author: WETHERELL, J. WOLF, J.,

text:
    SCHOOL BOARD OF HERNANDO COUNTY, Pam Stewart, in her official capacity as Commissioner of The Florida Department of Education, State Board of Education, School Board of Seminole County, School Board of Orange County, School Board of Pasco County, and School Board of Osceola County, Appellants, v. Michelle RHEA, Theresa Butler, Geraldine Callaghan, Pam Everett, Alexa Hasania, Scott Hastings, Amanda Hazard, Melinda Hohman, Brandy Kinkade, Rhonda Nickerson, Suzanne Rowland, and Gabrielle Weaver, Appellees.
    CASE NOS. 1D16-3914, 1D16-3932, 1D16-3933, 1D16-3936, 1D16-4052, and 1D16-4084
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017.

      Richard Burton Bush, Audra Michelle Bryant, and Lisa J. Augspurger of Bush & Augspurger, P.A., Tallahassee, for Appellant School Board of Hernando County.
    Matthew H. Mears, Steven S. Ferst, David L. Jordan, and Mari M. Presley of the Department of Education, Tallahassee; Rocco E. Testani and Stacey M. Mohr of Sutherland Asbill & Brennan LLP, Atlanta, G.A., for Appellants Pam Stewart and State Board of Education.
    Serita Beamon of Seminole County Public Schools, Sanford; Donna E. Blanton, Angela D. Miles, and Brittany Adams Long of Radey Law Firm, Tallahassee, for Appellant School Board of Seminole County.
    Nicholas A. Shannin and Carol B. Shan-nin of Shannin Law Firm, P.A., Orlando, for Appellant School Board of Orange County.
    Dennis J. Alfonso, Knute J. Nathe, and Carl J. DiCampli of McClain, Alfonso, Nathe & DiCampli, P.A., Dade City, for Appellant School Board of Pasco County.
    Amy J. Pitsch and Susana Cristina Garcia of Greenspoon Marder, Orlando, for Appellant School Board of Osceola County.
    Andrea Flynn Mogensen of the Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellees.
   WETHERELL, J.

In these consolidated appeals, the State Board of Education and the Commissioner of the Department of Education (collectively “DOE”) and five local school boards seek review of a nonfinal order that (1) denies the school boards’ motions to transfer or dismiss based on the home-venue privilege and (2) grants temporary injunc-tive relief against DOE and one of the school boards. We reverse the order and vacate the injunction because the school boards were entitled to be sued in their home venues and none of the requirements for injunctive relief were established.

I. Factual and Procedural Background

The day before the 2016-2017 school year started in most areas of the state, Appellees (hereafter “the plaintiffs”)—a group of parents whose children were not promoted to fourth grade because they “opted out” of the mandatory statewide standardized reading test known as the English Language Arts assessment (“ELA”)—filed a complaint in the Leon County circuit court seeking declaratory and injunctive relief against DOE and the school boards for Broward, Hernando, Orange, Osceola, Pasco, Sarasota, and Seminole counties. The complaint alleged that the plaintiffs’ children did not have reading deficiencies and that the school boards’ decisions to retain the children in third grade without offering a “portfolio option” were based on an erroneous interpretation of section 1008.25, Florida Statutes (2015), which was dictated to the school boards by DOE. The complaint included claims alleging violations of the children’s rights to due process and equal protection under the state and federal constitutions.

The plaintiffs also filed an emergency motion for a temporary injunction premised on the irreparable harm their children would suffer if retained in third grade. The specific relief requested in the motion was “[a] preliminary injunction enjoining defendants from refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year when there is no reading deficiency.”

In response to the complaint—and in some cases, prior to being served—each of the school boards filed a motion to dismiss or transfer asserting their home-venue privilege. After the trial court deferred ruling on the venue motions at a hearing held three days after the complaint was filed, the school boards and DOE jointly removed the case to the federal district court in Tallahassee. In response, the plaintiffs amended the complaint by deleting the federal claims. The federal court thereafter remanded the case to the trial court.

The trial court did not immediately rule on the venue motions after the case was remanded despite the school boards’ repeated contentions that they were entitled to a ruling on the motions before they were subjected to additional proceedings in this case outside of their home venues. Instead, the court took the venue motions under advisement and held a lengthy evi-dentiary hearing on the plaintiffs’ motion for a temporary injunction.

The evidence presented at the hearing established that the plaintiffs directed their children to “opt out” of—or, as they now characterize it, to “minimally participate” in—the ELA by breaking the seal, writing their names on the test, and then turning it in without answering any questions. Each of the plaintiffs was offered opportunities for their children to take alternative standardized assessments, but they refused. Most of the plaintiffs were also offered the “portfolio option” for their children, but the Hernando County School Board (“HCSB”) did not offer that option to students who had not taken the ELA or an alternative standardized assessment.

The evidence also established that although DOE does not have a rule defining “participation” in the ELA, DOE does not consider students who—like the plaintiffs’ children—do not even attempt to answer a single question to have “participated” in the test. Furthermore, although DOE leaves the review and approval of the “portfolio option” to the local school boards, it published a technical assistance paper (“TAP”) explaining the availability of the “portfolio option” and the other good cause exemptions provided in section 1008.25(6)(b) and it adopted a rule establishing the criteria that student portfolios must meet. The TAP provides that the student portfolio and an alternative assessment are “the two state-approved options for good cause exemption” and that “[t]he student must be offered both options,” but neither the rule nor the TAP necessarily forecloses a school board from requiring students who do not take the ELA to take an alternative standardized test before offering the “portfolio option” as HCSB does.

Four days after the hearing, the trial court entered a lengthy order denying the school boards’ venue motions and granting in part and denying in part the plaintiffs’ motion for temporary injunctive relief. Specifically, the order (1) denied injunctive relief against all of the school boards except HCSB because the children from the other counties were either no longer enrolled in public school, had refused alternative promotion options, or had failed to exhaust them administrative remedies regarding the “portfolio option” that was offered; (2) granted injunctive relief against HCSB, requiring it to (a) “immediately provide the portfolio option ... to any parent who has requested one” and (b) “stop refusing to accept a student portfolio or report card based on classroom work throughout the course of the school year;” and (8) granted injunctive relief against DOE, requiring it to (a) “stop disseminating misinformation that there is no portfolio option available when children do not score a level 2 on the [ELA],” (b) “properly notify the County School Boards that the statutory notice of deficiency and remediation processes must be followed for every student participating (even minimally) in the [ELA] who does not achieve a level 3 score,” (c) “notify the County School Boards that the portfolio option must be offered and available to all grade 3 students,” and (d) “notify County School Boards that grade 3 students with no reading deficiency should be promoted, not retained.”

The school boards and DOE filed timely notices of appeal challenging the trial court’s rulings on venue and injunctive relief.

II. Standards of Review

We review the portion of the trial court’s order denying the school boards’ venue motions under the de novo standard of review, see Brown v. Nagelhout, 84 So.3d 304, 308 (Fla. 2012); and we review the portion of the order granting injunctive relief against DOE and HCSB under a hybrid standard of review pursuant to which the court’s legal conclusions are reviewed de novo and the factual findings are reviewed for an abuse of discretion, see SunTrust Banks, Inc. v. Cauthon & McGuigan, PLC, 78 So.3d 709, 711 (Fla. 1st DCA 2012).

III. Analysis

The statute at the heart of this case is section 1008.25, which, among other things, establishes standards and procedures for the promotion of public school students from third grade to fourth grade. The statute expresses the legislative intent to eliminate “social promotion” and to determine student progression based, at least in part, on satisfactory performance on the ELA and the other components of the FSA. §§ 1008.25(1), (6)(a), Fla. Stat. To that end, the statute requires all public school students to participate in the ELA. § 1008.25(4)(a) (“Each student must participate in the statewide, standardized assessment program required by s. 1008.22.”) (emphasis added); see also § 1008.22(3) (“Participation in the assessment program is mandatory for all school districts and all students attending public schools ....”) (emphasis added).

Section 1008.25 does not define “participate,” but common sense (and the statute as a whole) dictates that the term requires more than the so-called “minimal participation” engaged in by the plaintiffs’ children in this case. The purpose of the ELA is to assess whether the student has a reading deficiency and needs additional reading instruction before (and after) being promoted to fourth grade. See § 1008.25(5)(a). The test can only achieve that laudable purpose if the student meaningfully takes part in the test by attempting to answer all of its questions to the best of the student’s ability. Anything less is a disservice to the student—and the public. See § 1008.22(1) (“The primary purpose of the student assessment program is to provide student academic achievement and learning gains data to students, parents, teachers, school administrators, and school district staff ... to be used by districts to improve instruction; by students, parents, and teachers to guide learning objectives; ... and by the public to assess the cost benefit of the expenditure of taxpayer dollars,”).

Students who “exhibit!] a substantial deficiency” in reading based on their performance on the ELA must be given intensive reading instruction, and their parents must be notified, among other things, that “additional evaluations, portfolio reviews, and assessments are available” to help the school district determine if the student is ready for promotion. §§ 1008.25(5)(a), (5)(e)6.; see also § 1008.25(5)(c)7. (“A parent of a student in grade 3 who is identified anytime during the year of being at risk of retention may request that the school immediately begin collecting evidence for a portfolio.”). If the student’s reading deficiency is not remedied by the end of third grade, the student must be retained. § ■ 1008.25(5)(b) (“To be promoted to grade 4, a studént must score a Level 2 or higher on the [ELA].”).

