author: WALLIS, J.

text:
    Kelly MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-492.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2016.
    Rehearing and Rehearing En Banc Denied Dec. 1, 2016.

      Michael R. Ufferman, of Michael Uffer-man Law Firm, P.A., and Peter D. Webster, of Carlton Fields Jorden Burt, P.A., Tallahassee, for Appellant.
    Marc J. Randazza, of Randazza Legal Group, Las Vegas, NV, Amicus Curiae for the First Amendment Lawyers Association.
    Ashley Litwin, Miami, Amicus Curiae for National Association of Criminal Defense Lawyers.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock and Pamela J. Roller, Assistant Attorneys General, Daytona Beach, Office of Statewide Prosecution, Tampa, for Appellee.
   WALLIS, J.

Kelly Mathis (“Appellant”) appeals his convictions and sentences for: racketeering (RICO); fifty-one counts of setting up, promoting, or conducting an illegal lottery; and fifty-one counts of possessing an illegal slot machine or device. Appellant argues, and we agree, that the trial court abused its discretion by excluding evidence supporting his theory of the defense, effectively preventing him from arguing that he lacked the requisite mens rea for his offenses. We reverse Appellant’s convictions and sentences and remand for a new trial.

This case stems from Florida’s crackdown on what became colloquially known as “internet cafes,” which sprung up throughout the state between 2007 and 2014. In 2007, Michael Ryles, Chase Burns, and Brad Skidmore hired Appellant, an attorney in Jacksonville, to research whether Florida law permitted the operation of internet cafes. Appellant conducted legal research on the issue for several weeks, discussed the proposed business model with various state and local officials, and ultimately concluded that his clients could legally operate internet cafes in Florida. After meeting with Appellant, Ryles, Burns, and Skidmore contacted Jerry Bass and Johnny Duncan, who ran a veteran’s organization called Allied Veterans of the World (“Allied Veterans”). Appellant’s clients agreed to operate the internet cafes as a veteran’s organization under section 501(c)(19) of the Internal Revenue Code using Allied Veterans’ name. Allied Veterans opened its first internet cafe in Jacksonville in 2007 and subsequently expanded to fifty affiliated locations throughout Florida by 2011.

Appellant dealt with Allied Veterans solely in the scope of an attorney-client relationship. Appellant neither invested in nor received profits from the business. The only financial benefit Appellant received from Allied Veterans came from attorney’s fees incurred in the course of representing the organization. When Allied Veterans expressed interest in expanding the cafes, Appellant undertook additional legal research on the proposed location to ensure compliance with zoning ordinances and other local laws, which in-eluded speaking with various local authorities — such as police chiefs and assistant state attorneys. Prior to expansion, Appellant presented Allied Veterans with a report recommending whether it could feasibly open an affiliate in the proposed location.

In 2011, the Volusia County Sherriffs Office established a multi-jurisdictional taskforce to investigate internet cafes. The task force executed over fifty search warrants at Allied Veterans locations and Appellant’s law firm, ultimately arresting fifty-seven persons described as “owners or managers or those who facilitated the growth and operation of the enterprise as a whole.” The State, through the Attorney General’s Office of Statewide Prosecution, charged the fifty-seven defendants, including Appellant, with: racketeering (RICO); conspiracy to commit racketeering; fifty-one counts of setting up, promoting, or conducting an illegal lottery; fifty-one counts of possessing an illegal slot machine or device; and fifty-three counts of participating in an illegal gambling business (money laundering).

Before trial, Appellant requested that the trial court take judicial notice of evidence supporting his theory of the defense, including: (1) ordinances regulating internet cafes in Jacksonville, Clay County, Leon County, Seminole County, St. Johns County, Volusia County, and Wakul-la County; (2) a circuit court order upholding the Jacksonville ordinance; and (3) various Florida House of Representatives staff analyses and proposed bills regulating internet cafes. In response, the State filed two motions in limine to prevent Appellant from both referencing any ordinances and raising an “advice of counsel” defense at trial.

The trial court considered the notice requests and motions in limine at a hearing in August 2013. The State argued that Appellant improperly wished to raise an “advice of counsel” defense and requested that the trial court compel Appellant to provide the names of all attorneys with whom he discussed the legality of the internet cafes. Defense counsel disagreed with the State’s framing of the issue, explaining that Appellant did not rely on advice of retained counsel, but rather that his research and meetings -with government officials led him to advise Allied Veterans that internet cafes were legal. The trial court found the State’s argument compelling, reasoning that the State was not charging Appellant as an attorney, only as an ordinary member of the organization. The trial court expressed its understanding of the issue in the following statement:

I think you’re elevating Mr. Mathis much higher than the state intends to do it. I think they’re putting him down on the same common level as everybody else for the most part.
It’s a slot machine, lottery, RICO case with everybody involved. And if the State decides that they are going to single him out as the attorney, which necessitates you having to bring in these other attorneys for some reason, I’ll be very careful to hear what they have to say as far as that’s concerned, but otherwise to me ... it’s a simple trial with a bunch of defendants here going on.
And the fact that you are concerned or for some reason you think they’re focusing on him as the attorney to where you need to bring other attorneys to give their interpretation of the law, I just don’t see that, really.

After the hearing, the trial court entered an order granting the State’s motion in limine regarding the “advice of counsel” defense, prohibiting Appellant from introducing any “communication between [him] and any other attorney” regarding the legality of the Allied Veterans’ business model. The trial court granted the State’s remaining motion in limine, prohibiting Appellant from “presenting] evidence and testimony relating to county and municipal ordinances, as such evidence is irrelevant to the issue of whether he acted in violation of State statutes.”

Appellant’s trial commenced on September 16, 2013, and concluded on October 11, 2013. The State contradicted its pre-trial assertion that it would not focus on Appellant’s capacity as an attorney, as demonstrated by the prosecutor’s remarks during opening statement:

[W]ith Kelly Mathis — it’s about gambling. That’s what the charges are. Let’s be clear. But it’s about Kelly Mathis gaming the system. He’s a lawyer and he gamed the legal system.
You see, one of the other reasons we know that Kelly Mathis is gaming the system is that you’re going to learn that ... a couple of attorney generals from the State of Florida had issued opinions on similar types of sweepstakes ... and said they’re illegal.
You’re going to learn that one attorney general ... wrote a letter to Mr. Mathis about it ... saying it was illegal. But the games continued.
[Y]ou’re going to hear people say that if he had said, hey, this is a real risk or this is illegal, like the attorney general opinion said, they wouldn’t have done it. He gamed the system.

Throughout the trial, the State elicited witness testimony focusing on the soundness of Appellant’s legal conclusions. Yet, the trial court prohibited Appellant from presenting any testimony to rebut the prosecutor’s theme, including the local ordinances that specifically permitted the operation of internet cafes.

The State persisted in its assertion that Appellant knowingly provided false legal advice during closing argument and rebuttal:

I’ll submit to you that the Defendant was quite well aware of what he was doing when he was going out talking to everybody.
[T]he Defendant, in explaining the Allied Veterans locations, was very aware of what the law is. He was very aware of what the law is. Because the manner in which he described what was happening at the Allied Veterans locations was a misrepresentation.
But why are we here on Kelly Mathis? Because of the way he gamed the law, the way he chose to practice law, to mislead, to deceive.
They tell you he had a love of the law. You know a love of the law would involve respect. It wouldn’t be to come in here and try to manipulate it to make it work so that you can bill millions. That’s not a love of the law.
This case is about gambling. But in reality, it’s about complete disrespect, a disregard, and misrepresentation and manipulation of the law.
Four times I heard during the course of this, he was just a lawyer. He was only a lawyer ... If anybody out of the fifty-seven defendants that were involved in this, if anybody knew better about what the law said, it was him.
You know, it’s not only — it’s aggravated because he was a lawyer and he knew better.

The jury returned verdicts of guilty as to racketeering (Count 1), not guilty as to conspiracy to commit racketeering (Count 2), guilty as to conducting an illegal lottery (Counts 3-53), and guilty as to possessing an illegal slot machine (Counts 54-104). The trial court sentenced Appellant to six years’ incarceration on Count 1, time served on Counts 3-53, and five years’ incarceration on Counts 54-104, to run concurrently.

“A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court’s ruling on evidentiary matters will not be overturned.” Helton v. Bank of Am., N.A., 187 So.3d 245, 247 (Fla. 5th DCA 2016) (quoting LaMarr v. Lang, 796 So.2d 1208, 1209 (Fla. 5th DCA 2001)). A trial court’s ruling on the admissibility of evidence “constitutes an abuse of discretion if it is based ‘on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” Johnson v. State, 969 So.2d 938, 949 (Fla.2007) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). “Florida law is clear that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.’ ” Mateo v. State, 932 So.2d 376, 379 (Fla. 2d DCA 2006) (quoting Rivera v. State, 561 So.2d 536, 539 (Fla.1990)).

