author: Hanzman, Michael A., Associate Judge.

text:
    PALM BEACH COUNTY SHERIFF’S OFFICE and Ric L. Bradshaw, In His Official Capacity as Palm Beach County Sheriff, Appellants, v. SUN-SENTINEL COMPANY, LLC, Appellee.
    No. 4D17-1060
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]

      Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellants.
    Dana J. McElroy, Rachel Fugate and James J. McGuire of Thomas & LoCicero PL, Fort Lauderdale, for appellee.
   Hanzman, Michael A., Associate Judge.

Introduction

Appellants, Palm Beach County Sheriffs Office and Ric L. Bradshaw (collectively PBSO), appeal the trial court’s final judgment ordering that they disclose the identity of witnesses to a murder pursuant to a public records request made by Appellee, Sun Sentinel Company, LLC (Sun-Sentinel). While we conclude that the trial court properly applied the relevant provisions of Florida’s Public Records Act (Act) in force at the time of its decision, we nevertheless reverse because a recent statutory amendment to Chapter 119 now dictates that the identity of any witness to a murder is both exempt from disclosure and confidential “for 2 years after the date on which the murder is observed by the witness.” § 119.071(2)(m)l., Florida Statutes (2017). We hold that this amendment applies retroactively and prevents disclosure of the information Sun-Sentinel requests.

Facts and Procedural History

In February 2017, a perpetrator who remains at large shot and lolled Antoine Smith as he was driving on Interstate 95. Another vehicle with two occupants followed the suspect’s car in an effort to obtain its license plate number. To deter these good Samaritans, the perpetrator fired shots which struck their vehicle but fortunately did not result, in personal injury.

Shortly thereafter, Sun-Sentinel sent a public records request to PBSO, requesting, among other things, the names of the individuals who pursued the assailant. PBSO refused this request because, in its view: (a) the identity of witnesses to a crime was covered by the so-called “active criminal investigative information” exception to the Act; and (b) as these “witnesses” were not “victims” of the primary crime being investigated (the homicide), the statutory “exception” to this “exemption”—which compels disclosure of the identity of “the victim of a crime”—was not implicated. See § 119.011(3)(c)2., Fla. Stat. (2017) (“Criminal investigative information” shall not include “[t]he name, sex, age, and address of ... the victim of a crime[.]”). Put simply, PBSO claimed that these good Samaritans should be considered “witnesses”—not “victims”—for purposes of applying the relevant provisions of the Act.

As required by chapter 119, Florida Statutes, the trial court held an expedited hearing on Sun-Sentinel’s complaint to compel the release of this information. During this hearing, PBSO’s counsel informed the trial court that: (a) there was an open and active homicide investigation pending; (b) the perpetrator—and others who may have been accomplices—were still at large and armed and dangerous; (c) the two individuals who witnessed the murder were able to identify the perpetrator; and (d) disclosure of these witnesses’ names would put their lives in danger and compromise the investigation. Counsel, as well as a law enforcement witness, also advised the trial court that although these individuals were shot at, “they happen to be victims because they’re witnesses,” and PBSO was “treating them as witnesses more so than victims.”

Sun-Sentinel maintained that these facts made no difference because: (a) exceptions to the Act must be narrowly construed; (b) information is exempt from disclosure only if expressly authorized by statute; (c) the Act unambiguously provides that the identity of “victims” is not “criminal investigative information” exempt from disclosure; (d) the individuals, who gave chase had been shot at and were clearly “victims” of a crime; and (e) the Act does not contain an exception to disclosure for identifying information of “victims” who also happen to be “witnesses.” Sun-Sentinel then urged the trial court to apply the Act, as plainly written, and compel disclosure.

At the conclusion of the expedited hearing, the trial court orally granted Sun-Sentinel’s request and directed disclosure, finding that these individuals—while primarily witnesses—also were victims and, as a result, their identifying information was- specifically excluded from the definition of. “active criminal- investigative information” and hence outside the reach of this exemption. See § 119.011(3)(c)2., Fla. Stat. (2017). The trial court also granted PBSO’s request for a stay pending appeal. On April 6, 2017 the trial court entered its final order on Sun-Sentinel’s complaint which memorialized its earlier oral ruling. This appeal ensued. Our standard of review is de novo. See Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1018 (Fla. 2003) (recognizing that a trial court’s ruling concerning the status of a public record is subject to “de novo” review); Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So.3d 851, 855 (Fla. 1st DCA 2013) (“Where purely legal issues of whether a document is a public record and subject to disclosure are involved, we have de novo review.”).

Analysis

Article I, Section 24(a) of the Florida Constitution grants “[ejvery person ... the right to inspect or copy any public record made or recéived in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.” Chapter 119 of the Florida Statutes—known as the Public Records Act—implements this important constitutional tenet, and declares: “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each-agency.” § 119.01(1), Fla. Stat. (2017). “The general purpose- of the Florida Public Records Act is to open public records so that Florida’s citizens can discover, the actions of their government.” City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994).

Given that the right of access to public records is a “cornerstone of. our political culture,” Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So.3d 120, 124 (Fla. 2016) (citation omitted), it is well settled that the Act must be liberally construed in favor of access, and all exemptions must'be limited to their stated purpose. See Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1206 (Fla. 1st DCA 2009); Riviera Beach, 642 So.2d at 1136; Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775, 779 n.1 (Fla. 4th DCA 1985). Also well settled is the principle that courts may not create exemptions to disclosure:

[T]he Public Records Act ... excludes any judicially created privilege of confidentiality and: exempts from public disclosure only those public records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.

Wait v. Fla. Power & Light Co., 372 So.2d 420, 425 (Fla. 1979). This is so be: cause, as we explained in Bludworth, “[t]he rules of statutory interpretation include the principle that when the legislature has enumerated exceptions it has shown that it intends to’‘leave all unmentioned items subject to the law.” 476 So.2d at 779 n.1. See also Tribune Co. v. Cannella, 458 So.2d 1075, 1078 (Fla. 1984) (declining to “write into the statute something that is not there”); Morris Publ’g Grp., LLC v. Fla. Dep’t of Educ., 133 So.3d 957, 960 (Fla. 1st DCA 2013) (recognizing that a court may not “expand an exclusion to the public records act beyond what was plainly intended by the Legislature”).

Unlike courts, the Legislature is constitutionally authorized to provide “for the exemption of records,” see. Fla. Const. art. 1 § 24(c), and it exercises this authority when necessary to further an important public policy. The exemption at issue here—codified in section 119.071(2)(c)l., Florida Statutes—authorizes a public agency to refuse access to “[ajctive criminal intelligence information and active criminal investigative information.” § 119.071(2)(c)1, Fla. Stat. (2017). This exemption furthers “the critical importance of preserving the confidentiality of police records surrounding and compiled during an active criminal investigation,” Riviera Beach, 642 So.2d at 1136, and is intended to “prevent premature disclosure of information during an ongoing investigation being conducted in good faith by criminal justice authorities.” Barfield v. City of Ft. Lauderdale Police Dep’t, 639 So.2d 1012, 1017 (Fla. 4th DCA 1994); see also Fla. Freedom Newspapers, Inc. v. Dempsey, 478 So.2d 1128, 1131 (Fla. 1st DCA 1985) (“[T]he legislature fully comprehended that disclosure of the status of a criminal investigation by requiring production of particular information developed during its progress would often impede the development of new leads and prevent successful conclusion of the investigation and the arrest of the offender.”).

The Act defines “[cjriminal intelligence information” to include “information ... collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” § 119.011(3)(a), Fla. Stat. (2017). “Criminal investigative information” is defined to include “information .,. compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.” § 119.011(3)(b), Fla. Stat. (2017). While information secured by law enforcement that identifies victims of a crime clearly falls within these provisions, the Act, with certain exceptions not relevant here, provides that “[cjriminal intelligence information” and “criminal investigative information” shall not include “[tjhe name, sex, age, and address of a person arrested or of the victim of a crime[.j” § 119.011(3)(e)2., Fla. Stat. Thus, the statute, as plainly written, excepts victim information from what would otherwise be this applicable exemption from disclosure.

Despite the plain meaning of this exception to the exemption, PBSO argued below, and continues to argue before us, that the only victim of the crime being investigated was Mr, Smith, and that the good Samaritans who pursued the shooter were primarily witnesses. And the primary crime—according to PBSO—was the homicide. PBSO therefore asserts that despite being shot at as part of this single criminal episode, these individuals should be considered witnesses covered under the exemption, but not victims for purposes of the exception. We disagree.

. PBSO’s argument rests upon the premise that only a single crime occurred here, and that despite being shot at the good Samaritans who pursued the assailant were not victims of a crime because another and more deadly crime occurred moments earlier. These individuals, however, were clearly victims of “a” crime and thus their identifying information fits within the exception to the exemption.

Acceptance of PBSO’s argument would also—as a matter of statutory construction—thwart legislative intent because, as a practical matter, many—if not most— victims of crimes are also witnesses. See Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State, 209 So.3d 1181, 1189 (Fla. 2017) (“All parts of the statute must be given effect, and the Court should avoid a reading of the statute that renders any part meaningless.”). But the Legislature chose to make victim identification information subject to disclosure even if the victim is also a witness to the crime. It is not this Court’s prerogative to question the wisdom of that policy choice. See Benjamin N. Cardozo, The Paradoxes op Legal Science, 125 (1928) (“[W]hen the legislature has spoken, and declared one interest superior to another, a court must subordinate her personal belief to that so declared”); Robinson v. State, 205 So.3d 584, 591 (Fla. 2016) (“[Ljegislative intent must not be determined based on ‘this Court’s view of the best policy.’ ” (citation omitted)). So if public policy favors protecting “victim/witness” information from disclosure, that policy must be implemented by the Legislature, not this Court. Forsberg v. Hous. Auth. of City of Miami Beach, 455 So.2d 373, 374 (Fla. 1984) (“Any change, exception, or modification [to the Public Records Act] must, of necessity, come from the legislature.”).

