author: LINDSEY, J.

text:
    Reynaldo ACOSTA and Iliana B. Acosta, Appellants, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    Nos. 3D16-2855 & 3D17-605
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018. Rehearing Denied May 17, 2018
    The Monfiston Firm P.A., and Daniel Monfiston, for appellants.
    Link & Rockenbach, P.A., and Kara Berard Rockenbach, (West Palm Beach); Gaebe Mullen Antonelli DiMatteo, and Devang Desai, and Elaine D. Walter, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   LINDSEY, J.

We find no error with regard to the issues raised on appeal relating to the final judgment entered in favor of Tower Hill Signature Insurance Company and, therefore, affirm. Because the order granting Tower Hill Signature Insurance Company's entitlement to attorney's fees and costs from Reynaldo Acosta and Iliana B. Acosta did not establish an amount, it was a non-final, non-appealable order that is not ripe for our review. As such, we are without jurisdiction to address the portion of the appeal relating to attorney's fees. See Diaz v. Citizens Prop. Ins. Corp., 227 So.3d 735, 736-37 (Fla. 3d DCA 2017) ("[W]e are without jurisdiction to address the portion of the appeal relating to attorney's fees .... because no amount has been fixed by the trial court and the part of the final judgment that finds entitlement thereto is not ripe for our review." (first citing Kling Corp. v. Hola Networks Corp., 127 So.3d 833, 833 (Fla. 3d DCA 2013) ); then citing Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005) ; and then citing Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) ). "Nor is such an order one of the enumerated appealable non-final orders set forth in Florida Rule of Appellate Procedure 9.130." Id. at 737 (quoting Kling Corp., 127 So.3d at 833 ); see Fla. R. App. P. 9.130(a)(3). Accordingly, the appeal with respect to attorney's fees is dismissed without prejudice.

Affirmed in part; dismissed in part.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Arthur D. BOATRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-5571
    District Court of Appeal of Florida, First District.
    April 5, 2018 Rehearing Denied June 29, 2018
    Arthur D. Boatright, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Ross, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED . See State v. Sholl , 18 So.3d 1158, 1162 (Fla. 1st DCA 2009) (holding that the protection against double jeopardy did not entitle defendant to pretrial dismissal of charges based upon claim that multiple charges violated his protection against multiple punishments for the same offense).

Rowe, Ray, and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    Charles RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-331
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018
    Charles Ramirez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See § 958.14, Fla. Stat. (2010) (providing in part that "no youthful offender shall be committed to the custody of the department [of corrections] for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less"); Flores v. State, 46 So.3d 102, 104 (Fla. 3d DCA 2010) (holding that the six-year prison sentence "cap" under section 958.14 applies only to sentences resulting from a technical violation of youthful offender supervision, not to a substantive violation (i.e., the commission of a new criminal act), and that this is true even if the new criminal charge is nolle prossed) (citing State v. Meeks, 789 So.2d 982 (Fla. 2001) ).


author: LOGUE, J.

text:
    JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, etc., Appellant, v. Juan Jose VILLACORTA, Appellee.
    No. 3D17-1051
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018 Rehearing Denied May 2, 2018
    Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant.
    Mark Perlman, P.A., and Mark Perlman (Hallandale Beach), for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
   LOGUE, J.

JPMorgan Chase Bank appeals the trial court's nonfinal order granting Juan Jose Villacorta's rule 1.540 motion to vacate a final judgment of foreclosure. We reverse and remand for the trial court to reinstate the final judgment of foreclosure because Villacorta's 1.540 motion was duplicative of a prior motion that was previously ruled upon, appealed, and affirmed by this court.

The Bank filed a mortgage foreclosure complaint against Villacorta in August 2009. Service of the initial summons was unsuccessful and the Bank's process server could not find any records of Villacorta in the state. The Bank then served Villacorta through publication. In September 2012, the case proceeded to a nonjury trial. Final judgment of mortgage foreclosure was entered for the Bank and the property was sold at a foreclosure sale on November 1, 2012.

Villacorta filed an objection to sale and motion to vacate the final judgment on November 9, 2012. The motion argued in relevant part that the Bank's attempts to serve Villacorta were legally insufficient. The motion to vacate was denied, Villacorta appealed, and this court affirmed. Villacorta v. JPMorgan Chase Bank, N.A., 145 So.3d 850 (Fla. 3d DCA 2014) (table decision).

In April 2017, the trial court heard Villacorta's second motion to vacate. That motion argued in relevant part that "service of process upon Defendant Villacorta was legally insufficient." The trial court granted the motion, concluding that the Bank "failed to conduct a diligent search and inquiry in connection with service by publication." The Bank appealed.

"[A] trial court is without legal authority to entertain a second motion for relief from judgment which attempts to relitigate a matter settled by a prior order denying relief." Adams v. Estate of Henderson, 155 So.3d 485, 488 (Fla. 4th DCA 2015) ; see also Crocker Invs., Inc. v. Statesman Life Ins. Co., 515 So.2d 1305, 1306 (Fla. 3d DCA 1987) ("Ordinarily, a trial court is without jurisdiction to entertain a second motion for relief from judgment under Florida Rule of Civil Procedure 1.540, which attempts to relitigate matters settled by a prior order denying relief."). "[I]t is axiomatic that successive motions alleging the same grounds cannot be allowed under rule 1.540 if there is going to be finality to litigation." Adams, 155 So.3d at 488 n.3.

Here, Villacorta twice argued the same substantive grounds to vacate the final judgment of foreclosure. Because the trial court denied the first motion alleging insufficient service of process and this court affirmed, the trial court had no legal authority to then grant the second duplicative motion. Accordingly, we reverse.


author: Rowe, J.

text:
    Thomas A. SOSNOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4537
    District Court of Appeal of Florida, First District.
    April 17, 2018 Rehearing Denied June 27, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Thomas Sosnowski appeals his convictions and sentences for battery on a law enforcement officer and resisting an officer with violence, contending that the trial court erred by denying his motion for judgment of acquittal. He argues that at the time of their encounter with him, the police officers were not engaged in the lawful performance of a legal duty and that there was neither probable cause nor exigent circumstances to support the officers' warrantless entry into his backyard. We disagree and affirm.

Facts

The confrontation that ended in Sosnowski's arrest began when his wife Gina Garza called the Department of Children and Families (DCF) because she feared for her safety and the safety of their five-year old son. Ordinarily, a DCF employee would respond to the call and perform a welfare check. However, this was not DCF's first encounter with Sosnowski. Sosnowski had previously threatened DCF employees, and during this particular call, Garza reported that Sosnowski threatened to dismember DCF employees and to throw their body parts into a neighbor's yard if DCF entered his home. Garza was concerned that if a DCF employee responded without backup, Sosnowski would become violent and lock the employee and Garza inside the home. Based on Garza's reports, DCF requested assistance from the police to perform the welfare check.

When the DCF employee and the police arrived at the home, they were unable to approach the front door. The home was a fortress. Sosnowski had erected a number of barriers, including a sharp, padlocked, picket-style fence around the front yard. He had equipped the home with customized locking doors and opaque, inoperable windows. The police officers called Sosnowski on the phone, and he emerged from the home with his son on his shoulders. The DCF employee and the officers were unable to talk to the child or physically assess the child for injuries because Sosnowski remained on the opposite side of the fence. When the police officers informed Sosnowski they were conducting a welfare check on Garza and his son, Sosnowski reentered the home with his son, ordered Garza to go outside, and then locked the doors behind him.

As Garza exited the home and slowly approached the fence where the officers were standing, she appeared to be terrified. The officers observed fresh bruises on her face, chest, and neck. Garza told them that the injuries were inflicted by Sosnowski. As Garza spoke to the DCF employee, the officers heard a loud noise, and Garza exclaimed, "He just locked me out of the house. He just put the bar across the door." Garza was concerned for her child's safety because Sosnowski told her that she would never see her son again.

The officers attempted to reestablish contact with Sosnowski. But because Sosnowski had customized the windows with double-ply plexiglass to prevent outsiders from seeing in, the officers were unable to see inside the home to ascertain the child's whereabouts.

When it was clear to the officers that they could not safely enter the home, they commanded Sosnowski to come outside. Sosnowski refused. He also declined to answer multiple telephone calls. Based on Garza's initial report, their observations of her injuries, their interaction with Sosnowski, Sosnowski's retreat into the home, their knowledge of the home's many fortifications, and Garza's fear that she would never see her son again, the officers requested backup assistance from the SWAT team. When the team arrived, the officers briefed them on Sosnowski's prior violent threats to DCF. The team learned of the domestic violence allegations, the home's fortifications, Sosnowski's access to weapons, and the existence of a possible hostage situation. Their primary objective was to ensure the five-year-old child's safety.

The SWAT team quickly established a perimeter around Sosnowski's backyard, which was enclosed by a six-foot privacy fence. At this point, Sosnowski reemerged and was walking back and forth from inside the home to the backyard. The SWAT team announced their presence and commanded Sosnowski to get on the ground. Sosnowski refused to comply and retreated towards the home. After several unheeded commands to halt, one of the officers deployed a foam baton, striking Sosnowski. Sosnowski started low-crawling back towards the home to avoid the shots. The officers again commanded Sosnowski to stop, but to no avail. The officers then scaled the fence to prevent Sosnowski from reentering the home. Sosnowski physically fought with the officers before they were able to detain him. As two officers secured Sosnowski, another officer rushed inside the home and brought the child out to safety. After a jury trial, Sosnowski was convicted of battery on a law enforcement officer and resisting an officer with violence.

