author: SCALES, J.

text:
    GEICO INDEMNITY COMPANY and GEICO General Insurance Company, Appellants, v. Ricardo PEREZ and Luz Perez, etc., Appellees.
    Nos. 3D17-2317 3D17-2407 & 3D17-2514
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018.
    Shutts & Bowen LLP, and Suzanne Youmans Labrit, Tampa, B.C.S., Frank A. Zacherl, Jocelyn C. Mroz and Jake Monk, Miami, for appellants.
    Silverstein, Silverstein & Silverstein, P.A., and Gregg A. Silverstein, Aventura; The Powell Law Firm, P.A., and Brett C. Powell, Palmetto Bay, for appellees.
    Before ROTHENBERG, C.J. and SUAREZ and SCALES, JJ.
   SCALES, J.

Appellants, defendants below, Geico Indemnity Company and Geico General Insurance Company (collectively, "GEICO") appeal four final judgments entered against GEICO after a jury determined that GEICO's insured, appellee and plaintiff below, Ricardo Perez, had been severely injured due to the negligence of an underinsured motorist. GEICO also appeals the trial court's interlocutory orders denying GEICO's summary judgment motions on the issue of whether Perez was entitled to uninsured/underinsured motorist ("UM") coverage under his automobile policy. While we affirm the trial court's denial of GEICO's summary judgment motions, we reverse for a new trial on UM coverage because the trial court erred by excluding probative, admissible evidence on the issue of whether Perez had made a knowing, written rejection of UM coverage.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

A. Perez's procurement of the policy

In April 2013, Perez called GEICO and spoke with a sales representative about purchasing automobile insurance for three vehicles that Perez owned. At the time of the call, Perez had a motorcycle policy with GEICO that included UM coverage limits of $10,000, but his vehicles were insured by another insurance carrier. There is no recording of this phone call and, understandably, the GEICO sales representative has no independent recollection of the call.

GEICO's sales representative, though, testified that the normal practice of GEICO is to discuss, explain and recommend that the customer purchase UM coverage, at which point the customer must inform GEICO whether the customer wants to purchase or reject UM coverage. If the customer declines UM coverage, the customer is told the customer must sign a UM form rejecting UM coverage by midnight, or GEICO will unilaterally add UM coverage to the policy. Perez testified that the sales representative never discussed UM coverage with him on this April 2013 phone call.

During the phone call, Perez provided GEICO with his wife's email address. At the conclusion of the call, a unique and secure personal identification number ("PIN") was generated by GEICO and a "welcome email" was sent to Mrs. Perez's email address. This welcome email provided that Perez could create an online account using the unique and secure PIN.

Later, GEICO's welcome email was forwarded from Mrs. Perez's email address to the Perezes' daughter's email address. At 7:52 p.m., an online GEICO account was created using the unique and secure PIN, and using the daughter's personal information as answers to two security questions. Minutes later, UM coverage was rejected for Perez's automobile policy via an electronic signature on GEICO's UM form, which was accessed by clicking through a series of webpages. The "review and sign" screen contained a blue hyperlink to an already completed UM form, which rejected UM coverage. This link, however, was never opened.

At 8:06 p.m., the online user viewed the coverage summary and logged off. At 8:08 p.m., an email was sent from the daughter's email address to Mrs. Perez's email address containing the coverage summary for Perez's automobile policy, which reflected no UM coverage. The next day, GEICO mailed the policy to Perez, which reflected liability coverage limits of $50,000 on each of the three insured vehicles, but no UM coverage. It is undisputed that Perez paid no premium for UM coverage on his automobile policy. Six months later, Perez renewed his automobile policy on the same terms.

B. Perez's accident and the instant UM lawsuit

On November 29, 2013, Perez was severely injured while operating his motorcycle when he collided with a Jeep driven by an underinsured driver. While GEICO offered Perez the full $10,000 limit of UM coverage under Perez's motorcycle policy, Perez declined GEICO's offer, and instead sought UM coverage under his automobile policy. Specifically, Perez sought UM coverage limits in the amount of $150,000, i.e., the full stacked UM benefit had UM coverage been provided under the automobile policy. Maintaining that Perez had rejected UM coverage when he procured his automobile policy, GEICO denied Perez's UM claim on his automobile policy, and, in July 2015, the Perezes brought the instant action against GEICO and the underinsured driver.

In April and May 2016, GEICO filed two summary judgment motions, arguing that (i) Perez's automobile policy did not provide UM coverage to Perez while riding his motorcycle, and, alternately (ii) under section 627.727(1) of the Florida statutes (2013), GEICO was entitled to a conclusive presumption that Perez had rejected UM coverage under this automobile policy by virtue of the electronically signed UM rejection form. Perez filed a cross-motion for summary judgment, arguing, among other things, that (i) GEICO's online process for rejecting UM coverage was invalid because it did not comply with the requirements of section 627.727(1), and (ii) GEICO was not entitled to section 627.727(1)'s conclusive presumption that Perez had rejected UM coverage because GEICO's UM rejection form failed to comply with the statute.

On June 3, 2016, the trial court entered three separate summary judgment orders: two summarily denying GEICO's motions for summary judgment, and one granting, in part, Perez's cross-motion for summary judgment. In its order on Perez's cross-motion, the trial court held that GEICO's UM rejection form "violates Florida statutory law" and that the "esignature process utilized by GEICO violates Florida Statutes, is ambiguous and did not provide proper notice to" Perez.

Though not set forth in the lower court's summary judgment orders, the hearing transcript reflects that the trial court limited the UM coverage issue for trial to whether Perez had made a knowing, oral rejection of UM coverage. In so ruling, the trial court rejected GEICO's argument that, even if GEICO was not entitled to section 627.727(1)'s conclusive presumption so as to prevail at the summary judgment stage, GEICO could nevertheless introduce the UM rejection form at trial to prove that Perez had knowingly rejected UM coverage in writing.

