author: SILBERMAN, Judge.

text:
    Katrina BUSHNELL, Appellant, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellee.
    Case No. 2D17-429
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Jennifer Erin Jones of McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, P.A., Tampa, for Appellant.
    Janet Varnell of Varnell & Warwick, P.A., Lady Lake; Lynn Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville; Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Arthur Rubin of We Protect Consumers, P.A., Tampa, for Amicus Curiae National Association of Consumer Advocates, in support of Appellant.
    Robert E. Sickles and Jason S. Lambert of Broad and Cassell, Tampa; and David M. Greenbaum, Racquel A. White, Brian M. Bilodeau and Jessica L. Montes of Portfolio Recovery Associates, LLC, Norfolk, Virginia, for Appellee.
   SILBERMAN, Judge.

Katrina Bushnell seeks review of a county court order denying her motion for prevailing party attorney's fees after Portfolio Recovery Associates, LLC, voluntarily dismissed its account stated cause of action against her. Portfolio, as the successor in interest to the original creditor under Bushnell's credit card account, had filed suit to recover $1021.22 based on Bushnell's alleged failure to object to a billing statement reflecting the amount due. Bushnell sought attorney's fees pursuant to a provision in the credit card account agreement that provides for fees to the creditor in any collection action and the reciprocity provision in section 57.105(7), Florida Statutes (2015). The trial court denied the request for fees and on rehearing certified that this case raises the following question of great public importance:

IS AN ACCOUNT STATED CAUSE OF ACTION TO COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN ACTION TO ENFORCE A CONTRACT, SUCH THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF ATTORNEYS' FEES UNDER § 57.105(7), FLORIDA STATUTES ?

We rephrase the certified question as follows:

IS AN ACCOUNT STATED CAUSE OF ACTION TO COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN ACTION "WITH RESPECT TO THE CONTRACT" SUCH THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES UNDER § 57.105(7), FLORIDA STATUTES (2015)?

We answer this question in the affirmative, reverse the order denying Bushnell's motion for fees, and remand for further proceedings.

I. Background

This dispute arises from Bushnell's alleged failure to pay the balance owed on an Amazon.com store card. In its complaint and in an affidavit and exhibits attached to the complaint, Portfolio claimed that it is the assignee of and successor in interest to the original creditor and that it is the owner of Bushnell's credit card account and the proceeds of the account. It asserted that it has all of the account seller's "power and authority" regarding the account and that the seller has no further interest in the account or account proceeds. Notably, Portfolio brought the action as one for account stated, as opposed to breach of contract.

Bushnell answered the complaint, raised multiple affirmative defenses, and requested an award of attorney's fees based on the underlying credit card agreement. She filed an affidavit to which she attached the credit card agreement that she stated was for the account. Eventually, Portfolio voluntarily dismissed its complaint. Bushnell then filed a motion for award of attorney's fees and costs as the prevailing party, relying on the credit card agreement and section 57.105(7).

The credit card agreement contains a provision authorizing the creditor to recover its attorney's fees as part of its collection costs if it "ask[s] an attorney who is not our salaried employee to collect your account." The agreement does not limit the recovery of fees to certain types of collection actions, whether for breach of contract or otherwise. And the creditor "may sell, assign or transfer any or all" of its rights or duties under the agreement including the rights to payments.

II. Arguments and Analysis

Section 57.105(7) provides, in pertinent part:

If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

The trial court found that Bushnell could not recover fees under section 57.105(7) because the underlying action is not an "action to enforce the contract" as required under that statute. Specifically, the court determined that an action for account stated is not an action for breach of the contract at issue, which is the credit card agreement. The court certified a question that requires proof of an "action to enforce the contract" as follows:

IS AN ACCOUNT STATED CAUSE OF ACTION TO COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN ACTION TO ENFORCE A CONTRACT, SUCH THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF ATTORNEYS' FEES UNDER § 57.105(7), FLORIDA STATUTES ?

Bushnell argues that the trial court erred in interpreting section 57.105(7) to require an "action to enforce a contract." She asserts that the provision requires an action "with respect to the contract." She argues that the certified question should be rephrased to require proof of an action "with respect to the contract." And she claims that the account stated cause of action is an action with respect to the credit card agreement.

Consistent with the wording of the credit card agreement and the statute, and in light of the circumstances before us, we agree with Bushnell that the certified question should be rephrased. In our view, there are two requirements for application of the reciprocity provision in section 57.105(7) : (1) the contract must include "a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract," and (2) the other party seeking fees must "prevail[ ] in any action, whether as plaintiff or defendant, with respect to the contract." See Portfolio Recovery Assocs., LLC v. Benjamin, 24 Fla. L. Weekly Supp. 96a (Fla. 9th Cir. Ct. Apr. 18, 2016); Pujol v. Capital One Bank (USA), N.A., 23 Fla. L. Weekly Supp. 517a (Fla. 15th Cir. Ct. Sept. 21, 2015); Portfolio Recovery Assocs., LLC v. Cordero, 23 Fla. L. Weekly Supp. 392b (Fla. 7th Cir. Ct. July 23, 2015).

The main thrust of the first requirement of section 57.105(7) is determining whether there is a contractual provision allowing for the recovery of fees by a party who is required to take any action to enforce the contract. There is no dispute that the credit card agreement at issue has such a provision. The second statutory requirement, if met, allows the other party to recover fees even though the agreement provides for the recovery of fees only in favor of one party. The main thrust of the second requirement is determining whether the movant is the prevailing party in an action with respect to the contract.

In this case, there is no dispute that Bushnell is the prevailing party. See Raza v. Deutsche Bank Nat'l Tr. Co., 100 So.3d 121, 123 (Fla. 2d DCA 2012) (explaining that the courts in Florida have consistently determined that a defendant in a case that is voluntarily dismissed is the prevailing party for purposes of attorney's fees). However, there is a dispute over whether the action for account stated constitutes an action with respect to the credit card agreement. Thus, we rephrase the certified question as follows:

IS AN ACCOUNT STATED CAUSE OF ACTION TO COLLECT ON AN UNPAID CREDIT CARD ACCOUNT AN ACTION "WITH RESPECT TO THE CONTRACT" SUCH THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES UNDER § 57.105(7), FLORIDA STATUTES (2015)?

We answer this question in the affirmative. Our answer to the question is informed by the supreme court's interpretation of analogous contract language in Caufield v. Cantele, 837 So.2d 371, 379 (Fla. 2002). In Caufield, the contract provided for "attorney's fees in connection with any litigation 'arising out of' the contract." Id. at 373. The supreme court concluded that the prevailing party in an action for fraudulent misrepresentation was entitled to fees under this provision. Id. at 379. In so doing, the court considered three other decisions in which courts declined to limit similar contractual provisions to contract enforcement claims. Id. (citing Katz v. Van Der Noord, 546 So.2d 1047 (Fla. 1989) (rescission); Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998) (fraudulent misrepresentation); and Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir. 2001) (tortious interference) ). The supreme court reasoned, "Had there been no contract, the ensuing misrepresentation would not have occurred. Therefore, the existence of the contract and the subsequent misrepresentation in this case are inextricably intertwined such that the tort complained of necessarily arose out of the underlying contract." Id.

Although Caufield interpreted a contractual provision, at least one court has applied its "inextricably intertwined" test to a statutory provision containing the "arising out of" language. See Randall v. Lady of Am. Franchise Corp., 532 F.Supp.2d 1071, 1093 (D. Minn. 2007) ("The Court therefore finds that a non-contract claim 'aris[es] out of [a] contract' for purposes of § 95.03 when that non-contract claim could only arise if the parties have entered into a contract." (alteration in original) ). We conclude that the "arising out of" language is not materially different from the "with respect to" language in section 57.105(7). And we hold that the supreme court's "inextricably intertwined" test in Caufield is applicable to determine whether an action is "with respect to the contract" such that the reciprocity provision in section 57.105(7) applies.

We are not persuaded by Portfolio's argument that the application of the inextricably intertwined test to section 57.105(7) is inconsistent with Tylinski v. Klein Automotive, Inc., 90 So.3d 870 (Fla. 3d DCA 2012). In Tylinski, the plaintiff car dealer filed suit against the defendants for breach of a Retail Order Contract (ROC) the defendants had signed in the course of purchasing a car. Id. at 871-72. The defendants prevailed in the breach of contract action, but the trial court denied their motion for attorney's fees under section 57.105(7). Id. at 872-73.

In affirming, the Third District discussed two documents that the parties had executed. Id. at 871-72. One was a Retail Order Contract (ROC), which did not contain an attorney's fee provision. Id. at 872. The other was a Retail Installment Sales Contract (RISC), which contained an attorney's fee provision. The court rejected the defendants' argument that fees should have been awarded to them in accordance with the terms of the RISC. The court stated that it understood the defendants' "argument that, but for the financial commitment reflected in the RISC, the dealership would not have allowed them to drive the car off the lot." Id. But the court explained that the dealer sued only for breach of the ROC. And in their answer to the complaint the defendants' asserted a claim for attorney's fees under the reciprocity provision of section 57.105(7) and the ROC. The defendants did not plead a claim for fees under the RISC, which was the contract containing the fee provision. Id.