The trial court properly applied section 119.011(3)(e)2., as plainly written, and correctly concluded that the names of these individuals were not exempt from disclosure as criminal intelligence or investigative information. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (“[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” (citation omitted)).

This conclusion, however, does not end our analysis because the Legislature recently amended chapter 119 to provide:

Criminal intelligence information or criminal investigative information that reveals the personal identifying information of a witness to a murder, as described in s. 782.04, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for 2 years after the date on which the murder is observed by the witness. A criminal justice agency may disclose such information:
a. In the furtherance of its official duties and responsibilities.
b. To assist in locating or identifying the witness if the agency believes the witness to be missing or endangered.
c. To another governmental agency for use in the performance of its official duties and responsibilities.
d. To the parties in a pending criminal prosecution'as required by law.

§ 119.071(2)(m)1., Fla. Stat. (2017).

Inspiring this amendment was the Legislature’s finding that:

it is a public necessity that personal identifying information of a witness to a murder, as described in s. 782.04, Florida Statutes, be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution for 2 years after the date on which the murder is observed by the witness. The judicial system cannot function without the participation of witnesses. Complete cooperation and truthful testimony of witnesses is essential to the determination of the facts of a case. The public disclosure of personal identifying information of a witness to a murder could have an undesirable chilling effect on witnesses stepping forward and providing their eyewitness accounts of murders. A witness to a murder may be unwilling to cooperate fully with law enforcement officers if the witness knows his or her personal identifying information can be made publicly available. A witness may be less likely to call a law enforcement officer and report a murder if his or her personal identifying information is made available in connection with the murder that is being reported or under investigation. The Legislature further finds that a witness could become the subject of intimidation tactics or threats by the perpetrator of the murder if the witness’s personal identifying information is publicly available. For these reasons, the Legislature finds that it is a public necessity that the personal identifying information of a witness to a murder, as described in s. 782.04, Florida Statutes, be made confidential and exempt from public records requirements.

Ch. 2017-11, § 4, Laws of Fla. (2017).

The effect of this legislative amendment to section 119.071 is that identifying information of a witness to a murder is not only exempt, which gives law enforcement agencies discretion in disclosing or not disclosing the information, but also confidential, which means that the agency has no discretion except for in the limited scenarios provided for in the amended statute. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004) (“There is a difference between records the Legislature has determined to be exempt from The Florida Public Records Act and those which the Legislature has determined to be exempt from The Florida Public Records Act and confidential. If information is made confidential in the statutes, the information is not subject to inspection by the public and may only be released to the persons or organizations designated in the statute.”).

This newly enacted exemption is free-standing and it therefore makes no difference whether a witness to a murder is also a victim whose identity is not itself considered criminal intelligence or investigative information, as both provisions of the Act may be easily harmonized. See Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla. 1977) (“Where possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act.”). As we pointed out earlier, while section 119.011(3)(c)2. clearly provides that victim identification information is not considered “criminal intelligence information” or “criminal investigative information,” when information compiled by law enforcement agencies (i.e., criminal investigative materials) “reveals the personal identifying information of a witness to a murder” that information is protected from disclosure even if that witness also happens to be a victim. Put simply, just as a victim’s information is subject to disclosure even if that victim also happens to be a witness, information regarding a witness to a murder is protected even if that witness also happens to be a victim. The two provisions are completely compatible and, even if they were not, the specific statute protecting the identity of witnesses to a murder would control. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1073 (Fla. 2006); Rochester v. State, 95 So.3d 407, 409 (Fla. 4th DCA 2012) (stating that a specific statute is controlling over a more general statute covering the same general subject, as the former is considered to be an exception to the latter).

The information Sun-Sentinel requests falls comfortably within the newly enacted exemption, and we conclude that this legislation applies retroactively. See City of Orlando v. Desjardins, 493 So.2d 1027, 1028 (Fla. 1986) (finding that exemption of Public Records Act enacted after cause of action accrued applied retroactively because statute was remedial and “should be retroactively applied in order to serve its intended purposes”); News-Press Publ’g Co. v. Kaune, 511 So.2d 1023, 1026 (Fla. 2d DCA 1987) (“[W]e believe section 112.08(7) [exempting certain medical records from Chapter 119] is remedial and thereby retroactive, [even though] we do not have to so determine.”); Roberts v. Butterworth, 668 So.2d 580, 581-82 (Fla. 1996) (holding that work product exemption in section 119.07(3)(Z) is remedial in nature and applies retroactively).

Conclusion

Having determined that the information sought by Sun-Sentinel is not subject to disclosure, the trial- court’s final judgment is reversed. On remand, the trial court is directed to enter final judgment in favor of PBSO.

Reversed and remanded with instructions.

Ciklin and Damoorgian, JJ., concur.

      . Section 782.04 is the homicide statute.

      . The amendment did not go into effect until after Sun-Sentinel made its initial request.

      . For purposes of a retroactivity analysis, the case at hand is indistinguishable from Roberts. There, the newly enacted exemption was based upon a public necessity to exempt the work product of the Attorney General’s Office from disclosure during post-conviction proceedings, as such premature disclosure could “interfere'with the effective and efficient ad- ‘ ministration of government.” Roberts, 668 So.2d at 581 n.5. Here, the Legislature enacted the "murder-witness” exemption to further the compelling public purpose of securing cooperation and truthful testimony of witnesses, and it found that the premature public disclosure of identifying information "of a witness to a murder could have an undesirable chilling effect on witnesses stepping forward and providing their eyewitness accounts of murders.” Ch. 2017-11, § 4, Laws of Fla. (2017). So just as the Roberts court concluded that the "work product” exemption was remedial legislation that applied' retroactively, we find that the “murder-witness exemption”, applies here.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    Justin FRIEDLE and Sandra Friedle, Appellants, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as successor-in-interest to JPMorgan Chase Bank, N.A., as trustee for Structured Asset Mortgage Investments II Inc., Bear Stearns Alt-A Trust, Mortgage Passthrough Certificates, Series 2005-10, Appellee.
    No. 4D15-1750
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]

      Thomas Erskine .Ice of Ice Appellate, Royal Palm Beach, for appellants.
    William L. Grimsley and N. Mark New, II of McGlinchey Stafford, Jacksonville, for appellee.
    William P. Keller of Akerman LLP, Fort Lauderdale, and Nancy M. Wallace of Akerman LLP, Tallahassee, for Amicus Curiae Mortgage Bankers Association.
   ON MOTION FOR REHEARING

Warner, J.

We grant the motions for. rehearing and clarification filed by appellee and amicus, withdraw the opinion, and substitute the following opinion in its place,

Appellants challenge a final judgment of foreclosure, contending that the Bank failed to prove standing. Because the ap-pellee did not prove that'the Bank had possession of the note and was thus a holder at the time 'of the filing of the complaint, we reverse.

The standard of review in determining whether a party has standing to bring an action is de novo. Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014), To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note at the time of the filing of the complaint as well as at trial. See Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA 2012). In this case, the foreclosing bank’s witness could not testify that the Bank had possession of the note prior to filing the complaint. The Bank conceded that it presented no testimony that its present servicer or its prior servi-cer had possession of the note at the inception of the foreclosure action.

At trial, the Bank attempted to prove possession of the note through a Pooling and Service Agreement (“PSA”). That document purports to show the transfer of the mortgage loan to the Bank as trustee. Appellant objected to the admission of this evidence, which the court allowed on the ground that it was . self-authenticating under section 90.902, Florida Statutes (2016). While it was certified by the Securities and Exchange Commission (“SEC”) as being filed with that agency, and thus was self-authenticating, there is a difference between authentication and admissibility. Charles Ehrhardt explains the difference:

Documents must be authenticated before they are admissible evidence .... Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable. For example, when a document is hearsay, it is inadmissible even if it has been properly authenticated.

Charles W. Ehrhardt, Florida Evidence § 902.1 (2017 ed.). Here, the PSA purportedly establishes a trust of pooled mortgages, but this particular mortgage was not referenced in the documents filed with the SEC. Appellant objected that the document was hearsay, as none of the exceptions to the hearsay rule were established. The Bank did not present sufficient evidence through its witness to admit this unsigned document as its business record. While the witness testified that a mortgage loan schedule, which listed the subject mortgage, was part of the Bank’s business records, the mortgage loan schedule itself does not purport to show that the actual loan was physically transferred. And it is clear from the testimony that the witness had no knowledge of the workings of the PSA or MLS, nor did any other document or testimony show that the note was transferred to the Bank in accordance with the terms of the PSA. Therefore, the evidence in this case does not establish that this mortgage note was within the possession of the Bank as Trustee at the time suit was filed.

