author: Artau, Edward L., Associate Judge.

text:
    Jeffrey KOGAN, Appellant, v. Scott ISRAEL, as Sheriff of Broward County, Florida, Appellee.
    No. 4D15-1848
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Tonja Haddad Coleman of Tonja Had-dad, PA, Fort Lauderdale, for appellant.

      Alexis Fields, Jonathan M. Streisfeld and David L. Ferguson of Kopelowitz Os-trow Ferguson Weiselberg Gilbert, Fort Lauderdale, for appellee.
   Artau, Edward L., Associate Judge.

Jeffery Kogan, a law enforcement officer, sued his employer, Scott Israel as Sheriff of Broward County (“BSO”), under section 112.3187, Florida Statutes (2013) (the “public Whistle-blower’s Act”). In his complaint, Kogan alleged that he was demoted from a homicide detective to a road patrol deputy after he reported an instance of possible excessive use of force by the Fort Lauderdale Police Department (“FLPD”) and assisted with the ensuing investigation. The matter proceeded to trial and the jury found in Kogan’s favor. Following the verdict, BSO moved for a new trial claiming juror misconduct. The court granted BSO’s motion, and Kogan appeals. BSO cross-appeals, challenging the sufficiency of the evidence supporting the jury’s verdict. We affirm in all respects.

Background

The evidence at trial established that Kogan witnessed a FLPD officer release a canine on a suspect during a joint apprehension effort involving BSO and FLPD. At the time the canine was released, the suspect was sitting with his hands behind his back. Kogan could not tell if the suspect was handcuffed, but due to the suspect’s position, was concerned that the canine deployment may have been inappropriate. Kogan expressed his concerns to his immediate supervisor on the scene pursuant to BSO’s chain of command policy, but felt that the issue got shrugged-off. His supervisor, on the other hand, testified that Kogan did not adequately convey his concerns and instead only expressed frustration over the fact that the dog bite caused the suspect to go to the hospital instead of to the police station for an interview.

A few days after the suspect was arrested, Kogan ran into the state attorney assigned to the case. Kogan expressed his concern over the use of the canine to the state attorney, who in turn, contacted the state’s special prosecutions unit. Eventually, special prosecutions contacted the Florida Department of Law Enforcement (“FDLE”) which began investigating the matter. As part of its investigation, FDLE called Kogan and asked him to come in for a recorded statement. Kogan called his supervisor and informed him of FDLE’s request. The next day, Kogan’s supervisor summoned Kogan to a meeting with the homicide command staff.

At that meeting, Kogan’s command staff asked Kogan to fill them in on the events leading up to the FDLE investigation. Ko-gan reiterated his concerns, his communications with the supervisor at the scene, and his encounter with the state attorney. Kogan’s captain testified that he made the decision to transfer Kogan at that meeting. However, Kogan was not immediately notified of this decision and instead, was told that he would be removed from the homicide rotation until things “cooled down.” Kogan gave a statement to FDLE. A few weeks later, he was summoned by FDLE to provide a second statement. The day he provided the second statement, Kogan received an email notifying him that he was being transferred out of homicide to road patrol. Kogan was given four days’ notice of the transfer and was not debriefed pursuant to the procedure set forth in BSO’s policy manual. The only explanation Kogan was given for the transfer was that the homicide department “was going in a different direction.”

Prior to Kogan’s statement to FDLE, he had nothing but positive performance evaluations. He also was selected to represent his department in a national TV show which documented the homicide investigation process. Kogan continued to work on the TV show after he was removed from the the homicide rotation. After Kogan filed his lawsuit, BSO asserted that Kogan was transferred because Kogan did not properly document the canine incident causing the homicide command staff to “lose faith” in him.

The jury found that Kogan proved by the greater weight of the evidence that his disclosure and/or participation in the FDLE investigation was “the substantial motivating cause that made a difference in BSO’s decision to demote/transfer Kogan from a homicide detective to a deputy road patrol.” It further found that BSO offered a legitimate, non-retaliatory reason for demoting/transferring Kogan, but that Ko-gan proved by the greater weight of the evidence that BSO’s stated reason was a pretext for retaliation.

BSO then moved for a new trial and a judgment notwithstanding the verdict (“JNOV”). As grounds for a new trial, BSO asserted that after the jury rendered its verdict, it learned that one of the jurors, Juror 3, failed to disclose that her son had been arrested despite being asked about her family’s arrest history on the juror questionnaire. As grounds for a JNOV, BSO argued that Kogan did not prove he participated in a protected activity as he did not “blow the whistle on his employer.” Additionally, BSO argued that Kogan failed to offer evidence establishing a causal connection between the protected activity and his transfer, or proving that BSO’s legitimate, non-retaliatory reason for transferring Kogan was a pretext.

The court conducted an evidentiary hearing on the juror misconduct issue where it examined the voir dire transcript and interviewed Juror 3. Following the hearing, the court granted BSO’s motion for a new trial. It later entered an order denying BSO’s motion for JNOV.

Analysis

a) Order Granting New Trial

“The standard of review of a trial court’s order granting a new trial because of juror concealment of information is abuse of discretion. If reasonable people could differ as to the propriety of the court’s ruling, then the abuse of discretion standard has not been met.” Hoang Dinh Duong v. Ziadie, 125 So.3d 225, 227 (Fla. 4th DCA 2013) (quotations omitted).

The Florida Supreme Court has outlined a three part test for determining whether a juror’s nondisclosure of information during voir dire warrants a new trial. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995). “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id.

“Courts evaluate materiality based on the ‘circumstances of each case’ using the following test: ‘Nondisclosure is considered material if it is substantial and important so that if the facts were known, the [moving party] may have been influenced to peremptorily challenge the juror from the jury.’ ” Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 428 (Fla. 4th DCA 2014) (quoting Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 341 (Fla. 2002)).

Kogan argues that BSO was not entitled to a new trial because it failed to establish that Juror 3’s nondisclosure was material to her jury service. Kogan’s position is based on the fact that four of the six jurors selected indicated either they or a family member had been arrested, two of whom were not asked questions by either side about their answers. Kogan maintains that if the arrest information was indeed material, BSO would have used its peremptory strikes on these jurors, or at the very least, made sure to question each of them about their answer. Kogan’s argument is reasonable. However, we must affirm if a reasonable person could also take the view adopted by the court.

The court ruled that Juror 3’s nondisclosure was material because:

The record reveals that the [BSO’s] focus during voir dire was to inquire into and learn of the prospective jurors’ feelings toward law enforcement. Specifically, [BSO] sought to obtain information regarding any bad experiences the prospective jurors may have had with law enforcement, including: (1) arrests; (2) whether any were a victim of a crime; and (3) whether any had friends or family members who were or are employed in law enforcement. Juror No. 3’s failure to disclose her son’s arrests prevented [BSO] from inquiring into the circumstances of the arrests and her feelings towards law enforcement as a result of these arrests. In fact, Juror No. 3’s nondisclosure led [BSO] to believe that Juror No. 3 harbored no negative feelings toward law enforcement. The court finds that Juror No. 3’s nondisclosure was further compounded by her disclosure .that two of her children are employed by BSO, and that they are happy with their assignments within the agency.
Second, the fact that Juror No. 3 sat through approximately three (3) hours of voir dire while both sides asked questions as to whether any prospective jurors had any bad experiences with law enforcement (e.g, employment related, friends or family of law enforcement, victims of crimes, arrests), without saying a word, raising her hand, or disclosing that her son had been arrested twice, does not sit well with this Court.

The court’s findings are supported by ■ the record, which establishes that almost every question posed during voir dire by either side concerned law enforcement in some shape or form. When viewed in its entirety, it is clear that the parties’ main goal during voir dire was to decipher whether any of the panel members held biases towards law enforcement. Under these circumstances, a reasonable person could certainly take the view that Juror 3 failed to disclose material information. Accordingly, we find that the court did not abuse its discretion in granting a new trial.

b) Denial of BSO’s Motion for JNOV

A trial court’s ruling on a motion for JNOV is reviewed de novo. Kurnow v. Abbott, 114 So.3d 1099, 1101 (Fla. 1st DCA 2013). “A JNOV is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-movant. A jury verdict must be sustained if it is supported by competent substantial evidence.” Hancock v. Schorr, 941 So.2d 409, 412 (Fla. 4th DCA 2006) (internal citation omitted).

Florida’s public Whistle-blower’s Act prevents retaliatory action against employees and persons who disclose certain types of government wrongdoing to appropriate officials. See § 112.3187(2)-(7), Fla. Stat. (2013). To establish a prima facie case for retaliation under the public Whistle-blower’s Act, a plaintiff must demonstrate that: “(1) the plaintiff engaged in statutorily protected expression; (2) the plaintiff suffered an adverse employment action; and (3) there is some causal connection between the two events.” Rustowicz v. N. Broward Hosp. Dist., 174 So.3d 414, 419 (Fla. 4th DCA 2015).

As grounds for a JNOV, BSO argued that Kogan did not prove he participated in a statutorily protected activity as he did not “blow the whistle on his employer,” Additionally, BSO argued that Kogan failed to offer evidence establishing a causal connection between the protected activity and his transfer, or proving that BSO’s legitimate, non-retaliatory reason for transferring Kogan was a pretext.

i) Textual Interpretation of the Statute and its Applicability

The public Whistle-blower’s Act prohibits an agency or independent contractor from either dismissing, disciplining, or taking any adverse personnel action against an employee, or taking adverse action that affects the rights or interests of a person for the employee’s or person’s disclosure of certain information. § 112.3187(4)(a)-(b), Fla. Stat. (2013). The “information” disclosed must concern:

(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

§ 112.3187(5), Fla. Stat. (2013).

