author: May, J.

text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Andrea TRACEY and James Tracey, Appellees.
    No. 4D17-3945
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Raoul G. Cantero, Ryan A. Ulloa and Iesha S. Nunes of White & Case LLP, Miami, and Jonathan Sabghir and Brett R. Frankel, Deerfield Beach, for appellant.
    Juan Ramirez Jr., of ADR Miami LLC, Coral Gables and Alberto M. Regueyra of Regueyra & Llerandi, P.L., South Miami, for appellees.
   May, J.

An insurer challenges a trial court order denying its motion to compel an appraisal. We reverse the order because causation and the "amount of loss" are issues to be determined by an appraisal where the insurer has not "wholly denied" there is a covered loss.

The insureds sustained damage to their roof and their home's interior. They filed a claim with their insurer for all the damage caused by wind from a tornado. The insurer investigated the claim and sent a letter to the insureds confirming coverage, but limiting the "amount of loss." The letter contained the following:

THERE IS COVERAGE UNDER THE POLICY FOR THIS LOSS AS A WHOLE; HOWEVER, THE SCOPE OF DAMAGES COVERED BY YOUR POLICY INCLUDES ONLY THE INTERIOR DAMAGES BUT DOES NOT INCLUDE YOUR ROOF.
We have completed our investigation of your claim, and based upon what we were provided and what you reported, and additionally, based upon our claim investigation, there is generally coverage for your loss as a whole. However, and more specifically, our investigation revealed that the roof leak you reported stemmed from age-related wear and tear and deterioration; general mechanical breakdown or latent defect; and/or faulty, inadequate or defective maintenance of the roofing system - none of which are covered causes of loss. Therefore, in our opinion, the scope of covered damages would not include your roofing system because those damages were caused by uncovered or excluded causes, but would provide coverage for resulting ensuing damages to the interior of your home. Therefore, we believe our obligation is to repair only those damages to the interior of the home. If you are not in agreement with that assessment, the question of whether the scope of repairs should include the roof, can be resolved in appraisal (see below).

The letter included a proposed scope of repairs for the interior totaling $4,354 (less a $2,500 deductible). The insureds disagreed with the insurer's position and submitted a proof of loss. They obtained two estimates, one totaling $55,718.85 and the other totaling $43,507.77. Both estimates included the roof repairs.

In response, the insurer demanded an appraisal to determine whether the roof damage was caused by wind (a covered cause) or wear and tear (an uncovered cause).

The insureds filed a breach of contract action against the insurer. The insurer moved to compel an appraisal. It argued that the issue of causation is for the appraisal panel because it goes to the amount of loss. The insureds replied that the cause of the roof damage was a coverage issue to be determined by the trial court.

The trial court concluded that, because the insurer made a "predetermination" that the roof was not covered, the issue could not be submitted to appraisal.

All right. I'm going to deny the motion to abate and deny the motion to compel appraisal without prejudice. You may think this is a clear case but it is not at all clear to me because it does seem very - and if it's a form letter, it's problematic, it seems to be, but it seems pretty clear from the April 11, 2017 letter that the - there is some question - well, quite frankly, that the defendant People's Trust has denied coverage with respect to the leaky roof even though they have accepted - acknowledged coverage with respect to the damage that the leaky roof has caused on the interior of the home. So, to me, that is not clear and if there had not been that predetermination, I might otherwise had compelled appraisal, but under these circumstances, I won't.
And the reason - well, as I said, I'm making this determination without prejudice. If it's determined later on down the road after some discovery has taken place that an appraisal is warranted, then, by all means, I will order.

The trial court entered an order denying the insurer's motion to compel appraisal. It is from this order that the insurer appeals.

We have de novo review as the issue is a legal one. Fla. Ins. Guar. Ass'n v. Castilla , 18 So.3d 703, 704 (Fla. 4th DCA 2009).

"[C]ausation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed." Johnson v. Nationwide Mut. Ins. Co. , 828 So.2d 1021, 1022 (Fla. 2002) (emphasis added). In other words, when an insurer admits coverage and disputes the amount of loss, causation is to be determined by an appraisal panel. See Kendall Lakes Townhomes Developers, Inc. v. Agric. Excess & Surplus Lines Ins. Co. , 916 So.2d 12, 15-16 (Fla. 3d DCA 2005).

In Kendall Lakes , the insured asserted that Hurricane Irene caused both interior water damage to a building, and damage to the roof tiles. Id. at 13. The insurer's investigation concluded that the interior water damage was not caused by a covered loss, but that the roof tiles were covered. Id. at 14. The insured claimed over $700,000, but the insurer agreed to pay only $1,000. Id. The Third District concluded that the issue was an "amount of loss" and not a coverage issue because the insurer did not deny the whole claim. Id. at 16. The court held the dispute was appropriate for the appraisal process. Id.

Similarly, here, the insurer admitted coverage for the interior damage, but declined to repair the roof. In short, the insurer did not "wholly deny" coverage. There is only one claim, and it includes both the roof and the interior of the same home. It is unlike cases which involved separate buildings or separate claims. See, e.g. , Pernas v. Scottsdale Ins. Co. , 1:15-CV-21506-KMM, 2016 WL 471949 (S.D. Fla. Feb. 8, 2016) (a single claim for damage to two separate buildings); Sunshine State Ins. Co. v. Corridori , 28 So.3d 129 (Fla. 4th DCA 2010) (involving an original claim and a "supplemental claim" filed two years after the original claim was paid and closed).

The insureds' waiver argument lacks merit. The insurer requested an appraisal in its response letter to the claim and filed a motion to compel appraisal upon answering the insured's complaint. See Fla. Ins. Guar. Ass'n v. Branco , 148 So.3d 488, 493 (Fla. 5th DCA 2014) ("[T]he question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether the[y] acted inconsistently with their appraisal rights.").

We therefore reverse and remand the case to the trial court to compel an appraisal.

Reversed and Remanded.

Warner and Gross, JJ., concur.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    Anthony M. DELOPA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1852
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

After entering a guilty plea for burglary of a structure and grand theft, the circuit court sentenced the Defendant to drug-offender probation. The Department of Corrections later alleged six violations of probation. The court held an evidentiary hearing and concluded the Defendant violated his probation by: bringing in someone else's urine to defraud the drug test; violating his curfew; changing his address without consent; and committing burglary of his grandmother's dwelling.

Now appealing the court's order of revocation of probation, the Defendant argues the court impermissibly found that he violated probation by violating his curfew and changing his residence without permission. We agree that, based on the evidence presented, the court abused its discretion in finding the Defendant changed his address without permission. We nevertheless affirm the court's order for other reasons, as stated below.

Probation cannot be revoked solely based on hearsay. Hall v. State , 744 So.2d 517, 520-21 (Fla. 3d DCA 1999). While hearsay is admissible at a revocation of probation hearing, Russell v. State , 982 So.2d 642, 646 (Fla. 2008), it must be corroborated by non-hearsay evidence, J.F. v. State , 889 So.2d 130, 131-32 (Fla. 4th DCA 2004).

Here, the probation officer testified that she spoke to a person who said the Defendant no longer resided in the apartment. The State presented no additional evidence to support the violation. The probation officer did not testify, for example, that in addition to visiting the residence several times, she called the Defendant and left unanswered messages. Mosley v. State , 735 So.2d 547, 548 (Fla. 4th DCA 1999). Nor was there any evidence that the Defendant admitted to changing his address. McNealy v. State , 479 So.2d 138, 139 (Fla. 2d DCA 1985). With only hearsay evidence of the change of address, the State failed to prove the violation.

Despite our conclusion about the change of address violation, we affirm the court's order because the remaining violations, including the burglary of his grandmother's dwelling, were enough to revoke probation. See Griffin v. State , 719 So.2d 972, 972 (Fla. 4th DCA 1998) ; Wilson v. State , 506 So.2d 1170, 1170 (Fla. 3d DCA 1987). On remand the circuit court should correct the order to reflect that the State did not prove the change of address violation.

Affirmed with instructions.

Taylor and May, JJ., concur.


author: Warner, J.

text:
    SOUTHERN WALL PRODUCTS, INC., Appellant, v. Steven E. BOLIN and Deborah Bolin, his wife, and Bakers Pride Oven Company, LLC, Appellees.
    No. 4D18-875
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Walter G. Latimer, Bruno Renda and Noor Fawzy of McGivney, Kluger & Cook, P.C., Fort Lauderdale, for appellant.
    Rebecca S. Vinocur of Rebecca S. Vinocur, P.A., Coral Gables, for appellees Steven Bolin and Deborah Bolin.
   Warner, J.

Southern Wall Products appeals the trial court's order denying its motion to dismiss for lack of personal jurisdiction in this products liability action. Because the record shows the lack of minimum contacts to support specific personal jurisdiction, we reverse.

