author: ROTHENBERG, C.J.

text:
    FRATERNAL ORDER OF POLICE, MIAMI LODGE NO. 20, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D16-1849
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Klausner, Kaufman, Jensen & Levinson, and Robert D. Klausner and Paul A. Dar-agjati (Plantation), for appellant.
    Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

The Fraternal Order of police, etc. (“the FOP”) appeals from the trial court’s entry of a final order determining that the FOP lacks standing to seek damages against the City of Miami (“the City”) on behalf of some of the FOP’s members. Based on our review of the record on appeal and the relevant case law, we agree with the trial court’s determination that the FOP lacks standing to pursue damages on behalf of its members because the determination of damages will require the individual participation of the affected FOP members.

BACKGROUND

This appeal concerns a promotional exam for the position of police sergeant administered by the City in 1994. In 1996, 'the FOP filed a complaint, and ultimately a second amended complaint, seeking declaratory relief, injunctive relief, and damages against the City, alleging that the oral portion of the exam was unlawful. Following discovery, the trial court entered an order bifurcating the liability and damages phases of the litigation. After conducting a bench trial on liability, the trial court entered a partial final declaratory judgment in 2007 in favor of the FOP, declaring the oral portion of the exam invalid.

Thereafter, the City sought clarification as to the FOP’s associational standing to recover damages on behalf of its individually affected members. The trial court entered an order in 2008 finding that, although the FOP may possess associational standing to seek declaratory, injunctive,-or other prospective relief for its members, it lacks associational standing to recover damages on behalf of the members affected by the flawed promotion examination. Specifically, the trial court found that because the determination of the damages sought by the FOP will require extensive and individualized discovery to determine whether and to what extent each individual member was damaged, the FOP does not have standing to recover damages on their behalf. . ,

Five years after the trial court entered its order finding that the FOP ■ lacked standing to pursue damages on behalf of its affected members, the FOP filed a motion for reconsideration of that order, but failed to set the motion for a hearing. Three years later, at the City’s prompting, the motion was heard and denied. The FOP now seeks a reversal of the trial court’s determination that it lacks standing to seek damages in its representational capacity on behalf of its members.

ANALYSIS

“Generally, the determination of whether a plaintiff has standing is a legal issue subject to de novo appellate review .... To the extent that the trial court’s standing determination involves factual findings, we uphold such findings only if supported by competent, substantial evidence.” Citibank, N.A. v. Olsak, 208 So.3d 227, 229 (Fla. 3d DCA 2016) (citations omitted).

At the outset, we note that this ’ case appears to present an issue of first impression. Neither of the parties on appeal have cited to any Florida case that directly addresses whether and in what circumstances a union has standing to seek damages on behalf of its members, nor have we found such a case. However, based on our review of other union standing cases and related case law in the context of associational standing, we concludé that a union does not have standing to seek damages solely on- behalf of its members where the union’s claims for damages require individualized participation by and proof from its members.

1. The Federal Associational Standing Doctrine

Although the specific issue before us has not been resolved in Florida, it has been addressed in a number of cases before the federal courts. While we acknowledge that these federal authorities are not binding, we nevertheless find them to be persuasive and compatible with Florida law. Accordingly, our analysis begins with the development and' application of associational standing in federal case law before turning to our analysis of Florida law.

The specific test that governs when an association has standing in its representational capacity to bring suit on behalf of its members can be traced, to Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In Hunt, the United States Supreme Court held that an association may have standing to bring a lawsuit on behalf of its members in its representational capacity, even if it has suffered no direct injury,- so long as three requirements are met: “(a) its members would otherwise have standing to sue in their own-,right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. .at 343, 97 S.Ct. 2434. As to the third prong of the Hunt-test, which is the focus of our analysis in the present case, the Court elaborated:

[WJhether an association has standing to invoke the court’s- remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases -in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.

Id. (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The Court concluded that the Washington State Apple Advertising' Commission met each of the three associational standing requirements, and although the Washington State Apple Advertising Commission was a state agency, rather than a traditional'voluntary membership organization, it was nevertheless permitted to seek declaratory and injunctive relief in its representational capacity on behalf of the apple growers and dealers who formed its -constituency.

Since' the United States Supreme Court’s decision in Hunt, the apple has not fallen far from the tree. Nearly a decade later, the Hunt test was applied when a lábor union sought to file suit in its representational capacity against' the United States Department of Labor. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 290, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). Although it suffered no injury, the union sought injunctive' and declaratory relief on behalf of its members, who were denied certain unemployment benefits. After carefully examining the type of relief the union sought, the Court found that the union had standing in its representational capacity because the lawsuit did not actually require the individual participation of union members. Instead, the case “raise[d] a pure question of law: whether the Secretary properly interpreted the Trade Act’s [trade readjustment allowance] eligibility provisions.” Id. at 287, 106 S.Ct. 2523. In so holding, the Court reaffirmed the established limitation on associational standing: a labor union cannot seek damages on behalf of its members where the alleged injury “is peculiar to the individual member concerned, and both the fact and extent of injury would-require individualized proof.” Id. at 287, 106 S.Ct. 2523 (quoting Warth, 422 U.S. at 515-16, 95 S.Ct. 2197).

One decade after International Union, the United States Supreme Court reiterated the general rule that associational standing is precluded when a union “seeks damages on behalf of its members.” United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). The Court went on to find, however, that the third prong of the Hunt test is prudential, unlike the first two prongs of the Hunt test, which are constitutional. Thus, the Court concluded that Congress may abrogate the requirements of the third prong of the Hunt test by passing a statute that expressly provides unions with the authority to recover for its members’ individualized claims. However, the United States Supreme Court specifically noted that the value of the third prong of the Hunt test is not somehow diminished by the fact that its requirements are not constitutional. Id. at 556, 116 S.Ct. 1529 (stating, among other things, that the third prong may well “guard against the hazard of litigating a case to the damages stage only to find the plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity” and “hedge against any risk that the damages recovered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed”).

Notwithstanding cases where Congress expressly permitted associations to pursue individualized claims on behalf of their members, several federal courts since United Food have honored the general prudential requirements of the third prong of the Hunt test. They have reaffirmed time and again that an association, (a word broadly construed to cover entities such as trade associations, non-profit associations, certain state agencies, and unions), cannot invoke the doctrine of associational standing in order to seek damages on behalf of its members, whose claims depend upon individualized proof. Connecticut State Dental Ass’n v. Anthem Health Flans, Inc., 591 F.3d 1337, 1354 (11th Cir. 2009) (“Although [the association] seeks both declaratory and injunctive relief, which are normally appropriate relief for associational standing, it also seeks compensatory and punitive damages on behalf of its members, which will require individualized proof of harm. Thus, [the association] could not establish all the requirements for associational standing.”); Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (“We know of no Supreme Court or federal court of appeals ruling that an association has standing to pursue damages claims on behalf of its members.”); Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 284 (3d Cir. 2002) (“Had the [association] continued to press its claims for damages on appeal, dismissal under Rule 12(b)(6) would be entirely appropriate.”); BankUnited, N.A. v. Milliman, Inc., 2016 WL 1321559, at *2 (M.D. Fla. Apr. 5, 2016); Black Farmers & Agriculturists Ass’n v. Veneman, 2005 WL 711821, at *2 (D.D.C. Mar. 29, 2005) (“There can be no question that ‘any award of monetary compensation would require the participation of individual members in the lawsuit.’ ... It is clear that [the association] lacks standing to sue for damages on behalf of its members.”) (citing Air Transp. Ass’n of Am. v. Reno, 80 F.3d 477, 483 (D.C. Cir. 1996)); Wein v. Am. Huts, Inc., 313 F.Supp.2d 1356, 1360-61 (S.D. Fla. 2004) (“While [the association] has sufficiently alleged facts to establish that it has standing to pursue declaratory and injunctive relief on behalf of its members, [it] lacks standing to bring its claims for compensatory damages, damages for mental suffering, anguish, loss of dignity, and any other intangible injuries, punitive damages before this Court.”) (internal quotation omitted).

Accordingly, based on these abundant federal authorities, we conclude that under federal law, generally, a union may not file suit solely in its representational capacity to seek damages on behalf of its members if individualized proof from the union’s members would be required in the litigation.

2. A Union’s Standing to Sue in its Representational Capacity in Florida

Next, we consider the law in Florida. Florida has not adopted the Hunt test for associational standing. However, as demonstrated below, its “modified” associational standing doctrine contains requirements that -closely resemble its federal counterpart, the Hunt test. Similarly, the few cases dealing with a union’s standing to sue in its representational capacity have only permitted unions to seek declaratory or injunctive relief, and those claims did not require individualized participation from the unions’ members.