The case was set for trial, and the trial court bifurcated the trial into two phases. In the first phase, the issue for the jury was whether Perez had made a knowing, oral rejection of UM coverage; in the second phase, the issue for the jury would be the tort liability of the underinsured driver and Perez's damages.

C. Pre-trial evidentiary rulings

Prior to the phase one trial on the issue of whether Perez had made a knowing, oral rejection of UM coverage, Perez filed several motions in limine, seeking to limit the introduction of evidence to the April 2013 phone call between Perez and the GEICO sales representative. Specifically, Perez sought to exclude all evidence with respect to the electronically signed UM rejection form, including: the email exchanges between Mrs. Perez's email address and the daughter's email address; the creation of an online GEICO account using a unique and secure PIN, and use of the daughter's personal information as answers to two security questions; and the signed UM rejection form itself. Perez also sought to preclude GEICO from eliciting any testimony or introducing any evidence regarding matters outside Perez's April 2013 phone call to GEICO, including Perez's dealings with prior insurers in procuring automobile insurance and Perez's dealings with GEICO in procuring his motorcycle policy. In particular, Perez sought to preclude GEICO from eliciting any testimony or introducing any evidence regarding Perez's understanding of UM coverage and "regarding whether there were charges or payments concerning uninsured motorist coverage" in these other dealings. The lower court agreed with Perez and precluded GEICO from introducing any of this evidence. In addition, the lower court also precluded GEICO from introducing evidence that, following the April 2013 phone call, GEICO mailed Perez a copy of his automobile policy and, at Perez's subsequent request, GEICO also mailed a copy of the automobile policy's declaration page to Perez, both of which reflected no UM coverage.

D. The trial, verdicts, judgments and the instant appeal

In June 2016, after a three-day trial on phase one, the jury found in favor of Perez, answering "No" to the following question: "Did Plaintiff, Ricardo Perez, the named insured orally waive the statutory requirement of a written rejection by knowingly rejecting uninsured motorist coverage?" The trial court entered a final judgment in favor of the Perezes, concluding that the plaintiffs were entitled to stacked UM coverage under Perez's automobile policy (appellate case number 3D17-2317). Pursuant to the parties' stipulation, in August 2016, the trial court entered a final order of dismissal with prejudice as to the underinsured driver.

In May 2017, following another three-day trial on phase two, the jury found that the underinsured driver was one hundred percent at fault for the accident, awarding the Perezes $1,778,000 in damages. The trial court then entered a final judgment against GEICO in the amount of $150,000, the limit of stacked UM coverage under Perez's automobile policy (appellate case number 3D-2317). The trial court also entered a $17,122.29 judgment against GEICO for the taxable costs the Perezes incurred in the phase one trial (appellate case number 3D17-2407), and a $15,820.10 judgment against GEICO for the taxable costs the Perezes incurred in the phase two trial (appellate case number 3D17-2514).

GEICO timely appeals all four judgments as well as two of the trial court's three June 3, 2016 summary judgment orders (i.e., the two orders denying GEICO's summary judgment motions). GEICO also appeals certain evidentiary rulings made in both phases of the trial. We consolidated the appeals, and, as explained in more detail below, we affirm in part and reverse in part.

II. STANDARD OF REVIEW

We employ several different standards of review in this case. We review de novo the trial court's denial of GEICO's summary judgment motions. Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., 176 So.3d 305, 308 (Fla. 3d DCA 2015) ("When the trial court resolves an issue by a grant of summary judgment, our review is ... de novo."); see also Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla. 2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review."); Roberts v. Fla. Lawyers Mut. Ins. Co., 839 So.2d 843, 845 (Fla. 4th DCA 2003) ("The construction of an insurance policy to identify the scope of coverage is a question of law subject to de novo review on appeal."). We review the trial court's pre-trial evidentiary rulings under an abuse of discretion standard, see Merco Group at Akoya, Inc. v. Gen. Computer Servs., Inc., 237 So.3d 1052, 1056 (Fla. 3d DCA 2017), except we review de novo such evidentiary rulings to the extent they present pure questions of law. See Cruz v. State, 189 So.3d 822, 828 (Fla. 4th DCA 2015).

III. ANALYSIS

A. The trial court's orders denying GEICO's summary judgment motions

GEICO argues that the trial court erred by denying its motions for summary judgment. GEICO's argument is three-fold.

1. Perez's motorcycle is not a scheduled vehicle under Perez's automobile policy, but is covered by a separate GEICO motorcycle policy

First, GEICO argues that, as a matter of law, the automobile policy procured by Perez in April 2013 does not provide UM coverage to Perez because the motorcycle Perez was operating at the time of the accident was not a scheduled vehicle under the automobile policy.

Specifically, GEICO points to the definitions and exclusions for "Section I - Liability" and "Section II - Personal Injury Protection" in the subject automobile policy, as well as the Outline of Coverage page, all of which have language stating that there is no coverage where the insured is occupying a vehicle that is not specifically insured under the policy. While such coverage may indeed be excluded for bodily injury and liability, this has no bearing as to UM coverage.

In Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla. 1971), the Florida Supreme Court made it clear that whenever an insured is injured by a negligent uninsured/underinsured motorist, the insured has UM coverage under an automobile policy's UM provisions. "They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy vehicles ... owned by but which are not 'insured automobiles' of named insured. " Id. at 233 (emphasis added); see also Coleman v. Fla. Ins. Guar. Ass'n, Inc., 517 So.2d 686, 689 (Fla. 1988) (same); Divine v. Prudential Prop. & Cas. Ins. Co., 614 So.2d 683, 683 (Fla. 5th DCA 1993) (concluding that an insurer cannot avoid the rule in Mullis simply by altering the definition of who is "insured" under the policy). Put another way, where an insured is injured while occupying an owned vehicle that is not listed on the policy, the insured is "entitled to uninsured motorist coverage even if he would not have been entitled to liability coverage had the accident in question been his fault." Omar v. Allstate Ins. Co., 632 So.2d 214, 215 (Fla. 5th DCA 1994).

