author: VILLANTI, Judge.

text:
    Gerardo SANCHEZ, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-258
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Gerardo Sanchez, Sr., appeals his convictions and sentences for one count of burglary of a structure, one count of possession of burglary tools, one count of unlawful use of a two-way communications device, one count of attempted burglary, and one count of first-degree misdemeanor criminal mischief. Because the State's evidence was legally insufficient to sustain the convictions for unlawful use of a two-way communications device and first-degree misdemeanor criminal mischief, we reverse those convictions. We affirm the remaining convictions without further comment. And because the reversals necessitate resentencing, we remand for resentencing before a different judge.

Old Polk City Road Walgreens

At around 3:00 a.m. on January 14, 2015, a Polk County sheriff's deputy parked at a church next to a Walgreens drug store that faced Old Polk City Road in Lakeland. As he worked on reports in his patrol car, the deputy heard noises coming from the back of the store. Going to investigate, he peered through the trees that separated him from the store parking lot and saw two individuals using what appeared to be a yellow pole to attempt to pry open the back emergency exit door of the store. The deputy quietly radioed for additional units to respond to the area.

Almost immediately thereafter, the two individuals ran away from the door and stood next to a dumpster in the Walgreens parking lot. Moments later, a black Mustang drove into the parking lot and stopped, and the two individuals jumped in. The car then sped away onto Grady Mock Road and then turned onto Socrum Loop Road. The deputy radioed the other units with a description of the car and the direction it had gone, and then he approached the back of the store. There, he discovered pry marks with yellow paint around them on the emergency exit door. He also heard a buzzing sound that he thought came from an alarm system.

Before he could investigate further, the deputy was notified that a black Mustang with three men inside had been stopped about a mile away. When he arrived at the traffic stop, the deputy identified the car and its occupants, one of whom was Sanchez, as being the men he had seen behind the Walgreens. The men were arrested, and the Mustang in which they had been riding was searched incident to their arrests. During that search, officers located three yellow gloves, some tools, and clothing in the main part of the trunk and a set of hand-held walkie-talkies and additional power tools inside the compartment designed to hold the spare tire. Some time later, a deputy walking the route the Mustang had taken from the store found a single yellow glove and two yellow crowbars lying in the roadway. Upon questioning, the occupants of the car denied any involvement with any activities at the store.

While the police investigation was in progress, Walgreens' alarm company contacted the assistant store manager and asked her to respond to the store. The assistant manager arrived and met with police on the scene. They accompanied the assistant manager into the store, and she determined that a wire to the alarm sensor on the emergency exit door had been cut. The door was damaged, but the perpetrators had not gained entry into the store.

Later on January 14, the store manager reviewed surveillance video from the day before and determined that three men matching the descriptions of the men stopped in the Mustang had been in the store shortly before 7:00 p.m. on January 13. While the surveillance cameras did not record all areas of the store, the recordings did show two of the men entering a hallway that leads to the restrooms and the emergency exit door. A Polk County sheriff's detective also viewed the surveillance video, and he testified that the men seen in the video were the same individuals in the Mustang who were arrested after the burglary.

Based on this investigation, the State charged Sanchez with one count of burglary, one count of possession of burglary tools, and one count of unlawful use of a two-way communications device.

Ariana Street Walgreens

At 11:00 p.m. on January 13, 2015, the store manager of the Walgreens on Ariana Street in Lakeland had trouble setting the alarm system when she was closing the store. The system indicated that a sensor on the back emergency exit door was not connecting. The manager walked to the emergency exit doors, looked at the sensor, and did not see anything wrong. She walked outside to look at the back door itself and did not observe anything out of the ordinary. She then bypassed that sensor, set the rest of the alarm system, and closed the store.

At 4:30 a.m. the next morning, the manager received a call asking her to respond to the store. When she arrived, she discovered that the back emergency exit door had been damaged by what appeared to be pry marks surrounded by yellow paint. The investigating police officer later discovered that a wire to the alarm sensor on the back emergency exit door had been cut-damage the manager had not noticed the evening before.

Later that day, the manager reviewed surveillance video from the store security cameras, which showed three men entering the store shortly after 7:30 p.m. on January 13, walking generally toward the rear of the store, and then returning to exit through the front doors. Because the number of cameras in the store was limited, there was no surveillance footage showing exactly where the men went after they entered the store. But the manager testified that the video showed the men heading in the general direction of the restrooms, which are in the back of the store by the emergency exit door.

The manager turned the video footage over to the police detective who was investigating the incident. The police also collected both the alarm sensor and some paint chips from the emergency exit door. The manager testified that while the emergency exit door was damaged, the door had not been repaired because it was still usable. Nevertheless, upon questioning by the State about the cost to replace the door, the manager testified, "My guess would be around 1500 or 2000. It's a steel door, you know, very expensive door, very hard to get into.... So that would be my guess." The State offered no other evidence concerning the cost to replace and/or repair the damage to the door.

The Polk County sheriff's detective assigned to investigate the Old Polk City Road store case was also assigned to the Ariana Street store case, and he reviewed the surveillance footage from both stores. He testified that the men seen entering the Ariana Street store at approximately 7:30 p.m. on January 13 were the same men who were seen entering the Old Polk City Road store at approximately 7:00 p.m. on January 13 and who were arrested after the burglary at that store in the early morning hours of January 14.

Based on this investigation, the State charged Sanchez with one count of attempted burglary and one count of criminal mischief.

Defense Case

At trial, Sanchez testified that he was traveling with his son and another man from Orlando to Tampa in the early morning hours of January 14. He testified that they exited the highway to try to find food and got lost. He testified that he worked installing drywall and fiberglass and that the tools in the car were used for his work. He denied ever being in either the Ariana Street store or the Old Polk City Road store and denied attempting to break into either one.

At the close of the State's case, Sanchez moved for a judgment of acquittal as to the charges arising out of the Ariana Street store, specifically arguing as to the criminal mischief charge that the State had failed to offer competent evidence concerning the value of the damage to the emergency exit doors. As to the charges arising from the Old Polk City Road store, Sanchez argued that the State had failed to prove a burglary, had failed to prove that the tools found in the Mustang constituted burglary tools, and had failed to prove that the walkie-talkies found in the trunk were used in the commission of any offense. Despite these arguments, the trial court denied Sanchez's motions for judgment of acquittal, and the jury found Sanchez guilty as charged on all counts.

In this appeal, Sanchez does not challenge his convictions for burglary and possession of burglary tools arising from the events at the Old Polk City Road store. However, he has challenged the sufficiency of the evidence to support the remainder of the convictions. We reject his argument that the evidence was insufficient to sustain his conviction for attempted burglary of the Ariana Street store. See McDuffie v. State, 970 So.2d 312, 330 (Fla. 2007) ("The [S]tate is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt." (quoting Orme v. State, 677 So.2d 258, 262 (Fla. 1996) )). However, we reverse Sanchez's remaining two convictions and remand for resentencing.

I. Unlawful Use of a Two-Way Communications Device

First, Sanchez contends that the trial court erred by denying his motion for judgment of acquittal on the charge of unlawful use of a two-way communications device because the State presented no evidence that the walkie-talkies found in the Mustang's trunk were used in any way in the commission of any offense. Sanchez is correct.

Section 934.215, Florida Statutes (2015), provides:

Any person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or further the commission of any felony offense commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

As is clear from the statutory language, the offense has two elements: "(1) the use of a two-way communications device (2) for the purpose of facilitating or furthering the commission of any felony offense." Holt v. State, 173 So.3d 1079, 1082 (Fla. 5th DCA 2015) (quoting Exantus v. State, 198 So.3d 1, 2 (Fla. 2d DCA 2014) ). Critical to this offense is that the statute criminalizes the use of the communications device to further or facilitate a felony, not simply the mere possession of such a device during the commission of a felony. Therefore, the State must offer some evidence that the communications device was used in furtherance of the commission of the felony at issue.

Here, the State presented evidence that a set of walkie-talkies was found in the spare tire compartment of the Mustang after the Old Polk City Road store burglary. But the State presented no evidence to establish that either Sanchez or any of his codefendants used the walkie-talkies to commit or facilitate the burglary of that store. No one was seen with them or heard using them or talking on them. Moreover, the State offered no explanation for how the walkie-talkies could have been stowed in the spare tire compartment in the less-than-five minutes between the time the initial deputy saw the perpetrators get in the Mustang and when the Mustang was stopped. Hence, the State's evidence was legally insufficient to prove that either Sanchez or his codefendants used the walkie-talkies in furtherance of the burglary, and the trial court should have granted the motion for judgment of acquittal on this count.

In this appeal, the State argues that the jury could infer that the walkie-talkies were used to facilitate the offense because the Mustang "appeared" at the scene without anyone making a call on a cell phone. But a conviction on this basis would require an impermissible stacking of inferences. "An impermissible pyramiding of inferences occurs where at least two inferences in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support a conviction." Graham v. State, 748 So.2d 1071, 1072 (Fla. 4th DCA 1999) (citing I.F.T. v. State, 629 So.2d 179 (Fla. 2d DCA 1993) ).