Students who do not achieve the requisite score on the ELA may only be promoted to fourth grade if granted a “good cause exemption.” § 1008.25(6)(b). A good cause exemption may be granted if the student “demonstrate^] an acceptable level of performance on an‘alternative standardized reading or English Language Arts assessment” or if the student “demonstrates through a student portfolio that he or she is performing at least at Level 2 on the [ELA].” § 1008.25(6)(b)3„ 4. DOE adopted a rule providing general parameters for these exemptions, see Fla. Admin. Code R. 6A-1.094221, but the decision of whether to grant or deny an exemption is vested solely in the superintendent of the school district where the child is enrolled, see § 1008.25(6)(c), Fla. Stat.

A. Venue

It is well established that school boards and other governmental entities may only be sued in their “home venue”— the county in which they maintain their headquarters—unless (1) an exception to the home-venue privilege applies or (2) the privilege is waived' by the governmental entity. See Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla. 1977); Jacksonville Elec. Auth. v. Clay Cty. Util. Auth. 802 So.2d 1190, 1192 (Fla. 1st DCA 2002) (hereafter “JEA”); Levy Cty. Sch. Bd. v. Bowdoin, 607 So.2d 479, 481 n.1 (Fla. 1st DCA1992).

There are only four exceptions to the home-venue privilege: (1) when venue is waived by statute; (2) when the governmental entity is the “sword wielder”; (8) when the governmental entity is sued as a joint tortfeasor; and (4) when a “good cause” petition is filed under chapter 119, Florida Statutes, to access otherwise confidential records. See Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1287-89 (Fla. 2004).

It is undisputed that the first, second, and fourth exceptions do not apply in this case. The trial court’s reliance on the third exception—recognized in Board of County Commissioners of Madison County v. Grice, 438 So.2d 392, 395 (Fla. 1983)— was misplaced because it applies only when the governmental entity is “sued as a joint tortfeasor” and not, as the trial court concluded, whenever governmental entities are “sued as co-defendants.” It undisputed that the plaintiffs’ suit does not assert tort claims against the school boards or DOE. Accordingly, venue for the plaintiffs’ suit against the school boards was proper in Leon County only if the school boards waived their home-venue privileges.

A governmental entity waives its home-venue privilege by submitting to the jurisdiction of a court outside of its home venue or by filing a motion to change venue to a court outside of its home venue. See Dep’t of Agric. v. Middleton, 24 So.3d 624, 627 (Fla. 2d DCA 2009); Levy Cty. v. Diamond, 7 So.3d 564, 566 (Fla. 1st DCA 2009); Mansfield v. Singletary, 610 So.2d 76, 77 (Fla. 1st DCA 1992); Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314, 322-23 (Fla. 1st DCA 1974). The school boards did neither here; they consistently objected to venue in Leon County, and the only motions to change venue filed by the school boards sought to transfer this case to their home venues.

The trial court concluded that the school boards waived their home-venue privileges by removing this case to federal court in 'Tallahassee. This ruling is erroneous because.the school boards could not have removed the case to any other federal court, see 28 U.S.C. § 1441(a), N.D. Fla. Loe. R. 3.1(B), and the removal notice specifically stated it was not intended to waive any available defenses, see Middleton, 24 So.3d at 627 (holding a state agency’s willingness to transfer venue to Jackson County, rather than the agency’s home venue of Leon County, did not constitute a waiver of the home-venue privilege so as to allow the suit to proceed in Pinellas County where it was filed). Moreover, although the school boards told the federal judge they wanted the case heard in “one court,” they also expressed their intent to request a transfer of the case to their “home” district if the case remained in federal court. See Hollis v. Fla. State Univ. 259 F.3d 1295, 1299 (11th Cir. 2001) (explaining that a motion to change venue of a case in federal court is governed by the federal rules, not the state home-venue privilege).

The trial court alternatively concluded venue was proper in Leon County because it is the home venue of DOE and DOE is an indispensable party to the plaintiffs’ suit against the school boards. This ruling is erroneous for two reasons. First and foremost, there is no indispensable party exception to the home-venue privilege and the trial court lacked the authority to create one. See Sun-Sentinel, 865 So.2d at 1288 (agreeing with this Court’s decision in JEA that a trial court may not dispense with the home-venue privilege on policy grounds, but rather the court must apply the privilege unless one of the recognized exceptions is satisfied). Second, even if there was such an exception, it would not apply here because DOE is not an indispensable party to the plaintiffs’ suit that, at its essence, challenges school board decisions concerning the retention and promotion of specific students, which DOE has no role in. See, e.g., §§ 1008.25(2) (“Each district school board shall establish a comprehensive plan for student progression which must provide for a student’s progression from one grade to another .... ”), (5)(a) (noting that a student with a substantial reading deficiency must be given intensive instruction until proficiency is established in a manner determined by the district), (6)(b) (authorizing district school boards to exempt students from mandatory retention for good cause), (6)(c)2. (delegating promotion and retention determinations to school principals, subject to the district school superintendent’s approval).

B. Injunctive Relief

The issuance of a preliminary injunction is “an extraordinary remedy which should be granted sparingly.” City of Jacksonville v. Naegele Outdoor Adver. Co., 684 So.2d 750, 752 (Fla. 1st DCA 1994) (quoting Thompson v. Planning Comm’n, 464 So.2d 1231 (Fla. 1st DCA 1985)). To obtain an injunction, the movant must establish four criteria: (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) substantial likelihood of success on the merits, and (4) that the public interest supports the injunction. Id.

DOE and HCSB argue the plaintiffs did not establish any of the requisite elements for injunctive relief. We agree. Most significantly, as to DOE, the plaintiffs failed to establish a likelihood of success on the merits or the unavailability of an adequate remedy at law. Additionally, the injunction is clearly not in the public interest as it is overbroad and inconsistent with the law in several respects.

With respect to the likelihood of success on the merits, the injunction was grounded on the trial court’s determination that DOE has an obligation to inform the school boards that the “portfolio option” must be offered to all students who do not achieve the requisite score on the ELA, including those students who “minimally participate” in the ELA by “being present, by breaking the seal and putting their names on the test.” DOE has no such obligation and, even if it did, the trial court’s broad interpretation of “participation” finds no support in section 1008.25, which, as discussed above, was carefully crafted to identify and address the needs of students with demonstrated reading deficiencies. Students who refuse to answer any questions on the ELA have not “exhibited a substantial deficiency in reading,” which is the statutory trigger for the required notice of the availability of alternative assessments and student portfolios. See § 1008.25(5)(c), Fla. Stat. (“The parent of any student who exhibits a substantial deficiency in reading ... must be notified .... ”).

With respect to the unavailability of an adequate remedy at law, the plaintiffs and the trial court apparently overlooked the fact that the Administrative Procedure Act affords persons who are substantially affected by agency policy statements that are not adopted as rules to challenge those statements at the Division of Administrative Hearings. See § 120.56(4), Fla. Stat. Accordingly, to the extent that DOE has a non-rule policy regarding the extent of participation in the ELA that is required before the “portfolio option” must be offered, the plaintiffs had an adequate legal remedy to challenge that policy.

Furthermore, with respect to the public interest, the state has a compelling interest in identifying—and not “socially promoting”—third grade students with reading deficiencies. The state also has a compelling interest in having all students participate in the ELA in order to retain its federal education funding. See 20 U.S.C. § 6311(c)(4)(E) (requiring the state to implement a statewide standardized testing program that “[ajnnually meas-urers] the achievement of not less than 95 percent of all students ... who are enrolled in the public schools”). These interests will be frustrated if, as the injunction allows, students can simply “opt out” of the ELA and then seek promotion to fourth grade based on their report cards and the “portfolio option.”

The public interest is also not served by allowing the “portfolio option” (or the other good cause exceptions) to become the rule rather than the exception because section 1008.25(6)(b) requires students promoted to the fourth grade under a good cause exception to be provided “intensive reading instruction and interventions that include specialized diagnostic information and specific reading strategies.” It would make no sense—and would be a waste of the schools’ finite resources—to provide those services to students who do not need them and would not have been provided them had they simply taken the ELA and demonstrated their reading proficiency. Rather, the public interest is better served by maintaining the integrity of the standards and procedures established by the Legislature in section 1008.25, using the ELA to identify those students who—despite their best efforts on the test—have reading deficiencies that need to be addressed either by retaining the student in third grade or by providing the student intensive reading instruction after promotion to fourth grade under a good cause exception.

Finally, even if the plaintiffs had established the requisite elements for in-junctive relief against DOE (and they did not), the injunction could not stand because it is inconsistent with the law and overbroad in several respects. For example, the requirement that DOE notify the school boards that the portfolio option must be offered to “all grade 3 students” is inconsistent with section 1008.25(6)(b), which limits the availability of the “portfolio option” and the other good cause exceptions to students who do not score Level 2 or higher on the ELA. Additionally, the requirement that DOE notify the local school boards that “grade 3 students with no reading deficiency should be promoted, not retained” is overbroad because it would preclude the retention of students without a reading deficiency even if retention is justified for other reasons.

IV. Conclusion

In sum, for the reasons stated above, we reverse the order denying the school boards’ motions to dismiss based on the home-venue privilege and we vacate the temporary injunction entered against DOE and HCSB.

REVERSED and VACATED.