Pertinent to this case, “employees and persons ... who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity” are protected under the public Whistle-blower’s Act. § 112.3187(7), Fla. Stat. (2013).

Although there is no dispute that Kogan was requested to participate in an FDLE investigation and, as part of that investigation, disclosed a “suspected violation” of a law which may have created a danger to the public’s health, safety, or welfare, BSO maintains that Kogan’s activity was not protected because the disclosed information did not pertain to his employer, BSO. As Justice Canady aptly explained, courts must look to the plain language of a statute when construing it. State v. Hackley, 95 So.3d 92, 93 (Fla. 2012). Here, the court need only look to the text of the public Whistle-blower’s Act in rejecting BSO’s argument.

The public Whistle-blower’s Act does not require that the disclosed information concern the disclosing party’s employer. The text provides, in part, that the nature of the information disclosed must include “[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.” § 112.3187(5)(a), Fla. Stat. (2013) (emphasis added). There is nothing in the text which limits the nature of the disclosed information to information concerning the discloser’s own agency. Instead, “agency” is specifically defined in the text of the statute as “any state, regional, county, local, or municipal government entity, whether executive, judicial, or legislative; any official, officer, department, division, bureau, commission, authority, or political subdivision therein; or any public school, community college, or state university.” § 112.3187(3)(a), Fla. Stat. (2013) (emphasis added). Clearly, this includes the full spectrum of Florida state and local government and is not limited to the particular agency that employs the Whistle-blower. If it were so, the legislature would have told us when they defined what they meant by an “agency”, or otherwise in the text of the statute.

BSO cites Castro v. School Board of Manatee County, for the proposition that: “[t]he FWA [public Whistle-blower’s Act] does not protect an employee who is complaining about the actions of another agency or third party,” 903 F.Supp.2d 1290, 1303 (M.D. Fla. 2012). As a federal trial court order, it is not binding on this court. Moreover, it is in conflict with the text of the public Whistle-blower’s Act. In support of its reasoning, the Middle District cited to a Third District case, Juarez v. New Branch Corp., 67 So.3d 1169 (Fla. 3d DCA 2011). However, Juarez interpreted Florida’s private Whistle-blower’s Act. Id. at 1160. The private Whistle-blower’s Act differs from the public Whistle-blower’s Act and plainly limits its protection to an “employee” who has disclosed, objected to, refused to participate in or provided information in connection with an investigation about “an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation.” § 448.102, Fla. Stat. (2013) (emphasis added). As discussed in greater detail above, unlike the private Whistle-blower’s Act, the public Whistle-blower’s Act expands its coverage to disclosures and investigations involving an agency as defined in the statute; not just that of the employing agency. The legislature could have likewise limited the application of the public Whistle-blower’s Act to that of the employing agency. It chose not to do so. It is axiomatic that the text of a statute governs its applicability. Accordingly, we reject BSO’s argument and decline to follow Castro.

ii) Causal Connection

In addition to its statutory argument, BSO maintains that Kogan failed to meet the causal connection element for a Whistle-blower cause of action. “Causation may be proved by direct or circumstantial evidence,” Rustowicz, 174 So.3d at 425, “[T]he typical [Whistle-blower’s] case relies upon circumstantial evidence of causation.” Id. “Close temporal proximity between the protected activity and the adverse employment action can show that the two events were not wholly unrelated”. Fla. Dep’t of Children & Families v. Shapiro, 68 So.3d 298, 306 (Fla. 4th DCA 2011).

There was evidence before the jury that the morning after Kogan notified his supervisor that he was summoned to give a statement to the FDLE, his supervisor asked Kogan to report to the station to meet with the homicide command staff. During that meeting, Kogan was asked to outline what he saw during the arrest. Kogan’s captain admitted on the stand that as a result of that meeting, he made a decision to transfer Kogan. Kogan was notified of his transfer on the same day he was summoned to provide a second statement to FDLE. Taken in the light most favorable to Kogan, this evidence supports the jury’s finding that a causal connection existed between Kogan’s participation in the FDLE investigation and his transfer. See Kearns v. Farmer Acquisition Co., 157 So.3d 458, 467 (Fla. 2d DCA 2015) (reversing directed verdict entered in favor of employer in private Whistle-blower’s claim because employee who was terminated the day after he provided protected information presented sufficient evidence of a causal connection to send the issue to the jury).

Hi) Pretext

Next, BSO argues that Kogan failed to prove that BSO’s reason for transferring Kogan was a pretext. BSO presented evidence establishing that BSO’s proffered reason for transferring Kogan was that his command staff “lost faith in him” due to his failure to properly document and report what he perceived to be a possible crime. Thus, the burden shifted to Kogan to prove that BSO’s proffered reason was a pretext. See Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1133 (Fla. 4th DCA 2003) (once the employer has proffered a legitimate, non-retaliatory reason for the adverse employment action, the burden shifts to the plaintiff to prove “by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.” (quotation omitted)).

“Pretext is established ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 25 (Fla. 3d DCA 2009) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “[T]o show that the employer’s reasons were pretextual, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.” Id. (quotations omitted).

“When the employer’s reasons are shown to be false, this provides circumstantial evidence probative of intentional discrimination.” City of Hollywood v. Hogan, 986 So.2d 634, 645 (Fla. 4th DCA 2008). Even when the employer’s proffered reason is not completely false, however, the plaintiffs case does not necessarily fail. Id. at 645-46. “[T]he lack of falsity [does not] demand a verdict in favor of the employer where other evidence could persuade the trier of fact of discriminatory intent.” Id. at 646.

Kogan presented sufficient evidence to adequately call the credence of BSO’s proffered reason for his transfer into question. Specifically, he established that BSO did not follow its own protocol for poor performance, thus calling into question whether BSO truly believed Kogan failed to properly report the incident. For example, Kogan presented evidence that his failure to report the incident was not raised in his annual evaluation. Indeed, by all accounts his evaluations were all positive. Kogan further presented evidence that he was permitted to represent BSO as a homicide detective in a national television show after his captain allegedly “lost faith in him.” Additionally, BSO’s transfer policy delineated that “[t]ransfer will be made with appropriate notification, evaluation and debriefing. Employees may only transfer to the same classification.” However, Kogan was only given four days’ notice of his transfer and was not debriefed. Kogan’s captain admitted that he did not discuss the transfer with Kogan in any degree of detail and simply told him that “the agency was moving in a different direction.” When asked why he failed to discuss or memorialize any part of his decision, Kogan’s captain simply stated that he “chose not to.” Based on the foregoing, there was sufficient evidence for the jury to find that BSO’s proffered reason for transferring Kogan was a pretext. Accordingly, the court did not err in denying BSO s motion for JNOV.

Affirmed.

Warner and May, JJ., concur.

      . Although Valenzuela, 18 So.3d at 25, was an age discrimination case, it employed a Title VII analysis. See Rustowicz, 174 So.3d at 419 (explaining that Florida courts apply Title VII analysis to Whistle-blower's Act cases).

      . Hogan was also an age discrimination case, but as explained in note 1, is instructive.


source: Caselaw Access Project

author: Gerber, J. CIKLIN, C.J.,

license: Public Domain

text:
    UNITED STATES SUGAR CORP., Petitioner, v. ESTATE OF Jeremy Scott MULLINS, Respondent.
    No. 4D16-2738
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Robin B. Levine, David B. Stauber, and Andrew S. Connell of Litchfield Cavo, Fort Lauderdale, for petitioner.
    John J. Waskom of Icard, Merrill, Cul-lis, Timm, Furen & Ginsburg, P.A., Sarasota, for respondent.
   Gerber, J.

The petitioner, a non-party to the estate’s probate action, seeks a writ of cer-tiorari to quash the probate court’s order: (1) overruling the petitioner’s relevance-based objections to the estate’s subpoena duces tecum upon the petitioner; and (2) requiring the petitioner to file a privilege log pursuant to the petitioner’s privileged-based objections to the subpoena. The petitioner argues that the order departs from the essential requirements of the law, and no adequate remedy exists on appeal because it is not a party to the probate action and thus has no ability to appeal.

We agree with the petitioner’s argument, and grant the petition for three reasons: (1) the subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action; (2) the subpoena seeks documents which, according to the subpoena’s plain language and the petitioner’s affidavit in response to the subpoena, are privileged under the work product doctrine; and (3) the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log.

In this opinion, we first shall present the procedural history before turning to our analysis of the three reasons why we grant the petition.

Procedural History

The decedent died after an accident on the petitioner’s property. The estate has not filed an adversarial action against the petitioner arising from the decedent’s death.

The estate served a subpoena duces te-cum upon the petitioner in the probate action. The subpoena seeks “all reports, statements, photographs, and any other documents and/or materials relating to your investigation of the ... fatal accident ... which killed [the decedent].”

The petitioner, in response to the subpoena, filed a combined objection, motion for protective order, and motion to quash (the “objection”). The objection argued that the subpoena, among other things, was not reasonably calculated to lead to the discovery of admissible evidence in the probate action, and sought privileged attorney-client and work product documentation. According to the petitioner, the underlying probate petition was devoid of any allegations upon which to premise discovery upon the petitioner regarding the petitioner’s investigation of the accident. Thus, the petitioner argued, the subpoena was nothing more than a fishing expedition seeking information which might give rise to a potential wrongful death action against the petitioner, and sought investigative reports and materials which were protected under the attorney-client and work product privileges.

