author: Gross, J.

text:
    STATE ATTORNEY'S OFFICE OF the SEVENTEENTH JUDICIAL CIRCUIT and School Board of Broward County, Appellants, v. CABLE NEWS NETWORK, INC., Miami Herald Media Company, Sun-sentinel Company, LLC, ABC, Inc., the Associated Press, the Bradenton Herald, the First Amendment Foundation, Florida Press Association, Gannett Company, Inc., Los Angeles Times Communications LLC, the New York Times Company, Orlando Sentinel Communications Company, LLC, Broward County Sheriff's Office, and Scott Israel, in his official capacity as Broward County Sheriff, Appellees.
    Nos. 4D18-1335 4D18-1336
    District Court of Appeal of Florida, Fourth District.
    July 25, 2018 On Motion to Certify Question of Great Public Importance August 3, 2018
    Michael J. Satz, State Attorney, and Joel Silvershein, Assistant State Attorney, Fort Lauderdale, for appellant, State Attorney's Office of the Seventeenth Judicial Circuit.
    Eugene K. Pettis and Debra Potter Klauber of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for appellant, School Board of Broward County.
    Dana J. McElroy, James J. McGuire, and Jon M. Philipson of Thomas & LoCicero, PL, Fort Lauderdale, for appellees, Cable News Network, Inc.; Miami Herald Media Company; and Sun-Sentinel Company, LLC, ABC, Inc.; The Associated Press; The Bradenton Herald; the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; Los Angeles Times Communications LLC; The New York Times Company; and Orlando Sentinel Communications Company, LLC.
   Gross, J.

We affirm the order of the circuit court which directed the disclosure of video footage as public records over the objections of the School Board of Broward County and the State Attorney of the 17th Judicial Circuit.

On February 14, 2018, Nikolas Cruz, a former student, entered the grounds of Marjory Stoneman Douglas High School in Broward County. He walked into Building 12, containing several classrooms, and allegedly shot and killed seventeen people, including students and staff members. The timeline for the shooting is as follows:

2:19 p.m. Cruz is dropped off near the school
2:21 p.m. Cruz enters Building 12 and begins firing rifle
2:22 p.m. A fire alarm is set off
2:27 p.m. Cruz discards his weapon and exits out the west side of the building

Approximately 70 surveillance cameras are installed at Douglas. The exterior cameras are mounted in plain sight and are "completely visible" to a person looking for them. Without seeing the actual footage from the camera, one would not know:

• Whether the camera is on or off;
• Whether the camera is working;
• How wide the angle is;
• Where the camera is pointing;
• Whether the camera operates at night; or
• How many frames per second the camera is recording.

On February 15, the Broward County Sheriff's Office ("BSO") subpoenaed all of Douglas's video surveillance footage. On February 16, the BSO executed a search warrant and seized the School Board's computers which housed the footage.

Two weeks after the shooting, several media outlets petitioned for access to video recordings captured by Douglas's surveillance cameras. The Media's petition was filed pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, the "Public Records Act." The respondents were the BSO, Scott Israel (BSO Sheriff), the School Board of Broward County, and Robert Runcie (Superintendent of Schools).

The Media's petition averred "extreme public interest" in "the response of law enforcement officers during the shooting and immediately thereafter." The petition mentioned school resource officer, Scot Peterson, by name. The petition was necessitated because the BSO refused to release the footage.

The State Attorney's Office moved to intervene as the authority prosecuting Cruz. The State Attorney argued that the "items sought constitute criminal investigative information" that is exempt from disclosure under the Public Records Act.

The BSO responded to the petition, raising the same exemption, and other objections not relevant to this appeal. The School Board's response claimed that the footage was exempt from disclosure under Florida Statute section 119.071(3)(a), Florida Statutes - the "security system plan exemption."

Before the hearing, the Media filed two DVDs in support of the petition. The first was a video of a press conference conducted by the BSO. In the press conference, Sheriff Scott Israel discusses the Douglas surveillance videos and informs the media that Officer Peterson was suspended based on his failure to enter Building 12 and engage the shooter.

The second DVD was an interview with a Douglas student who described seeing Officer Peterson during the shooting. According to the student, Officer Peterson stood in a stairwell in an adjacent building, talking on his radio, with his gun pointed at Building 12.

The Media also filed several exhibits including its public records request, other public records, and several articles about the shooting. The articles discussed Officer Peterson's actions as well as reports that other deputies remained outside during the shooting taking cover behind their vehicles. One article notes BSO policy which is that "if real time intelligence exists the sole deputy or team of deputies may enter the area and/or structure to preserve life."

The circuit judge conducted an evidentiary hearing on March 8. The evidentiary portion of the hearing included testimony from the BSO's captain of criminal investigations. The captain testified that Cruz is the subject of an active criminal investigation and that the videotapes are part of the criminal investigative information file.

The other relevant testimony about Douglas's surveillance system came from a BSO officer and an assistant principal. This testimony is discussed in more detail below.

At the close of the hearing, the judge announced that he would be doing an in camera review of the footage, which had been redacted to obscure the faces of students and unknown witnesses. Ultimately, the court issued its order requiring the BSO to release the footage (the "first order"). None of the parties appealed the first order, and the BSO provided the specified footage to the Media.

Shortly before the video was released, the BSO published a detailed timeline of events culled from multiple sources, including Douglas surveillance videos. The timeline revealed that there are 70 surveillance cameras at Douglas and that the cameras are motion-activated. The published timeline stated:

The 45 acre campus is equipped to record 70 different camera angles. Most of these views provide coverage of student buildings, walkways and hallways. Building 12 was covered by thirteen interior cameras. School video time stamps are not exactly synchronized with BSO dispatch records. Cameras are also motion activated leaving gaps in coverage.

After reviewing the BSO's newly-released timeline and the footage released March 15, the Media filed a Motion for Further Relief. The Media argued that the footage released was incomplete, edited, and not entirely responsive. The Media asked for "full disclosure" showing the law enforcement response so the public could "evaluate and determine whether more could have, or should have, been done."

The School Board opposed releasing additional footage. It contended that the extensive video footage sought by the Media revealed much more than the "minimal" footage originally produced. It further argued that the Media had not stated any "good cause" for the additional footage because the additional footage sought captured officers' actions after Cruz had dropped his weapon and exited the building.

The Media's motion for further relief spurred three hearings and the appealed order.

The first hearing was a case management conference held on March 23. The Media insisted that it was not seeking any footage of victims - that it was seeking only footage from the exterior cameras showing the law enforcement response. The circuit court clarified that "anyone on the video, other than law enforcement," was going to be pixelated. The BSO did not object to producing additional footage. The court ordered the Media to narrow its request.

The Media then filed its "Amended and Supplemental Motion for Further Relief." The Media specified that it was not seeking any video:

(a) depicting the victims of the shooting,
(b) showing the interior of any school building,
(c) specifically identifying any student, or
(d) depicting Nikolas Cruz.

The Media sought only video from cameras mounted on Buildings 12, 13, 6, 7, 9, 3, the gymnasium, and the auditorium which depicted law enforcement personnel responding to the shooting from 2:15-4:00 p.m.

The second hearing was conducted on April 2. The BSO stated that it was not opposed to releasing video showing first responders but it opposed releasing video showing victims or children's faces.

The School Board argued against releasing any more video. It argued that releasing additional video would reveal the vulnerabilities of Douglas's security system.

After clarifying what the Media was seeking and what the footage would reveal, the court found the request over-inclusive. The judge ordered that the footage to be released would stop at 3:00 p.m. An evidentiary hearing was set for April 4.

At the final evidentiary hearing, a detective testified that Cruz had been indicted and was the subject of a continuing active criminal investigation. He said that the first law enforcement personnel seen on the video is at 2:32 p.m. He testified that of the 5-6 cameras that show first responders, 3-4 were not previously produced.

The chief information officer for the BSO who oversees information technology for the entire Broward County School District testified that he is responsible for "the installation and ongoing maintenance of the surveillance cameras." He testified that surveillance cameras at Douglas are "not typically monitored," and that "no one is sitting watching those cameras but they're recording so that if you need to go back and look at the footage, you can."

A Douglas assistant principal responsible for technology, which included surveillance technology, testified that the cameras were used to monitor the students and to prevent truancy.

Another assistant principal expressed his concern that releasing video footage from more cameras would expose the school's blind spots.

A Major with the school board police supported the view that releasing the videos would show what the school was not recording, jeopardizing the integrity of the security system.

After hearing argument the court found that an in camera review of the redacted footage would be appropriate. Two weeks later, the court issued its "Order on Petitioners' Amended and Supplemental Motion for Further Relief," which is the subject of this appeal.

The order found the footage to be a public record and rejected the State Attorney's attempt to bar disclosure under the "active criminal investigative information" exemption.

Addressing the School Board's argument that the videos are exempt from disclosure because they "relate directly to or reveal information about security systems," the court found that the videos "minimally reveal information relating to the security system" of Douglas, but concluded that "good cause exists that permits disclosure:"

In making this decision, this Court has balanced the public's right to be informed regarding the law enforcement response against the potential harm to the current security system. After reviewing the video recordings, this Court finds that the potential harm to the current security system is outweighed by the strong public interest in disclosure.

Upon finding good cause, the court held that section 119.071(3), Florida Statutes, did not bar disclosure of the video recordings.