LEWIS, J., CONCURS; WOLF, J., CONCURS WITH OPINION.

WOLF, J.,

concurring.

I concur in that portion of the majority opinion determining that the trial court erred in denying the motion to dismiss based on home venue privilege. I also concur in that portion of the opinion that overturns the injunctive relief granted against the Department because plaintiffs had an adequate and more appropriate remedy pursuant to the Administrative Procedures Act.

Because this trial court was the improper forum for resolving the issues presented, I would not reach the merits.

      . The ELA is one of the tests that make up the Florida Standards Assessment, which is commonly referred to as the FSA. See generally Florida Standards Assessments, Fla. Dep’t Educ., http://www.fldoe.org/accountability/ assessments/k-12-studentassessmenl/fsa.stml; see also § 1008.22(3), Fla. Stat.

      . The Broward County School Board is no longer a party because the claims against it were dismissed by the plaintiffs during the pendency of this appeal and its appeal—case number ID 16-3934—was voluntarily dismissed.

      .The Sarasota County School Board is no longer a party because the claims against it were voluntarily dismissed by the plaintiffs in the trial court.

      . See § 1008.25(6)(b)4., Fla. Stat.; Fla. Admin. Code R. 6A-1.094221(3).

      . On the day of the hearing, the school boards filed an emergency petition for writ of mandamus with this court seeldng to compel the trial court to rule on their venue motions, but the petition—case number 1D16-3773—was dismissed as moot after the trial court ruled on the venue motions before this court could rule on the petition.

      .It is noteworthy that, in describing the plaintiffs’ actions, the amended complaint used the phrase “opt out” nearly 25 times and did not once use the phrase "minimally participate.” Moreover, the amended complaint alleged that one of plaintiffs, Michelle Rhea, told school officials that her child "would not participate” in standardized testing, not that she would "minimally participate” in the testing.

      . The plaintiffs did not cross-appeal this ruling, nor do they challenge the trial court’s explicit finding that they contributed to any harm suffered by their children by directing them not to answer any questions on the ELA.

      . We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A), (B).

      . We need not address the merits of the injunction as to HCSB because, as explained above, the trial court should have dismissed the suit against HCSB. (and the other school boards) based on the home-venue privilege before considering the merits of the plaintiffs’ motion for a temporary injunction.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Glenn SPRADLEY, Appellant, v. Derrick SPRADLEY, James Spradley, and the Estate of Ruby Lee Fuller/Waters, Appellees.
    Case No. 2D15-4850
    District Court of Appeal of Florida, Second District.
    Opinion filed March 8, 2017.

      Glenn Spradley, pro se.
    No appearance for Appellees, Derrick Spradley, James Spradley, and The Estate of Ruby Lee Fuller/Waters.'
   WALLACE, Judge.

Glenn Spradley, an indigent prisoner, appeals an order dismissing his civil action as legally insufficient under section 57.085(6), Florida Statutes (2015). In his complaint, Mr. Spradley alleged that the estate of his mother, Ruby Lee Fuller/Waters (the “mother”), and his brothers, Derrick and James Spradley (the “brothers”), converted his property. Because Mr. Spradley stated a valid cause of action for the tort of conversion and should have been granted leave to amend his complaint against his mother’s estate, we reverse.

According to the allegations in his complaint, Mr. Spradley gave all of his legal documents and papers concerning his criminal and civil cases to his mother to store at her home. The value of these papers allegedly exceeded $15,000. Upon his mother’s death in June of 2014, Mr. Spradley’s brothers were left with possession of their mother’s home and his legal documents. When M. Spradley demanded the return of the documents from his brothers and his mother’s estate, they purportedly failed or refused to do so and, thereby, converted his property. The trial court dismissed the complaint for failure “to state a claim for which relief may be granted” under section 57.085(6).

Because whether a complaint should be dismissed is a question of law, we review a trial court’s decision to dismiss a complaint de novo. See J.W.T. v. S.T., 974 So.2d 436, 437 (Fla. 2d DCA 2007) (citing Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001)); see also Ernie Passeos, Inc. v. O’Halloran, 855 So.2d 106, 108 (Fla. 2d DCA 2003); Hall v. Knipp, 982 So.2d 1196, 1198 (Fla. 1st DCA 2008). “In ruling on a motion to dismiss, the trial court must confíne itself to the four corners of the complaint, accept the allegations of the complaint as true, and construe the allegations in the light most favorable to the plaintiff.” Nelson v. Hillsborough Cty., 189 So.3d 1037, 1040 (Fla. 2d DCA 2016) (quoting Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002)).

“Conversion occurs when a person asserts a right of dominion over chattel which is inconsistent with the right of the owner and deprives the owner of the right of possession.” Estate of Villanueva ex rel. Villanueva v. Youngblood, 927 So.2d 955, 959 (Fla. 2d DCA 2006) (quoting Ming v. Interamerican Car Rental, Inc., 913 So.2d 650, 654 (Fla. 5th DCA 2005)); see also Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“Conversion is an ‘act of dominion wrongfully asserted over another’s property inconsistent with his ownership therein.’ ” (quoting Warshall v. Price, 629 So.2d 903, 904 (Fla. 4th DCA 1993))). In other words, “to state a claim for conversion, one must allege facts sufficient to show ownership of the subject property and facts that the other party wrongfully asserted dominion over that property.” Edwards, 51 So.3d at 1213. For instance, a conversion of property may occur when “a person with a right to possess property demands its return, and the demand is not or cannot be met.” Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989); see also Ernie Passeos, 855 So.2d at 108-09 (“The ‘essence of conversion’ is the possession of property ‘in conjunction with a present intent on the part of the wrongdoer to deprive the person entitled to possession of the property, which [intent] may be, but is not always, shown by demand and refusal.’ ” (quoting Senfeld v. Bank of Nova Scotia Tr. Co. (Cayman) Ltd., 450 So.2d 1157, 1161 (Fla. 3d DCA 1984))); Mayo v. Allen, 973 So.2d 1257, 1259 (Fla. 1st DCA 2008); Bookworld Trade, Inc. v. Daughters of St. Paul, Inc., 532 F.Supp.2d 1350, 1363 (M.D. Fla. 2007) (applying Florida law).

Here, accepting the complaint’s allegations as true and drawing all reasonable inferences in favor of Mr. Spradley, we find that Mr. Spradley alleged a valid cause of action for the tort of conversion against his brothers. Mr. Spradley pleaded sufficient facts to show that he had ownership and possessory rights to the legal documents and papers in question. He also alleged that his brothers had possession of the documents and converted them by failing to return them or refusing to do so upon his demand. Such allegations are facially sufficient to state a valid cause of action for conversion. Indeed, we note that Mr. Spradley’s allegations surpass the minimum requirements to plead a cause of action for conversion. See Amendments to the Fla. Rules of Civil Procedure, 773 So.2d 1098, 1143 (Fla. 2000) (Form 1.939 Conversion). Accordingly, the trial court erred in dismissing Mr. Spradley’s complaint against his brothers.

Furthermore, to the extent that Mr. Spradley attempted to sue his mother’s estate, we find that the trial court erred in failing to grant Mr. Spradley leave to amend his complaint to substitute the proper party. Although there does not seem to be a Florida case directly on point, it is well-settled that “an ‘Estate’ is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party.” Ganske v. Spence, 129 S.W.3d 701, 704 n.1 (Tex. App. 2004) (citations omitted); see also § 733.608, Fla. Stat. (2016) (describing the general power of the personal representative); Reopelle v. Reopelle, 587 So.2d 508, 512 (Fla. 5th DCA 1991) (highlighting that only the personal representative of a decedent’s estate would have the right to intervene in litigation for the benefit of all the beneficiaries of the decedent’s estate); 31 Am. Jur. 2d Executors and Administrators § 1141 (2016) (“Since estates are not natural or artificial persons, and they lack legal capacity to sue or be sued, an action against an estate must be brought against an administrator or executor as the representative of the estate.”); 18 Fla. Jur. 2d Decedents’ Property § 721 (2016) (same). Here, Mr. Spradley not only failed to sue the proper party, but he also failed to allege that the estate had been opened and a personal representative appointed. Despite these deficiencies, the trial court should have granted Mr. Spradley leave to amend his complaint before dismissing his action. See Coby v. Food World, Inc., 746 So.2d 570, 572 (Fla. 1st DCA 1999); Reed v. Mims, 711 So.2d 169, 172 (Fla. 3d DCA 1998) (“[W]here it appears that a pleading’s deficiencies can be cured by an amendment, a reasonable opportunity for amendment should be allowed.”).

For the foregoing reasons, we reverse the trial court’s order dismissing Mr. Spradley’s complaint and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and LUCAS, JJ., Concur.

      .The original complaint was not a part of the record but was included in the appendix to Mr. Spradley's initial brief. We remind the trial court that it "must retain all original pleadings necessary to effectuate appellate review” before dismissing a case under section 57.085. Drayton v. Moore, 807 So.2d 819, 823 (Fla. 2d DCA 2002); see also Osterback v. Turner, 837 So.2d 604, 605 (Fla. 1st DCA 2003).

      . To state a valid cause of action for conversion, it does not matter whether the specific property that is converted has any actual value. See Warshall v. Price, 629 So.2d 903, 904 (Fla. 4th DCA 1993) ("Conversion is an appropriate cause of action even if the specific property ‘converted’ has no actual value.”); see also Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1259 (11th Cir. 2015) (applying Florida law).

