author: Per Curiam.

text:
    Roberto Jesus PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5109
    District Court of Appeal of Florida, First District.
    January 26, 2018
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Roberto Jesus Perez challenges the trial court's failure to conduct a competency hearing. His attorney moved to have a psychiatric evaluation performed, which the trial court ordered. A psychiatrist conducted the evaluation and prepared a written report, but nothing in the record shows that a competency hearing was held on the matter, which was error. See e.g. , Moorer v. State , 187 So.3d 315, 317 (Fla. 1st DCA 2016) (quoting Cochran v. State , 925 So.2d 370 (Fla. 5th DCA 2006) ) ("once the trial court enters an order appointing experts upon a reasonable belief that the defendant may be incompetent, a competency hearing must be held"). Because a hearing should have been held, but was not, reversal is required.

On remand, the trial court shall conduct a nunc pro tunc evaluation of the defendant's competency at the time of trial; a new trial is required if the court is unable to make this evaluation. Dougherty v. State , 149 So.3d 672, 679 (Fla. 2014) (stating that a new trial is unnecessary where a retroactive determination of competency is possible); see also Brooks v. State , 180 So.3d 1094, 1095 (Fla. 1st DCA 2015) ("If the trial court fails to hold a competency hearing or enter a written order of competency, reversal is required; however, a new trial is required only if the trial court is unable to conduct a nunc pro tunc evaluation of the defendant's competency at the time of the original trial.").

Rowe, Makar, and Bilbrey, JJ., concur.

      Though Perez's motion did not specify whether it was based on Rule 3.210 or Rule 3.216, Florida Rules of Criminal Procedure, the context of the motion (which was not made for the purpose of assisting counsel) and language of the order (which provided that a written report be provided to the court ), make clear it was under the authority of Rule 3.210, not Rule 3.216 (where the motion is made "in order to assist counsel in the preparation of the [insanity] defense," and where "the expert shall report only to the attorney"). A hearing is required as to the former under Moorer , but not the latter. See Atwater v. State , No. 16-3174, (Jan. 2, 2018) (motion under Rule 3.216(b) for a "confidential expert evaluation was made as a precautionary measure and was insufficient to trigger a mandatory competency hearing under Rule 3.210(b).").


source: Caselaw Access Project

author: B.L. Thomas, C.J.

license: Public Domain

text:
    Michael Earl THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D16-3187 1D16-3188 1D16-3189 1D16-3190 1D16-3191 1D16-3192 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    January 26, 2018
    Andy Thomas, Public Defender, David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant, Michael Earl Thomas, raises two issues in connection with his judgments and sentences in these six appeals, which we have consolidated for disposition. Following Appellant's conviction in case number 1D16-3188 of armed burglary with actual possession of a firearm, two counts of dealing in stolen property, and two counts of false verification of ownership to a pawnbroker, Appellant entered open guilty pleas to several burglary, theft, false verification, and dealing in stolen property counts in the five remaining cases. Appellant now argues on appeal that the trial court erred in adjudicating him guilty of both dealing in stolen property and theft based on the same conduct in two of the cases, and challenges the imposition of certain unannounced fees and costs in all six cases.

With respect to the dual adjudications for dealing in stolen property and theft in case numbers 1D16-3189 and 1D16-3190, the State properly concedes error. Pursuant to section 812.025, Florida Statutes, a court is precluded from allowing a defendant to plead guilty to both offenses if they are based on a single course of conduct. Anucinski v. State , 148 So.3d 106, 110 (Fla. 2014). Here, the dual convictions in case number 1D16-3189 for grand theft and dealing in stolen property were both based on the same gas compressor, which Appellant stole from a pawnshop and then sold at another pawnshop approximately twenty minutes later. Similarly, the dual convictions in case number 1D16-3190 for petit theft and dealing in stolen property were based on a lawnmower stolen from one pawnshop and sold at another within an hour. Because it is undisputed that these dual offenses are based on a single course of conduct, Appellant is entitled to have one of the adjudications in each of the two cases vacated. See id. We therefore remand for the court to exercise its discretion in determining which one of the two offenses in each case to vacate, and to resentence Appellant accordingly. See Hall v. State , 826 So.2d 268, 272 (Fla. 2002).

As to fees and costs, Appellant challenges three assessments in the written judgments and sentences for each of the six cases: a discretionary fine pursuant to section 775.083(1), Florida Statutes ; a surcharge pursuant to section 938.04(1), Florida Statutes ; and a Sheriff's Office Investigative Cost pursuant to section 938.27(1), Florida Statutes. The State correctly concedes that the discretionary fines and surcharges were not specifically pronounced at sentencing and therefore must be stricken. See Carmichael v. State , 192 So.3d 640, 641 (Fla. 1st DCA 2016) ; Mills v. State , 177 So.3d 984, 988 (Fla. 1st DCA 2015). On remand, the trial court may strike the fine and surcharge in each case and enter a corrected judgment and sentence, or may reimpose them after following the proper procedure. Mills , 177 So.3d at 988.

Regarding the Sheriff's Office Investigative Cost, the State argues that, although there was no request on the record for the imposition of this cost in any of the cases, affirmance is proper because the arrest report in each case showed the actual cost incurred. We disagree. Section 938.27(1), Florida Statutes, expressly provides that "convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies ... if requested by such agencies ." (Emphasis added.) Based on the plain language of the statute, the investigative costs must be stricken, and they may not be reimposed on remand. Vaughn v. State , 65 So.3d 138, 139 (Fla. 1st DCA 2011).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

Osterhaus and Winsor, JJ., concur.

      The trial court attempted to grant Appellant's motions to correct sentencing error raising these issues, but did so outside the jurisdictional 60-day time frame provided in Florida Rule of Criminal Procedure 3.800(b), such that its orders were without legal effect. Williams v. State , 72 So.3d 285 (Fla. 1st DCA 2011). On remand, we direct the court to strike these orders. See id.


text:
    Michael Lawrence CASSIDY, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections. Respondent.
    No. 1D17-5325
    District Court of Appeal of Florida, First District.
    January 30, 2018 Rehearing Denied March 1, 2018
    Michael Lawrence Cassidy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, Osterhaus, and Bilbrey, JJ., concur.


author: MORRIS, Judge.

text:
    Moses I. PHELPS, a/k/a Moses Isaiah Phelps, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-594
    District Court of Appeal of Florida, Second District.
    Opinion filed January 31, 2018
    Moses I. Phelps, a/k/a Moses Isaiah Phelps, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Moses I. Phelps, a/k/a Moses Isaiah Phelps, appeals an order finding him in direct criminal contempt, sentencing him to ten days in jail, and imposing a $250 fine. Although we find no merit to Phelps's arguments made in his initial brief, we must reverse due to fundamental error arising from the trial court's failure to comply with the requirements of Florida Rule of Criminal Procedure 3.830.

We review "an order of direct criminal contempt for an abuse of discretion." T.J.L. v. State, 139 So.3d 503, 505 (Fla. 1st DCA 2014).

"Conduct which is calculated to embarrass, hinder, or obstruct the trial court in the administration of justice or that which is calculated to lessen the court's authority or dignity constitutes criminal contempt." Id. (quoting Woodie v. Campbell, 960 So.2d 877, 879 (Fla. 1st DCA 2007) ). Florida Rule of Criminal Procedure 3.830 provides that

[a] criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt [,] the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

Thus where the misconduct occurs in open court in the presence of the judge and where it interrupts the court proceedings, "courts have the inherent authority to take immediate action." Plank v. State, 190 So.3d 594, 602 (Fla. 2016) ; see also Kelley v. Rice, 800 So.2d 247, 251-52 (Fla. 2d DCA 2001).

Because of the summary nature of direct criminal contempt proceedings, defendants are not entitled to the full panoply of due process rights typically afforded to criminal defendants. See Bryant v. State, 851 So.2d 823, 824 (Fla. 2d DCA 2003) (explaining that direct criminal contempt "is a narrow exception to the constitutional requirement that the full panoply of due process rights must be afforded to a person prior to conviction and imprisonment"). However, courts also recognize "the importance of protecting due process rights, particularly where incarceration [i]s at issue." Plank, 190 So.3d at 605. Thus, "[t]he provisions of rule 3.830 define the essence of due process in [direct] criminal contempt proceedings and must be scrupulously followed." Rhoads v. State, 817 So.2d 1089, 1092 (Fla. 2d DCA 2002) (quoting Bouie v. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001) ); see also T.J.L., 139 So.3d at 505 ; Martin v. State, 711 So.2d 1173, 1174 (Fla. 4th DCA 1998).

"Failure to follow the procedural requirements of direct criminal contempt constitutes fundamental error." Searcy v. State, 971 So.2d 1008, 1014 (Fla. 3d DCA 2008) (citing Garrett v. State, 876 So.2d 24, 25-26 (Fla. 1st DCA 2004) ); Garrett, 876 So.2d at 25 (holding that failure to comply with procedural requirements of rule 3.830 constituted fundamental error); cf. Hagerman v. Hagerman, 751 So.2d 152, 154 (Fla. 2d DCA 2000) (concluding that failure to comply with rule for indirect criminal contempt "is fundamental error and no objection is required"). Thus where a court fails to give the defendant an opportunity to show cause why he should not be found in contempt or to provide the defendant with an opportunity to present excusing or mitigating circumstances, the trial court violates rule 3.830 and reversal is required. See Rhoads, 817 So.2d at 1092 ; T.J.L., 139 So.3d at 506 ; Searcy, 971 So.2d at 1014 ;

Garrett, 876 So.2d at 25 ; Martin, 711 So.2d at 1175.