Analysis

We review a trial court's denial of a motion for judgment of acquittal de novo to determine if the evidence is legally sufficient to sustain a conviction. Jones v. State , 790 So.2d 1194, 1196 (Fla. 1st DCA 2001). "If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). There must be competent, substantial evidence to support the elements of the crime and to support the verdict and judgment. Tibbs v. State , 397 So.2d 1120, 1123 (Fla. 1981).

A conviction for battery on a law enforcement officer and resisting an officer with violence requires proof that the officers were engaged in the lawful performance of a legal duty at the time of the charged conduct. §§ 784.07(2)(b) & 843.01, Fla. Stat. (2015) ; see also Espiet v. State , 797 So.2d 598, 602 (Fla. 5th DCA 2001). Sosnowski argues that the charges against him should have been dismissed because the police officers had no authority to enter his backyard and home without a warrant and thus were not engaged in the lawful performance of their duties at the time of the charged offenses. The State argues that the officers were engaged in the performance of a lawful duty at the time of their encounter with Sosnowski because the officers had probable cause to arrest Sosnowski for domestic violence. The State also contends that exigent circumstances existed to allow them to enter the backyard and home without a warrant in order to secure the child's safety.

Probable cause sufficient to justify an arrest exists "where the facts and circumstances, as analyzed from the officer's knowledge, special training and practical experience, and of which he has reasonably trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed." Dep't of Highway Safety & Motor Vehicles v. Favino , 667 So.2d 305, 309 (Fla. 1st DCA 1995). A law enforcement officer may arrest a person without a warrant when there is probable cause to believe that the person has committed an act of domestic violence. See § 901.15(7), Fla. Stat. (2015). The officers in this case were informed that Garza called DCF because she feared Sosnowski. When the officers arrived, they observed fresh bruises on Garza's face, chest, and neck. Garza indicated that the bruises were inflicted by Sosnowski. Viewed in the light most favorable to the State, the facts support the trial court's findings that the officers had probable cause to arrest Sosnowski.

But, while the evidence of Garza's abuse provided the officers sufficient probable cause to arrest Sosnowski without a warrant, the evidence of abuse alone is not enough to support a warrantless entry into his backyard . See State v. Markus , 211 So.3d 894, 909 (Fla. 2017) ("Florida courts have [ ] found probable cause for minor offenses insufficient to justify warrantless home searches and arrests."); Espiet , 797 So.2d at 602 ("The courts generally agree that a law enforcement officer may not make a warrantless entry into a person's home to arrest the person for a misdemeanor offense."). However, where exigent circumstances for the entry are present, a police officer may enter a private home without a warrant. See Payton v. New York , 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Exigent circumstances were present here. At the time the officers entered Sosnowski's backyard and home, they had an objectively reasonable belief that a five-year-old child was in danger.

Public safety has long been recognized as an exigent circumstance permitting warrantless entry into a residence.

See Riggs v. State , 918 So.2d 274, 279 (Fla. 2005) ("The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, as well as the safety of police.") (citing Rolling v. State , 695 So.2d 278, 293 (Fla. 1997) ); Markus v. State , 160 So.3d 488, 492 (Fla. 1st DCA 2015) (stating "[t]o rebut the presumed illegality of warrantless entry by police officers, the exigent circumstance must involve a threat to the safety of the public, property, or police which required immediate action by officers with no time to obtain a warrant"). "To justify an emergency entry into a home by police officers, the State must demonstrate that 'an objectively reasonable basis exist[ed] for the officer to believe that there is an immediate need for police assistance for the protection of life ...." Durham v. State , 174 So.3d 1074, 1075-76 (Fla. 5th DCA 2015) (quoting Seibert v. State , 923 So.2d 460, 468 (Fla. 2006) ).

Immediate entry into Sosnowski's backyard and home was necessary for the officers to ensure the safety of a five-year-old child. The sole purpose of the officers' presence at the home was to conduct a welfare check of Garza and the child and to determine whether they were in danger. See § 39.301, Fla. Stat. (2015) (outlining the procedure for initiating protective investigations). Upon arriving, Garza presented with "fresh" bruises and identified Sosnowski as her abuser. Moments later, Garza heard Sosnowski lock a bar across the front door, her son still inside. Garza indicated to the officers that Sosnowski told her she would not see her son again. The officers also learned about the unique layout of the home, including the custom locks, windows, and doors that made the home nearly impenetrable. They knew Sosnowski had several bladed weapons hidden around the home and purposely placed in the yard. They had no way to ascertain the child's whereabouts inside the fortress. The officers also knew Sosnowski's history of violent threats towards DCF's employees, one reported that very day. Sosnowski refused to exit the home after the officers made several attempts to contact him. The uncertainty of the child's location coupled with Sosnowski's evasiveness provided an objectively reasonable basis for the officers to believe that the child was in danger and to enter the home without a warrant to secure the child's safety.

Notwithstanding these circumstances, Sosnowski argues that because the officers had observed the child on Sosnowski's shoulders from across the fence early in the encounter, there was no reason to believe the child continued to be in danger when Sosnowski exited the home into the backyard, leaving the child inside the house. However, as we observed in C.L.L. v. State ,

It is immaterial whether an actual emergency existed in the residence; only the reasonableness of the officer's belief at the time of entry is considered on review. The inquiry must be undertaken in light of the totality of the circumstances confronting the officers, including, in many cases, a need for an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.

115 So.3d 1114, 1117 (Fla. 1st DCA 2013) (internal citations and quotations omitted).

Although the officers had indeed observed the child earlier, Sosnowski had taken the child back into the home, where the officers could no longer observe him. At the time the officers entered the backyard, they had no knowledge of whether the child was safe. The officers' common-sense interpretation of an increasingly dangerous situation prompted certain action and that action fit squarely within the boundaries of the Fourth Amendment. Allowing a five-year-old child to remain in a fortified home with a hostile and potentially violent aggressor with access to multiple weapons has "the potential for serious consequences" prompting the "need for an on-the-spot judgment based on incomplete information ...." Id. The officers in this case made precisely such a judgment. "The resulting invasion of privacy is one that prudent, law-abiding citizens can accept as the fair and necessary price of having the police available as a safety net in emergencies." Ortiz v. State , 24 So.3d 596, 602 (Fla. 5th DCA 2009) (citing Riggs , 918 So.2d at 282-83 ).

Because they had probable cause to arrest Sosnowski for domestic violence and exigent circumstances existed, the officers were lawfully executing a legal duty at the time of their encounter with Sosnowski. Accordingly, we hold that the trial court properly denied judgment of acquittal and affirm Sosnowski's convictions for battery on a law enforcement officer and resisting an officer with violence.

Roberts and Wetherell, JJ., concur.

      Sosnowski raises three additional arguments on appeal, which we affirm without further comment.

      Sosnowski was charged by information with two counts of battery on a law enforcement officer, but the jury found him guilty of only one count.


author: CASANUEVA, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellant, v. Dwaine A. SHEWARD and Patricia Sheward, Appellees.
    Case No. 2D16-4237
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018
    Michael D. Starks and Kimberly S. Mello of Greenberg Traurig, P.A., Orlando; and Patrick G. Broderick of Greenberg Traurig, P.A., West Palm Beach, for Appellant.
    Thomas Eross, Jr., and Kendrick Almaguer of The Ticktin Law Group, P.L.L.C., Deerfield Beach, for Appellee Dwaine Sheward.
    No appearance for Appellee Patricia Sheward.
   CASANUEVA, Judge.

Deutsche Bank National Trust Company, the plaintiff in this foreclosure action, appeals a final judgment entered in favor of Dwaine A. Sheward and Patricia Sheward. Deutsche Bank argues, and Mr. Sheward correctly concedes, that the trial court erred in excluding from evidence the payment history for the Shewards' loan, and we accordingly reverse the final judgment.

I. FACTS AND PROCEDURAL BACKGROUND

On December 14, 2006, the Shewards executed a balloon note and mortgage promising to pay New Century Mortgage Corporation the sum of $150,000. The balloon note required the Shewards to begin making monthly payments on February 1, 2007, and the Shewards defaulted on the note and mortgage by failing to make the regular monthly payment due on October 1, 2008. Saxon Mortgage Services became the servicer for this loan in November 2007, and thereafter in November 2009, Ocwen Loan Servicing began servicing the loan.

At the parties' bench trial, Deutsche Bank sought to introduce the payment history for the loan through the testimony of Sally Torres. Ms. Torres was a senior loan analyst for Ocwen and had worked for the company for twelve years. She testified that the payment history for the loan reflects all the payments, fees, escrow, and interest. Payment histories are maintained in electronic files and they are kept in the ordinary course and scope of Ocwen's business. Ms. Torres further testified that when a payment is received from a borrower, the computer system is updated at or near the time of the transaction. She attested that the payment history sought to be introduced is a true and accurate copy of the payment history for the Shewards' loan account.

Regarding the loan records maintained by the prior servicer, Saxon Mortgage Services, Ms. Torres testified that Ocwen receives the electronic records for every new loan that they service. Ocwen's loan setup department is responsible for reviewing all of the electronic information for a new loan and converting the data so that it can be read by their system. Ocwen then compares the electronic records with the written loan documents to verify that the electronic information is correct.

The Shewards objected to the admission of the payment history arguing that it was hearsay and that Ms. Saxon did not have any personal knowledge regarding that portion of the payment history that was maintained by Saxon, specifically how Saxon kept and maintained its records. Deutsche Bank countered that the payment history was admissible pursuant to the business record exception to the hearsay rule. See § 90.803(6)(a), Fla. Stat. (2008). The trial court initially overruled the Shewards' objection to the documents.

However, after both sides rested, the trial court reserved ruling on the records' admissibility until it had an opportunity to review the trial transcript. Ultimately, the trial court determined that the records were inadmissible hearsay, because there was no testimony that the loan documents of Saxon were reviewed to ensure that they were correct. Accordingly, the court entered judgment in favor of the Shewards.