The appellees, Steven and Deborah Bolin, filed a 2017 products liability lawsuit in Broward Circuit Court against multiple defendants, including SWP. They alleged in their amended complaint that Steven Bolin was exposed to asbestos-containing products over a period of years, between 1969 and 1981, at numerous job sites in Florida. They claimed that as a result, he contracted mesothelioma.

In their complaint, they alleged jurisdiction against all defendants based on numerous allegations of conducting business in Florida, including that: 1) the defendants conducted business or had offices within the state; 2) the plaintiffs' cause of action arose out of the defendants' business ventures within the state; 3) the defendants' asbestos-containing materials were sold in Florida and Steven Bolin used them in Florida; 4) the defendants engaged in nationwide marketing and specifically targeted Florida for their asbestos-containing products; 5) the defendants conducted substantial and not isolated activities within the state; and 6) the defendants maintained agents for service of process within the state. The plaintiffs also alleged that the defendants received substantial revenues from the sale of products in Florida at all times material to the cause of action.

Specific to SWP, the complaint stated that Steven Bolin was exposed to a joint compound in Florida from SWP in 1975-1977 while working as a laborer or construction worker for a company in Clearwater, Florida.

SWP moved to dismiss for lack of personal jurisdiction. It attached an affidavit of its bookkeeper, averring that SWP, a corporation with its principal place of business in Tucker, Georgia, had never maintained any office or physical presence in Florida, and that neither did its predecessor, Ruco of Atlanta, Inc., also a Georgia corporation. During the 1970s, Ruco's sales were centralized in Georgia, and neither SWP nor Ruco marketed or sold any product in Florida.

To counter the motion to dismiss, the Bolins filed a response, quoting from Steven Bolin's deposition that he had used an asbestos-containing joint compound in 1977 while working as a laborer and that one of them was named Ruco. The response also quoted from a deposition of Richard Whitcomb for SWP, who said SWP was currently distributing its product in Florida at the time of his deposition, which was in 2017. Approximately twenty percent of SWP's sales are made in Florida. The Bolins argued that SWP had continuous contacts and sales in Florida of asbestos-containing products and that SWP is subject to specific personal jurisdiction pursuant to section 48.193, Florida Statutes (2014).

The trial court held a non-evidentiary hearing on the motion to dismiss. Counsel for the Bolins declared that they were alleging specific personal jurisdiction against SWP, not general jurisdiction. The court questioned whether the fact that SWP was doing business in Florida at the time of the hearing, decades after the exposure, would support finding personal jurisdiction over SWP now. SWP objected, arguing that at the time of the alleged Florida exposure, SWP did not do business in Florida. The trial court entered an order denying the motion to dismiss, prompting this appeal.

For a Florida court to have jurisdiction over a defendant under the long-arm statute, courts must apply a two-prong analysis. Venetian Salami Co. v. Parthenais , 554 So.2d 499, 502 (Fla. 1989). The court first determines whether the facts as pleaded were sufficient to support personal jurisdiction under the long-arm statute, section 48.193, Florida Statutes. Id. Secondly, if the first requirement is met, it determines "whether the federal constitutional due process requirements of minimum contacts have been met." Am. Fin. Trading Corp. v. Bauer , 828 So.2d 1071, 1074 (Fla. 4th DCA 2002) ; Woods v. Nova Co. Belize Ltd. , 739 So.2d 617, 619-20 (Fla. 4th DCA 1999).

If the plaintiff has sufficiently alleged a basis for long-arm jurisdiction, then the burden shifts to the defendant to contest those allegations, by affidavit or other proof, or to claim that the federal minimum contacts requirement is not met, by affidavit or other verified evidence. See Venetian Salami , 554 So.2d at 502. If adequately contested, then the burden shifts back to the plaintiff to refute the evidence the defendant submitted by affidavit or other evidence. Id. at 502.

The trial court can resolve the issue of personal jurisdiction based on the affidavits or other evidence if they are not in conflict. Id. at 503. However, when the evidence on the material facts on jurisdiction is in conflict, "then the trial court must conduct a limited evidentiary hearing to resolve the factual dispute." Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A. , 721 So.2d 787, 789 (Fla. 3d DCA 1998) (citing Venetian Salami , 554 So.2d at 503 ). At the evidentiary hearing, the trial court considers testimony and evidence to resolve the factual disputes, and then it determines whether the plaintiff has demonstrated long-arm jurisdiction including minimal contacts. See Teva Pharm. Indus. v. Ruiz , 181 So.3d 513 (Fla. 2d DCA 2015).

To satisfy the first prong of the Venetian Salami test, the plaintiff must allege sufficient facts to support long-arm jurisdiction under section 48.193. In this case, the Bolins asserted jurisdiction pursuant to section 48.193(1)(a) 6., Florida Statutes. Specifically, the statute provides for jurisdiction over an out-of-state defendant for causes of action arising out of the following acts:

Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
a. The defendant was engaged in solicitation or service activities within this state; or
b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.

As to this prong, the evidence is in conflict. The sworn affidavit of the SWP representative states that neither SWP nor its predecessor Ruco sold any product in Florida. Bolin, on the other hand, stated that he used asbestos-containing joint compound from Ruco in construction in Florida in the 1970s, although he did not state that either he or his employer purchased the compound in Florida. While there is a conflict on this first prong, we need not send the case back because jurisdiction fails under the minimum contacts second prong.

For the second prong of Venetian Salami , minimum contacts analysis, the plaintiff must establish that the defendant's contacts with the forum state are: (1) related to the cause of action or gave rise to it; (2) involve some act by which the defendant purposefully availed itself of the privilege of conducting business within the forum; and (3) the defendant's act is such that it should reasonably anticipate being haled into court in the forum state. Moro Aircraft Leasing, Inc. v. Int'l Aviation Mktg., Inc. , 206 So.3d 814, 817 (Fla. 2d DCA 2016) ; Corporacion Aero Angeles, S.A. v. Fernandez , 69 So.3d 295, 299 (Fla. 4th DCA 2011).

The assertion of jurisdiction under section 48.193(1)(a)(6), Florida Statutes, is frequently referred to as jurisdiction based upon a manufacturer placing its goods in the stream of commerce. The United State Supreme Court has limited that type of jurisdiction over a manufacturer on due process grounds, concluding that merely placing goods in the stream of commerce does not create sufficient minimum contacts to warrant the assertion of jurisdiction. In J. McIntyre Machinery, Ltd. v. Nicastro , 564 U.S. 873, 886, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011), the Court held that a manufacturer who did not have offices or employees in the state in which the respondent was seeking to assert jurisdiction, did not advertise in the state, and whose sole contact with the state was the presence of up to four of its machines in the state, could not be subject to jurisdiction in that state. The respondent had brought a products liability claim against a machine manufacturer incorporated and operating in England, based upon an injury he had suffered while using one of the manufacturer's machines in New Jersey. Id. at 878, 131 S.Ct. 2780. Quoting from Justice O'Connor's concurring opinion in Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County , 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed. 2d 92 (1987), the plurality in Nicastro explained that:

The "substantial connection" between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.

Id. at 883, 131 S.Ct. 2780 (citations omitted, emphasis omitted). Justice Breyer concurred, finding that a single sale into a sovereign jurisdiction could not constitute minimum contacts to satisfy due process. Id. at 888, 131 S.Ct. 2780.

This case is factually analogous to Nicastro. While the Bolins alleged that the defendant marketed nationally, targeted Florida, and sold into Florida, the affidavit of the SWP representative averred that: 1) the company had no offices or employees in Florida; 2) did not advertise in Florida; and 3) did not sell its products in Florida during the 1970s. Bolin responded with his own deposition testimony that he used a Ruco joint compound while working construction in Florida in the 1970s. But this alone does not establish "minimum contacts" under Supreme Court precedent. At most, even if Bolin is correct regarding his use of the product in Florida, this amounts to a single use, insufficient to prove minimum contacts. Perhaps there are more facts which Bolin could have brought forth regarding Ruco's contact with Florida; however, he did not, and it was his burden to do so.

Instead, the Bolins rely on SWP's current sales and marketing within Florida to satisfy minimum contacts. SWP contends that the minimum contacts analysis must be made at the time of the acts subjecting the foreign defendant to jurisdiction. We agree. "To support an exercise of specific personal jurisdiction, the defendant's contacts with the forum state must directly relate to the challenged conduct or transaction ...." Tamburo v. Dworkin , 601 F.3d 693, 702 (7th Cir. 2010) (citing GCIU-Emp'r Ret. Fund v. Goldfarb , 565 F.3d 1018, 1024 (7th Cir. 2009) ); N. Grain Mktg., LLC v. Greving , 743 F.3d 487, 492 (7th Cir. 2014). "In order to determine whether a claim relates to or arises out of a party's contacts, the court 'cannot simply aggregate all of a defendant's contacts with a state - no matter how dissimilar in terms of geography, time, or substance - as evidence of the constitutionally-required minimum contacts.' " GCIU-Emp'r Ret. Fund , 565 F.3d at 1024. The current activity of SWP in Florida forty years later does not relate to this cause of action. The acts involved in this action occurred in the 1970s. Bolin offered no evidence with respect to contacts of SWP or Ruco during that period.