Here, the trial court violated rule 3.830 by failing to give Phelps the opportunity to show cause why he should not be held in direct criminal contempt and by failing to inform him of his right to present excusing or mitigating circumstances and an opportunity to do so. Phelps did not raise these rule violations in his initial brief. Instead, he raised them in his reply brief, likely in response to the State's assertion in its answer brief that the trial court had complied with rule 3.830. Ordinarily, we would not consider issues first raised in a reply brief, but here, the State had already addressed compliance with the rule in its answer brief. Further, the error is fundamental and we are required to correct it. See I.A. v. H.H., 710 So.2d 162, 165 (Fla. 2d DCA 1998) (explaining that "it is our duty to notice and correct ... fundamental errors even when they have not been identified by the parties"); J.V. v. State, 221 So.3d 689, 691 (Fla. 4th DCA 2017) (concluding that fundamental error "can be addressed sua sponte"); Honaker v. State, 199 So.3d 1068, 1070 (Fla. 5th DCA 2016) ("[W]e may sua sponte address fundamental error apparent on the face of the record."); Hendricks v. State, 34 So.3d 819, 828 (Fla. 1st DCA 2010) ("Despite Appellant's failure to argue fundamental error, we consider whether the purported error is of a fundamental nature because it is an appellate court's 'unrenunciable judicial duty' to correct fundamental error even if it is not raised.").

Accordingly, we hold that the trial court abused its discretion by failing to adhere to the procedural due process requirements of rule 3.830 as explained herein. We therefore reverse the order of direct criminal contempt and resulting sentence.

Reversed.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.

      See Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005).


author: LUCAS, Judge.

text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005-BC5, Appellant. v. Theodore E. BLOEDEL, Jr., and Sue A. Bloedel, Appellees.
    Case No. 2D17-1740
    District Court of Appeal of Florida, Second District.
    Opinion filed January 31, 2018
    Jacqueline Costoya, of Kelley Kronenberg, Fort Lauderdale, for Appellant.
    Leslie M. Conklin, Clearwater, for Appellee.
   LUCAS, Judge.

Following the issuance of this court's opinion and mandate in Bank of New York Mellon v. Bloedel, 197 So.3d 147 (Fla. 2d DCA 2016), reversing a final judgment denying foreclosure, the circuit court convened a hearing to address an argument that was raised, but never pleaded or tried by consent, at the prior bench trial on The Bank of New York Mellon's (Bank of New York) complaint to foreclose a mortgage over Theodore E. Bloedel, Jr.'s home. The court then granted Mr. Bloedel's motion for involuntary dismissal and entered a second final judgment denying foreclosure, which Bank of New York now appeals. For the reasons we explain below, we must again reverse the circuit court's judgment.

I.

The March 2015 trial in this case was succinct. Bank of New York presented the only witness, Dianne Chalmers, who worked for Bank of New York's servicer. Through Ms. Chalmers, Bank of New York introduced evidence of a power of attorney, a certified copy of a pooling and servicing agreement, a mortgage loan schedule, copies of Mr. Bloedel's promissory note and mortgage, servicing records and payment history, and a notice of intent to accelerate along with a copy of a certified mailing receipt. Concerning the payment history of Mr. Bloedel's loan, Ms. Chalmers discussed how the computation of Mr. Bloedel's default was determined. Of note for purposes of this appeal, Ms. Chalmers mentioned that the servicer received five payments that appeared to reflect reduced payments from Mr. Bloedel as part of what was, apparently, a three-month "trial" modification agreement concerning Mr. Bloedel's loan.

As it happened, this was the first time any reference to a trial modification agreement had surfaced in the course of this litigation. Mr. Bloedel had never raised the issue of modification in his answer or affirmative defenses. Nevertheless, seizing on the discovery, Mr. Bloedel's counsel argued to the circuit court that Bank of New York's complaint should be involuntarily dismissed. Pertinent here, Mr. Bloedel posited that dismissal was warranted because of the failure of the bank to offer the written modification agreement into evidence, its failure to plead and prove the existence of a valid loan modification agreement, and its failure to attach the written loan modification agreement to its complaint under Florida Rule of Civil Procedure 1.130(a).

Originally, the circuit court expressed concern about, but did not rule upon, any of these arguments, a point we noted in our earlier Bloedel opinion. See 197 So.3d at 147 n.2. Rather, the circuit court's first judgment denying foreclosure centered on Mr. Bloedel's challenge to the sufficiency of Bank of New York's default notice to Mr. Bloedel. That ruling, we held, was erroneous because the court did not have the benefit of our opinion in Green Tree Servicing, LLC v. Milam, 177 So.3d 7 (Fla. 2d DCA 2017), at the time it issued its judgment. Bloedel, 197 So.3d at 147-48.

On remand, the matter of the trial modification agreement came back before the circuit court on Bank of New York's Motion for New Trial Pursuant to Appellate Mandate and Mr. Bloedel's request for the court to rule upon his previously asserted alternative grounds for involuntary dismissal. A hearing was convened on March 2, 2017, during which the parties presented argument but no further evidence, relying instead on their recollections of what transpired at the March 2015 trial. On April 3, 2017, the circuit court granted Mr. Bloedel's motion for involuntary dismissal and rendered its second final judgment denying foreclosure, the judgment that is the subject of the present appeal.

In this second judgment, the circuit court concluded that rule 1.130(a)"required that a copy of the loan modification agreement be attached to the complaint." Furthermore, citing Kuehlman v. Bank of America, N.A., 177 So.3d 1282 (Fla. 5th DCA 2015), and Nowlin v. Nationstar Mortgage, LLC, 193 So.3d 1043 (Fla. 2d DCA 2016), the court determined that Bank of New York "could only foreclose by alleging and proving a breach of the modification agreement, which was not done here." Finally, the court found that without the trial loan modification agreement in evidence, Bank of New York's testimony and documents concerning the amounts Mr. Bloedel owed under the promissory note had insufficient foundation and evidentiary support.

In short, the circuit court perceived Bank of New York's failure to allege, proffer, and account for the issue of a trial modification agreement, an issue that first arose during a witness' cross-examination at trial, to be fatal to its right to foreclose on its mortgage. Under these facts, we must disagree.

II.

We begin with the oft-repeated observation that issues not raised within the pleadings of a civil controversy are ordinarily deemed waived. See Fla. R. Civ. P. 1.140(h)(1) ("A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2)."); Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination."); Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017) ("It is well-settled law in Florida that affirmative defenses not raised are waived."); Airport Plaza Ltd. v. United Nat'l Bank of Miami, 611 So.2d 1256, 1257 (Fla. 3d DCA 1992) ("It was improper to introduce at trial issues not previously raised in the pleadings."); cf. Bank of Am., Nat'l Ass'n v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are."). Indeed, we have held "[a] trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings." Paulk v. Paulk, 25 So.3d 672, 674 (Fla. 2d DCA 2010) (quoting Newberry v. Newberry, 831 So.2d 749, 751 (Fla. 5th DCA 2002) ).

Mr. Bloedel does not appear to dispute any of these tenets. To some degree he embraces them, as he argues that it was Bank of New York, not he, which fell short of the pertinent pleading requirements. But in our opinion, Mr. Bloedel misapprehends the nature of the issue (such as it was) of the temporary loan modification agreement in this litigation. In fact, he has the matter entirely turned around.

The effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant's liability under the agreement, is an affirmative defense that must be pled and proven by the defendant. See Fla. R. Civ. P. 1.110(d) ("[A] party shall set forth affirmatively ... any other matter constituting an avoidance or affirmative defense."); BSP/Port Orange, LLC v. Water Mill Props., Inc., 969 So.2d 1077, 1078 (Fla. 5th DCA 2007) (holding that an alleged modification to an oral commission agreement was an affirmative defense that had to be pled); F.M.W. Props., Inc. v. Peoples First Fin. Sav. & Loan Ass'n, 606 So.2d 372, 378 (Fla. 1st DCA 1992) (Ervin, J., specially concurring) (collecting cases from other jurisdictions that modification is an affirmative defense and concluding that "[a]lthough the evidence in the record at the time of the summary judgment hearing demonstrated the existence of a disputed issue of fact, appellants waived this issue by failing to plead modification as an affirmative defense"); Commerce Nat'l Bank v. Van Denburgh, 252 So.2d 267, 269 (Fla. 4th DCA 1971) (reversing trial court's judgment in favor of defendants on modification agreement to a promissory note because of lack of evidentiary support and "for the additional reason that a release of the defendants by a subsequent agreement between the parties was never pled by the defendants as an affirmative defense"). As such, if Mr. Bloedel wished to be heard on the effect that a modification agreement (temporary or otherwise) might have had upon Bank of New York's claim, it fell to him-not the bank-to frame that defense within his pleadings. He failed to do so. It was error for the circuit court to take that pleading burden from Mr. Bloedel and ascribe it to Bank of New York. See BSP, 969 So.2d at 1078 ; F.M.W. Props., 606 So.2d at 378 ; Van Denburgh, 252 So.2d at 269.

So, too, Mr. Bloedel's pleading failure precluded the circuit court's determination that without the temporary modification agreement in evidence, the Bank of New York could not sufficiently establish the amounts that were due and owing under Mr. Bloedel's note. Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000) ("Since the defense was waived, it should not have been considered by the trial court, much less used as the basis for granting summary judgment."

); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003) ("The trial court erred when it relied on a defense not raised by the pleadings to grant the motion for involuntary dismissal."). Here as well, any diminishment of Mr. Bloedel's obligation under a purported temporary modification agreement could only have been broached through a properly pleaded defense or a consent to have the issue adjudicated at the trial. See BSP, 969 So.2d at 1078 ; F.M.W. Props., 606 So.2d at 378 ; Van Denburgh, 252 So.2d at 269. To the extent the circuit court was persuaded that the brief reference to a trial modification agreement somehow colored the persuasiveness of Bank of New York's otherwise undisputed evidence (again, Mr. Bloedel did not put on a case in his defense), that, too, was error insofar as the court's judgment was premised on an involuntary dismissal of Bank of New York's complaint. See Capital Media, Inc. v. Haase, 639 So.2d 632, 633 (Fla. 2d DCA 1994) ("[O]n a motion for involuntary dismissal, made at the close of the plaintiff's case in a nonjury trial, a trial court is limited to determining whether or not the plaintiff has made a prima facie case. Tillman v. Baskin, 260 So.2d 509 (Fla. 1972), and State, [Dep't] of Health and Rehabilitative [Servs.] v. Thibodeaux, 547 So.2d 1243 (Fla. 2d DCA 1989). The court in making such a determination can neither weigh the evidence nor consider the credibility of witnesses. Saporito v. Madras, 576 So.2d 1342 (Fla. 5th DCA 1991).").