The estate, in response to the objection, argued that its subpoena was justified because it “is the affirmative duty of [the estate] to investigate these matters, as there may very well be grounds for a wrongful death action.”

The petitioner, in reply to the estate’s response, filed an affidavit from the petitioner’s safety manager. In the affidavit, the safety manager supported the petitioner’s privileged-based objections by stating that “[a]ll materials responsive to the ... subpoena were prepared and gathered in anticipation of litigation, and at the direction of [petitioner’s] in house legal counsel, or, in some instances, at the direction of [petitioner’s] outside legal counsel.”

At the hearing on the petitioner’s objection, the petitioner repeated its arguments stated above, and also argued that, as a non-party to the probate action, it was not required to file a privilege log.

The estate argued that it was entitled to obtain the petitioner’s investigatory reports and materials, the petitioner was required to file a privilege log, and the court should conduct an in camera inspection of any items identified on the privilege log.

The probate court entered an order: (1) overruling the petitioner’s relevance-based objections to the subpoena; and (2) requiring the petitioner to file a privilege log pursuant to the petitioner’s privileged-based objections to the subpoena.

Analysis

This petition followed. The petitioner argues that the probate court’s order departed from the essential requirements of the law, and no adequate remedy exists on appeal because it is not a party to the probate action and thus has no ability to appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (“[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.”); Fla. Dep’t of Health and Rehab. Svcs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA 1996) (granting petition for writ of certiorari in part because non-party lacked an adequate remedy by direct appeal after final judgment).

We agree with the petitioner’s argument, and grant the petition for three reasons: (1) the subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action; (2) the subpoena seeks documents which, according to the subpoena’s plain language and the petitioner’s affidavit in response to the subpoena, are privileged under the work product doctrine; and (3) the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We address each reason in turn.

1. The subpoena seeks documents which are not reasonably calculated to lead to the discovery of admissible evidence in a probate action.

In R.G. Industries, Inc. v. Balsiger, 502 So.2d 1378 (Fla. 4th DCA 1987), after the decedent was killed by the accidental discharge of a handgun, a petition for the administration of his estate was filed. Before a wrongful death action was filed, the personal representative sought discovery in the estate proceeding from a potential defendant, which discovery was relevant to only a wrongful death action. The potential defendant unsuccessfully sought a protective order. The potential defendant then filed a petition for a writ of prohibition, which we treated as a petition for a writ of certiorari. We granted the petition under the following reasoning:

The simple answer to the instant question is found in Florida Rule of Civil Procedure 1.280(b)(1):
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things .... [Emphasis added.]
Since [the potential defendant] is not a party to the estate proceeding and since the wrongful death/products liability action and its issues cannot be litigated in the estate proceeding, we hold that discovery in the wrongful death/products liability suit is not relevant and cannot be had in the estate proceeding.
We grant certiorari and remand with instructions to grant protection to [the potential defendant] from the discovery and efforts made by the personal representative in the estate proceeding.

Id. at 1379. Our reasoning in B.G. applies equally here.

The only authority which the estate cites for the proposition that a personal representative should be able to seek discovery in an estate proceeding to investigate the possible filing of a wrongful death action is a single sentence from an appeal in a wrongful death action describing the procedural history underlying that action. See Garces v. Montano, 947 So.2d 499, 501 (Fla. 3d DGA 2006) (“[The decedent] died shortly after surgery. Her husband ... sought appointment as Personal Representative of her estate to investigate possible wrongful death and malpractice claims on behalf of himself, the estate, and [the decedent’s] two surviving sons.”). We do not view that single sentence as indicating our sister court’s intent to open wide the probate court doors for discovery to support unfiled wrongful death actions.

2. The subpoena seeks documents which, according to the subpoena’s plain language and the petitioner’s affidavit in response to the subpoena, are privileged under the work product doctrine.

Even if the subpoena arguably sought documents which are reasonably calculated to lead to the discovery of admissible evidence in a probate action, the subpoena seeks documents which, according to the subpoena’s plain language and the petitioner’s affidavit in response to the subpoena, are privileged under the work product doctrine. See Fla. R. Civ. P. 1.280(b)(4) (2016) (“[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial ... only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”). The estate made no such showing. As we recently held in Millard Mall Services, Inc. v. Bolda, 155 So.3d 1272 (Fla. 4th DCA 2015):

Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department. Internal investigative reports are also covered by the rule. A lawsuit need not be filed for information gathered in an accident investigation to qualify for work-product protection.

Id. at 1275 (internal citations omitted).

3. The probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log.

Even if the subpoena arguably sought non-privileged documents which are reasonably calculated to lead to the discovery of admissible evidence in a probate action, the probate court erred in requiring the petitioner, as a non-party to the probate action, to file a privilege log. We previously have held that the plain language of Florida Rules of Civil Procedure 1.280 and 1.351 (incorporated into the Florida Probate Rules under rule 5.080(a)(1) and (9)) do not require non-parties to file privilege logs. See Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So.3d 620, 623 (Fla. 4th DCA 2009) (under then-rule 1.280(b)(5) [now rule 1.280(b)(6)], “a privilege log is not required from a non-party producing documents”); Lyons v. Lyons, 162 So.3d 212, 215 (Fla. 4th DCA 2015) (“We recognize that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log .... ”). The proper procedure, as we indicated in Lyons, would have been to order the petitioner to “segregate those they claimed were privileged,” after which “[t]he court would hold an evidentia-ry hearing on those claimed to be privileged and conduct an in camera review where necessary.” Id. at 215-16.

To counter our cases squarely addressing this issue, the estate relies upon a single phrase from Bainter v. League of Women Voters of Florida, 150 So.3d 1115 (Fla. 2014): “Regardless of whether the non-parties are considered a party’ under [rule 1.280(b)(6)], its rationale applies with equal force to this case ....” Id. at 1128-29. We find that phrase to be dicta in the context of the complete sentence from Bainter: “Regardless of whether the non-parties are considered ‘a party’ under [rule 1.280(b)(6)], its rationale applies with equal force to this case—particularly once the trial court, repeatedly, determined that the disputed documents in the non-parties’ possession were relevant and ordered the submission of a privilege log—and the non-parties did not expressly make their claim of privilege or produce a privilege log until many months after they withheld the documents.” Id. (emphasis added).

Conclusion

Based on the foregoing three reasons, the probate court’s order departs from the essential requirements of the law, and no adequate remedy exists on appeal because the petitioner is not a party to the probate action. Therefore, we grant the petition, quash the probate court’s order, and remand for the probate court to enter an order sustaining the petitioner’s objection and granting the petitioner’s motion for protective order and motion to quash the estate’s subpoena.

Petition granted.

Damoorgian, J. concurs.

CIKLIN, C.J.,

dissenting.

I respectfully dissent. Because of the circumstances involved in this case, I would find that the probate court did not depart from the essential requirements of law in permitting the estate to obtain the discovery in the underlying probate matter, and therefore I would deny the petition.


author: Per Curiam.

text:
    HOWMEDICA OSTEONICS CORP., Petitioner, v. Joyce TROWBRIDGE, Jay Trowbridge, et al, Respondents.
    No. 4D16-2374
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Jennifer A. McLoone, Hildy M. Sastre and Daniel B. Rogers of Shook, Hardy & Bacon L.L.P., Miami, and Dennis M. O’Hara, Steven Y. Leinicke and Jordan S. Cohen of Wicker Smith O’Hara McCoy & Ford, P.A., Fort Lauderdale, for petitioner .Jonathan M. Streisfeld, Jan Douglas Atlas and Melissa A. Gunion of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, and Raymond Valori and Daniel Harwin of Freedland Harwin Valori, Fort Lauderdale, for respondents.
   Per Curiam.

Petitioner, Howmedica Osteonics Corporation (HOC), seeks certiorari review from a trial court’s order that denied its request to redact identifying information from reports and related documents of health care providers who reported “foreign adverse events” associated with a medical device. Certiorari lies to protect privileged or protected material to avoid the irreparable harm of wrongful disclosure. See, e.g., Rosen v. McCobb, 192 So.3d 576 (Fla. 4th DCA 2016).

We grant the petition and quash the order. On remand, the trial court shall redact any identifying information from the reports and related documents. Federal law mandates that identifying information of voluntary reporters of adverse events involving medical devices be kept confidential. The controlling federal regulation does not distinguish between foreign and domestic reporters. See 21 C.F.R. § 20.63(f) (2016).

This petition arises from a consolidated proceeding pending in the trial court involving many plaintiffs who allege they sustained personal injuries from hip-implant medical devices manufactured by HOC that were subsequently recalled. The specific issue concerns production of adverse event reports and related documents furnished to HOC by foreign voluntary reporters. Although the trial court’s order did not differentiate between the report itself and the underlying related documents, we further hold that any information that identifies the voluntary reporter must be redacted.

Congress mandates that medical device manufacturers and importers report to the Food and Drug Administration (FDA) adverse events with a medical device. 21 U.S.C. § 360i(a). A “device user facility” is also required to report adverse events to the FDA and the manufacturer (if known). 21 U.S.C. § 360i(b). HOC is a mandatory reporter and is required to report to the FDA information received “from any source” that reasonably suggests that a device it markets: “(1) may have caused or contributed to a death or serious injury or (2) has malfunctioned and this device or a similar device that you market would likely cause or contribute to a death or serious injury, if the malfunction were to recur.” 21 C.F.R. § 803.50(a); see also 21 C.F.R. § 803.10(c).