Here, to prove the charged offense, the jury would have to infer (1) that the walkie-talkies were actually used by Sanchez or one of his codefendants rather than being simply stowed in the car, (2) that Sanchez or one of his codefendants used the walkie-talkies to communicate with the driver of the Mustang, and (3) that the communication concerned picking up the perpetrators from the scene to escape the police. Because these inferences must be stacked to prove the offense of unlawful use of a two-way communications device, the State's evidence was legally insufficient. Therefore, we must reverse Sanchez's conviction for this offense.

II. Criminal Mischief

Next, Sanchez contends that the trial court should have granted his motion for judgment of acquittal on the charge of first-degree misdemeanor criminal mischief arising out of the damage to the emergency exit door of the Ariana Street store. While there is sufficient evidence to prove that Sanchez committed the offense itself, the trial court erred by not granting the motion for judgment of acquittal as to the degree of the offense because the State's evidence was insufficient to prove the amount of the damage. Therefore, we reverse the conviction for first-degree misdemeanor criminal mischief and remand for entry of a conviction for second-degree misdemeanor criminal mischief.

The applicable statute provides:

(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.
(b)1. If the damage to such property is $ 200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. If the damage to such property is greater than $ 200 but less than $ 1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
3. If the damage is $ 1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $ 1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 806.13(1), Fla. Stat. (2015). As can be seen from this language,

a plain reading of the criminal mischief statute reveals that the amount of damage is an essential element of the crime of felony criminal mischief. The only difference between second-degree misdemeanor mischief and third-degree felony mischief is the value of the damaged property. Felony criminal mischief requires proof of the amount of damage, whereas second-degree misdemeanor mischief does not. Absent proof of the amount of damage, an act of criminal mischief, as defined by the criminal mischief statute, is a misdemeanor of the second degree. The value of damage, therefore, is clearly an essential element of felony criminal mischief.

Marrero v. State, 71 So.3d 881, 887 (Fla. 2011). Further, the Marrero court held that the jury's "life experience" concerning how much certain repairs might cost could not substitute for actual evidence of the value of the damage. Id. at 890. This court has since held that the same reasoning applies to the difference between first-degree misdemeanor criminal mischief and second-degree misdemeanor criminal mischief. See Perez v. State, 162 So.3d 1139, 1140 (Fla. 2d DCA 2015).

Here, the State charged Sanchez with first-degree misdemeanor criminal mischief under section 806.13(1)(b)(2) ; and it presented the testimony of the store manager in support of the amount of damage. However, the store manager's testimony was limited to her "guess" that replacement of the door would be between $ 1500 and $ 2000, and she also testified that the door had not been replaced because it was usable and worked fine in its slightly damaged condition. Neither the store manager nor any other State witness testified to the diminished value of the door or a cost of repair.

The manager's "guess" concerning the cost to replace a door that will not be replaced does not constitute competent evidence of the value of the damage to the door. Her testimony is not based on the actual cost to replace the door but instead is based solely on some type of "life experience" that she may have. In the absence of any evidence of the actual cost to repair the damage to the door, the trial court should have granted Sanchez's motion for judgment of acquittal as to the charge of first-degree misdemeanor criminal mischief and should have entered a conviction for only second-degree misdemeanor criminal mischief. Therefore, we reverse the conviction for the first-degree misdemeanor and remand for entry of a conviction on the lesser offense of second-degree misdemeanor criminal mischief. See § 924.34, Fla. Stat. (2015) ("When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.").

III. Proceedings on Remand

Finally, Sanchez contends that he is entitled to be resentenced by a different judge on remand because the judge who imposed his original sentence considered improper factors when doing so. This argument also has merit.

"A trial court violates due process by using a protestation of innocence against a defendant." Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009) ; see also Hannum v. State, 13 So.3d 132, 135-36 (Fla. 2d DCA 2009). In addition, the court cannot consider a defendant's truthfulness at trial when imposing sentence. Hannum, 13 So.3d at 136. When a trial court does so, it violates a defendant's due process rights, which constitutes fundamental error. Id.

Here, the sentencing judge told Sanchez that his trial testimony "was among the least credible explanations of something that I have heard in a very long time" and that the judge believed that the offenses were part of a "calculated decision on your and your colleague's [sic] part." Consideration of Sanchez's truthfulness at trial and his continued assertions of innocence was improper. Given that Sanchez had no prior felony convictions and scored a nonstate-prison sanction but was sentenced to five years in prison followed by five years' probation, we cannot say that these improper considerations did not contribute to the judge's sentencing decision. Therefore, on remand, Sanchez must be resentenced by a different judge.

IV. Conclusion

In sum, we affirm Sanchez's convictions for burglary of a structure, possession of burglary tools, and attempted burglary. We reverse his convictions for unlawful use of a two-way communications device and first-degree misdemeanor criminal mischief. On remand, the trial court should enter a judgment of acquittal on the charge of unlawful use of a two-way communications device and a judgment for the lesser offense of second-degree misdemeanor criminal mischief. Following that, Sanchez is entitled to be resentenced by a different judge using a corrected scoresheet.

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

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Sanchez objected to this testimony as calling for a legal conclusion. This objection was overruled. On appeal, Sanchez argues that the trial court erred by permitting the police detective to identify the men on the video since the detective had no prior knowledge of the men. While this argument is correct, see Alvarez v. State, 147 So.3d 537, 542 (Fla. 4th DCA 2014) ; Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989), this argument was not made in the trial court. Therefore, it is not preserved for review in this appeal. See Chamberlain v. State, 881 So.2d 1087, 1100 (Fla. 2004) ("[T]o be preserved for appeal, 'the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.' " (quoting Spann v. State, 857 So. 2d 845, 852 (Fla. 2003) )).


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    J.G., Father of N.S.G.B., a Child Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3917
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    Evelyn Araud, Palm Bay, for Appellant.
    Ward L. Metzger, of Children's Legal Services, Jacksonville, and Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee, Department of Children and Families.
    Thomasina F. Moore and Joanna Summers Brunell, of Florida Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem Program.
   COHEN, J.

J.G. ("Father"), the natural father of N.S.G.B. ("Child"), appeals the final order terminating his parental rights to Child on the ground of abandonment. Father argues that the trial court erred by: (1) failing to appoint him counsel during a December 28, 2015 arraignment hearing, thereby violating his due process rights; (2) failing to allow him to determine an appropriate placement for Child by consenting to a private adoption; and (3) conducting an improper single-parent termination by advancing with the termination proceeding when the natural mother's ("Mother") termination case was still pending. We affirm.

In May 2015, the Department of Children and Families ("DCF") removed Child from Mother's care based on allegations that Mother used heroin and neglected Child and her half-sibling. DCF placed Child with a non-relative caregiver and subsequently filed a petition for dependency. In June 2015, the trial court adjudicated Child dependent as to Mother and ordered Child to remain in the custody of the non-relative caregiver.

Throughout the proceeding, DCF made numerous attempts to serve Father, whose whereabouts were unknown. Father appeared telephonically at an arraignment hearing on December 28, 2015, but did not appear, personally or telephonically, at any subsequent hearings regarding Child's dependency. His whereabouts remained unknown.

In December 2016, DCF petitioned the court to involuntarily terminate the parental rights of both Mother and Father. DCF alleged, among other grounds, that Father abandoned Child in violation of section 39.806(1)(b), Florida Statutes (2016). DCF made continuous attempts to serve Father to no avail, as detailed in multiple affidavits of diligent search. DCF served Father by publication, and the trial court entered a default. Notwithstanding entry of the default, DCF continued efforts to serve Father and eventually located him, effectuating personal service in April 2018.

In June 2018, Father appeared for an advisory hearing and indicated that he was securing counsel. However, he failed to do so, and in August 2018, the trial court appointed Father counsel.

In September 2018, the trial court held a final hearing on DCF's petition for the involuntary termination of both parents' rights. Immediately before the proceeding commenced, Mother notified the court that she had executed a consent for the maternal grandmother to adopt Child pursuant to section 63.802(6)(g), Florida Statutes (2018). Father's counsel indicated that Father did not consent to Child's adoption and wanted to proceed with trial. The court rescheduled Mother's termination proceeding to determine whether it was in Child's best interest to allow the adoption or to proceed with the termination proceeding under Chapter 39.

The trial court continued with Father's termination proceeding. Following trial, the court found by clear and convincing evidence that Father abandoned Child pursuant to section 39.806(1)(b). Father appeals that order.

For the first time, Father argues that the trial court denied him the due process right to have an attorney appointed during the December 28, 2015 arraignment hearing. He contends that "[i]f an attorney would have been provided in the early stages of this case the outcome may have been different." We find this argument unpreserved and disingenuous.

The record reflects that during the December 28 hearing, Father appeared telephonically and stated that he was a merchant marine without "reasonable accommodations." He refused to disclose a current or future physical address or an email address to effectuate service and indicated that he needed to speak with an attorney before providing the court any information. The trial court stated:

Once you've been served and you come before the Court, then I will even address the appointment of an attorney for you if you qualify. If you're indigent I will appoint an attorney for you. But at this point you haven't been served, so I'm not going to take that action. So if you want to hire your own attorney, you have a right to do that.