The BSO was ordered to produce the redacted versions of the video recordings to the Media. The State Attorney and the School Board each timely appealed, and the videos were not released pending the outcome of this case. As a sealed part of the record on appeal, footage from the five cameras was forwarded to this court.

The videos here at issue are public records subject to disclosure within the meaning of Article I, section 24(a) of the Florida Constitution and Chapter 119, Florida Statutes (2018). The central issue before us is whether the footage is statutorily exempt from disclosure. An "exemption" is defined as "a provision of general law which provides that a specified record ... is not subject to the access requirements of [the Public Records Act]." § 119.011(8), Fla. Stat. (2018).

The Public Records Act "is to be construed liberally in favor of openness, and all exemptions from disclosure construed narrowly and limited to their designated purpose." Barfield v. City of Ft. Lauderdale Police Dep't, 639 So.2d 1012, 1014 (Fla. 4th DCA 1994). "[W]hen in doubt the courts should find in favor of disclosure rather than secrecy." Bludworth v. Palm Beach Newspapers, Inc. , 476 So.2d 775, 779 n.1 (Fla. 4th DCA 1985) ("Expansion of the exemptions from disclosure, rather than of the exclusions from the categories called criminal investigative and criminal intelligence information, is the area of which the courts ought to be chary, given the overarching policy of the Public Records Act.").

We reject the State Attorney's argument that the video footage is exempt from disclosure under section 119.071(2), Florida Statutes (2018), because the footage was created before the criminal investigation began and was compiled by the School Board, not a law enforcement agency.

By statute, "active criminal investigative information" is exempt from disclosure under the Public Records Act. § 119.071(2)(c) 1., Fla. Stat. (2018). "The government has the burden to demonstrate the applicability of a statutory exemption." Rameses, Inc. v. Demings , 29 So.3d 418, 421 (Fla. 5th DCA 2010). In order for a public record to be exempt under the cited section, "the claimant must show that the record is both 'active' and that it constitutes 'criminal investigative information.' " Woolling v. Lamar , 764 So.2d 765, 768 (Fla. 5th DCA 2000).

Criminal investigative information is information compiled by a criminal justice agency in the course of conducting a criminal investigation. The statutory definition provides:

"Criminal investigative information" means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory test reports of investigators or informants, or any type of surveillance.

§ 119.011(3)(b), Fla. Stat. (2018). Such information is "active" "as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future [including] while such information is directly related to pending prosecutions or appeals." Id. § 119.011(3)(d).

The criminal investigative information exemption "furthers the critical importance of preserving the confidentiality of police records surrounding and compiled during an active criminal investigation, ... and is intended to prevent premature disclosure of information during an ongoing investigation being conducted in good faith by criminal justice authorities." Palm Beach Cty. Sheriff's Office v. Sun-Sentinel Co., LLC , 226 So.3d 969, 973 (Fla. 4th DCA 2017) (internal quotation marks and citations omitted).

However, the criminal investigative information exemption "does not exempt other public records from disclosure simply because they are transferred to a law enforcement agency." 40 Government-In-The-Sunshine-Manual, section II-C-15-a-9 at 101 (2018 Ed.); see also Tribune Co. v. Cannella , 438 So.2d 516 (Fla. 2d DCA 1983), quashed on other grounds , 458 So.2d 1075 (Fla. 1984). The Attorney General's office has steadfastly opined that an agency's public records do not become exempt from disclosure simply because they are transferred to a law enforcement agency. E.g. , Op. Att'y Gen. Fla. (Dec. 13, 2006) (informal opinion); Op. Att'y Gen. Fla. 06-04 (2006); Op. Att'y Gen. Fla. 01-75 (2001).

Cannella demonstrates that public records of a governmental entity do not transform into protected "criminal investigative information" because they have been transferred to a law enforcement agency. There, after a police-involved shooting, the Tampa Times sought the release of the personnel files of three Tampa police officers. 438 So.2d at 517-18. In response, the City of Tampa first delayed production of the records and then claimed that it could not produce the records because they had been subpoenaed by the state attorney. Id. at 518. The Times filed a second petition against the Chief Assistant State Attorney Norman Cannella. Id. The trial court held that the records were exempt from disclosure as "criminal investigative information." Id.

The Second DCA reversed, finding that the criminal investigative information exemption did not apply to the City's public records. Id. at 523. The District Court rejected the state attorney's argument that by subpoenaing the records he had "compiled" the information within the meaning of the exemption. Id. The court found that the personnel records were " 'compiled' within the meaning of the statute when the custodial agency, the city, originally accumulated the materials in them. A law enforcement agency cannot withdraw materials from public scrutiny by deeming another 'compilation' to occur simply because it subpoenas such records. " Id. (emphasis added). The court also noted that "information filed before an investigative process begins cannot be criminal investigative information." Id. (citing Op. Att'y Gen. Fla. 080-96 (1980) ).

In sum, the videos were not "criminal investigative information" within the meaning of section 119.011(3)(b) because they were not compiled by a criminal justice agency in the course of conducting a criminal investigation.

The circuit court did not use this reasoning in deciding that the "criminal investigative information" exemption from disclosure did not apply. Nonetheless, we affirm the trial court on this issue under the "tipsy coachman" doctrine, which "allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " Robertson v. State , 829 So.2d 901, 906 (Fla. 2002) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644-45 (Fla. 1999) ).

The School Board asserts that the surveillance footage is statutorily exempt from disclosure under the "security plan" exemption contained in section 119.071(3), Florida Statutes (2018). We hold that the "good cause" exception to this exemption applies, so that disclosure is mandated.

Information relating to the School's security system is public record. However, by statute, it is exempt from disclosure. § 119.071(3)(a), Fla. Stat. (2018) ; see also § 281.301(1), Fla. Stat. (2018).

Section 119.071 is entitled "General exemptions from inspection or copying of public records." The "security plan" exemption is found in subpart (3) which reads:

(3) Security and firesafety.-
(a) 1. As used in this paragraph, the term "security or firesafety system plan" includes all:
a. Records, information, photographs, audio and visual presentations , schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security or firesafety of the facility or revealing security or firesafety systems;
b. Threat assessments conducted by any agency or any private entity;
c. Threat response plans;
d. Emergency evacuation plans;
e. Sheltering arrangements; or
f. Manuals for security or firesafety personnel, emergency equipment, or security or firesafety training.
2. A security or firesafety system plan or portion thereof for:
a. Any property owned by or leased to the state or any of its political subdivisions; or
b. Any privately owned or leased property
held by an agency is confidential and exempt ...

§ 119.071(3)(a), Fla. Stat. (2018) (emphasis supplied). The language highlighted above defines an exempt "security system plan" to include "audio and visual presentations ... relating directly to the physical security ... of the facility." § 119.071(3)(a) 1.a., Fla. Stat. (2018); see also 281.301(1), Fla. Stat. (2018).

Because the footage from the surveillance cameras "relates directly" to the security system at Douglas, including both its capabilities and its vulnerabilities, the footage is confidential and exempt from disclosure to the public under sections 119.071(3)(a) and 281.301(1), unless an exception to the exemption applies.

Public information that is confidential and exempt from disclosure because it is directly related to a security system "may be disclosed" upon "a showing of good cause before a court of competent jurisdiction." § 119.071(3)(a) 3.d.; § 281.301(2)(d). The "good cause" statutory exception to the security system exemption reads:

3. Information made confidential and exempt by this paragraph may be disclosed:
* * *
d. Upon a showing of good cause before a court of competent jurisdiction.

§ 119.071(3)(a)3, Fla. Stat. (2018) (emphasis added). The good cause exception to the security plan exemption was inserted into both exemption statutes effective April 1, 2016. Ch. 16-178, § 1, at 1-2, Laws of Fla.

The Media and the School Board look to two statutes that define or analyze "good cause." See § 406.135, Florida Statutes (2018) (concerning photographs of autopsies); Dep't of Health & Rehab. Servs. v. Gainesville Sun Publ'g Co. , 582 So.2d 725 (Fla. 1st DCA 1991) (interpreting an earlier version of section 119.07 concerning child abuse records). We do not adopt either approach. Both statutes evaluate disclosure of records when set against an individual's not insubstantial right of privacy. Here, given the constitutional commitment to open government, the scales are weighed heavily in favor of disclosure. Also, these statutes demonstrate that the legislature is capable of elucidating "good cause" when it wishes to do so.

"[G]ood cause is not a novel concept to our jurisprudence." Campus Communications, Inc. v. Earnhardt , 821 So.2d 388, 395 (Fla. 5th DCA 2002). We conclude that the legislature intended the courts to apply a common law approach to "good cause," where meaning emerges over time, on a case-by-case basis, and courts arrive at a desirable equilibrium between the competing needs of disclosure and secrecy of government records.

In Dohnal v. Syndicated Offices Systems, the Supreme Court considered the meaning of "good cause" when it related to a probate court's discretion to extend a creditor's time to file a claim under section 733.705(3), Florida Statutes (Supp. 1984), which did not define "good cause":

We defined good cause in Goldman [ In re Goldman's Estate , 79 So.2d 846 (Fla.1955) ], finding that it is " 'a substantial reason, one that affords a legal excuse,' or a 'cause moving the court to its conclusion, not arbitrary or contrary to all the evidence,' and not mere 'ignorance of law, hardship on petitioner, and reliance on [another's] advice.' " 79 So.2d at 848 (citations omitted.) Judge Sharp correctly pointed out in Williams [v. Estate of Williams , 493 So.2d 44 (Fla. 5th DCA 1986) ] that, "[w]hat is or is not sufficient to establish 'good cause' ... is primarily addressed to the conscience and discretion of the probate judge." 493 So.2d at 45.
The determination of good cause is based on the peculiar facts and circumstances of each case. Obviously the trial court is in the best position to weigh the equities involved, and his exercise of discretion will be overruled only upon a showing of abuse.