By contrast, voluntary reporters are physicians, consumers, or others who voluntarily report adverse events associated with medical devices to the FDA and manufacturers. The FDA regulation that controls redaction of identifying information from voluntary reporters is 21 C.F.R. § 20.63 entitled, “Personnel, medical, and similar files, disclosure of which constitutes a clearly unwarranted invasion of personal privacy.” Applicable to this case is subpart (f) which requires that:

(f) The names and any information that would identify the voluntary reporter or any other person associated with an adverse event involving a human drug, biologic, or medical device product shall not be disclosed by the Food and Drug Administration or by a manufacturer in possession of such reports in response to a request, demand, or order. Information that would identify the voluntary reporter or persons identified in the report includes, but is not limited to, the name, address, institution, or any other information that would lead to the identities of the reporter or persons identified in a report. This provision does not affect disclosure of the identities of reporters required by a Federal statute or regulation to make adverse event reports. Disclosure of the identities of such reporters is governed by the applicable Federal statutes and regulations.

The regulation provides for three limited exceptions not applicable to this case. See 21 C.F.R. § 20.63(f)(1).

Nothing within the text of this regulation limits the “identity” protection to domestic voluntary reporters. See State v. Burris, 875 So.2d 408, 410 (Fla. 2004) (noting that courts will not look behind plain language when a statute is clear.). We are not persuaded by respondents’ non-binding authority.that suggests otherwise because the federal district courts in those cases did not analyze the issue of foreign voluntary reporters. See In re Mentor Corp. ObTape Transobturator Sling Products Liab. Litig., 632 F.Supp.2d 1370 (M.D. Ga. 2009); see also Contratto v. Ethicon, Inc., 225 F.R.D. 593, 594 (N.D. Cal. 2004) (noting that defendants “conceded that they have no grounds to protect complaints by patients or foreign users, and withdrew such documents from the scope of their protective order”).

As further support, we note that this regulation was adopted because the success of the “adverse event reporting system depends substantially on the guarantee of confidentiality given the identity of the reporter under FDA regulations.” See Contratto, 225 F.R.D. at 596 (citing Protecting the Identities of Reporters of Adverse Events and Patients; Preemption and Disclosure Rules, 59 Fed. Reg. 3944, 3946 (proposed Jan. 27, 1994)). Limiting the identity protection to domestic voluntary reporters would not facilitate that success.

We also agree with HOC that the identity protection extends to the report’s related documents. See In re Mentor Corp., 632 F.Supp.2d 1370 at 1379 (accepting the FDA’s expansive interpretation of its regulation providing that section 20.63(f) applies to related documents that may or may not be transmitted to the FDA); but see Contratto, 225 F.R.D. at 599 n.8 (declining to extend protection to certain documents but noting that plaintiff was not seeking “identities”).

Consequently, we quash the trial court’s order that required HOC to “produce un-redacted identifying information for health care providers who reported foreign adverse events.” On remand, the trial court shall redact any information that identifies the voluntary reporter from the reports and related documents.

We recognize that the parties entered into various stipulations after the trial court entered the order under review. We decline to consider those stipulations as they were neither considered nor adopted by the trial court. The trial court can consider any specific redactions that plaintiffs contend are outside the scope of the regulation and/or the parties’ stipulations.

Petition granted, order quashed, and remanded with instructions.

Ciklin, C.J., May and Gerber, JJ., concur.

      . At issue in Mentor were documents from France and from American physicians. None of the documents had been made the subject of an FDA adverse report. The federal district court concluded that the documents that contained only the names of foreign physicians were to be produced in their entirety because the manufacturer did not cite authority for the proposition that any reports by these physicians were subject to FDA regulations, 632 F.Supp.2d at 1375,


author: Ciklin, C.J.

text:
    MCKANE FAMILY LIMITED PARTNERSHIP; and David B. McKane, Individually and Derivatively On Behalf Of Riverland and Indian Sun, L.C., Appellants, v. SACAJAWEA FAMILY LIMITED PARTNERSHIP; Prager & Co., LLC; Prager Management Co., LLC; Prager Agricultural Management Co., LLC; Peter G. Robbins; Jody C. Robbins; and Riverland and Indian Sun, L.C., Appellees.
    No. 4D15-2431
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2017]

      Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale; and Brian L. Lerner and Jay Kim of Kim Vaughan Lerner LLP, Fort Lauderdale, for appellants.

      Adam J. Hodkin of Padula Hodkin, PLLC, Boca Raton, for appellees Sacajawea Family Limited Partnership, Peter G. Robbins, and Jody C. Robbins.
    Courtney M. Keller, I. William Spivey, II, and Colin S. Baker of Greenberg Trau-rig, P.A., Orlando; and Stephanie L. Vare-la of Greenberg Traurig, P.A., Miami, for appellees Prager Management Co., LLC, Prager & Co., LLC, and Prager Agricultural Management Co., LLC.
   Ciklin, C.J.

This appeal arises out of a business dispute involving a limited liability company. The appellants, the plaintiffs below, appeal the dismissal of their derivative counts brought on behalf of the company, and the claims for breach of contract, civil conspiracy, and unjust enrichment. Because counts IX and XII are interrelated with counts of the complaint still pending below, we dismiss that portion of the appeal relating to those counts. See Mendez v. W. Flagler Family Ass’n, Inc., 303 So.2d 1, 5 (Fla. 1974). However, we take jurisdiction of the remainder of the appeal, which involves the derivative claims and the claim for unjust enrichment, as the dismissal of these causes of action disposed of the entire case as to McKane Family Limited Partnership (“McKane LP”) in its derivative capacity, and as to defendant Jody Robbins, respectively. See Fla. R. Civ. P. 9.110(k). Having taken jurisdiction of these claims, we reverse the dismissal that was entered with prejudice and remand for further proceedings.

We first provide a brief summary of the general allegations contained in the plaintiffs’ complaint. The plaintiffs alleged the following: David McKane was the general partner of McKane LP, and Peter G. Robbins was the general partner of Sacajawea Family Limited Partnership (“Sacajawea LP”). Each of these businesses held a fifty-percent ownership interest in Riverland and Indian Sun, L.C. (“Riverland”). In a scheme to oust McKane, Robbins and the owner of Prager & Co., LLC convinced McKane to execute loan documents with Prager Management Co., LLC (“Lender”). Riverland entered into a loan agreement with Lender, and McKane LP and Lender entered into a Pledge and Security Agreement, which provided that McKane LP put up its membership interest in Riverland as one-half collateral for the loan. McKane executed a Limited Guaranty with Lender, in which he personally guaranteed one-half of the loan. Pursuant to the agreements, Lender was to provide $3 million to River-land to be used solely for capital expenditures, general working capital, and for payment of a specified fee to Lender. The loan proceeds were transferred into River-land’s account, which Sacajawea LP and Robbins had been entrusted by the plaintiffs to handle and control.

For the unjust enrichment claim brought against Sacajawea LP, Robbins, and Robbins’ wife, the plaintiffs essentially alleged that the defendants looted River-land’s account and put the loan proceeds to personal use. The trial court found the claim belonged to Riverland—not to the plaintiffs—and dismissed with prejudice for failure to state a cause of action.

The standard of review of an order dismissing for failure to state a cause of action is de novo. Atkins v. Topp Telecom, Inc., 873 So.2d 397, 398 (Fla. 4th DCA 2004). We do not disagree with the trial court that the claim was Riverland’s to bring. The plaintiffs did not sufficiently allege that they conferred a benefit upon the defendants. See Fito v. Attorneys’ Title Ins. Fund, Inc., 83 So.3d 755, 758 (Fla. 3d DCA 2011) (finding that plaintiff did not establish that it conferred a benefit on the defendants where the evidence did not establish that the funds that were wrongfully transferred into appellants’ accounts belonged to the plaintiff).

However, the dismissal should have been without prejudice, as it appears the claim could be brought on Riverland’s behalf, and the cause of action had only been dismissed once before this dismissal, and on different grounds. See Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 495 (Fla. 4th DCA 2001) (“If a complaint does not state a cause of action, the opportunity to amend a complaint should be liberally given, unless it is apparent the pleading cannot be amended to state a cause of action.”).

We turn now to the dismissal of- the derivative claims. The plaintiffs filed suit in December 2012. The allegations of the complaint left it less than clear whether derivative claims were brought, but the defendants moved to dismiss such counts if they were in fact pled, arguing that the plaintiffs failed to comply with the pre-suit demand requirement of section 608.601, Florida Statutes (2012), a since repealed statute which governed derivative actions brought by members of limited liability companies.

Before the motion to dismiss was heard, the plaintiffs amended their complaint, alleging that they made a demand by letter dated December 19, 2013. The defendants moved to dismiss, arguing that the letter did not constitute a demand, as it was sent after suit was filed.

After a hearing, the trial court dismissed the derivative counts without prejudice thereby permitting the plaintiffs to amend and allege compliance with the demand requirement. The trial court found that the post-complaint letter could not satisfy the pre-suit demand requirement.