Father told the court that he would speak with an attorney and would contact DCF with an address for service. He did not. In addition, despite his knowledge of the proceedings, Father failed to appear at subsequent hearings for over two years.

In spite of the court's ability to proceed without Father because of the previously entered default, the court allowed Father to appear in the termination proceeding and appointed him counsel. Father's alleged due process violation was entirely due to his own inaction. Equally compelling was Father's failure to raise this issue below. Accordingly, we find no error. See J.G. v. Dep't of Child. & Fams., 22 So.3d 774, 776 (Fla. 4th DCA 2009) ("[T]he parents' claim that their procedural due process rights were violated ... was raised for the first time in this appeal, and therefore was not preserved for appellate review."); R.G. v. Dep't of Child. & Fam. Servs., 792 So.2d 1269, 1269 (Fla. 3d DCA 2001) ("[A]ny due process concerns were never raised before the trial court and are therefore barred." (citing Hill v. State, 549 So.2d 179, 182 (Fla. 1989) ) ).

Next, Father argues that the trial court erred in terminating his parental rights instead of allowing him to consent to the private adoption of Child by a non-relative caregiver. He presents that at the end of the final termination hearing, he and the non-relative caregiver "struck a deal" where he would voluntarily surrender his rights in contemplation of an open adoption. He further argues that pursuant to section 63.082(6)(g), he had the right to participate in Child's placement by consenting to a private adoption plan.

Initially, Father ignores that before trial commenced, his counsel announced that Father did not agree to surrender his rights. Further, a parent's ability to participate in a placement process is purely statutory in nature and is secondary to the court's duty to determine the best interests of the child. See, e.g., E.Q. v. Fla. Dep't of Child. & Fams., 208 So.3d 1258, 1260 (Fla. 3d DCA 2017) (holding that a parent's wishes as to a prospective adoptive placement are but one factor to be considered in determining the best interests of the child). Here, the trial court determined that it was in Child's manifest best interest to terminate Father's parental rights and the least restrictive means to protect Child. Father does not challenge those findings on appeal.

In addition, the record demonstrates no effort by Father to proceed with the contemplated adoption agreement. After the final hearing, the court held two status conferences before rendering its final order in December 2018. Father did not appear at those hearings and sought no further relief. Accordingly, this argument lacks merit. E.g., Singer v. Singer, 442 So.2d 1020, 1022 (Fla. 3d DCA 1983) ("[W]aiver encompasses not only the intentional or voluntary relinquishment of a known right, but also conduct that warrants an inference of the relinquishment of a known right." (citations omitted) ); cf. K.J. ex rel. A.J. v. Dep't of Child. & Fams., 33 So.3d 88, 89-90 (Fla. 1st DCA 2010) (affirming termination of parental rights where mother did not challenge the court's findings regarding the manifest best interest and the least restrictive means standards and failed to raise the argument presented on appeal at trial).

Father's final argument is that the trial court entered an improper single-parent termination order in violation of section 39.811(6), Florida Statutes (2016), by terminating his parental rights without terminating Mother's parental rights. He provides that abandonment is not an enumerated ground for single-parent termination. Again, Father failed to preserve this argument. He acquiesced to the bifurcation of his and Mother's trial and never raised this issue before the trial court or in a subsequent motion for rehearing. See R.B. v. Dep't of Child. & Fams., 997 So.2d 1216, 1218 (Fla. 5th DCA 2008) (affirming termination of parental rights where "issue was not brought to the attention of the trial judge by a motion for rehearing and thus, has not been preserved for appellate review" (citing Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004) ) ); see also D.T. v. Fla. Dep't of Child. & Fams., 54 So.3d 632, 633 (Fla. 1st DCA 2011) (affirming where "[a]ppellant failed to preserve this issue by a motion for rehearing or to otherwise bring the claimed deficiency to the attention of the trial court at a point when it could have been corrected" (citations omitted) ).

Ultimately, Father does not challenge the sufficiency of the evidence presented regarding his abandonment of Child. Instead, he raises issues he failed to preserve. Accordingly, we affirm.

AFFIRMED.

EDWARDS and EISNAUGLE, JJ., concur.

      Father does not argue that any of these unpreserved arguments constitute fundamental error.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Stanley Raphael JEAN, Appellee.
    Case No. 2D18-2281
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019.
    Ashley Moody, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellant.
    Peter Lombardo of Law Office of Peter Lombardo, Bradenton, for Appellee.
   PER CURIAM.

We treat this State appeal from an order to disclose the identity of a confidential informant as a petition for writ of certiorari and grant it. See, e.g., State v. Borrego, 970 So.2d 465, 466 (Fla. 2d DCA 2007) (holding that an order requiring disclosure of a confidential informant was reviewable by way of certiorari where there was no adequate remedy on appeal); State v. Devoid, 706 So.2d 924, 925 (Fla. 2d DCA 1998) (same). The trial court departed from the essential requirements of law by ordering the disclosure without first conducting the in-camera hearing the law requires. See State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997) ("Once a defendant carries an initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense."); see also Bailey v. State, 994 So.2d 1256, 1258 (Fla. 2d DCA 2008) ("When a defendant files a sworn motion or affidavit alleging facts regarding the informant's involvement that, if true, would support the possibility of a specific defense, the trial court is required to conduct an in-camera hearing to consider the necessity of the informant's testimony and the State's interest in nondisclosure."). We accordingly quash the order to disclose the identity of the confidential informant.

Petition granted; order quashed.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


author: LaROSE, Chief Judge.

text:
    Niyke Deangelo ECHAVARRIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1951
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   LaROSE, Chief Judge.

Appellant's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm Niyke Deangelo Echavarria's judgment and sentences; we remand for correction of obvious scrivener's errors in the written sentences.

Mr. Echavarria pleaded no contest to possession of cocaine within 1000 feet of a school with intent to sell and sale of cocaine within 1000 feet of a school. See § 893.13(1)(c)(1), Fla. Stat. (2015). The trial court sentenced him to concurrent terms of 98.25 months in prison, with a three-year mandatory-minimum prison term, for both offenses. The trial court also orally imposed various fines and costs, including a $ 300 fine pursuant to section 775.083, Florida Statutes (2018), for both offenses.

However, the written sentences reflect a $ 300 fine pursuant to section 773.083, Florida Statutes; a nonexistent statute.

Although we affirm, we remand for the trial court to correct the scrivener's errors. See Rivera v. State, 117 So.3d 449-50 (Fla. 2d DCA 2013) (remanding for correction of the written sentences to reflect the oral pronouncement in an Anders appeal); Skinner v. State, 155 So.3d 497, 497 (Fla. 5th DCA 2015) (remanding for correction of scrivener's error in the order on fines and costs in an Anders appeal). Mr. Echavarria need not be present for the correction of the scrivener's errors. See Rodriguez v. State, 223 So.3d 1053, 1055 (Fla. 2d DCA 2017).

Affirmed; remanded to correct scrivener's errors.

VILLANTI and ATKINSON, JJ., Concur.


text:
    Mary TEAGUE, Appellant, v. PEPSI CO.-FRITO LAY, Appellee.
    Case No. 5D18-2776
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    Jerry Girley, of The Girley Law Firm, PA, Orlando, for Appellant.
    Dawn Siler-Nixon and Viktoryia Johnson, of Ford & Harrison LLP, Tampa, for Appellee.
   COHEN, J.

Mary Teague appeals the final judgment entered in favor of Pepsi Co.-Frito Lay ("Frito Lay") after the trial court granted Frito Lay's motion for summary judgment. We affirm.

Frito Lay employed Teague as a packer from 1987 through 2014. In 2016, Teague filed a suit against Frito Lay in state court alleging disability discrimination and retaliation. Frito Lay removed the case to the United States District Court based on diversity jurisdiction. Following a conference, the federal court issued a case management and scheduling order with a stipulated discovery deadline. The parties engaged in discovery; Frito Lay took Teague's deposition, and Teague deposed her former supervisor. Despite having the opportunity, Teague conducted no additional discovery before the stipulated discovery deadline. After discovery closed, Frito Lay moved for summary judgment. The federal court subsequently remanded the case back to state court because the amount in controversy was insufficient for diversity jurisdiction.

Upon returning to state court, Frito Lay filed another motion for summary judgment, and the court scheduled a hearing. Neither party conducted additional discovery prior to the hearing, nor did Teague move to continue the hearing based on her need to conduct additional discovery. It was not until the hearing that Teague first claimed that summary judgment was premature because she had not completed discovery. The trial court granted Frito Lay's motion and entered a final judgment in its favor, which Teague now appeals.

Teague argues that the trial court erroneously granted summary judgment by prematurely shifting the burden of proof to her to present evidence of a triable issue and by hearing the motion before she completed discovery.