In its answer brief, the Bank also relies on Ortiz v. PNC Bank, National Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016), to support the court’s rulings under a tipsy coachman analysis. In Ortiz, we created a presumption of standing if the note attached to the complaint was the same as the note introduced at trial. We said:

[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

Id. at 925 (emphasis added). Here, the note attached to the complaint was not in the same condition as the original note introduced at trial, as pointed out by the appellants in their reply brief. Although the differences may seem minor, Ortiz infers possession at the time of filing suit where the copy attached to the complaint and the original are the same, as the copy must have been made from the original note at the time that the complaint was filed, without evidence to the contrary. Where the copy differs from the original, the copy could have been made at a significantly earlier time and does not carry the same inference of possession at the filing of the complaint. In this case, as Ortiz had not been decided at the time of the trial, no effort was made to explain the discrepancies in the condition of the note attached to the complaint or the original introduced into evidence. Thus, reliance on Ortiz under a tipsy coachman analysis is not appropriate on the record made in this case. Although appellate courts generally apply the law in effect at the time of the appellate court’s decision, Florida East Coast Railway Co. v. Rouse, 194 So.2d 260, 262 (Fla. 1966), the record must be sufficiently developed to support an alternative theory for affirmance. See State Farm Fire and Casualty Co v. Levine, 837 So.2d 363 (Fla. 2002) (ruling that the court could not affirm a decision based on an alternative legal theory where the alternate ground had not been developed in the record, stating “The key to applying the tipsy coachman doctrine, permitting a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons, is that the record before the trial court must support the alternative theory or principle of law.”).

Because the Bank failed to prove its standing at the filing of suit, the court erred in entering the final judgment of foreclosure. We reverse and remand for vacation of the final judgment and entry of an involuntary dismissal of the complaint.

Taylor and Levine, JJ., concur.

      . We have held in past cases that the PSA together with a mortgage loan schedule are sufficient to prove standing, but in those cases the witness offering the evidence appears to have been able to testify to the relationship of the various documents and their workings, or that the documents were admitted into evidence without objection, See, e.g., Bolous v. U.S. Bank Nat’l Ass’n., 210 So.3d 691 (Fla. 4th DCA 2016).


author: Taylor, J.

text:
    Georgeta MILLER, Appellant, v. FINIZIO & FINIZIO, P.A., a Florida professional association, Paul G. Finizio and Anya E. Macias, Appellees.
    Nos. 4D15-4649 and 4D16-831
    District Court of Appeal of Florida, Fourth District.
    [ August 23, 2017 ]

      Georgeta Miller, Weston, pro se.

      Scott A. Cole and Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for appellees.
   Taylor, J.

In this legal malpractice action arising out of divorce litigation, the plaintiff, Georgeta Miller, appeals an amended final judgment on the pleadings entered in favor of the defendants, Finizio & Finizio, P.A., Paul Finizio, and Anya Macias. We reverse.

Background and Underlying Dissolution Proceeding

This legal malpractice action has its genesis in a marital dissolution proceeding between the plaintiff and her former husband. The defendants, Finizio & Finizio, P.A., Paul Finizio, and Anya Macias, represented the plaintiff in the dissolution proceeding.

In November 2006, the plaintiff entered into a marital settlement agreement with her husband, which largely dealt with custody and child support issues with respect to the parties’ two minor children.

At the final hearing in the dissolution action, the parties announced that they had reached an agreement on all the issues in the case. Thé parties agreed that: (1) the plaintiff would pay $60,000 to the trust account of the husband’s lawyer in exchange for a quitclaim deed to the marital home; (2) both parties would waive alimony; and (3) everything else would be covered by the marital settlement agreement. The plaintiff stated under oath that she agreed to be bound by the marital settlement agreement and by the terms that her lawyer announced on the record.

In January 2007, the family court entered a final judgment of dissolution of marriage, incorporating the terms of the written marital settlement agreement as well as the terms of the agreement announced in open court.

The Legal Malpractice Action

In January 2009, the plaintiff, through counsel, filed a legal malpractice action against the defendants stemming from their representation of her in the dissolution action. The plaintiff alleged that the defendants violated the standard of care in numerous ways,, including, among other things: (1) failing to obtain the required financial disclosures from the husband; and (2) informing the plaintiff that she could just sign the. marital settlement agreement, and. that the plaintiff and her counsel would pursue the financial disclosures and equitable distribution at a later date. The plaintiff further alleged that, as a result of the defendants’ violations of the standard of care, she was damaged in that she relied upon the defendants’ advice and signed a highly disadvantageous agreement, resulting in a final judgment with much less favorable terms than would have otherwise been the case.

The defendants filed an Answer and Affirmative Defenses, which they later amended.

After the defendants filed their original answer, the. plaintiffs counsel withdrew from the case and the plaintiff began representing herself.

The legal malpractice case was later abated while the plaintiff pursued multiple unsuccessful motions to vacate the final judgment of dissolution of marriage under Florida Rule of Civil Procedure 1.540(b).

After the legal malpractice case was reopened, the defendants eventually filed an Amended Motion for Judgment on the Pleadings, arguing that: (1) because the plaintiff knowingly and voluntarily entered into the martial settlement agreement, her legal malpractice action was improper; and (2) the plaintiff could not prove re-dressable harm because the marital settlement agreement is always subject to modification in the family court based on changed circumstances.

Following a hearing, the trial court granted the Amended Motion for Judgment on the Pleadings. This appeal ensued.

Parties’ Arguments

On appeal, the plaintiff argues, in relevant part, that her legal malpractice suit was not barred by the marital settlement agreement incorporated in the final dissolution judgment, that she suffered redress-able harm, and that the trial court erred in entering judgment on the pleadings.

In response, the defendants argue that: (1) the plaintiffs knowing and voluntary entry into the marital settlement agreement is a bar to her legal malpractice action; and (2) the legal malpractice action is improper because the marital settlement agreement is always subject to modification in the family court.

Standard of Review

The standard of review applicable to a judgment on the pleadings is de novo. Lutz v. Protective Life Ins. Co., 951 So.2d 884, 887 (Fla. 4th DCA 2007). “The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts.” Barentine v. Clements, 328 So.2d 878, 879 (Fla. 2d DCA 1976). A motion for judgment on the pleadings “is similar to a motion to dismiss and raises only questions of law arising out of the pleadings.” Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1251, 1253 (Fla. 4th DCA 1982). Where a defendant moves for judgment on the pleadings, a court must take as true all of the material allegations in the plaintiffs complaint and must disregard all of the denials in the defendant’s answer. Lutz, 951 So.2d at 887.

Legal Analysis

“A cause of action for legal malpractice has three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s negligence was the proximate cause of loss to the client.” R.S.B. Ventures, Inc. v. Berlowitz, 211 So.3d 259, 263 (Fla. 4th DCA 2017).

The proposition that a lawyer may be held liable for malpractice in connection with “a case that was ultimately settled by the client, whether based on deficiencies in preparation that prejudiced the case and more or less required a settlement or on a negligent evaluation of the client’s case, has been accepted by nearly every court that has faced the issue.” Thomas v. Bethea, 351 Md. 513, 527, 718 A.2d 1187, 1194 (1998).

Florida courts are no exception. Under Florida law, a client’s mere acceptance of a settlement in a prior case does not automatically foreclose the client from bringing a malpractice suit against the attorney who handled the case. Keramati v. Schackow, 553 So.2d 741, 745-46 (Fla. 5th DCA 1989). A client’s agreement to settle a case does not, as a matter of law, negate “any alleged legal malpractice as a proximate cause of loss.” Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A., 555 So.2d 455, 456 (Fla. 2d DCA 1990). Instead, “[t]his is a matter of proof for trial.” Id.

To establish proximate causation for legal malpractice arising out of-a settlement, the client must demonstrate that there is an amount of damages which he or she would have recovered but for the lawyer’s negligence. Tarleton v. Arnstein & Lehr, 719 So.2d 325, 328-30 (Fla. 4th DCA 1998).

Here, the plaintiffs complaint undoubtedly alleged each element of a cause of action for legal malpractice. Therefore, we must decide whether the plaintiffs claim is otherwise barred for any of the reasons asserted by the defendants.

Contrary to the defendants’ first argument, the plaintiffs voluntary acceptance of the marital settlement agreement does not bar her legal malpractice action as a matter of law. An attorney is not “insulated from liability for failing to exercise ordinary skill and care in resolving settlement issues.” Sauer v. Flanagan & Maniotis, P.A., 748 So.2d 1079, 1082 (Fla. 4th DCA 2000). Likewise, a client cannot be faulted “for relying on an attorney’s erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise.” Tarleton, 719 So.2d at 331. Accordingly, the defendants’ first argument flies in the face of well-settled principles of Florida law.

The defendants rely primarily on George v. Cigna Insurance Co., 691 So.2d 1209 (Fla. 3d DCA 1997), in support of their contention that “where a client confirms the settlement of a claim, the client cannot then sue for legal malpractice.” However, George does not stand for such a broad proposition.

In George, the client sued his former lawyers for legal malpractice for settling a lawsuit without his consent, but the client had previously told his lawyers that he had “no objection” to the proposed letter that ultimately settled the case. Id. at 1211-12. The appellate court affirmed summary judgment in favor of the lawyers on the malpractice claim, reasoning that, “[leaving given consent, it is too late for [the client] to change position now.” Id. at 1212. Thus, George stands for the unremarkable proposition that a client who consents to a settlement is barred from bringing a legal malpractice claim on the theory that his attorneys settled the lawsuit without his consent.

Nothing in George states that a client’s consent to a settlement bars a legal malpractice claim where the basis for the malpractice claim is the lawyer’s deficient preparation or misadvice leading up to the settlement. The malpractice allegation in this case is markedly different from the malpractice allegation in George. Here, the plaintiff is not alleging that she did not consent to the settlement of the underlying case, but rather is alleging that the defendants’ breach of the standard of care resulted in a disadvantageous settlement. Therefore, George is distinguishable.