Florida’s “modified” associational standing doctrine applies primarily in the context of an association’s rule challenges under section 120.56, Florida Statutes, where the association “is acting solely as the representative of its members.” Fla. Home Builders Ass’n v. Dep’t of Labor & Emp’t Sec., 412 So.2d 351, 353 (Fla. 1982); see also Palm Point Prop. Owners’ Ass’n of Charlotte Cty., Inc. v. Pisarski, 626 So.2d 195, 197 (Fla. 1993) (stating that “our recognition of associational standing in the chapter 120 context was not a blanket adoption of the doctrine”). But see Hillsborough Cty. v. Fla. Rest. Ass’n, 603 So.2d 587, 588 (Fla. 2d DCA 1992) (holding that an association has- standing to seek injunctive and declaratory relief to challenge the enactment of a county ordinance on the ground that it is unconstitutional). In order to initiate a rule challenge in its representational capacity on behalf of its members, an association must meet the requirements of the following test enunciated in Florida Home Builders:

[A]n association must demonstrate that a substantial number of its members, although not necessarily a majority, are “substantially affected” by the challenged rule. Further, the subject matter of the rule must’ be within the association’s general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members.

Fla. Home Builders, 412 So.2d at 353-54 (emphasis added). Although we recognize that the modified associational standing doctrine relied on in Florida Home Builders does not apply in all contexts, we find that it is nevertheless instructive because its precepts mandate that an organization does not have associational standing in Florida if the relief requested is not “of the type appropriate for a trade association to receive on behalf of its members.” Id. at 354. We specifically note that immediately after articulating the modified associational standing test in Florida Home Builders, the Florida Supreme Court clarified that “the only issue to be resolved in a section 120.56(1) proceeding is whether an agency rule is valid,” and noted that a section 120.56(1) proceeding “does not involve association or individual claims for money damages.” Id. at 354 (emphasis added). This quote suggests that if the proceeding had involved individual claims for money damages, the Florida Supreme Court would have found that the organization lacked associational standing to pursue damages on behalf of its members.

The Florida Supreme Court’s ruling in Florida Home Builders highlights the United States Supreme Court’s comment in United Food, wherein the United States Supreme Court stated that one of the important purposes achieved by limiting associational standing to those circumstances where individualized participation of members in the litigation is not required is the protection such a limitation provides “against any risk that the damages recovered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed.” United Food, 517 U.S. at 556, 116 S.Ct. 1529. Accordingly, while not identical, it is apparent that the Hunt test and Florida’s modified associational standing doctrine are closely aligned when it comes to the limitation of associational standing in cases where damages are sought.

Outside of the context of Florida’s, modified associational standing doctrine, there are only a few cases in Florida where a union attempted to file suit in its representational capacity. However, these cases have dealt only with injunctive or declaratory relief. See, e.g. Fredericks v. School Bd. of Monroe Cty., 307 So.2d 463, 465 (Fla. 3d DCA 1975) (holding that a labor organization has standing to file a lawsuit on behalf of its. members to compel a school board to exhaust its adopted grievance procedure); Cannery, Citrus, Drivers, Warehousemen, & Allied Emps. of Local 444 v. Winter Haven Hosp., 279 So.2d 23, 27 (Fla. 1973), (holding that a labor organization has standing, under the facts of that case, “to seek injunctive relief against asserted employer coercion” on behalf of the employees it represents).

In the final analysis, we find that in both federal case law and Florida case law, the results- are nearly uniform. In both contexts, if a union seeks and obtains injunc-tive or declaratory relief, it will often immediately “inure to the benefit of those members of the association actually injured,” and individual participation will not be required of the union’s members. See Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). However, when a union seeks damages on behalf of its members, rather than automatically inuring to the. benefit of those members who suffer from an individualized injury, damages claims- are often neither “common to the entire membership, nor-shared by all in equal degree,” and the injuries are often “peculiar to the individual member concerned,” with “both the fact and extent of injury” requiring individualized proof. Id. at 515-516, 95 S.Ct. 219.7.

Thus, while ah association may have standing to seek injunctive or declaratory relief on. behalf of its members due to the automatic application of the relief to its injured members, an association does not have standing to seek damages on behalf of its members where individual participation from the association’s injured members is “indispensable to proper resolution of the cause.” Id. at 511, 95 S.Ct. 2197. In short, disputes about claims for individualized damages are typically not “properly resolved in a group context,?’ Hunt, 432 U.S. at 344, 97 S.Ct. 2434; see Fla. Home-Builders, 412 So.2d at 353-54.' Accordingly, we find, consistent with both federal law and Florida law, that it is generally inappropriate for a union to seek damages solely in its representational capacity on behalf of its members when the calculation of those damages will depend on individualized participation from the union members.

3. The FOP Lacks Standing to Seek Damages on Behalf of its Members

Our application of this principle to the instant case leads to a clear result. The trial court correctly , found that the FOP cannot seek as a remedy damages for its members, as “[t]he determination of these damages will require extensive and individualized discovery to determine whether and to what extent each individual member was damaged” by the unlawful promotional exam. Some of its members were later promoted at different times, some were never promoted, and sdme might riot have scored high enough to receive a promotion even if the oral examination portion of the test had not been flawed. Thus, the damages suffered by individuals who were not promoted according to the now invalid promotional exam are by no means uniform, and determining entitlement to such damages will be a fact-dependent process. Accordingly, we agree with the trial court that the FOP lacks standing to seek damages on behalf of these differently situated members, from whom individual participation in the damages portion of this litigation will be required.

CONCLUSION

In summary, we hold that a union generally lacks standing to seek damages solely in its representational capacity on behalf of its members where their individualized participation in the litigation is required. Accordingly, because the FOP’s members in this case would be required to participate in the litigation and prove the existence and extent of their damages stemming from the unlawful promotional exam, we find that, on these facts, the FOP lacks, standing to pursue damages on behalf of its affected members. We also find the FOP’s remaining arguments to be without merit, and we therefore decline to address them further.

Affirmed.

      . Although some individualized relief was allegedly sought in International Union, the Court noted that such claims were actually left to the state authorities, which would .specifically consider the unique facts of each member’s claim before any member could receive benefits allegedly due. Int'l Union, 477 U.S. at 288, 106 S.Ct. 2523.

      . We note that the instant case does not involve a similar statutory right to recover damages on behalf of union members.

      . We note that the Second District Court of Appeal, when deciding Hillsborough County, did not have the benefit of the Florida Supreme Court’s limitation on the modified associational standing doctrine, as handed down in Palm Point. However, in Hillsbor-ough County, the plaintiff requested injunc-tive and declaratory relief, and its holding does not obstruct our analysis. Hillsborough Cty., 603 So.2d at 588.

      . We decline to address situations where the association has suffered a direct injury or received an assignment of rights from its members because neither factual situation has- occurred in the instant case.

      . Our conclusion finds further support among the fundamental principles of standing. The concept of standing contains the "requirement that the claim be brought by or on behalf of one who is recognized in the law as a 'real party in interest.’ ” Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1183 (Fla. 3d DCA 1985). The "real party in interest” is "the person in whom rests, by substantive law, the claim sought to be enforced." Id. (citation and quotation omitted); • see also Fla. R. Civ. P. 1.210; Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 941 (Fla. 2002) (“Under traditional jus tertii jurisprudence, ‘In the ordinary course, a litigant must ■assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights, or interests of third parties.’ ”) (citation omitted). The- purpo.se behind the real party in interest rule is “to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata.” Kumar, 462 So.2d at 1178 (quoting Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc., 620 F.2d 1, 4 (1st Cir.1980)). Our conclusion that a union does not have standing to seek damages on behalf of its members where their individualized participation is required coheres with these general standing principles,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Teresita Abadin LANZA, Appellant, v. Carlos LANZA, Appellee.
    No. 3D17-379
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta and Javier Perez-Abreu, for appellant.
    Greene Smith Jean, P.A., and Cynthia L. Greene, Laura Davis Smith, and Alicia M. De La 0, for appellee.
    Before ROTHENBERG, C.J., and LOGUE and LINDSEY, JJ.
   PER CURIAM.

We affirm the trial court’s abatement of alimony and child support. We do so with the understanding that the trial court’s oral pronouncement at the. hearing allows the former wife to conduct discovery and, if necessary, seek relief from the trial court in relation to the propriety, amount, and duration of the abatement.

Affirmed.


author: LUCK, J.

text:
    Blanca LAGO, Appellant, v. COSTCO WHOLESALE CORPORATION, Appellee.
    No. 3D16-1899
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Kula & Associates, Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant.
    Kelley Kronenberg, Harold S. Stevens, and Jason E. Handin (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   LUCK, J.

Blanca Lago slipped on a liquid substance and fell and broke her knee as she was walking into a Costco Wholesale Corporation store in Miami. The fall resulted in Lago’s lawsuit against Costco for negligent maintenance of its property. Lago appeals the trial court’s order granting summary judgment in favor of Costco, and we affirm because there was no genuine dispute of material fact about Costco’s knowledge of the liquid substance on its entranceway floor.