The Tylinski court's rejection of the defendants' "but for" argument to the application of section 57.105(7) is not inconsistent with the application of the inextricably intertwined test here. The Third District did not interpret the "with respect to the contract" language in section 57.105(7) to determine whether the defendants were entitled to fees. Instead, the court upheld the denial of attorney's fees because the defendants failed to plead a proper basis for the recovery of fees. Id. at 872-73.

In contrast to the circumstances of Tylinski, Portfolio brought an action to collect money owed as a result of Bushnell's use of the Amazon.com store credit card. Bushnell responded to the complaint and asserted her claim for fees under a provision in the credit card agreement and section 57.105(7). Thus, Tylinski simply does not apply here.

To apply the inextricably intertwined test from Caufield in this case, we must consider whether the account stated cause of action could have occurred absent the existence of the credit card contract. A claim for account stated requires proof "that there was 'an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.' " Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1196 (Fla. 5th DCA 2014) (quoting Farley v. Chase Bank, U.S.A., N.A., 37 So.3d 936, 937 (Fla. 4th DCA 2010) ). There does not need to be an explicit agreement. Id. Instead, a claim for account stated can be based on a debtor's failure to object to an account statement. Id.

While a claim "for an account stated is based on 'the agreement of the parties to pay the amount due upon the accounting, and not any written instrument,' " Farley, 37 So.3d at 937, the amount due here is based on the debtor's failure to pay under the credit card contract. Simply put, if there had been no credit card contract, the amount due would not have accrued in the first place. The credit card contract and the account stated cause of action are therefore inextricably intertwined such that the account stated cause of action is an action "with respect to the contract" under section 57.105(7). Accordingly, we answer the rephrased certified question in the affirmative.

In summary, we conclude that in an action for account stated brought to collect the amount due under a credit card agreement, the reciprocity provision in section 57.105(7) applies to a properly pleaded request for attorney's fees made pursuant to the terms of the agreement. As a result, we reverse the order that denied Bushnell's motion for attorney's fees and remand for the trial court to determine the reasonable amount of attorney's fees to be awarded to Bushnell.

Reversed and remanded for further proceedings; certified question answered.

KELLY and MORRIS, JJ., Concur.

      The order on appeal awarded costs to Bushnell as the prevailing party pursuant to a stipulation. We do not disturb that portion of the order.


source: Caselaw Access Project

author: Wetherell, J.

license: Public Domain

text:
    Thomas Gerald DUKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5118
    District Court of Appeal of Florida, First District.
    September 14, 2018 Rehearing Denied October 30, 2018
    Curtis S. Fallgatter and Alex King of Fallgatter & Catlin, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Thomas Gerald Duke pled no contest to possession of a firearm by a convicted felon. As part of his plea, Duke reserved his right to appeal the denial of his dispositive motion to suppress the incriminating evidence found on several USB drives that had been stolen from him, his identification from the files on those drives, and the firearm seized from his vehicle upon his arrest. This is Duke's appeal.

As he did below, Duke argues on appeal that law enforcement officers violated the Fourth Amendment by opening and viewing the contents of the stolen USB drives without his consent because he had an expectation of privacy in the contents of the drives. We affirm because (1) contrary to Duke's argument, no Fourth Amendment search occurred, and (2) even if a search occurred, it was lawful because it was based on the consent of the person who had possession of the drives and who the officers reasonably believed had the apparent authority to consent to a search of the drives.

Facts

On November 6, 2017, Duke reported that his vehicle had been burglarized. Duke claimed that several USB drives were stolen in the burglary, along with cash, laptop computers, and other items. However, the police report of the burglary did not list the USB drives amongst the stolen property.

A few days later, Mario Hampton was arrested on unrelated charges. After his arrest, Hampton consented to a search of his house and he specifically led the officers to an air conditioning vent where he had hidden some USB drives. He told the officers that this was the "mother lode" and that the drives contained "some sick shit." Hampton also told the officers that he had obtained the drives in exchange for drugs. The officers did not know the drives were stolen.

The officers inserted one of the USB drives into a police-issued computer. The drive was not password-protected. The officers opened a video file on the drive, which depicted what appeared to be a sexual battery because it showed "a white male strangle a ... young oriental girl, to where she was unconscious and then he raped her." The officers did not look at any other files on the drive and immediately turned over all of the drives to a detective in the Sex Crimes Unit. The detective interviewed Hampton and questioned him further about the contents of the drives. During the interview, Hampton told the detective that he only viewed one video on the drives, which he described as showing a "dude with a girl ... she looked like she was young" and "it just looked like ... sick." Hampton then signed a written consent form authorizing the detective to search all of the USB drives.

Subsequent searches of the USB drives led law enforcement to identify the man in the video as Duke. A warrant was thereafter issued for Duke's arrest, and when the warrant was executed, a firearm was found in Duke's vehicle. Because Duke was a convicted felon, the State charged him with unlawful possession of the firearm.

Duke filed a motion to suppress, arguing that the arrest that led to the firearm's discovery was unlawful because the arrest warrant was based on an affidavit that relied on evidence found in an unlawful warrantless search of the USB drives. Specifically, Duke argued that the search of the drives violated the Fourth Amendment because he had not abandoned the drives; he retained an expectation of privacy in the contents of the drives after they were stolen; he did not consent to the search or authorize Hampton to do so; and the officers knew that the drives were stolen and that Hampton had no authority to consent to a search of the drives.

The trial court denied the motion after a hearing. The court concluded that no Fourth Amendment search had occurred because (1) it was Hampton, not the officers, who violated Duke's expectation of privacy in the contents of the USB drives, and (2) Duke did not have a reasonable expectation of privacy in the contents of the drives because they were not password-protected. Duke thereafter pled no contest to possession of a firearm by a convicted felon, reserving his right to appeal the denial of his dispositive motion to suppress.

This appeal followed.

Analysis

The trial court's ruling on the motion to suppress comes to this Court with a presumption of correctness. See State v. Markus , 211 So.3d 894, 902 (Fla. 2017). Our standard of review is mixed: the trial court's ultimate ruling is a question of law that we review de novo , but the factual findings on which the ruling is based are reviewed for support by competent substantial evidence. Id.

The Fourth Amendment protects the "right of the people to be secure in their persons ... and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. For purposes of the Fourth Amendment, a "search" occurs only when an individual's reasonable expectation of privacy is infringed by an agent of the government. United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The Fourth Amendment is "wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." Id. (internal quotations omitted). Thus, where a warrantless search by law enforcement is prompted by a prior search by a private party, the warrantless search does not violate the Fourth Amendment so long as it does not exceed the scope of the private party's search. Id. at 117, 104 S.Ct. 1652 ; see also United States v. Harling , 705 Fed. Appx. 911 (11th Cir. 2017) (affirming the denial of a motion to suppress the contents of two USB drives that were reviewed by private parties before they were searched by the police, but reversing as to a third drive that had not been reviewed by the private parties before it was searched by the police), cert. denied , --- U.S. ----, 138 S.Ct. 1312, 200 L.Ed.2d 492 (2018).

Duke had the initial burden to prove that the officers conducted a Fourth Amendment search when they opened and viewed the video file on the USB drive after Hampton told them that the drives contained "some sick shit." Armstrong v. State , 46 So.3d 589, 593-94 (Fla. 1st DCA 2010) ; see also Florida v. Riley , 488 U.S. 445, 455, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (O'Connor, J., concurring) (stating that defendant has burden of proving "a 'search' within the meaning of the Fourth Amendment even took place"). If Duke met that burden, then the State had the burden to prove that an exception to the warrant requirement applies. Kilburn v. State , 54 So.3d 625, 627 (Fla. 1st DCA 2011).

Duke failed to meet his burden to prove that a Fourth Amendment search occurred. The officers initially only viewed one file on one of the USB drives after being informed by Hampton that the drives contained "some sick shit." Although the record does not conclusively establish what "sick shit" Hampton viewed, it supports the inference that he was referring to the same video that the officers viewed. See Ingram v. State , 928 So.2d 423, 428 (Fla. 1st DCA 2006) ("In reviewing the denial of a motion to suppress, we view the evidence and its reasonable inferences in a light most favorable to affirming the trial court's ruling."). Hampton later told the detective that he only viewed one video file on the drives, and his description of this video was consistent with what the officers described seeing in the one video that they opened before turning over the drives to the Sex Crimes Unit. Moreover, because Hampton only viewed one video, it is reasonable to infer that he directed the officers to the specific USB drive that contained the video that he reviewed. Accordingly, under these circumstances, the trial court did not err in concluding that the officers did not conduct a search within the meaning of the Fourth Amendment when they opened one of the USB drives and viewed a video file on the drive.