The Bolins presented no evidence that SWP purposely availed itself of the privilege of conducting activities in or targeted activities at Florida. It had no contact with Florida at all in the 1970s. There is no evidence that it was marketing its product in the state, that it employed agents in the state, or had agreements with distributors or any contact at all which would suggest purposeful availment of privileges of the forum. SWP's sworn affidavit states that it sold no product in Florida at all. Assuming that Bolin was using the Ruco product in his work, there is no explanation of how it was distributed. Was it purchased in Florida, or was it purchased in Georgia and shipped to Florida? Was it a one-time sale in Florida? Without some contrary evidence, the plaintiff did not refute the affidavit presented by SWP. There is no evidence to support the proposition that SWP should have anticipated being haled into court under the facts of this case.

As Justice Kennedy wrote in the plurality opinion in Nicastro :

A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ). Freeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority into law. As a general rule, the sovereign's exercise of power requires some act by which the defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws," Hanson [v. Denckla] , 357 U.S. [235], 253, 78 S.Ct. 1228 [[2 L.Ed.2d 1283 (1958) ], though in some cases, as with an intentional tort, the defendant might well fall within the State's authority by reason of his attempt to obstruct its laws. In products-liability cases like this one, it is the defendant's purposeful availment that makes jurisdiction consistent with "traditional notions of fair play and substantial justice."

564 U.S. at 880, 131 S.Ct. 2780. Just as the contacts in Nicastro were not sufficient to support constitutional jurisdiction, the contacts of SWP to Florida are insufficient to support jurisdiction in this case.

The Bolins rely primarily on Jones v. Jack Maxton Chevrolet, Inc. , 484 So.2d 43 (Fla. 1st DCA 1986), which has language in the opinion which supports their position. However, it is purely dicta and no longer consistent with the current Supreme Court position on minimum contacts analysis. We must follow the United State Supreme Court.

For the foregoing reasons, we reverse the order denying SWP's motion to dismiss for lack of personal jurisdiction. On remand, the trial court shall dismiss SWP from the action.

May and Klingensmith, JJ., concur.


author: LOGUE, J. LINDSEY, J., concurring.

text:
    Laurie KIPP, etc., Appellant, v. AMY SLATE'S AMORAY DIVE CENTER, INC., et al., Appellees.
    No. 3D17-316
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Brais & Associates, P.A., and Keith S. Brais and Richard D. Rusak ; Keller & Bolz, LLP, and John W. Keller, III, and Sheyla Mesa, for appellant.
    The Chartwell Law Offices, LLP, and Krista Fowler Acuña and Marcus G. Mahfood, for appellees.
    Before EMAS, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

Laurie Kipp, as personal representative of the Estate of her husband, Steven Kipp, seeks review of the trial court's order dismissing her complaint against Amy Slate's Amoray Dive Center, Inc. and Edward Hall. In pertinent part, the complaint was brought under Florida's law of negligence and the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301 - 30308 (2015). The trial court determined that this case can only be brought under DOHSA in federal court. We reverse.

Background

According to the complaint, on November 12, 2015, Steven Kipp was working as crew on a scuba dive charter boat owned and operated by Amy Slate's Amoray Dive Center, Inc. and captained by Edward Hall. That evening, the vessel took customers for a night dive on the Benwood wreck. When adverse currents swept some surfacing divers as far as a half mile away, Kipp snorkeled out to shepherd them back to the boat. While doing so, Kipp suffered a heart attack and died. Kipp's widow filed suit on behalf of herself and their children against the dive center and the captain of the vessel.

The complaint contained six counts: (1) Jones Act negligence against the dive center; (2) General maritime unseaworthiness against the dive center as owner of the vessel; (3) State tort negligence against the dive center; (4) DOHSA claim against the dive center; (5) State tort negligence against the captain; and (6) DOHSA claim against the captain.

The dive center and the captain each filed motions to dismiss contending the cause of action was controlled by DOHSA because the death occurred more than three nautical miles from shore. In response, Ms. Kipp argued that DOHSA does not apply because, as the complaint alleged, the death took place within Florida's territorial waters that extend beyond three nautical miles to the western edge of the Gulf Stream. The trial court took judicial notice that the wreck was located approximately 6.5 nautical miles from shore and granted the motions to dismiss because the death occurred more than three nautical miles from the coast and therefore was subject to DOHSA. In dismissing the complaint, the trial court held DOHSA provides an exclusive remedy available only in federal court and therefore "this Court is precluded from reaching the merits of the remaining issues." Ms. Kipp timely appealed.

Analysis

The central issue in this appeal concerns whether DOHSA applies to a death that occurred more than three nautical miles from the coast of Florida, but still within Florida's territorial waters. On this point, this case presents an issue of pure statutory interpretation. On one hand, DOHSA expressly applies to deaths on the high seas more than three nautical miles from the shore of the United States. 46 U.S.C. § 30302. On the other hand, DOHSA by its plain terms, "does not affect the law of a State regulating the right to recover for death," and it "does not apply" to "waters within the territorial limits of a State." 46 U.S.C. § 30308(a) - (b).

For most coastal states, these two provisions do not conflict because their territorial waters do not extend beyond three nautical miles. But Florida's Atlantic boundary extends to three miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater. Art. II, § 1, Fla. Const. (1968). And the shoreward edge of the Gulf Stream often runs seven or more nautical miles from the coast.

Congress ratified Florida's unusual boundaries, including its territorial waters, when it approved Florida's 1868 Constitution and re-admitted Florida to full representation in the House and Senate in the aftermath of the Civil War. See Act of June 25, 1868, Ch. 70, 40th Congress 2d Sess. (1868), 15 Stat. 73; Art. I, Fla. Const. (1868); United States v. States of Louisiana, Texas, Mississippi, Alabama & Florida, 363 U.S. 1, 125, 80 S.Ct. 961, 4 L.Ed.2d 1025, 1096 (1960), supplemented sub nom. United States v. Louisiana, 382 U.S. 288, 86 S.Ct. 419, 15 L.Ed.2d 331 (1965) ("Congress in 1868 approved [Florida's boundaries including its description of its territorial waters as set forth in Florida's 1868 Constitution], within the meaning of the 1867 Acts.").

Of course, the fact that Florida's Atlantic boundaries extend to the Gulf Stream does not necessarily mean that Florida's tort laws extend to the Gulf Stream. Florida itself may decide that particular Florida laws apply to less than the full extent of its territorial waters. Regarding torts, however, the reach of Florida law extends out to the full limits of Florida's constitutional boundaries, including its territorial waters, as we previously held in Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213, 1215 (Fla. 3d DCA 2003).

Benson involved an incident of medical malpractice that occurred 11 nautical miles from shore but landward of the Gulf Stream. At issue was whether the doctor, who was not a Florida resident, had committed a tort in Florida and therefore came within Florida's Long Arm Statute for purposes of personal jurisdiction. This court held he did. First, the court quoted from Article II, section 1 that, at the point where the St. Mary's River enters the Atlantic Ocean, Florida's boundary proceeds "due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance." Id. at 1215. It then noted that, according to the expert evidence, "[t]he ship was located 11.7 nautical miles east of Florida's coastline. The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question." Id.

The court concluded, "based on the boundary as stated in the Florida Constitution, the claimed incident of medical malpractice occurred within Florida's territorial boundaries." Id.; see also Fla. Dep't of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 962 (Fla. 2005) (citing Benson with approval for the proposition that "medical malpractice occurring on a cruise ship 11.7 miles off of Florida's coast occurred within Florida's territorial waters based on expert evidence establishing that the Gulf Stream was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question").

Even if Florida tort law extends to the Gulf Stream boundary, Congress has the authority to curtail the reach of Florida law or limit rights granted by Federal law to less than the full extent of Florida's territorial waters as established in the Florida Constitution. For example, the Submerged Lands Act granted Florida the rights to the resources in the submerged lands off Florida's coast extending nine nautical miles from the Gulf coast and three geographic miles from the Atlantic coast. United States v. Fla., 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976) (interpreting 43 U.S.C. § 1301, et. seq. ). The Submerged Lands Act recognized "the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress." 43 U.S.C. § 1301(b). However, it further provided that "in no event shall the term 'boundaries' ... be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico." Id.

With this background in mind, we consider whether Congress, by the plain language employed in the DOHSA text, intended to limit Florida's wrongful death remedy to less than Florida's entire territory. As mentioned above, Congress provided that DOHSA applies to deaths on the high seas more than three nautical miles from the shore of the United States:

When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent's spouse, parent, child, or dependent relative.