Factual Background and Procedural History

On March 7, 2015, Lago’s neighbor invited Lago to accompany her to Costco at 13450 Southwest 120th Street, in Miami. Lago had never been to Costco before. When they arrived, the neighbor went to get a shopping cart and Lago started to walk towards the entrance. As she walked, Lago felt her right leg go out from under her and she fell on her left knee. Lago screamed in pain and a crowd surrounded her. A Costco employee helped Lago up and sat her near the entrance until an ambulance came to take her to the hospital.

Lago sued Costco for the injuries she suffered from the fall. Lago alleged that she fell on a slippery liquid substance, and it was Costco’s duty as a business owner to make sure there was nothing on its floor that could cause invitees like Lago to hurt themselves.

Costco moved for summary judgment because there was no genuine issue of material fact about the company’s actual or constructive knowledge of the slippery liquid substance. The trial court granted Costco’s motion, and entered summary judgment in favor of the company. This appeal followed.

Standard of Review

Our standard in reviewing the trial court’s summary judgment order is de novo. In evaluating the trial court’s order, we must determine if the record evidence presented to the trial court shows there is no genuine dispute regarding the material facts. We view the facts in the light most favorable to ... the non-moving party below.

Delgado v. Laundromax, Inc., 65 So.3d 1087, 1088 (Fla. 3d DCA 2011)(citations omitted).

Discussion

Lago contends the trial court erred by: (1) entering an unelaborated order; and (2) granting summary judgment for Costco on the notice issue based solely on Lago’s deposition. As to Lago’s first contention, we have said that “[w]hile it might be desirable for the trial judge to specify his reasons for granting or denying a summary judgment there does not appear to be any rule or decision that requires him to do so.” Newman v. Shore, 206 So.2d 279, 280 (Fla. 3d DCA 1968); see also Reid v. Associated Eng’g of Osceola, Inc., 295 So.2d 125, 127 (Fla. 4th DCA 1974) (“The summary judgment does not contain any statement as to the basis upon which the court determined ¿hat the defendants were entitled to judgment as a matter of law. There is no requirement that such be done, and we are not critical of its omission. We merely note in passing, that if trial courts followed the practice of setting forth the basis of their holding in granting summary judgments (when such was not otherwise clearly evident from the record), it would facilitate appellate review.”). Here, even if the order didn’t say so, the reason for granting summary judgment was clear from Costco’s. motion, Lago’s response, and the transcribed summary judgment hearing.

As to Lago’s second contention, Costco, as the defendant moving for summary judgment, had to show there was no genuine issue of material fact on one or more of the elements of Lago’s negligence claim: (a) Costco owed a duty to Lago; (b) it breached that duty; (c) there was a causal connection between Costco’s breach and Lago’s knee injury; and (d) Lago suffered damages as a result of the breach. See Wilson-Greene v. City of Miami, 208 So.3d 1271, 1274 (Fla. 3d DCA 2017) (“A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.”); Delgado, 65 So.3d at 1089 (“The elements of negligence are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant’s breach of duty.”). Normally, the duties owed by a business to one of its invitees are: “(1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn of perils that were known or should have been known to the owner of which the invitee could not discover.” Delgado, 65 So.3d at 1089.

But in Florida Statutes section 768.0755 the legislature modified a business’s duties when its invitees are injured by “transitory foreign substances.” See Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909, 911 (Fla. 1st DCA 2014) (“In 2010 the Florida legislature enacted Section 768,0755, Florida Statutes, the clear intent of which is to reposition the burden of proof in constructive knowledge negligence actions fully onto a plaintiff.” (quotation omitted)); see also Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275, 278 (Fla. 3d DCA 2017) (“[WJhere a business invitee slips and falls on a ‘transitory substance’ in a business establishment ... proof of the breach element of the claim against an owner of the establishment is statutorily constrained .... ”). Section 768.0755 provides:

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the-business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.

§ 768.0755(1), Fla. Stat/(2015). In moving for summary judgment, Costco had to show there was no genuine dispute about its actual or constructive knowledge of the slippery liquid substance on the entrance-way floor.

Under similar facts, we have affirmed summary judgment for business establishments in slip-and-fall- cases. In Delgado, decided before the effective date of section 768.0755, the plaintiff testified

she did not: (1) know where the water came from; (2) see water anywhere else other than where she slipped; (3) know how long the water was on the floor before she slipped; or (4) know of anyone at Laundromax who knew the water was on the floor before she walked in. Further, there is no evidence in the record that it was raining or that it had recently rained ....

Delgado, 65 So.3d at 1090. In other words, the court said, the “only evidence” was “(1) that the floor was wet; and (2) [the plaintiff] slipped and fell.” Id. From this, the court agreed with the trial court that the business defendant was not negligent. Id. Without more evidence, “the mere presence of water on the floor was not enough to establish constructive notice.” Id.

Also, in Encarnación, we described the summary judgment evidence, which consisted of the plaintiffs deposition testirao-ny and answers to interrogatories, this way:

there is no; evidence in the record suggesting the existence of the foreign substance on the floor was known to the hospital. In-the absence of evidence of actual knowledge, it was incumbent on the plaintiff to come forward with circumstantial evidence that Palmetto General Hospital, in the exercise of ordinary caution, should have known of the condition. In this case, however, the answers to interrogatories and depositions do not establish how long the substance had been on the floor, •

Encarnación, 211 So,3d at 278. The plaintiffs testimony did present additional facts that “the substance on the floor was ‘oily,’ ‘dirty1, and ‘dark,’ ” but even that was “insufficient to create a jury issue.” Id.; see also McCarthy v. Broward College, 164 So.3d 78, 81 (Fla. 4th DCA 2015) (affirming summary judgment for the business establishment because the plaintiff “was unable to identify the liquid in the elevator, determine how long it had been there, or establish if anyone at Broward College had actual or constructive notice of its presence”).

Here, too, there was no dispute about Costco’s actual or constructive notice of the liquid. As to actual notice,.Lago testified she did not see any. Costco employee around the liquid or by the entrance before or when she -fell. As to constructive notice, Lago’s testimony was almost identical to the Delgado plaintiff. Lago testified that it was not raining (the slip and fall happened under an overhang in front of the Costco entrance), she did not see the liquid on the floor before she fell, she didn’t know what the liquid was (other than that it was wet), and she didn’t know how long it had been there. Lago saw no one else slip in the same busy entranceway before and after her fall.

As in Delgado and Encarnación, the undisputed summary judgment evidence was that the floor was wet and Lago slipped and fell. Without additional facts suggesting the liquid had been there for a long period of time or this happened regularly, the trial court properly granted summary judgment in favor of Costco. We affirm.

Affirmed.

      . This part of the opinion comes from Lago’s deposition. Lago gave a different account in her complaint, where she alleged’ that she slipped and fell as she was walking back from the Costco gas station.

      , A "transitory foreign substance” refers "generally to any liquid or solid substance, item or object located where it does not belong.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 317 n.1 (Fla. 2001).

      . Lago offered an unauthenticated expert report from another case and a print out from a weather website as counter-evidence, but the trial court properly struck these items as hearsay that could not be considered as summary judgment evidence under Rule 1.510. See First Union Nat’l Bk. of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. 5th DCA 2001) (“Merely attaching an unsworn document ... to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e).”). Lago has not appealed this part of the trial court's summary judgment decision.


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Major LUNDY, Appellee.
    No. 3D16-801
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017

      Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.'
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   SALTER, J.

The State of Florida seeks to appeal an order granting a defendant’s renewed motion for a judgment of acquittal following trial, a jury deadlock, and the trial court’s declaration of a mistrial. We dismiss for lack of jurisdiction.

Procedural History

Major Lundy Jr. (“Lundy”) was charged with possession of cocaine with intent to sell, possession of marijuana, and possession of ammunition by a convicted felon. Lundy filed a motion to sever the ammunition charge, and that motion was granted. Lundy’s jury trial on the severed ammunition count began on February 3, 2016.

After the State rested, Lundy moved for a judgment of acquittal, arguing that the State had failed to establish (a) constructive possession of the ammunition and (b) live “ammunition” as defined in section 791.001(19), Florida Statutes (2014). The trial court denied the motion as to constructive possession, and reserved ruling as to the “ammunition” issue.

The jury could not reach a verdict, and the court declared a mistrial. Five days later, Lundy filed a timely, renewed motion for a judgment of acquittal pursuant to Florida Rule of Criminal Procedure 3.380(c). Lundy again argued both of the alleged deficiencies in the State’s case (constructive possession and the evidence required to prove “ammunition”). The trial court then conducted a hearing on Lundy’s renewed motion for a judgment of acquittal.

Thereafter, the trial court issued a written order determining that the State had failed to prove either constructive possession of the ammunition or the requisite factual elements to meet the statutory definition of “ammunition.” The trial court announced the acquittal on the record and entered a written “Judgment of Acquittal.” The State filed a timely notice of appeal.