529 So.2d 267, 269 (Fla. 1988).

Applying the Supreme Court's formulation of "good cause," the circuit judge did not abuse his discretion in deciding that the "minimal" revelation of information relating to the security system was outweighed by the public's need for the information.

It is a sad commentary on our times that there must be a full and open public discussion about (1) the type of security system that is appropriate for a large public high school and (2) the appropriate law enforcement response to an active shooter on a high school campus. Parents have such a high stake in the ultimate decisions that they must have access to camera video footage here at issue and not blindly rely on school board experts to make decisions for them.

Here, the Media showed that the footage would reveal the response of law enforcement personnel and other first responders during and immediately after an active shooting at Douglas during school hours. The Media showed the need for the public to actually witness the events as they unfolded because the narrative provided by "the authorities" is confusing and has shifted and changed over time. Reviewing the footage would allow the public to witness and evaluate:

(1) when first responders arrived on campus;
(2) where the first responders went when they arrived on campus; and
(3) what the first responders did when they arrived on campus.

The evidence presented by the Media establishes that different sources tell different stories about the first responders' conduct. The footage itself would reveal if the first responders rushed into Building 12 to confront the active shooter, formed a perimeter, or hid in stairwells and behind their vehicles for an unreasonable length of time.

The Media established good cause because the footage reveals the conduct of public servants "discharging their assigned duties and responsibilities." Cannella , 438 So.2d at 521. In addition, the footage provides insight into how Douglas's security "net," including the use of 70 unmonitored and possibly time-delayed cameras, failed to protect the students and staff on February 14.

For these reasons, we affirm the Order on Petitioners' Amended and Supplemental Motion for Further Relief in all respects. By statute, the BSO shall comply with this order within 48 hours. § 119.11(2), Fla. Stat. (2018).

Klingensmith, J., concurs.

Conner, J., concurs in part and dissents in part, with opinion.

I concur with the majority opinion's analysis and conclusion that the surveillance video footage sought to be obtained by the appellees does not qualify for a public records request exemption under the section 119.071(2), Florida Statutes (2018) (the criminal investigation and criminal information exemption), but does qualify for an exemption under section 119.071(3), Florida Statutes (2018) (the "security plan" exemption). I respectfully dissent from the majority's holding and conclusion that the "good faith" exception to the "security plan" exemption applies, so as to authorize release of the surveillance videos. More particularly, I conclude from the record that there was insufficient substantial competent evidence to support the trial court's finding that release of the surveillance videos would "minimally reveal information relating to the security system."

Although the evidence showed there are 70 surveillance cameras on the Douglas campus, the appellants limited their request to video footage from exterior surveillance cameras covering six specific buildings, plus the gymnasium and the auditorium. What the majority does not discuss in any detail is the testimony of two school board witnesses detailing their concerns that release of the surveillance videos would expose "holes" or weaknesses in the "security system net" for the campus, of which the video cameras are a major component. One of the witnesses was an assistant principal at the Douglas campus; the second witness was a Major in the school district police force. The assistant principal was responsible for overseeing the security system for the Douglas campus; the Major was responsible for developing and maintaining the security system for the entire school district, and was specifically familiar with the Douglas campus. Their testimony was in the nature of expert opinion, and the appellees did not impeach their testimony or opinions in any significant way. More importantly, the appellees called no witnesses at the evidentiary hearing and presented no conflicting or competing evidence.

With all due respect to the trial judge, there was insufficient evidence to demonstrate the exposure of the security net provided by the surveillance cameras was "minimal." It is unclear from the record how many exterior security cameras were used to generate the video footage being released. It is also unclear from the record how those cameras interface, in terms of coverage, with the other exterior cameras which did not capture law enforcement images. Without knowing such information, I submit one cannot clearly understand the extent of the exposure of weaknesses.

Common sense would lead one to conclude that a surveillance system using 70 cameras covering numerous buildings over a large campus with a large student body requires sophisticated technical analysis to determine whether gaps in camera coverage create a risk to security. Two school board employees charged with the responsibility of developing and maintaining the security system for the Douglas campus opined the release of the requested footage would expose the system's weaknesses. More importantly, the risk of exposing weaknesses in the security system did not pertain to just the Douglas campus, but to other school campuses in the district.

The trial court was free to reject the testimony and opinion of the school board witnesses. See Hay v. Hay , 944 So.2d 1043, 1046 (Fla. 4th DCA 2006) ("The trial court is the judge of the facts and the credibility of the witnesses.") (citing Santiago v. State , 889 So.2d 200, 203-04 (Fla. 4th DCA 2004) ). However, assuming the trial court rejected the testimony, the appellee's failure to present countervailing evidence left the trial court with no evidence upon which to find the disclosure would "minimally reveal information relating to the security system," or, more importantly, the weaknesses in the security system. To a lay person, it may seem that not knowing how many cameras were involved to generate the footage and how those cameras interface with other cameras in the system means the risk of exposure of weaknesses is minimal, but to persons knowledgeable about how security systems are designed and employed (through information mined from the internet or formal training), the requirement that the disclosure include all footages showing law enforcement presence would reveal information a lay person is unable to readily see and appreciate.

I completely agree that the public has the right to know and evaluate not only the response of law enforcement to an active shooter, but also what surveillance security measures school systems are using to detect the presence of unwanted intruders on public school campuses. Undoubtedly, the school board will be evaluated by the public on the already disclosed information that the surveillance camera system on the Douglas campus was not routinely monitored. But in granting an exemption to the public records law, for obvious safety reasons, the legislature did not intend for the public to know the current gaps in a security system. There was some evidence presented that the school board was assessing the need for changes to the current surveillance system. Once significant changes are made to the surveillance camera system, I would agree that the requested footage for February 14, 2018, should be released under the "good faith" exception, so the public can have a better understanding of what happened that day.

My final disagreement with the majority's opinion is that it does not address the request of the school board to further redact information in the video footage that reveals the camera number, the location of the camera, the camera angle, and where and how cameras are pointed at the perimeter of the campus. At a minimum, the school board's request should be granted to address the safety concerns I discuss in my dissent.

ON MOTION TO CERTIFY QUESTION OF GREAT PUBLIC IMPORTANCE

We deny the School Board's motion for certification. Because the holding in this case is carefully tailored to the specific facts of this case, the decision does not pass on a legal issue of great public importance.

By its motion, the School Board seeks to invoke the Supreme Court's discretionary jurisdiction. The Supreme Court "[m]ay review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance. ..." Art. V, § 3(b)(4), Fla. Const.; see Fla. R. App. P. 9.030(a)(2)(A)(v). The suggested question submitted by the School Board reads:

When it is determined that a public records request "relates directly" to a security system, and is otherwise confidential and exempt from disclosure to the public under §§ 119.071(3)(a) and 281.301(1), whether the "good cause" exception to that exemption requires a showing of more than the public's need for the information.

An issue is not "of great public importance" where the issue is important only to the parties involved. See generally Ansin v. Thurston , 101 So. 2d 808, 811 (Fla. 1958). Where resolution of the question requires "consideration of a narrow issue with very unique facts," the Supreme Court will decline certification review. Dade Cty. Prop. Appraiser v. Lisboa , 737 So. 2d 1078 (Mem.) (Fla. 1999); see also State v. Sowell , 734 So. 2d 421, 422 (Fla. 1999) (finding jurisdiction improvidently granted where question "deals with an extremely narrow principle of law, and, as phrased, does not present an issue of 'great public importance.' "). In addition, the district courts are discouraged from asking the Supreme Court to - "in essence ... check [their] work." Owens-Corning Fiberglas Corp. v. Ballard , 749 So. 2d 483, 485 n.3 (Fla. 1999) ("Although we accepted review in this case, the certified question appears to be more of a request for our approval of the conclusion reached by the court below than an issue involving great public importance.").

In its motion seeking certification, the School Board advances the following arguments:

• The opinion obviates the statutory exemption put in place to maintain safety and security of public buildings.
• The decision could impact every child attending public school in Florida (2,804,865 in Florida; 269,610 in Broward).

Addressing the first argument, this court's opinion did not create the good cause exception to the security plan exemption. The Legislature placed the "good cause" exception in the statute. Our determination affirming the circuit judge's decision that the parties seeking the records established good cause in this case does not obliterate the statutory exemption for every case.

Addressing the second argument, it is hard to imagine any scenario where this court's decision would affect every child attending public school in Florida. Again, the Legislature placed the "good cause" exception in the statute. This court's decision simply defined the term "good cause" according to well-recognized common law principles and affirmed the trial court's discretionary finding of good cause in this case .

The definition of "good cause" formulated in the opinion is based on "the peculiar facts and circumstances of each case." State Attorney's Office of Seventeenth Judicial Circuit v. Cable News Network, Inc. , No. 4D18-1335 (Fla. 4th DCA July 25, 2018) (quoting Dohnal v. Syndicated Office Sys. , 529 So. 2d 267, 269 (Fla. 1988) ). Whether a party seeking release of public records has established good cause is "primarily addressed to the conscience and discretion" of the judge. Id . This court's decision reaffirmed Florida precedent that holds that a showing of good cause requires a case-specific weighing of the equities.