      . Section 57.085(6) allows the trial court to dismiss all or part of an indigent prisoner’s claims if it finds that the action fails to state a cause of action, seeks monetary relief from a defendant immune from suit, or seeks relief for mental or emotional injury where there is no allegation of physical injury. The statute further provides that ... the court may dismiss the action in whole or in part on a finding that the prisoner’s claim of indigence is false or if the action is frivolous or malicious.
      Fla. Parole Comm'n v. Spaziano, 48 So.3d 714, 718 n.5 (Fla. 2010) (citation omitted).


author: Kuntz, J.

text:
    Scott K. TOBIASSEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3076
    District Court of Appeal of Florida, Fourth District.
    March 8, 2017

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The defendant, Scott K. Tobiassen, appeals his judgment of conviction for first-degree murder and sentence of life in prison without the possibility of parole. Tobias-sen raises three issues on appeal and we affirm as to two of the issues without further comment. For the third issue, To-biassen argues that a question asked during the booking process relating to his employment violated his federal and state constitutional protections against compelled self-incrimination and, therefore, violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We reject his argument and hold that routine questions about .employment asked during the booking process do not violate a defendant’s rights under the federal and state constitutions. Therefore, we affirm Tobias-seris conviction and sentence.

I. Factual Background

On August 13, 2013, Tobiassen called his friend and told her that he needed to see her. When the friend arrived, Tobiassen showed her a mutual friend dead in the shower with multiple stab wounds to the neck and simultaneously admitted to having killed him. After the friend called the police, the police arrived and saw Tobias-sen carrying items out to his vehicle. They also found items on the front porch including power tools and a plastic bag with a sneaker protruding from it. After observing that the sneaker remained attached to a leg, the officers entered the residence and, in a bathroom, found a container with blood all over it, and blood splattered on the walls.

Later that night, a detective interviewed Tobiassen and, at the start of the interview, advised Tobiassen of his Miranda rights. In response to hearing his Miranda rights, Tobiassen said “things just got out of hand today,” and then invoked his right to remain silent. The detective immediately ended the interview upon hearing To-biassen invoke his right to remain silent.

Subsequently, a different officer was tasked with completing a “rough arrest form.” The officer was aware that Tobias-sen had invoked his right to remain silent and was instructed not to ask any questions beyond those seeking biographical information. At trial, the officer testified that he began on the top of the arrest form by asking about height, weight, eye color, and hair color. Tobiassen interrupted those questions and stated: “I hope my mom do[es] not find out about this, it will kill her.” The officer did not respond but continued asking the “rough arrest” questions. The next question asked for Tobiassen’s occupation and Tobiassen again interrupted. The officer testified that in response to the question asking for his occupation, To-biassen stated:

I’m a crane operator and I tried asking my roommate for help to pay my rent [because] I do not have a job anymore ... my roommate ... got angry and threw his skateboard at me that’s when I lost it .... I got angry at him—I got angry hit him because he would not help me with the rent because I do not have any other place to live and my life is over as I know it, and I hit him over the head with a metal pipe and killed him and the rest of the story you already know.

Tobiassen moved to suppress the statement recited above, arguing that he should not have been asked about his occupation after he invoked his right to remain silent. The trial court denied the motion and, after the jury convicted him of first-degree murder, this appeal followed.

II. Analysis

The issue presented by Tobiassen in this appeal is whether a question relating to occupation during the booking process falls within the “routine booking question” exception to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We join the majority of jurisdictions that have addressed this issue and conclude that a question relating to employment falls within the routine booking question exception to Miranda.

In Miranda, the United States Supreme Court established four now-familiar warnings that are required prior to interrogation when a person has been taken into custody. Specifically, “[a suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he. so desires.” Florida v. Powell, 559 U.S. 50, 59-60, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010) (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).

The Supreme Court later explained that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Therefore, if a question is normally attendant to arrest and custody, it falls outside the protections recognized in Miranda. For example, “in the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda” because the police action is one normally attendant to arrest and custody. South Dakota v. Neville, 459 U.S. 553, 564 n.15, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Nor does the government violate Miranda by requesting a defendant submit to fingerprinting or photography. Id.

Another area of inquiry that falls outside of Miranda derives from Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). At issue in Muniz were questions posed to a suspect arrested on suspicion of driving under the influen.ee. Relevant here, a plurality of the Muniz court held that responses to questions such as name, address, height, weight, eye col- or, age, and date of birth fell within a “routine booking question” exception to Miranda “which exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Id. at 601, 110 S.Ct. 2638 (internal citation omitted). In reaching this conclusion, Muniz adopted a test that had previously gained widespread support in the federal circuits across the country. See United States v. Doe, 878 F.2d 1546 (1st Cir. 1989); United States v. Disla, 805 F.2d 1340 (9th Cir. 1986); United States v. McLaughlin, 777 F.2d 388 (8th Cir. 1985); United States v. Morrow, 731 F.2d 233 (4th Cir. 1984); United States v. Avery, 717 F.2d 1020 (6th Cir. 1983); United States v. Glen-Archila, 677 F.2d 809 (11th Cir. 1982); United States v. Prewitt, 553 F.2d 1082 (7th Cir. 1977); United States ex rel. Hines v. La Vallee, 521 F.2d 1109 (2d Cir. 1975); United States v. Menichino, 497 F.2d 935 (5th Cir. 1974); see also State v. Garcia, 233 Kan. 589, 664 P.2d 1343, 1356 (1983) (collecting state court cases and holding that “the information obtained from the appellant to complete the personal history sheet following his request for counsel did not violate his rights against self-incrimination and right to counsel under Miranda.”).

Our state supreme court recognized the routine booking question exception in Allred v. State, 622 So.2d 984 (Fla. 1993), holding “that routine booking questions do not require Miranda warnings because they are not designed to lead to an incriminating response; rather, they are designed to lead to essential biographical data.” Id. at 987; see also Holland v. State, 773 So.2d 1065, 1073 (Fla. 2000); Voorhees v. State, 699 So.2d 602, 612 n.8 (Fla. 1997).

We have applied this exception in a number of cases, see Bucknor v. State, 965 So.2d 1200, 1202 (Fla. 4th DCA 2007) (“[W]e hold that the routine request for a contact number is of the same character as the questions involved in Muniz and All-red and thus similarly falls within the booking exception.”); McDowell v. State, 903 So.2d 290, 292 (Fla. 4th DCA 2005) (recognizing the booking question exception but deeming it inapplicable to the issue before the court), and our sister courts have as well, see J.M. v. State, 34 So.3d 163, 164 (Fla. 3d DCA 2010) (“The Florida Supreme Court and the District Courts of Appeal in this state have routinely held that Miranda does not apply to questions designed to obtain basic booking information.”); State v. Foster, 562 So.2d 808, 809 (Fla. 5th DCA 1990) (“During the booking process, a suspect is asked approximately fifteen general questions which relate solely to identity. It is simply an administrative procedure. Unless there are unusual circumstances which do not appear from the record in this case, the routine gathering of biographical data for booking purposes cannot be characterized as an inherently coercive custodial interrogation.”). In fact, the booking question exception has been applied outside of the booking context as long as the officer is “acquiring basic information.” Timmons v. State, 961 So.2d 378, 380 (Fla. 4th DCA 2007); see also J.M., 34 So.3d at 165-66.

We are now asked to decide whether a question about employment falls within the routine booking question exception recognized in Muniz and Allred. While a question about employment was not addressed in Muniz or Allred, it has been addressed in other jurisdictions.

The Second Circuit addressed this question in United States v. Gotchis, 803 F.2d 74, 78 (2d Cir. 1986). In Gotchis, the Second Circuit discussed United States ex rel. Hines v. LaVallee, 521 F.2d 1109 (2d Cir. 1975), and explained that in Hines, the officer asked the suspect questions about his identity and background without realizing that the answers may be incriminating. Gotchis, 803 F.2d at 78-79 (citing Hines, 521 F.2d 1109). The suspect answered that he “had been married for eleven years and had two children,” and unbeknownst to the officer the victim later testified that “the rapist had told his victim during the assault that he had been married for eleven years and had two children.” Id. Notwithstanding that fact that the answer provided the link necessary to obtain the conviction, the Hines court had held it was admissible under Miranda. Id. After explaining Hines, the Second Circuit reached the same conclusion in Gotchis. The court stated that the question regarding employment “falls within the benign category of basic identifying data required for booking and arraignment.” Id. at 79. The fact that the answer may be incriminating in one instance, such as with Gotch-is, did not justify creating a bar to asking about employment which in most instances would be a useful booking question. See id.