46 U.S.C. § 30302 (emphasis added). At the same time, however, Congress clearly expressed its intent that DOHSA does not preempt state wrongful death statutes and DOHSA does not apply to the territorial waters of a State. In this regard, DOHSA also provides:

(a) State law.-This chapter does not affect the law of a State regulating the right to recover for death.
(b) Internal waters.-This chapter does not apply to the Great Lakes or waters within the territorial limits of a State.

46 U.S.C. § 30308 (emphasis added).

We reconcile this language by reading the provisions of section 30302 as establishing a general rule and section 30308 as providing specific exceptions. In other words, we construe these two sections, read in pari materia, as providing that DOHSA applies to deaths more than three nautical miles from shore except "within the territorial limits of a State" where it otherwise would "affect the law of a State regulating the right to recover for death."

This reading best comports with the plain meaning of the text. It gives proper effect to the three-nautical miles provision by recognizing that limit governs except where its application would affect a State's wrongful death remedy or cause DOHSA to apply within the territory of a state.

The contrary reading-that the three-mile limit applies regardless of whether it eliminates a state wrongful death remedy within the territory of a state-would render the express provisions of section 30308 meaningless because there would be no circumstances where the provisions of section 30308 would apply. Following fundamental canons of construction, we reject an interpretation that would render not simply words, but an essential section of the statute superfluous. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) ("It is our duty to give effect, if possible, to every clause and word of a statute.") (citation and quotation omitted).

Moreover, a departure from this fundamental canon of construction here would render meaningless a provision of DOHSA, section 30308, which has always been understood as being central to DOHSA. The Supreme Court has noted that "the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters." Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 621-22, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). The legislative history of DOHSA, the United States Supreme Court has held, "indicates that Congress intended to ensure the continued availability of a remedy, historically provided by the States, for deaths in territorial waters." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 397, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) (superseded by statute, 33 U.S.C.A. §§ 901 - 950, as recognized in Garris v. Norfolk Shipbuilding & Drydock Corp., 210 F.3d 209, 226 n.4 (4th Cir. 2000) ).

We note there is no language in DOHSA similar to the language in the Submerged Lands Act, discussed earlier, providing "in no event shall the term 'boundaries' ... be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico." 43 U.S.C. § 1301(b). If Congress had intended to place a similar limitation in DOHSA, it would have used similar limiting language. We find the absence in DOHSA of such "in no event" language telling.

Indeed, Congress enacted DOHSA to provide a wrongful death remedy, albeit a limited one, where no remedy previously existed: "The core purpose of DOHSA was to provide a remedy where one did not exist before, not to oust either a Moragne-type remedy or state law remedies." In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200, 215 (2d Cir. 2000). To accomplish this purpose, Congress did not need to preempt state wrongful death remedies within state territorial waters. Thus, not only does the text expressly disavow any intent to "affect the law of a State regulating the right to recover for death," but no Congressional purpose would be served by implying such preemption.

Finally, this reading is also in accordance with the only case fully analyzing this issue, Blome v. Aerospatiale Helicopter Corp., 924 F.Supp. 805, 813 (S.D. Texas 1996), aff'd without opinion, 114 F.3d 1184 (5th Cir. 1997). In Blome, a U.S. Coast Guard inspector was killed when the helicopter transporting him crashed into the Gulf of Mexico. His family filed a wrongful death action against the operators and manufacturers of the helicopter. The death occurred seven miles offshore. But Texas's territorial waters, similar to those along Florida's Gulf Coast, extend nine nautical miles from shore. Id. at 814.

Noting that before DOHSA was enacted by Congress in 1920 federal maritime law provided no cause of action for wrongful death, the Blome court reasoned that DOHSA was enacted "to fill the gap ... by creating a wrongful death cause of action for deaths occurring on the high seas-an area generally beyond the reach of state law." Blome, 924 F.Supp. at 813. Thus, "Congress intended DOHSA to work in conjunction with state laws by 'leaving unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States.' " Id. (quoting S. Rep. No. 216, 66th Cong., 1st Sess., 3, 4 (1919); H.R.Rep. No. 674, 66th Cong., 2d Sess., 3, 4 (1920) ).

The Blome court therefore held that "the only natural interpretation of DOHSA is that the statute applies to deaths occurring more than one marine league [more than three nautical miles] from shore unless the death occurred in state territorial waters." Id. at 812. DOHSA did not apply because the death, which occurred more than three nautical miles from the coast, nevertheless occurred within the territorial waters of Texas. Id.

We are not persuaded by the cases cited by the Dive Center and Captain Hall because in those cases the states had no recognized claim to waters outside the three nautical miles where DOHSA's jurisdiction begins. In Chute v. United States, 466 F.Supp. 61 (D. Mass. 1978), the court held that Massachusetts had no legitimate claim to waters outside three nautical miles and therefore a death beyond that limit was covered by DOHSA. Similarly, the court in Hooker v. Raytheon Co., 212 F.Supp. 687 (S.D. Cal. 1962) held that California had no legitimate claim to waters outside three nautical miles and therefore a death past that limit was covered by DOHSA. In contrast, here Florida's claim to waters outside three nautical miles has been recognized by Congress and the United States Supreme Court.

We recognize that the Southern District of Florida has held "that the waters of the Gulf of Mexico beyond a marine league [beyond three nautical miles] from the Florida shoreline are not territorial waters of Florida for the purpose of precluding a DOHSA action," and that "[t]his result best effectuates congression[al] intent." Brons v. Beech Aircraft Corporation, 627 F.Supp. 230, 232 (S.D. Fla. 1985). But as the Blome court noted, " Brons offered no additional analysis of the issue, and reached its decision by simply relying on Chute and Hooker, and stating that the plaintiff 'has not formulated a persuasive reason to abandon existing precedent.' " Blome, 924 F.Supp. at 814 (quoting Brons, 627 F.Supp. at 232 ). Nor does Brons address the Congressional Acts and Supreme Court cases that recognize Florida's boundaries as established in Florida's 1868 Constitution. Given this absence of independent analysis, and the fact it follows Hooker and Chute, both of which we find distinguishable and inapplicable, we likewise are unpersuaded by Brons.

The Dive Center and Captain Hall also cite Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 (9th Cir. 2011) in support of their argument. Helman involved a helicopter crash that occurred approximately 9.5 nautical miles off the coast of California. The principal issue in Helman was whether Presidential Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988), which extended the territorial waters of the United States from three to twelve nautical miles from shore, altered the applicability of DOHSA. However, the interplay between the three-nautical-mile limitation in DOHSA and any state remedies in state territorial waters was not at issue in that case and was not addressed by the court in the opinion. The extension of the U.S. territorial waters by Presidential Proclamation would impact the overall territoriality of the United States, but would not necessarily implicate any changes to a state's dominion over its congressionally approved territorial waters.

Finally, the defendants' reliance on Ray v. Fifth Transoceanic Shipping Co., Ltd., 529 So.2d 1181 (Fla. 2d DCA 1988) is equally unavailing. The Dive Center and Captain Hall note this case held that "[s]tate wrongful death statutes are preempted by DOHSA." Id. at 1183. But Ray concerned a passenger who boarded a cruise ship in Puerto Rico but was killed while touring a city on the island. The passenger went on the tour after having been assured on the ship that the tours on the island were safe. Id. at 1182. The issue was whether DOHSA could apply to a death that occurred on land. The Second District found that DOHSA applied because the allegedly negligent assurance of safety occurred on the ship outside the territorial waters of the United States. Id. at 1183. The case contains no discussion of the issue before this court, namely, whether DOHSA applies to an accidental death more than three nautical miles from the coast of a state but still within the territorial waters of the state.

Based upon the foregoing, we reverse the trial court's ruling that the subject case is governed by DOHSA because that determination depends on whether Mr. Kipp's death occurred in Florida's territorial waters. In turn, that determination depends on whether Mr. Kipp's death occurred on the landward side of the edge of the Gulf Stream, a factual issue that cannot be resolved on a motion to dismiss given the allegations in the complaint.

After deciding that this case was governed by DOHSA, the trial court found the exclusive forum for DOHSA claims was federal court. In doing so, the trial court followed the binding precedent of this court where we held "Congress has spoken directly to the question of the authority of state courts to entertain DOHSA claims and has decided that the sole forum for DOHSA actions lies in admiralty." Bailey v. Carnival Cruise Lines, Inc., 448 So.2d 1090, 1094 (Fla. 3d DCA 1984) (Schwartz, J., dissenting). In so ruling, this court recognized that a split of authority existed on this issue. Indeed, finding the contrary cases more persuasive, Judge Alan Schwartz dissented: "I would hold that Florida courts have jurisdiction over actions arising under the Death on the High Seas Act." Id.