The circuit court's inversion of who must plead the issue of modification appears to have proceeded from how the court read the closing lines of a relatively brief per curiam opinion from the Fifth District. We take this opportunity to clarify what, we believe, that holding properly stands for in our district. In Kuehlman v. Bank of America, N.A., 177 So.3d 1282, 1283 (Fla. 5th DCA 2015), the court remarked that where a modification agreement has been made a lender can "only foreclose by alleging and proving a breach of the modification agreement." Since the lender in Kuehlman failed to plead a breach of the modified loan agreement or have the issue tried by consent, the Kuehlman court concluded that the lender could not foreclose upon its original mortgage. Id.

Now it is not clear what prompted these observations about the failure of the lender to raise the issue of a modification agreement in its pleading since the manner in which the Kuehlman opinion framed both the question on appeal and its resolution revolved around the substantive issue of whether the homeowner and lender had, in fact, entered into a modification agreement. Id. ("On these undisputed facts, we conclude as a matter of law that Lender accepted the counteroffer by a combination of its many months of silence and its acceptance of nine monthly payments in the amount specified in the modification agreement."). Perhaps the Kuehlman court's comments about the lender's pleading were in response to an alternative argument the lender may have asserted (something along the line of, to the extent the borrower proved the existence of a modification agreement, the borrower breached that modified agreement as well). Perhaps they were offered as guidance for how the lender would have to proceed should it allege a future default on the part of the borrower (i.e., since the court had deemed a loan modification had been formed as a matter of law, that modification agreement was the governing agreement between the parties). Perhaps they were simply dicta. Regardless, we are certain that neither Kuehlman nor this court's parenthetical citation to Kuehlman in Nowlin, 193 So.3d at 1046, purported to recede from long-settled law that modification, when asserted as an avoidance of liability, is an affirmative defense. Cf. Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996) (noting that "absent an en banc opinion expressly receding from a point of law announced in previous opinions of this court, a trial court should not rely on the expressions of a three-judge panel as a basis to conclude that a previous three-judge panel no longer carries the force of law."). On that procedural point, the law remains clear and unaltered.

III.

Mr. Bloedel, the defendant, had the burden of pleading and proving the existence of a modification to the note that was the subject of the lawsuit against him. Because he failed to do so, the circuit court's judgment on that issue was in error. Accordingly, we reverse the final judgment denying foreclosure and remand this case for further proceedings.

Reversed and remanded.

CASANUEVA and CRENSHAW, JJ., Concur.

      The other defendant below, Sue A. Bloedel, was defaulted by the clerk of court on January 13, 2014, and has not made an appearance in this appeal.

      At the close of Bank of New York's case, Mr. Bloedel moved for involuntary dismissal and then rested without ever presenting any evidence.

      Mr. Bloedel never made a motion to amend his affirmative defenses to conform to the evidence, nor has he argued that the issue of the trial modification agreement was tried by consent. To the contrary, Mr. Bloedel's counsel very candidly admitted during oral argument that he, too, was "surprised" by the revelation during trial that there may have been a trial modification agreement. Bank of New York repeatedly objected to the circuit court's consideration of this unpled issue both below and in this appeal.

      See also Tudor Press, Inc. v. Univ. Distrib. Co., 292 Mass. 339, 340, 198 N.E. 244 (1935) ("Novation, like other forms of payment, discharge or modification of existing liability, is an affirmative defense as to which the defendant has the burden of proof."); Dunn v. Bennett, 303 Mich.App. 767, 846 N.W.2d 75, 80 (2013) ("In the alternative, defendant argues that even if the written agreement covers his relationship with plaintiff, the parties orally modified their arrangement. Defendant waived his claim of modification by failing to raise it as an affirmative defense and support it with facts in his responsive pleadings."); Davis v. Reichert, 197 Minn. 287, 266 N.W. 855, 856 (1936) ("Thus it is apparent that defendants' defense of modification and cancellation is new matter in the nature of confession and avoidance ... and, as such, should have been pleaded specially in order that evidence thereof could be properly received."); Lease Nw., Inc. v. Davis, 224 Neb. 617, 400 N.W.2d 220, 224 (1987) (observing that "matters which would controvert the plaintiff's allegations of the amount due under a promissory note and guaranty are affirmative defenses" and that "the modification of a guaranty of such a nature as would substantially change the liability of the parties ... is an affirmative defense which must be pled"); Rooney v. Slomowitz, 11 A.D.3d 864, 867, 784 N.Y.S.2d 189 (N.Y. App. Div. 2004) ("Furthermore, defendants failed to plead the alleged modification as an affirmative defense in their answer, 'thus waiving that defense absent leave to amend.' " (quoting Counties of Warren & Washington Indus. Dev. Agency v. Boychuck, 109 A.D.2d 1024, 1026, 487 N.Y.S.2d 139 (N.Y. App. Div. 1985) ) ); Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 701 (Tex. App. Ct. 2008) ("Contract modification is an affirmative defense.... The burden of proving modification rests on the party asserting the modification." (citations omitted) ); Nw. Fed. Sav. Loan Ass'n of Fargo v. Biby, 418 N.W.2d 786, 787 (N.D. 1988) (rejecting mortgagors' argument that the validity of a loan modification agreement precluded summary judgment, observing "[t]hese matters are affirmative defenses ... which must be specifically set forth by the defendants in their answer"); Carothers v. Carothers, 260 Or. 99, 488 P.2d 1185, 1188 (1971) ("As for defendant's contention that plaintiff is barred from relief by acceptance of performance different from that required by the contract, it is sufficient to note that modification, waiver and estoppel are affirmative defenses and must be pleaded as such, which defendant did not do."); Malstrom v. Consol. Theatres, 4 Utah 2d 181, 290 P.2d 689, 691 (1955) ("This plea of modification, being an affirmative defense, cast upon the defendant the burden of proving it by a preponderance of the evidence."); Tennien v. Pittsford, 137 Vt. 326, 404 A.2d 111, 114 (1979) ("If a modification is claimed on the basis of such evidence, we agree with plaintiff that such modification is an affirmative defense, Barnwell & Hays, Inc. v. Sloan, 564 F.2d 254 (8th Cir. 1977), required to be pleaded under V.R.C.P. 8(c).");

      Of course, it would have been a very different matter had Bank of New York premised its claim or right of recovery on a modification to its note. In that instance, it would have fallen to Bank of New York to adequately plead the modification agreement within its complaint. See Fla. R. Civ. P. 1.130 ("All bonds, notes, bills of exchange ... or documents on which action may be brought or defense made ... must be incorporated in or attached to the pleading."). Here, however, the issue of a temporary modification agreement is not one that Bank of New York sought to raise; it was asserted by Mr. Bloedel for the purpose of avoiding or limiting the claim Bank of New York did raise.

      Nowlin, in which we included a parenthetical quotation from Kuehlman, is silent on the issue before us here. Nothing within our holding in Nowlin suggested that Mr. Nowlin had failed to assert the existence of a modification agreement as an affirmative defense. Indeed, the timely acceptance of the bank's proposed loan modification appeared to be the central feature of the trial in that case, and both the plaintiff and defendant proffered extensive testimony and documentary evidence on that litigated issue. The adequacy of the parties' pleadings was never even questioned in Nowlin.


author: SILBERMAN, Judge.

text:
    Cynthia L. JACKSON and Thomas Jackson, Appellants, v. HOUSEHOLD FINANCE CORP. III; Household Finance Corporation III; The Drain Team, Inc. ; North Star Capital Acquisition LLC As assignee of Wells Fargo; and Capital One Bank (USA) NA, a Corporation, Appellees.
    Case No. 2D15-2038
    District Court of Appeal of Florida, Second District.
    Opinion filed January 31, 2018
    Michael A. Ziegler of the Law Office of Michael A. Ziegler, P.L., Clearwater, for Appellants.
    Matthew A. Ciccio and Steven C. Rubino of Aldridge Pite, LLP, Delray Beach, for Appellee Household Finance Corp. III.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Cynthia and Thomas Jackson seek review of a final judgment of mortgage foreclosure which was entered after a bench trial. We affirm but write to explain our conclusion that the testimony at trial provided a proper foundation for the admission of business records into evidence. In so doing, we certify conflict with the Fourth District's decision in Maslak v. Wells Fargo Bank, N.A., 190 So.3d 656 (Fla. 4th DCA 2016).

Under Florida's evidence code, "[r]ecords of regularly conducted business activity" are admissible as an exception to the rule barring the admission of hearsay testimony. § 90.803(6), Fla. Stat. (2014). This business records exception to the hearsay rule provides for the admission of such records if the proponent provides proof of the following:

(1) that the record was made at or near the time of the event, (2) that it was made by or from information transmitted by a person with knowledge, (3) that it was kept in the ordinary course of a regularly conducted business activity, and (4) that it was a regular practice of that business to make such a record.

Channell v. Deutsche Bank Nat'l Tr. Co., 173 So.3d 1017, 1019 (Fla. 2d DCA 2015) (quoting Bank of N.Y. v. Calloway, 157 So.3d 1064, 1073 (Fla. 4th DCA), review denied, 177 So.3d 1263 (Fla. 2015) ).

A party can lay a foundation for the business records exception in three ways: (1) offering testimony of a records custodian, (2) presenting a certification or declaration that each of the elements has been satisfied, or (3) obtaining a stipulation of admissibility. Yisrael v. State, 993 So.2d 952, 956-57 (Fla. 2008). If the party offers the testimony of a records custodian to lay the foundation, it is not necessary that the testifying witness be the person who created the business records. Channell, 173 So.3d at 1019 ; Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So.2d 1121, 1121 (Fla. 2d DCA 1988). The witness may be any qualified person with knowledge of each of the elements. Channell, 173 So.3d at 1019 ; Specialty Linings, 532 So.2d at 1121. And when the records are computer records, the witness must have knowledge of the recordkeeping system. Channell, 173 So.3d at 1019 ; Specialty Linings, 532 So.2d at 1121.