However, even if the officers' initial viewing of the video was a Fourth Amendment search of the USB drive, it was lawful because Hampton consented to the search. See State v. Purifoy , 740 So.2d 29, 30 (Fla. 1st DCA 1999) ("It is well-established that a search conducted pursuant to valid consent is a recognized exception to the requirements of probable cause and a search warrant ...."). The fact that Hampton did not have actual authority from the owner of stolen USB drives, Duke, to give such consent is immaterial because it is well-established that law enforcement may rely on the consent given by a person with apparent authority, so long as that reliance is reasonable under the totality of the circumstances. See State v. Young , 974 So.2d 601, 610 (Fla. 1st DCA 2008) (citing Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ).

Here, it was reasonable for the officers to rely on Hampton's apparent authority to consent to them viewing the contents of the USB drives. The officers did not know that the drives were stolen or that Hampton was not in lawful possession of the drives. The drives were safely hidden in his home, and he told the officers that he obtained the drives in exchange for drugs. The officers knew Hampton was a drug dealer and that drug users sometimes traded personal property for drugs. Under these circumstances, it was not unreasonable for the officers to assume that the person with whom Hampton traded was the original owner of the drives, thereby making Hampton the lawful owner of the drives. The fact that this turned out not to be the case does not undermine the reasonableness of the officers' assumptions at the time.

The subsequent searches of the USB drives were based on Hampton's written consent. The detective with the Sex Crimes Unit who obtained the written consent asked Hampton if the devices were stolen, but consistent with what he told the original officers, Hampton told the detective that he received the drives in exchange for drugs. Accordingly, under the circumstances, it was not unreasonable for the detective to conclude that Hampton had the apparent authority to consent to a search of the USB drives.

We did not overlook the fact that the detective told Hampton that law enforcement knew the USB drives were not his, but that does not undermine the reasonableness of the detective's reliance on Hampton's apparent authority to consent to a search of the drives. When the detective's statement is viewed in context, it is clear that it was merely intended to assure Hampton that even though he claimed ownership in the drives, he was not going to be charged with the acts depicted in the video because he was not in the video.

Conclusion

For the reasons stated above, the trial court properly denied Duke's motion to suppress the evidence on the USB drives that ultimately led to the discovery of the firearm that served as the basis for the charge to which Duke pled. Accordingly, we affirm Duke's conviction and sentence.

AFFIRMED.

Bilbrey and M.K. Thomas, JJ., concur.

      Based on this disposition, we need not address the trial court's conclusion that Duke lacked a reasonable expectation of privacy in the contents of the USB drives because they were not password-protected.

      The State also charged Duke with two counts of sexual battery, kidnapping, and domestic battery by strangulation, but those charges were dropped.


author: Per Curiam.

text:
    Dennis LONG, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-3670
    District Court of Appeal of Florida, First District.
    September 14, 2018 Rehearing Denied October 30, 2018
    Dennis Long, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brett Coleman, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Rowe, JJ., concur.


text:
    Judy Ann Jean KEETER, Appellant, v. BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as trustee, ON BEHALF OF the HOLDERS OF the ALTERNATIVE LOAN TRUST 2006-0A11, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-0A11, et al., Appellee.
    No. 1D18-2095
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied October 30, 2018
    Judy Ann Jean Keeter, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

DISMISSED . See Fisher v. Int'l Longshoremen's Ass'n , 827 So.2d 1096 (Fla. 1st DCA 2002).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    John Mitchell TOMLINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3405
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied October 30, 2018
    John Mitchell Tomlinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Makar, Osterhaus, and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    Fernando SANCHEZ, Appellant, v. Kristin M. GASSER, Appellee.
    Nos. 3D17-1796 3D17-1798 & 3D17-1857
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Fernando Sanchez, in proper person.
    Nancy A. Hass (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See Cardona v. Casas, 225 So.3d 384, 384 (Fla. 3d DCA 2017) ("[W]e cannot review whether the trial court abused its discretion or committed harmful error without a transcript or reconstructed record of the multi-day dissolution and attorney's fees hearings."); Duke v. Duke, 211 So.3d 1078, 1080 (Fla. 5th DCA 2017) ("Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence. Thus, for an appellate court to review the sufficiency of evidence at trial, the appellant must either include in the record a trial transcript or a proper substitute, such as a stipulated statement of facts." (citations omitted) ).


text:
    Montrail COOK, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1999
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied October 23, 2018
    Montrail Cook, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Eric Salvatore Giunta, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Newell v. Moore , 826 So.2d 1033 (Fla. 1st DCA 2002).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    Rufus MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1707
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied October 30, 2018
    Rufus Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Osterhaus, and M.K. Thomas, JJ., concur.


text:
    Gino BISCARO, et al., Petitioners, v. EUCLID 1610, INC., etc., et al., Respondents.
    No. 3D18-0388
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Law Offices of Marina Barturen, and Marina Barturen, for appellants/petitioners.
    Bello & Martinez, PLLC, and Joel A. Bello and Ian Illych Martinez, Coral Gables, for appellees/respondents.
    Before ROTHENBERG, C.J., and SUAREZ, and LINDSEY, JJ.
   PER CURIAM.

We treat this appeal as a petition for certiorari pursuant to Florida Rule of Appellate Procedure 9.100, and deny the petition. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Blue Star Palms, LLC v. LED Trust, LLC, 128 So.3d 36 (Fla. 3d DCA 2012).


author: LOGUE, J.

text:
    Azzan Bin Abdulla AL GHURAIR, Appellant, v. Georgi ZACZAC, Sr., et al., Appellees.
    Nos. 3D16-2517 3D17-1612 & 3D17-2014
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Law Offices of Paul Morris, P.A., and Paul Morris ; Sigelman Law Corporation, and Paul Sigelman (Beverly Hills, CA), for appellant.
    Weil Snyder Schweikert & Ravindran, P.A., and Ronald P. Weil and Mark A. Schweikert, for appellees.
    Before ROTHENBERG, C.J., and LOGUE and SCALES, JJ.
   LOGUE, J.

In these consolidated appeals, Azzan Bin Abdullah Al Ghurair, a resident of Dubai in the United Arab Emirates, seeks review of (1) pre- and post- judgment orders finding him in contempt of court for failing to honor a settlement agreement with his discharged lawyers, and (2) post-judgment writs of bodily attachment requiring him to appear in person and explain why.

In the underlying lawsuit, Appellant, Al Ghurair, hired Appellees, three law firms, to collect money owed him. When Al Ghurair discharged the law firms, they filed a charging lien. The lawsuit was subsequently settled when the defendant agreed to transfer to Al Ghurair various properties in Brazil. Al Ghurair and the law firms then settled the dispute over the charging lien. Although the settlement had two non-monetary components intended to secure payment (funding an escrow account and granting the lawyers mortgages on the properties in Brazil), the main provision was that Al Ghurair pay the law firms a legal fee in the amount of $1,925,000.

When Al Ghurair failed to comply with the terms of the agreement, the law firms began filing motions to compel compliance. On October 4, 2016, the trial court granted the law firms' motion to enforce the settlement agreement. Among other things, the order directed Al Ghurair to "Pay the LAW FIRMS $1,925,000.00 U.S. Dollars by December 31, 2016" and reserved jurisdiction to issue orders for Al Ghurair to show cause why he should not be held in contempt for failure to comply. It later ordered Al Ghurair to personally appear in court and explain why he had not complied. The trial court declined to allow Al Ghurair to appear by telephone. Al Ghurair failed to honor these orders.

Ultimately, on May 19, 2017, the trial court entered an amended final judgment, nunc pro tunc to January 1, 2017, for the law firms and against Al Ghurair for $1,925,000 plus interest. The final judgment did not require Al Ghurair to specifically perform the non-monetary components of the settlement agreement. It did, however, reserve jurisdiction to enter further contempt orders against Al Ghurair. On June 13, 2017, based on its prior order to show cause, the trial court entered a contempt order against Al Ghurair and issued a writ of bodily attachment. A second writ of bodily attachment was issued on August 1, 2017.

All of the trial court's challenged actions trace back to the orders directing Al Ghurair to comply with the settlement agreement whose central provision was the payment of the $1,925,000. At oral argument, the attorney for the law firms conceded the gravamen of their complaint was Al Ghurair's failure to pay them: "we are not trying to be coy here." In substance, therefore, the actual legal effects of the contempt orders and writs of bodily attachment were to use the court's contempt powers to pressure Al Ghurair to pay the $1,925,500 legal fee which had been reduced to a money judgment. This use of the contempt power constitutes reversible error.

"The enforcement through contempt of debts not involving support violates Article I, section 11 of the Florida Constitution, the provision prohibiting imprisonment for debt." Randall v. Randall, 948 So.2d 71, 74 (Fla. 3d DCA 2007) (quoting Whelan v. Whelan, 736 So.2d 732, 733-34 (Fla. 4th DCA 1999) ); accord Grotnes v. Grotnes, 338 So.2d 1122, 1127 (Fla. 4th DCA 1976) ("[W]e held that contempt was not an appropriate or available remedy as it would constitute imprisonment for debt. We still believe this to be true in the normal debtor-creditor situation."); Tabas v. Hudson, 175 So.2d 224, 225 (Fla. 3d DCA 1965) (holding "portion of the order appealed [purporting to incarcerate the appellant for failure to pay a money judgment] must be reversed as it constitutes imprisonment for debt, contrary § 16, Declaration of Rights, Constitution of Florida, F.S.A.").