The finding of good cause in this case was narrowly tailored to the facts of this case. Contrary to the School Board's claim, this court did not simply find that good cause was shown based on "the public's need for the information." This court found that the trial court's finding of good cause in this case was not an abuse of discretion where:

• The authorities failed to enter a classroom building where a man was shooting at high school students until more than fourteen minutes after the shooting started;
• The authorities' narrative explaining the delay was confusing;
• The authorities' narrative explaining the delay differed from eyewitness accounts; and
• The authorities' narrative shifted and changed over time.

We held that in this instance, the public record sought (the video footage) will reveal the conduct of public servants discharging their assigned duties and responsibilities, something that the parents of students should be able to evaluate to participate in future decisions concerning the safety of their children.

KLINGENSMITH, J., concurs.

CONNER, J., dissents with opinion.

I dissent from the majority's decision not to certify a question of great public importance. Although the question posed by the School Board is not the appropriate question, I contend either the legislature or our supreme court needs to give some guidance to courts on what constitutes a good faith exception to the public records exclusion of information regarding security systems in public places.

The majority contends the underlying opinion issued in this case is very narrow and does not raise a question of great public importance, presumably because the opinion addresses "unique facts" and "the issue is important only to the parties involved." I contend the majority's opinion sets a precedent that a trial judge, as the finder of fact, can find a good faith reason to grant an exception to the exclusion from disclosure of public records under sections 119.071(3)(a) and 281.301(1), Florida Statutes (2018), based on a finding that the safety risks presented by the disclosure are "minimal." My dissent to the underlying opinion was not based on an improper appellate reweighing of evidence. My dissent was based on a contention that the assessment of risk in this case requires an analysis a trial judge is ill-equipped to engage in, and there was no countervailing evidence to dispute the expert evidence of risk presented by the School Board. Cf. Tibbs v. State , 397 So. 2d 1120, 1123 (Fla. 1981) ("The weight and the sufficiency of the evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. ... Weight, at least in theory, is a somewhat more subjective concept."); see also State, Dep't of Highway Safety & Motor Vehicles v. Wiggins , 151 So. 3d 457, 476 (Fla. 1st DCA 2014) (Van Nortwick, J., dissenting) ("A determination that evidence is not competent substantial evidence does not involve a reweighing of the evidence."). My fellow panel members apparently contend the video footage they reviewed showed competent substantial evidence to support the trial judge's finding the disclosure would "minimally reveal information relating to the security system." If untrained persons can make that assessment, then I agree, the trial judge was within his discretion to so find.

As I did in my dissent to the underlying opinion, I completely agree with the majority that the video footage will reveal the conduct of public servants discharging their assigned duties and responsibilities, something that the parents of students and the public at large should be able to evaluate to participate in future decisions concerning the safety of their children. I have no doubt the School Board is rapidly making changes to the video systems of all schools in Broward County. As a matter of public safety for the children attending public schools in Broward County, or at least the Douglas campus, I simply contend the disclosure should be postponed until competent substantial evidence is presented that the public's right to know outweighs the safety risks of disclosure.

I would certify to our supreme court the following question of great public importance:

WHEN IT IS DETERMINED THAT A PUBLIC RECORDS REQUEST "RELATES DIRECTLY" TO A SECURITY SYSTEM OF A PUBLIC BUILDING AND IS SPECIFICALLY EXEMPTED FROM DISCLOSURE UNDER SECTIONS 119.071(3)(A) AND 281.301(1), FLORIDA STATUTES, DOES THE PUBLIC'S RIGHT TO INFORMATION ABOUT GOVERNMENTAL ACTIONS RESPONDING TO A VIOLENT ATTACK OCCURING IN A PUBLIC BUILDING CONSTITUTE A GOOD FAITH EXCEPTION TO THE EXEMPTION, WHERE THE DISCLOSURE COULD EXPOSE EXISTING GAPS IN A SECURITY SYSTEM, AND IF SO, TO WHAT EXTENT IS EXPERT EVIDENCE REQUIRED TO DETERMINE THE RISK OF EXPOSURE OF WEAKNESSES IN THE SECURITY SYSTEM?

      The original Petition was filed by Cable News Network, Inc.; Miami Herald Media Company; and Sun-Sentinel Company, LLC. An amended petition was filed adding ABC, Inc.; The Associated Press; The Bradenton Herald; the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; Los Angeles Times Communications LLC; The New York Times Company; and Orlando Sentinel Communications Company, LLC. Additional media outlets joined by intervention: ALM Media, LLC; CBS Broadcasting Inc.; Charter Communications Operating, LLC; Fox Television Stations, LLC; Graham Media Group, Inc.; NBCUniversal Media, LLC; Scripps Media, Inc.; Univision Communications Inc.; WFTV, LLC; and WPLG Inc. The petitioners will be referred to as the "Media."

      The Attorney General publishes the Government-In-The-Sunshine Manual "for use by public officials in navigating issues regarding the Sunshine Law." Transparency for Fla. v. City of Port St. Lucie , 240 So.3d 780, 787 (Fla. 4th DCA 2018).

      The language of section 281.301(2)(d) is identical.

      The Supreme Court's formulation is consistent with the dictionary definition of "good cause" as a "legally sufficient ground or reason." Black's Law Dictionary , 692 (6th ed. 1990); see also Morrison Mgmt. Specialists/Xchanging Integrated Servs. Group, Inc. v. Pierre , 77 So.3d 662, 666 (Fla. 1st DCA 2011).

      We note that the dissent in the panel opinion violated principles of appellate review; it reweighed the evidence and did not apply the deferential standard of abuse of discretion review. The adoption of a de novo standard to review a trial court's determination of "good cause" is a departure from established jurisprudence.

      To the extent the contention is the risk presented by disclosure was "minimal" because the School Board was not actively monitoring the video system, thus the video system was not really a security system, that argument ignores two things: (1) passive video surveillance systems act as a deterrent because they assist law enforcement in capturing criminals; and (2) as the appellees repeatedly assert, the School Board has been redesigning the security system since the incident, which likely means the security cameras are now being monitored. Until cameras are enhanced, added, or relocated, security gaps in the existing system can be determined from the public disclosure.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DYCK-O'NEAL, INC., Appellant, v. Karakostas KONSTANTINOS, Appellee.
    Case No. 2D15-4064
    District Court of Appeal of Florida, Second District.
    Opinion filed December 9, 2016
    Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa, for Appellant.
    Austin Tyler Brown of Parker & DuFresne, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Dyck-O'Neal, Inc., challenges the trial court's final order dismissing its one-count complaint seeking a deficiency judgment against Karakostas Konstantinos. On March 2, 2009, a final judgment of foreclosure was entered against Konstantinos and in favor of JP Morgan Chase. JP Morgan's foreclosure complaint included a prayer for deficiency relief, but the trial court in its final judgment of foreclosure did not address that prayer and instead retained jurisdiction to consider it later. Dyck-O'Neal subsequently purchased the final judgment for the purpose of pursuing the deficiency. After Dyck-O'Neal filed its one-count action against him, Konstantinos moved to dismiss, arguing that because the foreclosure complaint sought to recover the deficiency and because the foreclosure court reserved jurisdiction on the issue, the circuit court lacked subject matter jurisdiction to hear the deficiency claim and Dyck-O'Neal had to seek relief in the original foreclosure proceeding. The trial court agreed and dismissed the complaint. This was error. Because a separate deficiency action such as the underlying one is authorized by the plain language of section 702.06, Florida Statutes (2013), we reverse.

This court has already addressed the issue of "whether a circuit court has subject matter jurisdiction to adjudicate an independent deficiency action when the plaintiff had requested deficiency relief in its complaint in a separate foreclosure action involving the same note and the foreclosure court had entered a final judgment reserving jurisdiction to grant deficiency relief." Gdovin v. Dyck-O'Neal, Inc., 198 So.3d 986, 986 (Fla. 2d DCA 2016). In Gdovin, we concluded that the circuit court does have subject matter jurisdiction in such circumstances, agreeing with the Third District's reasoning in Garcia v. Dyck-O'Neal, Inc., 178 So.3d 433, 436 (Fla. 3d DCA 2015), a case on which Dyck-O'Neal relies herein. This court stated: "[T]he plain language of section 702.06, Florida Statutes (2013),[ ] authorizes the filing of an independent deficiency action in such cases because 'the foreclosure court did not grant or decline to grant the deficiency judgment claim.' " Gdovin, 198 So.3d at 986 (quoting Garcia, 178 So.3d at 436 ).

As such, we reverse the trial court's final order granting Konstantinos's motion to dismiss and remand for further proceedings. Additionally, as we did in Gdovin, we certify conflict with Higgins v. Dyck-O'Neal, Inc., 201 So.3d 157 (Fla. 1st DCA 2016), in which the First District "rejected the Third District's plain language interpretation of section 702.06." Gdovin, 198 So.3d at 987.

Reversed and remanded; conflict certified.

KHOUZAM, SLEET, and BADALAMENTI, JJ., Concur.

      Section 702.06 provides as follows:
      In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court .... The complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.
      (Emphasis added.)


author: LOGUE, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Efrain XIRINACHS, et al., Appellees.
    No. 3D16-2225
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Clark, Robb, Mason, Coulombe, Buschman & Charbonnet, and Marc Buschman ; Russo Appellate Firm, P.A., and Elizabeth K. Russo, for appellant.
    Law Office of Lazaro Vazquez, P.A., and Lazaro Vazquez ; Lopez & Best, and Virginia M. Best, for appellees.
    Before LOGUE, LUCK, and LINDSEY, JJ.
   LOGUE, J.