The First Circuit addressed the issue in dicta in United States v. Duarte, 160 F.3d 80, 82 (1st Cir. 1998) (per curiam), and addressed it head on in United States v. Sanchez, 817 F.3d 38, 45 (1st Cir. 2016). The First Circuit explained that “the booking exception’s applicability turns on an ‘objective’ test that asks whether the questions and circumstances were such that the officer should have reasonably expected the questions to elicit an incriminating response.” Sanchez, 817 F.3d at 45. With regard to employment questions, the First Circuit agreed with the Second Circuit that “employment questions, ordinarily innocent of any investigative purpose, do not pose the dangers that Miranda sought to check—the answers to these questions give the judiciary important info (the info can help with setting a defendant’s bail, for example), and thus are so central to the booking and pretrial process that they are usually exempt from Miranda’s, coverage.” Id. (internal quotation omitted). In Sanchez, the defendant did not dispute that an employment question could fall outside of Miranda. Instead, he argued that in his specific situation, the question violated Miranda because it was knowingly asked to elicit an incriminating answer. Id. at 45-46. Not so, concluded the First Circuit. Id. (“As a nonmember of the team that investigated Sanchez, Toledo asked only routine questions to help with the booking process—not to strengthen the case against the arrestee.”). The Fourth Circuit reached the same result. United States v. Smith, 229 F.3d 1145, 2000 WL 1144602 (4th Cir. 2000) (unpublished table decision) (“[W]e find that the police’s questioning of Smith regarding his employment status was a part of routine booking questions and therefore did not violate Smith’s Fifth Amendment rights.”).

Tobiassen cites four other cases that addressed the issue while reaching different conclusions. See Hughes v. State, 346 Md. 80, 695 A.2d 132 (1997); Commonwealth v. Woods, 419 Mass. 366, 645 N.E.2d 1153 (1995); Commonwealth v. Guerrero, 32 Mass.App.Ct. 263, 588 N.E.2d 716 (1992); People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 (1995). In Hughes, the Maryland Court of Appeals concluded that a question regarding routine “narcotics or drug use” did not fall within the exception. 695 A.2d at 141. However, the court “agree[d] that certain routine questions asked during the booking process are ordinarily exempt from the requirements of Miranda.” Id. at 139. In Guerrero, the first of the two cases from Massachusetts cited by Tobias-sen, the Appeals Court of Massachusetts commented in dicta that “[t]he relevance of occupation and employment to those responsibilities is less immediately obvious, and, in light of the Muniz decision, it will be preferable, unless Miranda warnings are repeated prior to booking, to scrub questions about employment status from the booking ritual.” 588 N.E.2d at 719. Later, after determining that the issue had been waived, in Woods the Supreme Judicial Court of Massachusetts decided that “in view of the significant public interest in protecting the Miranda rights of criminal defendants, we must express briefly our opinion on this issue” even though it was not relevant to the case before it. 645 N.E.2d at 1157. Although not an issue in the case, the Massachusetts court stated that “we believe that, where an arrestee’s employment status may prove incriminatory, the police must give Miranda warnings before asking questions about employment.” Id. In Rodney, the New York appellate court concluded that job-related questions fall outside the scope of Miranda’s protections. 624 N.Y.S.2d 95, 648 N.E.2d at 471. To the extent these cases cited by Tobiassen conclude that a question about employment during the booking process violates Miranda, we disagree.

In this case, the officer’s questions to Tobiassen were clearly biographical in nature and were appropriately part of the booking process. Therefore, the court properly denied his motion to suppress.

III. Conclusion

A question in a particular case that is appropriately part of a routine booking procedure falls outside of the protections outlined in Miranda. We hold that, in this case, one such appropriate booking question related to employment and the government did not violate Miranda by inquiring about the defendant’s employment during the booking process. Therefore, the trial court correctly denied Tobiassen’s motion to suppress his confession made in response to the booking officer’s question as to his employment.

Affirmed.

Levine and Klingensmith, JJ., concur.


author: Levine, J.

text:
    Jody GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2901
    District Court of Appeal of Florida, Fourth District.
    March 8, 2017

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The issue presented on appeal is whether the appellant in this case was subject to conditions tantamount to a custodial interrogation. We hold that, although appellant was in custody, he was not interrogated directly nor was he subject to an atmosphere that was effectively a custodial interrogation. Rather, appellant made unsolicited incriminating statements' without having been asked any questions and without being put in conditions tantamount to an interrogation. '

While in Davie, Florida, located in Bro-ward County, appellant fired his gun into a van containing a woman, her friend, and the woman’s five children. A bullet struck and killed one of the children.

Appellant subsequently left Broward County and went to Tampa with a friend who did not know about the shooting. The next day, his friend learned that appellant was wanted in connection with a homicide and confronted appellant. Appellant decided to voluntarily turn himself in to the authorities.

Appellant went to the Tampa Police Department and informed an officer sitting at the front desk that he wished to speak with someone about an accidental shooting in South Florida and that he may be wanted. The officer did a warrant check and saw there was an outstanding warrant for appellant’s arrest. Appellant was taken into custody and placed in a holding cell within the Tampa police’s homicide department. The Davie police were contacted, and the Davie police stated that they would come to take appellant into custody and transport him back to Broward. While waiting for the Davie police to arrive, two officers, Sergeant Massucci and Detective Camp, stayed to watch appellant.

Appellant was not given Miranda warnings. The police in Tampa did not feel the warnings were necessary because they did not plan on questioning appellant. Nevertheless, appellant began making statements to Detective Camp, saying that he “felt like talking to [Camp] and getting it out.” Appellant said that he was sorry, that he did not see “how people can kill people and not feel bad about it,” and that he wished “to take back what [he] did.” Appellant also complained about having a bad childhood, and expressed his desire to commit “suicide by cop.” Detective Camp wrote down everything that appellant said. Although Detective Camp made a few general comments expressing sympathy for appellant, he never asked appellant a single question, nor did he expressly encourage appellant to elaborate. The detective primarily listened to appellant.

Appellant asked Detective Camp what Camp thought appellant’s charges were. Detective Camp told appellant the charge was murder, but he did not know what degree. Appellant told Detective Camp that it was not first-degree murder because the shooting was not “knowing or intentional.”

Appellant was in the Tampa Police Department’s custody for about four hours. When the police from Davie arrived, the Davie police Mirandized appellant whereupon appellant invoked his right to remain silent. Appellant again invoked his rights upon returning to Broward County.

Appellant moved to suppress the statements he made to the police in Tampa. The trial court denied appellant’s motion. The trial court found that, while appellant was certainly in custody, he had not been interrogated. Following a jury trial, appellant was convicted of first-degree murder and six counts of attempted second-degree murder. Appellant appeals the trial court’s denial of his motion to suppress.

We review the denial of a motion to suppress as a mixed question of law and fact. See Connor v. State, 803 So.2d 598, 605 (Fla. 2001). Although we defer to the trial court on questions of historical fact, the constitutional issue is reviewed de novo. Id.

“The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation. Where either the custody or interrogation prong is absent, Miranda does not require warnings.” Timmons v. State, 961 So.2d 378, 379 (Fla. 4th DCA 2007) (citation omitted). In the present case, appellant was clearly in “custody” as he was held in a cell awaiting the arrival of the Davie police. See id. As such, the only remaining question for our consideration is whether police in Tampa “interrogated” appellant.

The United States Supreme Court has defined “interrogation” as follows:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnotes omitted).

In this case, neither Detective Camp nor Sergeant Massucci asked appellant a single question or encouraged appellant to elaborate on anything he said. As such, there was no “express” interrogation. Nevertheless, we must determine whether the Tampa police “should have known” the following was “reasonably likely to elicit an incriminating response”: (1) holding appellant in a cell for four hours while police from another jurisdiction arrived, (2) writing down what appellant said, (3) responding to appellant with general comments expressing sympathy, and (4) responding to appellant’s question regarding his charges. See id.

Courts have held confining a suspect to a holding cell does not subject the suspect to the functional equivalent of interrogation. State v. Edenfield, 27 So.3d 222, 225 (Fla. 2d DCA 2010). Further, no interrogation occurs where an officer does not initiate a conversation and merely responds to the suspect. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (explaining that custodial interrogation means “questioning initiated by law enforcement officers”) (emphasis added); see also United States v. Chipps, 410 F.3d 438, 445 (8th Cir. 2005) (“Miranda does not bar the government from introducing into evidence spontaneous statements made during a conversation not initiated by the officer. An officer’s request for clarification of a spontaneous statement generally does not constitute interrogation.”) (citation omitted); United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001) (“A police officer’s response to a direct inquiry by the defendant does not constitute ‘interrogation.’ ”); People v. Gonzales, 987 P.2d 239, 242-43 (Colo. 1999) (“A response explicitly permitting a defendant to make an inculpatory statement does not rise to the level of police interrogation.”); State v. Cryan, 363 N.J.Super. 442, 833 A.2d 640, 647-48 (N.J. Super. Ct. App. Div. 2003) (holding the defendant was not interrogated when the defendant “initiated each and every encounter with the police in an effort to improperly obtain favorable treatment from the officers connected with his arrest[,]” and “[t]he incriminating statements defendant made in the course of these encounters were the product of his own conduct”). Finally, responding to a suspect’s inquiry regarding his or her charges is not reasonably likely to elicit a response. See State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606, 614 (2015) (holding that a defendant’s incriminating statement was “spontaneous” when the defendant requested the criminal complaint against him, the officer wordlessly handed the defendant the complaint, and the defendant made an incriminatory statement); State v. Spencer, 149 N.H. 622, 826 A.2d 546, 551 (2003) (stating that showing the defendant surveillance photographs was not “the functional equivalent of interrogation” because the police did so in response to the defendant’s “repeated questions about the basis for her arrest and claims of innocence”).