A review of the trial court's thorough summary judgment order reveals no merit to Teague's first claim of error. Further, we find that the trial court did not err in proceeding with the hearing on summary judgment. The parties agreed to a discovery deadline in federal court, and Teague made no effort to conduct additional discovery upon remand to the state court, such as deposing her orthopedic surgeon, whose report concluded that Teague could work without any restrictions. Teague had ample opportunity to depose this witness yet failed to diligently pursue that opportunity both in federal and state court. E.g., Martins v. PNC Bank, Nat'l Ass'n, 170 So.3d 932, 936-37 (Fla. 5th DCA 2015) (noting that "if the non-moving party does not act diligently in completing discovery ..., the trial court is within its discretion to grant summary judgment ..." (citations omitted) ).

In addition, Teague failed to timely move for a continuance before the summary judgment hearing. E.g., Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988) ("In any event, the defendants did not request a continuance of the summary judgment hearing so that they could complete their discovery and cannot now be heard to complain that they were not given a reasonable time to complete same." (citations omitted) ). Accordingly, we affirm.

AFFIRMED.

EVANDER, C.J. and SASSO, J., concur.


author: Per Curiam.

text:
    Christopher HARTSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0782
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Christopher Hartsfield, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wolf, Kelsey, and Winokur, JJ., concur.


text:
    Andrew BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3623
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Andrew Brown, pro se, Appellant.
    Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Andrew Brown, appeals the summary denial of Grounds 1 through 4 of his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of Ground 4 without further discussion. However, we reverse the denial of Grounds 1 through 3 because those claims are not conclusively refuted by the record.

Appellant entered a plea of guilty to the charged offense of trafficking in cocaine, 28 grams or more, but less than 200 grams, and was sentenced to eight years of imprisonment. He subsequently filed a motion for postconviction relief, in which he raised three grounds for relief. In Grounds 1 and 2, Appellant alleged that defense counsel rendered ineffective assistance by failing to move to suppress the evidence of the cocaine that was en route to Jacksonville, Florida from Costa Rica in a sealed wooden crate and was seized by Customs and Border Protection agents in Tennessee in the absence of probable cause, a warrant, or a recognized exception to the warrant requirement. In Ground 3, Appellant alleged that defense counsel rendered ineffective assistance by allowing him to plead guilty to trafficking in cocaine, instead of challenging the information, because the information alleged twenty-eight grams or more, whereas the arrest and booking report alleged only seven grams of cocaine. Appellant filed an amended postconviction motion, raising two additional grounds for relief.

The trial court summarily denied Appellant's motions. The court denied Grounds 1 through 3 upon finding that Appellant's sworn testimony during the plea colloquy refuted his allegations and, pursuant to Stano v. State , 520 So.2d 278 (Fla. 1988), he could not go behind his sworn testimony at the plea hearing. The court reasoned that in entering the guilty plea, Appellant understood that he was giving up the right to a trial and to have the State prove the charge, he did not advise the court that he wanted counsel to file a motion to suppress or to test the sufficiency of the evidence, and he stated under oath that counsel answered all his questions to his satisfaction and he did not need additional time and was satisfied with counsel's services. The court further found that the signed plea form refuted Appellant's allegations because by signing it, he confirmed that he read, discussed with counsel, and understood the contents of the plea form, which contained the following language:

My attorney has taken all actions requested by me, or has explained to my satisfaction and agreement why such actions should not be taken, and I concur with my attorney's decision in that regard. I am completely satisfied with the services rendered by my attorney on my behalf in this case.

The trial court attached to its order the plea form and the transcript of the plea hearing. This appeal followed.

In moving for postconviction relief, the defendant bears the burden of proving "a prima facie case based on a legally valid claim" and conclusory allegations are insufficient. Valentine v. State , 98 So.3d 44, 54 (Fla. 2012) (quoting Franqui v. State , 59 So.3d 82, 96 (Fla. 2011) ). The defendant is entitled to an evidentiary hearing unless the motion and record conclusively show he is not entitled to relief or the motion or claim is legally insufficient. Id. ; see also Fla. R. Crim. P. 3.850(f)(5). An appellate court defers to a postconviction court's factual findings so long as they are supported by competent, substantial evidence, but reviews legal conclusions de novo . Victorino v. State , 127 So.3d 478, 486 (Fla. 2013). In reviewing a trial court's summary denial of a postconviction claim, the factual allegations must be accepted as true to the extent they are not refuted by the record. Valentine , 98 So.3d at 54.

To prevail on an ineffective assistance of counsel claim, the defendant must prove that (1) his or her trial counsel's performance was deficient and (2) the deficient performance was prejudicial for it deprived him or her of a fair trial. Victorino , 127 So.3d at 486 (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In the context of a plea agreement, to establish the prejudice prong, the defendant must show a "reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial." Hurt v. State , 82 So.3d 1090, 1092 (Fla. 4th DCA 2012) (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). The same standard applies to a defendant who pleaded guilty and claims that defense counsel was ineffective in failing to advise of an available defense. Grosvenor v. State , 874 So.2d 1176, 1181 (Fla. 2004).

"A rule 3.850 motion cannot be used to go behind representations the defendant made to the trial court, and the court may summarily deny post-conviction claims that are refuted by such representations." Kelley v. State , 109 So.3d 811, 812-13 (Fla. 1st DCA 2013) (citing Stano , 520 So.2d at 279 ). However, "[a] trial attorney's failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction." Fry v. State , 217 So.3d 1139, 1140 (Fla. 1st DCA 2017) (quoting MacKinnon v. State , 39 So.3d 537, 538 (Fla. 5th DCA 2010) ). "A claim of ineffective assistance of counsel for failure to advise a defendant of a potential defense can state a valid claim if defendant was unaware of the defense and can establish that a reasonable probability exists that [she] would not have entered the plea if properly advised." Id. at 1141 (quoting Jacobson v. State , 171 So.3d 188, 191 (Fla. 4th DCA 2015) ).

Therefore, it is error to summarily deny a claim of ineffective assistance of counsel based on counsel's failure to investigate a potential defense or file a motion to suppress evidence where the record attachments do not conclusively show that the defendant was made aware of the potential defense or suppression issue prior to entering the plea. See Myers v. State , 247 So.3d 78, 80 (Fla. 2d DCA 2018) (reversing the summary denial of the postconviction motion because the court "erred when it concluded that by entering a plea, Myers had waived his claim that counsel was ineffective for failing to challenge the information and raise Myers' lack of a Florida driver's license as a defense"); Fernandez v. State , 135 So.3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the summary denial of the appellant's claim that defense counsel rendered ineffective assistance by failing to investigate and advise him of a potential afterthought defense because his statements during the plea colloquy that he was satisfied with counsel's services and did not need counsel to file any motions or talk to any witnesses did not conclusively refute his claim that he was unaware of the possibility of asserting the afterthought defense at the time he pleaded guilty); Zanchez v. State , 84 So.3d 466, 468 (Fla. 2d DCA 2012) (finding that "the prohibition against going behind the plea announced in Stano " did not foreclose the appellant's claim that defense counsel rendered ineffective assistance by failing to file a motion to suppress, and the summary denial of her claim was erroneous, where she responded affirmatively during the plea hearing when asked whether counsel had discussed with her all defenses she might have, including any motions that could be filed to challenge the evidence taken from her or her statements to police, but the suppression issue was not specifically addressed); Wilson v. State , 871 So.2d 298, 299-300 (Fla. 1st DCA 2004) (reversing the summary denial of the appellant's claim that defense counsel failed to investigate evidence that would have supported a motion to suppress his statements to the police because the record attachments did not conclusively refute the claim where it offered no indication that he was made aware of a potential suppression issue prior to entering his plea).

In this case, as the State properly conceded in its response to our Toler order, the record attachments to the trial court's order do not conclusively refute Appellant's claims in Grounds 1, 2, and 3 because they do not reflect that the issues of the suppression of evidence or the discrepancy in the alleged weight of the cocaine were addressed at the plea hearing or that Appellant had otherwise been made aware of them prior to entering his plea of guilty. Therefore, the trial court erred by summarily denying those claims. We note, however, that Appellant completely omitted an allegation of prejudice as to Ground 3, rendering that claim facially insufficient. Accordingly, we reverse the denial of Grounds 1 and 2 and remand for the trial court to either attach portions of the record that conclusively refute the claims or hold an evidentiary hearing. We also reverse the denial of Ground 3 and remand for the court to strike the claim with leave for Appellant to file a facially sufficient claim in accordance with Spera v. State , 971 So.2d 754 (Fla. 2007). See Zanchez , 84 So.3d at 467-69 (reversing the denial of the ineffective assistance of counsel claim because the record attachments did not conclusively refute it and remanding for the trial court to strike the claim with leave to amend because it was facially insufficient given that it omitted an allegation of prejudice). We affirm the denial of Ground 4.

AFFIRMED IN PART, REVERSED IN PART , and REMANDED .

Lewis, Rowe, and Makar, JJ., concur.