We note that the law generally disfavors crimes containing no knowledge or mens rea element. See, e.g., Staples v. United States, 511 U.S. 600, 605-06, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Indeed, at common law, all crimes included an act or omission element in addition to a knowledge or mens rea element. State v. Giorgetti 868 So.2d 512, 515 (Fla.2004). Including a mens rea requirement remains “the rule of, rather than the exception to, the Anglo-American criminal jurisprudence.” Staples, 511 U.S. at 605, 114 S.Ct. 1793 (quoting United States v. Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)). “In other words, the Court has virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary.” Giorgetti, 868 So.2d at 515. “The Legislature is vested with the authority to define the elements of a crime, and therefore ‘determining whether scienter is an essential element of a statutory crime is a question of legislative intent.’ ” Reynolds v. State, 842 So.2d 46, 49 (Fla.2002) (quoting Chicone v. State, 684 So.2d 736, 741 (Fla.1996)). In determining the Legislature’s intent, we look first to the statute’s plain language. Giorgetti, 868 So.2d at 515.

The State charged Appellant under the following subsections of Florida’s RICO statute:

(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1), subsection (2), or subsection (3).

§ 895.03, Fla. Stat. This language does not express the Legislature’s intent to dispense with a mens rea requirement. However, silence on this point by itself does not necessarily suggest that the Legislature intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that made his conduct illegal. Staples, 511 U.S. at 605, 114 S.Ct. 1793. Accordingly, we interpret the statute in a manner that comports with due process by “ascrib[ing] the Legislature with having intended to include such a requirement.” See Giorgetti, 868 So.2d at 518. We find support in our supreme court’s decision in Bowden v. State, where it rejected the argument that the statute “is facially unconstitutional because it imposes strict liability without requiring criminal intent or knowledge, and because its sanctions are predicated upon ... presumptively protected activities.” 402 So.2d 1173, 1174 (Fla.1981). The court further determined that the “assertion that ‘under this law the prohibited association with the enterprise can be entirely innocent or unknowing,’ is simply not correct. Nor is it true that ‘participation, directly or indirectly, in the enterprise can occur without any intent ... that the condemned behavior relate to any enterprise.’ ” Id. at 1175 (alteration in original).

Based on the foregoing, we find no evidence that the Legislature intended to remove knowledge or mens rea as an element of the offense outlined in section 895.03(3). Thus, the trial court should have permitted Appellant to offer evidence negating his intent to commit racketeering. The State’s persistent trial theme involved repeatedly arguing that Appellant knowingly assisted Allied Veterans in operating an illegal sweepstakes. Yet, the testimony established that Appellant diligently researched the legal issues before concluding that Florida law did not prohibit internet cafes. The trial court’s decision to exclude the contested evidence effectively thwarted Appellant’s argument that he lacked the mens rea for his offenses.

The State contends that allowing Appellant to introduce the contested evidence would result in “a parade of lawyers, both private and government, tak[ing] the stand to testify to their respective interpretations of what the law should be.” We disagree with the State’s position because Appellant’s purpose in introducing this evidence was to challenge the knowledge element of the offense, not to advance an argument that internet cafes were legal. Appellant properly concedes that this distinction likely necessitates that the trial court provide a limiting instruction, informing the jury to consider the evidence only as it relates to Appellant’s state of mind. By preventing Appellant from introducing this evidence, the trial court effectively transformed the racketeering charge into a strict liability offense. Appellant’s argument that he lacked the mens rea necessary to commit racketeering amounts to a valid theory of defense, and the trial court abused its discretion by excluding the evidence supporting that defense. See Mateo, 932 So.2d at 379.

Appellant next argues that the trial court abused its discretion by denying his request for a special jury instruction tracking the language of Florida’s game promotion statute, section 849.094, Florida Statutes (2013). We agree with the trial court that the circumstances did not warrant a special instruction. However, consistent with our determination that Appellant can present evidence providing the full context for his legal representation, we find that the trial court should permit Appellant to introduce a description of or citation to section 849.094. The State maintains that Appellant knowingly misrepresented Allied Veterans’ business model to various State officials, and therefore he should not be able to rely on their conclusions that Allied Veterans complied with section 849.094. We find that this argument goes to the weight of the evidence, not its admissibility; certainly the State may cross-examine Appellant’s witnesses as to whether their opinions that Allied Veterans operated a legal game promotion would have changed had Appellant provided the details the State contends he misrepresented or omitted.

For these reasons, we reverse and remand for a new trial, affording Appellant the opportunity to present evidence demonstrating the full context of his legal advice to rebut the State’s allegations that he knowingly assisted Allied Veterans in violating Florida law. We affirm the remaining issues on appeal without further discussion.

AFFIRMED in Part; REVERSED in Part; and REMANDED for a new trial.

ORFINGER and EDWARDS, JJ., concur.

      . § 895.03(3), Fla. Stat. (2013).

      . § 849.091(1), Fla. Stat. (2013).

      . § 849.15, Fla. Stat. (2013).

      .We affirm the trial court's denial of Appellant's cause challenge to a prospective juror without discussion.

      . The proposed business model operated as follows. Customers purchased "internet time” to use on computers located in the internet cafes. When a customer purchased internet time, they received free entries into promotional sweepstakes. Customers could use the computers to reveal their sweepstakes entries to see if they won a promotional prize. The software used to reveal the sweepstakes entries simulated popular casino-style games. Each sweepstakes entry contained a predetermined prize that neither the customer nor the internet cafe employees could alter.

      . The trial court granted Appellant’s motion for judgment of acquittal as to the fifty-three counts for money laundering.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Nicholas GRIFFIN, Appellant, v. ARX HOLDING CORPORATION, Appellee.
    No. 2D15-1616.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2016.

      S. Douglas Knox, Paul E. Parrish, and Kelli A. Edson of Quarles & Brady LLP, Tampa, for Appellant.
    Sylvia H. Walbolt, Steven C. Dupré, Kevin P. McCoy, and Nicholas A. Brown of Carlton Fields Jorden Burt, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Nicholas Griffin appeals a final summary judgment, a judgment entered after jury trial, and several post-trial orders entered in favor of his former employer, ARX Holding Corporation, a company that operated several insurance businesses in Florida. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).

Mr. Griffin sued ARX for compensation due under the terms of an employment contract. ARX contended that the contract was void, illegal, and unenforceable. ARX counterclaimed for payment due on a promissory note executed and delivered by Mr. Griffin. The trial court entered a final summary judgment on Mr. Griffin’s compensation claim. A jury found for ARX on its counterclaim. After careful review of the record, and with the benefit of oral argument, we affirm on all issues raised by Mr. Griffin.

Background

Mr. Griffin is the former chief financial officer of United Insurance Holdings Corp. Sometime in 2009, he began discussions with John Auer, ARX’s chief executive officer. Mr. Auer wanted to hire Mr. Griffin as ARX’s CFO. During then-discussions, Mr. Griffin told Mr. Auer that he had a felony conviction. As we will see, that conviction hampered Mr. Griffin’s ability to serve as the CFO of insurance-related businesses under federal and state law. Nevertheless, Mr. Griffin advised Mr. Auer that the conviction would not prevent him from serving as ARX’s CFO. As further assurance, Mr. Griffin told Mr. Auer that he would seek a waiver from Florida insurance regulators of any statutory disqualification caused by his conviction. Apparently minimizing any concern that the conviction would impact his employment, Mr. Griffin told Mr. Auer that the Florida Office of Insurance Regulation (FOIR), aware of his conviction, allowed him to serve as United’s CFO; he expected no objection from FOIR to his employment by ARX. Reality proved less rosy.

In 2002, while Mr. Griffin worked for United, FOIR notified United that Mr. Griffin’s conviction barred him from serving as an officer of a United subsidiary engaged in the insurance business. In an effort to cure FOIR’s concern, United maintained Mr. Griffin as the CFO of only the holding company; it appointed him controller of the related insurance companies. Apparently, the controller was not an officer level position within United’s group of companies.

Sometime in 2008, United sought FOIR approval to merge with another company. Under the terms of a 2009 consent order with the insurance regulator, United agreed to replace Mr. Griffin as CFO. FOIR’s Deputy Insurance Chief, Belinda Miller, testified that the consent order barred Mr. Griffin from being an officer of United or of its insurance subsidiaries. Mr. Griffin testified at the trial on ARX’s counterclaim that United and FOIR reached an accommodation that would allow Mr. Griffin to continue as United’s CFO. Our record belies that assertion. Indeed, after further discussions between FOIR and United, FOIR formally denied a waiver that would have allowed Mr. Griffin to work as an officer of an insurance business. Apparently, Mr. Griffin continued to serve as an officer of United’s nonpublicly traded holding company. Mr. Auer was unaware of the extent of Mr. Griffin’s problems with FOIR, specifically the consent order requiring United to remove Mr. Griffin as CFO.

