the Tribe waived its immunity regarding its rights to the leased property because it had initiated and litigated an earlier case over the same property in 1972. Id. at 629-30. The Ninth Circuit affirmed, explaining that while “[initiation of a lawsuit necessarily establishes consent to the court’s adjudication of the merits of that particular controversy,” the “tribe’s waiver of sovereign immunity may be limited to the issues necessary to decide the action brought by the tribe; the waiver is not necessarily broad enough to encompass related matters, even if those matters arise from the same set of underlying facts.” Id. at 630. “The initiation of the suit, in itself,” the court continued, “does not manifest broad consent to suit over collateral issues.” Id. at 631. In response to the argument “that allowing the Tribe to sue without exposing itself to suit for subsequent related matters is unfair,” the Ninth Circuit, quoting from the United States Supreme Court, explained: “[t]he perceived inequities of permitting the Tribe to recover from a non-Indian for civil wrong in instances where a non-Indian allegedly may not recover against the Tribe simply must be accepted in view of the overriding federal and tribal interests in these circumstances.” Id. (quoting Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 893, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986)).

Likewise, in Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir. 1987), an oil company sued the tribe “seeking to pay adjusted bonuses to preserve its interests in certain oil and gas leases.” Id. at 538. The federal trial court dismissed the lawsuit “for lack of jurisdiction over the Tribe.” Id. The tribe’s earlier litigation over the same oil and gas leases, the court explained, was not “a sufficiently unequivocal expression of waiver in subsequent actions related to the same leases.” Id. at 539.

The United States Supreme Court has extended the general rule—that the tribe’s immunity waiver in one lawsuit does not open the door to waiver in a related suit—to compulsory counterclaims. That is, even if the tribe waives its immunity by suing a non-tribe party, the immunity waiver does not extend to the non-tribe’s compulsory counterclaims in the same litigation.

In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), the tribe.sued the state for ipjunc-tive relief prohibiting the state from collecting state cigarette taxes on tribe property. Id. at 507, 111 S.Ct. 905. The state counterclaimed for a declaratory judgment that its tax lien was enforceable and an injunction for the tribe to stop selling cigarettes without collecting state taxes. Id. at 507-08, 111 S.Ct. 905. The tribe moved to dismiss the counterclaims because it had not waived its sovereign immunity and could not be sued by the state. Id. at 508. 111 S.Ct. 905. The state responded that its counterclaims were “compulsory” under Federal Rule of Civil Procedure 13(a), which requires a party to bring a counterclaim that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Id. at 509, 111 S.Ct. 905; Fed. R. Civ. P. 13(a). Even where the tribe is affirmatively litigating based on the same facts as the opposing party’s claim, the Court held, “a tribe does not waive its sovereign immunity from actions that could not otherwise be brought against it merely because those actions were pleaded, in a counterclaim to an action filed by the tribe.” Citizen Band, 498 U.S. at 509, 111 S.Ct. 905.

The general rule still holds even if the tribe’s” sovereign immunity is deeply troubling to the courts,' and results in unfairness and inequity to the non-tribe party. See Lewis v. Norton, 424 F.3d 959, 963 (9th Cir. 2005) (“We agree with the district court’s conclusion that this case is deeply troubling on the level of fundamental substantive justice. Nevertheless, we are not in a position to modify well-settled doctrines of tribal sovereign immunity. This is a matter in the hands of a higher authority than our court.”); Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 781 (D.C. Cir. 1986) (“Immunity doctrines inevitably carry within them the seeds of occasional inequities; in this case the Wichitas have used the courts as both a sword! and shield. Nonetheless, the doctrine of tribal immunity reflects a societal decision that tribal autonomy predominates over other interests.”). For example, even where a tribe engages in vexatious and bad faith litigation in a prior lawsuit, the unfairness and inequity to the non-tribe, party still does not waive the tribe’s immunity in a subsequent case arising out of the same facts.

In Beecher v. Mohegan Tribe of Connecticut, 282 Conn. 130, 918 A.2d 880 (2007), the tribe sued one of its former employees to enjoin him “from communicating any confidential information pertaining” to the tribe. Id. at 883. In a subsequent lawsuit, the former employee, now the plaintiff, alleged the tribe’s earlier lawsuit was “vexatious,” in that it was “an attempt to extort money” and part of a' larger “threat[ ] to disclose confidential information” about the former employee. Id. at 882-83. The bad faith purpose of the tribe’s earlier lawsuit, the former employee alleged, was to “restrain [him] from making adverse comments [about the tribe] to relevant state authorities” while the tribe was “in need of regulatory approval in order to purchase various gambling enterprises in Pennsylvania.” Id. at 883. The tribe moved to dismiss the former employee’s lawsuit “because, absent eon-sent or' congressional abrogation, it enjoy[ed] sovereign immunity from suit in state court as a federally recognized Indian tribe,” Id The former employee “argued that the [tribe] had waived that immunity by having commenced the prior action against the.plaintiffs in state court.” Id. The Connecticut Supreme Court agreed with the tribe “that, in bringing the prior action in state court, it consented only to the adjudication of the merits of that action, and not to the adjudication of any subsequent state court claims.” Id. at 883-84.

“In its prior action,” the court explained, the tribe “necessarily consented to the state court adjudication of its affirmative claims, including any special defenses and recoupment counterclaims related there’ to.” Id. at 886. However, “[t]hat consent to the adjudication of its affirmative claims did not ,.. constitute a blanket waiver of its tribal sovereign immunity in the prior action, let alone in any subsequent action.” Id. Applied to the former employee’s allegations of vexatious litigation, threats, and extortion, the court held that his “present claim, which alleges that the defendant’s prior action constituted vexatious litigation, neither falls within any valid exception to nor constitutes a waiver of the broad tribal sovereign immunity federal law affords to Indian tribes.” Id. In response, the former employee, too, appealed to the court’s “reason and simple fairness.” Id. at 887, “Neither reason nor fairness,” the Connecticut Supreme Court concluded, “permits us to disregard the well established doctrine of tribal sovereign immunity,” Id. at 887.

We are persuaded by Beecher. First, its reasoning is consistent with the United States Supreme Court and federal appellate court cases that have applied immunity and found no waiver even where the results are deeply troubling, unjust, unfair, and inequitable. Beecher, likewise, is consistent with thé federal case law that the tribe’s immunity waiver in 'one suit does not waive immunity in a second suit arising otit of'the same subject matter. If the unfairness and inequity of a tribal employee negligently killing or battering someone is not enough to waive immunity, it follows that allegations of vexatious and bad faith litigation are also not enough to waive or abrogate it.

Second, we are persuaded by Beecher because we cannot' find a single case, and none has been cited to us, holding that litigation conduct in one lawsuit is a clear, explicit, and unmistakable waiver of tribal immunity in a subsequ’ent, related lawsuit. In all thé eases that have been brought to our attention, the Indian tribé explicitly waived immunity in that case, or the tribe’s - active participation in litigation waived immunity in the case in which they participated, and not a subsequent case. The tribe’s waiver in one case—whether by explicit waiver or active participation— does not represent a waiver in a subsequent case in the same litigation.

Applied here, the Miecosukee Tribe waived its sovereign immunity in Bermudez by participating in the litigation (giving the checks and check stubs to the Bermudezes), and in the first and second state court actions and the federal court action, by affirmatively litigating as the plaintiff. Because of the immunity waivers, the state and federal courts in those cases were entitled to sanction the Tribe for its litigation conduct—and they did. The immunity waivers in those four cases, however, do not extend to subsequent litigation, even if the subsequent case is related and arises out of the same facts. Where the prior litigation ends and the new case begins is the point that the waiver becomes unclear and not explicit. As in all the cases cited in footnote seven, the Tribe’s conduct and active participation opened itself up to litigation in the same cases in which the conduct occurred and the participation happened—the Bermudez case, the first and second state court actions, and the federal court action—but it did not act as a clear, explicit, and unmistakable waiver in a subsequent case on the same subject matter, like this one.