Analysis

“The State’s right to appeal in a criminal case must be ‘expressly conferred by statute.’ ” Exposito v. State, 891 So.2d 525, 527 (Fla. 2004) (quoting Ramos v. State, 505 So.2d 418, 421 (Fla. 1987)). The State’s statutory authority to appeal is set forth in sections 924.07 and 924.071, Florida Statutes (2016). State v. McMahon, 94 So.3d 468, 472 (Fla. 2012); see Fla. R. App. P. 9.140(c) (listing the same types of orders the State may appeal in a criminal case). The only mention of “judgment of acquittal” in the two statutes is subsection 924.07(l)(j), which provides that “[t]he state may appeal from ... [a] ruling granting a motion for judgment of acquittal after a jury verdict.” § 924.07(l)(j); see also Fla. R. App. P. 9.140(c)(1)(E) (“The state may appeal an order ... granting a motion for judgment of acquittal after a jury verdict.”)

The State’s right to appeal is limited, both in the statute and the rule, to post-verdict judgments of acquittal. § 924.07(1)0); Fla. R. App. P. 9.140(c)(1)(E). This limitation is “crafted so as not to violate the state and federal constitutional prohibitions against placing a defendant in double jeopardy.” State v. Stone, 42 So.3d 279, 281 (Fla. 4th DCA 2010).

The trial court order granting Lun-dy’s renewed motion for a judgment of acquittal is not an order that the State may appeal. Section 924.07(l)(j) provides that the State may appeal a judgment of acquittal only “after a jury verdict.” In Lundy’s case, however, the trial court’s ruling came after the jury was deadlocked; no verdict had been rendered. See State v. Fudge, 645 So.2d 23, 24 (Fla. 2d DCA 1994) (“[Bjecause the jury deadlocked, there was no verdict ... [and] [t]hus, no appeal is authorized by section 924.07(1) [sic].”); see afeo Hudson v. State, 711 So.2d 244, 246 (Fla. 1st DCA 1998) (“[Section 924.07(l)(j)] plainly contemplates appeal from a judgment of acquittal only if the judgment of acquittal , follows a guilty verdict.”).

The State responds to these authorities by arguing that the trial court’s order was, in substance, an order granting a motion to dismiss, which is appealable under section 924.07(l)(a). The State contends (1) that the trial court’s discharge of the jury reverted the case back to its pretrial posture and (2) that the trial court’s order did not meet the definition of “acquittal” because it was not a resolution of all the factual elements of the charged' offense. We disagrée. The trial court was authorized to rule on the timely, renewed motion for a judgment of acquittal under Rule 3.380(c):

If the jury returns a verdict of guilty or is discharged without having returned a verdict, the defendant’s motion may be made or renewed within 10 days after the reception of a verdict and the jury is discharged or such further time as the court may allow.

The trial court order under review can only be characterized as an order granting a motion for a judgment of acquittal prior to a jury verdict—a non-appealable order.

A trial court order granting a “motion for judgment of acquittal before a jury verdict is not one that the state may appeal under section 924.07.” Stone, 42 So.3d at 284-85. In the federal courts, a similar rule governs; cf. United States v. Martin Linen Supply, 430 U.S. 564, 576, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (“[Although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of Acquittal foreclosed retrial and thus barred appellate review.” (citatioji omitted)).

The State’s argument relies on the fact that the trial court rescheduled a new trial before it formally declared a mistrial. The State contends that the prospect of a new trial removes double jeopardy concerns because the case simply reverted to its pretrial posture. We disagree. Lundy’s renewal of his motion for a judgment of acquittal was timely and unaffected by the ministerial act of identifying a date for retrial. The court’s judgment of acquittal, after considering all of the evidence adduced at the trial, represents a resolution in Lun-dy’s favor of some or all of the factual elements of the facts charged. See State v. Gaines, 770 So.2d 1221, 1226 (Fla. 2000) (“[A] trial court’s actions constitute an acquittal for double jeopardy purposes when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements' of the offense charged.’ ” (quoting United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (alteration in original)).

As the order is not within an enumerated category in the applicable jurisdictional statutes, we dismiss the State’s appeal for lack of jurisdiction.

      . The cocaine and marijuana charges were ultimately nolle pressed by the State.


author: SCALES, J.

text:
    Joseph CHANEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1276
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

Joseph Chaney appeals his .sentences in case numbers F06-14973A and F07-18812, which were imposed after he. pled guilty to violating probation in both cases. Because Chaney reserved the right to challenge, on appeal, the trial court’s ruling that he violated probation in case number F07-18812, for the following reasons, %we vacate "Clia-ney’s guilty plea to violating probation in case number F07-18812 and remand for resentencing on case number F06-14973A.

. I. Relevant Factual and Procedural Background

In case number F06-14973A, the State charged Chaney with one count of second degree murder and one count of possession of a firearm by a convicted felon, both offenses occurring on December 29, 2005. While Chaney was incarcerated awaiting trial in case number F06-14973A, the State charged Chaney in case' number F07-18812. with one count of aggravated battery by a prisoner, for breaking the jaw of another inmate on June 1, 2007.

On March 81, 2009, Chaney pled guilty, in ’both cases. The- sentencing order in case number F06-14973A reflects that the trial court sentenced Chaney to seyen years in prison followed by five years of probation on both the second degree murder and possession of a firearm by a convicted felon charges, to run concurrent with each other. The trial court also entered an Order of Supervision spelling out the conditions of Chaney’s probation in case number F06-14793A.

The March 31, 2009 sentencing order in case, number F07-18812 reflects that the trial court sentenced Chaney to six years in prison followed by five years of probation, to run concurrent with Chaney’s sentence in case number F06-14973A. While the sentencing order in case number F07-18812 references that the terms and conditions of Chaney’s probation in case number F07-18812 are “set forth in a separate order entered herein,” (emphasis added), the record reflects no such separate order spelling out Chanéy’s probation conditions in case number F07-18812.

Chaney was released from prison in July 2012; whereupon, he was placed on probation. On January 16, 2015, the State filed Violation of Probation Affidavits against Chaney in case numbers F06-14973A and F07-18812, alleging that Chaney had violated the conditions of his probation by testing positive for marijuana in a urine sample, and by failing to pay ten dollars per month towards the cost of his supervision.

Chaney’s. probation violation hearing was delayed after it became apparent that important pieces of the record were missing. There is no March 31, 2009 sentencing transcript in the record. Also, even though both the lower court docket sheet and the sentencing order in case number F07-18812 state that Chaney was put on probation in that case, there is no Order of Supervision for case number F07-18812. There is only an Order of Supervision in the record for case number F06-14973A, which does not cross-reference case number F07-18812.

After attempts to locate and reconstruct the missing portions of the record proved futile, the trial court, on April 20, 2015, held a probation violation hearing. At this hearing, the trial court found insufficient evidence to prove that Chaney had violated probation for failure to pay money, but did find Chaney in violation for testing positive for marijuana as to case number F06-14973A. The court also found that Chaney was a danger to society for purposes of the VFOSC statute. The hearing adjourned, though, without resolving whether Chaney was in violation of probation as to case number F07-18812.

The probation violation hearing reconvened on May 1, 2015. The State offered Chaney thirteen years in prison to run concurrent in both cases, with all credit for time served, in exchange for Chaney admitting to violating probation in both cases. Chaney accepted the plea. Importantly, not only was Chaney’s plea conditioned upon his ability to withdraw his plea for violating probation in case number F07-18812 should the March 31, 2009 sentencing transcripts be located and demonstrate that Chaney was never placed on probation in that case, but the May 1, 2015 hearing transcript also reflects that the trial court acknowledged that Chaney expressly reserved the right to challenge the court’s ruling that he had violated probation in case number F07-18812 on appeal. See Fla. R. App. P. 9.140(b)(2)(A)(i) (“A defendant who pleads guilty or nolo con-tendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”).

The trial court sentenced Chaney according to the plea agreement to thirteen years on both cases to run concurrent, giving him credit for all of the time he was in jail on both cases. This appeal ensued.

II. ANALYSIS

Chaney argues that the trial court erred in finding that he knowingly violated probation in case number F07-18812 because there is no record evidence that Chaney ever received written notice of the condition of probation (i.e., not to use or possess any drugs or narcotics unless prescribed by a physician) Chaney was found to have violated. We agree. In Davis v. State, 36 So.3d 152, 154 (Fla. 3d DCA 2010), this Court explained that oral pronouncement, alone, of a condition of probation “generally, is not enough.” Rather, “[t]he defendant must be placed on proper written notice of this requirement in order to satisfy due process.” Id. This is accomplished by placing the condition of probation in the written sentencing order or order of supervision. Id. Neither occurred here in case number F07-18812.

As in Davis, we find that Chaney was not given proper written notice of the conditions of his probation in case number F07-18812 so as to satisfy due process. Therefore, irrespective of whether the March 31, 2009 sentencing transcripts are ever located—which would only serve to establish if Chaney was placed on probation in case number F07-18812—we are still compelled to reverse because there is no evidence that Chaney ever received adequate written notice of the conditions of his probation in case number F07-18812.