The defendants’ alternative argument—that the plaintiff cannot show re-dressable harm because the marital settlement agreement is' always subject to modification in family court—is also without merit. The defendants’ argument is inconsistent with Florida’s bright-line rule on accrual of legal malpractice claims.

Redressable harm for legal malpractice arising out of litigation occurs when “the litigation is concluded by final judgment” and “the final judgment becomes final.” Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998)...“[A] judgment becomes final either upon the expiration of the time for filing an appeal or post-judgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a. denial of the motions for rehearing.” Id. at 1175 n.2.

The rule of Silvestrone, however, “merely establishes a bright line for establishing when the client has suffered some loss as a consequence- of the attorney’s negligence.” Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36, 42 (Fla. 2009) (plurality opinion). This bright-line rule “does not require that there be a determination of the full extent of all losses suffered by the client due to the lawyer’s negligence.” Id.

Here, under the bright-line rule of Sil-verstrone, the plaintiffs legal malpractice claim has accrued because the underlying dissolution litigation has been concluded by final judgment. The dissolution judgment is final within the meaning of Silver-strone because the time for filing an appeal or postjudgment motions has expired. The defendants’ argument to the contrary is unworkable in practice and would create uncertainty as to when legal malpractice claims accrue in the family law context.

The hypothetical possibility of obtaining a modification of the dissolution judgment does not change the fact that redressable harm occurred at the moment the dissolution judgment became final. When the dissolution judgment became final, the plaintiff allegedly suffered some loss as a result of the defendants’ alleged malpractice. Moreover, in this case, some portions of the dissolution judgment were non-modifiable, including the alimony waiver and the property settlement. Put simply, while the possibility of obtaining a modification of the dissolution judgment based on a change in circumstances may be relevant to determining the amount of damages, it does not affect when the legal malpractice claim accrued. For all of the foregoing reasons, the plaintiffs legal malpractice claim is not premature.

In sum, the plaintiffs complaint alleged each of the elements of a legal malpractice claim, her voluntary acceptance of a settlement in the underlying dissolution case did not bar her legal malpractice claim, and her legal malpractice claim' was not premature. We reverse and remand for further proceedings.

Reversed and Remanded.

Damoorgian and Kuntz, JJ., concur.

      . Later, in compliance with this court's order authorizing the trial court to enter a final order, the trial court entered both a Final Judgment on the Pleadings and an Amended Final Judgment on the Pleadings.

      . Nor is this a case where the plaintiff abandoned the malpractice claim by settling the underlying lawsuit. See Coble v. Aronson, 647 So.2d 968, 970 (Fla. 4th DCA 1994) (explaining that "[o]ccasionally, where the allegations involve attorney errors during litigation, re-dressable harm can only be determined upon completion of the appellate process, and therefore, the settlement of the underlying litigation will defeat any potential cause of action for attorney malpractice”). Here, the settlement of the underlying litigation did not thwart any appellate review process which could have cured the alleged malpractice. See Parker v. Graham & James, 715 So.2d 1047, 1048 (Fla. 3d DCA 1998) (rejecting the argument that the plaintiffs abandoned their malpractice claim by settling the underlying claim, as "the settlement did not thwart any review process which could have cured the malpractice”).


author: KHOUZAM, Judge.

text:
    Leonardo N. DIGIOVANNI, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3, Unknown Spouse of Leonardo N. Digiovanni; City of Cape Coral, Florida, a Municipal Corporation; Unknown Tenant #1 n/k/a Kim Mitchell; Unknown Tenant #2 n/k/a Charlie Mitchell; Unknown Tenant #3; Unknown Tenant #4; and Other Unknown Parties, Including the Unknown Spouse of any Title Holder in Possession of the Property; and, If a Named Defendant(s) Is Deceased, the Surviving Spouse, Heirs, Devisees, Grantees, Creditors, and All Other Parties Claiming by, through, Under or Against that Defendant(s); and The Several and Respective Unknown Assigns, Successors in Interest, Trustees or Other Persons Claiming by, through, Under or Against any Corporation or Other Legal Entity Named as a Defendant(s); and All Claimants, Persons or Parties, Natural or Corporate, or Whose Exact Legal Status Is Unknown, Claiming Under Any of the Above Named or Described Defendants), Appellees.
    Case No. 2D15-4180
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017
    Rehearing Denied May 16, 2017

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.
    Mary J. Walter of Liebler, Gonzalez & Portuondo, Miami, for Appellee Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Leonardo N. DiGiovanni appeals the final judgment of foreclosure entered against him and in favor of Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3. Because Deutsche Bank failed to show standing to foreclose, we reverse.

On May 3, 2012, Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3 filed a foreclosure complaint against DiGiovanni seeking to reestablish a lost note. In count one, the complaint alleged that plaintiff or its predecessor was in possession and was entitled to enforce the note when it was lost or destroyed. In count two, the complaint alleged that the note and mortgage had been executed by DiGiovanni on June 21, 1999, and he had failed to make his payments since August 1, 2009. Attached to the complaint were copies of the note and mortgage, showing that the original lender was U.S. Department of Veterans Affairs. Also attached was a copy of an assignment transferring the mortgage from U.S. Department of Veterans Affairs to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3.

At trial, a mortgage resolution associate from Bank of America, N.A., testified that Bank of America was the servicer of the mortgage. She stated that Bank of America had possession of the note on or about October 29, 1999, when it was transferred to former foreclosure counsel for a previous foreclosure case. The note was lost in transition back to Bank of America. A copy of the note was admitted into evidence. It bore a specific endorsement to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3 and was dated October 28, 1999. A copy of the assignment transferring the mortgage to Bankers Trust was admitted, though Deutsche Bank noted that it was not relying on the assignment. A breach letter and payment history were also admitted. But none of these documents showed that Deutsche Bank was formerly Bankers Trust or that Deutsche Bank was the current trustee for Vendee Mortgage Trust 1999-3. Indeed, when the mortgage resolution associate from Bank of America was specifically asked if she had any document to illustrate that Deutsche Bank National Trust Company was formerly known as Bankers Trust Company of California, she admitted that she did not. DiGiovanni argued that without such a document, Deutsche Bank could not show standing to foreclose.

After the defense rested, the judge stated that he needed to take a break to consider the standing issue: “I’m going to go up to my office where I can look on my computer and see what I can do.” When the judge returned, he made clear that the evidence as presented was insufficient to establish Deutsche Bank’s standing. However, he explained that during the break he had run a Google search and found Deutsche Bank’s institutional history on the National Information Center’s website showing that Bankers Trust had been renamed Deutsche Bank in 2002:

[W]ell, there’s no documentation, I think I have to rule in favor of the defendant because it’s different entity. ... [T]he plaintiff normally, of course, has submitted something through the Federal research that actually shows if there’s been a change of name or something, and of course I didn’t know it was merger, there was no evidence, and [defense counsel] made that clear from his calling [the mortgage resolution associate]. And—but I thought, do I need to consider, in the interest of justice, allowing the plaintiff, if there is something that is virtually public record, to ask me to take judicial notice if that’s the only failing. And that’s where I came down to, that’s the only thing that I think failed in the plaintiffs proof and so I just thought, you know, if it really is that obvious, something like that, or that clear, I’ll Google it. So I Google Bankers Trust Company of California and I printed out what came up, National Information Center, United States Federal Reserve System, and this is what usually comes up. And I’ve taken judicial notice in other cases when somebody’s submitted something like that .... See, I put in Bankers Trust Company and this is what came up, institutional history for Deutsche Bank and what it shows ... Bankers Trust Company of California was renamed Deutsche Bank National Trust Company .... I think that’s the type of thing that I should take judicial notice of. Since that’s something new, I’ll give [defense counsel] a shot at anything he wants to say about that, but it’s so obvious that I think I should take notice of it.

DiGiovanni pointed out that Deutsche Bank had the burden of proof, that Deutsche Bank had not presented this document, and that it was improper for the court, to do its own investigation. The court then asked Deutsche Bank, “Do you wish to- reopen your case to admit this document?” Deutsche Bank did so, and the document was admitted. The judge clarified that he believed that even if the Deutsche Bank had not reopened the case, he could have taken judicial notice sua sponte ,

because it is so straightforward and black and white that it was a change of name that is in the repository of the government, Federal governmental agency whose task it is to keep track of all that and it is a very technical thing, to say, well, they’ve.said ... we were formerly Bankers Trust Company and for their suit to fail because they didn’t present that, I don’t think would really be just,

Judgment was entered in favor of Deutsche Bank. DiGiovanni moved for rehearing, again raising the objection to the court’s independent investigation and arguing that the case should have been dismissed. The court held a hearing but ultimately denied rehearing, concluding that it was appropriate to take judicial notice of the document under subsections 90.202(5) and (12), Florida Statutes (2014).

We conclude that the judge erred in conducting his own independent research, prompting Deutsche Bank to reopen the case, and admitting the document he found into evidence. “Whether intentional or not, the trial judge' gave the appearance of partiality by taking sua sponte actions which benefitted” one party over the other—in this case, Deutsche Bank. Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999), “A judge must not independently investigate facts in a case and must consider only the evidence presented.” Fla. Code of Jud. Conduct, Canon 3B(7), cmt. “[W]hen a judge becomes a participant in judicial proceedings, ‘a shadow is cast upon judicial neutrality,’ ” particularly when the judge actively seeks the production of evidence that the parties themselves never sought to present. J.F. v. State, 718 So.2d 251, 252 (Fla. 4th DCA 1998) (quoting Chastine v. Broome, 629 So.2d 293, 295 (Fla. 4th DCA 1993)). It-is also improper for a court to sua sponte reopen a trial after all parties have rested in order to take such additional evidence. See In re T.W., 846 So.2d 581, 582 (Fla. 2d DCA 2003). A judge should “never suggest or advise counsel how to try his or her case.” Nationstar Mortg., LLC v. Marquez, 180 So.3d 219, 221 n.2 (Fla. 3d DCA 2015) (citing Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998), for the proposition that “[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle”).