II. STANDARD OF REVIEW

The standard of review for the admissibility of evidence is abuse of discretion. Channell v. Deutsche Bank Nat'l Tr. Co., 173 So.3d 1017, 1018 (Fla. 2d DCA 2015) ; Bayview Loan Servicing, LLC v. Kay, 227 So.3d 779, 781 (Fla. 1st DCA 2017). However, even though a trial court has broad discretion in ruling on the admissibility of evidence, this discretion is not unlimited. Alexander v. State, 931 So.2d 946, 950 (Fla. 4th DCA 2006). Further, the question of whether evidence meets the statutory definition of hearsay is a matter of law and thus subject to de novo review. Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006).

III. BUSINESS RECORDS EXCEPTION

It is undisputed that Ocwen's records were offered into evidence pursuant to section 90.803(6)(a), the business records exception to the hearsay rule. There are a legion of cases setting forth the proper evidentiary foundation necessary for the records' admission into evidence. To be admissible, the movant is required to establish the following:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008) (citing Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999) ).

Additionally, in those instances where a business takes custody of another business's records and integrates them within its own records, "the acquired records are treated as having been 'made' by the successor business, such that both records constitute the successor business's singular 'business record.' " Bank of N.Y. v. Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015) (quoting United States v. Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007) ). "[A] witness can lay the foundation for business records of another company," Bayview Loan Servicing, 227 So.3d at 781, and "[t]here is no requirement that the records custodian have personal knowledge of the manner in which the prior servicer maintained and created its business records." Sas v. Fed. Nat'l Mortg. Ass'n, 165 So.3d 849, 851 (Fla. 2d DCA 2015) (citing WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005) ). What is required, however, is independent verification of the loan payment history. WAMCO XXVIII, 903 So.2d at 233 ; Holt v. Calchas, LLC, 155 So.3d 499, 504 (Fla. 4th DCA 2015). A successor business may establish the trustworthiness of records "by independently confirming the accuracy of the third-party's business records upon receipt." Bank of N.Y., 157 So.3d at 1072.

We agree with the parties that the requirements for admissibility were met in this case. Ms. Torres' testimony set forth the procedures utilized by Ocwen to independently verify the accuracy of the payment history records from the prior loan servicer, Saxon. We therefore reverse the final judgment and remand for further proceedings.

Reversed and remanded.

CRENSHAW and SLEET, JJ., Concur.


author: ROTHENBERG, C.J.

text:
    COMPETITIVE SOFTBALL PROMOTIONS, INC., etc., Appellant, v. Yasser AYUB, etc., Appellee.
    No. 3D17-1420
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018. Rehearing Denied May 25, 2018
    Conroy Simberg, and Hinda Klein (Hollywood), for appellant.
    Fischer Redavid PLLC, and Jordan Redavid, Miami, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   ROTHENBERG, C.J.

Competitive Softball Promotions, Inc. ("CSP") appeals the trial court's entry of an order denying its post-trial motion for a directed verdict or a new trial, which was entered after Yasser Ayub ("Ayub") prevailed in a jury trial. For the reasons that follow, we find that the trial court erred by denying CSP's motion for a directed verdict, and therefore, we reverse and remand with instructions to the trial court to enter a directed verdict in CSP's favor.

BACKGROUND

Ayub is a member of a softball team that participated in a softball tournament that was run by CSP at a public park that is owned by Miami-Dade County. CSP paid Miami-Dade County for the right to use several softball fields, but there are common areas open to the public outside of the rented fields and dugouts. On the morning on the day of the tournament, Ayub's team had a heated altercation with another team during a softball game, and the umpire declared that both teams forfeited the game as a result. Later that evening, another fight broke out between members of the two teams in a common area of the park, outside of the rented softball fields and dugouts. Ayub was injured during this second altercation while allegedly attempting to keep the other players from fighting. The fight ultimately ended after the police arrived.

Ayub filed a premises liability cause of action against CSP, alleging that CSP had a duty to keep its business invitees safe and that CSP breached this duty by failing to provide adequate security during the softball tournament. During the proceedings before the trial court, CSP repeatedly raised the argument that it had no duty to provide security in the common area of the public park where the fight occurred because CSP did not have any control over that area. After hearing the arguments and evidence at trial, the jury returned a verdict in favor of Ayub and against CSP in the amount of $319,914.71, and the trial court entered a final judgment. Thereafter, CSP filed a renewed motion for a directed verdict and a new trial, reiterating that Ayub failed to establish that CSP controlled the premises on which Ayub was injured, and thus, CSP owed no legal duty to Ayub. The trial court denied the motion, and this appeal followed.

ANALYSIS

We review a trial court's ruling on a motion for a directed verdict de novo, and we must evaluate the evidence in the light most favorable to the nonmoving party. Fasani v. Kowalski, 43 So.3d 805, 812 (Fla. 3d DCA 2010) ; Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006). Whether a legal duty exists is a question of law subject to the de novo standard of review. Weber ex rel. Estate of Weber v. Marino Parking Sys., Inc., 100 So.3d 729, 730 (Fla. 2d DCA 2012) ; R.J. Reynolds Tobacco Co. v. Grossman ex rel. Estate of Grossman, 96 So.3d 917, 920 (Fla. 4th DCA 2012).

Negligent security cases, such as this one, fall under the auspices of premises liability. See Nicholson v. Stonybrook Apartments, LLC, 154 So.3d 490, 493-94 (Fla. 4th DCA 2015). The legal duty to protect invitees from injuries caused by third parties is tied to the defendant's control over the premises where the injury occurred. Brown v. Suncharm Ranch, Inc., 748 So.2d 1077, 1078 (Fla. 5th DCA 1999). Therefore, generally, if the plaintiff cannot demonstrate that the defendant controlled the premises where the plaintiff was injured, then the defendant cannot be liable for failing to protect the plaintiff from third-party misconduct. Publix Super Markets, Inc. v. Jeffery, 650 So.2d 122, 124 (Fla. 3d DCA 1995) (holding that Publix, as lessee of a store in a shopping center, had no duty to protect its invitees from third-party criminal assaults in the adjoining parking lot because Publix was not responsible for and did not control the parking lot); see also Daly v. Denny's, Inc., 694 So.2d 775, 777 (Fla. 4th DCA 1997) ("[T]he duty to protect strangers against the tortious conduct of another can arise if, at the time of the injury, the defendant is in actual or constructive control of: 1. the instrumentality; 2. the premises on which the tort was committed; or 3. the tort-feasor.").

Control over the premises is demonstrated where the defendant is shown to have the right to control access to the property. Brown, 748 So.2d at 1078 ("The duty to protect others from injury resulting from a dangerous condition on a premises rests on the party who has the right to control access by third parties to the premises, be it the owner, an agent, or a lessee of the property."); Welch v. Complete Care Corp., 818 So.2d 645, 649 (Fla. 2d DCA 2002) ("The duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property.").

In the instant case, there is no evidence in the record to suggest that CSP exercised any control over the premises where Ayub was injured. Ayub was injured in a common area of a public park that is owned by Miami-Dade County, and CSP only rented the softball fields adjacent to this common area. Although Ayub suggests that there was evidence that CSP used the common areas of the public park to collect fees from the members of the softball teams and posted tournament results in the common area, this limited use in a common area does not demonstrate the type of control necessary to give rise to a duty to provide adequate security against third-party misconduct. Namely, this kind of use does not suggest that CSP had the authority to control access to and from the common areas of the public park. See Publix Super Markets, Inc., 650 So.2d at 125 (reasoning that Publix did not control the parking lot because, although Publix bag carriers used the parking lot and Publix previously hired security guards for the parking lot, this "limited use" did not indicate that Publix had the authority to exclude anyone from the premises).

Alternatively, Ayub argues on appeal that CSP had a duty to secure the area where the fight took place because it was foreseeable that there could be a fight outside of the premises CSP controlled. On the facts of this case, we disagree. It is true that a duty can arise where the defendant's conduct creates conditions that cause injuries to invitees that occur beyond the limits of the premises within the defendant's control. In those cases, the scope of the defendant's duty extends to the foreseeable zone of risk that the defendant's conduct created. See Almarante v. Art Inst. of Fort Lauderdale, Inc., 921 So.2d 703, 705 (Fla. 4th DCA 2006) ("A landowner's conduct can give rise to a zone of risk extending beyond the physical boundaries of his property when harm reaching outside those boundaries is foreseeable.") (emphasis added); Daly, 694 So.2d at 777 (holding that the landowner did not have a duty to protect the plaintiff from third-party criminal conduct taking place outside of the landowner's property, contrary to the plaintiff's theory that the landowner created a "zone of risk," because the landowner "did not create the conditions that led to the criminal conduct by the third parties") (emphasis added); Johnson v. Howard Mark Prods., Inc., 608 So.2d 937, 938 (Fla. 2d DCA 1992). In the instant case, however, there is no record evidence that CSP's conduct created the conditions that led to the fight in the common area of the public park, and thus, CSP did not owe Ayub a duty to secure the area where the fight occurred.

CONCLUSION

In conclusion, we find that the trial court erred by denying CSP's motion for a directed verdict. The record reflects that CSP exercised no control over the common areas of the public park, and thus, it had no duty to provide adequate security to protect its invitees there. On these facts, because Ayub was injured in this common area, CSP's liability cannot be implicated. Additionally, we find the remainder of Ayub's arguments on appeal to be without merit, and thus, we decline to specifically address them here. Accordingly, we reverse the trial court's order denying CSP's motion for a directed verdict and remand with instructions to the trial court to enter a directed verdict in CSP's favor.

Reversed and remanded.