CONCLUSION

It is a “settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. 137, 147, 1 Cranch 137, 2 L.Ed. 60 (1803). Lewis and Tein had a right not to have their reputations ruined and their business destroyed by the Tribe. Like any injured party, if the allegations are true they should have proper redress for their injuries. But just as every right has its remedy, every rule has its exception. The exception here is sovereign immunity. Granting immunity to Indian tribes is a policy choice made by our elected representatives to further important federal and state interests. It is a choice to protect the tribes understanding that others may be injured and without a remedy. The immunity juice, our federal lawmakers have declared, is worth the squeeze. Still, some suffer from the squeezing, including car accident victims, beaten detainees, and Lewis and Tein. We can only respond by repeating the words of Justice O’Connor in the Three Affiliated Tribes case:

The perceived inequity of permitting the Tribe to recover from a non-Indian for civil wrongs in instances where a non-Indian allegedly may not recover against the Tribe simply must be accepted in view of the overriding federal and tribal interests in these circumstances, much in the same way that the perceived inequity of permitting the United States or North Dakota to sue in cases where they could not be sued as defendants because of their sovereign immunity also must be accepted.

Three Affiliated Tribes, 476 U.S. at 893, 106 S.Ct. 2305. Because the Tribe did not clearly, unequivocally, and unmistakably waive its immunity as to this case, we reverse the trial court’s order and remand for the trial court to grant the Tribe’s motion to dismiss on sovereign immunity grounds and dismiss the case as to the Tribe.

Reversed and remanded with instructions.

      . From 2005 to 2010, Lewis and Tein represented the Tribe and individual Tribe members in various légal’proceédings.

      . Following the appeal in this case, the trial court granted a motion to dismiss for failure to state a cause of action as to the malicious prosecution claim pertaining to the Bermudez wrongful death action (Count II).

      . Traditionally, the Florida courts had reviewed a trial court’s denial of a tribe's motion to dismiss based on sovereign immunity under its certiorari jurisdiction. See Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357 (Fla. 2d DCA 2005) (Canady, J.) (“We have previously exercised our common law certio-rari jurisdiction to review a trial court order denying a motion to dismiss where the motion was based on the assertion that the trial court lacked subject matter jurisdiction because the suit was barred by tribal sovereign immunity. Certiorari jurisdiction exists in this context because the inappropriate exercise of jurisdiction by a trial court over a sovereignly-im-mune tribe is an injury for which there is no adequate remedy on appeal." (citations omitted)). In 2014, however, the Florida Supreme Court added determinations by the trial court that a party is not entitled to sovereign immunity as one of the few non-final orders that are appealable. In re Amends. to Fla. R. App. P. 9.130, 151 So.3d 1217, 1217-18 (Fla. 2014) ("[W]e modify the Committee’s proposal to authorize appeals from nonfinal orders which determine, as a matter of law, that a party is not entitled to sovereign immunity.”). Because of this amendment, we review this case as an appeal of a non-final order rather than a petition for writ of certiorari.

      .Because "[tjribal immunity is a matter of federal law,” Kiowa Tribe, 523 U.S. at 756, 118 S.Ct. 1700, we rely on a number of federal court decisions throughout this opinion.

      . There is an exception for recoupment counterclaims arising out of the same facts as the underlying lawsuit, but the exception does not apply to Lewis and Tein’s claims (and they do not contend that it does).

      , See, e.g., Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (11th Cir. 2012) (finding tribal immunity where tribal employees knowingly overserved alcohol to casino patron and watched her get into her car intoxicated, resulting in the patron’s death in an automobile accident); Miller v. Coyhis, 877 F.Supp. 1262 (E.D. Wis. 1995) (finding tribal immunity where one tribal employee assaulted and battered another).

      . See Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995) (the “Tribe’s act of filing suit to quiet title in the disputed lands, combined with explicit language found in its complaint and its explicit waiver of immunity with respect to the counterclaims during the pendency of its suit, constitute^] an express and unequivocal waiver of the Tribe’s sovereign immunity”); Confederated Tribes of the Colville Reservation Tribal Credit v. White (In re White), 139 F.3d 1268, 1271 (9th Cir. 1998) (tribal agency filing collection action in the bankruptcy case waived immunity in that bankruptcy case); United States v. James, 980 F.2d 1314, 1320 (9th Cir. 1992) (tribe having affirmatively provided documents in case, it waived immunity with regard to those documents in that case); United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir. 1981) (tribe waived sovereign immunity by intervening in the case and consenting to. litigate all disputes in federal district court); Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria v. Ceiba Legal, LLP, 230 F.Supp.3d 1146 (N.D. Cal. 2017) (Indian.tribe sued under federal Lanham Act and was therefore liable for attorney’s fees resulting from the same litigation); United States v. Snowden, 879 F.Supp. 1054, 1056 (D. Or. 1995) (once tribe voluntarily appeared in court and complied with subpoena, it waive immunity with regard to those documents in the case in which the documents were subpoenaed); Cal. Valley Miwok Tribe v. Cal. Gambling Control Comm'n, No. D068909, 2016 WL 3448362, at *2 (Cal. Ct. App. June 16, 2016) (tribe liable to pay costs in lawsuit that it brought against state agency).


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    The BANK OF NEW YORK MELLON, etc., Appellant, v. Keith A. SIMPSON, Appellee
    No. 3D16-2445
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Rehearing Denied September 26, 2017
    Lapin & Leichtling, LLP and Adam B. Leichtling and Anne Janet Hernandez Anderson, for appellant.
    Jacobs Keeley, PLLO and Bruce Jacobs and Court Keeley, for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   SUAREZ, J.

The Bank of New York Mellon [“BNYM”] appeals from the lower court’s order vacating the December 6," 2013 Consent Final Judgment of Foreclosure, as well as the Settlement and Release Agreement between BNYM and homeowner Keith A. Simpson [“Simpson”], We reverse and remand for reinstatement of the Final Judgment.

Simpson defaulted on his-mortgage in 2011. In 2013 the parties entered into a Settlement and Release Agreement [SRA] by which the Simpsons agreed to enter into a Consent Final Judgment in exchange for an extended foreclosure sale date and BNYM’s waiver of its right to seek a deficiency judgment. The SRA in-eluded a full release of BNYM from any and all claims that could be asserted in the foreclosure action. The SRA required any modifications .or amendments to be made within 30 days;, none were. .

At the time that BNYM and Simpson entered into the SRA, the foreclosure trial was imminent, and Simpson’s attorney at the time, Ms, Barrow, was attempting to renegotiate the loan with the Bank. The record clearly shows that Attorney Barrow advised Simpson that he would not prevail at the foreclosure trial, and that a reasonable legal strategy would be to “buy time” in between the final judgment and foreclosure sale date in order to negotiate new loan terms. Simpson entered into the Settlement and Release with the Bank, secured a delayed sale date and in return the Bank agreed it would not seek a deficiency judgment against him'. The court rendered Final Consent Judgment in foreclosure.

Simpson subsequently sought to delay the sale date; to vacate the sale, then after many motions and a new attorney (his current attorney, Bruce Jacobs), sought to challenge the SRA and Final Consent Judgment via rule 1.540(b) for mistake, inadvertence or fraud. Simpson’s counsel now alleges that, at the time Simpson entered into the mortgage and note with BNYM, there was ongoing fraud committed by other banks; if he could have engaged in discovery during the foreclosure, he argued, he could have provided evidence of this. After hearing argument from both parties at the September 26, 2016 evidentiary hearing, the trial court agreed with Simpson’s counsel that the general allegations of fraud in the mortgage banking industry warranted vacating the SRA and Final Consent Judgment in this case, putting the parties back into their pre-foreclosure status. This appeal ensued.