Here, the parties had rested, and Deutsche Bank had not presented any evidence to support its assertion that Bankers Trust had been renamed Deutsche Bank. Deutsche Bank did not present the document in question, did not direct the court’s attention to it, and did not ask the court to take judicial notice of it. The judge independently decided to research the issue, finding the document and providing it to the parties. When DiGiovanni objected, the judge prompted Deutsche Bank to reopen the case to admit the document. The judge made clear that without the document, he would have dismissed the suit. These actions created, at a minimum, the appearance of partiality.

Deutsche Bank argues, and the trial court believed below, that the document could be appropriately admitted pür-suant to section 90.202, which delineates matters which’may be judicially noticed. But “judicial notice applies to self-evident truths that no reasonable person could question, truisms that approach platitudes or banalities.” Maradie v. Maradie, 680 So.2d 538, 541 (Fla. 1st DCA 1996) (quoting Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347-48 (5th Cir. 1982)). Judicial notice may only be taken pursuant to the procedures set forth in section 90.204. Id. at 540 (reversing in part because the trial court failed to follow the statutory procedure required for judicial notice under section 90.204). And “the practice of taking judicial notice of adjudicative facts should be exercised with great caution” because “the taking of evidence, subject to established safeguards, is the best way to resolve disputes concerning adjudicative facts” and judicially noticed matters are taken as true without being offered by the party who will ultimately benefit. Id. at 541.

Moreover, judicially noticed documents must be otherwise admissible. See Dufour v. State, 69 So.3d 235, 253 (Fla. 2011) (“[T]he fact that a record may be judicially noticed does not render all that is in the record admissible.”); Stoll v. State, 762 So.2d 870, 877 (Fla. 2000) (“[W]e find that documents contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere”). Here, the document was simply printed from the internet. It was never authenticated or shown to fall within an exception to the rule against hearsay. “Web-sites are not self-authenticating.” Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So.3d 897, 900 (Fla. 5th DCA 2012) (quoting St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223-T-MSS, 2006 WL 1320242 (M.D. Fla. May 12, 2006)). Rather, “[t]o authenticate printouts from a website, the party proffering the evidence must produce ‘some statement or affidavit from someone with knowledge [of the website].’” Id. (latter alteration in original). Deutsche Bank made no attempt to show that the contents of the printout fell within an exception to the rule against hearsay, such as the business record exception or the public records exception. See § 90.803(6), (8); see also Whitley v. State, 1 So.3d 414, 415 (Fla. 1st DCA 2009). Accordingly, the internet printout could not be judicially noticed under the circumstances of this case.

Without any evidence to show that Bankers Trust had been renamed Deutsche Bank, Deutsche Bank failed to show that it had standing to foreclose. Deutsche Bank needed to prove that it “was entitled to enforce the instrument when loss of possession occurred, or ha[d] directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(1)(a), Fla. Stat. (2014). And because Deutsche Bank sought to show standing through the testimony of a mortgage resolution associate from the servi-cer, Bank of America, Deutsche Bank was also required to show that Bank of America was holding the note on its behalf. See Phan v. Deutsche Bank Nat’l Trust Co., ex rel. First Franklin Mortg. Loan Trust 2006-FF11, 198 So.3d 744, 749 (Fla. 2d DCA 2016) (“[W]here an agent holds a mortgage note on behalf of its principal, the principal has constructive possession of the note and standing to file a complaint for foreclosure as a holder,”).

But the evidence presented only showed that U.S. Department of Veterans Affairs was the original lender; that the note and mortgage had been transférred from U.S. Department of Veterans Affairs to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3; and that Bank of America was the servicer at the time the note was lost in October of 1999. Aside from the internet printout, there was no evidence presented to show that Bankers Trust had been renamed Deutsche Bank and that Bank of America was servicing the loan on behalf of Deutsche Bank as opposed to Bankers Trust. Indeed, the circuit court repeatedly acknowledged that without the printout, dismissal was required. Accordingly, we reverse and remand with directions for the trial court to enter an order of involuntary dismissal.

Reversed and remanded.

VILLANTI, C.J., and CASANUEVA, J., Concur.

      . The National Information Center is "a central repository of data about banks and other institutions for which the Federal Reserve has a supervisory, regulatory, or research interest, including both domestic and foreign banking organizations operating in the United States.” Nat’l Info. Ctr., NIC Home, https;//www.fflec. gov/nicpubweb/nicweb/NicHome.aspx (last visited Feb. 28, 2017).


author: PER CURIAM.

text:
    David Buck CULVER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0844
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017.
    David Buck Culver, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. This Court retains jurisdiction to address the imposition of sanctions.

B.L. THOMAS, C.J., LEWIS and ROWE, JJ„ CONCUR.


author: Ciklin, J.

text:
    Kevin STEWART, Appellant, v. Dean D. DRALEAUS, Christopher Reagle, and Robin Vincent, Appellees.
    Nos. 4D15-2320, 4D15-2321 and 4D15-2322
    District Court of Appeal of Florida, Fourth District.
    July 26, 2017

      Diane H. Tutt of Conroy Simberg, Hollywood, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and William Zoeller of Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, for appellee.
   Ciklin, J.

Kevin Stewart, the defendant below, timely appeals a final judgment in a personal injury action entered in favor of the three plaintiffs, Robin Vincent, Christopher Reagle, and Dean Draleaus. The action was based on a motorcycle accident in which the defendant is alleged, to have hit the plaintiffs’ motorcycles. The defendant argues the trial court erred in precluding three types of evidence: a witness’s statement to an investigating police officer, alcohol consumption by the plaintiffs, and a motorcycle license violation by one of the plaintiffs. We agree on all three points, and we reverse and remand for a new trial.

I. Facts

On the evening of the motorcycle accident, which occurred in 2006, the defendant was driving a Chevrolet Camaro. Draleaus and Reagle were each driving a motorcycle and Vincent was Reagle’s passenger. At that time, Reagle had a temporary motorcycle license that did not permit him to carry a passenger. Prior to the accident, the plaintiffs stopped at a restaurant and then at a bar. They were heading home when the accident occurred around 11:18 p.m.

In the proceedings below, liability was hotly contested and the defendant alleged comparative negligence. According to the plaintiffs’ theory of the case, the defendant revved his engine at them and tried to race them. After pacing the -motorcycles for a distance and swerving into their lane twice, the defendant hit Reagle’s motorcycle (upon which Vincent was a passenger), which then ran into Draleaus’s motorcycle, and then drove away. The plaintiffs survived the accident, but underwent medical treatment for significant injuries.

The defendant’s version of events was dramatically different. The defendant admitted to revving his engine in response to the motorcycles, but he denied exceeding the speed limit or racing or hitting the motorcycles. He testified that he saw Rea-gle attempt to turn right but instead turn directly into Draleaus’s path, which he opined, caused the motorcycles to collide and hit a curb and a telephone pole. The defendant said he pulled over and got out of his car, but then left after seeing that other people had stopped to render aid.

The independent witness testimony presented at trial was similarly inconsistent. One witness testified that the motorcycles and the defendant’s Camaro were traveling at one hundred miles per hour and that the accident occurred while the vehicle and the two motorcycles were close to each another. Another witness, who was riding with the aforementioned witness, estimated that the vehicles were traveling fifty-five to sixty miles per hour and stated that the Camaro was nowhere near the motorcycles when one of the motorcycle’s wheels began to wobble and crash. ,

Yet another witness (“minor accident witness”) was involved in a fender bender shortly after the subject motorcycle accident. According to her deposition testimony, which was admitted at trial, she did not see the motorcycle accident because a truck was traveling in front of her, but she saw the motorcycles speeding and weaving in and out of traffic beforehand. When the truck turned onto- an intersecting street, she saw three people laying'on the road and on the sidewalk. She had to swerve to avoid them, at which point she hit a car that was pulled over to render aid to the plaintiffs.

Prior to trial, the parties moved in li-mine to obtain a ruling on the admissibility of a prior inconsistent statement of the minor accident witness involved in her own accident, to the investigating law enforcement officer. In that statement she said she saw the motorcycle accident occur, and specifically that she saw one motorcycle move into the other motorcycle’s lane and make contact with it. The parties also sought pre-trial rulings on the admissibility of evidence that the plaintiffs were drinking before the accident and that Rea-gle was violating a license restriction at the time of the accident by carrying a passenger. The trial court excluded all of the evidence. The jury ultimately found the defendant 55% at fault and Réagle 45% at fault and the trial court entered final judgment accordingly.

II. Analysis

On appeal, the defendant argues that the evidentiary rulings were incorrect, since the excluded evidence was relevant, probative, and supported by expert testimony where necessary. We agree.

A. Accident Report Privilege

First, we address the prior inconsistent statement of the witness who had been involved in her own separate and minor accident. The trial court excluded this testimony and evidence based on its interpretation of the accident report privilege. Therefore, this is a question of law subject to de novo review. See Sottilaro v. Figueroa, 86 So.3d 505, 507-08 (Fla. 2d DCA 2012).