By early June 2009, ARX extended, and Mr. Griffin accepted, an offer of employment as ARX’s CFO. Because ARX was a holding company and not an insurance company, Mr. Griffin assumed that FOIR would not object to this new employment. The distinction, however, has little meaning. First, Mr. Griffin conceded in the trial court that his position with ARX involved the business of insurance. Second, ARX’s Board of Directors appointed Mr. Griffin as the Vice President and CFO of ARX and of its subsidiary insurance businesses,

Mr. Griffin’s compensation package provided for an annual salary of $150,000. He would also “participate as an officer in the employee bonus plan ... subject to a monthly minimum of $12,000 for 24 months.” ARX also offered Mr. Griffin stock and stock options that would vest over several years, contingent upon his continued employment. No one disputes that Mr. Griffin was an at-will employee.

The stock and stock option components of Mr. Griffin’s compensation terms presented potential tax liabilities for Mr. Griffin. Against the recommendation of his accountant, Mr. Griffin filed an election under section 83(b) of the Internal Revenue Code. By doing so, Mr. Griffin incurred an immediate $182,000 tax liability, although he had not acquired any stock or exercised any of the stock options.

Mr. Griffin explained to Mr. Auer that he could not pay the tax liability. Mr. Griffin claims that Mr. Auer told him that ARX would loan him the money and later forgive the debt. Mr. Auer claimed otherwise. Nevertheless, again, against the advice of his accountant, Mr. Griffin drafted, signed, and delivered a promissory note in favor or ARX in order to get the funds needed to satisfy his tax debt. The promissory note allowed ARX to demand payment upon written notice. Seemingly consistent with Mr. Auer’s recollection of events, the note did not obligate ARX to forgive the debt.

Mr. Auer attempted to help Mr. Griffin in his efforts to obtain a waiver from FOIR so that he could serve as ARX’s CFO. He contacted several regulators on Mr. Griffin’s behalf. Ultimately, FOIR would not yield; it would not grant Mr. Griffin a waiver. As the waiver story unfolded, however, it does not appear that ARX’s Board of Directors knew about Mr. Griffin’s conviction or any statutory restrictions on his position until sometime in March 2010. In the meantime, Mr. Griffin performed his duties for ARX. As a result, he received his salary and employee bonuses. On March 1, 2010, the Board approved an additional $215,000 bonus for Mr. Griffin, based on his 2009 job performance. The bonus was payable immediately. Mr. Auer, however, withheld the bonus pending a final decision from FOIR concerning a waiver. Mr. Griffin never got his bonus. He never got the waiver. As a result, Mr. Auer terminated Mr. Griffin’s employment.

Summary Judgment and Trial

To summarize a lengthy procedural history in the trial court, we note that the trial court granted ARX a summary judgment on the compensation issue. The trial court found the employment contract illegal and unenforceable. Consequently, Mr. Griffin could not collect his $215,000 bonus.

ARX’s counterclaim on the promissory note went to jury trial. The jury found in favor of ARX. The jury found that Mr. Griffin owed ARX $200,150.13. Ample evidence supports the jury’s verdict and the trial court’s subsequent judgment on this claim. We need say nothing more on this issue.

Mr. Griffin’s claim for the unpaid bonus is more problematic. We review the grant of summary judgment de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Dewar v. Dough Boy Pizza, Inc., 184 So.3d 1169, 1170 (Fla. 2d DCA 2015) (citation omitted).

Statutes Restricting Mr. Griffin’s Employment

Under federal law, “[a]ny individual who has been convicted of any criminal felony involving dishonesty or a breach of trust, ... and who willfully engages in the business of insurance whose activities affect interstate commerce or participates in such business” shall be punished by fine or imprisonment of up to five years, or both. 18 U.S.C. § 1033(e)(1)(A). The federal statute continues: “Any individual who is engaged in the business of insurance whose activities affect interstate commerce and who willfully permits the participation described in subparagraph (A) shall be fined as provided in this title or imprisoned not more than 5 years, or both.” 18 U.S.C. § 1033(e)(1)(B). The parties have pointed us to nothing in § 1033(e) that would impose criminal liability on a corporate entity that hires someone like Mr. Griffin. Regardless, on its face, § 1033(e) exposes Mr. Griffin to criminal prosecution for serving as CFO of ARX or its insurance subsidiaries. Of course, a person like Mr. Griffin “may engage in the business of insurance or participate in such business if such person has the written consent of any insurance regulatory official authorized to regulate the insurer, which consent specifically refers to this subsection.” 18 U.S.C. § 1033(e)(2). Reading (e)(1) and (e)(2) together, we find it obvious that criminal exposure continues until the convicted felon “has” — obtains—a waiver from the appropriate insurance regulator. Anticipation is not enough.

Florida law imposes a similar statutory disqualification for some felons.

[FOIR] may deny, suspend, or revoke the authority to transact insurance in this state of any insurer if any person ... who exercises or has the ability to exercise effective control over the insurer, or who influences or has the ability to influence the transaction of the business of the insurer, has been found guilty of, or has pleaded guilty ... to, any felony or crime punishable by imprisonment of 1 year or more under the law of the United States or any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction in such case. However, in the case of an insurer operating under a subsisting certificate of authority, the insurer shall remove any such person immediately upon discovery of the conditions set forth in this paragraph when applicable to such person or upon the order of the office, and the failure to so act by said insurer shall be grounds for revocation or suspension of the insurer’s certificate of authority.

§ 624.404(3)(c), Fla. Stat. (2009). Section 624.15, Florida Statutes makes “each willful violation of this code or rule of the department, office, or commission ... a misdemeanor of the second degree.” The statute does not identify a waiver contemplated by 18 U.S.C. § 1033(e)(2). However, the testimony of FOIR witnesses demonstrated that such a waiver process was available in Florida.

As a matter of law, Mr. Griffin was statutorily barred from serving as CFO. He never obtained the waiver contemplated by 18 U.S.C. § 1033(e)(2). On this basis, alone, ARX was within its right to fire Mr. Griffin and end any right to compensation going forward. The more puzzling question is whether Mr. Griffin was entitled to an earned bonus. The answer to that question hinges on whether his statutory disqualification stripped him of the right to enforce the employment contract.

The Employment Contract Was Illegal as Against Public Policy; Mr. Griffin Could Not Enforce Its Terms

Mr. Griffin argues that ARX breached its implied covenant of good faith and fair dealing by failing to pay his bonus. He also argues that federal and state law did not automatically prohibit him from serving as an ARX officer. The law seems clear, however, that his conviction fell within the ambit of 18 U.S.C. § 1033(e)(1) and section 624.404(3)(c). Although Mr. Griffin argues that he was the CFO of only the holding company, the record reflects that he served as CFO of ARX’s insurance subsidiaries, as well. He also conceded that he was involved in the insurance business. Thus, absent a waiver from an insurance regulator, Mr. Griffin was in violation of the law by serving as ARX’s CFO. See Beamer v. NETCO, Inc., 411 F.Supp.2d 882 (S.D.Ohio 2005).

The result may seem harsh, but we are persuaded by ARX’s argument that the employment contract was void ab ini-tio. Thus, Mr. Griffin was unable to enforce its terms. Our record discloses that Mr. Auer would not have employed Mr. Griffin had he known the seriousness of the conviction and its bar to Mr. Griffin’s employment.

To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e.g., a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e.g., a contract to commit murder.

Oubre v. Entergy Operations, Inc., 522 U.S. 422, 431, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) (Breyer, J., concurring). “For a contract to be deemed unenforceable as illegal or contrary to public policy, its purpose or object must be contrary to a law or policy of the state.” Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc., 222 F.3d 895, 899 (11th Cir.2000); see also Beamer, 411 F.Supp.2d 882.

“[A] contract is not void, as against public policy, unless it is injurious to the interests of the public or contravenes some established interest of society.” Atl. Coast Line RR. Co. v. Beazley, 54 Fla. 311, 45 So. 761, 785 (1907) (quotations omitted). “The public policy of a state or nation should be determined by its Constitution, laws, and judicial decisions ....” Id. at 786 (quotations omitted). A contract of this nature may be against public policy and be rendered void. That is what the trial court concluded in our case.

Beamer, 411 F.Supp.2d 882, is most on point. The district court applied Florida law to resolve a case with facts quite similar to those before us. Mr. Beamer was engaged in the business of insurance but had a qualifying felony conviction under 18 U.S.C. § 1033(e)(1)(A). Beamer, 411 F.Supp.2d at 889. It does not appear that Mr. Beamer held a high-ranking financial position like Mr. Griffin. Yet, relying on Florida law, the district court observed that “a contract is against public policy when it cannot be performed without violating a statutory or other legal provision.” Id. (citing Local No. 234 v. Henley & Beckwith, 66 So.2d 818, 821 (Fla.1953)). The district court held that Mr. Beamer’s employment contract was void under 18 U.S.C. § 1033(e)(1)(A). Id. As a result, Mr. Beamer could not pursue a claim for tortious interference with contract.