Once the proponent lays this predicate, the burden shifts to the opposing party to prove that the records are untrustworthy. Love v. Garcia, 634 So.2d 158, 160 (Fla. 1994). If the opposing party fails to meet this burden, then the trial court should admit the business records into evidence. Id. This court reviews a ruling on the admissibility of evidence under the business records exception for an abuse of discretion. Channell, 173 So.3d at 1019.

Household Finance Corp III is the originating lender and the plaintiff below. In 2002, well before the Jacksons executed the mortgage, Household was purchased by HSBC Holdings and became a wholly-owned subsidiary of HSBC. At trial, Household's counsel relied on the testimony of David Birsh, an Assistant Vice President of HSBC, to establish a foundation for the admission of business records establishing the Jacksons' default. Counsel questioned Birsh as follows:

Q. So are you familiar with the business practice of HSBC?
A. Yes, I am.
Q. And is it the regular business practice of HSBC to record acts, transactions, payments, communications, escrow account activity disbursements, events and analysis with respect to the mortgage loan account?
A. Yes, it is.
Q. And are these business records prepared by persons with knowledge of or from information transmitted by persons with knowledge of the acts, transactions, payments, communications, escrow account activity, disbursements and analyses?
A. Yes.
Q. And are all records made at or near the time the acts, transactions, payments, communications, escrow account activity, disbursements, events and analyses occur?
A. Yes.
....
Q. And are these records maintained by HSBC in the ordinary course of its regular business activity of the mortgage, lending, banking and service activity?
A. Yes, they are[.]
Q. Did HSBC prepare and maintain these records with respect to the subject loan?
A. Yes.

On cross-examination, Birsh described his review of the documents. The Jacksons' counsel asked only one question about Birsh's knowledge of HSBC's recordkeeping system.

Q. And you testified that you're familiar, and I forget the exact language, with the recordkeeping procedures of HSBC. How did you gain that familiarity?
A. Well, I've been there for 25 years. So I've been in the various departments, managed various departments. So I've basically become really familiar with a lot of the different questions. Like cross-training and what have you.

We conclude that this testimony provided a proper foundation for admission of the business records. See Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So.2d 1283, 1288 (Fla. 1st DCA 1993). In Nordyne, the proponent offered the following testimony to establish a foundation for the admission of business records establishing the amount due from the opposing party:

Nordyne's comptroller testified that, as comptroller, he was responsible for all accounting procedures and financial controls; and that he was the custodian of the books and records of the corporation. He testified that he was familiar with the business records in question, and with the procedures involved in their preparation. He testified that all of the records had been created at or about the time of the events they addressed, by persons who had knowledge of the matters recorded. Finally, he testified that all of the records were kept in the ordinary course of Nordyne's business, and that it was Nordyne's regular practice to prepare such records.

Id. at 1288. The First District concluded that the testimony was sufficient to lay the foundation for the business records and that by ruling to the contrary the trial court "applied an incorrect and overly exacting standard to determine whether the requirements of the business records exception had been satisfied." Id.

The testimony here is comparable to that in Nordyne. Both witnesses were employed in an executive capacity with the company that prepared and maintained the records at issue. Both testified that they were familiar with the practices used to prepare and maintain the business records in question. And both were familiar with the records and provided testimony satisfying each of the elements of the business records exception. Finally, neither witness's testimony was impeached on cross-examination by the opposing party. In fact, Birsh's testimony on cross actually bolstered his testimony on direct by explaining that he gained his knowledge from managing various departments at HSBC for the past twenty-five years. Thus, the trial court did not abuse its discretion in admitting the business records into evidence.

The Jacksons argue that Birsh's testimony was insufficient to satisfy the business records exception because it merely affirmed the statutory language of the business records exception. They contend that the testimony did not explain how Birsh acquired personal knowledge of HSBC's recordkeeping system or otherwise demonstrate his qualification to lay the predicate for admission of the records. In support of their argument, the Jacksons rely on a decision from the Fourth District holding that analogous "magic words" testimony was insufficient to provide a proper foundation for the business records exception. See Maslak v. Wells Fargo Bank, N.A., 190 So.3d 656 (Fla. 4th DCA 2016).

In Maslak, the foundation witness was a home loan research officer employed by the servicer, JPMorgan Chase Bank N.A. Id. at 658. Her job was to review loans that were the subject of litigation, look for ways to resolve those loans, testify in legal proceedings, and appear at mediations. She testified that she was familiar with Chase's loan servicing practices and had reviewed the payment history which was maintained by the payment processing department. She said she had printed the payment history and electronically transmitted it to the plaintiff's attorney who brought a copy to court. Id. at 660. She also asserted "that the payment history was made at or near the time that payments, credits, or other transactions would have been received. The information was transmitted by persons with knowledge and was kept in the course of Chase's regularly conducted business." Id. at 658.

Despite this testimony, the Fourth District held that the plaintiff failed to lay a proper foundation for the business records exception. Id. at 660. The court compared the witness's testimony to testimony in Sanchez v. Suntrust Bank, 179 So.3d 538 (Fla. 4th DCA 2015), which the court had found insufficient because the witness "did not know anything about the process by which [the records] were created, and admitted that the screenshot was not generated by any of the three servicing systems he was acquainted with. " Maslak, 190 So.3d at 660 (quoting Sanchez, 179 So.3d at 541 ). The court ultimately concluded as follows:

Here, beyond parroting the four elements contained in the business records exception, the witness .... did not know whether someone at outside counsel's office changed or modified the document in any way. She failed to testify about how payments were received and processed, Chase's procedures for inputting payment information, or the computer system Chase utilizes. Simply put, she failed to lay a proper foundation for the admission of the payment history into evidence.

Id.

We do not find Maslak to be persuasive because it fails to take into consideration the shifting burden of proof applicable to the business records exception. See Love, 634 So.2d at 160. The proponent in Maslak elicited testimony of a Chase employee who regularly reviewed home loans and claimed to be familiar with Chase's loan servicing practices. 190 So.3d at 658. Although the Maslak court determined that the employee merely recited the "magic words" of the business records exception, nothing in her testimony suggested she lacked personal knowledge of Chase's recordkeeping system. Id. at 659. Thus, in our view, the employee's direct testimony satisfied the proponent's initial burden of laying the foundation for the business records exception.

At that point, the burden should have been shifted to the opposing party, Maslak, to establish that the employee did not have personal knowledge of Chase's recordkeeping system or was otherwise unqualified to testify as records custodian. Instead, the Fourth District concluded that the proponent needed to make further inquiries to lay a satisfactory predicate for the business records exception. Id. at 660. As with the trial court in Nordyne, the Fourth District "applied an incorrect and overly exacting standard to determine whether the requirements of the business records exception had been satisfied." Nordyne, 625 So.2d at 1288.

Moreover, the Maslak court has read Sanchez too broadly. The Sanchez court did not hold that the witness's "magic words" testimony was insufficient in itself to lay the foundation for the business records exception. See Sanchez, 179 So.3d at 541. Rather, the Sanchez court considered testimony by the witness which demonstrated that the witness lacked sufficient knowledge to lay the necessary foundation. In this testimony the witness divulged that "he did not know anything about the process by which [the records] were created, and admitted that the screenshot was not generated by any of the three servicing systems he was acquainted with." Id. In fact, the witness acknowledged that he based some of his knowledge on a conversation with another employee. Id. For that reason, the "magic words" testimony was insufficient to support admission of the documents. Id.

Our holding is supported by the fact that Household could have laid the foundation for the business records exception simply by offering into evidence a certification or declaration using the "magic words" of the exception. §§ 90.803(6), 90.902(11). There is no basis for the imposition of a heavier burden on a party choosing to lay the foundation using the alternative method of offering live testimony.

In summary, the testimony of HSBC's Assistant Vice President David Birsh was sufficient to satisfy Household's initial burden to lay the predicate for the business records exception. Once that burden was met, the Jacksons did not show that Birsh lacked the requisite knowledge to testify as the records custodian. Thus, they failed to meet their burden of proving that the records were untrustworthy and inadmissible. Accordingly, the trial court properly admitted the business record evidence, and we affirm the final judgment of foreclosure. We also certify conflict with the Fourth District's decision in Maslak to the extent it is inconsistent with this opinion.

Affirmed; conflict certified.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      See §§ 90.803(6), 90.902(11), Fla. Stat. (2014).

      We note that the Sanchez court also found that the bank failed to satisfy its initial burden of laying the predicate under the business records exception because counsel for the bank failed to ask "whether each exhibit was 'made at or near the time of the event' that it described." Sanchez, 179 So.3d at 540 (quoting Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1201 (Fla. 4th DCA 2015) ).


text:
    D.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-2807
    District Court of Appeal of Florida, First District.
    January 31, 2018
    Jason K. Hutchinson of Hutchinson Law, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children's Legal Services, Jacksonville; David P. Krupski, Appellate Counsel, Guardian ad Litem Program, Sanford, for Appellee.
   B.L. Thomas, C.J.

D.R., the Mother of L.G., a minor, appeals a final order terminating her parental rights. The Mother does not contest the grounds for termination or the sufficiency of the evidence, but argues that the trial court's adoption of a proposed order submitted by the Department of Children and Families requires reversal, because the court failed to conduct an independent analysis of the facts and law under Perlow v. Berg-Perlow , 875 So.2d 383 (Fla. 2004) (holding that adoption of a party's proposed order may be improper if issued in a manner evidencing a lack of independent judgment).

The 45-page proposed order, including several pages detailing the testimony, was submitted before trial began. Shortly after the trial ended, the trial court adopted the proposed order in full, with approximately one page of additional findings.