The accident report privilege serves to exclude from evidence statements made by a driver involved in an accident to a police officer for the purpose of creating a crash report for that accident. McTevia v. Schrag, 446 So.2d 1183, 1184 (Fla. 4th DCA 1984). The privilege derives from section 316.066, Florida Statutes (2006), which under certain circumstances requires persons involved in an accident to provide a report to law enforcement:

(1) The driver of a vehicle which is in any manner involved in a crash resulting in bodily injury to or death of any person or damage to any vehicle or other property in an apparent amount of at least $500 shall, within 10 days after the crash, forward a written report of such crash to the department or traffic records center. However, when the investigating officer has made a written report of the crash pursuant to paragraph (3)(a), no written report need be forwarded to the department or traffic records center by the driver.
(3)(a) Every law enforcement officer who in the regular course of duty investigates a motor vehicle crash:
1. Which crash resulted in death or personal injury shall, within 10 days after completing the investigation, forward a written report of the crash to the department or traffic records center.
(4) Except as specified in this subsection, each crash report made by a person involved in a ci-ash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated. ...

(Emphasis added).

“[T]he purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty .... ” Brackin v. Boles, 452 So.2d 540, 544 (Fla. 1984). The assertion of the privilege is not limited to the declarant; it “extends to all persons within its' ambit, those ‘involved’ in the accident[.]” Hoctor ex rel. Hoctor v. Tucker, 432 So.2d 1352, 1353 (Fla. 5th DCA 1983).

This immunity, however, is not extended to witnesses as they have no obligation to provide such a statement. McTevia, 446 So.2d at 1184-85. In McTevia, the McTevias were involved in a car accident with the defendant, Schrag. Id. at 1184. At the scene of the accident, the McTevias’ friend, Epstein, told the investigating officer that he was following the McTevias in his car but did not witness the accident. Id. Two weeks later he went to the police station and told officers he had lied previously, that he saw the accident, and that Schrag was on the wrong side of the road at the time of the accident. Id.

At trial, the McTevias moved to preclude Epstein’s on-scene statement on the basis of the accident report privilege under section 316.066(4). Id. The trial court ultimately ruled the statement to be admissible. Id. This court affirmed, explaining:

This privilege inures only to those required to make the report. It does not apply to statements of other witnesses or persons who may volunteer information to the investigating officer. The privilege is constitutionally mandated because the statutes require a report under penalty of law and in certain instances the report could otherwise be in derogation of one’s Fifth Amendment rights. From the foregoing lessons it appears that Epstein was not required by law to report to the investigating officer; he was therefore not involved in the accident within the meaning of Section 316.066(4), Florida Statutes (1981).

Id. at 1184-85 (internal citations omitted); see also Sottilaro, 86 So.3d at 509-11 (where witnesses told officer that decedent was looking down at his phone and texting while crossing the highway, the witnesses’ statements were not inadmissible on the basis of the accident report privilege because the witnesses were not involved in the accident and were not required to make the statements); S.G.K. v. State, 657 So.2d 1246, 1248 (Fla. 1st DCA 1995) (noting that section 316.066 does not require witnesses to stay on the scene or report to officers). This court has further explained, “The test to be applied in determining whether the accident report privilege is applicable is whether the privilege against self-incrimination was violated by requiring the person involved in the accident to answer the questions posed.” Evans v. Hamilton, 885 So.2d 950, 950-51 (Fla. 4th DCA 2004).

In the proceedings below, the trial court determined that the fender bender and the motorcycle accident were not separate accidents, reasoning that the collisions were causally connected and were a “continuous chain of events.”- Since the minor accident witness was a driver of a, vehicle “involved in an accident,” the trial court reasoned that this privilege applied.

We find this conclusion to be erroneous. While it is true that the accidents were, in some fashion, related, the accidents were separate. Neither the minor accident witness nor the vehicle she struck collided with the plaintiffs, their motorcycles, or any of the debris from their accident. Further, the investigating officer who obtained the minor accident witness’s statement indicated in his proffered testimony that he was investigating only the. motor cycle accident, not the minor accident witness’s fender bender, and that the fender bender was memorialized in a separate .accident report authored by a different officer. Any statements made to the other officer regarding the minor accident witness’s own accident are privileged, but her Fifth Amendment rights were not implicated in her statements to thé officer about the motorcycle accident. Consequently, the trial court erred in excluding evidence of her statements.

B. Evidence of Alcohol Consumption

Second, we address the trial court’s ruling excluding evidence of the plaintiffs’ pre-accident alcohol consumption.

The evidence the defendant sought to introduce included (1) admissions by two of the plaintiffs that they had been drinking prior to the incident (the third incurred a head injury that left him unable to recall most of the day’s events),' (2) testimony of treating medical personnel and witnesses who smelled alcohol on the plaintiffs, and (3) testimony of an expert witness that even just one or two drinks may significantly impair perception and reaction in the operation of a motorcycle. The plaintiffs countered that evidence of -impairment was speculative, as Reagle and Draleaus’s blood had been drawn at 4:00 A.M. the morning after the accident 'and no alcohol was detected, nor was there any evidence of impairment such as slurred speech, bloodshot eyes, or unsteadiness on feet. The trial court focused on the fact that there was no evidence of retrograde extrapolation and that the blood alcohol tests were negative. It excluded the evidence, concluding that the potential prejudice to the plaintiffs outweighed the probative value of the proffered evidence.

'We review the trial court’s determination on the admissibility of the evidence for an abúse of discretion, which discretion is limited by the rules of evidence. Pantoja v. State, 59 So.3d 1092, 1095 (Fla. 2011).

Relevant eyidence is evidence tending to prove or disprove a material fact and is generally admissible. §§ 90.401, 90.402, Fla. Stat. (2013). “Relevant eyidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90,403, Fla. Stat. (2013).

In weighing the probative value against the unfair prejudice,

it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.

Jones v. Alayon, 162 So.3d 360, 365 (Fla. 4th DCA 2016) (quoting Johnson v. State, 40 So.3d 883, 886 (Fla. 4th DCA 2010)).

This court has recognized the inflammatory effects of evidence of a party’s alcohol use in the context of an action arising from a car accident, and has held them -inadmissible as unduly prejudicial where liability is admitted. See Neering v. Johnson, 390 So.2d 742, 744 (Fla. 4th DCA 1980). However, even when a defendant admits liability, where comparative negligence is alleged, “the trier of fact must hear the ‘totality of fault’ of each side,” i.e., the specific acts of negligence of each party. Lenhart v. Basora, 100 So.3d 1177, 1179. (Fla. 4th DCA 2012).

Regardless, a plaintiff driver’s potential impairment ' is probative of whether he caused or contributed to an accident:

Whether or not a person is under the influence of intoxicating liquor to the extent that his or her normal faculties are impaired is a question of fact and should be determined by the jury when there is substantial evidence submitted on that question.

Seltzer v. Grine, 79 So.2d 688, 689 (Fla. 1955); see also Flint v. State, 117 So.2d 552, 556 (Fla. 2d DCA 1960) (holding evidence of appellant’s consumption of alcohol prior to the accident was properly admitted in trial for manslaughter by culpable negligence in operation of an automobile because “ordinarily, persons under the influence of intoxicants to any considerable degree, though not actually intoxicated or drunk, are .more apt to be heedless, reckless, and daring than when free from such influence” (quoting Cannon v. State, 91 Fla. 214, 107 So. 360, 362 (1926))).

Here, the evidence of alcohol consumption on the evening of the accident was material to the issue of comparative negligence and was not speculative. Reagle admitted that he had two drinks between 7:30 and 10:30, which means that he could have been drinking forty-eight minutes before the accident occurred at 11:18. Reagle’s motorcycle passenger, Vincent, admitted she had been drinking, and a witness testified that she smelled alcohol on her. A responding officer smelled alcohol on Draleaus. Finally, the expert testified that even small quantities of alcohol can impair a motorcycle operator’s perception and reaction.

This evidence conclusively established that at least some of the plaintiffs were drinking prior to the accident and therefore properly raised the issue as to whether the alcohol consumption was a contributing factor in the accident, and thus whether plaintiffs were under the influence to the extent that their faculties were impaired. This was a question of fact for the jury to consider.

Moreover, the weight of the evidence tending to prove the plaintiffs were not impaired against the weight of the evidence of their alcohol consumption is a factual determination reserved for the jury. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (“It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue dr cause than the other.”).

In light of our determination that the trial court erred in excluding the evidence of alcohol consumption, we direct that on remand, the defendant should be permitted to pursue , his defense under section 768,36, Florida Statutes (2006), which provides in pertinent part:

(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

According to the plain language of the statute, it is up to the “trier of fact” to determine' whether the -plaintiffs’ normal faculties were impaired and whether they were more than fifty percent at fault for their injuries. Since Stewart should be allowed to present evidence on Reagle and Drale'aus’s alcohol consumption, it follows that he should be able to present his section 768.36 defense with respect to these two plaintiffs.

C. Evidence of License Violation

Third, we address the trial court’s exclusion of evidence that, at the time of the accident, Reagle had not taken the required examination and thus possessed only a temporary motorcycle license that did not allow him to carry passengers. The trial court ruled that the evidence was not admissible because Reagle’s mere failure to take the requisite test and obtain his permanent motorcycle license did not indicate negligence in the subject accident, and thus -the violation was irrelevant.

We review the trial court’s ruling on the admissibility of the evidence for an abuse of discretion. Pantoja, 59 So.3d at 1095.