GEICO further claims that it would be inequitable to allow Perez to recover UM benefits under the instant automobile policy because Perez separately purchased a motorcycle policy that provides UM coverage for the motorcycle he was riding when the accident occurred. GEICO claims that Perez must elect to receive the UM benefits under his motorcycle policy. GEICO is wrong.

Omar involved nearly the same factual circumstances as this case. In that case, Omar was injured while driving a vehicle that was not listed under the Allstate automobile insurance policies that covered Omar's other vehicles. Though the subject vehicle was covered under a different policy that Omar had purchased with a different insurer, which provided UM benefits, Omar made a UM claim against the Allstate policies. The Fifth District found that Mullis allowed for a UM claim to be made against the Allstate policies, even though Omar had UM coverage on the subject vehicle through a different insurer. Omar, 632 So.2d at 215-16.

For these reasons, GEICO was not entitled to entry of summary judgment on this first ground.

2. The UM rejection form contains a section 627.727(9)(d) exclusion from UM coverage for non-scheduled vehicles

Next, GEICO argues, for the first time on appeal, that Perez's automobile policy does not provide UM coverage for the accident because of an exclusion that is contained within the UM rejection form that was electronically signed when the automobile policy was procured. The form provides, in relevant part:

(Note that there is no coverage under this policy for a person who is injured while occupying a motor vehicle or motorcycle owned by you or a family member who resides with you which is not covered under the liability coverages section of this policy.)

This argument is not well taken for several reasons.

As an initial matter, GEICO waived this issue because it never made any argument with respect to an express UM coverage exclusion for unscheduled vehicles in the lower court. No such argument appears in GEICO's motions for summary judgment. Nor was it argued at the summary judgment hearing. Quite the contrary, at the summary judgment hearing, GEICO argued that, because Perez could only purchase from GEICO a motorcycle policy to cover his motorcycle, "this is not an exclusion scenario ... where there is coverage but for an exclusion." Because GEICO did not raise this issue below, it was waived. See Omar, 632 So.2d at 216 ("There is no mention of an informed, knowing rejection of uninsured motorist coverage [pursuant to section 627.727(9)(d) of the Florida Statutes ] in Allstate's motion and amended motion for summary judgment, nor in its memorandum of law in support of its motions and the pretrial compliance statement. Thus, it appears that this issue was never presented to the trial court. Therefore, this ground cannot support the summary judgment."); Hartford Accident & Indem. Co. v. Coastline Diesel, Inc., 252 So.2d 836, 837 (Fla. 4th DCA 1971) ("The insurer claims that it was not liable for the loss in question because of a specific exclusionary clause in the insurance contract. This basis for relief ... was not raised by appellant in the trial court.... We hold that the effect of the exclusionary clause will not be considered for the first time on appeal.").

Moreover, even if this issue had been properly preserved, GEICO did not present sufficient evidence below that would entitle it to entry of summary judgment. Omar, 632 So.2d at 216-17. While section 627.727(9)(d) of the Florida Statutes (2013) does allow an insurer to offer automobile policies that exclude UM coverage for vehicles that are not listed on the policy, the record is (obviously) devoid of a policy containing the language approved by the Office of Insurance Regulation that the statute requires for such a policy to effectively exclude UM coverage for non-scheduled vehicles. Indeed, Perez's automobile policy contained no UM coverage at all, and GEICO did not proffer a copy of the automobile policy that Perez would have been issued had UM coverage been provided, i.e., presumably containing the statutorily authorized language excluding non-scheduled vehicles from UM coverage.

For these reasons, GEICO was not entitled to entry of summary judgment on this second ground.

3. The electronically signed UM rejection form entitles GEICO to the section 627.727(1) conclusive presumption that Perez rejected UM coverage

Finally, GEICO argues that the Perezes' daughter electronically signed the UM rejection form online on behalf of her father, thus entitling GEICO to the conclusive statutory presumption that Perez rejected UM coverage in the automobile policy.

Section 627.727 provides, in relevant part:

[T]he coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.... The rejection ... shall be made on a form approved by the office. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: "You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully." If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.....

§ 627.727(1), Fla. Stat. (2013) (emphasis added).

At the summary judgment hearing, the trial court found that even though the instant UM rejection form (identified as M-9-FL (11-96) ) had been approved by Florida's Department of Insurance Regulation, the form failed to comply with section 627.727(1) because the form failed to track the precise language of the statute. Specifically, the trial court noted that the bolded 12-point type of GEICO's UM form included the language "BODILY INJURY LIMITS ," instead of "BODILY INJURY LIABILITY LIMITS ," and the language "PLEASE READ IT CAREFULLY " instead of "PLEASE READ CAREFULLY ." We conclude that the trial court was correct as a matter of law.

Section 627.727(1) sets forth four independent requirements that a UM rejection form must meet before the conclusive presumption applies:

[A]n uninsured motorist rejection form must: (1) be approved by the Florida Insurance Commissioner; (2) explain what uninsured motorist coverage is; (3) discuss the limits that are applicable unless coverage is rejected; and (4) include the following disclaimer as a heading on the form in 12-point bold: "You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully."

Orion Ins. Co. v. Cox, 681 So.2d 760, 761 (Fla. 4th DCA 1996) ; § 627.727(1), Fla. Stat. (2013). Here, GEICO's UM rejection form complied only with the first three requirements. That the Department approved the form did not obviate section 627.727(1)'s requirement that the disclaimer contain specific language. See Doyle v. Dep't of Bus. Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001) (recognizing that a court need not defer to an agency's construction of a statute that it is charged with enforcing "if the language of the statute is clear and therefore not subject to construction").