Mr. Griffin argues that Beamer is inap-posite because the district court did not consider 18 U.S.C. § 1033(e)(2), the waiver provision. Nothing in Beamer, however, indicates that Mr. Beamer held a waiver from an insurance regulator. Here, there can be no dispute that Mr. Griffin had none. Beamer is undeniably similar to our case. Like Mr. Beamer, Mr. Griffin could not be an officer of ARX or its insurance subsidiaries “without violating a statutory or other legal provision.” See id. at 889 (citing Local No. 234, 66 So.2d 818, 821 (Fla.1953)).

Gamble v. Mills, 483 So.2d 826, 827 (Fla. 4th DCA 1986), too, is instructive. There, the Fourth District affirmed a final order of the School Board declaring a teacher’s employment contract to be null and void. Id. The contract provided that it “shall be null and void ... if, at the beginning of the school fiscal year, the teacher does not hold a valid regular Teacher’s certificate ... which shall continue in force and effect through the school term.” Id. Mr. Gamble argued that the lapse of his regular certificate did not prevent him from fulfilling his teaching duties. However, pursuant to section 231.36, Florida Statutes (1983), the teacher “must hold a regular certificate.” Similarly, at no time during his employment with ARX did Mr. Griffin hold the “written consent” required by 18 U.S.C. § 1033(e)(2). He was in violation of the law.

In Umbel v. Foodtrader.com, Inc., 820 So.2d 372 (Fla. 3d DCA 2002), the Third District held that a partnership agreement violated Florida securities law and was unenforceable. The partners formed the partnership to “obtain[ ] investors for companies, in exchange for a fee or commission.” Id. at 374. The partners were not registered securities dealers; therefore, the partnership violated securities law. Id. Although the partners argued that several statutory exemptions potentially rendered performance of the contract legal, the “exemptions would [not] redeem the partnership agreement from the illegality realm.” Id. The court concluded that “[i]t [was] of no moment that [the partners] could have obtained registration before consummating the contemplated transactions” because they had already violated the law and securing the registrations after would not have cured this. Id. at 375.

Mr. Griffin advances an equally unpersuasive position. He argues that because 18 U.S.C. § 1033(e)(2) provides for a waiver, his employment contract is not illegal. He ignores the fact, however, that despite the efforts of Mr. Auer as well as his own, he never received a waiver from FOIR. Absent the waiver, Mr. Griffin could not engage in the business of insurance.

Section 489.128(1), Florida Statutes (2016), is also helpful by analogy. Under that statute, a “contract [] entered into ... by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” Id. The other party to the contract, however, retains its rights to enforce the contract against the contractor. See Earth Trades, Inc. v. T & G Corp., 42 So.3d 929, 930 (Fla. 5th DCA 2010). Like an unlicensed contractor, Mr. Griffin, lacking a waiver, lacked the ability to enforce the terms of his employment contract against ARX.

We are mindful that our decision may seem unjust to Mr. Griffin. After all, he now foregoes any right to the bonus approved by ARX’s Board. But, Mr. Griffin took the position with ARX, without a waiver, and, thus, as a matter of law, was in violation of the applicable statutes. Despite his history at United, Mr. Griffin assumed the risk that FOIR would not grant him a waiver. Without a waiver in hand, Mr. Griffin, in violation of 18 U.S.C. § 1033, began serving as the CFO of ARX and its subsidiary insurance businesses. We cannot ignore the fact that “an agreement that is violative of a provision of a constitution or a valid statute, or an agreement which cannot be performed without violating such a constitutional or statutory provision, is illegal and void.” Local No. 234, 66 So.2d at 821 (citing Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14 (Fla. 1930)). Congress and our Florida legislature have set limits on those who may-engage in the insurance business. Those terms seem designed to protect the public welfare. We cannot lightly ignore these legislative dictates.

Conclusion

We affirm the grant of summary judgment as to Mr. Griffin's compensation claim as it relates to his bonus. We also affirm the final judgment entered on ARX’s counterclaim to enforce the promissory note signed by Mr. Griffin. As to all other issues raised by Mr. Griffin, we affirm without further comment.

Affirmed.

CASANUEVA and MORRIS, JJ., Concur.

      . In. 1998, Mr. Griffin pleaded guilty to and was convicted of extortion. See 18 U.S.C. § 1952(a)(3). "Extortion is genetically defined as 'obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.’ ” Cintas Corp. v. Unite Here, 601 F.Supp.2d 571, 578 (S.D.N.Y.2009) (quoting Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 410, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003)).

      . [B]usiness of insurance means—
      (A) the writing of insurance, or
      (B) the reinsuring of risks,
      by an insurer, including all acts necessary or incidental to such writing or reinsuring and the activities of persons who act as, or are, officers, directors, agents, or employees of insurers or who are other persons authorized to act on behalf of such persons ....
      18 U.S.C. § 1033(f)(1).

      . Election to include in gross income in year of transfer.—
      (1) In general. — Any person who performs services in connection with which property is transferred to any person may elect to include in his gross income, for the taxable year in which such property is transferred, the excess of—
      (A) the fair market value of such property at the time of transfer ..., over
      (B) the amount (if any) paid for such property.
      26 U.S.C. § 83(b).

      . Although Florida has not specifically ruled on this issue, many states consider extortion to be a crime of dishonesty. See Com. v. Cascardo, 981 A.2d 245, 254 (Pa.Super.Ct.2009) ("Given that theft by unlawful taking, retail theft, receiving stolen property, theft by extortion, and robbery are crimes involving dishonesty ....”) (citations omitted); Witcher v. State, 697 So.2d 1087, 1117 (Miss.1997) (Sullivan, J., dissenting) ("Extortion is a dishonest crime....”); State v. Brodene, 493 N.W.2d 793, 796 (Iowa 1992) (“[W]e think extortion is clearly an example of dishonesty.”); State v. Prutting, 40 Conn.App. 151, 669 A.2d 1228, 1236 n. 6 (1996) (holding that extortion is a form of larceny and noting that "crimes involving larcenous intent imply a general disposition toward dishonesty”); State v. Musto, 187 N.J.Super. 264, 454 A.2d 449, 454 (1982) ("The crimes of extortion and bribery are clearly crimes which involve dishonesty.”); Lawyer Disciplinary Bd. v. Moore, 214 W.Va. 780, 591 S.E.2d 338, 355 (2003) (Starcher, C.J., concurring) (explaining that extortion involved dishonesty), "In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity,” Gordon v. U.S., 383 F.2d 936, 940 (D.C.Cir.1967). We see no reason to think that Florida would not follow this prevalent view.

      . See note 4, supra. Extortion is a crime of moral turpitude. Pearl v. Fla. Bd. of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981) (‘‘[Moral turpitude] has also been defined as anything done contrary to justice, honesty, principle, or good morals (quoting State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933))). The trial court ruled that the employment contract between ARX and Mr. Griffin was illegal and unenforceable. Implicitly, the trial court had to conclude that Mr. Griffin’s prior conviction was for (1) a crime of dishonesty or breach of trust, (2) a crime punishable for more than one year involving moral turpitude, or (3) both.

      . An employment contract may be void as so “abhorrent to public policy” where "the worker had been guilty of making a material, false and fraudulent representation without which he would not have been employed.” Still v. Norfolk & W. Ry. Co., 368 U.S. 35, 40-41, 82 S.Ct. 148, 7 L.Ed.2d 103 (1961).


author: WELLS, Judge.

text:
    Giovanna Settimi CARAFFA, as personal representative of the Estate of Benedetto Emanuelle Caraffa, Appellant/Cross-Appellee, v. CARNIVAL CORPORATION, Appellee/Cross-Appellant.
    No. 3D15-356.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2016.
    Rehearing Denied Dec. 6, 2016.
    Gordon & Rees Scully Mansukhani, David M. Gersten and Christopher A. Noel; Lipcon, Margulies, Alsina & Winkle-man, and Michael A. Winkleman, for appellant/cross-appellee.
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Foreman Friedman, and Jeffrey E. Foreman, Noah D. Silverman and Rachael Mitchell Fagen-son, for appellee/cross-appellant.
    Before WELLS and LOGUE, JJ., and LEVY, Senior Judge.
   WELLS, Judge.

Giovanna Settimi Caraffa, as personal representative for the estate of Benedetto Emanuelle Caraffa, appeals a final judgment in favor of the defendant below, Carnival Corporation. Finding no merit, we affirm the final judgment and therefore find no need to address, and do not address, Carnival Corporation’s cross-appeal.

Affirmed.


author: WELLS, J.

text:
    Tina RUSSO, as Executor de son tort of the Estate of Phyllis Frazier, deceased, Appellant/Cross-Appellee, v. PHILIP MORRIS USA, INC., a Virginia corporation, and R.J. Reynolds Tobacco Company, a North Carolina corporation, Appellees/Cross-Appellants.
    No. 3D15-1348.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2016.
    Gerson & Schwartz, Edward S. Schwartz and Philip M. Gerson, for appellant/cross-appellee.