As has occurred many times in the past, Judge Schwartz's dissenting position was subsequently approved. In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986), the United States Supreme Court resolved the conflicting precedents and held that state courts have concurrent jurisdiction to entertain DOHSA claims, thereby superseding our prior decision in Bailey. The Fourth District in Hughes v. Unitech Aircraft Serv., Inc., 662 So.2d 999, 1000 (Fla. 4th DCA 1995) recognized that Bailey had been superseded by Tallentire, and concluded "that Florida state courts do have jurisdiction over DOHSA claims." Id. at 1001. We agree with the Fourth District.

Reversed and remanded for further proceedings consistent with this opinion.

EMAS, J., concurs.

LINDSEY, J., concurring.

I concur in result only and would reverse solely on the grounds that the trial court failed to confine itself to the four corners of the complaint when it dismissed the complaint and made factual findings as to the number of miles the Benwood is located from the coast of Florida based on a government website that does not so indicate.

In Count I, brought under the Jones Act, 46 U.S.C. § 30104, Ms. Kipp alleged that "Steven Kipp died within the Florida state territorial waters as defined by Article II, section 1(a) of the Florida Constitution." Alternatively, in Counts IV and VI, brought under the Death on the High Seas Act, 46 U.S.C. § 30302 ("DOHSA"), Ms. Kipp alleged that Mr. Kipp's "death occurred on the High Seas."

Amy Slate's Amoray Dive Center requested the trial court to take judicial notice that the Benwood "is geographically located at GPS: 25-03.144 N, 80-19.930 W or 6.5 nautical miles (7.5 miles) off the coast of Key Largo, Florida " and attached as an exhibit the National Oceanic and Atmospheric Administration's ("NOAA") website documenting the location of the Benwood based on the GPS coordinates. (Emphasis added). The trial court granted the request and found that Mr. Kipp's "death occurred 7.5 miles off the coast of Florida." The trial court further concluded that his "passing occurred outside the three miles adjacent to the coastline within which a cause of action sounding in DOHSA may not be brought for actions occurring therein, that Congress defined the term high seas for purposes of DOHSA, that DOHSA is applicable, and that DOHSA pre-empts [sic] other avenues of relief[.]"

A trial court's review of a motion to dismiss is limited to the four corners of the complaint. Minor v. Brunetti, 43 So.3d 178, 179 (Fla 3d DCA 2010). The purpose of a motion to dismiss is to test legal sufficiency, not determine factual issues. Id. (citations omitted). All allegations contained within the complaint "must be taken as true and any reasonable inferences drawn from the complaint must be construed in favor of the non-moving party." Id. (citation omitted). Further, section 90.202(11), Florida Statutes (2016) permits courts to take judicial notice of "[f]acts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court" and section 90.202(12), Florida Statutes (2016) permits courts to take judicial notice of "[f]acts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned."

Ms. Kipp alleged in Count I that Mr. Kipp died within the Florida state territorial waters and alternatively, in Counts IV and VI, that his death occurred on the high seas. There are no allegations within the four corners of the complaint alleging the distance, in miles-nautical or otherwise-between the Benwood and the coast of Florida. The trial court's finding that the location of the Benwood is 7.5 miles from the coast of Key Largo, Florida, or that Mr. Kipp's passing occurred more than three miles from the coastline, was error. The exhibit from the NOAA website does not state the distance from the coast to the Benwood wreck nor otherwise indicate that it is 6.5 nautical miles, 7.5 miles, or more than 3 miles off the coast of Key Largo, Florida. Because the trial court's dismissal of the complaint is premised on factual findings that are neither set forth in the complaint nor appear on the face of the exhibit from the NOAA website, of which the court took judicial notice, I would reverse.

      46 U.S.C. § 30104 (2015).

      A nautical mile is approximately 1.151 miles. Three nautical miles make a "marine league." The statutes and cases discussed in this opinion often use the term "marine leagues." For ease of reference, we have converted measurements in marine leagues to nautical miles which is indicated in brackets, for example, "[three nautical miles]."

      Under the Florida Constitution, the state's boundaries, in pertinent part, proceed:
      thence in a straight line to the head of the St. Marys River; thence down the middle of said river to the Atlantic Ocean; thence due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance; thence in a southerly direction along the edge of the Gulf Stream or along a line three geographic miles from the Atlantic coastline and three leagues distant from the Gulf of Mexico coastline, whichever is greater, to and through the Straits of Florida and westerly, including the Florida reefs, to a point due south of and three leagues from the southernmost point of the Marquesas Keys; thence westerly along a straight line to a point due south of and three leagues from Loggerhead Key, the westernmost of the Dry Tortugas Islands; thence westerly, northerly and easterly along the arc of a curve three leagues distant from Loggerhead Key to a point due north of Loggerhead Key; thence northeast along a straight line to a point three leagues from the coastline of Florida; thence northerly and westerly three leagues distant from the coastline to a point west of the mouth of the Perdido River three leagues from the coastline as measured on a line bearing south 0°01'00? west from the point of beginning; thence northerly along said line to the point of beginning.
      Art. II, § 1, Fla. Const. (1968).

      See, e.g., Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213, 1215 (Fla. 3d DCA 2003).

      For example, the reach of the Florida Constitution's prohibition on the use of certain gill nets extends less than Florida's constitutional territorial waters. Art. X, § 16(c)(5), Fla. Const. (limiting the prohibition to "nearshore and inshore Florida waters" defined as "all Florida waters inside a line three miles seaward of the coastline along the Gulf of Mexico and inside a line one mile seaward of the coastline along the Atlantic Ocean."). Cf. § 376.031, Fla. Stat. (2018) (Florida prohibits polluting discharges from ships anywhere in its territorial limits and even prohibits such discharges outside its territorial limits if they affect "lands and waters within the territorial limits of the state.").

      In Moragne, the Court noted that the prior "opinion in The Harrisburg [v. Rickards, 119 U.S. 199, 213, 7 S.Ct. 140, 30 L.Ed. 358 (1886) ] acknowledged that the result reached had little justification except in primitive English legal history-a history far removed from the American law of remedies for maritime deaths." Moragne, 398 U.S. at 379, 90 S.Ct. 1772. The Court went on to "overrule The Harrisburg, [and] hold that an action does lie under general maritime law for death caused by violation of maritime duties." Id. at 409, 90 S.Ct. 1772.

      See The Harrisburg, 119 U.S. at 213, 7 S.Ct. 140 (holding no cause of action for wrongful death "will lie in the courts of the United States under general maritime law"). Courts nevertheless began applying state wrongful death and survival statutes to deaths occurring in state territorial waters in the wake of The Harrisburg.See Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921) ; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).


author: SALTER, J.