Accordingly, we vacate Chaney’s guilty plea to violating probation in case number F07-18812 and remand for resentencing for Chaney’s violation of probation in ease number F06-14973A only. There is no need for a second probation violation hearing.

Reversed and remanded with instructions.

      . As discussed infra, Chaney claims that he was never placed on probation in case num- ' her F07-18812, ánd, even if he was placed on probation in case number F07-18812, he was not provided an Order of Supervision memorializing the terms of his probation in that case. Therefore, Chaney argues, the State could not establish that Chaney's testing positive for marijuana constituted a knowing violation of the terms of the probation in case number F07-18812.
      : It is undisputed that, if Chaney had been placed on probation in case number F07-18812, if tire conditions of that probation had been memorialized in writing and were the same as in case number F06-14793A, and if the lower court found both that Chaney violated his probation in case number F07-18812 and that he was a danger to society, Chaney would receive a sentence of at least 26.91 years in prison as a Violent Felony Offender of Special Concern ("VFOSC”). See § 948.06, Fla. Stat, (2015). It is also undisputed that the VFOSC statute does not apply to a violation of probation in case number F06-14973A because the underlying offenses occurred before the effective date of the statute. See 948.06(8)(b)(l), Fla. Stat. (2015). Consequently, if Chaney was never placed on probation in case number F07-18812, or if the State was unable to establish that Chaney knowingly violated the terms of his probation in case number F07-18812, the trial court had significantly more discretion in sentencing Chaney for a violation of probation only in case number F06-14793A.

      . We express no opinion as to the trial court’s resentencing of Chaney for Chaney’s violation of probation in case number F06-14973A. At oral argument Chaney's counsel expressly acknowledged that counsel had advised Chaney of the range of possible sentences that the trial court may, within its sound discretion, impose on remand in the event Chaney’s appeal was successful,

      , We affirm Chaney’s violation of probation in case number F06-14973A without discuss¡on


text:
    Louis Philip LENTINI, as Personal Representative of the Estate of Michael E. Lentini, Jr., Appellant, v. AMERICAN SOUTHERN HOME INSURANCE COMPANY, Appellee.
    Case No. 5D17-326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    Rehearing Denied January 22, 2018
    John N. Bogdanoff, of The Carlyle Appellate Law Firm, The Villages, for Appellant,
    Maureén G. Pearcy and Andrew E. Grigsby, of Hinshaw '& Culbertson LLP, Coral Gables, for Appellee.
   PER CURIAM.

The issue presented in this appeal is whether a collector vehicle insurance policy that restricts coverage requires an insurer to provide uninsured motorist coverage for accidents not involving the collector vehicle. Michael Lentini purchased a collector vehicle insurance policy from American Southern Home Insurance Company for his 1992 Chevrolet Corvette. The policy included $300,000 in coverage for bodily injury and property damage and $300,000 in stacked uninsured motorist coverage. The premium for the policy was $416 per year, $58 of which was for the uninsured motorist coverage. In 2015, Lentini was involved in a fatal accident while riding his' motorcycle. His estate ' sought uninsured motorist coverage for the accident under the collector vehicle policy. American Southern denied the claim.

Lentini’s estate filed suit. In response, American Southern asserted that it was not required to provide uninsured motorist coverage becausé Lentini was not occupying the insured collector vehicle when the accident occurred. Specifically, the collector vehicle policy contained several limitations on the use of the collector vehicle and excluded uninsured motorist coverage “for bodily injury sustained ... [b]y an insured while occupying, or when struck by, any motor vehicle owned by that insured which is not insured for this coverage under this policy.” In addition, the definition of an “insured” under the policy endorsement specified that it applied to Lentini while occupying the “covered auto.” The policy also required Lentini to own a principal means of transportation insured by a separate policy; if he did not, then no coverage would apply to his collector vehicle.

Both parties moved for summary judgment. American Southern relied on Martin v. St. Paul Fire & Marine Insurance Co., 670 So.2d 997, 998 (Fla. 2d DCA 1996), where the court held that section 627.727, Florida Statutes (1992), does “not require a specialty insurance policy covering only an antique-automobile with restricted highway usage to provide uninsured motorist coverage for accidents' not involving the antique.” American Southern argued that it was not required to provide uninsured motorist coverage for the accident because of the special nature of the collector vehicle and the language of the insurance policy. It also pointed out that Lentini’s policy had a reduced premium because the coverage was limited; only specific “collector” vehicles qualified, for such coverage; the coverage limited the use of the vehicle; and the specific policy language limited the liability coverage by restricting the definition of an “insured.” The estate countered that Martin was, wrongly decided, in contravention of both section 627.727, Florida Statutes (2015), and Florida Supreme Court precedent interpreting its provisions.

The trial court opined that Martin appeared to conflict with section 627.727 but concluded that it was bound to follow Martin because it was factually analogous to the instant case. See State v. Washington, 114 So.3d 182, 185 (Fla. 3d DCA 2012) (“While a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to follow it,”). The court entered final' summary judgment in favor of American Southern. This appeal followed. .

Section 627.727, Floridá Statutes, governs “[mjotor vehicle insurance; uninsured and underinsured vehicle coverage; [and] insolvent insurer protection.” It provides, in relevant part:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of'uninsured motor vehicles because of bodily injury, sickness, or- disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

§ 627.727(1), Fla. Stat. (2015). The statute delineates specific limitations that insurers may place on uninsured motorist coverage, which include:

(a) The coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an ' injured person for any 'one accident, except as provided in paragraph (c).
(b) If at the time of the accident the injured person is occupying a motor vehicle, the uninsured motorist coverage available to her or him is the coverage available as to that motor vehicle.
(c) If the injured person is occupying a motor vehicle which is not owned by her or him or by a family member residing with her or him, the injured person is entitled to the highest limits of uninsured motorist coverage afforded for any one vehicle as to which she or he is a named insured or insured family member. Such coverage shall be excess over the coverage on the vehicle the injured person is occupying.
(d) The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.
(e) If, at the time of the accident the injured person is not occupying a motor vehicle, she or he is entitled to select any one limit of uninsured motorist coverage for any one vehicle afforded by a policy under which she or he is insured as a named insured or as an insured resident of the named insured’s household.

See id. § 627.727(9)(a)-(e). In order to limit coverage, however, the insurer must obtain the insured’s written consent on an approved form selecting the limitations on uninsured motorist coverage. Id. § 627.727(1), (9). The parties agree that American Southern did not secure Lenti-ni’s consent to any of these limitations in this case.

The Florida Supreme Court has concluded that uninsured motorist coverage follows a class I insured, not the insured vehicle:

Whenever bodily injury is inflicted upon named insured ... by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to requirements of Section 627.0851.t] They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not “insured automobiles” of [the] named insured.

Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 237-38 (Fla. 1971).

The Court subsequently explained that an insurer may limit uninsured motorist coverage but can only do so if it satisfies “the statutorily-mandated requirement of notice to the insured and obtain[s] a knowing acceptance of the limited coverage.” Gov’t Emps. Ins. Co. v. Douglas, 654 So.2d 118, 120 (Fla. 1995). Without compliance with the statutory exceptions found in section 627.727, an insured is entitled to uninsured motorist coverage. Id. at 120-21; see also Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla. 2000) (“[Provisions in uninsured motorist policies that provide less coverage than required by the statute are void as contrary to public policy.”).

In Martin, the Second District concluded section 627.727 does not apply to antique vehicle policies. 670 So.2d at 1000-01. The court found that while public policy strongly favors requiring uninsured motorist coverage, “the legislature has never intended to mandate class I, family-style uninsured motorist coverage in such a specialty policy.” Id. at 999. The court distinguished Mullís inasmuch as it dealt with “family coverage,” and noted that “such broad uninsured motorist coverage has never been legislatively required for motorcycles or other specialty recreational vehicles.” Id. at 1001. Several policy concerns influenced the court’s decision: an opposite result would increase the cost of coverage on specialty policies; the increased premiums would lead consumers to reject uninsured motorist coverage on antique car policies; and requiring expansive coverage that essentially duplicated family automobile coverage would “force the legislature to amend this statute on yet another occasion in its never-ending efforts to provide cost-effective UM coverage for Florida residents.” Id.

While the concerns raised by the Martin court are understandable, those concerns are more appropriately addressed by the Legislature. Nothing in section 627.727 excludes collector or antique vehicle insurance policies from its application. To the contrary, section 627.727 explicitly states that “[n]o motor vehicle liability insurance policy ... shall be delivered or issued for delivery in this state ... unless uninsured motor vehicle coverage is provided therein.” § 627.727(1), Fla. Stat. (2015) (emphasis added). The only exceptions to this rule are if the “insured named in the policy makes a written .rejection of the coverage,” or if the insurer complies with the statutory mandates for limiting uninsured motorist coverage in section 627.727(9)(a)-(e). Id. § 627.727(1), (9). Here, Lentini did not reject uninsured motorist coverage; instead, he selected stacked uninsured motorist coverage under the collector vehicle policy. Moreover, although American Southern could have obtained Lentini’s informed consent to limit uninsured motorist coverage while occupying a vehicle for which uninsured motorist coverage was not purchased, see id. § 627.727(9)(d), it is undisputed that it made no attempt to do so in this case.