      Arnold & Porter, and Geoffrey J. Michael, Washington, D.C.; Shook Hardy & Bacon, L.L.P., and William P. Geraghty and Rachel A. Canfield, for appellee/cross-appellant Philip Morris USA, Inc.; Jones Day, and Gregory G. Katsas, Washington, D.C.; Womble Carlyle Sandridge & Rice, and Geoffrey K. Beach and Howell A. Burkhalter, Winston-Salem, N.C.; Carlton Fields Jorden Burt, and Jeffrey A. Cohen, for appellee/cross-appellant, R.J. Reynolds Tobacco Company.
    Before WELLS and LOGUE, JJ, and LEVY, Senior Judge.
   WELLS, J.

The estate of a tobacco plaintiff appeals a final judgment in the defendant tobacco companies’ favor, wherein the estate maintained an addiction to cigarettes containing nicotine was a legal cause of plaintiffs disease and death. Finding no merit to the claims of error raised, we affirm the final judgment and therefore find no need to and do not, address the tobacco company’s cross-appeal.


text:
    AMERICAN AIRLINES FEDERAL CREDIT UNION, Appellant, v. Carlos Hernan FONSECA, and Morgan Stanley Smith Barney, LLC, Appellees.
    No. 3D16-208.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2016.
    Heckman Law Group, and Chad Heck-man, Tallahassee; Ausley & McMullen, and Martin B. Sipple, Tallahassee, for appellant.
    Riley Warnock & Jacobson, and Timothy L. Warnock and Salvador M. Hernán-dez, Nashville, TN; Shumaker Loop & Kendrick, and Michael S. Taaffe and Scott A. La Porta, Sarasota, for appellees.
    Before WELLS, SHEPHERD and SALTER, JJ.
   WELLS, Judge.

American Airlines Federal Credit Union (“AAFCU”), the plaintiff below, appeals from a non-final order compelling arbitration and staying proceedings in the court below. Because we find that the parties did not contract to arbitrate AAFCU’s claims, we reverse and remand for further proceedings in the trial court.

In June 2008, AAFCU entered into an employment agreement with Carlos Fonseca. Under the 2008 agreement, AAFCU hired Fonseca as an investment representative to provide investment advice and to offer and sell securities and insurance products to AAFCU’s members and joint account owners. Because AAF-CU was not a member of the Financial Industry Regulatory Authority (“FIN-RA”), the 2008 agreement required Fonse-ca to become a “registered representative ... of any broker/dealer ... with which AAFCU may enter into a relationship concerning the provision of Investment or Insurance Services.” The agreement also contained several restrictive covenants, including a provision governing use or disclosure of AAFCU’s confidential information and a provision precluding Fonseca, for a period of 12 months following termination of his employment, either from “solicit[ing] or accepting] Investment or Insurance Services from any Client,” or from encouraging any Client to transfer accounts away from AAFCU:

3. COVENANTS TO PROTECT AAFCU’S CLIENTS, GOODWILL, EXPECTATIONS, TRAINING AND CONFIDENTIAL INFORMATION, INVESTMENT AND OTHER INTERESTS.
Covenant One: Non-Use and Non-Disclosure of Confidential Information. In exchange for AAFCU’s agreement to provide Employee with Confidential Information and other consideration referenced in this Agreement, Employee agrees not to directly or indirectly disclose, divulge, reveal, report, publish, transfer or use, for any purpose whatsoever, any Confidential Information at any time during or after his/her Service with AAFCU, other than as required in the course of Employee’s Service, and promises he/she will not allow any unauthorized use of Confidential Information.
Convenant Five: Non-Solicitation!Acceptance of and Non-Interference with Business. Employee agrees that during and for twelve (12) months after his/her Service with AAFCU, other than for the benefit of AAFCU, he/she shall not directly or indirectly, whether on his/her own behalf and/or for the benefit of a third party (including but not limited to any consultant or consulting company) (a) solicit or accept Investment and Insurance Services business from any Client, or (b) solicit, encourage, induce or attempt to influence any Client to cancel, limit or postpone the Client’s Investment and Insurance Services business with AAFCU, to transfer any of the Client’s accounts away from AAFCU and/or to utilize Employee, directly, or indirectly, such Investment and Insurance Services.

(Emphasis added).

This agreement contained no arbitration clause and expressly stated that the parties were free to “seek all available remedies at law or at equity for any breach.” Significantly, the agreement provided it could not be modified absent a writing specifically referring to the 2008 agreement that was signed “by an officer of AAFCU.”

Because AAFCU was not a member of FINRA, Fonseca, as contemplated by the 2008 agreement, entered into a separate, dual employment agreement with AAF-CU’s designated broker/dealer so that Fonseca could sell securities and insurance products to AAFCU clients. This dual employment agreement contained an arbitration clause.

With the 2008 employment agreement still in place, in May 2015, Fonseca resigned from his employment at AAFCU and accepted employment as a registered representative of Morgan Stanley. In August 2015, AAFCU filed the instant action against Fonseca and Morgan Stanley. Counts I through IV of the Amended Complaint alleged that Fonseca breached the above referenced covenants of the 2008 employment agreement by soliciting and accepting investment and insurance services from AAFCU clients within a year of his resignation; by inducing AAFCU clients to cancel their business with AAF-CU and/or to transfer their accounts to Morgan Stanley within a year of his resignation; and by using AAFCU’s clients’ confidential information in order to facilitate the transfer of AAFCU client accounts to Morgan Stanley. Count VI alleged a claim for unjust enrichment against Fonseca. Count VII alleged tor-tious interference with AAFCU’s business relationships against Fonseca. Count V against both Fonseca and Morgan Stanley alleged misappropriation of trade secrets. Thus, all counts of AAFCU’s complaint were strictly within the purview of the non-compete provisions of the 2008 agreement.

In response to AAFCU’s complaint, Fonseca and Morgan Stanley moved to compel arbitration, citing not to the 2008 employment agreement, but to the 2010 dual employment agreement that had been entered into with AAFCU’s then designated broker/dealer. Following a hearing on the matter, the trial court adopted Fonse-ca’s position finding that “[AAFCU’s] claims fall within the scope of the arbitration provision” contained in the dual employment agreement and ordered that this matter proceed to arbitration.

We do not agree and reverse because the claims asserted here flow not from the 2010 dual employment agreement between Fonseca and now Cetera, but from the 2008 employment agreement between AAFCU and Fonseca which contains no arbitration provision. As this court confirmed in All American Semiconductor, Inc. v. Unisys Corp., 637 So.2d 59, 60 (Fla. 3d DCA 1994), the provisions of a second agreement between two parties, which requires arbitration, cannot be extended to a prior, separate agreement between the same parties, “unless the parties expressly agree to arbitrate” both agreements. In this case there is no express agreement to arbitrate disputes arising under both agreements. Thus, because the instant “complaint flows from a relationship and agreement outside the scope of the second and distinct agreement,” no contract to arbitrate exists. See id.

Accordingly, we reverse the order compelling arbitration and staying this matter and remand for further proceedings in the court below.

Reversed and remanded.

      . As contemplated by the 2008 employment agreement, Fonseca entered into a dual employment agreement with AAFCU’s then designated broker/dealer, CUNA Brokerage Services, Inc. ("CUNA”) for the provision of investment services at AAFCU as a registered representative of CUNA. When CUNA was replaced by PrimeVest Financial Services (“PrimeVest”) in 2010, a second dual employment agreement was entered into so that Fonseca would continue to provide investment services at AAFCU as a registered representative of PrimeVest. In 2013, AAF-CU and Fonseca agreed to an assignment of PrimeVest's rights under the 2010 dual employment agreement to yet another designated broker/dealer, Cetera Investment Services, LLC ("Cetera”).

      . This dual employment agreement, which set forth Fonseca’s responsibilities and obligations as a registered representative of the broker/dealer, contained a provision providing that "[a]ny dispute between the parties shall be settled by arbitration before arbitrators sitting in St. Cloud Minnesota.”


author: SUAREZ, C.J.

text:
    Eduardo GARCIA, Petitioner, v. CHRISTIANA TRUST, etc., et al., Respondents.
    No. 3D16-735.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2016.
    Sordo & Associates, P.A.; Arnaldo Velez, for petitioner.
    John L. Penson, P.A, and John L. Pen-son, for respondent Christiana Trust.
    Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
   SUAREZ, C.J.

Eduardo Garcia petitions this court to enforce a mandate issued on June 5, 2014, or alternatively, for a writ of certiorari or prohibition. We treat this appeal as a proceeding for a writ of certiorari and for the reasons stated below, grant the writ and quash the order under review.