In reviewing an order terminating parental rights, the appellate court applies a highly deferential standard of review, and the decision of the lower court is presumed correct. N.L. v. Dep't of Children & Family Servs. , 843 So.2d 996, 999 (Fla. 1st DCA 2003). The adoption of a proposed final judgment terminating parental rights is not per se reversible; rather, reversal is required only where the circumstances "create an appearance that the judgment does not reflect the judge's independent decision-making." In re T.D. v. Dep't of Children & Family Servs. , 924 So.2d 827, 831 (Fla. 2d DCA 2005). Factors to be considered in evaluating whether the court exercised its independent judgment include: 1) the timing of the order; 2) the opportunity for the opposing party to object; 3) the extent to which the court made substantive changes to the proposed order; 4) the extent to which the court participated in the trial; 5) the presence of errors or omissions in the order; and 6) the presence or absence of oral findings on the record. Id. at 829 ; see also Perlow , 875 So.2d at 389-90.

Here, while the timing of the submission of the proposed order and issuance of the final order raise legitimate concern, the inclusion of substantive changes by the trial judge indicates that the court exercised independent judgment. See T.D. , 924 So.2d at 829.

In addition, our consideration of the remaining factors is precluded by a deficiency in the record on appeal. The record contains no transcript of the trial and no indication that preparation of a transcript was ordered by the Mother's trial counsel. Nor did the Mother seek to supplement the record on appeal when this deficiency was pointed out in the Department's answer brief. See Snowden v. Wells Fargo Bank , 172 So.3d 506 (Fla. 1st DCA 2015) ; Moment v. State, 773 So.2d 577 (Fla. 4th DCA 2000). In addition to frustrating review of the relevant factors, the absence of a transcript renders it impossible to conclude that the Mother did not waive any objection to the adoption of the proposed order.

Even in a termination of parental rights proceeding, the lack of a transcript mandates affirmance unless fundamental error appears on the face of the order. A.L. v. Dep't of Children & Families , 958 So.2d 606, 607 (Fla. 4th DCA 2007). Here, no such error appears on the face of the final judgment. Thus, we affirm.

AFFIRMED .

Wolf and Ray, JJ., concur.


author: PER CURIAM.

text:
    John C. HORNER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3400
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    John C. Horner, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

John C. Horner filed a petition for writ of mandamus, seeking to compel the circuit court of the Ninth Judicial Circuit, Osceola County, to rule on his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Horner's timely motion was provided to prison officials for mailing on December 29, 2015. Four weeks later, Horner amended ground one of his motion. On October 25, 2016, the circuit court entered an order directing the State to show cause within sixty days why Horner was not entitled to relief on his motion or to "otherwise [frame the] issues in the event that a hearing on the motion is warranted." On March 30, 2017, the State filed its response, arguing that Horner's motion should be summarily denied.

On July 13, 2017, Horner filed a "motion to expedite ruling," requesting that the circuit court adjudicate his rule 3.850 motion within thirty days and advising that if the court failed to do so, he would seek mandamus relief. Having received no ruling on his motion, on October 30, 2017, Horner filed the instant petition for writ of mandamus with this court, requesting that this court issue an order compelling the circuit court to rule on his pending motion for postconviction relief. On November 1, 2017, this court entered an order directing the State and the circuit judge assigned to the case to respond by December 18, 2017. On the last day to respond, the State filed a motion for an extension of time to respond "due to scheduling conflict." We granted the request and entered a separate order directing that a response to the petition now be filed by January 17, 2018. On January 16, 2018, the State moved for a second extension of time based on an unelaborated scheduling conflict.

"Mandamus lies to compel a trial court to rule on a motion or petition within a reasonable time." Diaz v. State , 1 So.3d 337, 338 (Fla. 5th DCA 2009) ; accord Johnson v. State , 938 So.2d 639, 640 (Fla. 5th DCA 2006) ; Matthews v. Circuit Ct. , 515 So.2d 1065 (Fla. 5th DCA 1987). As his rule 3.850 motion has now been pending for over two years, Horner has clearly established an unreasonable delay in obtaining a ruling on his motion. See Barroso v. State , 19 So.3d 441 (Fla. 5th DCA 2009). While we are sympathetic to the large caseloads assigned to Florida's circuit judges, we are concerned that the present failure to rule on Horner's motion is unduly impairing his right of access to the courts.

Accordingly, due to the length of the delay, we direct that the circuit judge to whom this matter is assigned enter a final order on Horner's rule 3.850 motion within forty-five days following the issuance of this opinion.

PETITION GRANTED; WRIT ISSUED.

SAWAYA, ORFINGER, and LAMBERT, JJ., concur.

      We have no present explanation why the State's response was filed 155 days after the order instead of sixty days.

      We have separately entered an order denying this motion.

      The three judges assigned to this mandamus proceeding were, at one time, circuit judges who presided over felony dockets, including postconviction motions.


text:
    Janet VELLEFF, Appellant, v. Thomas Karl VELLEFF, Appellee.
    Case No. 5D17-591
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018 Rehearing Denied February 19, 2018
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Jason M. Gordon, Cocoa Beach, for Appellee.
   PER CURIAM.

Janet Velleff ("Former Wife") appeals the order entered by the trial court terminating the alimony payments made to her by Thomas Karl Velleff ("Former Husband"). Former Wife raises two arguments, contending that the trial court erred in: 1) denying her motion for attorney's fees without holding a separate evidentiary hearing on the matter and 2) misinterpreting the alimony provisions of the parties' marital settlement agreement ("MSA"). Because Former Wife failed to preserve her argument regarding attorney's fees and the record does not demonstrate that the trial court erred, we affirm as to the first issue without further discussion.

The second issue turns on whether the MSA provided for lump sum alimony or permanent periodic alimony. "When possible, courts should give effect to each provision of a written instrument in order to ascertain the true meaning of the instrument." Inter-Active Servs., Inc. v. Heathrow Master Ass'n, 721 So.2d 433, 435 (Fla. 5th DCA 1998). The MSA provided in pertinent part that Former Husband "shall either pay the Wife the sum of $400,000.00 as lump sum alimony or start paying permanent periodic alimony of $4,000.00 per month." Former Husband had the option of making one or more $100,000 payments, each of which would "reduce the monthly amount of permanent periodic alimony by $1,000.00 per month." Former Husband chose to make monthly payments rather than pay an initial lump sum and did not avail himself of the provision allowing him to reduce his periodic payments.

We conclude that, when all the provisions of the MSA are considered, the intent of the parties was to establish permanent periodic alimony. See Avellone v. Avellone, 951 So.2d 80, 83 (Fla. 1st DCA 2007) ("A court must not isolate a single term or group of words and read that part in isolation.... Rather, the goal is to arrive at a reasonable interpretation of the text of the entire agreement in order to accomplish the agreement's stated meaning and purpose."). The MSA appears to have been structured with the intent of incentivizing Former Husband to make large lump sum payments as an alternative to paying monthly permanent periodic alimony. "The language should be read in a manner that will actually accomplish, rather than defeat, that intended purpose." Vyfvinkel v. Vyfvinkel, 135 So.3d 384, 386 (Fla. 5th DCA 2014).

Because the MSA established permanent periodic alimony rather than lump sum alimony, the trial court erred in holding that Former Husband had fulfilled his alimony obligation. We accordingly reverse the trial court's order terminating Former Husband's alimony obligation to Former Wife and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, EVANDER and EISNAUGLE, JJ., concur.

      The MSA also specified that "[i]t is further understood and agreed that the Husband shall not receive any credit toward the $400,000.00 for the monthly alimony payments made by the Husband unless the Wife remarries, at which time the Husband shall continue to make monthly payment [s] until he has paid $400,00[0].00 from the date of Wife's remarriage."


text:
    Mahmoud NASSIROU, Appellant, v. Nellie N'Gessan BORBA, Appellee.
    No. 1D17-132
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Nicholas Martino, Jacksonville, for Appellant.
    Frances Susannah Collins, Jacksonville, for Appellee.
   Per Curiam.

For the third time, we consider an appeal relating to Mahmoud Nassirou and Nellie Borba's divorce. See Nassirou v. Nassirou , 135 So.3d 437 (Fla. 1st DCA 2014) ; Nassirou v. Nassirou , 117 So.3d 451 (Fla. 1st DCA 2013). In this appeal, the former husband challenges an order that determined the amount of his child-support arrearages, distributed the marital portion of his 401(k) plan, and awarded his former wife $18,000 in attorney's fees. We affirm in part and reverse in part.

First, the former husband contends the trial court ignored this court's earlier mandate. Specifically, he argues that "it was established as law of the case" that he owed only $3,560 for child support (for a specified period) and that the trial court lacked authority to find otherwise. In the earlier appeal, we concluded that the record did not support the court's child-support calculation, and we noted that records on which the court relied (and which showed a $3,560 figure for child support) did not square with the court's conclusion. Nassirou , 135 So.3d at 438. But we did not hold that $3,560 was the correct figure. Instead, we remanded and specifically instructed the court to recalculate the correct amount. The court complied, leading to the new order. That was not error.

Similarly, the former husband argues that this court's earlier mandate precluded the trial court's "grossing up" the 401(k) distribution to compensate for unpaid arrearages. But our earlier decision held only that that the arrearages were to be paid out of the 401(k) before remaining funds were distributed; it did not preclude a distribution that accounted for taxes or early-withdrawal penalties. In fact, this court has held that a trial court must consider potential income-tax consequences when distributing marital assets. Nicewonder v. Nicewonder , 602 So.2d 1354, 1357 (Fla. 1st DCA 1992). The trial court did not abuse its discretion with respect to the 401(k) distribution.

Last, the former husband argues that the trial court erred by ordering him to pay attorney's fees. When a trial court awards attorney's fees in a dissolution case-whether the fees were incurred while procuring a judgment, while enforcing or modifying a final judgment, while prosecuting a contempt motion, or while defending or pursuing an appeal-it must make findings regarding each party's need and ability to pay. § 61.16, Fla. Stat. (2017) ; see also Sumlar v. Sumlar , 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). The trial court's failure to make sufficient findings in that regard was error. We therefore reverse the portion of the order awarding attorney's fees to the former wife and remand for the court to reconsider the fee award and to make factual findings sufficient to facilitate appellate review.

AFFIRMED in part, REVERSED in part, and REMANDED.

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.