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986).


author: KELLY, Judge. SILBERMAN, Judge, Dissenting.

text:
    Thomas SAMMONS and Madeline Sammons, Appellants, v. ADAM GREENFIELD, D.O.; ASG Doctors, Inc. ; and Family Medical Center of Port Richey, Inc., d/b/a Family Medical Centers, Appellees.
    Case No. 2D17-755
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019
    Thomas A. Burns of Burns, P.A., Tampa; and Desiree E. Bannasch of Desiree E. Bannasch, P.A., Orlando, for Appellants.
    Bryan R. Snyder and Isaac R. Ruiz-Carus of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Tampa, for Appellees.
    BY ORDER OF THE COURT:
   Appellees' motion for rehearing and rehearing en banc is denied. On the court's own motion, the prior opinion dated October 19, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

KELLY, Judge.

Thomas and Madeline Sammons appeal from the final judgment entered against them after the trial court dismissed their lawsuit against the appellees, Adam Greenfield, D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc. We reverse.

Mr. Sammons passed away during the course of the litigation against the appellees. The Sammons' counsel filed a suggestion of death but did not serve a motion to substitute the personal representative of Mr. Sammons' estate within ninety days as required by Florida Rule of Civil Procedure 1.260(a)(1), nor did counsel seek an extension of time within which to do so. A week after the ninety-day period passed, the appellees moved to dismiss the Sammons' lawsuit with prejudice. At the hearing on the motion to dismiss, counsel for the Sammons presented the court with an affidavit detailing a health issue she had been experiencing and explaining how the condition was responsible for her failure to timely file the motion to substitute. After reviewing the affidavit and hearing argument, the trial court concluded counsel had not shown excusable neglect and granted the motion to dismiss with prejudice because the statute of limitations on the Sammons' claims had expired.

"The courts of this state have a long-standing tradition in favor of the disposition of an action on its merits." Tucker v. Firestone Tire & Rubber Co., 552 So. 2d 1178, 1179 (Fla. 2d DCA 1989) (citations omitted). Further, this court has recognized that rule 1.260"has been liberally interpreted to permit substitution beyond the ninety-day time period." Id.; see also Mims ex. rel. Mims v. Am. Sr. Living of Dade City, FL, LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) (same). Moreover, we have explained that "all doubt should be resolved in favor of allowing trial upon the merits." Tucker, 552 So. 2d at 1179 ; see also Rogers v. First Nat'l Bank at Winter Park, 232 So. 2d 377, 378 (Fla. 1970) (explaining that courts should be liberal when determining excusable neglect because "[w]hile our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice").

With these principles in mind, we conclude that the Sammons' counsel made a sufficient showing of excusable neglect. See City of Ocala v. Heath, 518 So. 2d 325, 326 (Fla. 5th DCA 1987) (finding that counsel's illness combined with the effects of his medication made his neglect excusable). Therefore, we reverse the judgment in favor of the appellees and remand for the trial court to vacate the order dismissing the Sammons' complaint and for further proceedings consistent with this opinion.

Reversed and remanded.

MORRIS, J., Concurs.

SILBERMAN, J., Dissents with opinion.

SILBERMAN, Judge, Dissenting.

I dissent. Simply put, the trial court considered all the information provided by the parties and determined that counsel for the Sammons' claim of excusable neglect was not credible. Because this finding is supported by the record, I cannot agree that the court abused its discretion in dismissing the action as to Mr. Sammons. As to Mrs. Sammons, however, her cause of action for loss of consortium survived the dismissal of Mr. Sammons' claims. Thus, I would affirm in part and reverse in part.

I. Background

Thomas and Madeline Sammons seek review of a final defense judgment in this action alleging medical malpractice in the treatment of Mr. Sammons. The trial court dismissed the action based on the Sammons' failure to timely substitute a party plaintiff pursuant to Florida Rule of Civil Procedure 1.260(a)(1) after the suggestion of Mr. Sammons' death.

The Sammons filed the underlying action against Adam Greenfield, D.O.; ASG Doctors, Inc.; and Family Medical Center of Port Richey, Inc., d/b/a Family Medical Centers (together "Defendants"), alleging Dr. Greenfield failed to timely diagnose and treat redness and irritation in one of Mr. Sammons' toes. Mr. Sammons sought damages against all three Defendants for negligence, and Mrs. Sammons sought damages for loss of consortium.

Mr. Sammons passed away from unrelated causes in March 2016, and the Sammons served a suggestion of death on April 20, 2016. On July 25, 2016, Defendants filed a motion to dismiss for failure to substitute a party within ninety days of filing the suggestion of death in accordance with rule 1.260(a)(1). According to the motion, the probate proceeding for Mr. Sammons' estate had been initiated and Mrs. Sammons had been appointed personal representative at least a month before the expiration of the ninety-day period. The motion requested dismissal with prejudice because the applicable statute of limitations had expired.

The Sammons did not file a response to Defendants' motion to dismiss. Instead they filed an untimely motion to substitute Mrs. Sammons as personal representative of the Estate as the party plaintiff. The Sammons did not schedule that motion for hearing. At the hearing on the motion to dismiss in December 2016, the Sammons' counsel ("Counsel") requested that the court allow a late substitution based on her excusable neglect. Counsel offered an affidavit in support of this request that had not been provided to defense counsel or filed with the court. In her affidavit, Counsel asserted that she failed to timely substitute parties due to cognitive problems she claimed to be experiencing as a result of undiagnosed hypothyroidism. Counsel did not provide an affidavit from her physician, but she produced a doctor's note dated November 2016 which stated, "Due to this patient's medical illness which she had been unaware of she has been having cognitive changes. She is compliant with her treatment and will be under my care as well as possibly other specialist's care."

The court questioned Counsel for specific details regarding when and how she learned of her cognitive problems. Counsel asserted that she first learned of her cognitive problems in August 2016 when she consulted a physician about memory loss and word-finding difficulties she had been experiencing in the previous months. She was diagnosed with hypothyroidism and began taking medication in September 2016. The court was skeptical of Counsel's assertion that her medical condition prevented her from filing a timely motion to substitute. The court pointed out that Counsel had filed a notice of unavailability on September 7, 2016, in which she did not mention any medical conditions. Counsel said that she filed the notice of unavailability prior to attending a legal seminar in Wyoming for most of September. The court then suggested that, if counsel could attend a legal seminar, she must have been capable of handling her cases as well. Counsel said that the problem with her condition was that the memory loss and brain fog she was experiencing were intermittent.

Defense counsel informed the court that he had communicated with Counsel about the motion to dismiss on August 9, 2016, via email. In the email, Counsel said that she was out of town and required more time to substitute parties. She claimed the delay was due to an error with the bond in the probate proceeding. She did not mention any health-related issues. In response to defense counsel's assertions, Counsel said she did not remember sending the email.

The court rejected Counsel's assertion that her medical condition prevented her from filing a timely motion to substitute. Based on the information before it, the court determined that Counsel was fully aware of the procedural posture of the case and that her failure to timely substitute was due to a bond issue. The court gave great weight to the fact that Counsel filed a notice of unavailability and communicated with defense counsel about the motion to dismiss without mentioning a medical problem. Thus, the court rejected Counsel's claim of excusable neglect.

The Sammons raise two issues on appeal. First, they assert that the court erred by determining as a matter of law that Counsel's failure to comply with rule 1.260(a)(1) did not constitute excusable neglect. Second, they argue that the trial court erred in dismissing Mrs. Sammons' loss of consortium claim because it survives the dismissal of Mr. Sammons' action for failure to timely substitute.

II. Excusable Neglect

The court granted Defendants' motion to dismiss based on the Sammons' failure to comply with rule 1.260(a)(1), which provides, in pertinent part, as follows:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.... Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

"While the language of Rule 1.260 is mandatory, the statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc." as provided for in Florida Rule of Civil Procedure 1.540(b)(1). Pearl v. Kelly, 442 So. 2d 1012, 1013 (Fla. 3d DCA 1983) (citations omitted); see also Mims ex rel. Mims v. Amer. Senior Living of Dade City, Fla., LLC, 36 So. 3d 935, 936 (Fla. 2d DCA 2010) (" Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the ninety-day period set forth in the rule."). A party is also entitled to move for an extension of time in which to substitute parties if they have not been able to timely do so. Pearl, 442 So. 2d at 1013.

It is the movant's burden to establish excusable neglect for failing to take action in a case under rule 1.540(b). Bank of N.Y. Mellon v. P2D2, LLC, 100 So. 3d 205, 208 (Fla. 2d DCA 2012) ; Bowers v. Allez, 165 So. 3d 710, 711 (Fla. 4th DCA 2015). A finding of excusable neglect may be based upon a person's physical or mental infirmities. Paul v. Wells Fargo Bank, N.A., 68 So. 3d 979, 985 (Fla. 2d DCA 2011) ; Bowers, 165 So. 3d at 711-12. However, those infirmities must be the basis for the movant's failure to take action in the case. Paul, 68 So. 3d at 984. We review a trial court's determination regarding excusable neglect for an abuse of discretion. De Vico v. Berkell, 976 So. 2d 646, 647 (Fla. 3d DCA 2008).