This ongoing and factually tortured litigation began when BankUnited sought to foreclose on a mortgage purportedly signed by Eduardo Gareiá and Bertha Garcia, who were husband and wife at the time. Eduardo Garcia and Bertha Garcia held title to the property as tenants by the entireties. A bench trial on the foreclosure action was held and the trial court determined that Eduardo Garcia’s signature on the mortgage documents had been forged by Bertha, his wife. As such, in the final judgment of foreclosure, the trial court determined that BankUnited held a hen for the total sum owed, but not as to defendant Eduardo Garcia as his signature had been forged. The Final Judgment of Foreclosure rendered February 28, 2013, ordered the sale of the property but specifically provided that “[t]he sale shall not include the interest of the Defendant, Eduardo Garcia, who prevailed in this action.” Only the interest of Bertha Garcia was to be sold. Published notice of the sale did not indicate that only one of the two parties’ interests was salable but indicated the sale was for the entire fee. The Garcias filed an emergency motion in the trial court to cancel the sale, citing their ownership by the entirety, and arguing that Eduardo Garcia’s interest could not be separated out for purposes of foreclosure and sale. The trial court denied the emergency motion and the online sale went forward with no changes being made to the publication.

Rocketrider Pictures, LLC, was the purchaser. When Rocketrider, after the sale, discovered that the property had been held as tenants by the entireties, it filed an Objection to Sale in the trial court stating that its bid was based on the assumption it was bidding on the entire fee and because the property had been held by the entire-ties and could not be severed, Rocketrider actually received nothing in the purchase. The trial court denied the motion and Rocketrider appealed. On that appeal, this Court reversed the order denying Rocketrider’s objections to the judicial sale and ordered the trial court to cancel the certificate of title issued to Rocketrider as the buyer, and to return Rocketrider’s bid money. Rocketrider Pictures, LLC v. BankUnited, et al., 138 So.3d 1223 (Fla. 3d DCA 2014). Although the propriety of the foreclosure itself was not an issue in or subject of that appeal, this Court also, however, in its opinion reversed the Final Judgment of Foreclosure to which Rocket-rider was not a party. A mandate on that opinion then issued.

Subsequent to the mandate, Eduardo Garcia sought entry in the trial court of a judgment finding that he is not liable on the note and mortgage, and to quiet title. On October 20, 2015, Christiana Trust, the successor in interest to BankUnited, filed a motion for leave to file an Amended Complaint in foreclosure and to add new counts for breach of promissory note and equitable lien. Relying on the 2014 Rocketrider opinion from this Court that purportedly reversed the Final Judgment below, the trial court denied Eduardo Garcia’s motion for judgment on the pleadings and final judgment. The trial court, relying on this Court’s opinion in Rocketrider that in part ordered reversal of the final judgment in foreclosure, granted the Trust’s leave to amend the Complaint in Foreclosure. Eduardo Garcia appealed bringing us to this point in this tangled litigation.

First, it is important to note that the Final Judgment in Foreclosure entered February 28, 2013, was not appealed and is now, therefore, final. See Makar v. Inv’rs Real Estate Mgmt., 553 So.2d 298, 299 (Fla. 1st DCA 1989) (holding a judgment is a final adjudication of the merits of an action). Indeed, the 2013 Rocketrider appeal was not from the Final Judgment of Foreclosure but was strictly limited to vacating the post-foreclosure judicial sale and returning Rocketrider’s bid money. The only parties to that appeal were the parties to the foreclosure sale, Rocketrider and the Bank; Eduardo Garcia was not a party to that appeal. The Final Judgment of Foreclosure was not at issue in that appeal and the language in Rocketrider purporting to reverse that final judgment is without legal effect. See, e.g., Kippy Corp. v. Colburn, 177 So.2d 193, 197 (Fla. 1965) (“The jurisdiction of appellate courts to correct error in an order is likewise limited by statute and rule in that such a court has no power whatsoever to act in a cause unless the application for review be brought within the time and in the manner provided.”); Denny v. Denny, 334 So.2d 300, 302 (Fla. 1st DCA 1976) (holding that as the final judgment became a final decision, appealable as such, and where no appeal was taken within the time prescribed by the Florida Appellate Rules, neither the trial court nor appellate court has jurisdiction to review it).

As the foreclosure (between Eduardo Garcia and the Bank) was already final at the time Rocketrider filed its June 6, 2013 appeal from the post-judgment sale, the Final Judgment of Foreclosure cannot be reversed nor, for that matter, can it be re-opened. See Liberty Ins. Corp. v. Milne, 98 So.3d 613, 615 (Fla. 4th DCA 2012) (finding a trial court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied); Harbor Bay Condominiums, Inc. v. Basabe, 856 So.2d 1067, 1070 (Fla. 3d DCA 2003).

In this matter, notwithstanding the language contained in the 2014 Rocketrider opinion, neither this Court nor the trial court had jurisdiction to modify or reopen the Final Judgment of Foreclosure because that judgment was final as to Eduardo Garcia and the Bank, and Eduardo Garcia was not a party to the Rocketrider appeal. We therefore treat Eduardo Garcia’s present petition as a request for writ of certiorari, grant the writ and quash the order below granting Christiana Trust’s motion for leave to amend its complaint in foreclosure, and remand with directions to reinstate the February 28, 2013 Final Judgment of Foreclosure.

Petition granted, remanded with directions.

      . "A trial judge is deprived of jurisdiction, not by the manner in which the proceeding is terminated, but by the sheer finality of the act, whether judgment, decree, order or stipulation, which concludes litigation. Once the litigation is terminated and the time for appeal has run, that action is concluded for all time. There is one exception to this absolute finality, and this is rule 1.540, which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.” Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986). That rule was not invoked by the Bank, and the circumstances described by Rule 1.540 were not present in this record.


author: WINOKUR, J.

text:
    Khalef Jamal MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-2046.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2016.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Khalef Jamal Miller appeals his convictions for attempted second-degree murder of a law enforcement officer and fleeing or attempting to elude a law enforcement officer. We affirm the convictions but write to address Miller’s claim that the trial court erroneously permitted the State to question Miller about his post-Miranda silence.

I.

Miller’s charges arose from a drug deal arranged with an undercover officer. When Miller parked at the site of the planned deal (a drugstore parking lot), a police takedown team executed a rear block on Miller’s car, and Miller drove forward onto the sidewalk and hit a detective before eventually crashing his car. Miller was arrested, and after waiving his Miranda rights, spoke to Sergeant White. According to White, Miller said that he was only at the scene to go to the store.

At trial, Miller testified that after his vehicle was hit from behind, he saw a masked man with a gun pointed at him. Miller testified that he believed he was being robbed, and he reacted by trying to get away. Miller testified that he did not see the individual he hit because he was ducking to avoid the guns pointed at him. Additionally, Miller testified that he did not realize he was running from police officers, did not hear sirens, and did not see police lights. On cross-examination, the State elicited testimony from Miller that he never told Sergeant White that he believed he was being robbed or that he saw multiple guns and masked men. Defense counsel objected that questions regarding what Miller did not tell the sergeant infringed upon Miller’s Fifth Amendment right to remain silent. The court overruled the objection.

II.

Miller essentially argues that the prosecution cannot cross-examine a defendant about inconsistencies between the defendant’s trial testimony and statements that the defendant made to police. This argument misconstrues the privilege against self-incrimination.

The United States Constitution and the Constitution of the State of Florida both provide that “[n]o person shall ... be compelled in any criminal matter to be a witness against” oneself. U.S. Const, amend. V; Art. I, § 9, Fla. Const. To ensure this right, the prosecution is prohibited from commenting on the silence of a defendant who asserts it. This principle applies to comment upon the defendant’s failure to testify, Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), as well as comment upon the defendant’s failure to make a statement under custodial interrogation, Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”).

However, this principle is related to the privilege against compelled testimony. It does not mean that the prosecution can never inquire about a defendant’s failure to speak under any circumstances. Although a defendant cannot be compelled to take the stand in his defense, when he does so, the prosecution may inquire about his previous silence for impeachment purposes in some circumstances. More to the point in this case, this principle applies only where the defendant has actually asserted his right not to speak to police or otherwise remain silent. Because Miller spoke to police, with full knowledge of the constitutional consequences of this choice, there can be no infringement on his right to remain silent, because he knowingly waived that right.

The prosecution may not use a defendant’s post-Miranda silence for impeachment purposes. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also State v. Hoggins, 718 So.2d 761 (Fla.1998) (holding that the Florida Constitution prohibits the use of a defendant’s post-arrest silence, even silence occurring prior to administration of Miranda warnings). However, this prohibition “does not apply where the defendant does not invoke his Fifth Amendment privilege against self-incrimination.” Downs v. Moore, 801 So.2d 906, 911 (Fla.2001).

In Dovms, the prosecutor asked Downs on cross-examination if at the time of his arrest he told police any of the information he testified to on direct examination; Downs replied that he did not. Id. at 910. Downs argued that this question violated his Fifth Amendment right to remain silent. The Court held that the question was not improper:

[T]he State’s question obviously was intended to impeach Downs and demonstrate to the jury that Downs’ version of events was concocted sometime after his arrest. This questioning would be inappropriate under Doyle if it referred to Downs’ post-arrest, post-Mircmcto silence and Downs had not waived his constitutional rights. However, the record in the instant case reveals that Downs waived his constitutional rights at the time of his arrest because he agreed to talk with the arresting officers .... [W]e find that Downs waived his constitutional rights and expressed a desire to talk to the police. Accordingly, we find no error with regard to the State’s question or comment.