In precluding the evidence of the license restriction violation, the trial court relied on Brackin, 452 So.2d at 542, in which the Florida Supreme Court concluded that “a violation of the driver’s license law is admissible if relevant to the issues in a cause” and further explained:

Evidence is relevant if it tends to prove or disprove a material fact at issue. Hence a person’s violating a traffic regulation is admissible evidence only if it tends to prove that that person has negligently operated an automobile. Relevancy is usually inherently established when the traffic regulation which was violated concerns the manner in which an automobile was operated. Relevancy is not so easily established when the traffic regulation which was violated concerns a licensing requirement.
The vast majority of jurisdictions hold that a violation of a driver’s license law is not evidence of negligence in the absence of some causal connection between the violation and the injury. See Annot., 29 A.L.R.2d 963 (1953 & Supp. 1981). This requirement of a causal connection for evidence of a violation to be admissible should not be confused with the proximate cause element of a tort action for negligence. The first is a determination of law made by a trial judge in deciding whether a person’s violating a driver’s license regulation is relevant. Whether such a violation is a proximate cause of any damage or injuries is a finding of fact to be made by the jury.
Thus the real issue in this case is whether the trial judge erred in deciding as a matter of law that Brackin’s violating the restriction on his license was not relevant to the manner in which he was operating the automobile. In some situations the violation of such a restriction may be relevant to show the driver’s inexperience and incompetence in handling an automobile. See Dorsett v. Dion. In this case, however, Brackin’s experience and competence were not placed in issue. Moreover, the accident took place only a few days before Brackin’s seventeenth birthday and he had been driving for almost two years. Boles’ case did not rest upon Brackin’s inexperience, but rather upon the allegation that Brackin was exceeding the speed limit. We therefore find that the trial court was correct in ruling that Brackin’s violation of [the statute requiring accompaniment by licensed adult] was not relevant and therefore was inadmissible.

Id. at 545 (emphasis added).

We find that the trial court erred when it excluded this evidence. Reagle admitted that carrying a passenger can change the unique dynamics of a motorcycle, i.e., the manner in which the motorcycle is operated. Since “[r]elevancy is usually inherently established when the traffic regulation which was violated concerns the manner in which an automobile was operated,” id., we find that—in this particular situation—the motorcycle license violation was relevant to the case at hand. The evidence should have been presented to the jury for a determination of whether the violation proximately caused any of the plaintiffs’ injuries.

III. Conclusion

Because the trial court erred in excluding the witness statement and erred in excluding relevant evidence of alcohol consumption and a license violation, we reverse and remand for a new trial. However, with particular respect to the evidence of alcohol consumption and the license violation, we caution that “[s]uch evidence, to be admissible, should be demonstrated to relate to the relevant issues and not be used solely to create prejudice in the minds of the jurors.” See Botte v. Pomer- oy, 497 So.2d 1275, 1279 (Fla. 4th DCA 1986).

Reversed and remanded.

Gross and May, JJ., concur.

      . Further, Vincent knew of the restriction, since Reagle was pulled over for weaving in and out of traffic while she was riding as his passenger several days before the accident, and the law enforcement officer made her get off of'the motorcycle due to Reagle's license restriction.


author: Damoorgian, J.

text:
    John PETERSON and Danielle Peterson, Appellants, v. HECHT CONSULTING CORP., Appellee.
    No. 4D16-1329
    District Court of Appeal of Florida, Fourth District.
    August 9, 2017

      Thomas W. Paradise and Nicolette N. John of Vernis & Bowling of Broward, P.A., Hollywood, for appellants.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and David A. Neb-lett and Jack Wynn of Perry & Neblett, P.A., Miami, for appellee.
   Damoorgian, J.

Appellants, John and Danielle Peterson, appeal a prevailing party fee and cost judgment entered in favor of Appellee, Hecht Consulting Corp. We affirm the court’s prevailing party determination and lodestar calculation without further comment, but remand for a reduction of the lodestar amount upon consideration of the results obtained.

By way of background, Appellants retained Appellee as their public adjuster after their home was damaged by a 2005 hurricane. The contract between the parties provided that Appellants agreed to assign Appellee 10% of the insurance proceeds they recovered for damages to their residential structure.. The contract also provided for prevailing party attorney’s fees in the event of litigation. Appellants recovered close to $100,000 from their insurer.

In May of 2007, Appellee sued Appellants for breach of contract, civil theft, and unjust enrichment, alleging that Appellants failed to pay it the agreed upon percentage of their insurance proceeds. The record reflects that Appellants offered Appellee $2,668 to settle pre-suit and then offered $5,000 to settle at the inception of the lawsuit, but that Appellee rejected both offers. A few months later, Appellants filed a proposal for settlement in the amount of $7,768, which Appellee also rejected.

After the parties conducted limited discovery, the court entered summary judgment in favor of Appellants on the civil theft count. The parties continued to litigate the remaining counts until September of 2011 when they agreed to settle the dispute, exclusive of attorney’s fees, for $3,000. Thereafter, the parties engaged in contentious litigation regarding entitlement to and the proper amount of fees.

After determining that Appellee was the prevailing party pursuant to the terms of the contract, the court conducted an evi-dentiary hearing to consider the proper amount of fees. Appellee’s attorney sought more than $90,000 in fees, representing that he expended a total of 304 hours on the matter at the rate of $300 an hour. Appellee’s expert testified, without addressing the lodestar factors with any degree of specificity, that the amount claimed by Appellee’s attorney was reasonable. Appellants’ expert conceded that $300 was a reasonable hourly rate, but opined that Appellee’s attorney grossly overbilled the case. After examining each billing entry and lodestar factor in detail, Appellants’ expert testified that $32,435.25 was the proper lodestar amount for the case. However, Appellants’ expert opined that this amount should be reduced significantly based on the results obtained factor, highlighting that Appellee spent four years litigating a fixed-recovery case, ultimately settling for not much more than the pre-suit offer and for less than two post-suit offers made early on in the litigation.

Considering the evidence presented at the hearing, the court entered final judgment wherein it determined that the proper lodestar amount was $29,025. The court did not reduce this amount based on the results obtained factor. This was error.

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the supreme court adopted the federal lodestar approach for calculating attorney’s fees, which requires the court to multiply the reasonable number of hours expended by a reasonable hourly rate to reach the lodestar figure. In order to arrive at the lodestar amount, the trial court must consider the following factors:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent.

Id. at 1150.

After arriving at the lodestar amount, the court may then increase or reduce the amount based on a contingency risk multiplier or the results obtained. Id. at 1151.

The “results obtained” may provide an independent basis for reducing the fee when the party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims. When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success.

Id. “A court must reduce an attorney fee award from the lodestar amount when the prevailing party achieves only limited success.” Eckhardt v. Hintze Mgmt., L.L.C., 969 So.2d 1219, 1222 (Fla. 1st DCA 2007) (holding that the trial court erred by failing to reduce the lodestar figure based on the results obtained factors when “[t]he trial court awarded the landlord $34,387.50 in fees even though there was only $17,716.37 in controversy, and the jury awarded the landlord only $4,250.00”). See also Jomar Props., LLC v. Bayview Constr. Corp., 154 So.3d 515, 519 (Fla. 4th DCA 2015) (holding that the trial court appropriately reduced the lodestar amount based on the fact that the prevailing party recovered substantially less damages than it sought).

Here, under any view, Appellee achieved limited success in the underlying litigation. Appellee lost at summary judgment on its most lucrative count—civil theft. Appellee then spent an exorbitant amount of time pursuing a simple breach of contract suit wherein his maximum recovery was $10,000. Even this endeavor was limited in its success as Appellee’s recovery, $3,000, was less than a third of the amount sought and less than amounts offered by Appellants at the onset of the litigation. Under the facts of the case, the'court should have reduced the lodestar amount based on the results obtained. Accordingly, we reverse and remand for the entry of a new order reducing the $29,025 lodestar figure an amount deemed proper by the trial court based on the results obtained. In doing so, we note that the only evidence on the subject presented below was Appellants’ expert’s testimony that the lodestar amount should be reduced in proportion to the amount recovered as compared to the damages sought.

Reversed and remanded for additional proceedings.

Kuntz, J., and Cynamon, Abby, Associate Judge, concur.


text:
    Palanski SWAIN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3780
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Rehearing Denied August 24, 2017

      Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Palanski Swain, was moving out of his ex-girlfriend’s residence in Gadsden County as their relationship was ending. Swain’s ex-girlfriend drove him and all of his belongings to the corner of North Monroe Street and Fred George Road in Leon County. The ride to Leon County was silent, and Swain’s ex-girlfriend was upset that he was leaving her. Swain’s ex-girlfriend pulled into a Starbucks Coffee Shop, which was closed, and dropped him off. All of Swain’s belongings were in two large garbage bags, one of which contained all of his clothing, the other contained a twenty gauge shotgun. As she pulled away, Swain’s ex-girlfriend called 911 and reported that Swain had a gun in his possession. When police arrived, the bags were found approximately twenty-five to fifty feet ,away from the spot where Swain was standing. The firearm was unloaded and had scratch marks over the serial number. At trial, Swain was found guilty as charged of alteration of a firearm serial number (Count 1) and possession of a firearm by a convicted felon (Count 2). Following trial, he was sentenced to a three-year mandatory minimum sentence under the sentencing enhancement provided in section 775.087(2)(a)l., Florida Statutes (2016).

Both parties agree that insufficient evidence exists to support the conviction in Count 1, the alteration of the firearm serial number. There was no evidence to prove proper venue or commission of the crime within the statute of limitations period. We reverse the conviction in Count 1, vacating it entirely.