In 2015, the plaintiffs filed an amended complaint. This time, they alleged that they made a demand by two letters dated October 31, 2012. They also re-alleged that the December 19, 2013 letter constituted a sufficient demand. In granting the defendants’ motion to dismiss, the trial court found that the October 2012 letters did not constitute a demand, and again found that the December 2013 letter could not satisfy the pre-suit demand requirement as it was sent after suit was filed.

Section 608.601, in effect when suit was brought in 2012 and, as previously noted, since repealed, provided as follows in pertinent part:

A complaint in a proceeding brought in the right of a limited liability company must ... allege with particularity the demand made to obtain action by the managing members of a member-managed company or the managers of a manager-managed company and that the demand was refused or ignored. If the limited liability company commences an investigation of the charges made in the demand or complaint, the court may still stay any proceeding until the investigation is completed.

§ 608.601(2), Fla. Stat. (2012).

We agree with the trial court that the October 2012 letters did not satisfy the demand requirement. The letters do not contain a request that Riverland take some action related to the allegations in the lawsuit.

However, the trial court did not consider whether the December 2013 letter constituted a sufficient demand, because, the trial court reasoned, it was sent after suit was filed.

We have found no case law regarding whether a pre-suit demand requirement under section 608.601 can be cured after suit is filed. Foreign courts have come to different conclusions on this issue in cases involving similar pre-suit demand requirements.

In Grossman v. Johnson, 674 F.2d 115, 125 (1st Cir. 1982), for example, the court rejected the claim that a failure to allege the pre-suit demand required by a rule of civil procedure could be cured after suit was filed, reasoning that the rule does not provide for a post-suit demand, and observing that the purpose of the demand requirement is “to alert the director before suit is instituted” so that the directors have “the opportunity to occupy their normal status.” See also Shlensky v. Dorsey, 574 F.2d 131, 141-42 (3d Cir. 1978) (rejecting plaintiffs argument that trial court should have permitted it to amend or supplement the complaint to include additional demand letters written after suit was filed, and reasoning that “such a demand would not have afforded the directors the opportunity to make the judgment in the first instance whether and in what manner action should be taken”). However, in a case involving the pre-suit notice requirement of section 607.07401(2), Florida Statutes, which governs shareholder derivative suits, a court dismissed the plaintiffs complaint without prejudice to the plaintiff to “petition the Court to reopen the case after he makes a demand upon Uniquest Corporation’s board of directors if they refuse to properly investigate his allegations.” Frutchey ex rel. Uniquest Corp. v. Johnson, No. C98-3899, 1999 WL 33911107, at *1 (N.D. Cal. Jan. 5, 1999).

The pre-suit demand requirement here is akin to a condition precedent, although it is framed as a pleading requirement. “Our courts have repeatedly affirmed that failure to comply with a statutory condition precedent, absent waiver or estoppel, requires dismissal.” City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389, 393 (Fla. 4th DCA 2003). Such a lapse, however, is not ultimately fatal, and the plaintiff may amend its complaint. See Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446, 449 (Fla. 1990) (holding that “in medical malpractice actions, if a presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend”); Coconut Creek, 840 So.2d at 393 (recognizing that if a complaint is dismissed for failure to comply with a statutory condition precedent, the dismissal should be with leave to amend if the statute of limitations has not run). We find that, likewise, a party’s failure to comply with a statute’s pleading requirement that a pre-suit demand was made is not necessarily fatal and that the demand may be made post-suit and alleged in an amended complaint.

Based on the foregoing, we reverse the trial court’s dismissal with prejudice of the unjust enrichment claim and the derivative claims. On remand, the plaintiffs shall be given leave to amend the complaint to state a cause of action for unjust enrichment, and the trial court should determine whether the December 2013 letter constitutes a sufficient demand. If it finds that it does not, the trial court may dismiss with prejudice only if it is able to find that “the privilege to amend has been abused, or it is clear that the pleading cannot be amended to state a cause of action.” See Gamma Dev. Corp. v. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993).

Dismissed in part, reversed in part, and remanded for further proceedings.

Taylor, J., and Lee, Robert W., Associate Judge, concur.


text:
    Carl A. POWERS Jr. and Deeazbros, LLC, Appellants, v. John MELICK, Appellee.
    No. 4D16-2904
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]
    William R. Ponsoldt, Jr. of Wright, Pon-soldt & Lozeau Trial Attorneys, L.L.P., Stuart, for appellants.
    Joseph G. Galardi of Beasley Kramer & Galardi, P.A., West Palm Beach, for appel-lee.
   Per Curiam.

Carl Powers Jr. appeals a Martin County Circuit Court order transferring his pending lawsuit to Palm Beach County Circuit Court for improper venue. This court has jurisdiction to review the non-final order. See Fla. R. App. P. 9.130(a)(3)(A). We conclude that the trial court erred in transferring venue in that a contractual venue clause authorized the filing of the lawsuit in any Florida state or federal court and provided that the parties expressly waived venue objections. Therefore, we reverse and remand for further proceedings.

Appellant, Carl Powers Jr., and appel-lee, John Melick, were equal owners of a Florida limited liability company known as Deeazbros, LLC (the “LLC”). They entered into an operating agreement, which included Article 13.20, governing resolution of disputes. In subsection (a), the parties agreed:

This Agreement is to be construed and governed by the laws of the State of Florida (without giving effect to principles of conflicts of laws). Each party hereto irrevocably agrees that any legal action or proceeding arising out of or in connection with this Agreement may be brought in any state or federal court located in Florida (or in any court in which appeal from such courts may be taken), and each party agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and hereby agrees not to challenge such jurisdiction or venue by reason of any offsets or counterclaims in any such action, suit or proceeding.

According to a complaint appellant filed against Melick in 2016, the LLC entered into a share purchase agreement with East Africa Data Holdings LTD (“East Africa”) whereby the LLC was to act as a consulting company and receive monies for consulting and promoting East Africa’s business. He alleged that the LLC would earn $12,500 a month for this consulting but that Melick diverted the money to himself instead. Appellant amended the complaint to include a count for dissolution and accounting of the LLC.

Appellant filed this lawsuit in the Martin County Circuit Court, alleging that the principal offices of the LLC were located in that county. He further alleged that pursuant to the LLC’s operating agreement, both parties agreed to submit to Florida eourts and waived any venue objections.

Melick moved to dismiss the complaint for improper venue or to transfer venue to the Palm Beach County Circuit Court, alleging that the lawsuit had no connection with Martin County, that appellant resided in West Palm Beach, and that he resided in Miami-Dade County. He argued that appellant’s claims accrued in Palm Beach County, where Melick already had filed a separate action for dissolution of the same LLC. He also alleged that the LLC’s principal office was located in Palm Beach County. In addition, Melick claimed that venue in Martin County was inconvenient to him and potential witnesses in the case and that appellant was forum shopping by his venue selection.

The trial court initially dismissed the case. It later vacated that order and transferred the case to the Palm Beach County Circuit Court. In a separate order on rehearing and for clarification, the trial court ruled that the language in Article 13.20 was unenforceable because it failed to specify in which particular Florida county venue would lie. It provided instead that any legal action “may be brought in any state or federal court located in Florida..."

In this order on rehearing and clarification, the trial court also ruled that venue was proper in Palm Beach County pursuant to sections 47.011 and 605.0703(1), Florida Statutes (2016), because appellant resided in Palm Beach County, the LLC’s principal office was located there, the cause of action accrued there, and Meliek’s action to dissolve the LLC was previously filed there.

The venue issue in this case turns on a legal issue of contract interpretation and application, and thus is subject to de novo review. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999); see also I-Net Techs., Inc. v. Salazar, 82 So.3d 1007, 1008 (Fla. 4th DCA 2011).

In ruling that the venue clause in Article 13.20 was unenforceable, the trial court cited Management Computer Controls, which involved a mandatory venue clause compelling suit to be filed only in Shelby County, Tennessee. By contrast, that court acknowledged that venue clauses in contracts that merely authorize the filing of suit in a particular forum are permissive and non-binding. The First District did not address a venue clause compar rabie to Article 13.20, which limited venue to Florida state or federal courts and where the parties expressly agreed to waive any venue challenges in Florida courts. Thus, Management Computer Controls does not support the trial court’s ruling.

This court recognized in Sander v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001), that “Florida law recognizes the right of contracting parties to agree on the forum in which a dispute may be heard, as long as enforcing their selection would be reasonable and just.” (citing Manrique v. Fabbri, 493 So.2d 437, 440 (Fla. 1986)). Similarly, in Hughes Supply, Inc. v. Lupton, 487 So.2d 429, 430 (Fla. 5th DCA 1986), the Fifth District found Florida law “well settled that parties to a contractual agreement may provide for venue.” It added that “[a] contractual waiver of venue privileges encompasses the ground of convenience as well as other statutory grounds set out in Chapter 47.” Id.; see also Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Servs., Ltd., 734 So.2d 576 (Fla. 3d DCA 1999).

We conclude that the trial court erred in overriding the parties’ express waiver of venue objections to lawsuits filed in Florida courts. It also erred insofar as it looked to the general provisions of section 47.011, Florida Statutes, on venue and section 605.0703(1), Florida Statutes, for dissolution of limited liability companies, particularly when this was not a dissolution proceeding.

Reversed and remanded for further proceedings.

Gross, May and Levine, JJ., concur.


text:
    Armando RIVAS, Appellant, v. The BANK OF NEW YORK MELLON, Appellee. The Bank of New York Mellon, Appellant, v. Armando Rivas, Appellee.
    Nos. 4D16-482 and 4D16-777
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]
    Armando Rivas, Boynton Beach, pro se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Adam G. Schwartz of Akerman LLP, West Palm Beach, for The Bank of New York Mellon.
   Per Curiam.