      Because we reverse the trial court's order denying CSP's motion for a directed verdict and remand for judgment in favor of CSP based on our finding that CSP did not owe Ayub a legal duty, we decline to discuss the other issues that CSP raised in its post-trial motion and on appeal.


author: FERNANDEZ, J.

text:
    I.G., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-631
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

I.G. appeals the trial court's order withholding adjudication of delinquency and placing I.G. on probation for loitering and prowling, under sections 856.021 and 777.011, Florida Statutes (2016). We affirm the trial court's order.

After I.G. was charged under these statutes, the case went to an adjudicatory hearing. At the hearing, the State presented testimony from two police officers, Detective David Mata and Officer Lexus Guerrero. Detective Mata, from the City of Homestead Police Department, testified that on Monday, April 11, 2016, at approximately 11:30 p.m., he and his partner responded to a dispatch call in a gated community regarding two males looking into vehicles and pulling on door handles in a parking lot. The community is completely surrounded by fences and is accessible through gates that require a code for entry of pedestrian and vehicular traffic. Detective Mata arrived on the scene and remained in his unmarked vehicle, observing I.G. and the other male, believing they might break into a vehicle.

For approximately five minutes, while he was parked in the center of the parking lot, Detective Mata saw I.G. looking into three to four vehicles and pulling on the door handles of those vehicles. The detective observed I.G. and the other male walking between cars. Detective Mata testified, "when they were on the east side of the vehicle I could see them looking into the cars, but I couldn't see what they were doing. When they went to the west side of the vehicles I could see them because there was nothing obstructing me from seeing them pulling on door handles and looking in." Detective Mata noticed a male and a female on a cell phone looking at the two suspects and approaching I.G. Mata believed they were the witnesses that called 911 to report the incident. The detective decided to act in order to avoid any confrontation between I.G., the other male, and the witnesses. He instructed I.G. to stop, identified himself and his partner as police officers, and had his weapon drawn. Detective Mata and his partner asked I.G. and the male to lay on the ground and show them their hands. The suspects were then handcuffed. Detective Mata called for marked units to approach, briefed the officers when they arrived, and left the scene.

Officer Lexus Guerrero testified that he responded as a backup officer, was briefed by the detectives, and spoke to a witness. Officer Guerrero asked I.G. what he was doing, and I.G. stated that he was going to a friend's house to smoke weed at a location approximately four blocks east and north of the community he was in. Officer Guerrero gave I.G. an opportunity to explain why he was in the community or whether he lived in the community, but I.G. could not give the officer any reason why he was there or how he entered the community. Officer Guerrero further testified that the area is known for a lot of motor vehicle burglaries and that I.G. was 14 years old at the time he was arrested. I.G. was then arrested and charged with loitering or prowling for his actions of looking into parked vehicles and pulling on door handles in violation of sections 856.021 and 777.011, Florida Statutes (2016).

After the adjudicatory hearing, the trial court found I.G. delinquent, withheld adjudication, and sentenced him to probation. I.G. then appealed.

I.G. argues that Detective Mata and his partner arrested him without first inquiring as to his identity or asking what he was doing, as required by section 856.021. The State contends that I.G. was not under arrest when the detectives interacted with him, but that he was detained for further investigation based on the observations made by Detective Mata and his partner. We agree with the State and affirm.

Because this case involves a trial court's denial of a motion for judgment of dismissal in an adjudicatory hearing, the standard of review is de novo . C.W. v. State, 76 So.3d 1093, 1094 n. 1 (Fla. 3d DCA 2011). When moving for judgment of dismissal, the movant admits the facts in evidence, as well as every "conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." A.P.R. v. State, 894 So.2d 282, 285 (Fla. 5th DCA 2005) (citations omitted). In addition, "[A]ll reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state." Id.

Section 856.021 provides, in pertinent part, the following:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals., under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." § 856.021, Fla. Stat. (2016).
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(emphasis added).

The record establishes that I.G. was not under arrest when the detectives approached him. I.G. was detained after he was observed looking into cars and pulling on door handles so the officers could inquire about this suspicious activity. As such, Detective Mata's actions were consistent with the purpose and intent of section 856.021. Moreover, the evidence demonstrates a stop was permissible here and handcuffing I.G. during the stop did not impermissibly convert the investigatory stop into an arrest.

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer's well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on the facts know to the officer before the stop.

C.E.L. v. State, 24 So.3d 1181, 1186 (Fla. 2009) (internal citations omitted). See also Fernandez v. State, 57 So.3d 915, 917 (Fla. 3d DCA 2011), citing to Saturnino-Boudet v. State, 682 So.2d 188, 191 (Fla. 3d DCA 1996) ("[T]he officer may detain the individual even at gunpoint and/or by handcuffs for the officer's safety without converting the [investigatory] stop into a formal arrest.").

Detective Mata's testimony revealed that he witnessed 14-year-old I.G. walking through the parking lot after 11:00 p.m. on a Monday night, looking inside of cars, and pulling on the door handles of the cars. He was in a gated community, with restricted public access that had fences surrounding the community and front gates requiring a code to enter. The area was known to have a high rate of car burglaries. Two witnesses, members from the community, were approaching the two suspects. Based on these observations and the information he knew, Detective Mata appropriately detained I.G. This allowed the backup officers time to arrive at the scene, investigate the matter further, and determine whether I.G. had a reason to be in the community or not. The exigency of the circumstances did not allow the detectives to speak with I.G. at that very moment because they thought the two 911 callers/witnesses were going to interfere with the investigation and possibly get injured in doing so. Therefore, Detective Mata had sufficient reasonable suspicion to detain I.G. for further investigation and questioning. I.G. explained that he was going to another community four or five blocks away from where he was; thus, I.G. failed to provide a reasonable explanation as to why he was in the gated community at that time of night on the night in question. Consequently, he was arrested and charged with loitering or prowling.

We thus affirm the trial court's order withholding adjudication of delinquency and placing I.G. on probation. See also Perez-Tejon v. State, 147 So.3d 1094 (Fla. 3d DCA 2014).

Affirmed.


author: LAGOA, J. SALTER, J. (dissenting).

text:
    Romilio F. MARQUES, M.D., Romilio F. Marques, M.D., P.A., Naples HMA, LLC, d/b/a Physicians Regional Medical Center, Ofelia Marin, M.D., KIDZ Medical Services, Inc., Jorge Mujica, M.D., and Quail Emergency Physicians, LLC, Appellants, v. Pedro GARCIA, a minor, by and through his parents, Jesus Garcia and Norma Cisneros, and Jesus Garcia, and Norma Cisneros, individually, Appellees.
    No. 3D16-1920
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018
    Benito H. Diaz, P.A., and Benito H. Diaz ; Hicks, Porter, Ebenfeld & Stein, and Dinah Stein and Mary Gniadek, for appellants Romilio F. Marques, M.D., and Romilio F. Marques, M.D., P.A.; Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and Scott E. Solomon, for appellants Ofelia Marin, M.D., and KIDZ Medical Services, Inc.; Foley & Mansfield, and Kevin O'Connor, for appellants Jorge Mujica, M.D., and Quail Emergency Physicians, LLC; Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Michael D'Lugo and Robert Baron Ringhofer (Naples), for appellant Naples HMA, LLC, d/b/a Physicians Regional Medical Center.
    Zebersky & Payne, LLP, and Edward H. Zebersky (Fort Lauderdale); Grossman Roth Yaffa Cohen, P.A., and Andrew B. Yaffa and Rachel Wagner Furst, for appellees.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   LAGOA, J.

Appellants, Romilio F. Marques, M.D., Romilio F. Marques, M.D., P.A., Naples HMA, LLC, d/b/a Physicians Regional Medical Center, Ofelia Marin, M.D., KIDZ Medical Services, Inc., Jorge Mujica, M.D., and Quail Emergency Physicians, LLC, defendants below (collectively, "the Appellants"), appeal from a non-final order denying their motion to transfer venue pursuant to section 47.122, Florida Statutes (2016). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 2014, Pedro Garcia ("Pedro"), a six-day old infant, developed a serious intestinal condition that caused him to vomit green bile. His mother, Norma Cisneros ("Cisneros"), took him to the emergency room at Physicians Regional Medical Center ("Physicians Regional"), a hospital operated by Naples HMA, LLC ("Naples HMA"). At that initial visit, Pedro was seen by Dr. Jorge Mujica ("Mujica"), an emergency room physician. Mujica discharged Pedro less than two hours after Pedro and Cisneros had arrived.

When Pedro's symptoms persisted, Cisneros took her son on November 24, 2014, to see Dr. Romilio Marques ("Marques"), a pediatrician in Naples, who in turn referred Cisneros to a local specialist, Dr. Ofelia Marin ("Marin"). Marin saw Pedro multiple times over the course of several weeks. On December 20, 2014, Cisneros brought Pedro back to the emergency room at Physicians Regional, where he was again seen by Mujica. Mujica diagnosed Pedro with colic and discharged him. The following morning, Pedro's condition worsened, and Cisneros again returned to Physicians Regional. On this visit, Dr. Michael Ropele, a different emergency room doctor at Physicians Regional, saw Pedro and ordered an X-ray that revealed Pedro suffered from a volvulus, a twisting of the intestine. Pedro was then airlifted to Joe DiMaggio Children's Hospital in Broward County for treatment. At Joe DiMaggio Children's Hospital, Pedro received life-saving treatment, including five surgeries, and remained there for close to two and a half months.

On April 11, 2016, Pedro's parents, Cisneros and Jesus Garcia ("Garcia"), on behalf of Pedro and themselves individually (collectively "Appellees"), filed a medical malpractice lawsuit in Miami-Dade County against Naples HMA, Drs. Mujica, Marques, and Marin, and the doctors' employers-Quail Emergency Physicians, LLC ("Quail Emergency"), Romilio F. Marques, M.D., P.A. ("Marques P.A."), and KIDZ Medical Services, Inc. ("KIDZ").