State Farm Florida Insurance Company appeals the trial court's final judgment in favor of the insureds, Efrain Xirinachs, Ericson Xirinachs, and Maureen Ogden. In so doing, State Farm argues that the trial court erred by not granting summary judgment or entering a directed verdict. We agree and reverse.

Background

In February 2006, State Farm issued payment to the insureds for damages arising out of Hurricane Wilma. The payment totaled $7,690.97 for damages to the dwelling, which included amounts for the full replacement of the house's shingle roof, repairs to an interior bedroom, and repair of cracked glass in a jalousie window. It is undisputed that the insureds cashed the payment check. In late 2006, the insureds replaced the jalousie windows with impact windows, but did not replace the roof until approximately ten years later in 2016.

In January 2010, the insureds submitted a supplemental claim in the amount of $59,719.25 for alleged hurricane damage, including $6,488.18 for replacement of the shingle roof. The insureds eventually filed suit against State Farm over the supplemental claim. The matter came before us in State Farm Insurance Co. v. Xirinachs, 163 So.3d 559 (Fla. 3d DCA 2015) ( Xirinachs I ), where this Court reversed the trial court's order compelling an appraisal. On remand, State Farm filed a motion for summary judgment based upon language of Xirinachs I finding that an appraisal could not be compelled because of the insureds' failure to comply with post-loss obligations. The trial court denied summary judgment. Subsequently, at trial, State Farm moved for directed verdict and the trial court denied the motion. The jury entered a verdict in favor of the insureds and State Farm renewed its motion for directed verdict and moved for a new trial. The trial court denied both. This appeal followed.

Analysis

In Xirinachs I, this Court specifically held that
The Insureds in this case failed to comply with all post-loss obligations. For example, they failed to produce necessary documentation and protect the property from further damage as required by the governing policy. Given their failure to comply with these obligations, the trial court erred in ordering appraisal.

Id. at 559-60. Our holding that the insureds failed to comply with their post-loss obligations, and that this failure precluded appraisal, became law of the case. "Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case." Francois v. University of Miami, 185 So.3d 705, 708 (Fla. 3d DCA 2016) (citation omitted). As set forth in Xirinachs I, the insureds were not entitled to appraisal because they had "failed to comply with all post-loss obligations." Id. Under Florida law, "[i]f the insured fails to comply with a condition precedent before filing suit, its breach is deemed material, and thus the insurer is relieved of its duties under the policy." Hunt v. State Farm Fla. Ins. Co., 145 So.3d 210, 211 (Fla. 4th DCA 2014). Based upon the facts and insurance policy in this case, the insured's failure to comply with their post-loss obligations relieved State Farm of any duties under the policy as to the supplemental claims sought by the insured. As such, the trial court erred by not granting State Farm's motion for directed verdict. See St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., 784 So.2d 500, 504 (Fla. 5th DCA 2001) ("A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.") (citation omitted).

Accordingly, we reverse judgment against State Farm and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      State Farm also paid the insureds an additional $200 for spoiled food.


author: LINDSEY, J.

text:
    Shane BURNETT, Petitioner, v. STARWOOD HOTELS & RESORTS MANAGEMENT COMPANY, INC., Wyndham Worldwide Operations, Inc., J.C. Penney Corporation, Inc., Office Depot, Inc., and Wal-Mart Stores, Inc., Respondents.
    Nos. 3D18-283 3D18-285 3D18-286 3D18-287
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Shane Burnett, in proper person.
    Corvo & Calas, and Cristina Fernandez ; Foley & Lardner LLP, Tallahassee, and Brandon Williams, for respondents Starwood Hotels & Resort Management Company, Inc., and Wyndham Worldwide Operations, Inc.; Resnick & Louis, P.C., Orlando, and Robert Squire, for respondent J.C. Penney Corporation, Inc.; Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Brandon J. Hechtman, for respondent Office Depot, Inc.; Quintairos, Prieto, Wood & Boyer, P.A., and Reginald Clyne, for respondent Wal-Mart Stores, Inc.
    Before LAGOA, LOGUE, and LINDSEY, JJ.
   LINDSEY, J.

In these consolidated petitions, Shane Burnett seeks writs of mandamus from this Court compelling the Appellate Division of the Eleventh Judicial Circuit (the "Appellate Division") to exercise jurisdiction over, or transfer to the appropriate court, petitions for writs of mandamus arising in four cases that originated in the Civil Division of Miami-Dade County Court. For the reasons set forth below, we dismiss in part, grant in part, and deny in part.

Mr. Burnett filed the following four cases in Miami-Dade County Court: (i). Burnett v. Starwood Hotels & Resorts Management Co., No. 15-14478-SP-25, alleging false policies, procedures, practices and impractical monitoring; (ii). Burnett v. J.C. Penny Corp., No. 16-2542-SP-25, alleging false return policies, procedures, practices and impractical monitoring; (iii). Burnett v. Office Depot, Inc., No. 15-14370-SP-25; and, (iv). Burnett v. Wal-Mart Stores, Inc., No. 16-4929-SP-25, alleging unfair acts or practices, procedures and false refund policies.

First, this Court has previously entered orders disposing of the petitions filed in the Office Depot and J.C. Penny cases. SeeBurnett v. Office Depot, Inc., No. 3D17-1305, 2017 WL 2684317 (Fla. 3d DCA June 20, 2017) (order transferring cause to the Circuit Court of the Eleventh Judicial Circuit for Miami-Dade County, Florida); Burnett v. J.C. Penney Corp., No. 3D17-1988 (Fla. 3d DCA Nov. 14, 2017), reh'g denied, (Dec. 22, 2017) (order denying petition for certiorari). Thus, the instant petitions filed in both of those cases are dismissed.

Turning to the two remaining petitions, the Appellate Division entered an order in the Wal-Mart case striking Mr. Burnett's petition pursuant to Administrative Order 82-22. In the Starwood case, the Appellate Division entered an order transferring Mr. Burnett's case to the Circuit Civil Division on the grounds that the Appellate Division lacked jurisdiction. Mr. Burnett seeks orders from this Court compelling the Appellate Division to either exercise jurisdiction over his petitions or, in the alternative, transfer them to the appropriate division of the court. In support of this position, he argues Administrative Order 82-22 is invalid because it limits judicial discretion, is inconsistent with Florida Rule of Appellate Procedure 9.040(b), and was not promulgated by the Florida Supreme Court.

The Appellate Division of the Eleventh Judicial Circuit in and for Miami-Dade County was established in 1982 pursuant to Local Rule R-3-1, "Establishment and Defining Jurisdiction of the Appellate Division of the Circuit Court." Local Rule R-3-1 was approved by the Florida Supreme Court on December 14, 1982 and assigned to the Appellate Division responsibility for the disposition of appeals from Miami-Dade County Courts, petitions for writs of certiorari seeking review of decisions of "any public body, city or county commission or council, administrative board or agency, or the County Court." Local Rule R-3-1 further provided that cases in the Appellate Division would be heard by panels of three judges randomly selected.

A week later, on December 21, 1981, Administrative Order 82-22 was promulgated as approved by the Florida Supreme Court. It requires writs of prohibition, mandamus and habeas corpus to be filed as original actions in the respective Circuit Court Division corresponding to the type of action from which it arose:

WHEREAS the Supreme Court of Florida has approved an amendment to the Local Rule for the Appellate Division of the Circuit Court concerning jurisdiction of said Division, and
WHEREAS said amendment has removed from the jurisdiction of the Appellate Division those petitions for Writs of Prohibition and Mandamus directed to the County Court or judges thereof, or to any public body or agency; and those petitions for a Writ of Habeas Corpus, it is
THEREFORE, pursuant to the authority vested in me as Chief Judge of the Eleventh Judicial Circuit of Florida, ordered that Petitions for Writs of Prohibition, Mandamus, and Habeas Corpus shall be filed in the following Divisions of the Circuit Court:
1. PROBATE DIVISION-matters involving probate, guardianship, mental health and other matters within the jurisdiction of the Probate Division.
2. GENERAL JURISDICTION DIVISION-matters within the jurisdiction of the General Jurisdiction Division and Family Civil Department of the Family Division.
3. CRIMINAL DIVISION-matters within the Jurisdiction of the Criminal Division.
4. FAMILY DIVISION-FAMILY JUVENILE DEPARTMENT-matters within the jurisdiction of the Family Juvenile Department of the Family Division.

In re: Filing of Petitions for Writs of Prohibition, Mandamus, and Habeas Corpus and Related Matters, Order No. AO82-22 (Fla. 11th Cir. Ct. Dec. 22, 1982). Unlike in the Appellate Division, cases assigned to the Probate, General Jurisdiction, Criminal and Family Divisions of the Eleventh Judicial Circuit are heard by a single judge as opposed to a panel of three judges. On its face, Administrative Order 82-22 shows that it was promulgated under the authority of the Florida Supreme Court.

Rule 9.040(b) provides that "[i]f a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court." Fla. R. App. P. 9.040(b). While Administrative Order 82-22 assigns certain petitions for original writs, including mandamus, to specific divisions within the Circuit Court, as opposed to the Appellate Division, neither it nor the Rule mention the other or otherwise contain language that is in conflict. Thus, Mr. Burnett's argument that they are inconsistent necessarily fails.