However, “[c]ase law is replete with examples of where a statement made by a law enforcement officer to the suspect, without benefit of Miranda warnings, is a type of interrogation prohibited by Innis.” Cooper v. State, 27 So.3d 715, 717 (Fla. 2010). For example, in Glover v. State, 677 So.2d 374 (Fla. 4th DCA 1996), the defendant was arrested and placed in an interrogation room for over an hour without the benefit of Miranda warnings. The defendant continuously demanded to know why he was being held, but the police officers refused to answer, even as the defendant grew “increasingly agitated.” See id. at 375. This court held that “the police officers’ conduct toward appellant was unduly protracted and evocative such that the atmosphere was tantamount to a custodial interrogation.” Id. at 376.

Similarly, in Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005), the defendant was arrested and invoked his right to remain silent. The police, when searching the defendant’s car, found significant amounts of drugs in a cooler. One officer told the defendant, “That’s a lot of drugs you had,” to which the defendant responded, “I have to make money and make a living.” Id. at 70. This court held that the statement was tantamount to an interrogation. Id. at 73. First, the statement was directed to the defendant. Second, the statement was reasonably likely to elicit a response in that it assumed the defendant possessed drugs and prompted a response regarding the quantity of drugs. Finally, this court noted that when the officer asked the question, he had the cooler of drugs in one hand and the defendant in the other.

In the present case, appellant voluntarily made incriminating statements, and the police were not obligated to stop him from doing so. See Miranda, 384 U.S. at 478, 86 S.Ct. 1602 (“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make.”) (footnote omitted); see also Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (explaining the police are not prohibited from “merely listening” to a defendant’s voluntary, volunteered statements). Furthermore, Detective Camp could respond to appellant in the manner he did without transforming the interaction into the functional equivalent of an interrogation. See Chipps, 410 F.3d at 445; Briggs, 273 F.3d at 740-41; Bouie, 776 S.E.2d at 614.

Here, unlike Glover, the police did not create an “atmosphere ... tantamount to a custodial -interrogation.” Glover, 677 So.2d at 376. Whereas in Glover, the defendant was arrested, held in an interrogation room, and was not told why he was arrested, in the present case, appellant was held in a holding cell and knew why he was in custody. After all, appellant ended up in the holding cell after he had voluntarily turned himself in to the police in Tampa. Such conditions were not designed to “agitate” appellant nor were they “unduly protracted and evocative.” Id. Indeed, nothing about the conditions of appellant’s detention indicate he was subjected to an “interrogation.”

Furthermore, the mere act of writing down what appellant said did not subject appellant to conditions “tantamount to a custodial interrogation” as the officer’s note-taking did not encourage appellant to continue making statements. See id. Simply because Detective Camp recorded appellant’s statements does not mean Miranda warnings were necessary. See Jackson v. State, 317 So.2d 454, 455-56 (Fla. 4th DCA 1975) (explaining that taping a telephone call does not require a Miranda warning).

Lastly, Detective Camp’s statements to appellant were not “reasonably likely to elicit an incriminating response.” See Innis, 446 U.S. at 301, 100 S.Ct.1682. Detective Camp mostly listened and limited his responses to general statements expressing sympathy. Unlike Origi, where the comment, “that’s a lot of drugs you had,” not only initiated the conversation but assumed the defendant possessed drugs and called for an answer as to the amount, Detective Camp’s response to appellant’s question regarding appellant’s likely charges did not initiate the conversation, nor did he assume wrongdoing on appellant’s part,. and finally did not call for appellant to respond. Consequently, we affirm the trial court’s denial of appellant’s motion to suppress.

In summary, we conclude appellant was not “interrogated” either by direct questioning or practices tantamount to an interrogation. We find appellant’s remaining arguments to be without merit and affirm without comment.

Affirmed.

Khngensmith and Kuntz, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: SCALES, J. WELLS, Judge

text:
    ABUNDANT LIVING CITI CHURCH, INC., Appellant, v. ABUNDANT LIVING MINISTRIES, INC., Appellee.
    No. 3D16-2649
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017
    Rumberger, Kirk & Caldwell, P.A., and Joshua D. Lerner, for appellant.
    Cooney Trybus Kwavnick Peets, PLC, and Alphonso Peets and Kelly A. Lenahan (Fort Lauderdale), for appellee.
    Before WELLS, SALTER and SCALES, JJ.
   SCALES, J.

Appellant Abundant Living Citi Church Inc. (“Church”), the defendant and counter-plaintiff below, appeals a non-final order ejecting Church from property owned by Appellee Abundant Living Ministries, Inc. (“Owner”), the plaintiff/counter-defendant. Because the trial court’s order of ejectment operated as a de facto grant of summary judgment for Owner, disposing of Owner’s claim and Church’s contract claims, without obedience to summary judgment’s procedural dictates, we reverse.

I. Facts

In 2007, Owner initiated a single-count ejectment action, seeking to eject Church from Owner’s real property in Miami. Church filed a verified answer, affirmative defenses, and a three-count counterclaim alleging that Owner was estopped from ejecting Church from the property. Essentially Church alleges Owner orally agreed to sell the property to Church, and breached that oral agreement, by failing to honor the agreement. Owner sought to strike Church’s affirmative defenses, asserting that Florida’s statute of frauds precludes Church’s contract and specific performance claims. The trial court denied Owner’s motion to strike.

Protracted discovery ensued over the next several years. Eventually, the trial court set the ease for jury trial in May of 2017. One week after the case was set for trial, Owner filed its October 17, 2016 Motion to Compel Defendant to Surrender the Premises. In its motion, Owner alleged that it had entered a contract to sell the property to a third party and, therefore, needed to obtain the relief sought in Owner’s complaint; that is, to eject Church from the property. Owner’s motion made no other legal or factual arguments, did not cite to any record evidence in the case, and did not address Church’s verified affirmative defenses or counterclaim. On October 31, 2016, Owner noticed its motion for a hearing on November 9, 2016, for the trial court’s five-minute motion calendar.

In opposition to Owner’s ejectment motion, Church argued that issues of fact raised by Church’s verified pleadings precluded Owner from obtaining the relief sought. Specifically, Church asserted that Church rightfully possessed the premises, and that Church and Owner had entered into an oral contract authorizing Church to purchase the property. Church asserted that consideration had been given, payment of the purchase price had been tendered, and Church had made valuable improvements to the property. Church asserted that the circumstances surrounding Church’s occupation of Owner’s property were sufficient to “satisfy the longstanding gift and partial performance exceptions to the affirmative defense of the statute of frauds.”

The trial court conducted the November 9, 2016 hearing and on November 23, 2016, entered the order on appeal, which ejected Church from the property. The trial court determined that, even if an oral contract between Owner and Church existed, any such oral contract would violate Florida’s Statute of Frauds. The order expressly did not adjudicate Church’s assertions that its partial performance of the alleged oral contract were sufficient to remove the contract from the operative effect of Florida’s statute of frauds. The order required Owner to hold any sale proceeds in trust pending appeal by Church.

Church timely appealed the order. We stayed the trial court’s order and granted Church’s motion to expedite the appeal.

II. Analysis

The trial court’s ejectment order summarily disposed of both Owner’s ejectment claim and Church’s contract claims; hence we review the ejectment order as we would a summary judgment order. Accordingly, we review the ejectment order de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

Summary judgment is not warranted unless a hearing is held on proper motion, the record conclusively establishes that there exists no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). A trial court may not short-circuit this process. See, e.g., Fouts v. Bowling, 596 So.2d 95, 95 (Fla. 3d DCA 1992) (holding that hearing on motion in limine may not serve as vehicle for unnoticed summary judgment); Lombard v. Exec. Elevator Serv., 545 So.2d 453, 455 (Fla. 3d DCA 1989) (disapproving use of pretrial conference to take testimony to dispose of case without summary judgment notice). Further, a trial court may not short-circuit the summary judgment process by neglecting elements of rule 1.510. See, e.g., Kendall Commercial Assocs., LLC v. Drakes, LLC, 163 So.3d 718, 718-719 (Fla. 3d DCA 2015) (holding that grant of summary judgment without notice and based on relief unpled is improper); Schrank v. Pearlman, 683 So.2d 559, 563 (Fla. 3d DCA 1996) (observing that summary judgment cannot be based on un-sworn proof); Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So.2d 174, 175 (Fla. 3d DCA 1971) (stating that affidavit in support of summary judgment may not be based on factual or legal conclusions).

To be entitled to a summary judgment, Owner, as the movant, had the burden to identify in its motion those record facts that conclusively proved its claim and disproved Church’s claims. Alfre Marble Corp. v. Twin Stone Designs & Installations, Inc., 44 So.3d 193, 194 (Fla. 3d DCA 2010). Rule 1.510(c) requires summary judgment motions specifically to identify the summary judgment evidence upon which the movant relies. Owner’s motion identifies no record evidence whatsoever; it merely alleges, in conclusory manner, that Church should be ejected from the property. Owner’s motion was accompanied by no affidavits or record citations. Owner’s motion simply repeated the con-clusory statement—alleged in Owner’s complaint—that Church had no legal basis to be in possession of the property. No attempt was made to challenge, much less disprove, the verified allegations contained in Church’s answer and counterclaim.

Additionally, rule 1.510(c) requires summary judgment motions to “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” Fla. R. Civ. P. 1.510(c). The motion does not mention the parties’ alleged oral contract or Florida’s statute of frauds, much less address whether the facts alleged by Church bring the parties’ oral contract outside the reach of the statute of frauds. Understandably, based on Owner’s motion, Church could not have reasonably expected the trial court to enter against it a de facto summary judgment or, as the dissent suggests was appropriate, a final judgment of dismissal. Yet, as Owner’s counsel properly conceded at oral argument, this is precisely the effect of the trial court’s order.