The three individual defendants reside and work in Collier County. Of the four corporate defendants, KIDZ has its principal place of business in Miami-Dade County, Marques P.A. is registered in Collier County, and Naples HMA and Quail Emergency are foreign companies with registered agents in Leon County.

Appellants, except Naples HMA, filed motions to transfer venue to Collier County pursuant to section 47.122, Florida Statutes (2016) ("the motions"). Naples HMA did not file its own motion to transfer, but instead moved to join in the motions filed by the other Appellants. The motions were substantially similar, and all argued that Miami-Dade County would be inconvenient for the parties and witnesses and that the interests of justice weighed in favor of transferring venue to Collier County. Drs. Mujica, Marin, and Marques each filed affidavits in support of their motions, and each asserted that they lived and worked in Naples, Florida, and that their professional and personal lives would be unduly burdened by a trial in Miami-Dade County. None of the doctors' affidavits addressed or established substantial inconvenience or undue expense that would require a change of venue for the convenience of the anticipated witnesses.

The affidavit of KIDZ's CFO stated that it would be beneficial for the action to be in Collier County because that is where Pedro received his medical treatment. Naples HMA submitted the affidavit of a risk management officer who stated she would be inconvenienced by having to travel to Miami-Dade County for trial. Marques P.A. and Quail Emergency did not submit affidavits in support of their respective motions.

None of the Appellants submitted any affidavits or other evidence addressing the identity of the witnesses needed for trial, whether the witnesses were material, or the significance of the witnesses' testimony. Dr. Marin and KIDZ filed an unverified Notice of Filing in support of their motion to transfer that simply listed the date of each of Pedro's treatments, the respective treating physician or hospital, and the location of the physician or hospital. This Notice stated that the list of names and dates was obtained from Pedro's medical files. It did not identify the nature of the treatments, nor did it purport to identify which individuals or entities would be trial witnesses (material or otherwise) or the substance (much less the significance) of their anticipated testimony. Appellees filed responses in opposition to each of the motions to transfer, arguing that venue was proper in Miami-Dade County and that Appellants had not met their burden under section 47.122.

On July 18, 2016, the trial court held a hearing on the motions to transfer venue. The trial court denied the motions to transfer in a written order dated August 4, 2016. Relying on this Court's decision in R.J. Reynolds Tobacco Co. v. Mooney, 147 So.3d 42 (Fla. 3d DCA 2014), the trial court stated that in order to successfully challenge a plaintiff's forum selection "the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses." Id. at 43 (emphasis in original). The trial court further explained that this Court "has made clear that plaintiffs may select a venue for any reason," and set forth in its written order the standard articulated by this Court in R.J. Reynolds:

We also cannot agree with any conclusion that plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they see some procedural advantage or because juries in the chosen forum tend to award larger monetary damages. There is nothing improper in choosing a venue because it is the most advantageous venue procedurally, or otherwise, for the law itself recognizes a plaintiff's privilege in initially selecting a venue irrespective of reason. If, therefore, venue is proper in more than one place, a plaintiff has the privilege of selecting which venue is most favorable to it for any reason and that selection will not be disturbed absent evidence that the chosen venue is either not proper in the place selected or substantially inconvenient to the witnesses or parties.

Id. at 46 (emphasis in original). Applying R.J. Reynolds, the trial court concluded that although the Appellants "presented evidence that there was some inconvenience and expense involved if the trial were to proceed in Miami-Dade County," the evidence set forth in the affidavits was not "sufficient to establish the substantial inconvenience or undue expense which the law requires [and] [a]ccordingly, a transfer of venue is not warranted here." (emphasis in original). This appeal followed.

II. STANDARD OF REVIEW

An order denying a motion to transfer venue under section 47.122, Florida Statutes, is reviewed for an abuse of discretion. Hyatt Corp. v. Howarth, 678 So.2d 823, 823-24 (Fla. 3d DCA 1996). In reviewing such decisions, we have cautioned:

The trial court's discretion is abused "only where no reasonable [person] would take the view adopted by the trial court." Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).... We may not, under the abuse of discretion standard, simply supplant this decision with this court's preference on a de novo review of the same venue factors.

Id. at 824 n.1. Where "the record contains a logical basis for the exercise of [the trial judge's] discretion," there is no abuse of discretion. Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) ; accord Canakaris, 382 So.2d at 1203.

III. ANALYSIS

Initially, we note that all the parties agree that venue is proper in both Miami-Dade and Collier counties. "[W]here venue is proper in more than one county, the choice of forum rests with the plaintiff." P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998). Section 47.122, however, authorizes a court to "transfer any civil action to any other court of record in which it might have been brought" for "the convenience of the parties or witnesses or in the interest of justice." While the three elements of this statute are in the disjunctive and thus a change in venue could arguably be based on any of them, this Court has held that "[o]f the three statutory factors-convenience of the parties, convenience of the witnesses, and interest of justice-the most important factor is the convenience of the witnesses." Cooper Tire & Rubber Co. v. Estate of Chavez ex rel. Hernandez, 8 So.3d 1157, 1159 (Fla. 3d DCA 2009).

As the trial court correctly found, in order to successfully challenge the plaintiff's forum selection, " 'the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.' " R.J. Reynolds, 147 So.3d at 43 (emphasis omitted) (quoting Gov't Emps. Ins. Co. v. Burns, 672 So.2d 834, 835 (Fla. 3d DCA 1996) ). "This requires the defendant to come forward with record evidence to support a transfer." Id. at 43 (emphasis omitted) (citing Burns, 672 So.2d at 835 ). It is therefore incumbent on the party seeking transfer " 'to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.' " Cardelles v. Catholic Health Servs., Inc., 14 So.3d 1025, 1027 (Fla. 4th DCA 2009) (quoting Wynn Drywall, Inc. v. Aequicap Program Adm'rs, Inc., 953 So.2d 28, 30 (Fla. 4th DCA 2007) ). We find that the trial court did not abuse its discretion in concluding that the Appellants failed to meet their burden.

" '[I]n order for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony.' " R.J. Reynolds, 147 So.3d at 45 (quoting Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377, 1379 (Fla. 1st DCA 1997) ); see also Foster Marine Contractors, Inc. v. S. Bell Tel. & Tel. Co., 541 So.2d 114, 114 (Fla. 4th DCA 1989) ("[Defendant must also] show[ ] the subject matter of the various witnesses' testimony (to wit: the quality of the testimony versus the quantity of the testimony)." (emphasis in original) ). It is therefore important for the trial court to know whether the witnesses identified are key or material witnesses. See Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983) (noting that "since the quality of testimony by a key witness may well outweigh the quantity of testimony by a number of witnesses testifying to relatively unimportant matters," the significance of the witnesses' testimony is relevant to section 47.122 ). Here, the Appellants failed to establish the identity of the key or material witnesses. Indeed, no record evidence established the identity of the witnesses needed for trial much less the significance of these witnesses' testimony, and the trial court recognized as much at the hearing. Appellants therefore failed to meet their burden by not disclosing information as to the necessity, relevance, or significance of the evidence to be presented by material witnesses at trial. See R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634, 635 (Fla. 4th DCA 1998), quoted with approval by R.J. Reynolds, 147 So.3d at 44. Moreover, even if all of the individuals listed in the unsworn Notice filed by Marin and KIDZ were presumed to be key or material witnesses, the trial court did not abuse its discretion in concluding that Appellants failed to meet their burden, as none of the Appellants submitted affidavits or other evidence demonstrating how these witnesses would be substantially inconvenienced or that undue expense required a change in venue for the convenience of these witnesses. See R.J. Reynolds, 147 So.3d at 43.

Although we may have reached a different conclusion were we sitting as the trial court, we may not, under the abuse of discretion standard, supplant our judgment for that of the trial court. "The trial court-with the parties before it and the case having been assigned to its judicial labor-was thus within its discretion to either grant or deny the motion for change of venue." Hyatt, 678 So.2d at 824 n.1. Here, Appellants failed to show which of the witnesses were key or material witnesses, and further failed to show substantial inconvenience or undue expense that required a change of venue for the convenience of the witnesses. As such, the trial court did not abuse its discretion in denying the motions to transfer.

IV. CONCLUSION

Based on the record before us, we find that the trial court did not abuse its discretion in denying the motions to transfer venue and affirm the trial court's order.

AFFIRMED.

FERNANDEZ, J., concurs.

SALTER, J. (dissenting).

I respectfully dissent. I would reverse the order denying the motions of all seven defendants to transfer venue to Collier County, where all three plaintiffs reside and the cause of action indisputably arose. Section 47.122, Florida Statutes (2016), "Change of venue; convenience of parties or witnesses or in the interest of justice," plainly applies to a case such as this.

Facts and Procedural History

The following are allegations of fact in the complaint filed in the circuit court in Miami-Dade County in April 2016. In November 2014, six day-old Pedro Garcia was taken by his mother to the emergency room at Physicians Regional Medical Center in Naples, Collier County, Florida, based on the infant's vomiting. The child was seen by Dr. Mujica there and discharged "without any meaningful diagnosis" less than two hours after arrival at the emergency room.

Not quite three weeks later, the infant continued to vomit a "bilious emesis," and his mother took him to see Dr. Marques, a pediatrician, at his medical office in Collier County. Dr. Marques advised the child's mother to follow up in a month with Dr. Marin, a pediatric gastroenterologist, at Dr. Marin's office in Collier County. Pedro's mother made an appointment with Dr. Marin only eight days later at her office in Collier County. After two more such visits to Dr. Marin's office, the child's mother returned with him to the emergency room at Physicians Regional. Ultimately the child's conditioned worsened, x-rays of his gastrointestinal system were obtained, and he was diagnosed with a twisted intestine.