Further, the jurisdiction of the Florida courts is set forth in the Florida Constitution. First, "there shall be a circuit court serving each judicial circuit." Article V, § 5 (a), Fla. Const. Pursuant to section 5 (b), "circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction." Id. at § 5 (b).

Similarly, Florida Rule of Appellate Procedure 9.030(c)(1) provides that circuit courts shall review, by appeal, both final and non-final orders of lower tribunals as provided by general law. Fla. R. App. P. 9.030(c)(1). Further, Florida Rule of Appellate Procedure 9.030(c)(2) states: "The certiorari jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by rule 9.130." Fla. R. App. P. 9.030(c)(2). Florida Rule of Appellate Procedure 9.030(c)(3) states: "Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certiorari, and habeas corpus, and all writs necessary to complete the exercise of the courts' jurisdiction." Fla. R. App. P. 9.030(c)(3).

Under section 26.012(1), Florida Statutes (2017), "Circuit courts shall have jurisdiction of appeals from county courts except appeals of county court orders or judgments declaring invalid a state statute or a provision of the State Constitution and except orders or judgments of a county court which are certified by the county court to the district court of appeal to be of great public importance and which are accepted by the district court of appeal for review. ..." § 26.012(1), Fla. Stat. (2017).

Accordingly, there is no provision in the Florida Rules of Appellate Procedure, Florida Statutes, or Florida Constitution that requires the Appellate Division of the Eleventh Judicial Circuit to exercise jurisdiction over petitions for writs of mandamus arising out of cases originally filed in the Miami-Dade County Court. Specifically, there is no conflict with section 26.012(1) because the Appellate Division is contained within the Circuit Court of the Eleventh Judicial Circuit and is comprised of panels of three circuit court judges. As such, Administrative Order 82-22 is not invalid.

Applying the foregoing to the Appellate Division's order striking Mr. Burnett's petition in the Wal-Mart case, because the Appellate Division is not assigned responsibility to hear petitions like Mr. Burnett's, the appropriate remedy is transfer to the Circuit Civil Division. Thus, to the extent it has not yet done so, the Appellate Division shall transfer the Wal-Mart case to the Circuit Civil Division. See Weiss v. Courshon, 618 So.2d 255, 256, n.1 (Fla. 3d DCA 1993) ("The remedy for filing in the wrong division is transfer to the correct division, rather than dismissal."); accord, Malave v. Malave, 178 So.3d 51, 55 (Fla. 5th DCA 2015) ("[T]the filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action."). Filing in the wrong division is not a jurisdictional defect; it is a purely administrative one. This is because "every judge of the circuit court possesses the full jurisdiction of that court in his or her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits' judicial business." Maugeri v. Plourde, 396 So.2d 1215, 1217 (Fla. 3d DCA 1981).

Conversely, based on the foregoing, the Appellate Division's order transferring Mr. Burnett's petition in the Starwood case to the Circuit Civil Division was proper.

PETITIONS DISMISSED IN PART, GRANTED IN PART, AND DENIED IN PART.

      Mr. Burnett failed to include the statement of claim against Office Depot, Inc. in the appendix attached to his instant petition.

      Rule 9.130 "applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law." Fla. R. App. P. 9.130(a)(1).


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

text:
    Eduardo F. EDUARTEZ, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Appellees.
    No. 3D17-1448
    District Court of Appeal of Florida, Third District.
    Opinion filed June 13, 2018.
    Kenzie N. Sadlak, P.A., and Kenzie N. Sadlak, for appellant.
    Straley & Otto, P.A., and Shelley J. Murray and Brian T. Meanley (Fort Lauderdale), for appellee Sunshores Condominium Association, Inc; The Griffith Law Firm, P.A., and Derek R. Griffith, for appellee Degel, LLC.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

Appellant Eduardo Eduartez, defendant/mortgagor below, appeals a trial court order denying Eduartez's rule 1.540 motion to vacate an earlier trial court order disbursing surplus funds-realized after a foreclosure sale of Eduartez's condominium-to appellee Sunshores Condominium Association, Inc. ("Association"). Although the trial court, as a matter of statutory construction, incorrectly determined that the sixty-day window for subordinate lienholders to file claims for surplus proceeds commenced upon the clerk's issuance of a Certificate of Title, rather than upon the foreclosure sale, we nevertheless affirm the trial court's order denying Eduartez's motion because the September 6, 2016 disbursement order was merely erroneous rather than void.

I. Relevant Facts and Procedural Background

A. The Final Judgment of Foreclosure

In March 2011, Eduartez executed and delivered to JPMorgan Chase Bank a promissory note secured by a mortgage on a residential condominium unit Eduartez owned in North Miami Beach. In 2014, Eduartez defaulted on his obligations, which led JP Morgan to file its mortgage foreclosure complaint in October 2014. The complaint named Association as a subordinate lienholder by virtue of Association's July 2014 lien for approximately $7,000 in unpaid assessments. Association answered JP Morgan's foreclosure complaint and in its affirmative defenses alleged that, should the property be sold at a foreclosure sale, Association would be entitled to all surplus proceeds. In March 2015, Federal National Mortgage Association was substituted for JP Morgan as the plaintiff in the foreclosure case, and it obtained a final foreclosure judgment on March 17, 2016.

In relevant part, Paragraph 8 of the final judgment reads:

Jurisdiction . The Court retains jurisdiction of this action to enter further orders that are proper, including, without limitation, writs of possession and deficiency judgments.
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIEN HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN SIXTY (60) DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

(Bold and all capital letters in original; underlining emphasis added).

In the final judgment, the trial court set April 21, 2016, as the date of the foreclosure sale.

B. The Foreclosure Sale

Due to a pending rehearing motion (ultimately denied by the trial court), the trial court cancelled the April 21, 2016 initial foreclosure sale and, on May 20, 2016, the clerk rescheduled the foreclosure sale for June 21, 2016. Consistent with the above-cited language appearing in paragraph 8 of the final judgment, the clerk's notice of the rescheduled foreclosure sale contained the following notation:

ANY PERSON CLAIMING AN INTEREST IN THE SURPLUS FROM THE SALE, IF ANY, OTHER THAN THE PROPERTY OWNER AS OF THE DATE OF LIS PENDENS MUST FILE A CLAIM WITHIN 60 DAYS AFTER THE SALE.

(All capital letters in original; underlining emphasis added).

The foreclosure sale occurred on June 21, 2016. In conformity with section 45.031(4) of the Florida Statutes, the clerk, on June 24, 2016, issued a Certificate of Sale informing that the property was sold to third-party purchaser Degel, LLC ("Degel") for $116,100 at the June 21, 2016 foreclosure sale.

C. The Certificates of Title and Disbursements

Having received no objections to the sale within ten days after the filing of the Certificate of Sale, the clerk, pursuant to section 45.031(5), issued the Certificate of Title on July 8, 2016. Also on July 8, 2016, in conformity with section 45.031(7), the clerk issued the Certificate of Disbursements, identifying a surplus realized by the foreclosure sale in the amount of $41,578.63. As required by section 45.031(7)(b), the Certificate of Disbursements contained the following instructions to Association:

IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY
THE OWNER OF RECORDS [sic] AS OF DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS.

(All capital letters; underlining emphasis added).

On July 26, 2016, the clerk issued a Corrected Certificate of Disbursements correcting the amount of disbursements to the mortgagee, resulting in an adjusted surplus amount of $41,569.05. This Corrected Certificate of Disbursements contained the same instructions to Association-in all capital letters-as in the initial Certificate of Disbursements.

D. Disbursement Motions and the Disbursement Order

Notwithstanding the language contained in (i) the final judgment, (ii) the clerk's notice of sale, and (iii) the Certificate of Disbursements, Association did not file a claim for the surplus funds within sixty days of the June 21, 2016 foreclosure sale (i.e., on or before August 20, 2016). Rather, on August 25, 2016, sixty-five days after the foreclosure sale, the third-party purchaser, Degel, filed a motion requesting the court to disburse $31,087.58 to Association. It was not until September 1, 2016-seventy-two days after the foreclosure sale-that Association filed its own motion seeking a portion of the surplus. In this September 1, 2016 motion, Association asserted it was owed $31,982.30, inclusive of Association maintenance fees, interest, late fees and attorney's fees.

The record reflects that, on September 6, 2016, the trial court held, on its uniform motion calendar, a non-evidentiary hearing on the two disbursement motions, and that Eduartez's counsel appeared telephonically at this hearing. There is no transcript of this hearing. After the hearing, the trial court entered its September 6, 2016 order directing the clerk to disburse $32,601.05 of the surplus funds to Association's counsel ("the September 6, 2016 disbursement order"). Eduartez filed no rehearing motion directed toward the September 6, 2016 disbursement order, nor did Eduartez appeal this order.

E. Surplus Trustee Petition and Resulting "Agreed" Order

Several months later, on February 23, 2017, in an effort to disburse the remaining $8,938.00 in surplus proceeds being held by the clerk, the clerk, pursuant to section 45.032(3)(c), appointed a surplus trustee to locate the property's owner of record. On March 3, 2017, the surplus trustee filed its petition in the circuit court, indicating that it had located the owner of record (Eduartez) and recommending that the $8,938.00 in surplus proceeds held by the clerk (minus its statutory fees pursuant to section 45.034(7) ) be distributed to Eduartez via his legal counsel.