We realize that this is a harsh result given that, in all material respects, GEICO's UM rejection form complies with the statute, and GEICO has used this Department-approved form over an extended period of time. Nevertheless, section 627.727(1) is unambiguous and unequivocally provides that the conclusive presumption applies only if the form includes the specific, quoted language of the statute. GEICO's form does not contain this language and, as appealing as it would be to make a judicial exception to what the legislature has expressly provided, we are powerless to vary the plain and unambiguous language of the statute. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ("[C]ourts of this state are 'without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.' " (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) ) ).

For these reasons, GEICO was not entitled to entry of summary judgment on this third ground.

B. The trial court's evidentiary rulings during the phase one trial on Perez's oral, knowing rejection of UM coverage and the verdict form

Simply because GEICO was not entitled to a conclusive statutory presumption that Perez had rejected UM coverage, however, did not preclude GEICO from otherwise proving that Perez knowingly rejected UM coverage when he procured the subject automobile policy. Muhammed v. Allstate Ins. Co., 582 So.2d 768, 769 (Fla. 3d DCA 1991) ("[T]he mere fact that the [UM rejection] form actually utilized arguendo departs from the one statutorily provided by section 627.727, Florida Statutes (Supp. 1984) does not preclude a carrier from otherwise demonstrating a knowing rejection of uninsured motorist coverage."); see also Teachers Ins. Co. v. Bollman, 617 So.2d 817, 818 (Fla. 2d DCA 1993) ("The fact that Mrs. Bollman's written rejection was not on a statutorily prescribed form does not undermine its effect, i.e., 'demonstrating a knowing rejection of uninsured motorist coverage.' " (quoting Muhammad, 582 So.2d at 769 ) ). To this end, in the first phase of the trial, GEICO sought to introduce evidence to support its theory that Perez had knowingly rejected UM coverage in writing ; but, the trial court narrowed the phase one trial to whether Perez had made a knowing, oral rejection of UM coverage. Indeed, via the jury instructions and the verdict form, the trial court actually limited the issue to whether Perez had "orally waive[d] the statutory requirement of a written rejection by knowingly rejecting uninsured motorist coverage[.]" With the triable issue phrased in this manner, the trial court, through a series of pre-trial evidentiary rulings, essentially limited all of the evidence introduced during the phase one trial to the April 2013 phone call between Perez and the GEICO

sales representative.

The trial court appears to have based its evidentiary rulings on this Court's prior citation to case law finding that it is "permissible for an insurer to 'avoid the statutorily required [UM] coverage if it proves that the named insured orally waived the statutory requirement of a written rejection by knowingly selecting a lesser limit or by knowingly rejecting UM coverage' " Union Am. Ins. Co. v. Cabrera, 721 So.2d 313, 314 (Fla. 3d DCA 1998) (quoting Chmieloski v. Nat'l Union Fire Ins. Co., 563 So.2d 164, 166 (Fla. 2d DCA 1990) ). Indeed, consistent with the jury instructions, the verdict form given in this case asked the jury, "Did Plaintiff, Ricardo Perez, the named insured orally waive the statutory requirement of a written rejection by knowingly rejecting uninsured motorist coverage?"

Oral waiver of the statutory requirement of a written rejection of UM coverage is, of course, a more nuanced question than a knowing, oral rejection of UM coverage. Our Cabrera case is not entirely clear on this point, particularly as it relates as to an insurer's ability to demonstrate a knowing rejection of UM coverage solely through evidence of an insured's oral rejection of UM coverage at the time the policy is procured.

Fortunately, in this case, we need not reach the validity of either an insured's knowing, oral rejection of UM coverage, or an insured's oral waiver of section 627.727(1)'s written UM rejection requirement. GEICO has never maintained that Perez orally waived the statutory requirement that UM coverage be rejected in writing. It has always been GEICO's position that Perez made a knowing, written rejection of UM coverage after Perez told GEICO's sales representative that he did not want UM coverage during the April 2013 phone call. Indeed, at oral argument, GEICO stated the issue for the jury in this case should be as stated in section 627.727(1), i.e., whether Perez made a written rejection of coverage on behalf of all insureds under the policy. This is a valid theory of defense which GEICO was entitled to support at trial with much of the evidence that the trial court excluded. See Teachers Ins. Co., 617 So.2d at 818 ; Muhammad, 582 So.2d at 769.

Evidence that an insured orally rejected UM coverage at the time an automobile insurance policy was procured is relevant to support an insurer's claim that the insured thereafter signed a UM rejection form, even if the insurer cannot produce the written rejection at trial. See Cabrera, 721 So.2d at 314 ("Although the document itself could not be produced, the insurer adduced testimony at trial that there had been both written and oral rejections of UM coverage."). The same holds true here, even though the instant UM rejection form was insufficient to afford GEICO the conclusive presumption of UM rejection provided in section 627.727(1). Evidence that Perez orally rejected UM coverage during the April 2013 phone call with GEICO's sales representative is relevant to support GEICO's claim that Perez's daughter, on behalf of Perez, electronically signed the instant UM rejection form.

GEICO should be allowed to present to the jury the entire panoply of admissible, relevant evidence to establish its theory that Perez, through his daughter, made a written rejection of UM coverage. This includes evidence with respect to: (i) Perez's understanding of, and familiarity with, UM coverage given his prior dealings with his prior automobile insurer and also with GEICO; (ii) the April 2013 phone call that initiated procurement of the subject automobile policy; (iii) GEICO's practices regarding how UM coverage is normally handled when UM coverage is rejected telephonically; (iv) the steps taken leading up to the UM rejection form being electronically signed with Perez's electronic signature (e.g., the email exchanges between Mrs. Perez's email address and the daughter's email address, the creation of an online GEICO account, the signing of the UM rejection form, and Perez's understanding thereto); (v) the electronically signed UM rejection form; and (vi) GEICO's mailing Perez both a copy of his automobile policy and, at Perez's subsequent request, a copy of the policy's declaration page.