The child was airlifted by helicopter to a children's hospital in Broward County, where he was treated. Ultimately, he had five surgeries, with large portions of his small intestine removed and a port and feeding tube inserted in his chest. His parents, Jesus Garcia and Norma Cisneros, allege that as a result of the acts, omissions, and injuries alleged in the complaint, the child has become disabled and suffered damages (and will continue to sustain damages), in addition to the separate damages suffered, and expenses incurred, by the parents themselves. The parents retained counsel in Broward County and Miami-Dade County, who served a notice of intention to initiate litigation and then filed the complaint.

All seven defendants filed motions to transfer venue from Miami-Dade County to Collier County under section 47.122 and affidavits in support of those motions. The plaintiffs, residents of Collier County, opposed the motions. The trial court denied the motions, apparently based on the following assessments of the record:

There are three corporate Defendants in this case. One, KIDZ Medical Services, Inc. ("KIDZ"), has its principal place of business in Miami Dade County. The other two, Naples HMA, LLC, and Quail Emergency Physicians, LLC, are foreign corporations and do not reside in Collier County. None of the corporate Defendants have submitted evidence regarding substantial inconvenience or undue expense. KIDZ did submit an affidavit (of George MacConnell, Esq.) in support of its motion; however the affidavit does not address substantial inconvenience or undue expense.
Two of the three individual Defendants, Ofelia Marin, M.D., and Jorge Mujica, M.D., submitted evidence, in the form of affidavits. The sole evidence of substantial inconvenience and/or undue expense is contained in those two affidavits.
Dr. Mujica's affidavit states that if required to travel to Miami for trial, he would be inconvenienced by losing income and not being able to see patients and by not being able to spend time with his family. In addition, Dr. Mujica claims that the cost of a staying in a hotel during the trial would be an undue expense for him [sic].
Dr. Marin's affidavit states that traveling to Miami for trial would cause substantial hardship for her because it would prevent her from seeing patients before or after court.
The trial is estimated to be between seven and ten trial days. Most of Plaintiffs' witnesses reside either in Broward County or out of state.

Based on these conclusions, the trial court found evidence that there would be "some " inconvenience involved if trial proceeds in Miami-Dade County, but not "substantial " inconvenience or "undue " expense [original emphasis], and denied the defendants' motions to transfer venue. This appeal by all of the defendants followed.

Analysis

Our standard of review regarding a ruling on a motion to transfer venue is for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Mooney, 147 So.3d 42, 43 (Fla. 3d DCA 2014). The issue is governed by a statute, however, and "the discretion of the court is not unbridled and must be predicated upon a proper showing of convenience or interests of justice." Taylor v Dasilva, 401 So.2d 1161, 1163 (Fla. 3d DCA 1981). And while a plaintiff's choice of venue is accorded a presumption of validity, that choice is not a "paramount consideration" that cannot be overcome. P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998) ; Hu v. Crockett, 426 So.2d 1275, 1278 (Fla. 1st DCA 1983).

Section 47.122 commands attention to three considerations: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. The use of the disjunctive "or" in the statute means that any one of those considerations, or a combination of them, may control the outcome. The present case also indisputably satisfies the statute's condition precedent to a motion to change venue: that the transfer must be to a court of record "in which it might have been brought."

Reviewing the record relating to the venue motions:

• All the plaintiffs reside in Collier County.
• Of the seven defendants, three are licensed physicians who live and work in Collier County. One defendant is a professional association formed by one of those physicians, and its only office is in Collier County.
• Defendant Naples HMA, LLC, is a Tennessee limited liability company, but it owns and operates Physicians Regional Medical Center in Naples, Collier County, Florida, where the child was treated. The affidavit of Sherry Coccari, a licensed healthcare risk manager, certified professional in healthcare risk management, and compliance officer for Physicians Regional Healthcare System, establishes that she lives and works in Collier County. Her review of the plaintiffs' medical records at the Naples hospital where the child was treated identified five nurses and two registrars who made entries in the charts; all seven individuals reside and are employed in Collier County.
• Defendant Quail Emergency Physicians, LLC, is a Florida limited liability company with its principal address in Colorado. Quail employed defendant Dr. Jorge Mujica in the emergency department at the hospital in Collier County.
• The only defendant with any relationship to Miami-Dade County, "KIDZ Medical Services, Inc.," is a Florida corporation with its principal address in Miami-Dade County. KIDZ employed Dr. Marin, a pediatrician who lives and works in Collier County, to perform services in that County. Dr. Marin's affidavit established that her practice is in Collier County. Significantly, KIDZ itself is only named as a defendant in Count IV of the complaint, and only on the basis of vicarious liability for the alleged negligence of Dr. Marin in Collier County. KIDZ is not claimed to have committed any wrongful acts or omissions apart from those alleged to have been committed by Dr. Marin.
• All of the alleged acts and omissions claimed as medical malpractice in the complaint occurred in Collier County.
• The witnesses identified by counsel for the plaintiffs did not provide affidavits establishing any basis for venue in Miami-Dade County. Instead, counsel for the plaintiffs filed an affidavit stating that his offices are in Miami-Dade County (though this is irrelevant under the venue statute unless it were to be further established, and it was not, that the lack of qualified Collier County attorneys necessitates, in the interests of justice, the retention of counsel in Miami-Dade). The affidavit of plaintiffs' counsel further stated that his clients "prefer to litigate in Miami-Dade County," but did not say why, and stated that he "expects" that many of the physicians who treated the child in Broward County "will offer material testimony in this case," and that "Miami-Dade County will be a more convenient venue for these physician witnesses than Collier County." Though counsel listed 39 such witnesses, none of them provided an affidavit or direct testimony regarding their residence, their amenability to a trial in Naples versus Miami, or their willingness to provide videotaped testimony for use in Collier County.

The individual defendants and the nursing staff for the hospital described in their affidavits the disruption to their medical and nursing practices, and the expense and inconvenience of a lengthy trial in Miami-Dade County as opposed to Collier County. The plaintiffs could not and did not provide such an affidavit, of course, because they are residents of Collier County.

Addressing the "interest of justice," another aspect of venue concerns the allocation of scarce judicial resources, particularly juries, as between Miami-Dade and Collier County. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195, 1197-98 (Fla. 2d DCA 1996). This Court, too, has relied on section 47.122 and the "interest of justice" to support the transfer of a case to another County upon a finding that "a Dade County jury, which is both a scarce and precious resource, should not be burdened with determining a case that has no connection with Dade County."

Westchester Fire Ins. Co. v. Fireman's Fund Ins. Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996).

Here, as in Cooper Tire & Rubber Co. v. Estate of Chavez ex rel. Hernandez, 8 So.3d 1157 (Fla. 3d DCA 2009), the trial court abused its discretion by not transferring the action to the county where the parties live and work and the alleged wrongful acts took place. The nominal defendant, KIDZ, only acted through Dr. Marin in Collier County. Further, no witnesses have been shown to work or live in Miami-Dade County. No basis has been shown to further burden the courts and jurors of Miami-Dade County with this Collier-centric matter.

To paraphrase this Court in two similar cases (appearing to have been brought to Miami-Dade County for the convenience of a plaintiff's attorneys, which does not qualify as a basis to oppose the motion to transfer), "this is a Collier County case which belongs in Collier County." Hall v. R.J. Reynolds Tobacco Co., 118 So.3d 847, 848 & n.3 (Fla. 3d DCA 2013) (citing Della-Donna v. Gore Newspaper Co., 390 So.2d 87, 87-88 (Fla. 3d DCA 1980) ).

For these reasons, I respectfully dissent and would reverse the order denying the appellants' motion to transfer venue to Collier County.

      Naples HMA is a Florida limited liability company with its principal place of business in Franklin, Tennessee. Quail Emergency is a Florida limited liability company with its principal place of business in Colorado.

      In that opinion, the Second District observed that "[t]here is nothing in this case to connect this cause of action to Polk County other than the fact that the [plaintiffs'] lawyer has an office in Polk County," before reversing the trial court and directing it to grant the defendants' motion for change of venue to Lake County (where the majority of the witnesses and the plaintiffs lived). See also Sullivan v. Klein, 691 So.2d 21, 22 (Fla. 3d DCA 1997) ("the only connection to Dade County is the plaintiff's attorney," reversing denial of a motion to transfer venue).


author: SCALES, J.

text:
    VILLAMOREY, S.A., Appellant, v. BDT INVESTMENTS, INC., Appellee.
    No. 3D17-1952
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018
    Sequor Law, P.A., and Edward H. Davis, Jr., and Annette C. Escobar, Miami, for appellant.
    Carey Rodriguez Milian Gonya, LLP, and Amy M. Bowers-Zamora and David M. Levine, Miami, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   SCALES, J.

Villamorey, S.A., a Panamanian company claiming an interest in property subject to the garnishment proceedings below, appeals the trial court's non-final order denying Villamorey's motion for protective order. We affirm the order on appeal because Villamorey was properly made a party to the garnishment proceedings.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Appellee, BDT Investments, Inc. ("BDT"), obtained a Panamanian judgment against Lisa, S.A. ("Lisa"), and subsequently filed an action in the circuit court below to domesticate the foreign judgment. Upon learning that the Miami branch of Banco Santander International ("Bank") may be holding, in a Villamorey account at Bank, over $13 million in funds allegedly owed to Lisa by Villamorey, BDT served Bank with a writ of garnishment.