Id. at 911-12.

The same is true here. The Fifth Amendment does not confer blanket immunity from routine cross-examination designed to test the credibility of the defendant’s testimony. When the defendant waives the privilege against self-incrimination and freely speaks to police, the State is free to treat the defendant’s testimony regarding those statements like that of any other witness. See Ivey v. State, 586 So.2d 1280, 1234 (Fla. 1st DCA 1991) (“Where the defendant does not ‘remain silent’ at the time of arrest, the constitutional right to remain silent is found not to have been exercised, and no fundamental error occurs when the prosecution points out inconsistencies in the defendant’s exculpatory statements at trial.”). Because the trial court did not err in overruling Miller’s objection to these questions, we affirm.

WOLF and WINSOR, JJ., concur.


author: SHEPHERD, J.

text:
    GMAC MORTGAGE, LLC, Appellant, v. Pedro PALENZUELA, et al., Appellees.
    Nos. 3D14-1420, 3D14-2914.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.

      Greenberg Traurig, P.A., and Kimberly S. Mello and Laura J. Bassini, Tampa, for appellant.
    Roniel Rodriguez IV, for appellee, L & L Super Investment, Inc.
    Before WELLS, SHEPHERD and LOGUE, JJ.
   SHEPHERD, J.

The appellant, GMAC Mortgage, LLC, appeals an order releasing escrowed funds in the sum of $393,609.41 to a redeeming party in a mortgage foreclosure action based upon evidence and testimony given at an evidentiary hearing. According to GMAC, the funds represented unpaid interest, insurance premiums, and other es-crowed items. The record, however, contains no transcript of the hearing, and GMAC’s post-hearing efforts to create a record by affidavits of counsel and the GMAC witness who testified are too little too late. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) (affirming because the record brought forward by the appellant was inadequate to demonstrate reversible error). Nor did GMAC attempt to avail itself of the procedure contained in Florida Rule of Appellate Procedure 9.200(b)(4), which governs the preparation of a statement of proceedings when no transcript of the proceeding is available.

GMAC points us to its mortgage documents and section 45.0315 of the Florida Statute (2014), which require that a redeeming party must “tender the performance due under the security agreement” where, as here, “no judgment, order or decree of foreclosure has been entered.” However, for reasons not apparent in the record, the trial court’s order granting the redemption expressly carved out the es-crowed funds for separate treatment. The order reads as follows:

ORDER GRANTING L & L SUPER INVESTMENT, INC. MOTION TO REDEEM
THIS CAUSE having come on to be heard on 4/29/14 on L & L Super Investment, Inc. Motion to Redeem First Mortgage and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the same is hereby The motion is granted. L & L Super Investment, Inc., pursuant to Sec. 45.0315, FI Stat., shall tender to the plaintiff, on or before May 22, 2014, the sum of $1,372,882.39, which upon tender shall constitute redemption of the mortgage recorded in Miami-Dade County, Florida, Official Records Book 21894 at Pages 3515-3532, recorded 12/10/2003, on property known as 6131 SW 128 St, Miami, FL 33156, legally described as Lot 14, Block 13 of Town and Ranch Estates, according to plat thereof as recorded in Plat Book 50 at page 46-Parcel ID 20-5013-003-1270. Upon redemption this Order shall constitute a satisfaction of said mortgage, extinguishing the mortgage of record. The additional sum of $393,609,41 shall be held by the closing agent in escrow pending disposition by the Court, which shall take place on May 20, 2014 at 9:30 a.m. in Room 626. The redemption payment shall be made by wire to Pender-gast & Morgan, P.A. pursuant to its wire instructions, to its account at Sun-trust Bank.

There was no court reporter at the hearing, and GMAC did not seek reconsideration, modification, clarification or review of the order. L & L timely tendered the $1,372,882.39 as required, and the hearing resumed on May 20, 2014, as scheduled. At the close of this hearing, the trial court entered a second order. That order reads as follows:

ORDER RELEASING MONIES HELD BY ESCROW AGENT
THIS CAUSE having come on to be heard on 5/20/14 on [L & L Super Investments, Inc.’s] Motion to Redeem Mortgage and [for] release of monies held by escrow agent and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon based on evidence and testimony given
ORDERED AND ADJUDGED that said Motion be, and the same is hereby
Granted. The escrow agent is hereby directed to release all monies held in escrow pursuant to this Court’s Order dated 4/29/14 to L & L Super Investment, Inc. forthwith.

(Emphasis added.) Again, there was no court reporter present at the hearing.

No doubt discomposed, GMAC sought to redeem itself from its failure to preserve a record for review, not by seeking to recreate it pursuant to Rule 9.200(b)(4), but rather through a motion for rehearing and later filed affidavits of its counsel of record and the witness who testified at the hearing. The gravamen of the testimony by affidavit is that the trial judge erred in not accepting the GMAC transaction history which would have conclusively proved that GMAC was entitled to the escrow. The trial court denied the motion.

GMAC has hung itself on its own petard in this case. It seeks reversal on the basis of a non-existent, proper record. What it really wants is a second chance. However, just as in the rules of golf, there are no mulligans in contested legal cases. With rare exceptions, you either prove your case by the close of the evidence at an evidentiary hearing or trial, or you don’t. Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280 (Fla. 2nd DCA 2014) (“Appellate courts do not generally provide parties an opportunity to retry their case upon a failure of proof.”).

This case may or may not have had a failure of proof. However, it does suffer from the failure of a record, and that is the significant datum for decision purposes. As we have often said, “[w]here there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)[4], a judgment whieh is not fundamentally erroneous on its face must be affirmed.” Zarate v. Deutsche Bank Nat. Trust Co., 81 So.3d 556, 558 (Fla. 3d DCA 2012). There is nothing fundamentally erroneous on the face of the order on appeal in this case.

Affirmed.


author: LAGOA, J.

text:
    ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Joseph HRADECKY, et al., Appellees.
    No. 3D16-999.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.

      Walton Lantaff Schroeder & Carson LLP and John P. Joy and Sara M. San-dler, Fort Lauderdale, for appellant.
    Keller, Keller & Caracuzzo, P.A. and David M. Lores, West Palm Beach; Pur-dy, Jolly, Giuffreda & Barranco, P.A., Fort Lauderdale and Summer M. Barranco, Fort Lauderdale, for appellees.
    Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.
   LAGOA, J.

Allstate Fire and Casualty Insurance Company (“Allstate”) seeks review of the trial court’s order denying Allstate’s motion to dismiss Count II of Plaintiff, Joseph Hradecky’s (“Hradeeky”), complaint based on improper venue. Because the plain and unambiguous language of the Endorsement contains a mandatory forum selection clause for bringing any suit for UM benefits in Pennsylvania, we reverse the trial court’s order and remand.

I. FACTUAL AND PROCEDURAL HISTORY

Allstate issued a personal automobile policy to Hradeeky (the “Policy”). The policy period ran from November 15, 2014 until May 15, 2015, and provided for both Uninsured Motorists (“UM”) and Underin-sured Motorists (“UIM”) coverage. On November 19, 2014, Hradeeky received an Amended Policy Endorsement (the “Endorsement”). Of relevance to this appeal, the address for Hradeeky listed on the Policy Declarations page was 177 McKenzie Road, Clinton, Pennsylvania.

On December 3, 2014, Hradecky’s motor vehicle was rear-ended by a vehicle driven by an officer of the Monroe County Sheriffs Office. At the time of the accident, Hradecky’s vehicle was covered by the Policy and its Endorsement.

Hradeeky subsequently filed suit alleging two counts: Count I for Negligence against Rick Ramsay, as Sheriff of Monroe County, Florida; and Count II for Negligence against Allstate.

Allstate filed a Motion to Dismiss Count II of Plaintiffs Amended Complaint, arguing that dismissal was required based on the following mandatory forum selection clause contained in the Endorsement titled “Pennsylvania Auto Amendatory Endorsement”:

The following endorsement changes your policy. Please read this document carefully and keep it with your policy.
II. In Part 3, Uninsured Motorists Insurance and Underinsured Motorists Insurance, the following changes are made:
E. In Uninsured Motorists Insurance, the If We Cannot Agree provision is replaced by the following:
If We Cannot Agree
If the insured person and we do not agree on that person’s right to receive damages or on the amount, then upon mutual consent, the disagreement will be settled by arbitration. Unless you and we agree otherwise, arbitration will take place in the county in which your address shown on the Policy Declarations is located. If the insured person and we do not agree to arbitrate, then the disagreement will be resolved in a court of competent jurisdiction. Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.

(emphasis in original).

In its Motion, Allstate asserted that Monroe County, Florida was an improper venue for Hradeck/s UM claim and that, based on Hradecky’s address listed on his Policy Declarations page, the Endorsement’s forum selection clause required Hradecky to bring suit in Allegheny County, Pennsylvania.