      We reject the former husband's argument that the original final judgment's provision requiring each side to bear its own fees precluded a statutory fee award for subsequent modification actions. Cf. Caryi v. Caryi , 119 So.3d 508, 511 (Fla. 5th DCA 2013).


author: PER CURIAM. PALMER, J., concurring in part and dissenting in part.

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER A/A/O Louis Pena, Respondent.
    Case No. 5D16-2334
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Douglas H. Stein, of Bowman and Brooke, LLP, Coral Gables, for Petitioner.
    Chad A. Barr, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Respondent.
    Lawrence M. Kopelman, of Lawrence M. Kopelman, P.A., Fort Lauderdale and Mac S. Phillips and Chris Tadros, of Phillips Tadros, P.A., Fort Lauderdale, as Amicus Curiae Floridians for Fair Insurance, Inc.
    ON MOTION FOR REHEARING AND MOTION TO CERTIFY
   PER CURIAM.

Progressive Select Insurance Company has filed a motion for rehearing and a motion to certify a question of great public importance to the Florida Supreme Court. We grant the motion for rehearing and the motion to certify. We withdraw the previous opinion and substitute the following in its stead.

Progressive petitions this court for a writ of certiorari, seeking to quash an opinion issued by the Circuit Court for Orange County, sitting in its appellate capacity, which affirmed the final judgment entered by the County Court. We deny the petition based upon the reasoning set forth in our opinion in Progressive Select Insurance v. Florida Hospital Medical Center a/a/o Jonathan Parent, No. 5D16-2333, --- So.3d ----, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018).

We certify the following question to the Florida Supreme Court as a matter of great public importance:

WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA STATUTES, REQUIRE
THAT THE DEDUCTIBLE BE SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL CHARGES BEFORE APPLYING THE REIMBURSEMENT LIMITATION UNDER SECTION 627.736(5)(a)1.b., OR MUST THE REIMBURSEMENT LIMITATION BE APPLIED FIRST AND THE DEDUCTIBLE SUBTRACTED FROM THE REMAINING AMOUNT?

PETITION DENIED and QUESTION CERTIFIED.

SAWAYA and EDWARDS, JJ., concur.

PALMER, J., concurring in part, dissenting in part, with opinion.

PALMER, J., concurring in part and dissenting in part.

I concur in part and dissent in part for the reasons set forth in my opinion in Progressive Selective Insurance Co. v. Florida Hospital Medical Center a/a/o Jonathan Parent, No. 5D16-2333, --- So.3d ----, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018).


author: SAWAYA, J. PALMER, J., concurring in part and dissenting in part.

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER a/a/o Jonathan Parent, Respondent.
    Case No. 5D16-2333
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Douglas H. Stein, of Bowman and Brooke, LLP, Coral Gables, for Petitioner.
    Chad A. Barr, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Respondent.
    Lawrence M. Kopelman, of Lawrence M. Kopelman, P.A., Fort Lauderdale and Mac S. Phillips and Chris Tadros, of Phillips Tadros, P.A., Fort Lauderdale, as Amicus Curiae Floridians for Fair Insurance, Inc.
    ON MOTION FOR REHEARING AND MOTION TO CERTIFY
   SAWAYA, J.

Progressive Select Insurance Company has filed a motion for rehearing and a motion to certify a question of great public importance to the Florida Supreme Court. We grant the motion for rehearing and the motion to certify. We withdraw the previous opinion and substitute the following in its stead.

This certiorari proceeding concerns the proper methodology to determine the application of the deductible authorized under section 627.739(2), Florida Statutes (2014), when personal injury protection ("PIP") benefits are sought by an insured. The decision we review (rendered by the circuit court in its appellate capacity) provides that, when calculating the amount of PIP benefits due to the insured, section 627.739(2) requires the deductible to be subtracted from the total medical care charges before applying the statutory reimbursement limitations provided in section 627.736(5)(a)1.b., Florida Statutes (2014). The respondent, Florida Hospital Medical Center, contends that the court applied the correct law in utilizing this methodology. Progressive argues that the statutory limitations must be applied first and the deductible subtracted from that amount. The issue is thus framed, and we must decide whether the circuit court properly interpreted the pertinent statutory provisions and applied the correct methodology. This issue has generated numerous conflicting decisions by the county and circuit courts, so we issue this opinion to provide precedent and a basis of continuity for future trial court rulings. See Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins., 29 So.3d 329, 331 (Fla. 5th DCA), review denied, 46 So.3d 567 (Fla. 2010).

Factual and Procedural Background

A discussion of the circumstances surrounding the accident that led to the insured's claim for PIP benefits is not particularly helpful to resolve the issue before us, so we will not dwell on that aspect of the underlying case. It is enough to say that after the insured, Jonathan Parent, was involved in an automobile accident, he incurred bills for the medical care he received from Florida Hospital. Those bills exceeded the deductible amount of $1000 provided in the insurance policy issued by Progressive. As is typical in these cases, Parent assigned his PIP benefits under the policy to Florida Hospital (hence the designation "a/a/o" in the caption, which means "as assignee of"). The bill Florida Hospital sent to Progressive for Parent's treatment calculated the amount owed as follows:

$2,781.00 Total hospital charge - $1,000.00 Parent's PIP deductible _________ $1,781.00 × 75% Applying section 627.736(5)(a)1.b. _________ $1,335.75 × 80% Applying section 627.736(5)(a)1. _________ $1,068.60 Amount Due

Progressive remitted payment, but it used a different payment methodology when applying section 627.736(5)(a)1.b.'s reimbursement limitation provision:

$2,781.00 Total hospital charge × 75% Applying section 627.736(5)(a)1.b. _________ $2,085.75 - $1,000.00 Parent's PIP deductible _________ $1,085.75 × 80% Applying section 627.736(5)(a)1. _________ $ 868.60 Amount Due

Florida Hospital thereafter filed suit against Progressive in the county court seeking the $200 difference between what it calculated the PIP benefit amount to be and what Progressive paid. After Progressive filed an answer denying liability and asserting affirmative defenses, both parties filed motions for summary judgment.

The county court entered a final summary judgment in favor of Florida Hospital in the amount of $200, plus interest, thus adopting Florida Hospital's argument that the plain language of section 627.739(2) required Progressive to subtract Parent's deductible from Florida Hospital's total charges before applying section 627.736(5)(a)1.b.'s reimbursement limitation. Progressive appealed, and the circuit court affirmed the county court's judgment. This certiorari proceeding followed.

Before continuing further, it is necessary to note the limitations of our review. Second-tier certiorari review is limited to determining whether the circuit court: (1) accorded procedural due process and (2) applied the correct law.

Dep't of High. Saf. & Motor Veh. v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002). Here, the pertinent inquiry is whether the circuit court applied the correct law when interpreting sections 627.736(5)(a)1.b. and 627.739(2) to determine whether the county court utilized the correct methodology to apply the deductible. Certiorari relief can be granted only if Progressive demonstrates that there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Futch v. Fla. Dep't of High. Saf. &Motor Veh., 189 So.3d 131, 132 (Fla. 2016). Clearly established law derives from a variety of legal sources, including the interpretation of statutes. Allstate Ins. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003).

Statutory Analysis

In order to determine whether the circuit court applied the correct law, we must analyze the statutory provisions at issue, which are an integral part of the Florida Motor Vehicle No-Fault Law. Florida's No-Fault Law has historically been a complicated body of legislation, and the constant revisions and amendments since its inception have contributed to its complexity. See Fla. Med., 29 So.3d at 337. As will be seen a little later, however, instances may arise when the historical development of the law reveals clear legislative intent. When interpreting the provisions of the No-Fault Law, the Florida Supreme Court has explained that the statutes "must be liberally construed in order to effect the legislative purpose of providing broad PIP coverage for Florida motorists." Blish v. Atlanta Cas. Co., 736 So.2d 1151, 1155 (Fla. 1999) ; see also Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) ("[B]oth this court and the Florida supreme court have held the provisions of Florida's No-Fault Act must be construed liberally in favor of the insured.").

We begin our analysis with section 627.739, which states in pertinent part:

Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (2014) (emphasis added). This statute distinguishes between "expenses and losses" and "benefits." The second sentence states that the deductible "must be applied to 100 percent of the expenses and losses." In the very next sentence, the statute provides that "[a]fter the deductible is met, each insured is eligible to receive up to $10,000 in total benefits." Thus, the statute indicates that the deductible applies to "100 percent of the expenses and losses" whereas "benefits" refers to the calculated amount after the deductible has been applied to the total expenses and losses and after application of the statutory reimbursement limitations found in section 627.736.

"Expenses and losses" are not defined in the statute, but they are described in section 627.736(1). Section 627.736(1)(a) specifically provides that the insured may be entitled to "[e]ighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services." § 627.736(1)(a), Fla. Stat. (2014) (emphasis added). Similarly, section 627.736(1)(b) refers to "[s]ixty percent of any loss of gross income and loss of earning capacity" and "all expenses reasonably incurred in obtaining from others ordinary and necessary services" associated with the disability of an insured. § 627.736(1)(b), Fla. Stat. (2014) (emphasis added).

In addition to describing expenses and losses, section 627.736(1) also describes benefits and establishes separate methodologies (80% reimbursement limitation for medical expenses and 60% reimbursement limitation for disability expenses and losses) for calculating how much of the expenses and losses will be paid as benefits. On the other hand, section 627.739 requires that the deductible must be applied to "100 percent of the expenses and losses." In other words, the 80% and 60% methodologies in section 627.736(1) are intended to limit reimbursements in order to establish benefits. They are not intended to describe the application of the deductible under the 100% methodology provided in section 627.739(2).

Specifically, Progressive contends that the reimbursement limitations contained in section 627.736(5)(a) 1.b. should be applied to reduce the expenses and losses and that the deductible should be subtracted from that reduced amount to arrive at the benefit amount owed to the insured. We disagree because, using that methodology, the deductible is not being applied toward 100% of the expenses and losses as required by section 627.739(2). Section 627.736(5)(a) 1. provides the insurer with an option to determine benefits pursuant to a schedule of reimbursement limitations. This statutory provision is part of legislative amendments enacted in 2008. It states in pertinent part:

1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
....
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital's usual and customary charges.