GEICO was also entitled to have the lower court instruct the jury on its theory of the case consistent with the evidence that it presented at trial. See LaTorre By and Through LaTorre v. First Baptist Church of Ojus, Inc., 498 So.2d 455, 456 (Fla. 3d DCA 1986) ("It is well settled that a party is entitled to have the court instruct the jury on his theory of the case where the evidence, even though controverted, supports the theory."). This includes instructing the jury on GEICO's agency theory that the daughter, who was listed as an additional driver on the subject policy, was the online user that electronically signed the UM rejection form on behalf of Perez. See Mercury Ins. Co. of Fla. v. Sherwin, 982 So.2d 1266, 1267 (Fla. 4th DCA 2008) ("The court determined that Louis could not reject coverage where the named insured under the policy was his wife, Lisa. We reverse and hold that where the husband acted on behalf of his wife in securing the insurance policy, his rejection of stacked uninsured motorist coverage was a valid rejection of coverage."). GEICO is entitled to have the jury determine the issue of whether Perez's daughter was acting on Perez's behalf when securing the policy and rejecting UM coverage.

We conclude that GEICO is entitled to a new trial because the trial court erred (i) in not allowing GEICO to introduce probative, admissible evidence to support its valid theory of defense that Perez had knowingly rejected UM coverage in writing, and (ii) in not instructing the jury accordingly.

IV. CONCLUSION

We affirm the trial court's denial of GEICO's summary judgment motions. Because the jury was precluded from hearing relevant evidence on the issue of whether Perez made a knowing, written rejection of UM coverage, though, we reverse the four final judgments on appeal, and remand for a new trial on phase one. The issue for trial on remand will be whether Perez made a knowing, written rejection of UM coverage when procuring the GEICO automobile policy.

Affirmed in part, reversed in part, and remanded for a new trial.

      As discussed in more detail, infra , the trial court conducted a bifurcated jury trial. The issue in phase one of the trial was whether GEICO was obligated to provide uninsured/underinsured motorist coverage to Perez, while the issues in phase two were liability for the accident and damages. GEICO appeals the two final judgments entered against it after the jury returned a verdict in favor of Perez at both trial phases, as well as the two cost judgments entered against it with respect thereto.

      The blue hyperlink was titled "Uninsured Motorist Option Form - Document M9FL(11-96)."

      "[T]he payment of a single premium for UM coverage on one vehicle secures liability insurance for the insured regardless of what vehicle the insured is driving at that the time of an accident with an uninsured motorist; and ... the payment of an additional premium for UM coverage on a second vehicle provides additional UM coverage that supplements the insurance already available under a single coverage, which can be added together with the single coverage to provide a higher payout to the injured insured." Swan v. State Farm Mut. Auto. Ins. Co., 60 So.3d 514, 516 (Fla. 3d DCA 2011) (emphasis omitted). This adding together (or aggregating) of UM policy limits is known as "stacking." Id. Here, had Perez paid a separate premium for UM coverage on each of his three vehicles at a limit equal to the bodily injury liability limits of the policy ($50,000), then Perez would be entitled to "stack" the UM policy limits of the three vehicles ($50,000 each) when making a claim for UM benefits ($150,000). Perez paid no such UM premiums on his automobile policy. Nevertheless, as will be discussed infra , section 627.727(1) of the Florida Statutes requires that the insured receive stacked UM coverage in an automobile policy unless the insured either rejects UM coverage in writing or elects to accept non-stacked UM coverage. Swan, 60 So.3d at 518.

      The trial court rejected GEICO's request that the verdict form read: "Did the plaintiff, Ricardo Perez, or someone acting on his behalf knowingly reject stacked and uninsured motorist coverage in connection with this April 15, 2013 purchase of automobile insurance from GEICO General Insurance Company." To this end, the trial court also declined to instruct the jury on agency - based on GEICO's theory that the daughter had signed the UM rejection on behalf of Perez - because the daughter was not a named insured on the automobile policy.

      We affirm, without further discussion, all evidentiary rulings made by the trial court during phase two of the trial.

      In 1987, in response to the Mullis case, the Florida legislature amended Florida's UM statute to allow insurers issuing motor vehicle liability insurance policies to exclude UM coverage for injuries to insureds occupying a vehicle for which no UM coverage was purchased. See § 627.727(9)(d), Fla. Stat. (2013) ; GEICO v. Douglas, 654 So.2d 118, 120 (Fla. 1995). As discussed in more detail in Section III. A. 2., infra , however, the statute's authorization is unavailing to GEICO under the particular circumstances of this case.

      GEICO also argued (incorrectly, as discussed infra ) that an insurer cannot write UM coverage out of an automobile policy for non-scheduled vehicles.

      GEICO relies upon Larusso v. Garner, 888 So.2d 712 (Fla. 4th DCA 2004) and Mangual v. State Farm Mutual Automobile Insurance Co., 719 So.2d 981 (Fla. 5th DCA 1998) to support its argument that GEICO was entitled to rely upon the UM rejection form solely because the Department had approved it. Those cases, however, concerned application of section 627.727(9) which, unlike section 627.727(1), does not set forth any specific disclaimer language that a UM rejection form must contain with respect to the various limitations on UM coverage that the insurer may impose in an automobile policy. Therefore, we find that Larusso and Mangual have no application here.

      The trial court also found that GEICO's online click-through process of having the insured electronically sign the UM form without having to first open the blue hyperlink rendered the esignature process ambiguous, and did not provide the required notice under section 627.727(1). Given our determination that GEICO is not entitled to the conclusive presumption because the instant UM form failed to track the notice language set forth in section 627.727(1), we need not, and therefore do not, reach this issue.

      See section I. C ., supra .

      Perez's prior automobile policy with his prior insurer did not contain UM coverage. In April 2013, the prior insurer notified Perez that, because Perez had requested a change in the bodily injury liability limits of the policy, stacked UM coverage was added to the policy. The addition of stacked UM coverage necessarily resulted in an increase in the policy premium. GEICO maintains that these events prompted Perez to then call GEICO about switching his policy to GEICO. The trial court improperly excluded all of this evidence.