The standard of review of a 9.130(a)(5) appeal of a motion filed under Florida Rule of Civil Procedure 1.540(b) is usually abuse of discretion. However,

The principles of law to be applied in an action to set aside a .contract for unilateral mistake or fraud are more stringent than the standards that have so far been established for the setting aside of a judgment pursuant to Rule 1.540, when the judgment entered pursuant to that rule is not based on a settlement.

Smiles v. Young, 271 So.2d 798, 801 (Fla. 3d DCA), cert. denied, 279 So.2d 305 (Fla. 1973). The record in the case before us shows that Simpson entered into the valid SRA with BNYM well before Simpson’s current counsel Jacobs was hired. Simpson argues on appeal that the SRA and Final Consent Judgment should be vacated because, if Simpson had' known before he entered into the SRA about his current counsel’s “investigations” into the general mortgage banking industry, he would never have signed it, but hired Jacobs instead. The' generalized allegations of fraudulent practices in the mortgage industry now asserted by Simpson in his Rule 1.540 motion, and here on appeal were known and could have been discovered by due diligence at the time the foreclosure suit was pending between 2011 and 2013. This Court has held to the principle that that Rule 1.540(b) does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence. See Miami Nat. Bank v. Sobel, 198 So.2d 841, 842 (Fla. 3d DCA 1967).

Furthermore, at the Rule 1.540 hearing Simpson’s counsel did not set forth any “clear and convincing” evidence that BNYM committed fraud in the underlying mortgage and note documents—there is no evidence in the record that this mortgage and note were fraudulently rendered, or that the assignments were manufactured or robo-signed. E.g., McGill v. Boulevard & Bay Land & Development Co., 100 Fla. 906, 130 So. 460 (1930) (“Where fraud is asserted as a defense or ground for relief against a mortgage, the burden of proving it is upon the party asserting the same, and the proof thereof must be clear and convincing....”). Merely invoking current counsel’s “investigations” into certain alleged fraudulent practices of the mortgage banking industry at that time does not meet the legal standards for evidence of fraud in this case. The record contains no specific allegations or any factual evidence that BNYM committed any fraud with'regard to Simpson’s mortgage. Additionally, Simpson did not present any evidence of duress in entering into the SRA. To establish duress, he must prove'that the SRA was effected involuntarily and.was not an exercise of free will, and that this condition of mind was caused by improper or coercive conduct by the other party. See City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981). Simpson (lid not prove either element of duress. To the contrary, testimony from Simpson and his then-attorney Ms. Barrow shows that Simpson’s decision to enter into the SRA and Consent Final Judgment was a tactical litigation strategy to buy more time for an extended sale date in order to seek a loan modification. Simpson did not argue that the SRA is ambiguous or unclear, and he did not ask to set the SRA aside. He did not file any affidavits; he has not preserved any argument regarding the SRA’s validity or interpretation,

Simpson’s motion to vacate the Final Judgment was based on allegations made by his current attorney that have no specific relation to the facts of this case, during a time when Simpson was not represented by that attorney, and are merely generalized complaints about the mortgage banking industry. The SRA was entered into by Simpson with full knowledge, and the releases therein are valid and effective to bar the claims he raised in the Motion to Vacate, including those generalized references to an “investigation of the mortgage banking industry” in which his current counsel is engaged. The issues Simpson now raises are - not valid bases under Rule 1.540 to relieve him from the Consent Final Judgment or from his agreements in the SRA. He ,cannot use the rule to allow him , to avoid the consequences of his decision to settle litigation, even if he regards it as a “bad" settlement in retrospect.

We therefore reverse the order on appeal and instruct the trial court on remand to deny Simpson’s amended Motion.to Vacate Final Judgment, direct the court to reinstate the SRA and,, Final Consent Judgment in foreclosure and grant BNYM’s Amended Motion to Enforce Order enforcing the parties’ Settlement Agreement and General Release of Claims.

      . Mr. Jacobs was not Simpson's attorney during the foreclosure proceedings.

      . The record shows that Simpson’s initial counsel in the foreclosure, Ms. Barrow, represented'her client competently, filed all necessary documents and pleadings, asserted valid defenses to foreclosure, and negotiated effectively for her client given his circumstances at the time. Simpson now argues that Barrow failed to plead fraud or mistake in the foreclosure proceedings. Failure to plead available defenses, however, is not a basis for relief from a judgment or decree under Rule 1.540(b). Attorney Barrow did plead lack of standing by challenging the assignments. Furthermore, discovery was .ongoing when Simpson made the decision to end the litigation by settling. There is ho record showing of ineffective or incompetent representation as Simpson’s current attorney Jacobs suggests of Ms. Barrow on appeal. Simpson was competently represented by counsel, had full access to- discovery (in fact, the record reveals that he made full use of his discovery rights up until deciding to enter into the SRÁ), and he had every right to reject the settlement offer until he could adequately 'explore his defenses. ■


text:
    PRIORITY MEDICAL REHABILITATION INC., a/a/o Maykel Coroas, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D17-915
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017
    Rehearing Denied September 26, 2017

      Christian Carrazana, P.A. and Christian Carrazana, for petitioner.
    Michael J. Neimand, House Counsel, for respondent.
    Before SUAREZ, SCALES, and LUCK, JJ.
   SUAREZ, J.

Priority Medical Rehabilitation Inc. [“Priority Medical”] petitions this Court for a second-tier writ of certiorari to quash the order of the appellate division of the Eleventh Judicial Circuit which affirmed summary judgment in favor of United Automobile Insurance Company [“United Auto”] in this PIP matter. Because we find that the appellate division provided due process and applied the correct law, we deny the petition.

Factual Background

United Auto issued a PIP policy to Pedro Coroas. After the policy was issued, Coroas’s son was involved in an accident and sustained injuries while driving the insured vehicle. Priority provided treatment to the son in exchange for assignment of the PIP benefits. After Priority’s claim was made for treatment of the son, United Auto discovered that the son had not been disclosed as a member of the household at the time the policy was applied for. United Auto did not rescind the policy or refund the premium paid. United paid the collision claim for repair of the vehicle but declined to pay the PIP claim submitted by Priority Medical.

Priority Medical filed a breach of contract claim and United Auto defended, in part, by arguing that liability was barred under Florida Statute Section 627.409 (2004) because the son had not been listed on the application and the omission was material.

After proceedings which are irrelevant here, the trial court entered summary judgment in favor of United Auto. Priority Medical appealed to the Circuit Court Appellate Division, which affirmed per cu-riam.

In granting summary judgment for United Auto, the trial court found that this case was “almost identical” to Martinez v. General Ins. Co., 483 So.2d 892, 894 (Fla. 3d DCA 1986). In Martinez, Mrs. Martinez’ son was living in her household at the same time she submitted her application to renew her automobile insurance. She failed to list her son on the application. He was then involved in an accident while driving one of the insured vehicles. This Court found that the insured’s omission of her son’s name from an' application for renewal of automobile insurance

did not serve to vitiate the policy from its inception for claims unrelated to the omission. The failure to list [the son] on the renewal application precluded coverage only for a claim arising out of [the son’s] driving a vehicle insured under the policy. [The insured] herself was covered throughout the entire period that the policy was in force, and it is this coverage, and no other, that was acknowledged by the insurer when it retained the premium.