Presumably to avoid his having to pay the approximately $536 in statutory fees due to the surplus trustee, Eduartez, through counsel, objected to the appointment of the surplus trustee and the surplus trustee's petition. Nothing, however, in Eduartez's objection challenged the September 6, 2016 disbursement order. Ultimately, the trial court entered a May 15, 2017 "agreed" order authorizing the disbursement of the $8,938.00 remaining surplus proceeds, minus the surplus trustee's fee and allowable clerk's fee, to Eduartez.

F. Eduartez's Rule 1.540(b)(4) Motion and the Order on Appeal

Three days after the entry of this May 15, 2017 "agreed" disbursement order, Eduartez filed a Florida Rule of Civil Procedure 1.540(b)(4) motion challenging, for the first time, the September 6, 2016 disbursement order. In his rule 1.540 motion, Eduartez asserted that the trial court was without subject matter jurisdiction to entertain either Degel's August 25, 2016 disbursement motion or Association's September 1, 2016 disbursement motion, because neither motion was filed within sixty days of the June 21, 2016 foreclosure sale. Eduartez argued (as he does on appeal) that the September 6, 2016 disbursement order is therefore void.

On May 30, 2017, the trial court conducted a hearing on Eduartez's rule 1.540 motion. At the hearing, the parties presented the trial court with two competing district court of appeal opinions regarding when the sixty-day period commences for a junior lienholder to file a claim for surplus proceeds: (i) Straub v. Wells Fargo Bank, N.A., 182 So.3d 878, 881 (Fla. 4th DCA 2016) (holding that the sixty-day period commences when the clerk issues and files the Certificate of Title), and (ii) Bank of N.Y. Mellon v. Glenville, 215 So.3d 1284, 1286 (Fla. 2nd DCA 2017) (holding that the sixty-day period commences on the date of the foreclosure sale). After the May 30, 2017 hearing, the trial court, relying upon and citing the Straub decision, concluded that the Association's disbursement motion was timely and entered the order on appeal denying Eduartez's rule 1.540 motion. Eduartez timely appealed this order.

II. Standard of Review

A trial court's denial of a rule 1.540 motion is generally reviewed for an abuse of discretion. Foche Mortg., LLC v. CitiMortgage, Inc., 163 So.3d 525, 526 (Fla. 3d DCA 2015). When, however, our review turns either on a purely legal, statutory construction or voidness issue, we review the rule 1.540 order de novo . Metcalfe v. Lee, 952 So.2d 624, 627-28 (Fla. 4th DCA 2007) (statutory construction); see also State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 531 (Fla. 2d DCA 2017) (voidness).

III. Analysis

A. Introduction

Eduartez argues that Association's September 1, 2016 disbursement motion was filed outside the statutorily prescribed, sixty-day time period that commenced with the June 21, 2016 foreclosure sale. Association argues that the sixty-day period commenced not upon the foreclosure sale date, but rather, upon the clerk's July 8, 2016 issuance and filing of the Certificate of Title; and because Association's motion was filed fifty-five days after the clerk issued and filed the Certificate of Title, its motion was timely filed.

This issue has recently been decided by two of our sister courts in conflicting opinions. The Fourth District concluded that the sixty-day period starts when the clerk issues and files the Certificate of Title. Straub, 182 So.3d at 881. Subsequently, the Second District concluded that this sixty-day period starts on the date of the foreclosure sale. Glenville, 215 So.3d at 1286. The trial court adopted the Fourth District's reasoning in Straub. For the reasons outlined below, we agree with the decision reached by the Second District in Glenville.

B. Text of Relevant Statutory Provisions

The Florida Statutes prescribe a very specific procedure for foreclosure sales and the disbursement of proceeds generated from foreclosure sales. The relevant procedures are codified in section 45.031, and incorporated into the Florida Supreme Court-promulgated final foreclosure judgment form, Form 1.996. As with any case involving statutory construction, our goal is to identify the Legislature's intent, and our inquiry begins by consulting the plain meaning of the relevant statute's text. Hardee Cty. v. FINR II, Inc., 221 So.3d 1162, 1165 (Fla. 2017).

Section 45.031(1)(a) requires that, in each final foreclosure judgment, the trial court "shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date" the judgment is entered. § 45.031(1)(a), Fla. Stat. (2016)

(emphasis added). As mentioned previously, section 45.031(1)(a) also requires the final foreclosure judgment to contain, in conspicuous type, specific instructions to subordinate lienholders claiming an entitlement to any surplus funds realized at the foreclosure sale:

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIEN HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN SIXTY (60) DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

(All capital letters in original; underlining emphasis added).

Section 45.031(2) requires the publication of the notice of sale once a week for two consecutive weeks in a newspaper of general circulation. The published notice must contain, among other things, "[a] description of the property to be sold," [t]he time and place of the sale," and "[a] statement that any person claiming an interest in the surplus from the sale, if any ... must file a claim within 60 days after the sale." Next, section 45.031(3) requires "the sale... be conducted at public auction at the time and place set forth in the final judgment." (Emphasis added). This section also requires that the successful high bidder post a deposit equal to five percent "[a]t the time of the sale." Id. (Emphasis added.) Section 45.031(4) requires the clerk, "[a]fter a sale of the property" to "promptly file a certificate of sale and serve a copy of it on each party...." Id. (Emphasis added.)

Section 45.031(5) requires the clerk to file a Certificate of Title "[i]f no objections to the sale are filed within 10 days after filing the certificate of sale...." (Emphasis added.) Section 45.031(6) requires the clerk to record the Certificate of Title and states that "title to the property shall pass to the purchaser named in the certificate" of title when the clerk files same.

Section 45.031(7)(a) requires the clerk, "on filing a certificate of title," to disburse the sales proceeds and file a Certificate of Disbursements outlining how the sales proceeds have been disbursed, including any surplus retained by the clerk. Finally, section 45.031(7)(b) requires the Certificate of Disbursements to contain the following notation in all capital letters, immediately following the section outlining any surplus funds:

IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER 60 DAYS, ONLY THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS.

§ 45.031(7)(b), Fla. Stat. (2016). (Emphasis added.)

C. Statutory Construction Discussion

As is apparent from the relevant provisions of section 45.031, the foreclosure sale is an event separate, apart, and distinct from the clerk's issuance of a Certificate of Title. The "sale" is the public auction of the property, occurring on the date, at the place, and in the manner set forth in the foreclosure judgment, and as noticed for two consecutive weeks in the notice of sale. The clerk's issuance of the Certificate of Title is a ministerial act undertaken by the clerk at least ten days following the sale , assuming no objections to the sale have been filed; it is an altogether distinct event from the foreclosure sale. Critically, each and every reference in section 45.031 as to when subordinate lienholders are required to file a claim to surplus proceeds relates to the sixty-day period after the "sale." Conversely, the statute contains no such reference to the sixty-day period commencing with the clerk's issuance of the Certificate of Title. Had the Legislature intended for the sixty-day period to commence with the clerk's issuance of the Certificate of Title, it certainly could have drafted section 45.031 to accomplish such intent. Rather, employing plain language, the Legislature defined the contours of the sixty-day period to commence with the sale, and we are constrained by that language. Akerman Senterfitt & Eidson, P.A. v. Value Seafood, Inc., 121 So.3d 83, 86 (Fla. 3d DCA 2013) ("When a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.").

Based on our de novo review of the text of the relevant statutory provisions, we are unable to conclude, as did the Fourth District and the trial court, that in section 45.031, the Legislature's use of the word "sale" means anything but the foreclosure sale. We agree with the Second District that a subordinate lienholder must file a claim for surplus funds no later than sixty days following the foreclosure sale. Glenville, 215 So.3d at 1286 ; Dever v. Wells Fargo Bank Nat'l Ass'n, 147 So.3d 1045, 1047 (Fla. 2d DCA 2014) ; Mathews v. Branch Banking & Trust Co., 139 So.3d 498, 500-01 (Fla. 2d DCA 2014). We therefore conclude that the trial court erred by determining that Association's disbursement motion was timely.

We certify conflict with Straub.

D. Voidness/Jurisdiction Discussion

Notwithstanding our determination that the trial court erred in construing the relevant portions of chapter 45, we nevertheless affirm the trial court's denial of Eduartez's rule 1.540 motion under the "Tipsy Coachman" rule. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any legal basis which would support the judgment in the record.").

To come within the limited remedy provided by rule 1.540, Eduartez contends that the September 6, 2016 disbursement order was void because the court lacked jurisdiction. See generally Balmoral Condo. Ass'n v. Grimaldi, 107 So.3d 1149, 1152 (Fla. 3d DCA 2013). Eduartez is incorrect. The trial court had continuing jurisdiction to determine who was entitled to receive the undistributed proceeds of the foreclosure sale. Among other things, the trial court had jurisdiction to determine who the owner of record was, whether a trustee needed to be appointed, whether the trustee was entitled to a percentage of the proceeds, whether the proceeds had been assigned or transferred; and then to disburse the proceeds to different parties accordingly. See, e.g., §§ 45.032, 45.033, Fla. Stat. (2016). That the trial court might have disbursed the proceeds to the wrong person would not mean the trial court lacked jurisdiction, but simply that the trial court committed reversible error. Rule 1.540 is unavailable to remedy legal error. Theodorides v. Theodorides, 201 So.3d 141, 143-44 (Fla. 3d DCA 2015).