      During the questioning of Perez, a juror submitted the following question: "Did the plaintiff receive his written policy by regular mail?" The trial court found that this question was not relevant and that to allow the document to come in would be misleading and confusing to the jury. As stated herein, we disagree.

      Because we affirm the trial court's evidentiary rulings in phase two of the trial, if on remand, the jury returns a verdict for Perez in the new trial on phase one, the trial court simply may reenter the phase two judgments against GEICO, after recalculating costs.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Luis Antonio Nieto VILLAMIZAR, etc., Appellant, v. LUNA CAPITAL PARTNERS, LLC, etc., et al., Appellees.
    No. 3D18-112
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    Phillip T. Crenshaw (West Palm Beach); Glass Law Office and Lisa Paige Glass (Boca Raton), for appellant.
    Hinshaw & Culbertson and John C. Lukacs and Maureen G. Pearcy, Coral Gables, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LOGUE, JJ.
   SALTER, J.

Judgment creditor Luis Antonio Nieto Villamizar ("Mr. Nieto") appeals a final summary judgment entered against him and in favor of four entities impleaded by Mr. Nieto in proceedings supplementary. Mr. Nieto impleaded the entities as the purchaser of, and recipients of sales proceeds produced by, the judgment debtor's property sold before Mr. Nieto's judgment against the judgment debtor was entered. Based on the analysis which follows, we affirm the final judgment.

Lis Pendens, Sale, and Judgment

Mr. Nieto commenced a lawsuit in 2012 to enforce a series of eight unsecured promissory notes against Luna Developments Group, LLC ("Luna Developments"), and Bal Harbour Quarzo, LLC ("Bal Harbour Quarzo"), defendants (and, ultimately, judgment debtors). Initially, Mr. Nieto's complaint to enforce the notes included equitable lien claims allegedly encumbering (1) 145 Broward County condominium units (in four buildings) owned by Luna Developments, and (2) a hotel and two apartment buildings in Miami-Dade County owned by Bal Harbour Quarzo. Mr. Nieto filed and recorded notices of lis pendens over all of those properties.

The trial court granted a motion to dismiss the equitable liens and to discharge the notices of lis pendens. Mr. Nieto did not seek review of the non-final order discharging the recorded notices of lis pendens. The third amended complaint included eight counts for collection of the eight individual promissory notes; it did not seek enforcement against any of the properties of Luna Developments or Bal Harbor Quarzo.

Following a non-jury trial, Mr. Nieto obtained judgments on two of the eight notes against Luna Developments, but the trial court dismissed the six counts involving the other six promissory notes. Mr. Nieto successfully appealed the dismissal, and the case returned to the trial court in 2016; Villamizar, cited in note 1 above.

After a non-jury trial in January 2017, Mr. Nieto obtained six amended final judgments against Bal Harbour Quarzo (three of the promissory notes) and Luna Developments (three of the remaining notes). The judgments against Bal Harbour Quarzo were satisfied in July 2017 from proceeds of the sale of property owned by that entity, leaving uncollected judgments of approximately $1.2 million against Luna Developments.

Proceedings Supplementary

In May 2017, based on documents obtained in efforts to execute on the judgments against Luna Developments, Mr. Nieto filed his complaint in proceedings supplementary against the four appellees: Luna Capital Partners, LLC ("Luna Capital"), Silverpeak Real Estate Finance, LLC ("Silverpeak"), SPREF WH II, LLC ("SPREF"), and Wilmington Trust, National Association, as Trustee ("Wilmington Trust").

Luna Capital purchased 145 condominium units from Luna Developments Group for $13,175,000.00 on July 9, 2015 (during the pendency of Mr. Nieto's lawsuit on the unsecured promissory notes, but before trial was concluded and judgments were entered on any of the notes). Silverpeak held a July 9, 2015, mortgage and other collateral regarding the condominium units purchased by Luna Capital. SPREF allegedly received an assignment of the Silverpeak mortgage and collateral in December 2015. Finally, Wilmington Trust, Trustee, received a further assignment from SPREF of the same mortgage and collateral that were initially granted by Luna Capital in its July 2015 purchase.

Mr. Nieto's 2017 complaint in proceedings supplementary alleged that the July 2015 sale by Luna Developments-which, according to the record, had no relationship to Luna Capital other than the relationship of buyer and seller-was a "unique and fraudulent process to avoid obligations," accomplishing the conveyance of Luna Developments' only remaining assets to Luna Capital and the application of any net proceeds of sale to creditors other than Mr. Nieto (though Mr. Nieto was not then a judgment creditor). The four impleaded supplemental defendants, appellees here, moved for final summary judgment on the basis of their affirmative defenses that the 2015 sale was in good faith and for reasonably equivalent value.

The trial court granted the impleaded defendants' motion, entered final summary judgment, and this appeal followed.

Analysis

We review the final summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We consider whether the pleadings and summary judgment evidence before the trial court establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. at 131 ; Fla. R. Civ. P. 1.510(c).

Mr. Nieto argues here that two genuine issues of material fact precluded the entry of summary judgment. First, he contends that the 2015 sale by Luna Developments to Luna Capital "was permeated with indications that third parties (including Nieto) had an interest in the [145 condominium units], and that these indications gave rise to a duty for [Luna Capital] to inquire and to an imputation of implied actual notice of what that inquiry would have revealed-dozens of claims and judgments totaling tens of millions of dollars in liabilities."

Second, Mr. Nieto maintains that Luna Capital did not purchase the properties from Luna Developments for reasonably equivalent value "because, in comparing the original sale in 2006 to the current sale in 2015, even with inflation of approximately 1.64% per year, [Luna Capital] paid approximately 11% less per unit in 2015 than [Luna Developments] paid in 2006, and thus the prices are too close to constitute an arms-length transaction and to be for reasonably equivalent value."