Bank responded by answering the writ and moving to dismiss the writ. In its answer, Bank generally denied the writ's allegations, and identified Villamorey as the account holder. Pursuant to section 77.06(3) of the Florida Statutes (2017), however, Bank's answer specifically alleged that Bank was in doubt as to whether the Villamorey account was subject to BDT's garnishment writ; thus, Bank froze the Villamorey account.

BDT replied to Bank's answer to the writ of garnishment, attaching an independent report prepared for Villamorey that audited Villamorey's financial statements. BDT contended that the audit report evidenced a dividend in excess of $13 million declared by Villamorey and payable to Lisa, Villamorey's minority shareholder. BDT claimed that these dividend funds, held in the Villamorey account at Bank, actually belonged to Lisa, and therefore were subject to BDT's garnishment. Pursuant to section 77.055 of the Florida Statutes (2017), BDT provided a copy of Bank's answer to Villamorey and notified Villamorey that, in order to dissolve the writ of garnishment directed towards its account at Bank, Villamorey must file a motion to dissolve the writ within twenty days.

Upon receipt of BDT's notice, Villamorey filed a motion to dissolve BDT's writ pursuant to section 77.07(2) of the Florida Statutes (2017). In this motion, Villamorey claimed, inter alia , that: (i) Villamorey does not owe any debt to BDT; (ii) the legal presumption is that a bank account is owned by the entity named on the account (i.e., Villamorey); (iii) BDT failed to overcome this legal presumption because the audit report upon which BDT relied did not establish any ownership interest of Lisa in the Villamorey account at Bank; and (iv) BDT's foreign judgment against Lisa was a sham because, among other things, BDT and Lisa were related entities, owned by the same parent company, and represented by the same counsel.

BDT propounded discovery on Villamorey with respect to the writ of garnishment. Specifically, BDT served Villamorey with a request for admissions, a request for production of documents, and also sought to depose Villamorey's corporate representative. Villamorey then filed the instant motion ("Villamorey's Motion") seeking to quash BDT's discovery or, in the alternative, for a protective order. Villamorey's Motion raises several general grounds as to why it is not subject to discovery, but, of consequence to this opinion, is Villamorey's argument that because the trial court lacks personal jurisdiction over it, it is not a party to the garnishment proceedings and, therefore, it cannot be compelled to respond to BDT's discovery.

On August 3, 2017, the trial court held a hearing on Villamorey's Motion and, noting that Villamorey intended to participate fully in court-ordered mediation and at trial, entered a discovery order rejecting Villamorey's argument that it was not a party to this action:

During the hearing on Villamorey's Motion, counsel for Villamorey took the position that it had the right to and intended to fully participate at trial. Villamorey's counsel additionally contended that Villamorey has an "absolute right" to present a motion for summary judgment pursuant to Florida Rule of Civil Procedure 1.510, which provides for the filing of a motion for summary judgment by a party. I do not disagree with Villamorey that it has the right to fully participate in this post[-]judgment action through and including trial. This is based on my finding that it is a party, as discussed below. In the meantime, Villamorey will be involved in alternative dispute resolution mechanisms, having agreed to participate in mediation and having agreed on the selection of a mediator.
Villamorey's argument that it is not a party to this action fails the "Duck Test." This well-known abductive reasoning test posits: "If it looks like a duck, and quacks like a duck, then it is a duck." Here, Villamorey looks like a party, has quacked like a party, and is swimming like a party in the post-judgment litigation pond. To this Court, therefore, Villamorey is a party to these post-judgment proceedings.[ ]

(Citations omitted). Villamorey timely appealed the trial court's discovery order, which we stayed during the pendency of this appeal.

II. ANALYSIS

Villamorey asserts that, because it has not filed an affidavit attesting to its ownership of the Villamorey account at Bank pursuant to section 77.16(1) of the Florida Statutes (2017), it is merely in a defensive posture in the garnishment action, is not a true party to the garnishment action, and is, therefore, not subject to BDT's discovery. We disagree.

Villamorey's assertion that only persons who have filed an affidavit under section 77.16(1) are actual parties to a garnishment proceeding misreads the relevant statutory construct of Chapter 77. Because Villamorey was identified in Bank's answer as having an ownership interest in the Villamorey account at Bank, Villamorey was not required to file an affidavit before exercising its section 77.07(2) right to move to dissolve the writ. See Navon, Kopelman & O'Donnell, P.A. v. Synnex Informaion Techs. Inc., 720 So.2d 1167, 1168 (Fla. 4th DCA 1998) ("The statutory right to move to dissolve the writ is granted only to the defendant and any other person having an ownership interest in the property, as disclosed by the garnishee's answer . § 77.07(2). The statutes contemplate that other persons who claim an ownership interest ... in property in ... possession of the garnishee, may assert such claim by filing an affidavit under the provisions of section 77.16.").

Moreover, irrespective of which statutory procedure is invoked- section 77.07(2) or 77.16(1) -the result is the same: the person, by affirmatively seeking to dissolve the writ, has assented to the court's jurisdiction over it and is a party to the garnishment proceedings. See Babcock v. Whatmore, 707 So.2d 702, 705 (Fla. 1998) (concluding that a challenge to personal jurisdiction is waived by seeking affirmative relief); Boeykens v. Slocum, 356 So.2d 1341, 1342 (Fla. 3d DCA 1978) (affirming the denial of defendants' motion contesting the validity of a writ of garnishment where defendants, based on the alleged lack of personal jurisdiction over them, made a special appearance in the proceeding to file the motion; but finding that "[i]f ... the defendants ... elect to submit to the jurisdiction of the court and thereupon challenge the validity of the garnishment order ... they should be entitled to do so").

III. CONCLUSION

Villamorey is entitled to a trial on the issue of whether the money in the Villamorey account at Bank is subject to garnishment (i.e., whether the funds actually belong to Lisa); and, Villamorey can propound discovery and be compelled by the trial court to respond to BDT's discovery. We therefore affirm the trial court's discovery order on appeal, and remand for further proceedings.

Affirmed.

      We have appellate jurisdiction because the discovery order determines that the trial court has personal jurisdiction over Villamorey. See Fla. R. Civ. P. 9.130(a)(3)(C)(i); Hitt v. Homes & Land Brokers, Inc., 993 So.2d 1162, 1165 (Fla. 2d DCA 2008) ("[A] nonfinal order that determines jurisdiction over the person is appealable.").

      Bank also asserted that the funds in Villamorey's account had been pledged to Bank to secure a loan Bank had made to Villamorey.

      This provision states, in relevant part, as follows:
      In any case where a garnishee in good faith is in doubt as to whether any indebtedness or property is required by law to be included in the garnishee's answer or retained by it, the garnishee may include and retain the same, ... subject to disposition as provided in this chapter....
      § 77.06(3), Fla. Stat. (2017).

      Bank's motion to dismiss the writ was premised primarily on BDT's alleged failure to follow the procedural requisites of Chapter 77, Florida's Garnishment Act.

      This provision reads, in relevant part, as follows:
      Within 5 days after service of the garnishee's answer on the plaintiff ..., the plaintiff shall serve, by mail, the following documents: a copy of the garnishee's answer, and a notice advising the recipient that he or she must move to dissolve the writ of garnishment within 20 days after the date indicated on the certificate of service in the notice if any allegation in the plaintiff's motion for writ of garnishment is untrue....
      § 77.055, Fla. Stat. (2017).

      The sections reads, in relevant part, as follows:
      The defendant and any other person having an ownership interest in the property, as disclosed by the garnishee's answer, shall file and serve a motion to dissolve the garnishment within 20 days after the date indicated in the certificate of service on the defendant and such other person of the plaintiff's notice required by s. 77.055, stating that any allegation in plaintiff's motion for writ is untrue. On such motion this issue shall be tried, and if the allegation in plaintiff's motion which is denied is not proved to be true, the garnishment shall be dissolved....
      § 77.07(2), Fla. Stat. (2017).

      The trial court's order was without prejudice to Villamorey making specific objections to any of BDT's discovery requests. Thereafter, reserving its objection that it was not subject to the personal jurisdiction of the court, Villamorey responded to both BDT's request for admissions and BDT's request for production of documents. Villamorey fully responded to BDT's request for admissions; therefore, the request for admissions is not the subject of this appeal. As to BDT's request for production, Villamorey responded that certain documents were already in BDT's possession or did not exist at all. Villamorey objected to the remainder of the requests on various grounds, including that "to the extent such documents exist in the possession of Villamorey they are not located in this jurisdiction."

      We review, de novo , that portion of the trial court's discovery order determining that it had personal jurisdiction over Villamorey. See Am. Exp. Ins. Servs. Europe Ltd. v. Duvall, 972 So.2d 1035, 1038 (Fla. 3d DCA 2008) ("The standard of review is de novo whenever a case, such as this, arises from the trial court's decision on a motion to dismiss for lack of personal jurisdiction.").

      This statute reads, in relevant part, as follows:
      If any person other than defendant claims that ... the property in the ... possession of any garnishee is that person's property and shall make an affidavit to the effect, the court shall impanel a jury to determine the right of property between the claimant and plaintiff unless a jury is waived.
      § 77.16(1), Fla. Stat. (2017).

      We find it of no matter that Villamorey purported to preserve its jurisdictional claim in its motion to dissolve the writ of garnishment. Given that Villamorey has already agreed to participate in mediation and stated its intention to participate at trial, there can be no question that Villamorey has elected to submit itself to the jurisdiction of the trial court. Therefore, this matter may proceed further on this dissolution issue. Boeykens, 356 So.2d at 1342.

      We express no opinion on whether the Villamorey account is subject to garnishment by BDT.

      Such requirement is, of course, subject to any specific discovery objections by Villamorey.


text:
    Alvis MASIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1759
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018
    Alvis Masis, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

The defendant, Alvis Masis, appeals from the denial of his postconviction motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons that follow, we affirm.