Applicable Law

A district court’s standard of review of a petition for second tier certiorari is very, limited. “[W]hen a district court considers a petition for second-tier certio-rari review, the ‘inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,’ or, as otherwise stated, departed from the essential requirements of law.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995)); accord Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) (“[T]he proper inquiry under certiorari review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law.”). A second-tier certiorari proceeding “cannot be used to grant a second appeal to correct the existence of mere legal error,” and “a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Custer, 62 So.3d at 1092-93; accord Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003); Ivey, 774 So.2d at 682, 683 (stating that a court’s misapplication of the correct law or “erroneous interpretation of [a] law” is not a departure from the essential requirements of the law).

Priority Medical does not argue that it was not afforded procedural due process. We concluded that the appellate division, as well as the trial court, applied the correct law and did not depart from any essential requirement of law. The trial court was correct in finding that this matter is controlled by Martinez v. General Ins. Co., 483 So.2d 892, 894 (Fla. 3d DCA 1986). United Auto was not required to return the premium, where the coverage continues for the named insured. On the other' hand, it may deny coverage for the loss "claimed as the loss was a result of a risk United did not assume under the contract because of an omission in the application process. Petition for second tier cer-tiorari is denied.


author: WINSOR, J.

text:
    Billy Joe PITTS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2156
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017.
    Rehearing Denied October 16, 2017

      Andy Thomas, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

While driving a 1997 Isuzu Rodeo, Billy Joe Pitts struck and killed a woman just outside Pensacola’s Relax Inn. Pitts was convicted of driving with a suspended license (the felony variety) and leaving the scene of a crash involving death (also a felony). This is his appeal.

Pitts’s version of events shifted over time. According to police, Pitts initially denied involvement altogether, saying someone took the car without his knowledge. Pitts later admitted he was in the Isuzu that night, but insisted a man named Stefan was driving. And at some point, Pitts acknowledged he knew the Isuzu hit something, but he said he thought it was a dog—not a human being.

But there was significant evidence that Pitts was behind the wheel when the Isuzu killed Betty Anne McNeely, and the jury rejected Pitts’s defense. The jury convicted him on both counts, and the court sentenced him to twenty years for leaving the scene and five years for driving with a suspended license. Pitts now raises four issues on appeal. We address them in turn.

I.

Pitts first argues that the trial court should have severed the two charges. His lawyer argued below that Pitts would be prejudiced if the charges were tried together because the State would introduce Pitts’s driving record to support the suspended-license charge and that record would indicate suspension for “drug issues.” But the State responded that the documents it would introduce said nothing about drugs; they only showed that Pitts’s license was suspended and when the suspension began. The trial court denied Pitts’s motion to sever. We review only for an abuse of discretion. See Smithers v. State, 826 So.2d 916, 923 (Fla. 2002).

Pitts’s argument on appeal is a bit different than his argument below. Rather than argue about drug offenses specifically, he now argues that evidence about his license suspension implied his license was suspended for life or for a very serious offense. This, he argues, shows sufficient prejudice to warrant severance. See Fla. R. Crim. P. 3.152(a)(2)(A) (providing that court should grant severance if “appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense”). Regardless of whether Pitts preserved this broader argument, we reject it.

Two or more offenses may be joined if they are based on the same act or transaction, or two or more connected acts or transactions. See Fla. R. Crim. P. 3.150(a). Here, the two acts were connected. Pitts left the scene while driving with a suspended license. Plus, the status of Pitts’s license was relevant to Pitts’s motive in fleeing. See Rutherford v. State, 902 So.2d 211, 214 (Fla. 4th DCA 2005) (finding join-der proper when motive for some offenses was to avoid apprehension for other, earlier offenses); see also Fletcher v. State, 168 So.3d 186, 203 (Fla. 2015) (finding consolidation appropriate when a causal link exists between offenses).

Next, Pitts has failed to demonstrate that severance was necessary for a fair determination of his guilt or innocence on either charge. This is not like Estrich v. State, 995 So.2d 613, 618 (Fla. 4th DCA 2008), for example, in which the court found a marijuana-possession charge should be severed from a DUI manslaughter charge when marijuana use did not contribute to the defendant’s impairment at the time of the accident. In Pitts’s case, the jury never heard anything about drug offenses; it only heard evidence regarding the crash and the fact that Pitts’s license was suspended. And as already noted, evidence of Pitts’s suspended license was relevant to the charge of fleeing the scene because it showed an additional motive to flee. It therefore would have been admissible in both trials had the charges been severed. Cf. Fotopoulos v. State, 608 So.2d 784, 790 (Fla. 1992). The trial court did not abuse its discretion.

II.

Pitts next argues that the trial court should have granted his motion for judgment of acquittal because the State failed to refute his reasonable theory of innocence. See Thorp v. State, 777 So.2d 385, 389 (Fla. 2000) (noting circumstantial-proof standard). We review this claim de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002).

A driver who willfully leaves the scene of an accident involving death commits a felony. § 316.027(2)(c), Fla. Stat. (2014). A driver is not guilty unless he had actual knowledge there was a crash and knew—or should have known from the nature of the accident—that there was a resulting injury or death. State v. Dorsett, 158 So.3d 557, 560 (Fla. 2015); State v. Mancuso, 652 So.2d 370, 372 (Fla. 1995).

The theory of innocence Pitts asserts on appeal is that he thought he hit a dog, meaning he was unaware that he hit-much less killed—a person. But below, in moving for a judgment of acquittal, Pitts argued a theory of innocence that someone else was driving the Isuzu. Even if Pitts could concoct a new theory of innocence here (and he cannot, see, e.g., Newsome v. State, 199 So.3d 510, 513 (Fla. 1st DCA 2016) (“[I]n moving for a judgment of acquittal, a defendant must ... outline his or her theory of defense and explain why it is not inconsistent with the circumstantial evidence.”)), it would not help Pitts: There was sufficient evidence below to refute both theories.

As to the theory that someone else was driving, the State presented evidence that Pitts admitted driving, that his DNA was on the steering wheel, and that he became hysterical the following day when confronted with the Isuzu’s damage. As to the theory that he thought it was just a dog— that he didn’t know someone had been killed or seriously injured—the State presented evidence of the nature of the vehicle damage, which is enough to establish that he should have known there was serious injury. See K.W. v. State, 78 So.3d 74, 76 (Fla. 2d DCA 2012) (citing Williams v. State, 732 So.2d 431, 432 (Fla. 2d DCA 1999)). There was also evidence that the victim was standing when struck, rolled over the hood, and impacted the windshield. This evidence further supports a finding that Pitts—at the very least— should have known the victim was injured. The trial court got it right in denying the motion for judgment of acquittal.

HI.

Pitts next claims the trial court should have excluded evidence of his son’s hearsay statements. Pitts’s former girlfriend (his son’s mother) testified that the son woke her and Pitts up, screaming that something had happened to the Isuzu. The former girlfriend further testified that Pitts responded with shock, placing his hands on his head, but saying it was not he who drove the truck. Pitts made a hearsay objection, and the State argued that the son’s statement was admissible either as an excited utterance (and therefore an exception to the hearsay rule, . see §■ 90.803(2), Fla. Stat. (2015)).or to.show Pitts’s reaction (and therefore not hearsay at all). The trial court overruled the objection.