Accordingly, the provisions of the final judgment that reserved jurisdiction to hold Al Ghurair in contempt are reversed; the pre-judgment orders of contempt are deemed merged with the final judgment; and the post-judgment orders of contempt and writs of bodily attachment are quashed. The other issues on appeal are affirmed.

      Appellees are Weil Quaranta, P.A. (now known as Weil Snyder Schweikert & Ravindran, P.A.), Hillary K. Rodriguez, P.A., and Moraes Pitombo Advogados.


text:
    Carlos SHAARBAY, Appellant, v. Dania ALVAREZ, et al., Appellees.
    No. 3D17-1894
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Carlos Shaarbay, in proper person.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein (Tallahassee), Senior Assistant Attorney General, for appellee Department of Revenue.
    Before EMAS, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See § 61.14(6)(a)3., Fla. Stat. (2017) ("The judgment under this paragraph is a final judgment as to any unpaid payment or installment of support which has accrued up to the time either party files a motion with the court to alter or modify the support order, and such judgment may not be modified by the court."); Dep't of Revenue v. Jackson, 846 So.2d 486, 490 (Fla. 2003) ("Florida simply does not permit a retroactive reduction of accrued amounts due for support, even if such an approach were in the best interests of both the child in having some amount, albeit smaller, actually paid, and the obligor parent in making a manageable payment rather than being faced with the often unattainable and unrealistic expectation to satisfy large vested arrearages.").


text:
    Marie J. PIERRE, Appellant, v. PHH MORTGAGE CORPORATION, Appellee.
    No. 3D18-0003
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Marie J. Pierre, in proper person.
    Phelan Hallinan Diamond & Jones, PLLC and Christopher DelBene (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Ramos v. Ventures Tr., 157 So.3d 455, 456-57 (Fla. 3d DCA 2015) ("In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed."); Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 536 (Fla. 3d DCA 2015) ("All of the challenges made by the Borrower basically rest on this Court's review of the evidence and arguments made at trial, neither of which can be done in the absence of a transcript. Based upon what is available in the record, and without proof of anything from the trial to the contrary, we affirm").


text:
    Jose Francisco CRUZ, Appellant, v. Gilberto HERNANDEZ, Appellee.
    No. 3D18-407
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Jose Francisco Cruz, in proper person.
    Gilberto Hernandez, in proper person.
    Before ROTHENBERG, C.J., and FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.315(a) ("After service of the initial brief ... the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.").


text:
    D.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-381
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    D.O., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Sorey v. State, 419 So.2d 810, 812 (Fla. 3d DCA 1982) (holding: "Where, as here, fingerprint evidence is the sole evidence relied upon to establish that the defendant was the perpetrator of the crime, it is said that 'the circumstances must be such that the print could have been made only at the time the crime was committed.' Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962). The determination of whether the circumstances are such that the print could have been made only at the time the crime was committed is to be made by the fact-finder, Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972), provided that the court, viewing the evidence in a light most favorable to the State, M. R. v. State, 399 So.2d 56 (Fla. 3d DCA 1981), has first determined that a reasonable-minded jury could find the guilt of the defendant beyond a reasonable doubt. In the Interest of G. B. S., 417 So.2d 1181 (Fla. 4th DCA 1982) ; Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). Thus, in a case where fingerprint evidence is the sole evidence relied upon to establish the identity of the defendant as the perpetrator of the crime, the court, viewing the evidence most favorably to the State, must decide whether reasonable-minded jurors could find beyond a reasonable doubt that the fingerprints were made at the time the crime was committed.") (Footnotes omitted). See also M.M. v. State, 87 So.3d 1291 (Fla. 3d DCA 2012) ; Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967) ; Amell v. State, 438 So.2d 42 (Fla. 2d DCA 1983).


text:
    B.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-238
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Lovett v. State, 781 So.2d 466, 467 (Fla. 5th DCA 2001) ; Price v. State, 816 So.2d 738, 741 (Fla. 3d DCA 2002).


author: FERNANDEZ, J.

text:
    Weedemarck LINDOR, etc., et al., Appellants, v. FLORIDA EAST COAST RAILWAY, LLC, Appellee.
    No. 3D17-2366
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP and Julie H. Littky-Rubin (West Palm Beach), for appellants.
    Milton, Leach, Whitman, D'Andrea & Eslinger, P.A., Eric L. Leach and C. Ryan Eslinger (Jacksonville), for appellee.
    Before LAGOA, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Plaintiffs Weedemarck Lindor and Bernite Lindor, personal representative of the Estate of Marie Claudia Gelin (decedent), appeal the trial court's order striking plaintiffs' complaint and dismissing the complaint without prejudice. Marie Claudia Gelin ("Gelin") was allegedly struck and killed on November 22, 2012, by a freight train operated by defendant Florida East Coast Railway, LLC. Gelin was survived by her middle school aged daughter, Luz Gelin, who now resides in New Jersey with her maternal aunt and uncle through marriage, Bernite and Weedemarck Lindor (collectively, "the Lindors"). On November 10, 2014, two days before the expiration of the two-year statute of limitations for a wrongful death claim, plaintiffs' original counsel filed a wrongful death complaint listing the Lindors as co-personal representatives of the estate of Marie Claudia Gelin. However, at the time of the filing of the complaint, the Lindors had yet to be appointed as personal representatives of Gelin's estate because no petition for administration of the estate had been filed.

Inexplicably, very little happened in this case for the next two and a half years, until a motion for substitution of counsel was filed by plaintiffs' present counsel and the taking of depositions began. It was during such a deposition that defendant learned that the Lindors had never been appointed as personal representatives of the estate. This discovery precipitated a flurry of activity by plaintiffs' counsel to properly designate Bernite Lindor as personal representative of the estate. In the interim, however, defendant filed its motion to dismiss the complaint as a sham pleading, claiming that by filing a complaint alleging that the Lindors had been properly designated as the co-personal representatives of the estate, plaintiffs' counsel had filed a sham pleading because he and the Lindors were fully aware that no such designation had been made and they made that allegation knowing that the fact was false. Plaintiffs' counsel promptly notified the court of the efforts they were making to correct the deficiency, and on October 3, 2017, filed the probate court's order of October 2, 2017, appointing Bernite Lindor as personal representative of the estate of Marie Claudia Gelin. On October 4, 2017, the trial court entered its order granting the defendant's motion to strike the plaintiffs' complaint and dismissed the action without prejudice. This appeal followed.

In 1954, in a case remarkably similar to the case at bar, the Florida Supreme Court had occasion to consider the dismissal of a complaint filed by "Jesse Phillip Griffin, Sr., as Administrator of the Estate of Johnny Reece Griffin, deceased." Griffin v. Workman, 73 So.2d 844, 845 (Fla. 1954). Jesse Griffin, Sr. was Johnny's father, and at the time that he filed the complaint, no petition for administration of Johnny's estate had been filed. As such, Jesse had yet to be properly designated as administrator of the estate. Id. The complaint was filed, as here, two days before the expiration of the limitations period for filing a wrongful death action, and the petition for administration of the estate was not filed until after the two-year statute of limitations had expired. Id. A motion to dismiss was filed by one of the defendant's in the case because a personal representative had not been appointed to prosecute the civil wrongful death action. Id. Before the trial court decided the motion, a proper personal representative, now the daughter of Jesse Griffin, Sr., filed a motion establishing that she had been properly appointed as personal representative and sought leave to substitute Jesse Griffin, Sr. as personal representative in the wrongful death action. Id. The trial court granted the defendant's motion to dismiss and did not rule on the motion to substitute the personal representative in the wrongful death action. Id.

The Griffin court determined that "the circuit court committed reversible error in not allowing the cause to proceed after letters of administration had been issued in the probate proceedings, and in refusing to relate the issuance of the letters back to the time of the beginning of the suit." Id. at 846. In Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323 (Fla. 3d DCA 2013), this Court discussed Griffin as follows:

The Florida Supreme Court reversed, holding the trial court committed error in dismissing the complaint and in not permitting the cause to proceed, either with the daughter as substituted administratrix, or with the father as original administrator once the letters of administration issued. The court determined that the substitution of the daughter for the father-and later the father for the daughter-related back to the date of the original filing of the complaint. The Court agreed with the proposition
that where a wrongful death action was instituted by a party "as administrator," his subsequent appointment as such validated the proceeding on the theory of relation back. .... [T]he institution of suit "was not a void performance, being an act done during the interim which was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only asset of the estate. This rule is sustained by a large number of authorities, and * * * appears, also, to be just and equitable.
[T]he proceeding was not a nullity. It was, on the other hand, a cause pending in which, but the liberal principles of our Code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits.
Griffin concluded that the filing of an action for wrongful death by one who is purported to be (but has not yet been appointed) a personal representative is not a nullity. Rather, upon that individual being properly named as personal representative, his status (and therefore his capacity to sue) relates back to the date of the original filing of the complaint.