Mullís and its progeny counsel that uninsured motorist coverage follows the class I insured, not the vehicle. 252 So.2d at 237-38. As explained in Douglas, “if the policy exclusion is valid despite noncompliance with -the statute, the provision of section 627.727(9)(d) is rendered meaningless.” 654 So.2d at 120-21. This is not to say that insurance companies cannot limit uninsured motorist coverage in collector or antique vehicle policies. It simply means that in order to do so, the insurer must comply with the statutory mandates of section 627.727(9).

Accordingly, we reverse final summary judgment in favor of American Southern and remand for further proceedings consistent with this opinion. In doing so, we certify conflict with Martin v. St. Paul Fire & Marine Insurance Co., 670 So.2d 997, 998 (Fla. 2d DCA1996).

REVERSED AND REMANDED.. CONFLICT CERTIFIED.

COHEN, C.J., EISNAUGLE, J., and EGAN, R., Associate Judge, concur.

      . There are two types of insureds under automobile insurance policies: class I and class II. "[C]lass I insureds are named insureds and resident relatives of named insureds.” Travelers Commercial Ins. Co. v. Harrington, 154 So.3d 1106, 1109 n.3 (Fla. 2014) (quoting Travelers Ins. Co. v. Warren, 678 So.2d 324, 326 n.2 (Fla. 1996)). "Class II insureds are all other lawful occupants of an insured vehicle who are not the named insureds or a resident relative of the named insured; essentially, they are 'third party beneficiaries to the named insureds’ policy.' " Id (quoting Warren, 678 So.2d at 326 n.2). Class I insureds are entitled to the full benefits of uninsured motorist coverage. See Alamo Rent-A-Car, Inc. v. Hayward, 858 So.2d 1238, 1241 (Fla. 5th DCA 2003). Here, Lentini was a class I insured.

      . Mullís was decided before section 627.0851 was renumbered as section 627.727. See § 627.0851, Fla. Stat. (2015).

      . For this reason, the Martin court’s conclusion that uninsured motorist coverage as delineated in section 627.727 does not apply to antique vehicle policies is untenable. The statute specifically states that no vehicle insurance policy shall issue without uninsured motorist coverage. § 627.727(1), Fla. Stat. (2015). While it would seem logical that the full benefits of uninsured motorist coverage would not apply to a specialty policy based on the reduced premiums and limited use of the vehicle, it falls upon the insurer to obtain the insured’s written informed consent to such policy exclusions under section 627.727(9). Thus, the Martin court’s fear that applying the mandates of section 627.727 to an antique vehicle policy would "force the legislature to amend this statute on yet another occasion” is unpersuasive. See 670 So.2d at 1001.


author: EISNAUGLE, J, COHEN, C.J.,

text:
    Laverne BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1045
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 15, 2017
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EISNAUGLE, J,

Laverne Brown timely appeals from a final judgment and sentence of three years in prison after a jury found her guilty of petit theft, a third-degree felony due to her prior convictions. On appeal, Appellant argues, inter alia, that her state prison sentence violates the Sixth Amendment, as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, because the jury did not find that she presents a danger to the public under section 775,082(10),' Florida Statutes (2015). We find no error and affirm.

Appellant’s sentencing scoresheet totaled 16.4. points. At sentencing, Appellant argued that she should not receive a prison sentence and instead requested a nonstate sentence of one year in .county jail, followed by probation. The trial court rejected her request, orally finding that she presented a danger to the public, and sentenced her instead to three years’ incarceration in state prison. Subsequently, Appellant filed a motion to correct sentencing error, arguing that the trial court erred by failing to make written findings that she presented a danger to the public. The trial court granted her motion, and provided the following written findings:

1. Appellant was convicted of two thefts prior to being convicted of theft and trespass in the instant case: (i) in 2014-CF-014390-A-0, Appellant was convicted of possession of antishoplifting or inventory control device countermeasure and petit theft of $100 or more on February 3, 2016, after she stole merchandise from Macjis; and (ii). in 2014-CF-016501-A-0, she was convicted of grand theft third-degree on March 11, 2015, after she stole merchandise from Walmart.
2. She has a pattern, of complaining about chest pains when confronted with the thefts, and using her father’s illness and demise as an excuse for her criminal behavior.
3. Appellant’s convictions in February and March 2015 did not deter her from committing the crimes in the instant case.
4. A probationary sentence would be a waste of resources because the trial court has no confidence that she will stop stealing.
5. Based ■ upon her actions, the trial court finds' that Appellant will continue to steal, and is therefore a danger to the community.

Shortly thereafter, Appellant filed a second motion to correct sentencing error, this time arguing that her sentence' is unconstitutional because it violates the Sixth Amendment. The trial court denied this motion.

Appellant raises one issue on appeal that merits discussion. She argues that her sentence violates the Sixth Amendment and Apprendi because the trial court enhanced her sentence above the statutory maximum based upon the trial court’s conclusion that she presented a danger to the public. Section 775.082(10) provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a noristate prison sanction. Éowever, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The maximum sentence for an. offender convicted of a third-degree felony, like Appellant, is five years in state prison. § 775.082(3)(e), Fla. Stat. (2015). Appellant essentially argues that the first sentence of subsection (10) creates a second, lower statutory maximum for qualifying offenders like her, and that the application of the second .sentence by the trial court, in the absence of a jury finding that she is a “danger to the public,” is an unconstitutional enhancement above that second statutory maximum.

This argument is without merit; Section 775.082(10), by its clear language, is not an upward departure statute, but rather, provides for mandatory mitigation based on two criteria. See Porter v. State, 110 So.3d 962, 963 (Fla. 4th DCA 2013). Pursuant to the statute, an offender is entitled to mandatory mitigation when (1) he or she scores twenty-two points or fewer, unless (2) a nonstate prison sanction could present a danger to the public. Contrary to Appellant’s argument, the two sentences in subsection (10) cannot be read separately to create both a second statutory maximum and a separate enhancement. Rather, they operate together to create an entitlement to mandatory mitigation for those offenders who satisfy both criteria.

A review of the United States Supreme Court’s opinions in Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), helps to illustrate the error in Appellant’s argument. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Later, in Blakely, Justice Sca-lia, writing for the majority, explained that to identify the statutory maximum, we need simply look to the punishment authorized by the jury’s verdict. 542 U.S. at 303,124 S.Ct. 2531 (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (citation omitted)). In other words, Apprendi is only implicated “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow.” Id. at 304, 124 S.Ct. 2531 (emphasis added).

Apprendi is not implicated here for at least two reasons. First, Appellant’s sentence was fully authorized by the jury’s verdict and is therefore not above the statutory maximum. In fact, the jury’s verdict authorized a sentence of five years in state prison—far more than the sentence Appellant received here. See § 775.082(3)(e), Fla. Stat. (2015). Thus, Appellant’s three-year sentence is not an upward departure due to judicial fact-finding. Rather, the trial court simply determined that although Appellant met the first factor for mitigation, she did not meet the second.

The essence of Appellant’s argument is that she was entitled to the benefit of mitigation based upon her satisfaction of half of the factors adopted by the Legislature. Appellant cannot have it both ways. If she wants the trial court to consider mitigation of her sentence, then she must qualify based on the entire formula—including that she does not present a danger to the public. Otherwise, she is entitled to sentencing pursuant to the statutory maximum of five years’ imprisonment just like every other defendant convicted of a third-degree felony. In sum, Appellant’s sentence is constitutional because it is well within the five-year maximum sentence authorized by the jury.

Given this reality, the dissent attempts to seize upon other language in Blakely to support its position. It is true, as the dissent notes, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (emphasis in original). However, the jury’s verdict authorized the trial court to sentence Appellant to five years in state prison before the trial judge considered the additional findings contemplated by section 775.082(10). As Judge Osterhaus has aptly observed, the consideration of a scoresheet itself amounts to judicial fact-finding outside the purview of the jury, and therefore cannot meet Blakely’s definition of a statutory maximum. See Woods v. State, 214 So.3d 803, 816 (Fla. 1st DCA 2017) (Oster-haus, J., concurring in affirmance) (“Ap-prendi and Blakely instruct us not to redefine statutory máximums based upon facts found at sentencing, like the scoresheet score here.”). Stated differently, the total sentence points reflected in the scoresheet cannot set the statutory maximum because the jury does not determine an offender’s score and will rarely make all of the other scoresheet findings. Thus, the dissent’s reliance on this language in Blakely is misplaced.