text:
    SANDS POINTE OCEAN BEACH RESORT CONDOMINIUM ASSOCIATION, INC., etc., Petitioner, v. Isaac AELION, et al., Respondents.
    Elite Parking, LLC, etc., et al., Petitioners, v. Susan Chapman, Respondent.
    Lauren Michelle Perez, et al., Petitioners, v. Lisa Espineira, Respondent.
    Homeowners Choice Property & Casualty Insurance Company, Inc., Petitioner, v. Raul Avila and Doxanne Avila, Respondents.
    Southern Oak Insurance Company, Petitioner, v. Kervene Gregory, Respondent.
    Safepoint Insurance Company, Petitioner, v. Maxo Mardy and Marie G. Mardy, Respondents.
    Cristela Investments, Inc., Petitioner, v. Becky L. Moore and Jack Moore, Respondents.
    Florida Capital Realty Luxury Inc., et al., Petitioners, v. Charles Lacotera, et al., Respondents.
    Lakeview Gardens at Miami Lakes Condominium Association, Inc., etc., Petitioner, v. KCC Investment Group, LLC, etc., Respondent.
    Charlyn Marshall, Petitioner, v. Luis E. Sanchez, Respondent.
    Edison Insurance Company, Petitioner, v. Alberto Loo and Ana Bernitz-Loo, Respondents.
    Randy Moses and Nohra Villaquiran, Petitioners, v. Charles Luke, Respondent.
    The Belle Tower Condominium, Inc., et al., Petitioners, v. Seema Mehta, et al., Respondents.
    2020 Ponce Condominium Association, Inc., Petitioner, v. 2020 Ponce LLC, Respondent.
    Sayan Condominium Association, Inc., Petitioner, v. Law Offices of Isaac Benmergui, P.A., Respondent.
    Hartford Insurance Company of the Midwest, Petitioner, v. Jaqueline Dutkin, Respondent.
    Safepoint Insurance Company, Petitioner, v. Quecline Pierre and Emille Pierre, Respondents.
    The Association for Retarded Citizens, South Florida, Inc., etc., Petitioner, v. Claudia Zacarias, etc., Respondent.
    Gloria Milagros Casquero, et al., Petitioners, v. Kimberly Kallstrom, Respondent.
    Safepoint Insurance Company, Petitioner, v. Madeline Jean, Respondent.
    Homeowners Choice Property & Casualty Insurance Company, Petitioner, v. Rosa Dunbar, Respondent.
    Safepoint Insurance Company, Petitioner, v. Eligio Castellanos and Isabel Siles, Respondents.
    Precision Healthcare, Inc., etc., Petitioner, v. Luis Escalera, Respondent.
    State of Florida and Office of the State Attorney of Miami-Dade County, Petitioners, v. Anthony Schehtman, Respondent.
    Cuba Sabor, Inc., etc., Petitioner, v. Traclaire Moreira, Respondent.
    Ford Motor Company, etc., et al., Petitioners, v. Concepcion Gil, Respondent.
    Michael Murray, Petitioner, v. Margarete Alves, etc., et al., Respondents.
    No. 3D18-755 No. 3D18-786 No. 3D18-790 No. 3D18-825 No. 3D18-826 No. 3D18-827 No. 3D18-828 No. 3D18-833 No. 3D18-834 No. 3D18-835 No. 3D18-836 No. 3D18-838 No. 3D18-853 No. 3D18-854 No. 3D18-855 No. 3D18-857 No. 3D18-860 No. 3D18-865 No. 3D18-866 No. 3D18-867 No. 3D18-868 No. 3D18-871 No. 3D18-872 No. 3D18-873 No. 3D18-874 No. 3D18-876 No. 3D18-877
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Cole Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for petitioners.
    Panter, Panter & Sampedro, P.A., and Brett A. Panter and David Sampedro ; Joel S. Perwin ; VM Diaz & Partners, LLC, and Victor M. Diaz, Jr., Ailyn Popowski and Justin L. DiBiasio ; Goldberg & Rosen, P.A., and Judd G. Rosen ; Perry & Neblett, P.A., and David Avellar Neblett ; David B. Pakula (Pembroke Pines); The Mineo Salcedo Law Firm, P.A., and John Salcedo (Davie); Mario Serralta ; Neufeld Kleinberg & Pinkiert, P.A., and David A. Kleinberg ; DeMahy Labrador Drake, et al., and Kenneth R. Drake and Tiya S. Rolle ; Mase Tinelli Mebane & Briggs, P.A., and Curtis J. Mase and William R. Seitz ; L.E. Burgess, P.A. and Laura E. Burgess ; Florin Roebig, and Michael Lynn Walker (Palm Harbor); The Law Offices of Grey & Mourin, P.A., and Lourdes Rodriguez Brea; The Patino Law Firm, and Richard Patino and Nikolas Mario Salles; Waldman Barnett, P.L., and Glen H. Waldman, Eleanor T. Barnett and Jeffrey R. Lam ; Phillips, Cantor & Shalek, P.A., and Gary S. Phillips (Hollywood); Lauren J. Luck ; Strems Law Firm, and Cecile S. Mendizabal ; Raul R. Lopez ; Kelley Uustal, PLC, and Josiah Graham (Fort Lauderdale); McLuskey, McDonald & Hughes, P.A., and John E. Hughes, III ; The Monfiston Firm, P.A., and Daniel L. Monfiston ; The Cochran Firm, and Scott W. Leeds (Plantation); Rogers Towers, P.A., and P. Brandon Perkins (Fort Myers); Gaebe Mullen Antonelli & DiMatteo, and James S. Robertson and Elaine D. Walter ; Evan Michael Feldman ; Alan Goldfarb ; Leeder Law, and Thomas H. Leeder (Plantation); Sivyer Barlow & Watson, P.A. and Melissa A. Giasi (Tampa), for respondents.
    Before SALTER, EMAS and LINDSEY, JJ.
   SALTER, J.

Defendants represented by a law firm (through various attorneys within that firm; collectively, the "Law Firm") in twenty-six cases (and a plaintiff in a twenty-seventh case, also represented by the Law Firm) pending in the civil division of the Miami-Dade Circuit Court, petition for writs of prohibition to prevent an incumbent judge (the "Incumbent Judge") from presiding over any further matters in those cases. The petitions are grounded on the undisputed fact that a member of the Law Firm (the "Attorney Candidate")-though an attorney who is not counsel of record for any of the petitioners-is the sole opponent of the Incumbent Judge in an upcoming judicial election.

We have consolidated the twenty-seven petitions because of the common underlying legal issues and similar records. The petitions followed the denial of motions for disqualification by the Incumbent Judge. The respondents in the consolidated cases rely on responses filed in two of the cases, to which the petitioners have filed separate replies.

For the reasons detailed in this opinion, we deny all of the consolidated petitions based on the records before us. This opinion addresses: (1) our standard of review; (2) the legal sufficiency of the petitioner/party allegations; (3) applicable legal and ethical guidance; (4) the parties' legal arguments; and (5) the limitations of this opinion.

I. Standard of Review

The facts alleged in the underlying motions to disqualify the Incumbent Judge must be assumed to be true. Wall v. State, 238 So.3d 127, 143 (Fla. 2018). The legal sufficiency of a motion to disqualify is a question of law which we review de novo. Id. at 142. That review assesses the movant's compliance with a statute and a rule of judicial administration.

Section 38.10, Florida Statutes (2018), requires that the applicant for disqualification file "an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against that applicant or in favor of the adverse party," and that "Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith." The procedural requirements for such a motion are further described in Florida Rule of Judicial Administration 2.330.

Rule 2.330(d)(1), as pertinent here, requires that a party moving for disqualification demonstrate a fear that the movant "will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge[.]" (Emphasis provided).

Additionally, Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge should disqualify himself or herself in a proceeding "in which the judge's impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer , or personal knowledge of disputed evidentiary facts concerning the proceeding." (Emphasis provided).

II. The Parties' Allegations

In reviewing the motions for disqualification for specific facts and fears, we consider whether the allegations "would place a reasonably prudent person in fear of not receiving a fair and impartial trial." MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla. 1990) ; Barber v. MacKenzie, 562 So.2d 755, 757 (Fla. 3d DCA 1990). Any alleged bias or prejudice must be actual, not presumptive. See, e.g., Jackson v. State, 599 So.2d 103, 107 (Fla.), cert. denied, 506 U.S. 1004, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992).

In the cases before us, the verified motions for disqualification evidence a common template. The body of the motion recites that: a named member of the Law Firm is the Attorney Candidate running against the Incumbent Judge; the Incumbent Judge is presiding in the pending case; and this results in "inherent prejudice or bias" by the Incumbent Judge against both the movant represented by the Law Firm and the Law Firm itself.

The motions then address the legal authorities governing judicial disqualification, though none of these authorities address the particular facts at issue here. The verification signed by the Law Firm's client (the movant) declares that the signatory has "read the foregoing motion for disqualification," and "the facts alleged therein are true and correct to the best of my knowledge and belief." Finally, the signatory declares, "As set forth in the Motion, I fear that I will not receive a fair trial or hearing because of the described prejudice or bias of [the Incumbent Judge]."

Notably, there is no allegation or evidence that the Attorney Candidate is counsel of record in any of the pending cases.

There is no allegation that any member of the Law Firm is associated with the Attorney Candidate's campaign (as Chair or Treasurer, for example). There is no allegation whether the Law Firm approves or disapproves of the Attorney Candidate's campaign, or whether the Law Firm itself, as a professional association, has any position formally supporting the Attorney Candidate's individual decision to run for the judicial position.

Nor does any movant describe any conduct or comment by the Incumbent Judge, whether in-court or out-of-court, alleged to evidence bias or prejudice against the party or the Law Firm in the particular case. In short, the motions allege in a conclusory way that the movants anticipate "inherent" prejudice or bias that will arise against the entire Law Firm of which the Attorney Candidate is a part.

III. Applicable Law and Ethics Opinions

A. Case Law; Imputation to Attorney Candidate's Law Firm

This is a case of first impression in Florida insofar as the candidacy of the Attorney Candidate is sought to be imputed by the movants to all members of the Law Firm as a basis for disqualification of the Incumbent Judge. If a client of the Attorney Candidate was a party in a pending case before the Incumbent Judge, the client's concern would be more obvious, as in Tower Group, Inc. v. Doral Enterprises Joint Ventures, 760 So.2d 256, 256 (Fla. 3d DCA 2000) (order denying disqualification vacated where the attorney had opposed the presiding trial judge ("in an acrimonious judicial campaign," a characterization not discernible in the present case); case remanded with directions that the trial judge grant the motion for disqualification). See also Leeder v. Espinosa, 833 So.2d 776, 776 (Fla. 3d DCA 2002) (same trial judge and individual attorney/campaign opponent; reiterating the holding in Tower Group, Inc. that "the trial judge may may have had an obligation to sua sponte recuse herself from this cause pursuant to Canon 3(E)(1(a), Code of Judicial Conduct").