On December 5, 1996, a warrant was issued for the arrest of the defendant for the murder of Erica Cano ("the victim"), a homicide committed that day. On March 4, 2009, a new arrest warrant was issued, along with a felony information, charging the defendant with the second degree murder of the victim. On July 21, 2009, the arrest warrant was served on the defendant when he returned to this country. The evidence established that the victim was found lying in the bathtub in a motel room with a wire hanger wrapped around her neck. The medical examiner determined that the cause of death was strangulation and the manner of death was a homicide. Upon his arrest, the defendant gave a taped statement wherein he admitted to becoming angry with the victim, or as he described it, he was "full of anger, of madness" when he realized the victim intended to leave him. The defendant explained that he and the victim argued and, at some point, he grabbed the victim by the neck, dragged her into the bathroom, reached for something (which turned out to be a wire hanger), grabbed the victim by the neck again, wrapped the wire hanger around the victim's neck, and threw the victim into the bathtub. When she did not move anymore, he left the motel. The defendant told the detective that he realized that he should have simply ended the relationship, and now he had to pay for his guilt.

On July 7, 2011, the defendant pled guilty to second degree murder, and pursuant to his negotiated plea, he was sentenced to twenty years in state prison with credit for time served. Since his plea, the defendant has attacked below, and continues to attack here, his sentence on the ground that the sentence imposed is illegal because he was sentenced under the 1995 sentencing guidelines scoresheet which was invalidated by the Florida Supreme Court in Heggs v. State, 759 So.2d 620 (Fla. 2000).

On October 23, 2012, the defendant filed a motion for postconviction relief under rule 3.850 claiming ineffective assistance of counsel, alleging, in part, that his trial counsel should have objected to the guidelines scoresheet used to calculate the permissible sentencing range in his case. In his motion, the defendant cited to Heggs and claimed that, had the correct scoresheet been used, he would not have been sentenced to more than 12.5 years in prison. Following the State's response, the trial court denied the motion, and the defendant did not appeal the denial of his 2012 rule 3.850 motion.

On March 7, 2014, the defendant raised the same challenge, but this time he claimed his sentence was illegal under rule 3.800(a). However, the defendant withdrew his motion after the State advised the defendant that if the trial court set aside the plea, the State was prepared to try the defendant for second degree murder, and if convicted, he could receive a life sentence.

On September 25, 2015, the defendant raised his scoresheet claim again in a subsequent rule 3.800(a) motion, claiming that his sentence was an illegal sentence because the guidelines scoresheet invalidated by Heggs was used to compute the permissible sentencing range relied on by the State when it negotiated the plea with the defendant and by the trial court when it accepted the negotiated plea. The trial court denied the motion, and this Court affirmed that ruling on appeal. Torres v. State, 199 So.3d 274 (Fla. 3d DCA 2016).

Undaunted, the defendant returned to the trial court in 2017 and filed another rule 3.800(a) motion attacking the legality of his sentence on the same grounds and additionally claiming that the amount of gain time he has received is incorrect and that he should be resentenced under a 1994 sentencing guidelines scoresheet. The trial court concluded that the defendant's sentence does not violate Heggs, is not illegal, and is successive, and therefore denied the motion.

ANALYSIS

An illegal sentence for purposes of a rule 3.800(a) motion is one that involves

a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. On the other hand, if it is possible under all the sentencing statutes-given a specific set of facts-to impose a particular sentence, then the sentence will not be illegal within rule 3.800(a) even though the judge erred in imposing it.

Carter v. State, 786 So.2d 1173, 1178 (Fla. 2001) (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999) (emphasis added in Carter ).

The homicide the defendant pled to in 2011 was committed in 1996, and thus a 1995 sentencing guidelines scoresheet was used to calculate the appropriate sentencing range absent the imposition of a departure sentence. However, in 2000, the Florida Supreme Court held in Heggs that the 1995 amendment to the sentencing guidelines was unconstitutional because the Legislature's enactment of Chapter 95-184, Laws of Florida, violated the single subject provision of Article III, section 6, of the Florida Constitution, and thus, persons affected by the amendment were entitled to be resentenced under the 1994 sentencing guidelines. The Heggs decision is, however, tempered by two requirements: (1) the Heggs claim must be raised within two years after the defendant's conviction and sentence became final, see Miller v. State, 829 So.2d 321, 322 (Fla. 5th DCA 2002) ; and (2) the length of the sentence must have been adversely affected by Heggs, see Gonzalez v. Crosby, 879 So.2d 1274, 1274-75 (Fla. 3d DCA 2004). And, of course, the rules regarding sentencing scoresheet errors also apply. The defendant's Heggs claim fails to meet any of the legal requirements of either a general sentencing scoresheet challenge or a Heggs sentencing scoresheet challenge.

I. Scoresheet errors generally

The Florida Supreme Court has clarified that when addressing scoresheet errors, the "could-have-been-imposed," "would-have-been-imposed" standards apply. See Brooks v. State, 969 So.2d 238, 241-44 (Fla. 2007). Under the "could-have-been-imposed" standard, if the trial court could have imposed the same sentence using the correct scoresheet, any error from reliance upon the incorrect scoresheet is harmless. Id. at 243. However, if, as the defendant claims in this case, the argument is over whether the trial court would have imposed the sentence if it had the benefit of the corrected scoresheet, the defendant must file his postconviction motion within the two-year limitation imposed by rule 3.850(b). Id. at 242-43. That is because

the class of errors that constitute an "illegal" sentence that can be raised for the first time in a post-conviction motion decades after a sentence becomes final is a narrower class of errors than those termed "fundamental" errors that can be raised on direct appeal even though unpreserved.

State v. Anderson, 905 So.2d 111, 118 (Fla. 2005) (citing to Maddox v. State, 760 So.2d 89, 100 n.8 (Fla. 2000) ).

A. Application of the "could-have-been-imposed" standard

The defendant's claim fails under the "could-have-been-imposed" standard because even if his conviction was recalculated under a 1994 sentencing guidelines scoresheet, the sentence that was imposed in 2011 would still fall within the permissible sentencing range under the 1994 sentencing guidelines. Under the 1995 sentencing guidelines, the trial court was required to impose a sentence between 20.5 and 34.16 years in state prison unless there existed a valid reason for the imposition of a departure (upward or downward) sentence. If the defendant's conviction was rescored under the 1994 sentencing guidelines, the trial court could impose a sentence anywhere from 17.16 to 21.67 years in state prison without being required to submit valid reasons to impose a departure sentence. Because the defendant was sentenced to twenty years in prison, his sentence falls within the permissible sentencing range under both sentencing schemes. Thus, any error in the use of the 1995 sentencing scoresheet constitutes harmless error. Brooks, 969 So.2d at 243.

B. Application of the "would-have-been-imposed" standard

"Would-have-been-imposed" challenges to scoresheet errors fall outside of the rule 3.800 illegal sentence rubric. Such challenges must be filed under rule 3.850. Anderson, 905 So.2d at 112 ; see also Brooks, 969 So.2d at 238 ("In State v. Anderson, we held that the would-have-been-imposed standard applies to postconviction motions filed under Florida Rule of Criminal Procedure 3.850."). "Such motions must be filed within two years after the judgment and sentence are final." Brooks, 969 So.2d at 238-39.

The defendant entered his guilty plea and was sentenced on July 7, 2011. Because he did not file a direct appeal, his conviction and sentence became final thirty days thereafter. See Saavedra v. State, 59 So.3d 191, 192 (Fla. 3d DCA 2011) ("The two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the judgment and sentence become final if no direct appeal is filed."). Because the defendant's conviction and sentence became final in August 2011, the defendant's claim in his 2017 motion for postconviction relief-that had the 1994 scoresheet been utilized, the State may have offered him a sentence less than the twenty-year sentence the State offered and he pled to-is clearly time-barred.

C. Application of Heggs

The defendant's Heggs claim raised in his 2017 motion for postconviction relief was also properly denied by the trial court because the defendant has failed to show that he was adversely affected by application of the 1995 sentencing guidelines. State v. Lemon, 825 So.2d 927, 929 (Fla. 2002). As stated in Heggs, 759 So.2d at 627 :

[O]nly those persons adversely affected by the amendments made by chapter 95-184 may rely on our decision here to obtain relief. Stated another way, in the sentencing guidelines context, we determine that if a person's sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that person shall not be entitled to relief under our decision here.

As already addressed, the defendant's twenty-year sentence could have been imposed without a departure under the 1994 sentencing guidelines.

CONCLUSION

The trial court properly denied the defendant's 2017 motion for postconviction relief based on the use of the 1995 sentencing guidelines scoresheet that was invalidated by the Florida Supreme Court in Heggs. The defendant's sentence was not illegal as his sentence reflects a guidelines sentence under both the 1995 and the 1994 sentencing guidelines. Because the sentence could have been imposed had a 1994 scoresheet been used, the defendant has not been adversely affected by Heggs and the use of the 1995 scoresheet is harmless error.

We decline to address the defendant's arguments regarding the calculation of his gain time as the defendant has failed to exhaust his administrative remedies with the Department of Corrections and if unsuccessful there, then his remedies in the circuit court. Therefore, that claim is not properly before us. See Stovall v. Cooper, 860 So.2d 5, 7 (Fla. 2d DCA 2003) ("When alleging a deprivation of gain time, prisoners who have exhausted all administrative channels must seek their remedy in circuit court by way of a petition for an extraordinary writ. If a prisoner's sentence would have expired had the Department properly awarded gain time, habeas corpus is the proper remedy. Otherwise a petition for a writ of mandamus is the proper method for review of the Department's denial of gain time.") (citations omitted).

Affirmed.

      Alvis Masis is also known as Alvin Masis Torres.