The dissent further misconceives Blakely insisting that “Justice Scalia rejected the precise argument the majority relies upon to justify affirmance in this case.” Specifically, the dissent notes that in Blakely the government maintained the statutory maximum was ten years rather than the range of forty-nine to fifty-three months. Yet the distinction here is obvious. In Blakely, the defendant’s plea authorized a maximum sentence of no more than fifty-three months. The ten-year maximum in that case, in contrast, served to limit any upward departure sentence imposed by the judge above the forty-nine to fifty-three months range. Unlike in Blakely, the jury’s verdict in this case authorized a sentence well above the one imposed.

Second, we need only consider the way section 775.082(10) operates to confirm that it is a mitigation statute. Section 775.082(10) never increases an offender’s sentence. Rather, when an offender qualifies, it reduces the sentence from a five-year maximum in state prison to a non-state sanction. Notably, unlike in Apprendi and Blakely, if the statute here were struck down as unconstitutional, then Appellant’s sentence would stand because it is well within the maximum sentence authorized for the crime she committed. See, e.g., Woods v. State, 214 So.3d 803, 812 (Fla. 4th DCA 2017) (Makar, J., concurring in affirmance) (concluding tliat “[sjubsection 775.082(10) is unconstitutional under Ap-prendi and Blakely, and the appropriate remedy is to allow for respntencing under the prior version of the sentencing statute.”). To be sure, if the trial court unconstitutionally enhanced Appellant’s sentence above the statutory maximum as Appellant argues, striking the offending statute down should result in a lower sentence for Appellant (as in both Apprendi and Blakely). Yet, here it does not. Thus, we can be certain that section 775.082(10) is a mitigation statute, and not one that unconstitutionally allows an increase in the statutory maximum based upon judicial fact-finding.

Ironically, if section 775.082(10) were struck down, qualifying defendants convicted of third-degree felonies would lose the benefit of mandatorily mitigated sentences—all in the name of protecting their Sixth Amendment rights. But that would make no sense at all. The Sixth Amendment does not protect a defendant from a reduced sentence. :

AFFIRMED.

PALMER, J., concurs.

COHEN, C.J., dissents with opinion.

COHEN, C.J.,

dissenting.

The suggestion that Brown’s argument is “without merit” would come as a shock to the late Justice Antonin Scalia, who authored Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The majority’s effort to distinguish the facts of this case from those in Blakely is unavailing. The majority blindly seizes upon a concept it labels “mandatory mitigation,” relying jon Porter v. State, 110 So.3d 962 (Fla. 4th DCA 2013). That is not a concept found in the constitutional jurisprudence of Apprendi, Ring, or Blakely.

In Blakely, the defendant pleaded guilty’ to the kidnapping of his estranged wife. 542 U.S. at 298,124 S.Ct. 2531. The events leading to his conviction occurred in Washington State. Id. Blakely’s charge constituted a “class B” felony under Washington law, which was punishable by up to 10 years in prison. Id. at 299, 124 S.Ct. 2531. However, Washington’s Sentencing Reform Act further limited the sentencing range for certain crimes. Id. Blakely’s charge of second-degree kidnapping, for example, was subject to a sentencing “standard range” of 49 to 53 months. Id. The Act, similar to section 775.082(10), Florida Statutes (2015), allowed a trial court to impose a greater sentence if the court found “substantial and compelling reasons justifying an exceptional sentence.” Id. (citing Wash. Rev. Code Ann. § 9.94A.120(2)). The Act listed non-exclu-siv’e aggravating factors that justified a departure sentence. Id. (citing Wash. Rev. Code Ann. § 9.94A.390). Nonetheless, the justification for a departure sentence was required to be based on “factors other than those which are used in computing the standard range sentence for the offense.” Id. (citing State v. Gore, 143 Wash.2d 288, 21 P.3d 262, 277 (2001)). This is precisely what section 775.082(10), Florida Statutes, attempts.

The trial court in Blakely imposed a 90-month sentence, outside the standard range set forth in the Act. Id. at 300, 124 S.Ct. 2531. The court found that Blakely acted with “delibérate .cruelty,” one of the statutorily enumerated grounds for a departure sentence in domestic violence cases. Id. (citing Wash. Rev. Code Ann. § 9.94A.39Ó(2)(h)(iii)). As does Brown, Blakely argued on appeal that the “sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.” Id. at 301,124 S.Ct. 2631.

Notably, in Blakely, Justice Scalia rejected the precise argument the majority relies upon to justify affirmance in this case. The government argued that the statutory maximum was not the 53 months provided for in the Act but was, instead, the 10-year maximum sentence for class-B felonies. Justice Scalia wrote, apparently not clearly enough, that:

[T]he “statutory maximum” for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.... In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority. ' ' •

Id. at 303-04, 124 S.Ct. 2531 (citations omitted).

The majority’s assertion that “Appellant’s sentence was fully authorized by the jury’s verdict” is simply untrue. Section 775.082(10) expressly prohibited a state prison sentence in Brown’s case unless and until there was an additional finding that she constituted a danger to the public. Thus, the question is: what facts did Brown’s jury find to justify a sentence above that allowed pursuant to section 775.082(10)? The answer is none. The jury found that Brown stole merchandise from Walmart. No more, no less. Blakely did not admit nor did a jury determine that he acted with “deliberate cruelty.” Brown did not admit nor did a jury determine that she constituted a “danger to the public.” Moreover, Brown’s prior convictions were already factored into the sentencing scheme set forth in section 775,082(10), which provides the only sentence a court may impose without the necessity of an additional finding beyond that determined by the jury’s verdict.

The majority simply rewrites the statute by stating “an offender is'entitled to .mandatory mitigation when (1) he or she scores twenty-two points or fewer, unless (2) a nonstate prison sanction could present a danger to the public.” This literally turns the statute on its' head. Section 775.082(10) requires the court to sentence a qualifying defendant to a non-state sanction unless the court makes an additional finding that the defendant is a danger to the public. The statute does not state that a defendant is subject to the provisions of section 775.082(3)(e) unless the court finds that he or she does not present a danger to the public. The majority effectively creates a presumption'for a state prison sentence, unless the offender satisfies both prongs of its “mandatory mitigation” test. Nowhere in the statute are the words “mandatory mitigation” used, nor does the statute put the burden of proof on the defendant to establish a lack. of future dangerousness.

The gravamen of Apprendi is the fundamental role of the jury within the criminal justice system, so cavalierly dismissed by the majority. As articulated by Justice Scalia:

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.

Id. at 305-06 (citations omitted). The majority’s reliance on the newfound concept it labels “mandatory mitigation” does not alter the constitutional framework set out in Apprendi and Blakely.

Equally unavailing is the argument that properly applying Blakely would subject Brown to a greater sentence than that imposed by the trial court. That argument is a classic red herring. As recognized in Blakely, the sentencing scheme itself is not unconstitutional. The only issue is how it can be implemented. The answer is straightforward: the “danger to the public” finding must be determined by the jury or be capable of determination from the jury’s findings. The mechanics are not complicated; the bifurcation of trials is not a new concept to trial courts.

I dissent.

      . The dissent describes the mandatory mitigation required by section 775.082(10) as a "newfound concept.” If the Legislature indeed created an entirely new concept when it adopted section 775.082(10), it had every right to do so.

      . The dissent proclaims that our decision "emphasizes the Legislature’s right to create a ‘newfound concept’ yet ignores that same Legislature's right to restrict the number and type of individuals being sent to state ppison.” We cannot agree that upholding both sentences in section 775.082(10), as written by the Legislature, somehow ignores the Legislature’s rights.

      . In Apprendi, the defendant pled to a second-degree felony punishable by up to ten years’ imprisonment. At sentencing, the trial court enhanced the sentence to twelve years, based upon a separate ‘‘hate crime” statute after judicially finding that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” 530 U.S. at 468-71, 120 S.Ct. 2348 (quoting N.J. Stat. Ann. § 2C:44~3(e) (West Supp. 1999-2000)). Likewise, in Blakely, the defendant pled to second-degree kidnapping with use of a firearm which carried a maximum penalty of fifty-three months. 542 U.S. at 299, 124 S.Ct. 2531. At sentencing, however, the trial court imposed an "exceptional” sentence of ninety months, based on authorization from a separate statutory provision, after judicially determining that the defendant acted with "deliberate cruelty.” Id. at 299-300, 124 S.Ct. 2531.

      . The dissent seems to suggest that this observation is a "red herring”- because the statute could be applied in a way that requires the jury to find that an offender presents a danger to the public. However, the statute very clearly authorizes the judge to make this finding. We therefore decline the dissent's invitation to rewrite the statute.

      . See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . A jury in the context of Jimmy Ryce Act proceedings determines a variation of future dangerousness. See Westerheide v. State, 831 So.2d 93, 98 (Fla. 2002) (explaining that defendants in Jimmy Ryce proceedings have the right to trial by jury, and "the Ryce Act requires a jury to find by clear and convincing evidence that the person is a violent sexual predator who has a mental abnormality that predisposes the person to commit sexually violent offenses and that the person is likely to reoffend if not confined iri a secure facility”).