We review the court’s evidentia-ry decision only for an abuse of discretion. See Frances v. State, 970 So.2d 806, 814 (Fla. 2007). Here, there was no abuse of discretion. An out-of-court statement offered for some purpose other than its truth is not hearsay and is generally admissible if relevant to a material issue in the case. Penalver v. State, 926 So.2d 1118, 1132 (Fla. 2006). If a statement is offered to show the effect on the listener rather than the truth of the statement, as was the case in this instance, it is not hearsay. See Blackwood v. State, 777 So.2d 399, 407 (Fla. 2000); Breedlove v. State, 413 So.2d 1, 7 (Fla. 1982); Jenkins v. State, 189 So.3d 866, 869-70 (Fla. 4th DCA 2015); Eugene v. State, 53 So.3d 1104, 1109 (Fla. 4th DCA 2011); Krampert v. State, 13 So.3d 170, 174 (Fla. 2d DCA 2009); Miller v. State, 870 So.2d 15, 17 (Fla. 2d DCA 2003). Pitts’s response to an allegation that he killed someone is relevant, so there was no error in admitting the testimony.

IV.

Finally, Pitts claims the trial court erred by allowing the State to introduce evidence of the former girlfriend’s prior inconsistent statements. At trial, the prosecutor asked the former girlfriend if Pitts told her not to report the crash to keep him out of trouble. The former girlfriend unequivocally denied'it. The State subsequently called the investigating officer and asked what the former girlfriend had told him. Over Pitts’s objection, the officer'testified that the former 'girlfriend said Pitts had instructed her not to tell the police. This testimony was admissible because it directly contradicted the former girlfriend’s testimony. ’See § 90.608(1), Fla. Stat. (2015) (providing that' any party may attack the credibility of a witness by “[i]n-troducing statements of the witness which are inconsistent with the witnéss’s present testimony”); Wilcox v. State, 143 So.3d 359, 383 (Fla. 2014) (“To be inconsistent, a prior statement must either directly contradict or materially differ from the testimony presented during trial.” (citation omitted)); § 90.614(2), Fla. Stat. (2015) (providing that extrinsic evidence óf a pri- or inconsistent statement is admissible after a witness “denies making or does hot distinctly admit making” the statement); see also Monday v. State, 792 So.2d 1278, 1281 (Fla. 1st DCA 2001) (noting that a statement. offered to impeach a witness is not hearsay, because it is not offered to prove the truth of the matter asserted).

AFFIRMED.

B.L. THOMAS, C.J., and OSTERHAUS, J., CONCUR.

      . Pitts told officers he did not know Stefan's last name and had no way of finding him.

      . Because we conclude this was not hearsay, we need not consider the State’s argument about' the excited-utterance hearsay exception.

      . Pitts also claims the court erred in allowing the investigating officer to testify regarding the son’s statement. At trial, the officer testified that he interviewed the former girlfriend and she told him about the son’s accusation. However, unlike when the former girlfriend testified, defense counsel failed to object when the officer testified about this subject. Without an objection, the issue is not preserved for review. Tillman v. State, 471 So.2d 32, 35 (Fla. 1985).


author: . ROBERTS, J. BILBREY, J.,

text:
    Anthony S. ASSANTI, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1410
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Rehearing Denied October 16, 2017
    Gilbert A, Schaffnit of The Law Offices of Gilbert A. Schaffnit, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Donna A. Gerace, Assistant'Attorneys General, Tallahassee, for Appellee.
   . ROBERTS, J.

In case 2012-CF-430, the appellant, Anthony Assanti, was charged with one count of traveling to meet a minor to engage in sexual conduct, contrary to section 847.0135(4)(a), Florida Statutes (2012) (Count I), and one count of solicitation of a child for unlawful sexual conduct after using computer services, contrary to section 847.0135(3)(a), Florida Statutes (2012) (Count II). Count I was alleged to have occurred “from, on or between January 30, 2012 through, on or about January 31, 2012.” Count II was alleged to have occurred “from, on or between January 23, 2012 through, on, or about January 30, 2012.” In case 2012-CF-462, Assanti was charged with one count of improper use of computer services to solicit a child, contrary to section 847.0135(3), Florida Statutes (2012). The two cases were consolidated for jury trial, and Assanti was convicted as charged.

On appeal, Assanti raises four issues. We affirm the first three issues without further comment, which means we affirm his conviction and sentence in case 2012-CF-462. In his fourth issue, Assanti argues his conviction for solicitation of a child for unlawful sexual conduct after using computer services should be vacated because it violates his constitutional rights against double jeopardy. Because Assanti’s convictions for solicitation and travel did not arise from the same criminal episode, we also affirm his convictions and sentence in case 2012-CF-430.

On January 23, 2012, Assanti created an advertisement on an Internet dating site that was answered by an undercover officer posing as a fourteen-year-old girl named “Ashley.” The officer asked Assanti if fourteen was too young for him, to which Assanti did not directly answer, but responded the following day with a sexually explicit message. The two communicated via email throughout the next two days in which Assanti suggested meeting, so that he could give “Ashley” a “lesson.” On January 25, Assanti emailed asking for “Ashley’s” phone number to arrange a meeting for their first lesson. There was no response, and on January 27, Assanti emailed again asking for her number and trying to arrange a meeting. “Ashley” responded that she was still interested and asked for details. The email communication then lapsed for two days until Assanti reinitiated contact via email on January 30. Assanti also called “Ashley” several times on January 30. In the renewed exchange on January 30, Assanti offered to buy “Ashley” drinks and teach her a “lesson,” discussed oral sex, and arranged a meeting place. Assanti began to travel in the late evening of January 30 and was arrested with condoms in his pocket in the early hours of January 31 at the arranged meeting spot, which was the undercover operation’s target house.

Subsequent to Assanti’s sentencing, the Florida Supreme Court decided State v. Shelley, 176 So.3d 914, 918 (Fla. 2015), holding dual convictions for traveling to meet a minor under section 847.0135(4)(b) and unlawful use of computer services to solicit under section 847.0135(3)(b) violated double jeopardy. The reasoning of Shelley equally applies to violations of sections 847.0135(4)(a) and (3)(a). Lashley v. State, 194 So.3d 1084, 1085 (Fla. 1st DCA 2016). Assanti argues that his conviction for solicitation should be vacated under Shelley. The State argues that Shelley is not controlling in the instant case because the convictions are based on separate and distinct acts. We agree with the State.

On motion for rehearing en banc in Lee v. State, 223 So.3d 342, 2017 WL 2374401 (Fla. 1st DCA June 1, 2017), we considered a similar double jeopardy issue. Lee involved charges of traveling to meet a minor to engage in sexual conduct, unlawful use of a two-way communications device to facilitate the commission of a felony, and using a computer to facilitate or solicit the sexual conduct of a child. Id. at 346. As in the instant case, Lee unsuccessfully moved to dismiss the charges on double jeopardy grounds. Id. Lee’s case proceeded to trial, during which the State introduced evidence of an eleven-day span of communication between Lee and the victim, an undercover agent posing as a fourteen-year-old boy. Id. On the twelfth day, Lee asked the victim to meet in person and was arrested when he arrived at the arranged meeting spot. Id On appeal, Lee argued that the decision in Shelley compelled reversal of his solicitation conviction on double jeopardy grounds. In Lee, the majority opinion first recognized that the burden of proof was on Lee. Lee, 223 So.3d at 348. Similarly here, despite the denial of his motion to dismiss, Assanti has the burden to demonstrate that his convictions violate double jeopardy.

Lee clearly set forth the three-step test for analyzing double jeopardy claims alleging multiple punishments. Id. A negative determination in the first two steps—determination of whether the acts were within the same criminal episode and whether the convictions were predicated on distinct acts—is a necessary precursor to reaching the final step, the same elements test, discussed fully in Shelley. Lee, 223 So.3d at 348-60. The first two steps require the reviewing court to examine the entire record, including all evidence admitted at trial, whereas the reviewing court’s analysis under the third step is limited to examining the elements of the statute “without regard to the accusatory pleading or proof adduced at trial.” Id. at 350. After clearly distilling the double jeopardy analysis down to its essential parts, Lee recognized that the holding in Shelley that has since been relied upon by numerous defendants seeking double jeopardy relief, is that “ ‘dual convictions for solicitation and traveling after solicitation’ violate double jeopardy when they are ‘based on the same conduct.”’ Id. (emphasis added). Therefore, the majority recognized that Shelley was limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act. Because the record supported numerous underlying acts of solicitation to support Lee’s three convictions, his convictions were affirmed. Id. at 367.