This consolidated appeal concerns trial court orders entered after the court sua sponte dismissed Bank of New York Mellon’s (Bank’s) foreclosure action in 2015. One appeal challenges the trial court’s February 10, 2016 order that granted the Bank’s motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b)(4). The trial court vacated the dismissal order as void because it was entered without notice to the Bank and during a bankruptcy stay. The trial court’s order relied upon Personalized Air Conditioning, Inc. v. C.M. Systems of Pinellas County, Inc., 522 So.2d 465, 466 (Fla. 4th DCA 1988) (“Filing of a petition in bankruptcy effectuates an automatic stay of all proceedings against a debtor effective the date the petition is filed and actions taken in violation of the stay are void even if there is no actual notice of the stay.”). Rivas immediately filed a notice of appeal on February 10th. This appeal was assigned the case number 16-482.

The second appeal involves orders entered after Rivas filed his notice of appeal. Through those orders the trial court vacated the February 10th order and denied the 1.540 motion that was originally granted, thereby reinstating the 2015 dismissal order. These orders were premised on a Third District Court of Appeal opinion in De La Osa v. Wells Fargo Bank, N.A. (De La Osa I), 41 Fla. L. Weekly D382, — So.3d -, 2016 WL 517466 (Fla. 3d DCA Feb. 10, 2016) . The Bank appealed, and that appeal was assigned the case number 16-777.

In a separate order, we have consolidated the two appeals.

We first reverse the orders that are the subject of the Bank’s appeal. Rivas’s earlier-filed and then-pending notice of appeal divested the trial court of jurisdiction with respect to this matter. See Fla. R. App. P. 9.130(f).

We next affirm the trial court’s February 10, 2016 order that set aside the 2015 dismissal of the Bank’s foreclosure action. The trial court’s subsequent orders vacating that decision relied, albeit without jurisdiction, upon De La Osa I. However, that opinion has since been vacated in an en banc opinion. See De La Osa v. Wells Fargo Bank, N.A. (De La Osa II), No. 3D14-1455, 208 So.3d 259, 2016 WL 7232272 (Fla. 3d DCA Dec. 14, 2016) (en banc) (affirming trial court’s order setting aside a final order of dismissal upon concluding that Rule 1.540(b)(4) applies to final orders). We agree with the Third District’s en banc decision and consequently affirm the trial court’s February 10, 2016 order that granted the Bank’s 1.540 motion for relief from the 2015 dismissal order. De La Osa II, No. 3D14-1455; see also Garcia v. Stewart, 906 So.2d 1117, 1123 (Fla. 4th DCA 2005) (“A void final order or judgment may be attacked under rule 1.540(b).”).

Based on the foregoing, the case is remanded to the trial court for further proceedings consistent with this opinion.

Gerber, Forst and Klingensmith, JJ., concur.


author: Damoorgian, J.

text:
    Steven A. SMILACK, Appellant, v. Richard G. ELIE, Appellee.
    No. 4D15-4883
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]

      Steven A. Smilack of Steven A. Smilack, P.A., Pompano Beach, for appellant.
    Richard G. Elie, Fort Lauderdale, pro se.
   Damoorgian, J.

Steven A. Smilack appeals an order entering partial final summary judgment in his lawsuit against Richard G. Elie and imposing sanctions under section 57.105(1), Florida Statutes (2013). We affirm the summary judgment rulings without further comment. However, we dismiss Mr. Smi-lack’s challenge to the court’s sanction determination. The trial court ruled that sanctions were warranted but reserved jurisdiction to determine the amount. Thus, we lack jurisdiction to review this issue. See Rocka Fuerta Const. Inc. v. Southwick, Inc., 103 So.3d 1022, 1025-26 (Fla. 5th DCA 2012) (holding that appeal from order granting sanctions pursuant to section 57.105 which reserved jurisdiction to determine the amount of sanctions to be imposed was premature).

Affirmed in part; dismissed in part.

Ciklin, C.J., and Gerber, J., concur.


text:
    Marcus Melendez TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3926
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]
    Joshua LeRoy of LeRoy Law, PA, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Marcus Tolbert appeals the judgment and sentences imposed after a jury found him guilty of three counts of robbery with a deadly weapon. He argues that the trial court committed fundamental error when it gave a standard jury instruction and relied on allegedly improper sentencing considerations. We find these arguments to be without merit and we affirm the convictions.

However, we reverse and remand for resentencing. The state acknowledges that the trial court erred in imposing consecutive mandatory minimum sentences pursuant to section 775.087(2)(d), Florida Statutes (2012), since there was no finding that the weapon was discharged, and the offenses arose out of the same criminal episode. See Williams v. State, 186 So.3d 989, 993 (Fla. 2016). Based on this error, we reverse and remand for resentencing.

Affirmed in part, reversed in part, and remanded for resentencing.

Ciklin, C.J., Taylor and Forst, JJ., concur.


author: Conner, J.

text:
    Arlene PREUDHOMME, Appellant, v. Garth F. BAILEY, Patricia Moss-Solomon, Hyacinth L. Bailey, individually and as Trustee, Damian Moss-Solomon and D and R Group Limited LLC, a Delaware LLC, Appellees.
    No. 4D15-2831
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]

      Arlene Preudhomme, Pembroke Pines, pro se.
    No brief filed by appellees.
   Conner, J.

Appellant Arlene Preudhomme appeals the dismissal of her complaint with prejudice after the first motions to dismiss, filed by separate defendants, were granted with no opportunity to amend the complaint. Addressing multiple arguments raised by Appellant, we agree the dismissal with prejudice was error and reverse and remand for further proceedings. We express no opinion as to whether Appellant’s complaint should be dismissed for failure to state a cause of action. Additionally, Appellant appeals the reservation of jurisdiction by the trial court to award attorney’s fees against her. Because the trial court did not make a ruling awarding fees, nor is there such an order in the record, we dismiss that portion of the appeal as premature. See Security Nat. Mortg. Co. v. Reid, 185 So.3d 1265, 1266 (Fla. 4th DCA 2016) (citing REC Ctrs., Inc. v. Shaughnessy, 407 So.2d 971, 975 (Fla. 4th DCA 1981)).

Pertinent Facts and Trial Proceedings

The final judgment dissolving Appellant’s marriage to Appellee Garth Bailey and the resulting post-dissolution proceedings before the trial court have had numerous appearances before this Court. The action below on appeal in this case is yet another appearance.

The marriage between Appellant and her former husband was dissolved in 2010. In January 2015, Appellant filed her pro se complaint for damages and other relief against the former husband and other individuals and entities in the civil division of the trial court. She alleged generally that she was seeking to set aside conveyances of property in an effort to enforce judgments and awards she received in the dissolution proceeding. Appellant’s complaint asserted four counts: fraudulent conveyance, conversion, unjust enrichment, and accounting. Attached to her complaint were copies of exhibits reflecting transfers of property. Appellant did not attach copies of the initial final judgment dissolving the marriage or the partial disbursement order entered in the dissolution proceeding following remand by this Court from the appeal of the dissolution judgment.

The former husband moved to dismiss Appellant’s complaint with prejudice, arguing that Appellant’s complaint was legally insufficient and should be considered a sham pleading. The former husband further argued that Appellant’s claims were barred by either the statute of limitations, collateral estoppel, or res judicata. He further argued that Appellant could not assert entitlement to certain property to pay a judgment which had not, at the date of his motion, been entered as a final judgment subject to execution, and that any transfers of real property and to whom they may have been made is irrelevant and immaterial unless they violate an existing court order, which Appellant had failed to plead. Additionally, the former husband sought attorney’s fees pursuant to section 57.105, Florida Statutes, and Florida Civil Rule of Procedure 1.420(d).

Subsequently, all of the co-defendants filed their respective motions to dismiss, adopting the arguments of the former husband and asserting, as additional grounds, that they owed no duty to Appellant and that her complaint was premature because a final money judgment had not been entered against the former husband. Additionally, some of the co-defendants argued the suit was nothing more than a ploy to harass them or the former husband.

After hearing all of the motions to dismiss at one time, the trial court granted them with prejudice. After her motion for rehearing was denied, Appellant gave notice of appeal.

Appellate Analysis

“The standard of review of orders granting motions to dismiss with prejudice is de novo.” Garnac Grain Co., Inc. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007) (quoting Kreizinger, P.A. v. Schlesinger, P.A., 925 So.2d 431, 432 (Fla. 4th DCA 2006)). Our analysis in this case is confined to review of the four corners of Appellant’s complaint and of the written order dismissing the complaint with prejudice, which is silent as to the trial court’s reasoning or basis for ruling, with no transcript of the hearing or answer brief being filed.

Appellant argues that the trial court erred by dismissing her complaint with prejudice without stating a reason and without giving her an opportunity to amend. First, Appellant argues that if her complaint failed to state a proper cause of action, she was entitled to have leave to amend since her complaint had not been previously amended. Second, Appellant contends the trial court failed to consider the requisite Kozel factors prior to dismissing her complaint. Next, Appellant argues that the trial court could not consider assertions for dismissal based on res judi-cata and collateral estoppel, as such are affirmative defenses required to be raised in an answer. Appellant maintains that allegations about the details of the dissolution of marriage case did not appear on the face of her complaint and that, therefore, the trial court could not go beyond the four corners of her complaint and dismiss her action based on either of those defenses. Appellant contends that her suit below is a separate case “to collect judgments” she was awarded by the trial court in the dissolution of marriage proceeding and that it is not a re-litigation of the dissolution of marriage case or a veiled attempt to harass the appellees. Additionally, she argues that, by dismissing her complaint, the trial court improperly disabled her claims. Finally, Appellant argues that the statute of limitations did not apply to bar her claims against the appellees.