In summary, simply because the September 6, 2016 disbursement order was contrary to law because the disbursement motions were untimely filed, such legal error rendered the resulting September 6, 2016 disbursement order erroneous, but not void. The trial court did not lack subject matter jurisdiction over the issue. Therefore, the September 6, 2016 disbursement order was not void, and we affirm the trial court's decision to deny Eduartez's rule 1.540 motion.

IV. Conclusion

Pursuant to the relevant statutory provisions, we conclude that claims by subordinate lienholders to surplus funds generated from foreclosure sales must be filed within sixty days of the foreclosure sale. We nevertheless affirm the trial court's denial of Eduartez's rule 1.540 motion because the trial court's error in construing the relevant statutes rendered the September 6, 2016 disbursement order erroneous, but not void.

Affirmed. Conflict certified.

LOGUE and LINDSEY, JJ., concur.

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

I wholeheartedly concur with the majority's analysis of the statutory construction issue, and concur in the majority's conclusion that the Second District's holding in Glenville is correct. I dissent, however, from section III. D. of the majority opinion that adjudicates, in the first instance , the issue of whether the September 6, 2016 disbursement order is void or merely erroneous. In my view, we should not decide this issue because the trial court never reached it, and the parties have not briefed the issue to us. Therefore, I would remand the case to the trial court to adjudicate, in the first instance, the voidness issue raised in Eduartez's rule 1.540 motion.

      Section 45.032(1)(a) defines the term "owner of record" as the person appearing to own the property being foreclosed upon on the date of the filing of the lis pendens. In this case, Eduartez was the "owner of record," and when we use this term with respect to this case's specific facts, we are referring to Eduartez.

      As discussed in footnote 13, infra , neither the relevant statutes nor the standard form foreclosure judgment adopted by the Florida Supreme Court contemplate surplus proceeds claims filed by parties other than subordinate lienholders and the owner of record. Indeed, Degel's disbursement motion did not seek to have any surplus proceeds disbursed to it . Rather, Degel's August 25, 2016 motion sought to have the surplus proceeds disbursed to Association, presumably in response to an August 22, 2016 demand from Association's counsel claiming Degel owed Association $31,087.58 for Eduartez's unpaid fees.

      While not relevant to our holding, it bears noting that Eduartez's counsel filed an affidavit asserting he never received a copy of the September 6, 2016 disbursement order.

      This $8,938.00 sum should represent the difference between the amount identified in the Corrected Certificate of Disbursements, $41,569.05, and $32,601.05, the amount the trial court ordered disbursed to Association's counsel in the September 6, 2016 disbursement order. There appears to be a thirty dollar math error.

      Because the trial court determined that Association's disbursement motion was timely filed, the trial court obviously did not reach the jurisdictional/voidness issue raised in Eduartez's Rule 1.540(b)(4) motion.

      On September 5, 2017, the Florida Supreme Court accepted conflict jurisdiction of Straub and Glenville in case number SC17-954. Neither of the parties in this case has asked us to abate our adjudication pending the Florida Supreme Court's decision. Because the panel is affirming based on the voidness/jurisdictional issue (see section III. D., infra ), we ordinarily would not reach the statutory construction issue. See PDK Labs., Inc. v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) ("[T]he cardinal principle of judicial restraint [is] if it is not necessary to decide more, it is necessary not to decide more[.]") (Roberts, J., concurring in part and concurring in judgment). We decide the issue, though, to provide precedent in the District. Although it has preliminarily accepted jurisdiction to resolve the apparent conflict between Straub and Glenville, it is not a sure bet that the Florida Supreme Court will decide the timeliness issue. On occasion, even after merits briefing and oral argument, our Supreme Court has dismissed a case, concluding that its initial jurisdiction determination was improvident. See e.g. Yee v. State, 214 So.3d 540 (Fla. 2017).

      In 2006, the Florida Legislature amended section 45.031(1) to, among other things, require every foreclosure judgment to contain specific language regarding the process by which a subordinate lienholder could claim an entitlement to any surplus proceeds realized at a foreclosure sale. This language included the sixty-day time period at issue in this case. Ch. 06-175, § 1 at 1, Laws of Fla. In 2010, the Florida Supreme Court amended its standard Final Judgment of Foreclosure Form (Form 1.996) to, among other things, incorporate the sixty-day time period into that portion of the form foreclosure judgment governing the trial court's retained jurisdiction over the matter. In Re Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555, 558, 563 (Fla. 2010). In this 2010 opinion, our Supreme Court also adopted a new Form 1.996(b), creating a standard motion to cancel and reschedule a foreclosure sale. Id. at 564. Hence, the Final Judgment of Foreclosure Form was renumbered as Form 1.996(a). Id. at 561. In 2014, our Supreme Court adopted a new foreclosure judgment form for use when the judgment also reestablishes a lost note; this new form was numbered as Form 1.996(b) and the previously adopted motion to cancel and reschedule foreclosure sale was renumbered as Form 1.996(c).In Re Amendments to Florida Rules of Civil Procedure, 153 So.3d 258 (Fla. 2014).

      Form 1.996(a) effectuates this statutory provision in its paragraph captioned, "Sale of Property," which includes a specific foreclosure sale date and the location of the foreclosure sale. Paragraph 4 of the March 17, 2016 final foreclosure judgment entered by the trial court in this case is virtually identical to the "Sale of Property" paragraph of Form 1.996(a).

      Both Form 1.996(a) and paragraph 8 of the March 17, 2016 foreclosure judgment include this statutorily required language in that portion of the final judgment relating to the trial court's continuing jurisdiction in the case. See section I. A. , supra .

      § 45.031(2)(a), Fla. Stat. (2016).

      § 45.031(2)(b), Fla. Stat. (2016). (Emphasis added.)

      § 45.031(2)(f), Fla. Stat. (2016). (Emphasis added.)

      As referenced in footnote 2, supra , on August 25, 2016-sixty-five days after the foreclosure sale-third-party purchaser Degel filed its own disbursement motion. Because Degel filed its motion more than sixty days after the foreclosure sale, Degel's motion also was untimely. We need not, and therefore do not, reach the issue of whether Degel's motion was cognizable.


author: Per Curiam.

text:
    Carl L. MULLINGS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-1336
    District Court of Appeal of Florida, First District.
    June 12, 2018 Rehearing Denied August 27, 2018
    Carl L. Mullings, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, and Erik Kverne, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. Carol COOK a/k/a Carol E. Cook, Appellee.
    Case No. 5D17-1369
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018 Rehearing Denied August 31, 2018
    Kathleen E. Angione, of Kahane & Associates, P.A., Plantation, for Appellant.
    J. Christopher Crowder, of Faro & Crowder, P.A., Melbourne, for Appellee.
   PER CURIAM.

Federal National Mortgage Association ("FNMA") appeals an order granting final summary judgment in favor of Carol Cook and the order denying its motion for rehearing. Because the trial court erred in entering summary judgment on the grounds of res judicata, we reverse and remand for further proceedings.

In 2009, Aurora Loan Services, LLC filed a complaint to foreclose on Cook's mortgage. The complaint alleged that Cook defaulted on the June 1, 2009 payment and all payments due thereafter, and sought the principal amount due of $138,201.79. FNMA subsequently became the substitute plaintiff. After a non-jury trial, the court entered a final judgment in favor of Cook because FNMA failed to establish that a notice of acceleration had been sent.

FNMA filed a second foreclosure complaint in 2014. The complaint alleged default on the September 1, 2009 payment and all subsequent payments, and sought $137,792.47 as the principal amount due. As one of her affirmative defenses, Cook alleged that res judicata barred the 2014 case based on the 2009 final judgment. The trial court agreed and entered final summary judgment in favor of Cook. That was error.

In Singleton v. Greymar Associates, 882 So.2d 1004, 1008 (Fla. 2004), the Florida Supreme Court addressed res judicata in the foreclosure context and held that "res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit." In that case, a "subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action." 882 So.2d at 1008. This court has relied on Singleton to conclude that dismissal of a prior foreclosure suit, even with prejudice, "does not preclude a new foreclosure action based on different acts or dates of default." Wells Fargo Bank, N.A. v. Robinson, 168 So.3d 1279, 1280 (Fla. 5th DCA 2015).

We reject Cook's argument that because both complaints alleged default on "all subsequent payments," res judicata barred the instant case. That language is not dispositive of the issue because FNMA alleged a different and subsequent default date in the 2014 case. See, e.g., Christiana Tr. v. Taveras, 186 So.3d 50, 51-53 (Fla. 5th DCA 2016) (noting that res judicata did not bar mortgagee from enforcing its rights under mortgage based on future defaults after mortgagee's prior foreclosure action was dismissed). In the 2009 case, FNMA alleged default on June 1, 2009, and all subsequent payments; in the 2014 case, FNMA asserted default on September 1, 2009, and all subsequent payments. FNMA also alleged different principal amounts due in both cases. Thus, the subsequent and different default in the 2014 case presented a separate and distinct issue from that presented in the 2009 case for purposes of res judicata. See Singleton, 882 So.2d at 1008 ; Robinson, 168 So.3d at 1280 ; Taveras, 186 So.3d at 51-53. The inclusion of "and all subsequent payments" does not alter this result. Accordingly, the trial court erred in entering final summary judgment based on a finding that res judicata barred the 2014 case.

REVERSED AND REMANDED.

COHEN, C.J., PALMER and BERGER, JJ., concur.