In a number of Florida cases, disqualification was addressed when a campaign committee member for a judge's campaign was an attorney representing a party in a case pending before that judge. The opposing party sought disqualification and, when the motion was denied, sought a writ of prohibition. In one such case, this Court denied the petition, holding that a campaign contribution to a judge or service on a judge's campaign committee does not, without more, require disqualification. See Nathanson v. Korvick, 577 So.2d 943 (Fla. 1991) ; MacKenzie, 565 So.2d at 1335. Instead, allegations in such a case must indicate a "specific and substantial political relationship" (campaign chair or treasurer, for example) between the attorney and judge to constitute legally sufficient grounds for disqualification. Zaias v. Kaye, 643 So.2d 687 (Fla. 3d DCA 1994). See also Rivera v. Bosque, 188 So.3d 889, 891 (Fla. 5th DCA 2016) (granting petition for prohibition; petitioner's motion, affidavit, and attachments included a reelection flyer and incumbent/presiding judge's reelection web page; specific allegations "describe the involvement of [respondent's counsel] in the judge's current, ongoing campaign to be of a significant nature").

In a similar case, a defendant's motion to disqualify a judge based on the allegation that defense counsel was on the steering committee to elect the judge's opponent, without more, was deemed legally insufficient. Braynen v. State, 895 So.2d 1169, 1169 (Fla. 4th DCA 2005).

B. Case Law: Presumption of Judicial Impartiality

The law presumes "that a judge will remain impartial even where counsel of record has voiced opposition to the election ... of a judge." City of Lakeland v. Vocelle, 656 So.2d 612, 614 (Fla. 1st DCA 1995) ; Paul v. Nichols, 627 So.2d 122, 123 (Fla. 5th DCA 1993). "[I]t is assumed that the judge will not thereafter harbor prejudice against the lawyer affecting the judge's ability to be impartial in cases in which the lawyer is involved." McDermott v. Grossman, 429 So.2d 393, 393-94 (Fla. 3d DCA 1983) ; Raybon v. Burnette, 135 So.2d 228 (Fla. 2d DCA 1961). See also Perrotto v. R.J. Reynolds Tobacco Co., 169 So.3d 284, 286 (Fla. 4th DCA 2015) (citing McDermott for the assumption that a judge will not be biased against counsel because of counsel's opposition to judge's application for office, but finding the trial court's comments in court sufficient to "rebut any assumption of non-prejudice").

Applying the principle that a motion to disqualify will not be legally sufficient unless the movant overcomes the presumption of impartiality, the "inherent prejudice" alleged in the motions in the present cases is based on the movants' attorneys' mere association with the Attorney Candidate in a statewide law firm. No Florida appellate case has imputed the candidacy of a member of a law firm to every member of that firm as a legally sufficient basis to rebut and overcome the presumption of impartiality (and requiring disqualification of the incumbent judicial opponent on that basis).

C. Canons of Judicial Ethics and Judicial Ethics Advisory Opinions

In 1976, the precursor to Florida's Judicial Ethics Advisory Committee ("JEAC") was established by the Supreme Court of Florida in Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla. 1976). JEAC's current name was approved by the Supreme Court of Florida in 1997.

As the foundational opinion states:

The Committee shall render advisory opinions to inquiring judges relating to the propriety of contemplated judicial and non-judicial conduct, but all opinions shall be advisory in nature only . No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical .

Id., at 5-6 (emphasis provided).

JEAC's salutary work has produced a body of several hundred opinions in the intervening years. Several of these have addressed the topic of motions to disqualify an incumbent judge when an attorney announces an intention to run, or actually runs, against the incumbent judge. No JEAC opinion has addressed the exact scenario presented here, however, in which clients represented by other lawyers in the same law firm as the opposition candidate seek disqualification of the incumbent judge for "inherent" bias or prejudice, without more.

JEAC opinion numbers 84-12 and 84-23 address the simple scenario considered above in various judicial opinions, one in which a party is actually represented by the individual attorney running against the presiding judge. Opinion number 84-12 advises that disqualification in that instance should be automatic. Opinion number 84-23 advises that such disqualification continues after the election, "perhaps two years," until the judge's impartiality cannot reasonably be questioned.

JEAC opinions number 89-3, 89-8, 99-2, 99-13, and 2003-22 address a judge's duty to disqualify himself or herself as to cases involving other members of an attorney's law firm when the judge and the attorney have a significant relationship requiring disqualification. These opinions address social relationships between a judge and an attorney, and relationships with attorneys supporting an inquiring incumbent judge's election campaign. They do not address the law firm of an attorney who is running against a presiding judge.

Opinion number 89-3 involved an attorney who hunted with a judge, contributed to the judge's son's interest in quail-raising as a hobby, and permitted the judge to use the attorney's cabin in North Carolina. The opinion advises that disclosure of the relationship was required "whenever that attorney appears in a proceeding before [the judge]." In opinion number 89-8, the same judge inquired whether disclosure was also required "on the occasions when a member of [the attorney's] law firm appears before [the judge]." JEAC opined that "you should disqualify yourself in any proceeding involving the attorney's law firm in which your impartiality might reasonably be subject to doubt." The opinion does not suggest a per se rule of disqualification for all lawyers within the law firm based on the relationship between the inquiring judge and his hunting companion/host.

JEAC opinion 99-2 involves a male judge's single, social dinner with a female attorney in a large law firm. "The judge and the attorney went out on that one occasion and it did not develop into a personal relationship." Id. The attorney appeared before the judge on two occasions; the judge disclosed the prior dinner engagement and, at the request of the opposing counsel, recused himself. Relying on opinion 89-8, the Committee then expressed the opinion, "If the judge believes that a relationship with an attorney must be disclosed then that same disclosure should be made when any member of the attorney's law firm appears before the judge." The Committee advised the inquiring judge of the Florida Supreme Court's commentary to Canon 3E in In re Code of Judicial Conduct, 659 So.2d 692 (Fla. 1995) :

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis."

Opinion number 99-13 asks the question of imputation very directly: "Whether a judge who is currently represented by an attorney must recuse himself/herself whenever members of the attorney's firm appear before the judge on contested or uncontested matters, whether or not recusal is requested?" The Committee answered, "The judge must automatically recuse herself, even if the parties do not request recusal." The opinion again cites JEAC opinion 89-8 as support for the imputation.

JEAC opinion 2003-22 addresses "Whether a judge is disqualified in all cases in which an attorney who was a member of the judge's re-election committee appears as an attorney of record in a case." The Committee answered "no," but also opined that "there is no bright-line test," and a judge "must make his or her decision on disclosure or disqualification on a case-by-case basis." Based on the previously discussed JEAC opinions 89-8, 99-2, and 99-13, the opinion reiterated the proposition that "If a judge believes that a relationship with an attorney must be disclosed or if a judge believes he or she should disqualify himself or herself, then that same disclosure and/or disqualification applies when any member of the attorney's law firm appears before the judge."

Reiterations of this proposition are found in other JEAC opinions as well, including opinions 03-22, 04-01, and 2007-17. In all of those opinions and the opinions previously discussed in this section, however, the inquiring judge was considering disclosure and disqualification as to an attorney in a significant social relationship with the judge or involved in significant campaign activities with or for the judge's election campaign.

Only in JEAC opinion 2011-08 does the Committee consider an election opponent's law partner's status as a basis for disqualification of the incumbent judge. The issue presented in the opinion is "Whether a judge who intends to seek reelection is disqualified from presiding over a case in which the law partner and campaign treasurer of an attorney who has qualified to run against the judge is an attorney for one of the parties." In answering "yes," the Committee considered critical facts that are not in the cases before us: the attorney candidate's law partner was the campaign treasurer for the candidate opposing the incumbent judge while representing a party in a case pending before that judge. The opinion does not include any information regarding the size of the judicial opponent's law firm.

The Committee in opinion 2011-08 was divided as to whether the judge should disqualify "by automatic, blanket recusal, or via a case-by-case method." But citing the JEAC opinions discussed above, 03-22, 04-01, and 07-17, the Committee reiterated the proposition that the ethical obligations regarding disqualification arising out of an attorney's appearance in a case extends to a member of the attorney's law firm (in this case, the law partner who was a campaign treasurer of the judge's opponent). JEAC opinion 2011-08 does not propose a "per se" or automatic rule of disqualification as to members of a large law firm who are not a partner and campaign treasurer of the judge's opponent.

To summarize the JEAC opinions, we conclude that they establish a broad principle of imputation applicable to lawyers in a law firm in which a particular lawyer has established a substantial personal or campaign-related tie to an incumbent judge. We find much less authority in the opinions regarding the opposite side of the electoral campaign-the incumbent judge's obligations when members of the opposing candidate's firm (but not the individual opposing candidate) represent parties in cases pending before the judge.

IV. The Parties' Legal Arguments

A. Petitioners

The petitions and replies analyze the authorities cited above and raise additional arguments as well. In Town Centre of Islamorada, Inc. v. Overby, 592 So.2d 774, 775 (Fla. 3d DCA 1992), an attorney announced an intention to sue the clerk and judges of the circuit. A trial judge in two pending cases in which the attorney represented a party stated in open court that "he did not consider a threat of a lawsuit to be friendly and that the [attorney's] remark might warrant disciplinary measures by the Florida Bar." This Court found these remarks were legally sufficient to support the claims of fear of prejudice in the two cases. In a third case, however, this Court found a waiver of the right to file such a motion, as the attorney "accepted the case as local co-counsel with full knowledge that it was already assigned to [the trial judge who made the remarks]." Id. at 776.