Swain was charged with possession of a firearm by a convicted felon by either actual or constructive- possession. While Swain stipulated at trial that the State had proved constructive possession, sufficient to convict him of possession of a firearm by a convicted felon, he contended the State had not proved actual possession, which was required to sentence him to a mandatory minimum sentence. The trial court found that there was sufficient evidence to support a finding of actual possession.

A finding of either actual or constructive possession will support a conviction for possession of a firearm by a convicted felon; however, actual possession is required in,order to sentences defendant to a mandatory minimum sentence under the enhancement provision in section 775.087(2)(a)1. Miller v. State, 838 So.2d 644, 644 (Fla. 1st DCA 2003); Johnson v. State, 855 So.2d 218, 222 (Fla. 5th DCA 2003); Bundrage v. State, 814 So.2d 1133, 1135 (Fla. 2d DCA 2002). “Actual possession means: 1) the object is in the hand of or on the person;' or 2) the object-is in a container in the hand of or on the person; or 3) the object is' so close as to be within ready reach and is under the control of the person.” Fla. Std. Jury Instr. (Crim.) 10.15. “Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.” Id.

The contention that Swain actually possessed the firearm after being dropped off in Leon County is not supported by the evidence. His ex-girlfriend testified she removed the gun from the trunk of the car and placed it by the rest of Swain’s belongings. Swain testified he never touched the gun after being dropped off. No eyewitness testimony placed the firearm .any closer than twenty-five to fifty feet'from him. Two recorded jail phone calls from Swain to his new girlfriend showed Swain’s knowledge of the presence of the firearm, but did not sufficiently establish actual possession.

While there was sufficient evidence to show constructive possession of the firearm, we hold that actual possession was not established. The record lacks competent, substantial evidence to support Swain held the firearm while in Leon County, either in his hand or in a bag. Further, a firearm cannot be said to be “within ready reach” when it was seen no closer than twenty-five to fifty feet away from Swain. Consequently, Swain must be re-sentenced in Count 2 without application of the sentencing enhancement provision in section 775.087(2)(a)1., Florida Statutes (2016).

REVERSED and REMANDED to vacate the judgment and sentence in Count 1 and for re-sentencing in Count 2 without application of the sentencing enhancement provision in section 775,087(2)(a)l. •

ROBERTS, WINOKUR, and M.K. THOMAS, JJ., CONCUR.


text:
    Michael Larry STURMS, Former Husband, Continental Financial Services, LLC, Worldwide Financials, LLC, and Continental Development, LLC, Appellants, v. Catherine Elizabeth STURMS, Former Wife, Appellee.
    CASE NO. 1D15-4242
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017
    Rehearing Denied October 4, 2017

      Rebecca Bowen Creed of Creed <& Gow-dy, P.A., Jacksonville, for Appellants.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville and S. Denise Watson of the Law Office of Denise Watson, Jacksonville, for Appellee.
   PER CURIAM.

Michael Larry Sturms (“Husband”) appeals the trial court’s final judgment of dissolution of his marriage to Catherine Elizabeth Sturms (“Wife”), raising four issues. We find merit in his arguments that the trial court erred in including the value of the 2014 Jaguar F-Type as both a stand-alone asset and in the adjusted cash amount, and in its allocation of assets owned by Continental Financial Services, LLC (“Financial Services”), in devising the equitable distribution scheme. We reverse the final judgment and remand for the trial court to correct the equitable distribution schedule consistent with this opinion. In all other respects, we affirm the final judgment.

Wife filed the petition for dissolution in March 2013, after almost fourteen years of marriage. Husband is the sole shareholder and owner of three companies: Worldwide Financials, LLC (“Worldwide”); Continental Development, LLC (“Development”); and Crude Oil & Gas, Inc. (“Crude Oil”). Financial Services is a partnership between William Pierce and Worldwide, a company wholly owned by Husband. Wife asked the trial court to designate the property and assets held by Worldwide, Development, Crude Oil, and Financial Services as marital.

The parties owned various properties, vehicles, and businesses they acquired during the marriage. Husband disputes the equitable distribution of Crude Oil’s assets, including the 2014 Jaguar F-Type and the assets of Financial Services, due to his status as a fifty-percent shareholder. The equitable distribution schedule incorporated into the final judgment assigned to Husband an adjusted cash amount of $776,752. The value of adjusted cash included $578,000 earned by Crude Oil. In addition to the adjusted cash amount, the 2014 Jaguar F-Type, purchased with Crude Oil funds, was credited against Husband in the amount of $75,750. The equitable distribution assigned to Wife the Tortuga Lot and the Ameritrade Account, which are assets of Financial Services.

Crude Oil as Marital Asset

Husband contends that the trial court erred in valuing Crude Oil as a marital asset when calculating the adjusted cash amount. “We review a trial court’s characterization of an asset as marital or nonmarital de novo and any factual findings necessary to make this legal conclusion for competent, substantial evidence.” Dravis v. Dravis, 170 So.3d 849, 852 (Fla. 2d DCA 2015) (citing Tradler v. Tradler, 100 So.3d 735, 738 (Fla. 2d DCA 2012)).

A. Alleged Commingling of Crude Oil Funds into Marital Accounts

Husband argues that the value of Crude Oil, and its primary asset, the drilling rights, is premarital because he acquired the business and drilling rights long before the parties married. “Nonmarital assets may lose their nonmarital character and become marital assets where, as here, they have been commingled with marital assets.” Id. (citing Abdnour v. Abdnour, 19 So.3d 357, 364 (Fla. 2d DCA 2009)). “Money is fungible, and once commingled it loses its separate character.” Pfrengle v. Pfrengle, 976 So.2d 1134, 1136 (Fla. 2d DCA 2008) (citing Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000)). When nonmarital funds are commingled with marital funds, the nonmarital funds become marital funds and therefore are subject to equitable distribution. See Heinrich v. Heinrich, 609 So.2d 94 (Fla. 3d DCA 1992) (holding that funds from non-marital sources are treated as marital funds for the purposes of equitable distribution when they are placed in a trust along with a family checking account in which the husband deposits his income).

Although Husband is correct that Crude Oil’s primary asset, the deep-oil drilling rights, originated as a nonmarital asset, the record evidence supports the trial court’s factual finding that the proceeds from the sale of the drilling rights were commingled when Crude Oil funds were loaned to Development, causing them to lose their nonmarital character, despite the eventual return of the funds to a Crude Oil account. The earnings of Crude Oil are therefore marital assets. Thus, the trial court correctly assigned to Husband the $578,000 earned by Crude Oil in the adjusted cash amount.

B. 201k Jaguar F-Type

Despite correctly characterizing Crude Oil funds as martial assets, the trial court erred in calculating the 2014 Jaguar F-Type twice, both as a separate asset and in the adjusted cash amount assigned to Husband through Crude Oil. Husband purchased the 2014 Jaguar F-Type with Crude Oil funds from the sale of the drilling rights. The trial court included the value of the 2014 Jaguar F-Type in calculating the adjusted cash amount of $578,000. Because the value was already included in the adjusted cash amount, the trial court erred in assigning $75,750 for the 2014 Jaguar F-Type to Husband.

Valuation of Financial Services

Husband argues that the trial court erred in awarding Wife exclusive right and title to the Tortuga Lot and the Ameri-trade account, assets owned by Financial Services. Husband alleges that any interest in Financial Services should have been limited to Husband’s fifty-percent share of ownership in Financial Services.

In Capote v. Capote, the Second District found that there was no evidence to support the husband’s claim that his business was a nonmarital asset. 117 So.3d 1153 (Fla. 2d DCA 2013). The husband argued that his father contributed money towards the down payment of the business, and owned fifty percent of the business pursuant to an oral agreement. Id. at 1154. There were no documents memorializing the father’s interest in the business, the business was incorporated solely in the husband’s name, and the tax returns did not reflect the father’s interest. Id. at 1155. Additionally, the parties’ joint accountant testified that the husband was the sole owner of the business. Id. Therefore, the Second District upheld the trial court’s decision to classify the business as a marital asset because no evidence supported the husband’s claim. Id.

In this case, the evidence supported Husband’s claim that Financial Services is owned equally by Pierce and Worldwide, Husband’s wholly-owned company. At the final hearing on April 27, 2015, Wife stated that she would not be asking the trial court to determine Financial Services as a full marital asset, but only the fifty-percent owned by Husband, as the other fifty-percent was owned by Pierce. Both Wife and Husband’s separate accountants testified as to Husband’s fifty-percent ownership interest of Financial Services. The deposition of Pierce was admitted, which outlined the fifty-percent ownership agreement. In addition, the tax records of Financial Services reflected a fifty-percent ownership agreement.

The trial court did not have jurisdiction to adjudicate the property rights of Pierce, who was not a party to the dissolution action. See Salituri v. Salituri, 184 So.3d 1250, 1252 (Fla. 4th DCA 2016); Matajek v. Skowronska, 927 So.2d 981, 985 (Fla. 5th DCA 2006); Ray v. Ray, 624 So.2d 1146, 1148 (Fla. 1st DCA 1993). Thus, the trial court erred in distributing the full value of assets owned by Financial Services, specifically, the Tortuga Lot, a piece of real property titled to Financial Services, and an Ameritrade account to Wife.

Conclusion

Because we conclude that the trial court erred in calculating the 2014 Jaguar F-Type as adjusted cash and a separate marital asset, and erred in awarding Financial Services’ assets to Wife, the trial court will have to address the equitable distribution of the parties’ assets on remand. As such, we affirm in part, reverse in part, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.