Much like Lee, the record here supports numerous acts of solicitation to support the Assanti’s two convictions. Here, the solicitation was charged in a date range from January 23 to 30. The traveling was. charged only on January 30 and into the early hours of January 31. There were multiple breaks in the communication chain between January 23 and 30. Particularly, there was a two-day break where there was no communication at all. The State presented evidence of multiple acts of solicitation occurring within the date range, both before and after the two-day break in communication. The breaks of hours and. days between the communications afforded Assanti an opportunity- to pause, reflect, and form a new criminal intent. Id. at 649. The information here charged, the two offenses on different dates, and - the evidence supports the State’s contention that the two charges ■vyere not based on the-same conduct. The evidence supporting the solicitation charge in Count :II .was not the same as the evidence supporting the underlying, solicitation for the traveling charge in Count I. Under the rationale in Lee, we find the two convictions are not based on the same conduct to make this a Shelley-type case. As such, we find no violation of double jeopardy. We affirm Assanti’s judgment and sentence in all respects.

.AFFIRMED.

WÉTHERELL, J., CONCURS; BILBREY, J., CONCURS IN RESULT WITH OPINION.

BILBREY, J.,

concurs in result.

If not bound by Lee v. State, 223 So.3d 342, 2017 WL 2374401 (Fla. 1st DCA June 1, 2017) (en banc), I would respectfully adhere to my dissent and Judge Makar’s dissent in Lee and would find a double jeopardy violation here. I would submit that the burden of proof when double jeopardy is properly raised in the trial court' should be on the State. I would also respectfully submit that we should look to the allegations in the information where, as here, the proof at trial was not clear that the acts forming the basis of the charges were distinct. Traveling to meet a minor to engage in sexual conduct in violation of section 847.0135(4)(a), Florida Statutes, and solicitation of a child for unlawful sexual conduct after using computer services in violation of 847.0135(3)(a), are “the same for purposes of the Blockburger same-elements test.” State v. Shelley, 176 So.3d 914, 919 (Fla. 2015). Because of how the case was charged, and without a special verdict form, we do not know that the jury did not use the same act of solicitation to convict the Appellant for violating section 847.0135(3)(a) and to satisfy the solicitation ' element under section 847.0135(4)(a). However, I am now bound by the en banc majority’s decision in Lee. See Sturdivant v. State, 84 So.3d 1044 (Fla. 1st DCA 2010), rev’d on other grounds, 94 So.3d 434 (Fla. 2012). I therefore concur in the majority opinion to affirm on all grounds ineluding the claimed double jeopardy violation.

      . A transcript of the all of the emails was admitted into evidence.

      . Assanti's ore tenus motion to dismiss on double jeopardy grounds made prior to trial was denied.

      . Lee also argued for reversal of his conviction for unlawful use of a two-way communications device under Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015) (holding dual convictions for traveling and unlawful use of a two-way communications device violate double jeopardy). Assanti was not charged with unlawful use of a two-way commutations device; therefore, this portion of Lee will not be discussed.

      . The double jeopardy issue concerns only case 2012-CF-430. The conviction in case 20Í2-CF-462 was not challenged on appeal based on double jeopardy grounds.


text:
    Frank ORTIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0966
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Rehearing Denied September 20, 2017

      Frank Ortiz, in proper person. ■ -
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   LUCK, J.

In trial court case numbers 04-916 and 05-28921B, as a result of a February 2016 negotiated plea, appellant Frank Ortiz was sentenced to seventy-three months in state prison for violating his probation after testing positive for using a controlled substance. In his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850(a), Ortiz claimed his trial counsel was constitutionally ineffective because he: (1) did not advise Ortiz about the gain time and conditional release consequences of his plea; and (2) did not present mitigating evidence at the sentencing hearing. Ortiz appeals the trial court’s summary denial of his post-conviction motion. We affirm.

Ortiz, first, claims that his trial counsel was ineffective because he failed to advise that Ortiz would be subject to forfeiture of gain time and the conditional release program as a consequence of the negotiated plea. “Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea. ... [N]either the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.” State v. Rodriguez, 990 So.2d 600, 606-07 (Fla. 3d DCA 2008) (quotation omitted). As we have explained:

While there exists case law affording a defendant relief based on misinformation with respect to a plea, we have found no cases which require that defense counsel advise a defendant of all possible reductions in prison time for which he may be entitled and, furthermore, there is no requirement that a defendant be given a specifically quantified amount of time that he is expected to serve in prison.

Id. Post-conviction “relief is not warranted,” that is, “where counsel merely fails to inform a client about the various ramifications of gain time as opposed to volunteering incorrect information.” Henderson v. State, 626 So.2d 310, 311 (Fla. 3d DCA 1993). Here, Ortiz alleged only that his trial counsel failed to advise him of the gain time and conditional release consequences of his plea; he did not allege that trial counsel gave him incorrect advice. This makes all the difference because absent misadvise or misinformation trial counsel is not required to advise a defendant about potential post-sentencing reductions in his prison time. Ortiz’s trial counsel did not provide ineffective assistance in failing to advise Ortiz about the collateral gain time and conditional release consequences of the negotiated plea.

Ortiz, also, claims that his trial counsel was ineffective because he did not introduce mitigating evidence at his sentencing hearing about his education, drug treatment, employment, and mental illness. We considered a similar claim in Callaway v. State, 202 So.3d 901 (Fla. 3d DCA 2016). There, the defendant claimed his trial court was ineffective for waiving a presentence evaluation, which would have had information about the defendant’s background, without the defendant’s knowledge or consent. Id. at 902, 904-05. We affirmed the trial court’s denial of this claim because

Callaway has not alleged, and the record does not demonstrate, any prejudice flowing from the failure to request a presentence investigation where Calla-way was sentenced according to a plea agreement he bargained for, rather than as a result of a trial or an open plea to the court and a sentencing hearing where the trial court is asked to consider aggravating and mitigating circumstances when determining what sentence to impose after a finding of guilt.

Id. at 905. Here, too, Ortiz was sentenced as part of a negotiated plea rather than as part of an open plea or after a trial where the trial court would consider aggravating and mitigating circumstances. Ortiz was not prejudiced by the failure to investigate and introduce mitigating evidence because he was given exactly what he bargained for. Mitigating evidence introduced by his trial counsel, therefore, would not have affected the outcome.

The trial court properly denied Ortiz’s motion for post-conviction relief.

Affirmed.

      . Although his post-conviction motion and notice of appeal included trial court case numbers 03-16617 and 09-31795, Ortiz was not on probation, and was not sentenced in February 2016, in those cases. The sentences in trial court case numbers 03-16617 and 09-31795 had expired years earlier. Because Ortiz's claims are directed at trial counsel's errors as part of the February 2016 probation sentence, and that sentence did not include trial court case numbers 03-16617 and 09-31795, we affirm the summary denial of Ortiz's post-conviction motion as to those two cases.


author: LAGOA, J.

text:
    PLATINUM LUXURY AUCTIONS, LLC, Trayor Lesnock, and Kevin Vaughn, Appellants, v. CONCIERGE AUCTIONS, LLC, Appellee.
    No. 3D16-1958
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Rehearing Denied September 27, 2017

      Tripp Scott, P.A,, and Ryan H. Lehrer and Paul 0. Lopez (Port Lauderdale), for appellants.
    Carey Rodriguez Milian Gonya, LLP, and Patrick E. Gonya, Jr., for appellee.
    Before LAGOA, SALTER, and FERNANDEZ, JJ,
   LAGOA, J.