§ 627.736(5)(a) 1., Fla. Stat. (2014) (emphasis added). "The word 'may' when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word 'shall.' " Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002).

We believe that application of the optional reimbursement limitations to establish a reduced amount of expenses and losses from which the deductible amount is subtracted would render meaningless the requirement in section 627.739(2) that "[t]he deductible amount must be applied to 100 percent of the expenses and losses." See Borden v. E.-Eur. Ins., 921 So.2d 587, 595 (Fla. 2006) ("It is ... a basic rule of statutory construction that 'the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.' ").

Historical Development of Section 627.739(2)

The Legislature knows how to write statutory provisions that would require the deductible amount to be subtracted from the benefits due under the policy, which are determined after the reimbursement limitations are applied. Indeed, the prior version of section 627.739(2) stated:

Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, and $2,000, such amount to be deducted from the benefits otherwise due each person subject to the deduction. However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (1999) (emphasis added). The Florida Supreme Court reviewed the emphasized provision and held that the clear meaning of the statute required that the benefits due under the policy be calculated utilizing the reimbursement limitation (which at that time was 80% of the medical expenses) and that the deductible amount was to be subtracted from that calculation. Govan v. Int'l Bankers Ins., 521 So.2d 1086, 1088 (Fla. 1988) ("The plain reading of this statute requires a construction that subtracts the deductible from the eighty percent of the medical expenses."); see also Int'l Bankers Ins. v. Arnone, 552 So.2d 908, 911 (Fla. 1989) ("Under the statutory scheme, the deductible amounts are to be deducted from 'benefits otherwise due.' ... Section 627.736(1) defines the parameters of the benefits otherwise due under a PIP policy as including eighty percent of certain medical expenses and sixty percent of lost wages ...."). Therefore, under this prior version of the statute, the deductible was required to be satisfied from the amount that was actually payable out of the policy benefits.

In Govan, the Florida Supreme Court lamented the methodology required by the prior version of section 627.739(2) and invited the Legislature to address the issue:

While we may disagree with the legislative policy underlying the statute, we have no authority to change the clear intent and purpose of a statute that is not vague and ambiguous. Complaints about this policy should be addressed to the legislature.*
* We note the legislature, during the 1987 session, failed to enact a bill which would have amended the statute to make it consistent with the statutory interpretation presented here by the petitioner. House Bill 1015.

521 So.2d at 1088. In response to Govan and Arnone, the Florida Legislature in 2003 amended section 627.739(2) to require:

(2) ... The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1).

§ 627.739(2), Fla. Stat. (2003). The obvious intent of the Legislature was to replace the term "benefits otherwise due" with "expenses and losses" in determining what the deductible would be applied to, moving the term "benefits" to the next sentence, which discusses the insurer's liability after the deductible is satisfied. Thus, the current version of the statute provides a clear distinction between "expenses and losses" for purposes of applying the deductible and "benefits" that are due to the insured after the reimbursement limitations are applied.

The legislative amendment in 2003 constituted a substantive change in the sequence of applying the deductible in PIP cases. The Legislature, by requiring that the deductible be applied to 100% of the expenses and losses, abandoned the previous methodology of subtracting the deductible from the benefits due under the policy after applying the reimbursement limitations. Despite this legislative change in 2003, Progressive and the dissent argue that the methodology advanced in the previous version of section 627.739 (as interpreted by the Florida Supreme Court in Govan and Arnone ) should continue to be applied by the courts under the current version of the statute. We do not believe that the Legislature would find it necessary to amend the statute as it did in 2003 if, as Progressive and the dissent essentially argue, there was to be no change in the methodology. As we have previously indicated, the Legislature does not intend to enact useless legislation. See Dennis v. State, 51 So.3d 456, 463 (Fla. 2010) ; Borden, 921 So.2d at 595 ; State v. Goode, 830 So.2d 817, 824 (Fla. 2002) ; Macchione v. State, 123 So.3d 114, 119 (Fla. 5th DCA 2013).

The court in Govan noted that during the 1987 legislative session, the Legislature failed to enact a bill that would change the methodology described in the prior version of section 627.739(2). Similarly, it should be noted here that during the 2016 legislative session, the Florida Legislature failed to enact a proposed bill that would amend section 627.739(2) to incorporate the methodology of subtracting the deductible amount after the reimbursement limitations are used to determine the benefits due under the policy. Specifically, the proposed amendment stated:

Section 5. Subsection (2) of section 627.739, Florida Statutes, is amended to read:
627.739 Personal injury protection; optional limitations; deductibles.-
(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses covered under personal injury protection benefits coverage issued pursuant to described in s. 627.736. If an insurer has elected to apply the schedule of maximum charges authorized under this chapter, the amount of expenses and losses applicable to the deductible will be limited to 100 percent of such authorized reimbursement limitations or fee schedules. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

Fla. SB 1036 (2016) (words stricken are deletions; words underlined are additions); see also Fla. HB 659 (2016) (same). This amendment incorporates the same methodology Progressive and the dissent argue should apply under the current version of section 627.739(2). The Legislature did not adopt this amendment.

The dissent labels this failed amendment a clarification of the current statute. We disagree. The thirteen-year span between enactment of the current statute and introduction of the failed amendment establishes that it would have been a substantive revision. See Parole Comm'n v. Cooper, 701 So.2d 543, 544-45 (Fla. 1997) ("[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent."); State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 62 (Fla. 1995) ("It would be absurd ... to consider legislation enacted more than ten years after the original act as a clarification of original intent ...."); Macchione, 123 So.3d at 117. Moreover, the title to the bill incorporating the failed amendment states:

An act relating to automobile insurance; ... amending s. 627.739, F.S.,; revising applicability; providing a limitation to an amount of expenses and losses applicable to a deductible related to personal injury protection benefits under a certain condition ....

Fla. SB 1036 (2016). The title of a proposed law may reveal whether the Legislature intended to substantively change a statute or to clarify its provisions. See Hassen v. State Farm Mut. Auto. Ins., 674 So.2d 106, 109-10 (Fla. 1996) ; see also Earth Trades, Inc. v. T & G Corp., 108 So.3d 580, 585 (Fla. 2013) ; Kasischke v. State, 991 So.2d 803, 809 (Fla. 2008) ; State v. Webb, 398 So.2d 820, 825 (Fla. 1981) ("The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent." (citation omitted) ); Macchione, 123 So.3d at 118. There is nothing in this language indicating that the amendment was intended to be a clarification.

The "Unreasonable Bill" Argument Advanced by Progressive and the Dissent

Progressive and the dissent argue that the methodology they advance will ensure that the medical provider does not render a bill for services that is unreasonable. The reasonableness of the medical bills for services rendered to Parent in the instant case is not an issue raised by any party in these proceedings. Indeed, Progressive stated in its petition for writ of certiorari that "the point of contention in this case is whether the deductible applies to a charge before the charge is limited by the 75% payment limitation provided by Florida Statute § 627.736(5)(a) 1.b, or after the charge is limited by the 75% payment limitation." In any event, we reject this argument for several reasons.

First, it overlooks the distinctions between a deductible and a statutory reimbursement limitation, and it disregards the reason the Legislature approved the applicable provisions. The deductible provisions of section 627.739(2) were enacted to allow for reductions in the amount of the premiums charged by the insurer and to determine the amount of risk through self-insurance the insured has agreed to assume. See Mercury Ins. of Fla. v. Emergency Physicians of Cent., 182 So.3d 661, 667 (Fla. 5th DCA 2015). Coverage under the policy is not triggered until the deductible amount is met. Id. On the other hand, once coverage is triggered under the policy, the statutory reimbursement limitations provide a methodology for determining the amount of benefits due to the insured. See Virtual Imaging, 141 So.3d at 153 (explaining that the reimbursement limitations enacted in 2008 "provided, in part, more specific guidelines regarding a PIP insurer's ability to limit reimbursements" (emphasis added) ). As this court explained in Mercury Insurance, "[t]he meeting of the contracted-for deductible unlocks the insured's right to access his/her $10,000 in PIP benefits." 182 So.3d at 667. This court further explained:

This interpretation is consistent with the recognized purpose of a deductible. As was noted in General Star Indemnity Company v. West Florida Village Inn, Inc., 874 So.2d 26, 33-34 (Fla. 2d DCA 2004) :
A "deductible" is "a clause in an insurance policy that relieves the insurer of responsibility for an initial specified loss of the kind insured against."Merriam-Webster's Collegiate Dictionary 471 (deluxe ed. 1998).
....
"Generally, the functional purpose of a deductible, which is frequently referred to as self-insurance, is to alter the point at which an insurance company's obligation to pay will ripen." Int'lBankers Ins. Co. v. Arnone, 552 So.2d 908, 911 (Fla. 1989).
Thus, an insured enters into a contract with an insurance company and agrees to be subject to a deductible in exchange for a reduced monthly premium. In effect, the insured agrees to "self-insure" for the deductible amount. Where an accident occurs, the insured (not the insurer) becomes responsible for payment of claims that are otherwise impacted by the deductible amount in the insurance policy.

Id. We do not believe that the Legislature intended the statutory reimbursement limitations to be applied to expenses and losses that fall within the insured's deductible, which the insured alone is obligated to pay and which are not recoverable as benefits under the policy.

Second, the insured certainly has the right to contest any bill that the insured is required to pay to meet the deductible. The Legislature has provided that an "insured is not required to pay a claim or charges ... [t]o any person who knowingly submits a false or misleading statement relating to the claim or charges." § 627.736(5)(b) 1., Fla. Stat. (2014). Moreover, medical care providers are prohibited from rendering any bill for services that is false or fraudulent, and those that do may suffer severe criminal and civil penalties. See § 817.234(1)(a), Fla. Stat. (2014). Section 817.234 also prohibits a medical care provider from rendering a bill it does not intend to collect from the insured in order to meet the deductible amount and trigger coverage under the policy. § 817.234(7)(a), Fla. Stat. (2014) ("It shall constitute a material omission and insurance fraud ... for any service provider, other than a hospital, to engage in a general business practice of billing amounts as its usual and customary charge, if such provider has agreed with the insured or intends to waive deductibles or copayments, or does not for any other reason intend to collect the total amount of such charge.").