In response at the hearing, Hradecky argued that “it would be judicially uneconomical” to litigate his UM claim in Pennsylvania while continuing to litigate his negligence claim against the sheriffs office in Florida. Hradecky further argued that because the Endorsement conflicted with the venue clause in the Policy, the provision which provided greater coverage prevailed.

At the hearing on the Motion to Dismiss, the trial court agreed with Hradecky and specifically ruled “that in order for the endorsement to change the policy the way you [Allstate’s counsel] are suggesting, it would have had to have referenced the general provision, as well. And it did not do that. And so it leaves the general provision in the policy intact, and it provides language which conflicts with that.” In its subsequent written order, the trial court denied the motion “for the reasons stated in the record.”

Allstate filed its Motion for Reconsideration of Allstate’s Motion to Dismiss Count II of Plaintiffs Complaint, which the trial court denied without hearing. This appeal ensued.

II. STANDARD OF REVIEW

We review de novo a trial court’s order denying a motion to dismiss based on the interpretation of contractual forum selection clause. See Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So.3d 592, 594 (Fla. 3d DCA 2013); see also State Farm Mut. Auto. Ins. Co. v. Menendez, 24 So.3d 809, 810 (Fla. 3d DCA 2010) (“Because the interpretation of an insurance contract presents a question of law, this Court’s standard of review is de novo.”), quashed on other grounds, 70 So.3d 566 (Fla.2011).

III. ANALYSIS

A. ENDORSEMENTS PREVAIL OVER GENERAL INSURANCE POLICY

Under Florida law, an insurance policy is treated like a contract, and therefore ordinary contract principles govern the interpretation and construction of such policy. See Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., 95 So.3d 290 (Fla. 3d DCA 2012). In denying Allstate’s Motion to Dismiss, the trial court specifically found that the general venue provisions of the Policy prevailed over the forum selection clause contained in the Endorsement. We find that the trial court erred in its finding.

The law in Florida is clear that to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls. See Family Care Ctr., P.A. v. Truck Ins. Exch., 875 So.2d 750, 752 (Fla. 4th DCA 2004) (“Even if there were an ambiguity between the endorsement and the body of the policy, the endorsement, which is clear, controls.”); Fireman’s Fund Ins. Co. v. Levine & Partners, P.A., 848 So.2d 1186, 1187 (Fla. 3d DCA 2003) (finding that “the terms of an endorsement such as the one sued upon control over anything purportedly to the contrary in any other insuring agreement”); Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s London, 696 So.2d 376, 379 (Fla. 1st DCA 1997) (finding that “to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls”).

Here, the Endorsement modifies and amends the insurance contract with respect to forum selection. Specifically, the Endorsement states that “[a]ny and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.” (emphasis in original). Moreover, “[e]ven if there were an ambiguity between the endorsement and the body of the policy, the endorsement, which is clear, controls.” Family Care Ctr., 875 So.2d at 752. Accordingly, we find that the trial court erred in finding that the Policy’s endorsement language did not control.

B. MANDATORY VS. PERMISSIVE FORUM SLECTION CLAUSES

Our analysis, however, does not end with the finding that the Endorsement’s language controls, as we must consider whether the Endorsement’s forum selection clause is mandatory or permissive. Whether a forum selection clause is mandatory or permissive depends on language indicating exclusivity. See Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007). If the forum selection clause states that any litigation must or shall be initiated in a specified forum, the clause is mandatory. Absent such language, the clause is permissive. Id.

The Endorsement’s forum selection clause states: “Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.” (emphasis in original). Because the clause at issue specifically provides that litigation “shall be brought, heard, and decided” in a specified forum (in this case, the county for the address shown on Hradecky’s Policy Declarations page), we find that the clause is mandatory. See Golden Palm Hosp. Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231, 1237 (Fla. 5th DCA 2004) (finding that use of the word “shall” in the documents is “indicative of a mandatory provision rather than one that is permissive”).

Absent a showing that a mandatory forum selection clause is unreasonable or unjust, a trial court must enforce the clause. See Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986); see also Farmers Group, Inc. v. Madio & Co., Inc., 869 So.2d 581, 582 (Fla. 4th DCA 2004).

It is not enough to show that litigation in the forum would result in additional expense or inconvenience. Instead, a party challenging a mandatory forum selection clause as unreasonable or unjust must establish that trial of this case outside of Florida would be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. See Manrique, 493 So.2d at 440 n. 4; see also Farmers, 869 So.2d at 583.

Here, the trial court made no finding that the Endorsement’s mandatory forum selection clause was unreasonable or unjust. Nor could it have made such a finding, as Hradecky neither argued below that the Endorsement’s clause was unreasonable or unjust, nor presented any evidence to that effect. Instead, Hradecky argued below that “it would be judicially uneconomical” to have him litigate his UM claim in Pennsylvania while litigating his negligence claim against the Sherriff s office in Florida.

Absent findings or record evidence establishing unreasonableness or unjustness of the forum selection clause, we cannot find that the clause at issue is invalid. See Taurus Stornoway Invs., LLC v. Kerley, 38 So.3d 840, 843 (Fla. 1st DCA 2010) (finding forum selection clause valid absent any argument or record evidence establishing an unreasonable or unjust result).

III. CONCLUSION

Accordingly, for the reasons stated, we reverse the trial court’s denial of Allstate’s Motion to Dismiss Count II based on improper venue and we remand for entry of an order of dismissal.

Reversed and remanded for proceedings consistent with this opinion.

      . Count II is the only claim alleged against Allstate.

      . Although Hradeeky styled Count II of the Amended Complaint as a negligence claim, a review of the allegations shows that the claim is one for failure to pay contractual UM benefits under the Policy, i.e., a claim for breach of contract. Count II of the Amended Complaint asserts that "Hradeeky had in effect [at the time] an uninsured/underinsured motorist insurance policy with Defendant [Allstate] which would inure to the benefit of the Plaintiff Joseph Hradeeky, in that, Defendant, Rick Ramsay, as Sheriff of Monroe County, Florida, is uninsured.”


author: EMAS, J.

text:
    Christopher D. VASALLO, esq., Petitioner, v. Terrence BEAN, et al., Respondents.
    No. 3D16-1862.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    The Powell Law Firm and Brett C. Powell, for petitioner.
    Dunwody White & Landon and Jack A. Falk, Jr.; Carlton Fields Jorden Burt and Thomas Meeks; Duane Morris and Marsha G. Madorsky; Kluger, Kaplan, Silver-man, Katzen & Levine, Bruce A. Katzen, Ronald C. Dresnick, Jamie L. Zuckerman and Josh M. Rubens; Samson Appellate Law and Daniel M. Samson; Russomanno & Borrello, Herman J. Russomanno, Robert J. Borrello and Herman J. Russoman-no III, for respondents.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   EMAS, J.

The proceedings below involve an action seeking to revoke probate of two wills, one executed in 2012 and the other in 2013. In that action, four of the testator’s children challenge the testamentary capacity of their mother, and assert that the wills were the product of undue influence by a fifth child, the only child named as a devi-see in the testator’s 2013 will.

The petitioner, Christopher Vasallo, Esq., a non-party to the will contest, was the testator’s estate planning attorney, and prepared the wills on his client’s behalf and at his client’s direction. Mr. Vasallo, asserting attorney-client privilege and confidentiality, seeks certiorari review of the trial court’s order which compelled him to answer counsels’ questions at deposition relating to the testator’s “reasons for disinheriting” the other children.

We deny the petition for writ of certio-rari, as petitioner has failed to establish that the trial court’s order constitutes a departure from the essential requirements of the law. See § 90.502(4)(b), Fla. Stat. (2016) (providing that “[t]here is no lawyer-client privilege under this section when: ... A communication is relevant to an issue between parties who claim through the same deceased client.”) See also Law Revision Council Note (1976) to § 90.502(4)(b) (noting that “[w]hen multiple parties claim through the same decedent, as in a will contest or a challenge to testate or intestate succession, each party claims to best represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator’s wishes. This subsection simply disallows the privilege in favor of the policies stated above”) (internal citation omitted); In re Estate of Marden, 355 So.2d 121, 127 (Fla. 3d DCA 1978) (holding that “[a]n attorney’s testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.”) Petitioner’s assertion that the statements made to him by the testator are “confidential” under Rule 4-1.6, Rules Regulating the Florida Bar, is unavailing in this circumstance. See R. Regulating Fla. Bar 4-1.6, cmt. (“The attorney-client privilege [section 90.502] applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality [rule 4-1.6] applies in situations other than those where evidence is sought from the lawyer through compulsion of law”);. Coffey-Garcia v. South Miami Hosp., Inc., 194 So.3d 533, 536 n. 1 (Fla. 3d DCA 2016) (observing that “[t]he distinction between the Ethics Code and Evidence Code is significant because Florida courts have interpreted the Ethics Code’s rule of client-lawyer confidentiality to be broader in scope than the Evidence Code’s attorney-client privilege.”)

Petition denied.