Eisen, 126 So.3d at 331 (internal citations omitted).

The Eisen Court identified four "principal factors to be considered in determining whether to permit an amendment to substitute a party-plaintiff and whether such a substitution should relate back:"

[1) ] [w]hether the timely-filed action gave the defendants fair notice of the legal claim and the underlying allegations; [2) ] [w]hether there is an identity of interest between the original and substituted plaintiff; [3) ] [w]hether the amendment caused any prejudice to the defendants; and [4) ] [w]hether the amendment to substitute plaintiffs would create a "new" cause of action.

Id. at 330. Under the facts of the case at bar, all of these factors favor substitution of the properly designated personal representative, Bernite Lindor, and relating her designation back to the filing of the original complaint. A proper substitution would, of course, remove Weedemarck Lindor as co-personal representative. For these reasons, we reverse the trial court's order striking plaintiffs' wrongful death complaint and dismissing it without prejudice. We remand the case back to the trial court for reinstatement of the action.

Reversed and remanded for further proceedings consistent with this opinion.

      The complaint was effectively dismissed with prejudice because the statute of limitations on the subject action had run.


author: EMAS, J.

text:
    David LEVY, Appellant, v. Eliahu BEN-SHMUEL, Appellee.
    No. 3D17-2355
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    The O'Hara Law Group, P.A., and John J. O'Hara (Boca Raton); Canaveral Legal Law Firm, and Carla T. Reece (Melbourne), for appellant.
    Egozi & Bennett, P.A., and Isaac S. Lew and Bernard L. Egozi, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, SCALES, LUCK and LINDSEY, JJ.
   EMAS, J.

INTRODUCTION

David Levy, defendant below, appeals a final judgment entered against him in favor of Eliahu Ben-Shmuel, plaintiff below, on Ben-Shmuel's claims for unjust enrichment and conversion. We affirm without discussion that portion of the final judgment entered in favor of plaintiff Ben-Shmuel on his claim for unjust enrichment. However, we hold that the trial court erred in denying Levy's motion for involuntary dismissal, because Ben-Shmuel failed to meet his burden of proving damages at the nonjury trial. We therefore reverse that portion of the final judgment entered in favor of Ben-Shmuel on his claim for conversion, and remand with directions to enter a final judgment in favor of Levy on that claim.

We also write to clarify the law within this district, and hold, as a general rule, that where this court determines, on appeal from a properly preserved claim, that a party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages, unless that party's failure to meet its burden was the result of judicial error.

FACTS AND PROCEDURAL BACKGROUND

Levy and Ben-Shmuel were longtime friends when they agreed that Levy would temporarily move into a furnished home owned by Ben-Shmuel in Golden Beach, Florida. The rental agreement was not in writing, and according to the allegations of the complaint, the parties agreed that the rental rate was $27,000 per month but that, in lieu of rent, Levy would instead maintain and make certain improvements to the property during the rental term. The complaint alleged that Levy moved into the property on September 4, 2012, but did not maintain the property, never made any improvements, and failed to pay any rent.

After Levy vacated the premises, Ben-Shmuel sued him, alleging claims of, inter alia , unjust enrichment and conversion of personal property allegedly removed by Levy.

The claims proceeded to a bench trial. The court found in favor of Ben-Shmuel on the claims for unjust enrichment and conversion of personal property. Thereafter, the court entered final judgment in favor of Ben-Shmuel, and against Levy, awarding Ben-Shmuel $90,000 as damages on the unjust enrichment claim (three months' rent at $30,000 per month) and $15,000 as damages on the conversion claim. Levy moved for rehearing, but that motion was denied. This appeal followed.

ANALYSIS

As stated earlier, we affirm without discussion that portion of the final judgment awarding $90,000 to Ben-Shmuel on his unjust enrichment claim, and address only that portion of the final judgment awarding Ben-Shmuel $15,000 in damages for Levy's conversion of personal property.

On appeal, and at the trial court, Levy contended that Ben-Shmuel failed to meet his burden of establishing damages for his conversion claim. Although Ben-Shmuel opposed Levy's contention at the trial court, Ben-Shmuel concedes on appeal that he failed to establish the correct measure of damages for his conversion claim. Nevertheless, Ben-Shmuel posits that we should reverse and remand for a new trial to permit Ben-Shmuel a second opportunity to prove his damages on the conversion claim. Levy contends that no new trial should be permitted and that we should reverse and remand with instructions to enter final judgment in favor of Levy on this claim. We agree with Levy and hold that, because Ben-Shmuel failed to meet his burden of establishing the correct measure of damages at trial, and such failure was not the result of judicial error, Ben-Shmuel is not entitled to a new trial on damages.

The generally prevailing rule is that a party will not be permitted a new trial on remand to remedy its own failure to present sufficient evidence to support its claim. As we observed in Cellnet 7, Inc. v. Lainez, 215 So.3d 137, 140 n.5 (Fla. 3d DCA 2017) :

A party's failure to prove a required element of a cause of action or a motion in which evidence may be admitted or proffered-as distinguished from a reversal necessitated by a trial court error-ordinarily does not allow the party a new trial or hearing on remand in order to remedy the shortcoming and try again.

(citing Persinger v. Estate of Tibbetts, 727 So.2d 350, 351 (Fla. 5th DCA 1999) ; Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus. Inc., 978 So.2d 873, 879-80 (Fla. 4th DCA 2008) ). See also Martinez v. Reemployment Assistance Appeals Com'n, 118 So.3d 878 (Fla. 3d DCA 2013).

The Fourth District, applying this general rule, has held that a party who fails to meet its burden of establishing damages at trial is not entitled on remand to a new trial. Fidelity Warranty Servs., Inc. v. Firstate Ins. Holdings, Inc., 74 So.3d 506 (Fla. 4th DCA 2011) ; Emerald Pointe, 978 So.2d at 879-80 ; Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124 (Fla. 4th DCA 2007) ; T.A. Enters., Inc. v. Olarte, Inc., 951 So.2d 978 (Fla. 4th DCA 2007) ; Kind v. Gittman, 889 So.2d 87 (Fla. 4th DCA 2004) ; Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999).

In Teca, the Fourth District (en banc) determined that the trial court erred in denying defendant's motion for involuntary dismissal because plaintiff failed to prove its damages at the nonjury trial. The Fourth District then addressed the appropriate remedy on remand. In doing so, it recognized the conflict between its earlier decisions in Strickland v. Muir, 198 So.2d 49 (Fla. 4th DCA 1967) and Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So.2d 1252 (Fla. 4th DCA 1993).

In Strickland, the Fourth District, upon determining that plaintiff had failed to prove its damages at trial, reversed and remanded for a new trial. Twenty-five years later, in Nico, the Fourth District held that a plaintiff's failure to prove the correct measure of damages at trial required reversal and remand for entry of a judgment for defendants. The en banc court in Teca concluded: "We believe that Nico offers the better approach. Strickland allows a second bite at the apple when there has been no proof at trial concerning the correct measure of damages." Teca, Inc., 726 So.2d at 830.

The Fourth District followed this same approach in Emerald Pointe, 978 So.2d at 879-80, holding that plaintiff was "not entitled to a new trial on damages, as this would constitute a 'second bite at the apple at proving damages.' " (quoting Olarte, Inc., 951 So.2d at 979 and citing Teca, 726 So.2d at 830.)

We believe that the rationale of our sister court on this issue is sound. Our other sister courts are in accord, holding generally that a party who fails to establish the correct measure of damages at trial is not entitled, on reversal and remand, to a new trial on damages. See, e.g., Asset Mgt. Holdings, LLC v. Assets Recovery Ctr.Invs., LLC, 238 So.3d 908 (Fla. 2d DCA 2018) ; St. Petersburg Hous. Auth. v. J.R. Dev., 706 So. 2d 1377 (Fla. 2d DCA 1998) ; Pain Care First of Orlando, LLC v. Edwards, 84 So. 3d 351 (Fla. 5th DCA 2012) ; Van Der Noord v. Katz, 481 So. 2d 1228 (Fla. 5th DCA 1985) ; Platel v. Maronda Homes Inc. of Fla., 423 So. 2d 627 (Fla. 5th DCA 1982) ; Morton's of Chicago, Inc. v. Lira, 48 So. 3d 76 (Fla. 1st DCA 2010) (holding that "where the party with the burden of proof fails to establish an evidentiary basis for the damages awarded at trial, the general rule applies and (absent an exceptional legal or factual basis warranting a contrary result) simple reversal is warranted.... We see no legitimate reason to give a party an 'extra bite of the apple' ").