To be clear, we express no opinion as to whether Owner might be entitled to a summary judgment in this case. Entry of such summary judgment, however, is predicated upon Owner’s filing of a motion that meets the requirements of rule 1.510 and establishes that Owner is entitled to the relief sought in its pleadings, and that disproves conclusively Church’s entitlement to relief.

III. Conclusion

Notwithstanding Owner’s failure to file a proper summary judgment motion, the trial court entered the equivalent of a summary judgment for Owner. We therefore reverse the trial court’s ejectment order and remand for proceedings consistent with this opinion.

Reversed and remanded.

SALTER, J., concurs.

WELLS, Judge

(dissenting).

I respectfully dissent. Even accepting the majority’s finding that Abundant Living Citi Church, Inc. was denied due process, I would nevertheless affirm what amounted to entry of dismissal with prejudice of appellant’s counter-claims for specific performance, and breach, of an oral contract for the sale of real property, as I find that appellant has not alleged and cannot prove the existence of a valid, oral contract in this matter. See de Vaux v. Westwood Baptist Church, 953 So.2d 677, 682 (Fla. 1st DCA 2007) (“[W]e affirm the order of dismissal because the complaint wholly fails to state a cause of action for specific performance of a contract for the purchase of real property,”).

The parties’ focus both in the proceedings below and in this court on appeal has been on whether the partial performance exception to the statute of frauds, section 725.01 of the Florida Statutes, applies to appellant’s claim. However, as the Florida Supreme Court long ago confirmed “before it becomes proper or necessary to determine whether the facts permit the enforcement of such a contract, as an exception under the Statute of Frauds, it must first be determined” that an oral contract exists. Gable v. Miller, 104 So.2d 358, 360 (Fla. 1958) (“It is fundamental that a prerequisite of a decree for specific performance is the existence of a valid contract.” (quoting Rork v. Las Olas Co., 156 Fla. 510, 23 So.2d 839, 842 (1945))); Celano v. Dlabal, 591 So.2d 653, 655 (Fla. 1st DCA 1991) (recognizing that “[t]o obtain specific performance of an oral contract to convey real estate, the party seeking specific performance must first [make a threshold showing to] establish the oral contract by clear, definite and certain proof’).

“In order for a court of equity to decree specific performance of a contract, the terms of the agreement must be clear, definite, certain and complete, for the equitable remedy of specific performance is granted only where the parties have actually entered into an agreement that is definite and certain in all of its essential elements.” The Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137, 138 (Fla. 3d DCA 1974); see also de Vaux, 953 So.2d at 682 (“In order for a contract to be subject to specific performance, it must appear from the writing constituting the contract that the obligations of the parties with respect to [the] conditions of the contract and actions to be taken by the parties are clear, definite and certain.” (quoting Brown v. Dobry, 311 So.2d 159, 160 (Fla. 2d DCA 1975))). Where, as here, specific performance of a contract for the sale of real property is at issue, the contract must at the very least be “definite, certain, and complete as to the parties, the description of the property, the contract price, and the financing terms thereof.” Muñiz v. Crystal Lake Project, LLC, 947 So.2d 464, 469 (Fla. 3d DCA 2006). Where any of these essential terms are lacking, specific performance of a contract for the sale of real property must be denied. See 330 Michigan Ave., Inc. v. Cambridge Hotel, Inc., 183 So.2d 725, 726-27 (Fla. 3d DCA 1966) (“Specific performance will not be enforced where the contract is not definite and certain as to essential terms and provisions and is incapable of being made so by the aid of legal presumption or evidence of established customs”).

Here, appellant’s counterclaims for breach and specific performance of an oral contract are based on the following verified allegations, in relevant part:

COUNT I. BREACH OF AN ORAL CONTRACT
8. The Defendant ], in August, 2004, through the corporation[’]s representatives and/or officers, Pastor Antonio Rivera, Jr., and Pastor Dianna E. Rivera [entered into a verbal contract with Plaintiff! to relocate from South Carolina to Miami, Florida to start, and operate a religious organization, specifically, a Church, on the property, to conduct improvements to the physical structure on the property, and that in return, for Defendant’s services, the property would be conveyed to the Defendant upon the Defendant’s ability to obtain the finances to purchase the. subject property.
■ 11. That on September 2006, the Defendant having the financial capacity to perform in accordance with the verbal agreement entered into by the parties, offered the Plaintiff Four Hundred Thousand Dollars ($400,000.00) for the property in the defendant’s possession in Miami-Dade County ....
12. That the Plaintiff verbally accepted the offer and subsequently failed to comply with the oral contract.
COUNT II. SPECIFIC PERFORMANCE
13. Defendant , incorporates by this reference paragraph^] 7-11 of this Counter Claim.
14. That on or about September 2006, Plaintiff by and through their Pastor and President of the Corporation, Bishop Hugh Thomas informed the Defendant that their offer of $400,000.00 was accepted with verification with the Plaintiffs certified public accountant.
15. Defendant performed all conditions, covenants, and promises on Defendant’s part to be performed in accordance with the terms and conditions of the agreement.
16. Defendant relied on Plaintiffs representations and that reliance was reasonable.

As clearly alleged in the counterclaim, and confirmed by appellant’s counsel at oral argument, the parties did not agree upon the essential element of price when the parties first had their oral discussions in August of 2004. Rather, it was not until more than two years had passed, in September of 2006, that appellant offered to purchase the- subject property for $400,000. Without an agreement on a purchase price for the subject property, the parties had no enforceable agreement. See Alton Beach Realty Co. v. Henderson, 92 Fla. 689, 110 So. 256, 258 (1926) (denying specific performance of a contract for the sale of real estate where the purported contract failed to set forth with certainty the purchase price and time of payment).

I also find the barebones allegations that appellant would acquire the property at issue here for some unspecified price upon appellant’s “ability to obtain the finances to purchase the subject property” wholly inadequate. Compare Muñiz, 947 So.2d at 470 (finding the purchase and sale agreement sufficient where the agreement specified “the purchase price of the property, the deposit money schedule, the mortgage amount to be obtained by the Purchasers, [and] the mortgage financing conditions”), with de Vaux, 953 So.2d at 682 (finding the plaintiff failed to state a cause of action for specific performance of a contract for the purchase of real property where “[essential terms of the financing ... [were] not included in the purported agreement, such as the date of the maturity of any promissory note, whether the quarterly payments of the debt would include any amortization of principal, and whether the financing would be secured by a mortgage on the subject property or other assets of de Vaux”), and Philbrick v. Wedel, 411 So.2d 973, 974 (Fla. 3d DCA 1982) (reversing final judgment of specific performance and finding “that there was never an enforceable contract entered into by the parties herein because .... the financing portion of the subject agreement was, in our view, entirely indefinite”), and Fox v. Sails at Laguna Club Dev. Corp., 403 So.2d 456, 458 (Fla. 3d DCA 1981) (affirming the denial of specific performance of a contract for the sale of real property because “[w]hile the agreements include the names of the parties to the transaction, the location of the subject property, and the purchase price, conspicuously absent is any mention of the terms of payment or time for payment”), and Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979) (affirming denial of specific performance on a contract for the sale of real property where it was “not clear as to how the deferred payment financing arrangement would work, or when the purchase money mortgage payments would begin” and where “[t]he note also ma[de] mention of a possible future subordination of the purchase money mortgage to a new first mortgage, but none of those terms of this contemplated subordination were delineated”).

Additionally, and in a similar vein, the facts alleged in the counterclaim could not possibly be viewed as anything more than an “agreement to agree” and therefore under Florida law unenforceable. See ABC Liquors, Inc. v. Centimark Corp., 967 So.2d 1053, 1056 (Fla. 5th DCA 2007) (“[A]n ‘agreement to agree’ is unenforceable as a matter of law.”). “To be enforceable, an agreement must be sufficiently specific, and reflect assent to all essential terms. Where essential terms of an agreement remain open, subject to future negotiation, there can be no enforceable contract.” Suggs v. Defranco’s, Inc., 626 So.2d 1100, 1100-01 (Fla. 1st DCA 1993) (citation omitted); John Alden Life Ins. Co. v. Benefits Mgmt. Assoc., 675 So.2d 188, 189 (Fla. 3d DCA 1996) (concluding that a contractual term providing that the parties would negotiate a bonus payment in the future “was merely an ‘agreement to agree’ in the future about the bonus and hence unenforceable as a matter of law”); Jacksonville Port Authority, City of Jacksonville v. W.R. Johnson Enters., Inc., 624 So.2d 313, 315 (Fla. 1st DCA 1993) (“Failure to sufficiently determine quality, quantity, or price may preclude the finding of an enforceable agreement. Where the parties are continuing to negotiate as to these essential terms, there can be no meeting of the minds.”) (citations omitted); see generally 11 Fla. Jur. 2d Contracts § 20 (“Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract. Thus, where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds as required for the formation of a contract. Accordingly, an ‘agreement to agree’ is unenforceable as a matter of law.”) (footnotes omitted).