Mr. Nieto also argues that he was not permitted to complete outstanding discovery, such that "the trial court should have denied the Motion for Summary Judgment as not being ripe for adjudication." We address these arguments in order.

"Imputation of Implied Actual Notice"

The fact that a purchaser unrelated to the seller is aware that the seller owes money to others is not the harbinger of an impending fraud. Sellers of property often sell so that they can pay some or all of their creditors. Luna Capital's awareness that Mr. Nieto was suing the seller, Luna Developments, on unsecured indebtedness that had not yet been reduced to judgment, did not create a legal duty on Luna Capital's part. This is so because there is nothing in this record to suggest that Luna Capital was partially or totally controlled by Luna Developments at the time of the sale, or that these entities were under common control, or that they were anything other than a buyer and seller dealing at arm's length.

Proceedings supplementary allow the judgment creditor to seek execution on "any property of the judgment debtor not exempt from execution in the hands of any person," or "any property, debt, or other obligation due to the judgment debtor which may be applied toward the satisfaction of the judgment." § 56.29(1), Fla. Stat. (2017). When Mr. Nieto filed his "Complaint in Proceedings Supplementary" in May 2017, the 145 condominium units sold by Luna Developments in July 2015 were not "in the hands of" Luna Developments. Nor did Luna Capital, on this record, hold any property of Luna Developments or owe any money to Luna Developments that might be applied toward the satisfaction of Mr. Nieto's judgments.

Luna Capital's alleged knowledge of Luna Development's debts did not impose a legal duty on Luna Capital's part to assure that specific unsecured creditors of Luna Development were paid. Luna Capital naturally assured that all liens against the condominium units were paid from the proceeds and satisfied of record, but payment of an unsecured claim in a lawsuit pending trial is not such a matter.

Mr. Nieto's counsel and expert witness (a real estate transactional attorney) filed affidavits regarding Luna Developments' "Owner's Affidavit" and Luna Capital's duties in connection with the July 2015 closing. Mr. Nieto's expert witness affidavit correctly recited that Luna Developments' written representations included notice of "suits, actions or proceedings...with respect to the Real Property," as well as "judgments, claims, disputes, demands, or other matters pending against [Luna Developments] that could attach to the Property."

But Mr. Nieto's claims were on unsecured promissory notes and (following dismissal of the equitable lien claims) did not assert claims against the condominium units sold to Luna Capital. The expert's review of title documents argues that the notices of lis pendens ("even if subsequently discharged") should have led Luna Capital to discover the promissory note lawsuit, "which, if successful, would have meant a judgment that would become a lien on the property of Defendant, Luna Developments." This is no more true for the promissory note lawsuit than it would be for a hypothetical pending personal injury lawsuit against Luna Developments-"which, if successful, would have meant a judgment that would become a lien on the property."

Section 48.23, Florida Statutes (2017), governs notices of lis pendens. A notice is only effectual if it describes the affected property, is recorded in the official records where the property is located, "and has not expired or been withdrawn or discharged." § 48.23(1)(a) (emphasis provided). In the present case, the notices of lis pendens were discharged by the court long before the July 2015 sale, and Mr. Nieto did not appeal that discharge.

Moreover, section 48.23(2) specifies that a notice of lis pendens "is not effectual for any purpose beyond 1 year from the commencement of the action and will expire at that time, unless the relief sought is disclosed by the pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved [unless, on motion, the court extends the time of expiration]." It is undisputed that Mr. Nieto's initial equitable lien claim against the condominium units was not based on a duly recorded instrument or a lien claimed under part I of chapter 713, and that the sale occurred long after the lis pendens would have expired even if it had not been discharged by the trial court's order.

The expert's bootstrapping theory of notice and duty is erroneous as a matter of law on the record and timeline before us, as is his hypothetical title examiner's calculation of Luna Developments' insolvency and "potential bankruptcy." Buyers may insist (by contract) on escrows to cover claims-in-process "which, if successful" might become a judgment lien after the closing, but an arm's length buyer at a fair market price is not under a legal duty to do so for the protection of such claimants.

Mr. Nieto's counsel also executed a "verified memorandum" regarding his interpretation of the fraudulent transfer statutes and case law. Counsel erroneously reads the term "good faith" in section 726.109(1), Florida Statutes (2017), within Chapter 726 ("Fraudulent Transfers"), to mean that an unrelated transferee has no notice that a transferor has creditors. Neither the statute nor applicable case law impose such a requirement. Nothing in Mr. Nieto's affidavits or his opposition to the motion for summary judgment suggests any actual intention to "hinder, delay or defraud any creditor of the debtor," because (as addressed in the following section) Luna Capital was unrelated to Luna Developments and paid a reasonably equivalent value.

Expressed another way, the bottom line of the seller's, Luna Developments', balance sheet did not change upon disposition of the condominium units in July 2015. The sale price it received was applied to pay liens on the properties and to pay creditors. There is no record evidence that Luna Developments "siphoned off" the proceeds to its principals or "badge of fraud" transferees with the knowledge and assistance of Luna Capital. The transaction simply turned a physical asset into cash reasonably equivalent to the value of the asset, and those proceeds were distributed to the seller's creditors (none of whom were shown to be principals, family members of principals, or other transferees who might hold them for ultimate distribution to the seller).

Mr. Nieto's counsel's memorandum in opposition to summary judgment relied on cases such as McCalla v. E.C. Kenyon Construction Co., Inc., 183 So.3d 1192 (Fla. 1st DCA 2016). In that case, the defendant construction company (Kenyon) was sued by the McCallas for breach of contract and other claims. Before final judgment was entered, Kenyon transferred "all or most of its assets" to two of Kenyon's principals "who knew of the McCallas' pending claims" without receiving reasonably equivalent value in exchange. Id. at 1193-94. The asset transfer "rendered Kenyon unable to satisfy the McCallas' judgment against it." Id. at 1194.