Third, it bears repeating that the provisions of the No-Fault Law must be construed in favor of the insured. Interpreting the pertinent statutory provisions in a manner that supports the methodology urged by Progressive and the dissent would not further the principle of providing broad PIP coverage to the insured. Rather, as established by the calculation made by Progressive in its benefits payment (which is discussed at the beginning of this opinion), that interpretation would allow the insurer to pay less in benefits than would otherwise be due.

Finally, the dissent bases its argument on a quote from the decision in Garrison, 23 Fla. L. Weekly Supp. at 708a. The quote states that several sections in 627.736, which are specifically cited by the Garrison court, refer to expenses "covered by the policy." We believe this decision is flawed because not one of the provisions of section 627.736 cited by the court in Garrison contains the language "covered by the policy." In any event, there are an equal number of circuit court opinions that reach the opposite result, and we believe they are the better reasoned decisions.

Conclusion

We conclude that application of the methodology advanced by Progressive and the dissent would require that we revert to the provisions of section 627.739(2) that were in effect before the 2003 amendment. It is not for this court to pick and choose which version of the statute to apply; we must apply the law as it currently exists. Section 627.739(2) currently requires that the deductible be applied to 100% of the expenses and losses, and that is the version the circuit court properly applied. We see no divergence from the correct law in the circuit court's decision, and we see no violation of a clearly established principle of law that results in a miscarriage of justice. Accordingly, we deny the petition for writ of certiorari.

We certify the following question to the Florida Supreme Court as a matter of great public importance:

WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA STATUTES, REQUIRE THAT THE DEDUCTIBLE BE SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL CHARGES BEFORE APPLYING THE REIMBURSEMENT LIMITATION UNDER SECTION 627.736(5)(a) 1.b., OR MUST THE REIMBURSEMENT LIMITATION BE APPLIED FIRST AND THE DEDUCTIBLE SUBTRACTED FROM THE REMAINING AMOUNT?

PETITION DENIED and QUESTION CERTIFIED.

EDWARDS, J., concurs.

PALMER, J., concurring in part, dissenting in part, with opinion.

PALMER, J., concurring in part and dissenting in part.

I concur with the majority in certifying the question to the Florida Supreme Court. I otherwise respectfully dissent.

As the circuit court for the Eighteenth Judicial Circuit observed in Garrison Property & Casualty Insurance Co. v. New Smyrna Imaging, LLC:

As an initial step under s. 627.739(2), the insurer must first determine what are the "expenses and losses described in s. 627.736," in order to apply the deductible to 100% of those expenses and losses. Section 627.736 contains several references to expenses, almost all of which are described as or used in the context of reasonable expenses or expenses "covered by the policy." Section 627.736(1)(a), (1)(b), & (6)(b), Fla. Stat. (footnote omitted). Thus, when read together, section 627.739 and section 727.736 require that a PIP deductible be applied to 100% of the reasonable and necessary medical expenses, or those expenses covered by the policy.

23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015). Section 627.739(2)'s references to section 627.736 necessarily include references to the reimbursement limitation of section 627.736(5)(a) 1.b. and, therefore, "100 percent of the expenses ... described in s. 627.736" includes the reimbursement limitation set forth in the current section 627.736(5)(a) 1.b.

The majority concludes that "medical expenses" are not the same as "medical benefits" under the PIP statute. I disagree. Medical expenses covered under PIP are limited to those services and expenses which are reasonable and necessary. See Geico Gen. Ins. Co. v. Virtual Imaging Servs. Inc., 141 So.3d 147 (Fla. 2013). Under the majority's interpretation of section 627.739(2), the deductible could be applied to a charge which is unreasonably high and thus not covered by PIP. "The notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable." Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 33 (Fla. 2d DCA 2004).

The majority relies on the fact that the Legislature failed to enact a proposed law in 2016 which explicitly recognized the calculation method propounded by Progressive as evidence that that calculation method is not supported by the current law. However, the Bill Analysis and Fiscal Impact Statement for that bill explained that the proposed amendment sought to "clarify that the PIP deductible applies to expenses and losses covered under PIP benefits and coverage." Fla. S. Bill Analysis & Fiscal Impact Statement of Jan. 25, 2016, § 5 for Bill SB 1036, p. 5. The use of the word "clarify" indicates that the proposed language was consistent with the current state of the law.

I would grant the petition for certiorari and quash the circuit court's order.

      See, e.g., Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24 Fla. L. Weekly Supp. 318a (Fla. 9th Cir. Ct. June 14, 2016); Progressive Select Ins. v. Fla. Hosp. Med. Ctr., 24 Fla. L. Weekly Supp. 200a (Fla. 9th Cir. Ct. June 14, 2016); cf. Advantacare of Fla., LLC v. Geico Indem. Co., 23 Fla. L. Weekly Supp. 841a (Fla. 7th Cir. Ct. July 24, 2015); Progressive Am. Ins. v. Munroe Reg'l Health Sys., Inc., 23 Fla. L. Weekly Supp. 707a, 2015 WL 11022891 (Fla. 18th Cir. Ct. Apr. 17, 2015) ; Garrison Prop. & Cas. Ins. v. New Smyrna Imaging, LLC, 23 Fla. L. Weekly Supp. 708a (Fla. 18th Cir. Ct. Jan. 12, 2015).

      Section 627.730, Florida Statutes (2014), provides that "[s]ections 627.730-627.7405 may be cited and known as the 'Florida Motor Vehicle No-Fault Law.' "

      Referring just to section 627.736, which is commonly known as the PIP statute, the court in GEICO General Insurance v. Virtual Imaging Services, Inc., 141 So.3d 147, 152 (Fla. 2013), stated that "[s]ince the PIP statute was first enacted in 1971, the Legislature has amended the statute numerous times, including every year between 1987 and 1999, and again every year between 2003 and 2009."

      In its motion for summary judgment filed in the county court, Florida Hospital relied on the 2003 Senate Staff Analysis and Economic Impact Statement to argue that the intent of the 2003 amendments was to apply the deductible before reducing the medical expenses pursuant to the statutory reimbursement limitations. Specifically, the pertinent part of the staff analysis provides:
      [The bill] [a]mends s. 627.739, F.S., relating to PIP deductibles, to change the calculation of the PIP deductible to require that it must be applied to 100 percent of medical expenses, rather than to the current 80 percent of expenses that PIP pays. This provision has the effect of requiring PIP to pay more in benefits than it does now if a deductible is elected. For example, under current law: $5,000 medical bill, PIP pays 80 percent, or $4,000, minus $2,000 deductible = $2,000. Under this provision: $5,000 medical bill, minus $2,000 deductible, is $3,000. PIP pays 80 percent X $3,000 = $2,400.
      Fla. S. Comm. on Banking & Ins., CS for SB 32-A (2003) Staff Analysis 16 (May 15, 2003). We have not relied on this report in our analysis. We note it here because it confirms our conclusion about how the deductible should be applied under section 627.739(2). See Townsend v. R.J. Reynolds Tobacco Co., 192 So.3d 1223, 1229 (Fla. 2016) (noting that, after examining a staff analysis of the enacting law, "[a]lthough it is not necessary to delve into the legislative history of section 55.03(3), Florida Statutes (2010), because the language is clear and unambiguous, the legislative history nevertheless confirms our reading of the statute"); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 368 (Fla. 2013) ("The legislative summary in a staff analysis regarding FDUTPA affords further support for the principal [sic] ...."); Larimore v. State, 2 So.3d 101, 109 n.4 (Fla. 2008) ("This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida ...."); G.G. v. Fla. Dep't of Law Enf., 97 So.3d 268, 273 (Fla. 1st DCA 2012) ("Our decision does not rely on staff analyses.... The staff analyses support the position advocated here by G.G., not FDLE.").


text:
    Jeffrey MOSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5416
    District Court of Appeal of Florida, First District.
    February 21, 2018
    Jeffrey Mosley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Lucious M. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0341
    District Court of Appeal of Florida, First District.
    February 21, 2018
    Lucious M. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Fla. R. App. P. 9.141(d)(5).

Wetherell, Rowe, and Jay, JJ., concur.


author: EDWARDS, J.

text:
    DYCK-O'NEAL, INC., Appellant, v. Robert GERMANY and Linda K. Plant-Germany, Appellees.
    Case No. 5D17-1059
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    David M. Snyder, of David M Snyder, PA, Tampa, Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., Tampa, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Douglas N. Burnett, and M. Aaron Dukes, St. Johns Law Group, St. Augustine, for Appellee Linda K. Carroll.
    No appearance for other Appellee.
   EDWARDS, J.

Dyck-O'Neal, Inc. ("DONI") appeals the summary judgment granted in favor of Appellee, Linda Carroll f/k/a Linda K. Plant-Germany. DONI correctly argues that the trial court erred in finding DONI's action time-barred. See Chrestensen v. Eurogest, Inc. , 906 So.2d 343, 344 (Fla. 4th DCA 2005) (holding that the statute of limitations to seek a deficiency judgment does not begin to run until after the entry of foreclosure judgment and subsequent foreclosure sale). We also decline Appellee's suggestion that we affirm the final summary judgment based on a ground that she did not raise below. See Trainor v. PNC Bank, Nat'l Ass'n , 211 So.3d 366, 368 (Fla. 5th DCA 2017).

Therefore, we reverse the summary judgment entered in favor of Appellee and remand for further proceedings consistent with this opinion. We also deny Appellee's motion for attorney's fees.

REVERSED AND REMANDED.

PALMER and LAMBERT, JJ., concur.

      Kinney v. Countrywide Home Loans Servicing, L.P. , 165 So.3d 691 (Fla. 4th DCA 2015), is inapplicable to this case; thus, Appellee should not have offered it as a legal basis for summary judgment, and the trial court erred in relying upon it.


text:
    Ivin Romand RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5309
    District Court of Appeal of Florida, First District.
    February 21, 2018
    Ivin Romand Richardson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wetherell, Rowe, and Jay, JJ., concur.