On appeal, the Sammons argue for the first time that the trial court erred by failing to conduct an evidentiary hearing to determine whether Counsel had established excusable neglect. However, at no point did Counsel suggest that an evidentiary hearing was necessary. Instead, Counsel freely responded to the court's inquiry into the specific details regarding when and how she learned of her cognitive problems. And Counsel argued that the facts before the court were sufficient to establish excusable neglect. Thus, the Sammons did not preserve and indeed waived any issue regarding their right to an evidentiary hearing. See Sciame v. Sciame, 215 So. 3d 190, 192 (Fla. 2d DCA 2017).

The Sammons alternatively argue that the trial court erred in granting the motion to dismiss because Counsel's affidavit alone was sufficient to establish excusable neglect. I cannot agree that a trial court must take counsel's assertions of excusable neglect at face value, particularly where information casting doubt on the assertions is before the court. As the majority notes, Counsel offered an affidavit in which she asserted that she failed to timely substitute parties due to memory lapses and brain fog she was experiencing as a result of undiagnosed hypothyroidism. Counsel further asserted that she had started noticing the memory lapses and difficulty with name recall in the months preceding August 2016. She was diagnosed with hypothyroidism and began taking medication in September 2016. Counsel did not provide an affidavit from her physician, but she provided a doctor's note dated November 2016 vaguely stating, "Due to this patient's medical illness which she had been unaware of she has been having cognitive changes."

The court questioned Counsel regarding her memory lapses and brain fog. The court noted that Counsel failed to request an extension of time or indicate on the record at any time prior to the hearing that she had a medical problem. The court added that Counsel failed to mention any medical issue in the August 2016 email despite the email reflecting that Counsel was "fully aware of what's going on." Counsel also made no mention of a medical issue in her September 2016 notice of unavailability. Instead, Counsel indicated that she was going to Wyoming to attend a legal seminar. In determining that Counsel failed to meet her burden of establishing excusable neglect, it is evident that the court did not find Counsel to be credible. Because the record supports this determination, we must affirm. See Brivis Enters. v. Von Plinski, 8 So. 3d 1208, 1209 (Fla. 3d DCA 2009).

Indeed, the Fourth District has affirmed a finding of no excusable neglect under analogous circumstances. See Bowers, 165 So. 3d 710. In Bowers, the appellee obtained a default judgment based on the appellants' failure to file a timely answer to the complaint. Id. at 711. The appellants, Peter J. Bowers and Peter J. Bowers, P.A., moved to vacate the default judgment in accordance with rule 1.540(b) on the basis of excusable neglect. The appellants asserted that Bowers had medical issues, had to deal with medical issues involving his parents, and separated from his employment during the time the answer was required to be filed. Id. at 711. Bowers, who was also an attorney, asserted that "he had to prioritize servicing his other clients in their cases before handling matters in the instant case." Id.

In reviewing the trial court's denial of the motion to vacate, the Fourth District concluded that the appellants had not established excusable neglect. See id. at 712. The court reasoned as follows:

Although Appellants allege medical issues with Bowers and his parents before and surrounding the time of service of the complaint, Appellants timely requested an extension because of these circumstances and subsequently obtained additional time to respond, stating that they could respond by November 12, 2013. However, they failed to do so and failed to request another extension of time. There were no allegations that Bowers' medical issues kept him hospitalized or incapable of communicating with the court at the time. In fact, per Appellants' motion, during this same time period, Bowers was prioritizing the cases of his clients and receiving continuances for their matters. Under the circumstances, Appellants' failure to timely file an answer or at least a request for another extension in a case where they were the defendants is not excusable, it is inexplicable.

Id.

In this case, as in Bowers, the party asserting excusable neglect (Counsel) was an attorney who claimed that medical issues kept her from filing a document in compliance with time limitations. As in Bowers, Counsel indicated knowledge of the deadline but failed to request an extension of time. Instead, as found by the trial court, Counsel was practicing law with no mention of any medical issues. As in Bowers, the trial court did not abuse its discretion in finding that Counsel's failure to comply with time limitations did not constitute excusable neglect.

The majority's reliance on City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA 1987), is misplaced. While Heath's attorney filed an affidavit asserting that prior counsel had failed to timely file an amended complaint due to memory lapses and a limited ability to think clearly, there was no question regarding counsel's credibility. Id. at 326. Here, while Counsel's affidavit alleged similar ailments, the additional information provided to the court by Counsel and Defendants' attorney led the court to determine that Counsel's assertions of memory lapses and a limited ability to think clearly were simply not credible. Under these circumstances, Heath is inapposite and does not support reversal.

III. Mrs. Sammons' Loss of Consortium Claim

Defendants do not dispute that only Mr. Sammons' negligence claims are subject to dismissal for failure to comply with the ninety-day time limit for substitution. The issue in dispute is whether Mrs. Sammons' derivative cause of action for loss of consortium survives the dismissal of Mr. Sammons' claims pursuant to rule 1.260(a)(1).

No Florida cases address this exact issue. However, the Third District and the Fifth District have addressed and conflicted on the closely-related issue of whether a wife's cause of action for loss of consortium survives the abatement of her husband's personal injury action upon his death pursuant to section 768.20, Florida Statutes (1972). The Sammons argue that the Fifth District's reasoning in Taylor v. Orlando Clinic, 555 So. 2d 876 (Fla. 5th DCA 1989), quashed in part on other grounds, Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013) ; and Randall v. Walt Disney World Co., 140 So. 3d 1118 (Fla. 5th DCA 2014), supports a holding that Mrs. Sammons' loss of consortium action survives the dismissal of Mr. Sammons' personal injury claims. Defendants argue that the Third District's reasoning in AC & S, Inc. v. Redd, 703 So. 2d 492, 494 (Fla. 3d DCA 1997), supports the contrary holding. I agree with the reasoning of the Fifth District in Taylor and Randall and conclude that it supports reversal of the final judgment as to Mrs. Sammons.

In Taylor, the injured plaintiff died while the personal injury and loss of consortium claims he and his wife had filed in their medical malpractice action were pending. 555 So. 2d at 877. The ninety-day period for substituting parties passed without a substitution, and the trial court dismissed the action pursuant to rule 1.260(a)(1). Id. at 877-78. The Fifth District affirmed the dismissal of the husband's personal injury action because it was abated by his death. Id. at 878-79. However, the court reversed the dismissal of the wife's loss of consortium claim. Id. at 879. The court concluded, "The wife's cause of action for loss of consortium, while derived from the personal injury to the husband, survives the death of her husband-patient, whose own personal injury action did not survive his death." Id. at 878.

In AC & S, the Third District declined to follow Taylor and determined that a wife's loss of consortium action did not survive the abatement of her husband's personal injury action upon his death. 703 So. 2d at 494. The court reasoned that a cause of action for loss of consortium is a derivative right in that the entitlement to recovery is dependent upon the other spouse's having a viable personal injury cause of action against the defendant. Id. at 493-94 (citing Gates v. Foley, 247 So. 2d 40, 45 (Fla. 1971) ). The Third District found support for its position in the legislature's provision in the Wrongful Death Act for damages that are inclusive of a spouse's damages for loss of consortium. Id. at 494. The court also found significant that the Act provided for recovery from the date of injury rather than the date of death. Id. at 494-95.

In Randall, the Fifth District reaffirmed its holding in Taylor that a wife's loss of consortium claim survives the death of her husband and corresponding dismissal of his personal injury action. 140 So. 3d at 1121. The court stated "that 'Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.' " Id. (quoting Orange Cty. v. Piper, 523 So. 2d 196, 198 (Fla. 5th DCA 1988) ). And the court noted that Florida courts have repeatedly recognized the existence of a derivative cause of action for loss of consortium in the absence of a primary cause of action for personal injury. Id. (citing Gates, 247 So. 2d at 41 ; Ryter v. Brennan, 291 So. 2d 55, 57 (Fla. 1st DCA 1974) ;

Resmondo v. Int'l Builders of Fla., Inc., 265 So. 2d 72, 73 (Fla. 1st DCA 1972) ).

Finally, the Randall court rejected the Third District's reliance in AC & S on the fact that the legislature provided for damages that are inclusive of a spouse's loss of consortium damages in the Wrongful Death Act. 140 So. 3d at 1121. The court noted that the Third District's analysis "implicitly concluded that because the surviving spouse can recover from the date of injury, the loss of consortium from the date of injury merges with the continuing injury suffered after death, and the surviving spouse therefore recovers" under the Act. Id. However, the Third District did not consider situations in which the injured spouse dies from an injury that is not related to the personal injury action. In such a case, the surviving spouse could not bring an action under the Act and "would lose a vested right to recover for a loss of consortium from the date of injury to the date of death." Id. The Third District concluded this result is not what the legislature intended. Id.