      . Ironically, the majority emphasizes the Legislature’s right to create a “newfound concept” yet ignores that same Legislature’s right to restrict the number and type of individuals being sent to state prison. The Legislature did not. create this newfound concept—the.court in Porter did. In my view, this Court errs in following a flawed analysis.

      . In fact, if Brown had not waived a jury finding as to her prior theft convictions, the trial would have been bifurcated in the first instance. See, e.g., Smith v. State, 771 So.2d 1189, 1191 (Fla. 5th DCA 2000) ("[I]n seeking a conviction for felony petit theft, the state must specifically allege in the charging document the two or more prior petit theft convictions, the existence of which are not to be disclosed to the jury during the initial trial, and after conviction prove their existence beyond a reasonable doubt in a bifurcated proceeding before the same jury, unless a jury has been waived by the defendant.”).


author: FERNANDEZ, J.

text:
    Jasmine ALEXANDER and Clever Alexander, Appellants, v. WELLS FARGO BANK, N.A., etc., Appellee.
    No. 3D17-933
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    Jasmine Alexander and Clever Alexander, in proper persons.
    Bryan Cave LLP, W. Bard Brockman (Atlanta, GA) and Zina Gabsi, for appellee.
    Before FERNANDEZ, LOGUE and LINDSEY, JJ.
   FERNANDEZ, J.

Appellants, Jasmine Alexander and Clever Alexander (collectively “Alexander”), appeal the trial court’s order dismissing their counterclaim against Wells Fargo Bank, N.A. (“Wells Fargo”). We dismiss the appeal as taken from a non-final, non-appealable order. See Amaya v. Vazquez, 150 So.3d 1203 (Fla. 3d DCA 2014) (citing S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla. 1974)). On remand, Alexander may seek leave of court to file an amended answer and counterclaim, if appropriate, that complies with the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.110; Fernandez v. Barry University, Inc., 973 So.2d 1240 (Fla. 3d DCA 2008); Cash v. Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001); Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1992).


author: SUAREZ, J.

text:
    Irena IVKO, Appellant, v. Igor GER, Appellee.
    No. 3D17-228
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017.
    Irena Ivko, in proper person.
    Kenneth M. Kaplan, for appellee.
    Before SUAREZ, LAGOA, and LUCK, JJ.
   SUAREZ, J.

Irena Ivko (the “Mother”) appeals from an order of the trial court granting Igor Ger’s (the “Father”) motion to transfer jurisdiction over child support/visitation issues from Florida to Pennsylvania, where Mother and children now reside. We reverse. I

In October 2011, the Miami-Dade Circuit Court entered an order adjudicating paternity, finding Igor Ger the biological father of the two minor children. The court retained jurisdiction over child support, visitation and other child welfare issues. In December 2011, an order on temporary child support issued ordering the Father to pay child support. In 2012, the Mother was allowed to relocate from Florida to Pennsylvania with the minor children, where they, currently reside. At the same time, the trial court issued an order transferring the entire case to Pennsylvania. The State of Florida, Division of Child Support Enforcement, filed a motion to vacate on the grounds that, pursuant to Florida Rule of Civil Procedure 1.060, the trial court did not have jurisdiction to transfer the case out of the State of Florida. The trial court vacated the order and jurisdiction remained in Miami-Dade County,- Florida. Pending at that time, and still pending, is the Mother’s motion through the Uniform Interstate Family Support Act (“UIFSA”), chapter 88, Florida Statutes (2012) for a determination of permanent child support.

In November 2016, the Father filed a motion to transfer jurisdiction from Miami-Dade County to Bucks County, Pennsylvania, asserting several bases that are unsupported by the record on appeal. The Mother objected, seeking to keep enforcement of child support in Florida. The trial court granted the Father’s motion to transfer the entire case to Pennsylvania, once again specifically stating that Pennsylvania shall have jurisdiction over all time sharing and child support matters. The Mother timely filed this appeal.

We reverse the trial court’s order on two grounds. First, the trial court cannot transfer the child support matters to Pennsylvania where, given the facts of this case, the requirements and procedures of the UIFSA were not met. Second, and more importantly, the trial court has no authority to transfer the case out of the State of Florida pursuant to the rules of civil procedure and the family law rules governing transfers of actions.

Section 88.20S1 of the UIFSA controls the outcome of this issue. Section 88.2051(l)(a) mandates that a tribunal that has issued a child support order retains continuing, exclusive jurisdiction to modify its • order where that state remains the residence of either the obligor or the obli-gee, or remains the residence of the child for whose benefit the support order was issued or, pursuant to section 88.2051(2)(a), until all of the parties who are individuals have filed written consents with the Florida tribunal for a tribunal of another state to modify the order and assume continuing exclusive jurisdiction. See § 61.13(l)(a)(2), Fla. Stat. (2017) (“The court initially entering an order requiring one or both parents to make child support payments has continuing .jurisdiction after the entry of the initial order to' modify the amount and terms and conditions of the child support payments .... ”); Poliak v. Poliak, 235 So.2d 512, 514 (Fla. 2d DCA 1970) (holding the law of .Florida is well settled that a circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach their majority); see also Yurgel v. Yurgel, 572 So.2d 1327, 1332 (Fla. 1990) (“[jurisdiction must be presumed to continue once it is validly acquired under section 61.1308; and it continues up until a Florida court expressly determines on some other basis that jurisdiction no longer is appropriate, until virtually all contacts with Florida have ceased. ... ”); cf. Trissler v. Trissler, 987 So.2d 209 (Fla. 5th DCA 2008) (noting statutory requirements for Florida’s modification of another state’s .child support order similar .to those required under UIFSA). .

Florida retains continuing jurisdiction to modify this child support order pursuant to the UIFSA, but on this record does not have the authority to transfer the issue to Pennsylvania absent a showing that the statutory exceptions to modification exist. The record shows that the Mother and children now reside in Pennsylvania. The record also indicates that the Father resided in Florida at the time of the entry of the child support order and admits that he is still a Florida resident. Indeed, the opposing motions regarding the transfer of jurisdiction indicate the parties have not consented on the record that the Pennsylvania court, which has jurisdiction over the Mother, may modify the Florida child support order and assume continuing jurisdiction pursuant to section 88.2051(2)(a), Florida Statutes (2017). See also Sootin v. Sootin, 41 So.3d 993, 994 (Fla. 3d DCA 2010) (“[T]he correct procedure under UIFSA is to register the spousal support judgment in another state for enforcement there. Even after registration, however, the foreign court must send the case back to the Florida court to consider any modification of the order. Under the UIFSA, out-of-state courts may enforce Florida spousal support orders but may not modify them.” (citations omitted)).

Second, on a more basic level, and as in 2012, the trial court has no authority to transfer the entire paternity / child support case out of the State of Florida. Pursuant to Florida Rule of Civil Procedure 1.060(b), the court may only transfer to any county in the State where it might have been brought in accordance with the venue statutes, not to another state. See Fla. Fam. L.R.P. 12.060(b) (amended March 2017 to mirror the language of Fla. R. Civ. P. 1.060).

We conclude that continuing jurisdiction to modify the child support order remains with the Miami-Dade Circuit court. We therefore reverse the trial court’s order transferring the case to Pennsylvania, and remand for any further proceedings consistent with this opinion. The -State of Florida Child Support Division continues to retain the authority to enforce any child support order that may have been issued.

Reversed and remanded.

      . Further, if a child support order of Florida is modified, by a tribunal of another state pursuant to the UIFSA or a substantially similar law, the Florida tribunal loses its continuing exclusive jurisdiction with regard to prospective enforcement of the order issued in Florida and may only enforce the order that was modified as to amounts accruing before the modification, or enforce non-modifiable aspects of that order, and provide other appropriate relief for violations of that order which occurred before the effective date of the modification. § 88.2051(3), Fla. Stat. (2017). There is nothing in the record to indicate that this has occurred.

      . The Father asserted in his "Reply” (read, Answer) Brief that "neither of the parties were residents” of Florida. But in his recently filed motion to this Court to amend his Answer Brief to correct what he asserts is a "scrivener’s error,” he states that the “corrected evidence should state that the Appellee / Father is a resident of Florida and New York.” The complete misstatement of a dis-positive fact on appeal cannot be considered a "scrivener's error.” The Appellee’s statement of the facts in this appeal has been, to say the least, stretched beyond credulity.

      . In his “Reply”, (read, Answer) Brief in this appeal, the Father alleges that on January 4, 2017, the trial court held ap “evidentiary” hearing on Father’s November 1, 2016 motion to transfer jurisdiction of this case to Pennsylvania. The trial court’s docket, however, indicates that the proceeding that took place on January-4, 2017 was not an eviden-tiary hearing, but rather a five-minute motion calendar hearing. The difference between a brief motion calendar hearing and an eviden-tiary hearing is very clear to this Court.