The appellants, Platinum Luxury Auctions, LLC (“PLA”), .Trayor Lesnock (“Lesnock”), and Kevin Vaughn (“Vaughn”) (collectively, the “Appellants”), appeal the trial court’s order granting ap-pellee, Concierge Auctions, LLC’s (“Concierge”), motion to enforce settlement agreement. Because the trial court erred in finding that Appellants violated the Ñon-Disparagement provision of the parties’ Confidential Settlement Agreement, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

PLA and Concierge are acknowledged rivals in the auction business. On April 1, 2014, Concierge filed suit against PLA, Lesnock, and Vaughn alleging claims for, among other things, defamation, violation of the Florida Unfair and Deceptive Trade Practices Act, tortious interference with business relationships, and conspiracy. Concierge alleged that Lesnock, using a pseudonym, posted negative 'comments about Concierge in the comments section of a January 22, 2014, online magazine article about-Concierge’s unsuccessful auction of a home in Highland Park, Illinois. Lesnock admitted in his deposition testimony that he was the author of the negative comments, which were posted on or about January 27, 2014 (the “January 27 blog post”).

On September 5, 2014, Concierge, PLA, Lesnock, and Vaughn executed a Confidential Settlement Agreement (the “Settlement Agreement”). The Settlement Agreement set forth in detail the contents of Lesnock’s January 27 blog post. Under the terms of the Settlement Agreement, the Appellants agreed to publish, within fifteen days from the execution of the Settlement Agreement, a retraction of the January 27 blog post. In accordance with these terms, on September 14, 2014, the Appellants published a retraction of the January 27 blog post on the relevant magazine’s website.

The Settlement Agreement also contained a provision (the “Non-Disparagement Provision”) in which the Appellants agreed not to make any defamatory, disparaging, or critical statements, written or verbal, about Concierge after execution of the Settlement Agreement. The Non-Disparagement Provision states, in pertinent part:

3. Non-Disparagement.
a. Defendants acknowledge and agree that the professional, business and personal reputations of Plaintiff and its employees, directors, and officers are important and should not be impaired by Defendants after this Agreement is executed. Therefore, Defendants agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Plaintiff, its employees, directors, and officers ....

. (emphasis added).

Shortly thereafter, the Appellants and Concierge filed a joint stipulation of dismissal with prejudice. On March 30, 2016, the trial court entered an Agreed Order Approving Joint Stipulation of Dismissal with Prejudice dismissing the case with prejudice and specifically retaining jurisdiction “to enforce the terms of the confidential settlement agreement executed between the parties dated September 5, 2014.”

On April 21, 2016, Concierge filed a Motion to Enforce Settlement Agreement, claiming that PLA and Lesnock were in violation of the Non-Disparagement Provision because a January 2014 online article (the “January 2014 online article”) was “available online and accessible” on two websites operated and controlled by PLA and Lesnock. Concierge claimed that the January 2014 online article criticized and disparaged Concierge’s involvement in the same auction at issue in the January 27 blog post. Concierge argued that the January 2014 online article “indisputably violates the Non-Disparagement Provision,” and sought an order directing PLA, and Lesnock to “take down” the January 2014 online article from their websites.

In their Response to the Motion to Enforce Settlement Agreement, PLA and Lesnock argued that the Non-Disparagement Provision does not require the retraction of statements made prior to the time the parties entered into the Settlement Agreement. PLA and Lesnock relied on the fact that the January 2014 online article was written and posted nine months before the parties executed the Settlement Agreement on September 5, 2014, and that it was not included in the-terms of the Settlement Agreement.

PLA and Lesnock also asserted that Concierge knew about the January 2014 online article at the time the parties executed the Settlement Agreement, but chose to not include the article as part of the settlement terms, which only required the retraction of the January '27 blog post. PLA and Lesnock supported their Response with Lesnock’s affidavit in which Lesnock attested that the January 2014 online article “was one of the topics raised by [Concierge’s] counsel during my deposition in this case prior to the signing of the settlement agreement.” Indeed, as conceded in its Answer Brief to this Court, Concierge does not dispute that it was aware of the January 2014 online article at the time it executed the Settlement Agreement with the Appellants.

After a hearing on the matter, the trial court entered its order granting the Motion to Enforce; The trial court found that the January 2014 online article disparages Concierge and that the Appellants’ refusal to remove it from their websites violates the Non-Disparagement Provision contained in the Settlement Agreement. The trial court directed the Appellants to remove the January 2014 online article from their websites within seven days of the date of the order.

This appeal followed.

II. STANDARD OF REVIEW

“[A] trial court’s decision construing a contract presents an issue of law that is subject to the de novo standard of review.” Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009). A settlement agreement is contractual in nature and therefore interpreted and governed by contract law. See Muñoz Hnos, S.A. v. Editorial Televisa Int’l, S.A., 121 So. 3d 100, 103 (Fla. 3d DCA 2013). We therefore review de novo the trial court’s order interpreting the Settlement Agreement. See Pinnacle Three Corp. v. EVS Invs., Inc., 193 So.3d 973, 975-76 (Fla. 3d DCA 2016) (“In the present case, we review the trial court’s ruling de novo, as it depends on the interpretation of paragraph 7 of the settlement agreement.”); see also Commercial Capital Res., LLC v. Giovannetti, 955 So.2d 1151, 1153 (Fla. 3d DCA 2007) (applying de novo standard of review to trial court’s order enforcing settlement agreement).

III. ANALYSIS

When a trial court approves a settlement agreement by order and retains jurisdiction to enforce its terms, the trial court has the jurisdiction to enforce the terms of the settlement agreement. See Paulucci v. Gen. Dynamics Corp,, 842 So.2d 797, 803 (Fla. 2003); Sarhan v. H & H Inv’rs, Inc., 88 So.3d 219, 220 (Fla. 3d DCA 2011). It is well-established, however, that “the extent of the court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement.” Paulucci, 842 So.2d at 803; see also Sarhan, 88 So.3d at 220; Olen Props. Corp. v. Wren, 109 So.3d 263, 265 (Fla. 4th DCA 2013); Rocha v. Mendonca, 35 So.3d 973, 976 (Fla. 3d DCA 2010); W.C. Riviera Partners, LC. v. W.C.R.P., LC., 912 So.2d 587, 589 (Fla. 2d DCA 2005). For that reason, a trial court exceeds the jurisdiction it reserved for itself when it grants to a party seeking enforcement relief that is beyond the obligations set forth in the parties’ settlement agreement. See Pinnacle Three Corp., 193 So.3d at 976 (stating that trial court properly concluded that relief sought in motion to enforce settlement agreement went beyond obligations detailed in settlement agreement and was thus beyond the jurisdiction retained by the trial court); Sarhan, 88 So.3d at 220 (finding that trial court exceeded the jurisdiction it reserved for itself when it summarily entered a final judgment of foreclosure and that remedy was not authorized in stipulation of settlement).

A settlement agreement is governed by contract law. See Muñoz, 121 So.3d at 103; see also Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002) (stating that settlement agreements “are interpreted and governed by the law of contracts”). A trial court is not tree to re-write the terms of a settlement agreement, and “[w]here the contractual language is clear and unambiguous, ‘courts may not indulge in construction or modification and the express terms of the settlement agreement control.’ ” Commercial Capital Res., LLC, 955 So.2d at 1153 (quoting Sec. Ins. Co. of Hartford v. Puig, 728 So.2d 292, 294 (Fla. 3d DCA 1999)). “An order enforcing a settlement agreement must conform with the terms of the agreement and may not impose terms that were not included in the agreement.” Johnson v. Bezner, 910 So.2d 398, 401 (Fla. 4th DCA 2005).