In support of his position that the proper remedy is a remand for a new trial on damages, Ben-Shmuel relies upon two earlier decisions of this court:

Allstates Van Lines Corp. v. Lebenstein, 303 So.2d 33 (Fla. 3d DCA 1974) ; Hillside Van Lines, Inc. v. Matalon, 297 So.2d 848 (Fla. 3d DCA 1974). In each of these cases we determined that the plaintiff had failed to meet its burden of establishing the proper measure of damages, and reversed the final judgment, but remanded for a new trial on damages. However, these two decisions are devoid of any discussion, analysis or rationale for affording the plaintiff a second opportunity to prove damages at a new trial. Further, we can discern no basis in the instant case to deviate from the general rule acknowledged by this court in Cellnet 7, 215 So.3d at 140 n.5 : "A party's failure to prove a required element of a cause of action ... ordinarily does not allow the party a new trial ... on remand in order to remedy the shortcoming and try again." We join our sister courts, which have applied this rule in the context of a failure to prove damages and have held that the plaintiff is not entitled on remand to a new trial on damages.

Having determined, in this appeal from a properly preserved claim, that Ben-Shmuel failed to meet his burden of establishing the correct measure of damages at trial, and that this failure was not the result of judicial error, we hold that Ben-Shmuel is not entitled on remand to a new trial on damages. We also recede from Lebenstein and Matalon to the extent those decisions are inconsistent with this opinion.

We reverse that portion of the final judgment on the conversion claim and remand for entry of final judgment in favor of Levy on that claim. We affirm the remaining portions of the final judgment.

      Because we are receding from prior panel decisions of this court that are inconsistent with our holding in this case, we ordered on our own motion that this cause be determined en banc. See Fla. R. App. P. 9.331(c) (providing: "A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken.") See also In re Rule 9.331, Determination of Causes by Dist. Court of Appeal En Banc, 416 So.2d 1127, 1128 (Fla. 1982) (observing that "a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law." Instead, intra-district conflict should be resolved by an en banc decision of the court pursuant to rule 9.331 ).

      At trial, following Ben-Shmuel's presentation of evidence, Levy moved for involuntary dismissal, arguing in part that Ben-Shmuel failed to meet his burden of proof on the conversion claim. See Fla. R. Civ. P. 1.420(b). The trial court denied the motion. Regardless of whether Levy preserved this issue during the bench trial, the issue is properly raised on appeal. Florida Rule of Civil Procedure 1.530(e) provides:
      When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.
      We note that in the context of a jury trial, however, preservation of such an issue is required: where a defendant fails to timely move for a directed verdict, and raises this issue for the first time in a motion for new trial, the proper remedy upon reversal and remand is a new trial. See Parisi v. Miranda, 15 So.3d 816, 818 (Fla. 4th DCA 2009) (holding: "Because Parisi did not move for a directed verdict at the close of the evidence, the proper remedy is a new trial on that issue"); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Anderson, 501 So.2d 635, 637 (Fla. 1st DCA 1986) (reversing and remanding for a new trial, holding trial court erred in entering judgment notwithstanding verdict where defendant at no point sought a directed verdict on any portion of the claim against him). Compare Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA 2007) (holding trial court should have granted defendant's motion for directed verdict and entered final judgment in its favor, rather than granting a new trial because plaintiff is not entitled to a second "bite at the apple" where it presented no proof at trial on the correct measure of damages).

      Neither party has even suggested, much less argued, that we should remand for entry of a final judgment for nominal damages on the conversion claim. We therefore do not address the propriety of such a remedy on remand. See Cason v. Baskin, 159 Fla. 31, 30 So.2d 635 (1947) ; King v. Saucier, 356 So.2d 930 (Fla. 2d DCA 1978).

      As an exception to this general rule, a new trial on damages would be appropriate where the party's failure to establish damages was the result of judicial error. See, e.g., R & B Holding Co. v. Christopher Advert. Grp., Inc., 994 So.2d 329 (Fla. 3d DCA 2008) (holding where trial court erred in applying incorrect methodology for computing plaintiff's measure of damages, plaintiff was entitled on remand to a new trial on damages); Sharick v. Se. University of the Health Sciences, Inc., 780 So.2d 136 (Fla. 3d DCA 2000) (reversing and remanding for new trial on damages where trial court precluded plaintiff from pleading and proving damages in the form of loss of earning capacity); Alonso v. Fernandez, 379 So.2d 685 (Fla. 3d DCA 1980) (reversing and remanding for new trial on damages where trial court erred in jury instruction given to jury on measure of damages).


text:
    S.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1206
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer and Marlon J. Weiss, Assistant Attorneys General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

S.B. appeals the trial court's finding of delinquency for committing a strong arm robbery on Aleida Cruz. The only issue he raises is that the state improperly shifted the burden of proof during its cross examination when it asked S.B. if he had any other witnesses corroborating his testimony that he was somewhere else at the time of the robbery. Finding that the state's cross examination improperly shifted the burden, and that this error was not harmless, we reverse.

On September 6, 2016, Ms. Cruz was walking home from Winn Dixie when someone hit her from behind. As Ms. Cruz turned around, the man hit her again, took her cellular telephone, and ran off. Ms. Cruz saw the man's profile when she turned around, and saw his face again when he ran off. Ms. Cruz had seen the same man a few moments earlier sitting in a car.

Two weeks later, as Ms. Cruz was walking home from her son's school, she saw S.B. and told her husband he was the man who had hit her and taken her cellular telephone. Ms. Cruz's husband told law enforcement, and law enforcement arranged a show up identification where Ms. Cruz pointed out S.B. as the man who robbed her.

S.B. testified that on the afternoon of September 6, 2016, when Ms. Cruz was attacked, he was at band practice at Miami Central High School. The state had this exchange with S.B. on cross examination:

State: ... On the day of this incident you were at band practice, right?
S.B.: Yes, sir.
State: And that band practice was at Miami Central High School?
S.B.: Yes.
State: Is there anyone else here from Miami Central High School Band?
S.B.: No.
State: Do you know the teacher who conducts band or coaches [sic] band at Miami Central High School?
S.B.: Yes.
State: Is he here today?
S.B.: No.
State: When you come from Stellar Academy to Miami Central to do band, or when you were doing that, did you let anybody know that you were there?
S.B.: Yes.
State: Was there like a sign-in sheet, or would you just tell somebody?
S.B.: Just tell somebody.
State: Okay. Who would you tell?
S.B.: Mr. Mac.
State: Who?
S.B.: Mr. Mac. The band director.
State: Okay. Is he here today?
S.B.: No.
State: Do you have friends in that band?
S.B.: Yes.
State: Other students that you know?
S.B.: Yes.
State: Are any of them here today?
S.B.: No.
State: Is there anyone else who was with you at band practice on September 6th who can confirm that you were [t]here, that is here today?
S.B.: No.
Defense Counsel: Judge, I'm going to object to shifting the burden at this point....
Trial Court: Overruled.

The trial court erred in overruling the objection. Asking S.B. if he had any witnesses in court to confirm his testimony about being at Miami Central "may have led the [trier of fact] to believe that [S.B.] had a duty to produce exculpatory evidence." See Warmington v. State, 149 So.3d 648, 650, 654 (Fla. 2014) (plurality opinion) (finding improper burden shifting based on the following exchange: "[Prosecutor]: Was there documentation that day with regards to this explanation he gave you? [Detective Abolsky]: No, in fact, he represented that his home was also his office. And when I asked for him to provide any documentation, he couldn't."); Miele v. State, 875 So.2d 812, 814 (Fla. 2d DCA 2004) ("When cross-examining Arizpe, Miele's former girlfriend, regarding her testimony that Miele's father had given Miele and her $2 bills, the State asked her if Miele's father was present in the courthouse.... This question was a comment on Miele's failure to call his father as a witness to corroborate Arizpe's testimony that Miele's father's money jug was the source of the $2 bills Miele had spent at the convenience store on the day of the burglary."), approved, Warmington, 149 So.3d at 656 ("Accordingly, we ... approve the decisions of the Fourth District in Ramirez[ v. State, 1 So.3d 383 (Fla. 4th DCA 2009) ] and the Second District in Miele....").

We "cannot say beyond a reasonable doubt that the error did not affect the verdict." Rodriguez v. State, 248 So.3d 1085, 1086 (Fla. 2018) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986) ). Ms. Cruz's identification was the sole evidence that S.B. committed the crime, and it was impeached. Ms. Cruz only saw the profile of her attacker, who was wearing a hoodie, and described him as having spotted or stained skin. S.B. does not have spotted or stained skin. The burden-shifting error, also, went to the heart of S.B.'s defense that he was not there at the time of the attack. See Miele, 875 So.2d at 814-15 ("This error was not harmless. Angelina Arizpe and Katrina Miele were Miele's only witnesses. Brown was the only witness placing Miele at the crime scene, and her credibility was severely impeached. The only evidence connecting Miele to the burglary besides Brown's testimony was the testimony that he had spent five $2 bills at a nearby convenience store shortly after the burglary. The State's improper questioning suggested at best that Miele had a duty to present additional evidence to refute the State's allegation that these $2 bills were retrieved during the burglary. At worst, the questioning suggested that Miele did not call his father to testify because he could not corroborate the defense witnesses' testimony regarding the source of the $2 bills. Either way, the State has not shown beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the verdict.").

It does not matter that the trier of fact was a judge rather than a jury. As the Florida Supreme Court explained in Petion v. State, 48 So.3d 726 (Fla. 2010) :

When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper. In addition, the appellate court still must conduct a harmless error analysis to determine whether there is a reasonable possibility that the challenged error affected the final judgment.