Accordingly, even given the majority’s conclusion that the appellant was denied due process, I would nevertheless affirm in this case as I find that appellant cannot as a matter of law establish the prerequisite for maintaining an action for breach of contract or specific performance. The sufficiency of a complaint for breach of contract and specific performance is a question of law and our standard of review is de novo. See de Vaux, 953 So.2d at 681. Limiting such review to the allegations within the four corners of the complaint, accepting the allegations as true, and considering them in the light most favorable to appellant, it is clear that the parties do not have a valid, oral contract for the reasons set forth herein. As even appellant’s counsel conceded at oral argument, the purchase price and parameters for making payment were not even discussed by the parties until more than two years had elapsed from the time of their purported oral agreement in August of 2004. In light of this, I see no point in remanding this case for the lower court to engage in what amounts to a futile act on these claims. See Posigian v. Am. Reliance Ins. Co. of N.J., 549 So.2d 751, 754 (Fla. 3d DCA 1989) (“It would have been an exercise in futility to give Posigian an opportunity to amend her complaint. Where a complaint cannot be amended so as to state a cause of action, a dismissal with prejudice is proper.”).

      . Specifically, count I of Church's counterclaim seeks monetary damages for breach of contract; count II seeks a judgment requiring Owner to specifically perform the contract by selling the property to Church for the allegedly agreed-upon sum of $400,000; and count III seeks unjust enrichment damages for improvements Church allegedly made to Owner’s property.

      . Florida's statute of frauds generally requires that any contract for sale of real property is unenforceable unless in writing and signed by the party to be bound. § 725.01, Fla. Stat. (2006).

      . In fact, nowhere in the record is there a copy of the alleged contract between Owner and the prospective purchaser.

      . As mentioned, the trial court previously had denied Owner's equivalent motion seeking to strike Church's pleadings. "[A]n order that strikes the entirety of a claim is the equivalent of an order which dismisses, and either is final.” Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1282 (Fla. 3d DCA 1980).

      . Consistent with the counterclaim, appellant’s counsel also confirmed at oral argument that appellant was alleging the parties had entered into only one oral contract, in August of 2004, such that appellant’s $400,000 offer in September of 2006 was in fulfillment of that agreement. In addition, though not alleged in the counterclaim, appellant’s counsel represented at the hearing below that the $400,000 was also tendered to the appellee, but rejected.

      . At best, appellant has a valid cause of action for unjust enrichment based on the "valuable and permanent improvements” that appellant allegedly made to the subject property upon tailing possession of it. That claim, which appellant raised as count III of the counterclaim, was not addressed in the order on review and remains pending below.


author: SUAREZ, C.J.

text:
    ASPERBRAS TECNOLOGIA INDUSTRIAL, e Agronegócios Ltda., etc., et al., Appellants, v. GOOD HOPE DEVELOPMENT, LLC, Appellee.
    No. 3D16-1292
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017

      Baker & McKenzie, LLP and Daniela Fonseca Puggina and Carolina Neves, for appellants.
    Akerman LLP and Robert I. Chaskes and Paul L. Kobak, for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   SUAREZ, C.J.

Asperbras Tecnología Industrial e Agronegócios LTDA, and Jose Roberto Colnaghi, Asperbras’ CEO, [collectively, Asperbras] appeal from a non-final order denying their motion to quash and dismiss Good Hope Development, LLC’s [Good Hope] Amended Complaint for lack of personal jurisdiction, improper venue, and forum non conveniens. We affirm.

Appellants are a Brazilian corporation and citizen, respectively. Good Hope LLC, Appellee, is a Florida LLC owned by two Brazilian members, with its principal place of business in Miami-Dade County. In July 2011, Asperbras contracted with Good Hope to structure, negotiate and obtain a line of financial credit to be used in contracts Asperbras hoped to enter with the Republic of Guinea. The agreement had a carve-out clause that- excluded any financing with Credit Suisse. Good Hope was to get a finder’s fee. The agreement between Asperbras and Good Hope provided for arbitration and venue in Brazil.

Good Hope subcontracted the task of finding the financial credit line to Netplan Servicios Empresarias LTDA [Netplan], a Brazilian corporation. Good Hope agreed to pay Netplan one-half of the finder’s fee that Good Hope expected to earn from its contract with Asperbras. Netplan then allegedly approached Asperbras, without Good Hope’s knowledge or authorization, to seek an advance on the finder’s fee it would get from the Asperbras/Good Hope contract. Asperbras agreed to advance Netplan monies and separately contracted with Netplan to secure a letter of credit (as opposed to a line of financing) from Credit Suisse. Netplan obtained a letter of credit from Credit Suisse in favor of As-perbras, and Asperbras paid Netplan a finder’s fee. Subsequent questions from the bank resulted in Asperbras cancelling the Asperbras/Good Hope contract and refusing to pay Good Hope for its services. Good Hope then sued Asperbras for breach of contract. The matter was arbitrated in Brazil. The Brazilian arbitrators determined that Asperbras did not obstruct the Good Hope/Netplan arrangement, concluding that a letter of credit was not the same as a line of financing, and that Credit Suisse was carved out of the Asperbras/Good Hope contract.

In 2015, Good Hope filed a Complaint in Miami-Dade circuit court alleging Asper-bras’ tortious interference with the Good Hope/Netplan subcontract. Asperbras removed the case to federal court. The federal court remanded the case to the state circuit court, finding it did not have subject matter jurisdiction under the Federal Arbitration Act as Good Hope’s damages were not measured by its contract with Asperbras, but by Asperbras’ alleged interference with Good Hope’s contractual relationship with Netplan. Once back in state court, Asperbras filed a motion to dismiss arguing that service of process was invalid because Good Hope was required to serve Asperbras by letters rogatory and had not done so. At a special May 12, 2016 hearing, the trial court took evidence and heard both parties’ arguments and a) denied Asperbras’ motion to quash service of process; b) denied Asperbras’ motion to dismiss based on res judicata; c) denied Asperbras’ motion to dismiss for improper venue; d) allowed the parties to engage in further discovery relating to forum non conveniens and to renew any related objections once discovery was concluded; e) denied Asperbras’ motion to dismiss Good Hope’s Amended Complaint for failure to state a claim, and ordered Good Hope to state a damage claim with greater particularity. Asperbras appeals.

We review de novo the trial court’s order on the motion to quash service of process and find that service was legally sufficient under both Florida and Brazilian law. Good Hope presented evidence that it had engaged a Brazilian attorney in good standing who personally served the Appellants in Brazil, and that such service was valid service in Brazil. Appellants do not dispute that the returns of this service comply with Florida law and are regular on their face and valid. Appellants provide no clear and convincing evidence otherwise. Therefore, the form of the return of service is not an issue. As to the service, Florida courts may accept any particular method of service, so long as it does not contradict any self-executing international agreement or implementing statutes, or as long as such method is not expressly prohibited by the law of the foreign state. See Alvarado-Fernandez v. Mazoff, 151 So.3d 8, 14 (Fla. 4th DCA 2014) and cases cited therein. See also Paiz v. Castellanos, No. 06-22046-CIV, 2006 WL 2578807 (S.D. Fla. Aug. 28, 2006) (finding the Inter-American Convention’s provisions regarding service of process neither mandatory nor exclusive), and cases cited therein; Skanchy v. Calcados Ortope SA, 952 P.2d 1071 (Utah 1998) (same). In this case, service on Asperbras by the Brazilian attorney does not contradict any self-executing international agreement or implementing statute between the United States and Brazil. Evidence was presented that service was made in Brazil by an attorney admitted and in good standing to practice in Brazil and that such service met the requirement for valid service of process in Brazil. Accordingly, we affirm the trial court’s conclusion that service of process upon Asperbras in Brazil by a Brazilian attorney was lawful and effective to the extent it complied with the requirements of Florida law and gave Asperbras due notice of the proceedings.

Venue is proper in Miami-Dade County. As the record reflects, Good Hope’s claims for tortious interference relate solely to the contract between Good Hope and Netplan, an entirely separate entity that falls outside the scope of the Asperbras/Good Hope contract. Thus, Good Hope’s tort claims are not governed by the Asperbras/Good Hope contract or its arbitration and venue provisions, and we thus affirm the denial of Asperbras’ motion to dismiss based on improper venue.

In denying Asperbras’ motion to dismiss based on forum non conveniens, the trial court recognized that this issue was not yet ripe for determination. The trial court correctly provided that “the parties may engage in discovery relating to forum non conveniens issues and Defendants may renew their forum non conveniens objections after such ... discovery is completed.” We affirm the trial court’s determination regarding the forum non conveniens issue and make no determination on the merits of that issue.

Accordingly, we affirm the order below denying Asperbras’ motion to quash service and motion to dismiss the amended complaint, and remand for further proceedings.

      . In its remand order, the Federal Court noted that,
      Defendants’ [Asperbras’] alleged misconduct—i.e., [their] interference with the relationship between [Good Hope] and Net-plan—is extra-contractual. This conclusion is supported by the fact that the damages [Good Hope] is currently seeking are completely different from the damages it would be entitled to under a breach of contract theory. If [Good Hope’s] claims were inextricably related to a breach of its contract with Asperbras, then the measure of its damages would be determined by the contract itself, Here, [Good Hope’s] damages will not be measured by reference to its contract with Asperbras, but instead by the extent of damage it suffered from Defendants' [Asperbras] interference with its contractual and business relationship with Net-plan. Consequently, the Court finds that the "subject matter of this action ... [does not] relate [ ] to an arbitration agreement.

      . Brazil is a signatory to the Inter-American Service Convention, which replaces the traditional letters rogatory process and provides a mechanism for service of documents by a foreign central authority.