As mentioned above, a transcript of the hearing on the motions to dismiss has not been included in the record on appeal and the trial court did not include its basis or reason for dismissing Appellant’s complaint with prejudice. We also do not have the benefit of an answer brief on appeal. However, whatever the trial court’s reasoning: if there is any theory or principle of law in the record which would support the ruling, it will be upheld. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999).

With regard to the arguments in the motions to dismiss that Appellant’s complaint failed to properly state her causes of action with specificity against each of the appellees, Appellant is correct that this alone would not warrant dismissal with prejudice. “[A]s a general rule, refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Yun Enter., Ltd. v. Graziani, 840 So.2d 420, 423 (Fla. 5th DCA 2003). In this case, it is not clear from the record that such prejudice would arise or that amendment would be futile to set forth more specific elements to Appellant’s claims. There has also been no abuse of the privilege in this case where the complaint had not been previously amended. Thus, as an initial matter, dismissal with prejudice was not proper for failure to state a cause of action.

As Appellant correctly argues, if the trial court dismissed the case with prejudice as a sanction, the dismissal was error. See Chappelle v. S. Florida Guardianship Program, Inc., 169 So.3d 291, 294 (Fla. 4th DCA 2015) (citation omitted) (quoting Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422, 426 (Fla. 4th DCA 2011)) (“Before a court may dismiss a cause as a sanction, it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal.”); Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004) (holding that dismissal as a sanction for a discovery violation is “an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard”).

Alternatively, if the complaint was dismissed as a sham pleading pursuant to Florida Rule of Procedure 1.150, such was also error. “A pleading is considered a sham only ‘when it is palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue.’ ” Bornstein v. Marcus, 169 So.3d 1239, 1242 (Fla. 4th DCA 2015) (quoting Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 193 (1934)). In other words, a sham pleading is one that is “good on its face but absolutely false in fact.” Id. (quoting Rhea, 157 So. at 194). In this case, the former husband’s motion to dismiss fails to identify any inherently false facts stated in the complaint, nor did his motion demonstrate that any such plain or conceded facts must have been known to Appellant to be untrue. Instead, his motion simply asserted that the complaint “merely alleges conclusions, allegations, and innuendo and same is legally insufficient and should be considered as a sham pleading and, therefore, must be dismissed with prejudice.” The motions to dismiss filed by the other co-defendants were deficient because they were not verified, as required by the rule, and they similarly failed to identify any inherently false facts stated in the complaint, which, from the plain or conceded facts of the case, must have been known to Appellant to be untrue.

Additionally, we agree with Appellant’s arguments regarding the remaining grounds for dismissal set forth in the motions: res judicata, collateral estoppel, and the statute of limitations. Appellant is correct that, in reviewing a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the allegations therein as true, viewing all reasonable inferences arising therefrom in favor of the plaintiff. Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla. 2009); Kreizinger, 925 So.2d at 432-34. Appellant is also correct that, generally, collateral estoppel and res judicata are affirmative defenses which must be raised in an answer. Norwich v. Glob. Fin. Assocs., LLC, 882 So.2d 535, 536 (Fla. 4th DCA 2004). “An exception is made, however, where the face of the complaint is sufficient to demonstrate the existence of the defense.” Id. (quoting Bess v. Eagle Capital, Inc., 704 So.2d 621, 622 (Fla. 4th DCA 1997)). Appellant maintains that the basis for the appellees asserting collateral estoppel and res judicata regarding the dissolution of marriage case did not appear on the face of her complaint and the trial court could not go beyond the four corners of her complaint in considering the motions.

Although Appellant did not attach the initial final judgment of dissolution of marriage or the partial disbursement order to her complaint, she did refer to them. Given Appellant’s reference to those documents in her complaint, we conclude that consideration of those trial court rulings would not have gone beyond the four corners of the complaint in ruling on the motions. Norwich, 882 So.2d at 537 (citing Duncan v. Prudential Ins. Co., 690 So.2d 687 (Fla. 1st DCA 1997)) (reversing a dismissal on res judicata and collateral estoppel grounds where the plaintiff did not mention or incorporate the prior dissolution iri his complaint). Nevertheless, while the former husband attached additional orders from the dissolution proceeding to his motion to dismiss, including an order on Appellant’s motion to enforce or compel the partial disbursement order, it does not appear that there is any reference in the complaint to Appellant’s prior attempt at enforcing those orders. Therefore, although consideration of the initial dissolution judgment and partial distribution order would have been appropriate, consideration of the order regarding the motion to enforce or compel would not have been appropriate. Thus, the four corners of the complaint do not support the appellees’ arguments for dismissal based on res judicata or collateral estoppel— that Appellant is attempting to re-litigate issues already determined in the dissolution of marriage case. As the enforcement arguments regarding res judicata and collateral estoppel exceed the four corners of the complaint, such would not justify dismissal with prejudice.

Regarding the statute of limitations defense, we agree that the face of the complaint does not establish that Appellant’s claims are barred. The former husband’s blanket argument in his motion, with regards to the four-year statute of limitations for fraudulent conveyance, was premised on the date of the initial final judgment in 2010 (which was appealed and the cause was remanded back to the trial court for further determinations). See § 726.110, Fla. Stat. (2015). However, the statute of limitations begins to run after the alleged fraudulent transfer is made— not the date of a judgment which such transfer may allegedly violate. Id. Additionally, the statute of limitations for an action to enforce a judgment is twenty years, and, thus, it does not appear that Appellant is barred from seeking to collect on the judgments awarded in favor in the dissolution of marriage proceedings. § 95.11(1), Fla. Stat. (2015).

Finally, as to Appellant’s argument that the trial court may have dismissed the case after determining it was filed in the wrong division of the court, we agree dismissal would have been improper. As we have'previously said:

■ ,[I]n a situation where a complaint should have been filed in the probate division, the court should not dismiss the case solely because it was filed in the wrong division. Grossman v. Selewacz, 417 So.2d 728, 730 (Fla. 4th DCA 1982) (citing In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977)). “[W]hile the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court’s jurisdiction, and cases filed in the wrong division should be transferred to the proper division.” Id.

West v. West, 126 So.3d 437, 438-39 (Fla. 4th DCA 2013). If the appropriate remedy for an action filed in the wrong division of the court is a transfer to the proper division, then dismissal with prejudice was clearly error. We decline to discuss in which division of the trial court the complaint should have been filed because the appellate record is not sufficiently developed for us to conduct such an analysis.

Having determined the trial court erred in dismissing Appellant’s complaint with prejudice, we reverse and remand for the trial court to enter an appropriate order consistent with this opinion.

Reversed and remanded.

Taylor and Levine, JJ., concur.

      . We note that there were two remaining co-defendants, Muschamp, LLC, and Slipe Investments, JDA LLC, which also filed motions to dismiss. The trial court later separately heard these motions, and separately provided Appellant leave to amend her complaint, but noted that her action against all of the other co-defendants had been dismissed with prejudice.

      . Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).


author: May, J.

text:
    Theresa BATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2728
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2017]

      Theresa Batson, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals an order summarily denying her amended motion for postconviction relief. She raises nineteen issues. We find merit in one of them and reverse and remand the case on that issue only.

The defendant was convicted of two counts of conspiracy to commit first degree murder and two counts of solicitation to commit first degree murder. She was sentenced to a total of 60 years in prison (two concurrent terms of 30 years followed consecutively by another two concurrent terms of 30 years). We affirmed her conviction on direct appeal.

She timely filed a rule 3.850 motion, alleging 19 grounds for relief. The trial court dismissed the initial motion with leave to amend. She filed an amended motion. After the State responded, the trial court summarily denied the motion. From this order, the defendant now appeals.

The evidence at trial showed the defendant and her son enlisted an acquaintance to kill the defendant’s boyfriend and his brother. The victims owned a convenience store where the defendant’s daughter once worked. The victims fired the defendant’s daughter for embezzling over $38,000 from the store. The victims agreed not to pursue legal action as long as the daughter repaid them $75 per week.

The defendant’s son contacted his acquaintance and asked him to kill the victims in exchange for cash and other property. He told the acquaintance that his mother wanted the victims killed because one had her daughter “pinched for $35,000.” The defendant wanted her boyfriend killed because she believed she would inherit money and property after he died.

The defendant’s son met with the acquaintance twice on the same day to discuss the murders and gave him Xanax pills as a down payment. The acquaintance wanted assurance that the defendant wanted the murders committed. He drove by her house; the defendant came out to the car and nodded affirmatively when asked whether she wanted the murders committed.

The defendant argues that counsel was ineffective for failing to argue it was a double jeopardy violation to convict her of two counts of conspiracy arising from a single agreement. The trial court agreed with the State that there was no double jeopardy violation because she entered into a “double conspiracy” to kill two victims for two different reasons.