Id. at 737-38. Here, the trial court overruled the burden-shifting objection, and did not indicate that it was not considering this part of S.B.'s testimony. Having conducted a harmless error analysis, we cannot find a reasonable possibility that the challenged error did not affect the final judgment. Thus, we reverse the delinquency finding (and resulting order of probation) and remand for a new adjudicatory hearing.

Reversed and remanded for a new adjudicatory hearing.

      While "the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence," there is "a narrow exception to allow comment when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, self-defense, and defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state." Jackson v. State, 575 So.2d 181, 188 (Fla. 1991) (footnote omitted). The exception does not apply here because S.B. did not assert an affirmative defense, and the witnesses the state referred to in its "confirm" question were equally available to both sides.


text:
    Karen J. HAAS, Petitioner, v. Suleiman Habib YOUSEF, Respondent.
    No. 3D18-1779
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Karen J. Haas, in proper person.
    Nayib Hassan, for respondent.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Petitioner Karen Haas seeks an Emergency Writ of Prohibition to review the denial of her motion to disqualify the trial judge below. Because Ms. Haas's allegation of ex parte communication forms a prima facie basis for disqualification, we ordered a response. See Brake v. Murphy, 693 So.2d 663, 664 (Fla. 3d DCA 1997) ("We find one point determinative, that being petitioners' argument that when confronted with record evidence of ex parte communication, the trial judge should have granted petitioners' motion for disqualification."). No response was filed. We therefore grant the Emergency Petition for Writ of Prohibition, direct the disqualification of the trial judge, and remand the case for further proceedings. See Daugherty v. McNeal, 643 So.2d 665 (Fla. 5th DCA 1994) (granting a petition for writ of prohibition after no response was filed); State ex rel. Ginsberg v. Wiseheart, 120 So.2d 810 (Fla. 3d DCA 1960) (holding that where no response is filed, the only question is whether the petition for writ of prohibition states a prima facie case). Although we grant the Petition, we assume it will not be necessary to issue a formal writ.


text:
    AMERISURE INSURANCE COMPANY, Petitioner, v. Lazaro RODRIGUEZ, Respondent.
    Nos. 3D18-1524 & 3D18-1058
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Cole Scott & Kissane, P.A., and Kathryn L. Ender, Benjamin Esco, and Pedro Collazo, Miami, for petitioner.
    Dorta Law, and Matias R. Dorta, Miami and Gonzalo R. Dorta, Coral Gables, for respondent.
    Before SALTER, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

Amerisure Insurance Company filed two petitions for writs of certiorari seeking review of three orders. The issue is whether a third-party spoliation action against a defendant who negligently destroyed evidence can be litigated and tried at the same time as the underlying case against the tortfeasor who caused the personal injury. Because the spoliation case does not accrue until the underlying tort case is resolved, we hold the cases cannot be litigated and tried together. We consolidate the cases, grant the petitions, and quash the orders under review.

FACTS AND PROCEDURAL BACKGROUND

According to the operative complaint, Lazaro Rodriguez sued Cosme Investment for personal injuries he suffered when he was knocked from the top of a gasoline tanker truck he was fueling on Cosme's gasoline storage warehouse. At the time of the accident, Rodriguez was an employee of BV Oil, Inc. While his case against Cosme was pending, Rodriguez collected worker's compensation benefits from BV Oil through its worker's compensation carrier, Amerisure Insurance Company.

Rodriguez learned that BV Oil and Amerisure had possession of a videotape of his accident, which would help him prove his case against Cosme. BV Oil and Amerisure, however, negligently lost or destroyed the videotape. Rodriguez therefore amended his complaint to add a count suing BV Oil and Amerisure for damages alleging the loss of the video "significantly impairs the Plaintiff's ability to prove his claim and/or to address the comparative negligence defense, thereby affecting Plaintiff's potential recovery in this case."

On May 11, 2018, over objection, trial was scheduled for Rodriguez's premises liability case against Cosme at the same time as his spoliation claim against BV Oil and Amerisure. In response, Amerisure filed a petition for writ of certiorari seeking to quash that order. On June 28, 2018, and again on July 19, 2018, over objection, the trial court ordered Amerisure to provide discovery relating to Rodriguez's spoliation claim, including the identity of the claims managers and adjustors who handled Rodriguez's worker's compensation claim, even though the underlying premises liability case had not been resolved. In response, Amerisure filed another petition for writ of certiorari to quash those orders. We consolidated the petitions.

ANALYSIS

This case comes before us for the second time. Amerisure had previously filed a petition for writ of certiorari seeking similar relief, Amerisure Ins. Co. v. Rodriguez, 242 So.3d 481, 483 (Fla. 3d DCA 2018). In that case, however, the trial court had not yet entered any orders compelling discovery relating to the spoliation claim. Likewise, the court had not set the spoliation claim to be tried with the underlying tort claim. Without such orders, we dismissed for lack of jurisdiction because the "possibility" that the trial court might enter such orders did not "rise to the level of irreparable harm" required for certiorari. Id. at 483. Now, the trial court has entered those orders. Requiring Amerisure to provide discovery and proceed to trial regarding a claim that has not accrued, and may never accrue if Rodriguez is successful in his underlying claim, would constitute irreparable harm. See generally Castle Key Ins. Co. v. Benitez, 124 So.3d 379, 380 (Fla. 3d DCA 2013) ; Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 93 So.3d 501, 503 (Fla. 3d DCA 2012).

At the outset, we note the difference between first-party and third-party spoliation claims. "First-party spoliation claims are claims in which the defendant who allegedly lost, misplaced, or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages." Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 346 n.2 (Fla. 2005). In contrast, third-party spoliation claims "occur when a person or an entity, though not a party to the underlying action causing the plaintiff's injuries or damages, lost, misplaced, or destroyed evidence critical to that action." Id. The Florida Supreme Court has held that no independent cause of action for spoliation will lie against a first-party tortfeasor. Id. at 346-47. Instead, spoliation in that context should be addressed by the trial court imposing sanctions and presumptions. Id. Here, we are dealing with a classic third-party spoliation claim.

In a case remarkably similar to the one before us, the Fourth District upheld the dismissal of an employee's third-party suit for spoliation against his employer when the employee's underlying suit for personal injuries against the tortfeasor was still pending. Jimenez v. Cmty. Asphalt Corp., 968 So.2d 668, 672 (Fla. 4th DCA 2007). The court reasoned that

due to the nature of spoliation claims the damage in a spoliation claim is the inability to use the evidence in the underlying proceedings. For this reason, damages in a spoliation claim can only be determined after the underlying claim is decided. Until the underlying claim is decided, the appellants will be unable to show how they were damaged by the alleged lost evidence.

Id. (citations omitted). Accordingly, it affirmed the dismissal as the third-party spoliation claim was "premature because the underlying negligence claims are not yet resolved." Id. Jimenez reflects the consensus of authority that holds third-party spoliation claims should be abated or dismissed until the underlying tort claim is resolved. We join this weight of authority and hold that third-party spoliation claims should generally be abated or dismissed until the underlying tort claim is resolved.

In so holding, we are not overlooking our decisions in Miller v. Allstate Ins. Co., 573 So.2d 24, 28 (Fla. 3d DCA 1990) and Yoder v. Kuvin, 785 So.2d 679, 681 (Fla. 3d DCA 2001) which indicated that products liability claims and third-party spoliation claims concerning the allegedly defective products could be tried together. Yoder relied upon Miller, and Miller's status as ongoing authority is doubtful at best. On this point, Miller relied upon a California case that was later reversed. Moreover Miller is contrary to subsequent decisions of this court holding, when applying the statute of limitations, that a cause of action for spoliation does not accrue until the underlying action is resolved. Generally, a cause of action cannot be maintained and tried before it accrues. Because the issue is not before us, we refrain from deciding whether Miller and Yoder are overruled, or merely confined to situations where the underlying claim is based on products liability and the spoliation claim involves the loss of the defective product.

For these reasons, the orders under review are quashed.

Certiorari granted.

      See Cont'l Ins. Co. v. Herman, 576 So.2d 313, 314 (Fla. 3d DCA 1990) (holding that plaintiff who had successfully recovered damages from the party who caused her injuries did not have a cause of action for spoliation against third-party who negligently destroyed evidence).

      See Jost v. Lakeland Reg'l Med. Ctr., Inc., 844 So.2d 656, 658 (Fla. 2d DCA 2003) ("Ms. Jost's [third-party] spoliation allegations against [the insurer of the defendant hospital] will not be ripe until the underlying medical malpractice case has been resolved. Accordingly, the trial court is directed to dismiss these claims without prejudice so that, if appropriate, they can be raised at a later date."); see generally Yates v. Publix Super Mkts., 924 So.2d 832, 833 (Fla. 4th DCA 2005) (holding "the cause of action for spoliation of evidence did not accrue with the death of the decedent but only after the action against the third party tortfeasor was compromised and settled."); Shaw v. Cambridge Integrated Servs. Grp., Inc., 888 So.2d 58, 63 (Fla. 4th DCA 2004) ("Because of the nature of the claim, liability for spoliation does not arise until the underlying action is completed.") (citations and quotations omitted); Townsend v. Conshor, Inc., 832 So.2d 166, 167-68 (Fla. 2d DCA 2002) (noting that "a spoliation claim is an independent cause of action for negligence that does not arise until the underlying action is completed.") (citations and quotations omitted).

      Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829, 834 (Ct. App. Dep't Super. Ct.1984), disapproved of by Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 259 n.3, 954 P.2d 511 (Cal.1998) ; see Miller, 573 So.2d 24, 28, n.7.

      Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433, 434-35 (Fla. 3d DCA 2001) ("Because of the nature of the claim, liability for spoliation does not arise until the underlying action is completed."); Yoder, 785 So.2d at 680 ; see generally Miller v. Allstate Ins. Co., 650 So.2d 671, 674 (Fla. 3d DCA 1995) (reversing a spoliation damage award because the underlying products liability case being resolved).

      See, e.g., Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989) ("As a rule, an action cannot be maintained if it is commenced before the accrual of the cause of action which is sought to be enforced, and such premature commencement is a ground for the abatement of the action.") (citations omitted).


text:
    M.K., the Father, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 3D18-1802
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018
    Abramowitz and Associates, and Jordan B. Abramowitz, Coral Gables, for petitioner.
    Karla Perkins, Miami, for respondent.
    Before LAGOA, LOGUE, and SCALES, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

M.K., the father, appeals from the trial court's August 10, 2018, shelter order. The Department concedes that the trial court's shelter order entered on August 10, 2018, constituted a departure from the essential requirements of the law, as the shelter hearing proceeded without the presence of the Father's counsel. See G.W. v. Dep't of Children & Families, 92 So.3d 307, 309 (Fla. 3d DCA 2012). The Department therefore requests that this Court remand the matter to the trial court in order to allow a shelter hearing to proceed where both the parents and their respective counsels are present. Based on our review and the Department's proper Confession of Error, we quash the trial court's August 10, 2018, shelter order and remand for further proceedings consistent herewith.


text:
    M.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1697
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Carlos J. Martinez, Public Defender, Miami and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and LUCK, JJ.
   PER CURIAM.

Affirmed. See Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ("[A] traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will.").


text:
    WD 19790, LLC, Appellant, v. DAN TRUST, et al., Appellees.
    No. 3D18-1664
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018
    Stok Folk + Kon, and Robert A. Stok and Joshua R. Kon, for appellant.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Abbey L. Kaplan and Josh M. Rubens, for appellees.
    Before EMAS, LOGUE, and LUCK, JJ.
    ON MOTION TO DISMISS
   LOGUE, J.

The order dismissing Count VI of Appellant's Second Amended Counterclaim is not an appealable order under Florida Rule of Appellate Procedure 9.110(k) as "a separate and distinct cause of action that is not interdependent with other pleaded claims" because Count VI alleges abuse of process on the basis that the Appellees' Third Amended and Supplemental Complaint "is a sham and seeks de minimis, nominal and/or technical damages, if any, without a reasonable prospect of success." This allegation is intertwined with the litigation still pending in the trial court concerning the legal and factual merits of that Complaint. See, e.g., Bardakjy v. Empire Inv. Holdings, LLC, 239 So.3d 146, 147 (Fla. 3d DCA 2018). Accordingly, Appellees' motion to dismiss is granted.

Appeal dismissed.


text:
    Farfoura M. RIZK, et al., Appellants, v. VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, Appellee.
    No. 3D18-1023
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Russomanno & Borrello, P.A., and Herman J. Russomanno III, Miami, for appellants.
    Bradley Arant Boult Cummings LLP, and Hope T. Cannon and Christina E. Blood (Birmingham, AL), for appellee.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Preudhomme v. Matthews, 194 So.3d 1057 (Fla. 4th DCA 2016) ; Johnson v. Christiana Trust, 166 So.3d 940 (Fla. 4th DCA 2015).


text:
    Luis LA-CASSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-768
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Luis La-Casse, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

In La-Casse v. State, 223 So.3d 1129, 1129 (Fla. 3d DCA 2017), this Court reversed the trial court's order precluding Luis La-Casse from filing any further pro se post-conviction pleadings in lower court case number F04-29879, and remanded for entry of a Show Cause Order "to provide La-Casse the opportunity to demonstrate why an order precluding pro se filings should not be entered." On remand, on October 12, 2017, the trial court entered a Show Cause Order.

In November 2017, La-Casse filed a timely response to the Show Cause Order. La-Casse later filed an amended response. For reasons that are unclear in the record, the trial court entered two separate orders "mooting" both La-Casse's response and amended response to the Show Cause Order. Indeed, the trial court docket does not reflect that the trial court, on remand, ever issued an order determining whether La-Casse should be precluded from further pro se filings in lower court case number F04-29879.

Based on the record before us and the State's proper and commendable confession of error that the trial court incorrectly mooted La-Casse's responses to the Show Cause Order, we reverse and remand for further proceedings. On remand, the trial court should consider La-Casse's amended response to the trial court's October 12, 2017 Show Cause Order, and adjudicate whether La-Casse should be precluded from further pro se filings in lower case number F04-29879. This Court expresses no opinion on that issue.

Reversed and remanded.


author: ROTHENBERG, C.J.

text:
    Ivy ROBINSON and Glasford Robinson, Appellants, v. SAFEPOINT INSURANCE COMPANY, Appellee.
    No. 3D17-1431
    District Court of Appeal of Florida, Third District.
    Opinion filed October 03, 2018.
    David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); The Strems Law Firm, and Gregory Saldamando, for appellants.
    Bressler, Amery & Ross, P.C., and Hope C. Zelinger (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

Ivy and Glasford Robinson ("the Robinsons") appeal from the trial court's final order granting Safepoint Insurance Company's ("Safepoint") motion to dismiss the Robinsons' complaint with prejudice for perpetrating a fraud on the court. Although Safepoint's unauthenticated submissions certainly suggests that an attempted fraud on the court may have been committed, we conclude that before the ultimate sanction of dismissal may be imposed, the trial court must conduct the evidentiary hearing requested by the Robinsons. Accordingly, we reverse and remand for an evidentiary hearing.

The gravamen of the Robinsons' complaint is Safepoint's denial of the Robinsons' insurance claim, a claim which is based on an alleged water leak on the Robinsons' property they claim occurred suddenly on April 9, 2015. Safepoint's claim that the Robinsons were attempting to commit a fraud upon the court is based on the following. Ivy Robinson testified repeatedly under oath in her deposition that the restoration services company they used to remediate the water from the leak was not contacted until days after the alleged water damage occurred. However, Safepoint contends that the Robinsons' telephone records demonstrate that the Robinsons were contacted by the restoration services company that was hired to remediate the alleged water damage to the Robinsons' property on March 30, 2015, which was ten days before the alleged leak occurred and that the work authorization form submitted by the restoration company states that the company performed services for the Robinsons beginning on the date of the alleged water leak.

In its final order dismissing the Robinsons' complaint with prejudice, the trial court found that the Robinsons set in motion an unconscionable scheme intended to render the trial court unable to properly adjudicate the action on the merits. See Diaz v. Home Depot USA, Inc., 196 So.3d 504, 505 (Fla. 3d DCA 2016) (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) ) (stating that dismissal for perpetrating a fraud on the court is only appropriate where there is clear and convincing evidence that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense). The trial court found that based on the pre-loss contact between the restoration services company and the Robinsons, along with inconsistencies between the Robinsons' testimony and documentation related to the work completed on the property, there was clear and convincing evidence that the Robinsons perpetrated a fraud upon the court.

Although Safepoint has raised serious questions regarding the legitimacy of the Robinsons' claim, we agree with the Robinsons that the trial court erred by granting Safepoint's motion to dismiss based on unauthenticated telephone records and an unauthenticated invoice, and without conducting the requested evidentiary hearing at which the Robinsons would have been afforded the opportunity to refute Safepoint's submissions or explain any inconsistencies/and or omissions. Accordingly, we reverse the order dismissing the Robinsons' complaint with prejudice and remand for an evidentiary hearing.

Reversed and remanded for an evidentiary hearing.


text:
    W.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-904
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   PER CURIAM.

The officer had reasonable suspicion to stop Appellant and the other two juveniles given the be-on-the-look-out transmission, the juveniles' geographic and temporal proximity to the armed robbery, the match between the suspects' reported descriptions and the juveniles' appearances, and the juveniles' behavior when approached; and, once the firearm was discovered, the officer had probable cause to arrest. Therefore, the officer was engaged in the execution of a legal duty when Appellant knocked him to the ground in an apparent attempt to escape. W.T.'s convictions are affirmed. See §§ 776.051, 784.07, 843.01, Fla. Stat.; Sosnowski v. State, 245 So.3d 885 (Fla. 1st DCA 2018) ; State v. Roy, 944 So.2d 403 (Fla. 3d DCA 2006).

Affirmed.