Here, the trial court retained jurisdiction “to enforce the terms of the confidential settlement agreement executed between the parties dated September 5, 2016.” The express terms of the parties’ Settlement Agreement, therefore, delineate the trial court’s enforcement power. See Paulucci, 842 So.2d at 803. Under the clear terms of the Settlement Agreement, the Non-Disparagement Provision applies to any written or verbal statements made after the agreement was executed—September 5, 2014. The online article at issue was posted in January of 2014, well before the parties entered into the Settlement Agreement, and the record evidence establishes that Concierge knew about the January 2014 online article at the time it entered into the Settlement Agreement. The Settlement Agreement only required the retraction of the January 27 blog post, and did not address the January 2014 online article in any way or otherwise require its retraction or removal. Had Concierge wanted the Appellants to remove the January 2014 online article from their websites, Concierge could have negotiated that term into the Settlement Agreement. Concierge did not do so.

Under the guise of enforcing the Settlement Agreement, the trial court impermis-sibly re-wrote the Settlement Agreement. Specifically, the trial court construed the Settlement Agreement’s express language limiting the Non-Disparagement Provision to statements made after September 5, 2014, to apply to the January 2014 online article—an article published before September 5, 2014, and one that the parties knew about prior to entering into the Settlement Agreement but which they chose not to include within its terms. Cf. Rocha, 35 So.3d at 976 (reversing trial court’s order enforcing settlement agreement and finding that “[although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of a ... settlement agreement. Under the guise of enforcing the agreement, the trial court here imper-missibly modified it.”). Accordingly, we find that the trial court’s order requiring the removal of the January 2014 online article exceeded the jurisdiction the trial court reserved for itself to enforce the terms of the Settlement Agreement.

IV. CONCLUSION

Because the Settlement Agreement did not require the Appellants to remove the January 2014 online article from their websites and the January 2014 online article was not a statement made after the date of execution of the Settlement Agreement, the trial court impermissibly exceeded its jurisdiction in finding the Appellants in violation of the Settlement Agreement. The order on appeal enforcing the Settlement Agreement and ordering the removal of the January 2014 online article is therefore reversed.

Reversed.

      . Although the trial court entered an agreed order sealing the Settlement Agreement as confidential pursuant to Florida Rule of Judi- ■ cial Administration 2.420(c)(9), we quote this portion of the Non-Disparagement Provision as it is central to the issue on appeal and consists of contractual language that does not reveal confidential information.

      . Lesnock also attested that the contents of the January 2014 online article had not been modified.


text:
    Adeena Weiss ORTIZ, etc., et al., Petitioners, v. Caroline WEISS, et al., Respondents.
    No. 3D17-420
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Rehearing Denied September 26, 2017

      Adeena Weiss Ortiz, in proper person.
    Schlesinger & Associates, P.A. and Michael J. Schlesinger and Andrew S. Gen-den, for respondents.
    Before SUAREZ, FERNANDEZ, and SCALES, ,JJ.
   SUAREZ, J.

Adeena Weiss Ortiz [“Ortiz”] files the present petition for certiorari requesting this Court quash the trial court’s order, below granting in part and denying in part- respondent Caroline Weiss’s [“Weiss”] motion to discharge lis pendens or for adequate bond. We deny the petition for certiorari, finding the trial court did not depart from the. essential requirements of law.

Petitioner Ortiz is the daughter of the respondent, Caroline Weiss. In 1973, Weiss and her husband Jack bought bay-front lots in Coconut Grove, numbered 0 through 7 [“the Property”] through their corporation, JAAC, Inc. That same year, JAAC executed a warranty deed granting the Property to Weiss and her husband as tenants by the entirety. In 1987, JAAC signed a warranty deed to Central Bank and Trust company, which in turn executed a land trust agreement deed to JAAC. Jack died in 1995; JAAC was administratively dissolved in 1997. Weiss subsequently issued a number of quitclaim deeds,, transfers, and corrective documents involving various lots comprising the Property. In 2014, Ortiz filed suit to quiet title to the Property, alleging fraudulent transfer of title based on the posb-1995 deed transfers, and filed a Notice of Lis Pendens. Ortiz argues that her suit to quiet title is, in fact, based on at least two duly recorded instruments that at the very least cloud the title sufficiently to maintain the lis. pendens on the Property.

The trial court conducted an evidentiary hearing on Weiss’s motion to dissolve lis pendens or for imposition of a bond. During the hearing, the trial court also took testimony on the amount of damages Weiss could suffer should the lis pendens remain in place and should it be determined that it was unjustified. The trial court denied the motion to discharge the lis pendens, but determined that the evidence showed a fair nexus between the legal and equitable ownership of the Property as claimed by Ortiz. The trial court then granted Weiss’s motion to set a bond in order for the lis pendens to remain, and placed a deadline on Ortiz’s ability to maintain the lis pendens by requiring her to post a $3,000,000.00 bond by a date certain, otherwise the lis pendens would be discharged. The trial court arrived at the bond amount based upon the evidence of the possible damages presented at the hearing. Ortiz failed to post the bond by the required date, and the trial court discharged the lis pendens. Ortiz immediately filed this petition for certiorari, and this Court stayed proceedings below.

We determine that the trial court did not depart from the essential requirements of the law by requiring a bond to be posted by a date certain or the lis pendens would be discharged. When a suit involving real property is, as in the present case, not based on a duly recorded instrument but there is a fair nexus proven, the control and discharge of the lis pendens is at the discretion of the trial judge. Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993); Rodriguez v. Banco Indus. de Venezuela, C.A., 576 So.2d 870, 873 (Fla. 3d DCA 1991) (“When an action is not founded on a duly recorded instrument, the statute gives the trial court discretion to consider the extension and duration of the lis pen-dens on a case-by-case basis.”);; Avalon Assocs. of Delaware Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000) (determining unless the initial pleading shows that the action is founded on a duly recorded instrument, the court has the power to control the notice by discharging it, or requiring the party seeking to file a lis pendens to post a bond).

In this case, the trial court properly exercised its discretion to order the bond and was correct in treating the requirement for the bond as it would the bond for a temporary injunction. Section 48.23(3), Fla. Stat. (2017) (“When the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed, under part I of chapter 713 or when the action no longer affects the subject property, the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.”); Nobe Bay Holdings, LLC v. Garcia, 140 So.3d 693, 695 (Fla. 3d DCA 2014) (holding that if the proponent of the lis pendens does establish a fair nexus, the trial court, within its discretion, can require the lis pendens proponent to post a bond to protect the property owner); Fla. R. Civ. P. 1.610 (“No temporary injunction shall be entered unless a bond is, given by the movant in an amount the court deems proper, ...”). Further, the trial court had the authority to order the discharge of the lis pendens should the bond not be timely posted. Because the issue is strictly whether the lis pendens should remain, there is no need for us to address the merits of the underlying dispute.

We deny the Petition for Certiorari, and lift the stay.

      . We find competent substantial evidence to support the trial court’s finding' that a $3,000,000.00 bond bears the required reasonable relationship to the amount of damages likely to result if the notice of lis pendens is unjustified. See S & T Builders v. Globe Props., Inc., 944 So.2d 302, 304 (Fla. 2006) ("In setting the amount of a bond, we have determined that ‘[t]he amount should bear a reasonable relationship to the amount of damages which, the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified.' ” quoting Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 918 n.2 (Fla. 1996)).