The petitioners rely on this case to rebut an argument by the respondents that the Attorney Candidate created the alleged basis for disqualification, such that the Attorney Candidate's Law Firm should not be able to file and prosecute the motions. We find the case and argument, as variously advanced by both sides here, to be irrelevant, as there is no evidence that (a) the Attorney Candidate commenced her campaign as a basis for forum-shopping for the benefit of the Law Firm's clients, or (b) the Law Firm played any role in the Attorney Candidate's personal decision to seek election as a circuit judge.

In their replies, the petitioners argue that the Incumbent Judge committed an abuse of discretion in denying the motions for disqualification because respondents' counsel were permitted to make arguments about the Attorney Candidate's motives and the Law Firm's motives. The petitioners cite Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978), as authority that this basis alone constitutes grounds for disqualification. We disagree.

In Bundy, the respondent trial judge entered an order which not only denied disqualification but also "went on to explain, and in some respects controvert, the specific factual allegations contained in the motion." Id. at 441. The trial judge entered a further order denying a motion to reconsider the denial, "again with explanation." Id. In the present case, the Incumbent Judge did not speculate as to motives, provide an explanation, or pass on the truth of the facts alleged in the motion.

B. Respondents

Respondents in the consolidated cases have filed two separate responses. The first-filed response, in our Case No. 3D18-755, principally supports denial of the motions for disqualification because they are based on "circumstances that were created entirely by the Petitioners." The respondent in our Case No. 3D18-786 has filed a separate response raising additional legal arguments focusing on the legal insufficiency of the motions to disqualify. The Incumbent Judge, as is the Judge's right, has not filed a response in any of the cases.

We have already declined to adopt the argument that the petitioners' counsel created the alleged basis for disqualification, thereby waiving it or requiring disqualification of the Law Firm in the pending cases, rather than the Incumbent Judge. We focus instead on the requirement that motions for disqualification contain "an actual factual foundation for the alleged fear of prejudice" and that such allegations must be " 'reasonably sufficient' to justify a 'well-founded fear' of prejudice." Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986).

Political, voting, and ideological differences among lawyers associated in a law firm are too obvious to require proof or some form of judicial notice. The motions for disqualification bear no indication that the Law Firm lawyers representing the petitioners in the underlying cases support the candidacy of the Attorney Candidate. Assumptions are not an "actual factual foundation." Simply stated, no "specific and substantial political relationship," Neiman-Marcus Group, Inc. v. Robinson, 829 So.2d 967, 968 (Fla. 4th DCA 2002), appears in this record between any attorney from the Law Firm representing a petitioner and the Attorney Candidate.

The respondent/plaintiff in Case No. 3D18-786 has also relied upon cases denying disqualification based on a campaign contribution; service as one of sixty members on a judge's campaign committee or as one of a thirty-four member steering committee which had supported the opponent of the presiding judge in an election. These decisions recognize that attorneys must be allowed to participate in various ways in judicial election campaigns, already subject to extensive regulation, without projections of favoritism, bias, or recrimination by judges or by candidates prevailing in their elections and becoming judges.

The per se rule proposed by the petitioners, with its presumption of "inherent bias or prejudice," could disincline eligible attorneys in large firms to enter contested judicial elections against an incumbent. The effect on the candidate's firm's clients and cases could be extensive and adverse. Although "policy considerations" are not a requisite aspect of our disposition of these cases, the prospect for unintended consequences is a concern.

V. Limitations

In denying the petitions presently before us, we consider it important to list some limitations:

1. Our denial of the petitions is based on the existing records of the individual petition proceedings before us. The election campaign conduct of both the Attorney Candidate and the Incumbent Judge is governed by the Code of Judicial Conduct (see, e.g., Canon 7) and by Rule Regulating The Florida Bar 4-8.2 :

Rule 4-8.2. Judicial and legal officials

(a) Impugning Qualifications and Integrity of Judges or Other Officers. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.

(b) Candidates for Judicial Office; Code of Judicial Conduct Applies. A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida's Code of Judicial Conduct.

Subsequent facts and actions are not within the scope of the present proceedings, as "prohibition may not be used for the sole purpose of establishing principles to govern future cases." English v. McCrary, 348 So.2d 293, 297 (Fla. 1977).

2. Although judicial disqualification decisions properly focus on the perspective of the moving party regarding a "fear of not receiving a fair and impartial trial," rather than the judge's own subjective perception of impartiality or bias, we recognize that many judges receiving a motion to disqualify under the scenario presented here might themselves find it appropriate to grant the motion. In that circumstance, an incumbent judge's own sense of propriety, fairness, and optics must be respected; the exercise of an individual judge's discretion to grant such a motion is appropriate. In our evaluation of the Incumbent Judge's decision to deny the motions in these cases, we are not suggesting in any way that every judge should do so in a similar case.

3. We observe, as several of the JEAC opinions have, that these are generally case-by-case analyses. For example, the circumstances of a two-attorney law firm with one attorney challenging an incumbent judge, and the other continuing to practice before that judge, might suggest a closer and more "significant relationship." This opinion should not be construed to apply to any circumstances beyond those presented in these consolidated cases.

VI. Conclusion

The verified motions, party affidavits, and petitions rely on an assumption of "inherent bias or prejudice" on the part of the Incumbent Judge against each of some twenty different lawyers in the Candidate Attorney's law firm, simply by virtue of their association in the practice of law with the Candidate Attorney. No other specific allegations of in-court or out-of-court conduct provide objective support for such an assumption. The presumption of impartiality has not been overcome in these cases, and the petitions in each case are denied, subject to the limitations expressed in this opinion.

      In the first-filed (lowest numbered) case only, Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, Case No. 3D18-755, the record before us includes a transcript of a non-evidentiary hearing before the Incumbent Judge on the motion to disqualify. In all twenty-seven of the consolidated cases, the motions to disqualify were denied as legally insufficient.

      The Law Firm's publicly-available website indicates that it has offices in ten locations outside Miami-Dade County (where the campaign and election will take place). https://www.csklegal.com/locations/ (site last checked May 15, 2018). The record contains no evidence of a firm-wide, or even Miami office-wide, endorsement of the Candidate Attorney. The petitioners in the twenty-seven pending circuit court cases are represented by at least twenty different attorneys from the Law Firm (but not by the Attorney Candidate).

      The petitioners allege in their reply, however, that the Law Firm's clients have not sought disqualification of the Incumbent Judge in each and every case pending before that judge. The Law Firm reports that clients in 38 such cases have filed motions to disqualify; if and when petitions for prohibition are filed here after rulings are made by the Incumbent Judge in additional cases, our consolidation order contemplates that the same panel will be assigned those petitions. As the records and applicable authorities may differ in any such cases, we express no opinion regarding the disposition of petitions beyond those already consolidated in the caption of this opinion.

      See Fla. R. App. P. 9.100(e)(3) ; the absence of a response by the Incumbent Judge "shall not be deemed to admit the allegations of the petition."

      Nathanson v. Korvick, 577 So.2d 943 (Fla. 1991).

      Zaias v. Kaye, 643 So.2d 687 (Fla. 3d DCA 1994).

      Braynen v. State, 895 So.2d 1169 (Fla. 4th DCA 2005).

      See also, § 104.271, Florida Statutes (2018), "False or malicious charges against, or false statements about, opposing candidates; penalty."


author: PER CURIAM.

text:
    OCEAN POINT BEACH CLUB CONDOMINIUM ASSOCIATION, INC., Appellant, v. KELCO/F.B. OCEAN POINT, LLC, Appellee.
    No. 3D17-2242
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Boies, Schiller & Flexner, LLP, and Carl E. Goldfarb, Sigrid McCawley and Pascual A. Oliu (Fort Lauderdale), for appellant.
    Becker & Poliakoff, P.A., and Lilliana M. Farinas-Sabogal and Perry M. Adair, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Grove Isle Ass'n Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1091 (Fla. 3d DCA 2014) (holding: "Restrictions which may be found in a declaration of condominium are clothed with a very strong presumption of validity when challenged. This presumption arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed. 'Such restrictions are very much in the nature of covenants running with the land and they will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right' ") (quoting Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 639-40 (Fla. 4th DCA 1981) ) (additional citations omitted). See also § 718.302(3), Fla. Stat. (2017) (providing that a "grant or reservation made by a declaration ... that provides for ... maintenance ... of a condominium association or property serving the unit owners of a condominium shall not be in conflict with the powers and duties of the association or the rights of the unit owners as provided in this chapter") (emphasis added).