I agree with the Fifth District's reasoning in Randall. While a loss of consortium claim is a derivative right, it does not require a simultaneous personal injury action and may be sustained unless the underlying personal injury action has been ruled upon on the merits. Mrs. Sammons' claim for loss of consortium thus survives the dismissal of Mr. Sammons' personal injury claims for the failure to timely substitute under rule 1.260(a)(1). Therefore, I would reverse the final judgment as it pertains to Mrs. Sammons' claim for loss of consortium and remand for further proceedings.

One final observation, if we were to affirm the dismissal of Mr. Sammons' claims but reverse as to Mrs. Sammons' loss of consortium claim, we would not be in conflict with the Third District in AC & S because there is an important distinction between the two cases. In this case, Mr. Sammons' personal injury action did not abate under section 768.20, Florida Statutes (2015). In fact, the Sammons concede that Mr. Sammons' death was not caused by the personal injuries that gave rise to this medical malpractice action. Thus, unlike the wife in AC & S, Mrs. Sammons cannot recover damages for her loss of consortium under the Wrongful Death Act. Indeed, this case involves the exact situation the Randall court sought to avoid. If Mrs. Sammons' claim did not survive the dismissal of Mr. Sammons' personal injury action for failure to timely substitute, she would be deprived of her right to damages for her loss of consortium from the date of Mr. Sammons' injury to the date of his death.

IV. Conclusion

Because the trial court's finding that Counsel failed to establish excusable neglect is based on a credibility determination that is supported by the record, I would affirm the final judgment as it pertains to Mr. Sammons' claims. However, because Mrs. Sammons' loss of consortium claim survives the dismissal of Mr. Sammons' personal injury action under rule 1.260(a)(1), I would reverse the final judgment as it pertains to Mrs. Sammons.

      The dissent seems to suggest that one can infer from our opinion that the trial court must take "counsel's assertions of excusable neglect at face value." Our opinion should not be read to suggest anything like that as we take no position on that issue one way or another, nor do we need to as the appellees have not contested counsel's assertions-they simply argue that what she asserted does not amount to excusable neglect. Our problem with the trial court's conclusion is that it was a non sequitur.

      Section 768.20 provides, in pertinent part, "When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." There is no suggestion that Mr. Sammons' claims abated upon his death in this case because the Sammons concede that Mr. Sammons death was not caused by his personal injuries.


author: MORRIS, Judge.

text:
    David WILSON, Appellant, v. AMERILIFE OF EAST PASCO, LLC (f/k/a Ameri-Life and Health Services of East Pasco, LLC ), a Delaware Limited Liability Company, Appellee.
    Case No. 2D18-2431
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019
    Christopher L. DeCort and Nicole Deese Newlon of Johnson & Cassidy, P.A., Tampa, for Appellant.
    Ryan M. Scully, Clearwater (withdrew after briefing); R. Nathan Hightower, Clearwater, for Appellee.
   MORRIS, Judge.

David Wilson appeals a nonfinal order compelling arbitration of his counterclaims, thereby staying the litigation of them, in an action brought by AmeriLife of East Pasco, LLC, f/k/a Ameri-Life and Health Services of East Pasco, LLC. We conclude that the trial court erred in compelling arbitration because the filing of AmeriLife's complaint resulted in a waiver of its right to seek arbitration and the filing of Wilson's counterclaims did not revive that right to arbitration. We therefore reverse the order on appeal.

BACKGROUND

AmeriLife is an insurance company. Wilson worked as a sales agent for AmeriLife from November 2008 until August 2016, when his employment was terminated. AmeriLife filed a complaint against Wilson in November 2017 alleging that after Wilson's employment was terminated, he violated provisions of an independent agent agreement (agent agreement) and an independent agent noncompete agreement (noncompete agreement). As a result, AmeriLife sought damages for breach of contract, tortious interference with contractual and advantageous business agreements, and misappropriation and use of confidential trade secrets. AmeriLife also sought an injunction and restitution for unjust enrichment.

The agent agreement specifically includes a section entitled "ARBITRATION," which provides in relevant part that if the parties did not settle any dispute within sixty calendar days after the initiation of negotiation, then all claims (except for claims made under paragraphs 10 and 12) "arising out of or relating to" the agreement shall be resolved by arbitration. The arbitration provision provides the exception that "[n]othing herein contained shall in any way deprive either party of its right to seek a temporary restraining order, preliminary or permanent injunction or other equitable relief in a court of competent jurisdiction."

Conversely, the noncompete agreement does not include an arbitration provision. This fact is not in dispute. On the issue of remedies, the noncompete agreement provides, in relevant part, that "[i]n addition to any remedies otherwise available at law, ... the Agency shall be entitled to recover damages for your replacement of, or interference with, business of Agency, whether done directly or indirectly, by you or to which you are a participant in any manner." The remedies provision of the noncompete agreement also sets forth a liquidated damages amount for each day that Wilson is found to be in violation of that agreement.

The noncompete agreement prohibited Wilson from competing with AmeriLife within thirty-five miles of AmeriLife's offices for a period of twenty-four months following the effective date of his termination. This meant that Wilson could not sell certain insurance products or solicit or deal with AmeriLife's customers regarding the sale of insurance products of the type sold by AmeriLife during the stated period. The noncompete agreement also prohibited Wilson from misappropriating AmeriLife's confidential information and trade secrets both during and following his termination. Similarly, the agent agreement also contained terms prohibiting Wilson from contacting and soliciting AmeriLife's customers for the purpose of obtaining their business regarding certain insurance products and prohibiting Wilson from using or disclosing AmeriLife's trade secrets and confidential information.

AmeriLife alleged that shortly after Wilson's termination, it learned that he was violating both the agent agreement and the noncompete agreement by attempting to establish business relationships with current and potential AmeriLife customers and/or contractors and by attempting to move their business to him in lieu of beginning or continuing their business relationship with AmeriLife.

Wilson filed an answer and affirmative defenses which included counterclaims for declaratory and injunctive relief, breach of contract based on improper termination and vested renewal commissions or commission account statements, an accounting (relating to the commissions), and for violations of the Fair Labor Standards Act (based on an alleged overtime violation).

Instead of responding to the counterclaims, AmeriLife filed its motion to compel arbitration and to stay litigation of Wilson's counterclaims. AmeriLife acknowledged that the agent agreement contained an arbitration provision that applied to "all claims" arising out of that agreement, and it argued that all of Wilson's counterclaims "arise out of what Wilson alleges was the improper termination of his Agent Agreement and damages related to the termination of the Agent Agreement."

Wilson filed a response in opposition to the motion to compel arbitration, arguing that AmeriLife's claims were based on the agent agreement and that AmeriLife waived its right to seek arbitration by failing to confine its request for relief to injunctive or equitable relief and, instead, additionally seeking damages. Wilson further contended that AmeriLife acted inconsistently "with its purported intent to arbitrate" by requesting in January 2018 to take Wilson's deposition. Wilson then asserted that the filing of his counterclaims did nothing to revive AmeriLife's right to seek arbitration because his counterclaims did not "alter the scope and nature of the litigation."

The trial court held a hearing on the motion to compel arbitration but made no factual findings. Ultimately, the trial court entered an order granting AmeriLife's motion to compel arbitration of Wilson's counterclaims and to stay litigation related to those counterclaims only, though the order again failed to contain any factual findings.

ANALYSIS

In determining whether parties are required to arbitrate a dispute, courts must consider three elements: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The outcome of this case rests on the third element: waiver.

We generally review an order granting or denying a motion to compel arbitration de novo, but the issue of "whether a party has waived the right to arbitrate is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court's findings." Chaikin v. Parker Waichman LLP, 253 So. 3d 640, 643 (Fla. 2d DCA 2017) (quoting Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 686 (Fla. 2009) (en banc)).

"Waiver" has been defined "as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001) ). "This general definition of waiver is applicable to a right to arbitrate." Id. Therefore the issue of whether an arbitration agreement has been waived "should be analyzed in much the same way as in any other contractual context," and the focus is "whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right." Id. (quoting Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987) ).

A party which seeks to rely on its right to arbitration must safeguard the right and not act inconsistently with it. McLeod, 15 So. 3d at 687 (citing Nat'l Found. for Cancer Research, 821 F.2d at 774 ). However, actively participating in a lawsuit is inconsistent with arbitration. Id. Thus, "a party may waive [its] right to arbitration by filing a lawsuit without seeking arbitration." Id. (citing Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So. 2d 1243, 1245 (Fla. 2d DCA 1976) ); see also Chaikin, 253 So. 3d at 643. Notably, "once a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of [its] adversary." McLeod, 15 So. 3d at 687.

Here, by filing its complaint, AmeriLife actively participated in the lawsuit thereby waiving its right to arbitration of Wilson's counterclaims. If AmeriLife's complaint had sought only equitable relief on its claims arising out of the agent agreement, we might conclude that there was no waiver because the agent agreement clearly allowed AmeriLife to seek injunctive relief in court.