Multiple convictions arising from a single conspiracy, even if the conspiracy has multiple objectives, violate double jeopardy. See Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005) (“A criminal conspiracy is the agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses.”). Whether multiple conspiracies or a single conspiracy exists depends on the proof at trial. See Wight v. State, 117 So.3d 827, 829 (Fla. 4th DCA 2013).

The State maintains there was no double jeopardy violation because the defendant conspired to have the two victims killed for two different reasons. However, the cases relied upon by the State are not persuasive and do not undermine the well-settled law that multiple convictions of conspiracy arising from a single agreement, even if the agreement has multiple objectives, violate double jeopardy.

The State concedes that an eviden-tiary hearing may be required if we find the present record insufficient. We do just that. It is unclear from this record whether multiple agreements existed to support the defendant’s convictions for two counts of conspiracy to commit first degree murder. We therefore reverse and remand the case for an evidentiary hearing or for the attachment of additional records conclusively refuting the defendant’s claim.

Reversed and Remanded.

Warner and Forst, JJ., concur.


text:
    STATE of Florida, Appellant, v. Pierre-John LUNDY, Appellee.
    Nos. 4D15-3829, 4D15-3831 and 4D15-3979
    District Court of Appeal of Florida, Fourth District.
    [February 8, 2017]

      Pamela Jo Bondi, Attorney .General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellant.
    Josh A. Howard, Fort Lauderdale, for appellee.
   Ciklin, C.J.

The state appeals an order granting Pierre-John Lundy’s motions to vacate his pleas, judgments, and sentences. Because the trial court erred by not directing the state to respond to Lundy’s motions and in failing to hold an evidentiary hearing where it was clear that one was needed, we must reverse and remand for further proceedings.

Lundy, a Haitian national in the United States on temporary protected status, was charged with various misdemeanor and felony crimes in three separate cases and entered pleas of nolo contendere in all three cases at a single hearing. The trial court withheld adjudication on all counts except one and placed Lundy on community control for eighteen months,, to be followed by three and a half years of probation. The trial court did not advise Lundy of potential immigration consequences, and at one point referred to him as a “U.S. citizen.”

Lundy later moved to vacate his pleas, judgments, and sentences. Lundy attached to his motion a letter from U.S. Citizenship and Immigration Services informing Lun-dy that his temporary protected status was withdrawn due to his convictions. His motion alleged that, at the time of his plea, the court failed to advise him that a conviction would subject him to mandatory revocation of his protected status and deportation and that he would have gone to trial had he known of the harsh immigration consequences.

Defense counsel explained that Lundy’s motions were filed just one week prior to the hearing and scheduled for a hearing with two days’ notice because Lundy had been removed from his home by United States Immigration and Customs- Enforcement and was being held at a federal detention center. At the time the motions were filed, it was unclear if and when Lundy would be deported.

On the merits, counsel argued that Lun-dy’s pleas should be vacated because there was no mention of immigration consequences during the plea colloquy. The state admitted that there was no mention of immigration consequences at the hearing, but argued the trial court’s omission was immaterial if Lundy’s attorney at the time advised him of such consequences. The state requested a continuance in order to subpoena Lundy’s former counsel. When the trial court raised the time sensitivity issue, the state contended, “[WJe can’t respond. We can’t argue this motion with one day notice when we have to subpoena the witness.” The trial court granted Lundy’s motions based on the transcript of the plea colloquy and his assertion in his sworn motion indicating that he was not advised of the potential immigration consequences.

On appeal, the state contends that the trial court erred in summarily granting the motions to vacate without first ordering the state to respond or holding an evidentiary hearing as required by Florida Rule of Criminal Procedure 3.850(f)(6). We agree.

An order vacating a judgment is reviewed de novo. See State v. Joubert, 847 So.2d 1023, 1025 (Fla. 3d DCA 2003). Motions to vacate a sentence are governed by Florida Rule of Criminal Procedure 3.850. In pertinent part, the rule provides:

Motions Requiring a Response from the State Attorney. Unless the motion, files, and records in the case conclusively show that the defendant is entitled to no relief, the court shall order the state attorney to file, within the time fixed by the court, an answer to the motion. The answer shall respond to the allegations contained in the defendant’s sufficiently pleaded claims, describe any matters in avoidance of the sufficiently pleaded claims, state whether the defendant has used any other available state postcon-viction remedies including any other motion under this rule, and state whether the defendant has previously been afforded an evidentiary hearing.

Fla. R. Crim. P. 3.850(f)(6) (second emphasis added).

Of important note, the rule allows only summary denials and a trial court may not summarily grant a post-conviction relief motion. State v. Schiano, 696 So.2d 531, 531 (Fla. 4th DCA 1997). Rule 3.850 requires the court to order the state to respond in order “to frame the issues in dispute.” Id. Once the issues are clearly identified, “the judge can set an evidentia-ry hearing, if required.” Id.

Indeed, the plain language of rule 3.850(f)(6) indicates that the trial court was required to order the state to answer Lun-dy’s motions, because the record, motions, and files of the cases did not conclusively show that Lundy was not entitled to relief. Further, once the state announced at the hearing on the motions to vacate that it needed the testimony of Lundy’s counsel, it should have been clear that an evidentia-ry hearing was required.

Consequently, the trial court erred in summarily granting Lundy’s motions for post-conviction relief. We reverse and remand for further proceedings. On remand, the state should be permitted to respond to Lundy’s motion to vacate and an eviden-tiary hearing should be held on the issues framed.

Reversed and remanded with instructions.

Taylor and Forst, JJ., concur.

      . In Schiano, this court interpreted a prior version of rule 3.850, but its analysis remains applicable to the current version of the rule insofar as it is addressed in this opinion.


author: Gerber, J.

text:
    Kathy Ann GARCIA-LAWSON, Appellant, v. Jeffrey P. LAWSON, Appellee.
    No. 4D16-1651
    District Court of Appeal of Florida, Fourth District.
    [February 8, 2017]

      Kathy Ann Garcia-Lawson, Palm Beach Gardens, pro se.
    No appearance for appellee.
   Gerber, J.

The former wife appeals from the circuit court’s final judgment denying her request seeking retroactive child support for the first time over three years after the child’s 18th birthday. The court found that the former wife lacked standing to bring the claim.

We affirm. The former wife lacked standing to seek retroactive child support for the first time over three years after the child’s 18th birthday with no showing that the child was otherwise legally dependent under section 743.07(2), Florida Statutes (2015), or that such support was otherwise agreed to by the parties. See § 61.13(l)(a)l.a., Fla. Stat. (2015) (“All child support orders and income deduction orders entered on or after October 1, 2010, must provide ... [f]or child support to terminate on a child’s 18th birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties.”); § 61.30(17), Fla. Stat. (2015) (“In an initial determination of child support, ... the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed, a period of months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. ... ”); Campagna v. Cope, 971 So.2d 243, 249 (Fla. 2d DCA 2008) (“[A] spouse seeking child support in a dissolution action that is filed after a child reaches the age of majority is generally entitled to support only for those months within the preceding twenty-four months when the child was a minor or qualified for support under section 743.07(2).”).

The cases upon which the former wife relies to support her alleged standing are distinguishable from the instant case. See, e.g., Friedman v. Friedman, 508 So.2d 781, 782 (Fla. 4th DCA 1987) (spouse had right to seek enforcement of a judgment for past due support for sums which had accrued during the period prior to emancipation); Grobleski v. Grobleski, 489 So.2d 104, 105-06 (Fla. 2d DCA 1986) (court had the authority to hold spouse in contempt for default on child support after child-attained age eighteen where settlement agreement provided spouse would pay child support until child attained age twenty-one).

In reaching our decision, we note that in the court’s order granting the husband’s motion for summary judgment, which led to the final judgment denying the former wife’s request for retroactive child support, the court stated that any claim for retroactive child support “belongs to the child.” Whether the child has standing to claim retroactive child support was not an issue before the court.

Consequently, we affirm the circuit court’s final judgment denying the former wife’s request for retroactive child support, but remand with instructions to strike from the order granting the former husband’s motion for summary judgment the finding: “That claim belongs to the child, who is no longer a minor.” See Pitcher v. Waldo, 103 So.3d 980, 982 (Fla. 4th DCA 2012) (remanding to strike dicta from order where such language constituted “a purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination ... ”) (citation omitted).

Affirmed but remanded with instructions.

Ciklin, C.J., and Damoorgian, J., concur.


text:
    Eugene C. BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-536
    District Court of Appeal of Florida, Fourth District.
    [February 8, 2017]
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges his conviction and sentence on the ground that the court erred by proceeding with his change of plea hearing without determining his competency in accordance with the Florida Rules of Criminal Procedure 3.210-3.212, when the court had earlier ordered a competency evaluation. We reverse. See Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016) (holding that where the court ordered a competency evaluation, rule 3.210(b) requires a competency hearing and a determination of competency by the court, and defendant does not waive the right to a competency hearing even if experts find him competent); see also Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014) (“Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant’s competency, and must enter a written order if the defendant is found competent to proceed.”) Consistent with Dougherty, we remand to the trial court to determine whether a nunc pro tunc competency determination can be made. Id, In this case, the record suggests that an expert evaluated appellant shortly before the change of plea and found him competent. Therefore, on remand, the expert would not be trying to ascertain appellant’s competency from a “cold record.” Id. (quoting Jones v. State, 740 So.2d 520, 523 (Fla. 1999). If, however, the court cannot determine appellant’s competency consistent with due process guarantees, the court should vacate the plea and sentence.

Warner, Gross and May, JJ., concur.