But here, the claims in AmeriLife's complaint were not solely equitable in nature. Rather, AmeriLife sought both equitable and legal relief. See Swan Landing Dev., LLC v. Fla. Capital Bank, N.A., 19 So. 3d 1068, 1072 (Fla. 2d DCA 2009) (distinguishing between claim to foreclose a mortgage, which was equitable in nature and therefore an exception to the arbitration agreement contained within the note, and claims for breach of contract which were legal in nature and subject to arbitration provision). Crucial to our holding is the fact that AmeriLife's legal claims had a contractual nexus to the agent agreement that contained the arbitration provision. See Chaikin, 253 So. 3d at 644 (explaining that a claim has a contractual nexus to a contract "if it emanates from an inimitable duty created by the parties' unique contractual relationship"). By electing to sue and pursue relief in the circuit court on arbitrable claims arising out of the agent agreement, AmeriLife acted inconsistently with its right to arbitrate the legal claims and, as a result, waived its right to seek arbitration of any claims arising out the agent agreement. See id. at 645 (holding that by electing to sue and seek relief in the trial court on arbitrable claims arising out of a partnership agreement, appellee waived its right to seek arbitration).

We are not persuaded by AmeriLife's argument that its claim for misappropriation and misuse of trade secrets was an exception to the arbitration provision. The noncompete agreement, as we already explained, did not contain an arbitration provision, and paragraph 5 of the noncompete agreement incorporated paragraph 18 of the agent agreement which addresses misappropriation and misuse of trade secrets. However, the arbitration provision in the agent agreement makes clear that "all claims, (with the exception of claims arising out of Paragraphs 10 and 12), arising out of or relating to this Agreement and the transactions contemplated hereunder to which the Agreement relates, ... shall be resolved by arbitration." Thus the fact that the noncompete agreement incorporates paragraph 18 of the agent agreement does not remove paragraph 18 from being subject to arbitration. It merely means that a claim of misappropriation and misuse of confidential trade secrets is a violation of both paragraph 5 of the noncompete agreement and paragraph 18 of the agent agreement.

We likewise reject AmeriLife's argument that the references in paragraphs 15 and 18 of the agent agreement to the ability of AmeriLife to recover damages somehow implicitly except those paragraphs from the arbitration provision. Clearly, the parties knew how to specifically except types of claims as indicated by the specific exception to arbitration for claims brought under paragraphs 10 and 12. If the parties intended for claims brought under paragraphs 15 and 18 to also be excepted from arbitration, they could have stated so. They did not. Once AmeriLife sought damages for arbitrable claims arising out of the agent agreement, including those arising out of paragraphs 15 and 18, it waived its right to seek arbitration.

Finally, we are not convinced by AmeriLife's argument that the references in the arbitration provision to a "court having jurisdiction" or AmeriLife "prevailing in court proceedings" indicates that the parties intended for certain claims, such as those arising out of paragraphs 15 and 18, to be addressed in court rather than through arbitration. We construe those references as relating to circumstances not present here, namely, an arbitration award being reduced to judgment or to court proceedings involving claims arising out paragraphs 10 and 12.

Having determined that AmeriLife waived its right to arbitrate claims arising out of the agent agreement, we must next determine whether Wilson, by filing his counterclaims, revived AmeriLife's right to arbitrate legal claims under the agent agreement. Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So. 2d 176 (Fla. 4th DCA 1998), is instructive on this issue.

In Owens, the parties entered into a contract containing an arbitration provision that allowed the parties to submit any dispute arising out of the contract to arbitration by sending notice to the other party. Id. at 177. A dispute arose, and the appellant filed its action for breach of contract, foreclosure of a security agreement, and account stated. Id. After the appellee's motion to dismiss was denied, the appellee filed an answer, affirmative defenses, counterclaim, and third-party complaint; the counterclaims alleged fraudulent inducement and breach of contract. Id. The appellant's motion to stay the proceedings and compel arbitration was denied. Id.

On appeal, although the appellant argued that it had not participated in the litigation in relation to the counterclaims, the Fourth District Court of Appeal rejected that assertion and concluded that the appellant waived its right to arbitrate due to its active participation in the litigation. Id. The court explained that the counterclaims did "not involve issues separate and distinct from those raised in appellant's amended complaint" and "[t]he matters raised in the counterclaim[s] are intertwined with issues raised in the amended complaint." Id. The court also noted that "the counterclaim[s] did not significantly alter the scope and nature of the litigation, such that [they] revived a previously waived right to demand arbitration." Id. Ultimately, the court concluded that the finder of fact would have to resolve factual issues that were common to both the amended complaint and the counterclaims, and it affirmed the denial of the motion to compel arbitration. Id.; see also Chaikin, 253 So. 3d at 645 (holding that appellee's decision to pursue relief in the trial court of arbitrable claims waived its right to compel arbitration of appellant's counterclaims which were based on same agreement, noting that "[w]hat is sauce for the goose is sauce for the gander").

Here, the entirety of this dispute involves Wilson's employment with AmeriLife.

We reject the argument made by AmeriLife that Design Benefit Plans, Inc. v. Enright, 940 F. Supp. 200 (N.D. Ill. 1996), a case that the Owens court cited, requires an affirmance. Although the court in Design Benefit Plans, Inc. concluded that a defendant's counterclaim for unpaid commissions revived any waived right to arbitrate, the case is factually distinguishable. There, the plaintiff originally filed a complaint for breach of restrictive covenants in an agent agreement and included claims for a declaratory judgment, breach of contract, and tortious interference with contractual relations. 940 F. Supp. at 202. The defendant's counterclaim for unpaid commissions was deemed to significantly alter the nature of the litigation because it involved a claim that was separate and distinct from the plaintiff's claims. Id. at 203. Thus the court concluded that the plaintiff was entitled to seek arbitration of the defendant's counterclaims. Id. at 203, 207.

But here, AmeriLife's attempt to liken Wilson's counterclaims to the counterclaim made in Design Benefit Plans, Inc. is unavailing. Wilson's counterclaims included a claim for breach of contract for unlawful termination of the agent agreement, and his other claims also arise out of the agent agreement. At the very least, the breach of contract claim based on unlawful termination is inextricably intertwined with AmeriLife's claims for breach of contract. It matters not that the parties' claims may have arisen under different paragraphs of the agent agreement. The crucial fact is that both parties raised claims arising out of the agent agreement containing the arbitration provision. See Chaikin, 253 So. 3d at 644-45 (rejecting the appellee's argument that only the appellant's counterclaims were subject to arbitration and concluding that the claims made in the complaint and counterclaims were intertwined because "[t]he initial lawsuit and the counterclaims find their genesis in the Partnership Agreement" containing the arbitration provision). We conclude that the issues raised in Wilson's counterclaims were reasonably foreseeable in the context of AmeriLife's complaint. Accordingly, we conclude that Wilson's counterclaims did not revive AmeriLife's previously waived right to demand arbitration.

We therefore reverse the order staying litigation of Wilson's counterclaims in favor of arbitration and remand for proceedings in conformance with this opinion.

Reversed and remanded.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(B) and 9.130(a)(3)(C)(iv).

      AmeriLife requested that its claims be allowed to proceed.

      Cf. Apartment Inv. & Mgmt. Co. v. Flamingo/S. Beach 1 Condo. Ass'n, 84 So. 3d 1090 (Fla. 3d DCA 2012). There, the Third District Court of Appeal reviewed a circuit court's construction of an arbitration provision similar to the one in the agent agreement in this case. The provision, while requiring arbitration of disputes arising out of an agreement between the parties, also contained exceptions. Id. at 1091-92. Specifically, the arbitration provision provided that the condominium association was not precluded from seeking and obtaining equitable relief in court. Id. at 1092. Thus, because all of the condominium association's claims were equitable in nature, the court held that all of the claims "may be resolved by the trial court without requiring resolution by arbitration." Id. at 1093.

      We note that in its answer brief, AmeriLife briefly referenced paragraph 20 of the agent agreement. Notably, however, AmeriLife made no substantive argument relating to that paragraph. Like paragraphs 15 and 18, paragraph 20 was not specifically excepted from the arbitration provision. Thus any claim arising out of a violation of that paragraph would also act as a waiver of the right to arbitrate.

      Owens distinguished Design Benefit Plans, Inc. on the basis that it involved claims that were subject to arbitration because they were separate and distinct from claims for which arbitration had arguably been waived. Owens, 711 So. 2d at 177. AmeriLife makes much of the fact that this court then relied on Owens in Hawkins v. James D. Eckert, P.A., 738 So. 2d 1002, 1003 (Fla. 2d DCA 1999). In Hawkins, we rejected the argument that a party's right to arbitrate was revived by the filing of a counterclaim, as the court did in Owens, concluding that the counterclaim did not alter the scope and nature of the litigation to the extent that it revived the appellee's previously waived right to demand arbitration. Hawkins, 738 So. 2d at 1003. But that passing reference to Owens was not the holding of our case. And in any event, Design Benefit Plans, Inc. is two steps removed from our Hawkins opinion. Further, we are not bound by cases from federal district courts, and we hesitate to give much weight to the Design Benefit Plans, Inc. case when it provides no explanation for why the counterclaim was deemed separate and distinct from the claims made in the complaint such that it altered the nature of the litigation.