The First District held that the complaint alleged fraudulent transfers under sections 726.105(1) and 726.106, quoting this Court's opinion in General Electric Co. v. Chuly International, LLC, 118 So.3d 325, 326 n.1 (Fla. 3d DCA 2013). Id. But in the present case, the record established that Luna Capital had no tie to Luna Developments or the other appellees.

"Reasonably Equivalent Value"

The record demonstrates that Luna Capital made its purchase offer for the condominium units based upon a business evaluation of the market, the property's income and resale value, and arm's length negotiations with Luna Developments. The record demonstrates that the sale of the condominium units resulted from a public real estate listing by a national brokerage firm. The summary judgment evidence included the purchase contract, closing statements and other evidence of a bona fide sale. During discovery, Luna Capital provided Mr. Nieto a copy of an appraisal and other information regarding the property obtained during the due diligence period before the sale.

In response, Mr. Nieto's affiant provided a back-of-the-envelope computation questioning whether the per-unit price was below market. Unsubstantiated "guesstimates" of what inflation might have done to values, or what appreciation or depreciation might have been expected during the period Luna Developments owned the property, create no genuine issue as against the competent, substantial evidence of an actual arm's length sale between "a purchaser willing but not obliged to buy" and "one willing but not obliged to sell." See ITT Cmty. Dev. Corp. v. Seay, 347 So.2d 1024, 1027 (Fla. 1977) ; American Reliance Ins. Co. v. Perez, 689 So.2d 290, 291 (Fla. 3d DCA 1997) (defining "fair market value").

Mr. Nieto did not file an appraisal or other evidence probative of actual market value of the condominium units as of the July 2015 sale.

"Outstanding Discovery"

Finally, Mr. Nieto argues that the trial court should have denied the motion for summary judgment because the impleaded defendants had not fully responded to written discovery requests. See Kimball v. Publix Super Markets, 901 So.2d 293, 295 (Fla. 2d DCA 2005). We find no abuse of discretion by the trial court on this point, however, as Mr. Nieto did not seek a continuance of the hearing on the motion for summary judgment and did not demonstrate the materiality of the discovery sought to be completed. Vancelette v. Boulan S. Beach Condo. Ass'n, Inc., 229 So.3d 398, 400 (Fla. 3d DCA 2017).

Conclusion

Mr. Nieto misreads the statutes on proceedings supplementary and fraudulent transfers to permit him, in effect, to backdate a judgment lien and demand payment from a closing that happened well before any such judgment was obtained and recorded (and even longer before the impleader of the buyer, its lender, and its lender's collateral assignee). If the buyer was a straw party or the transaction was a fraudulent transfer of Luna Developments' equity to a party holding for the benefit of the seller, so as to thereby hinder, delay, or defraud creditors, this might be a different case. But no such record is before us.

Upon our careful review of the summary judgment evidence before the trial court, and indulging appropriate inferences in favor of Mr. Nieto as required, the summary judgment evidence establishes beyond any genuine dispute that the appellees negotiated and purchased at arm's length and in good faith. Beyond the use of the term "Luna" in their names (because of the name of the condominium complex), Luna Developments as seller and Luna Capital as buyer had no interrelated owners, controlling members, or other indications of joint control.

In addition, the summary judgment evidence demonstrates that the sale negotiations and price conform to the accepted definition of "fair market value," or, as relevant here, "reasonably equivalent value." We thus affirm the trial court order and final summary judgment in all respects.

      Mr. Nieto held two of the notes individually. He held a power of attorney from family members who were the payees on the other six notes. Collectively the notes exceeded $1,000,000.00. See Villamizar v. Luna Dev. Grp., LLC, 202 So.3d 905 (Fla. 3d DCA 2016).

      The consensus among Florida appellate courts is that orders granting or discharging recorded notices of lis pendens, and orders relating to the bonds posted in connection with such notices, are more appropriately reviewed via certiorari rather than as injunction-like non-final orders appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B). Bankers Lending Servs., Inc. v. Regents Park Inv., LLC, 225 So.3d 884, 885 (Fla. 3d DCA 2017). Our own decisions on the point, however, "did not abrogate prior decisions of this Court concluding that we have appellate jurisdiction to review such non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(B)." Rodriguez v. Guerra, 254 So.3d 521, n.1, 2018 WL 1936637 (Fla. 3d DCA Apr. 25, 2018).

      Luna Developments (the judgment debtor/seller) and Luna Capital (buyer, impleaded defendant, and appellee) are not related entities or under common control. They share "Luna" in their respective company names because the condominium properties at issue in the case are within four phases of "Luna at Hollywood Condominium."

      Wilmington Trust served as Trustee of the COMM 2015-CCRE25 Mortgage Trust Commercial Mortgage Pass-Through Certificates.

      Mr. Nieto may consider the rights of unsecured creditors in bankruptcy to avoid "preferences," 11 U.S.C. § 547, to be equally available under the fraudulent transfer and "proceedings supplementary" statutes. While both theories of recovery may be in a creditor's toolbox, they involve separate elements of proof, are governed by different procedural requirements, and (in the case of preference claims) are determined in the United States Bankruptcy Courts.

      Although the discharge was obviously "subsequent" to the recordation of the lis pendens notices, the discharge order was actually recorded over two years before the sale of the properties to Luna Capital.


author: ATKINSON, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-6, Mortgage Backed Pass-Through Certificates Series 2006-6, Appellant, v. William F. NOLL, III, Appellee.
    Case No. 2D17-2848
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018 Rehearing Denied January 4, 2019
    A. Donald Scott, Jr. of Clarfield, Okon, Salomone & Pincus, Orlando, for Appellant.
    Louis D. D'Agostino and Maria Vigilante of Cheffy Passidomo, P.A., Naples, for Appellee.
   ATKINSON, Judge.

Deutsche Bank National Trust Company ("Deutsche Bank") appeals the final judgment awarding William F. Noll, III, the attorney's fees and costs that he incurred as a prevailing party after he obtained a final summary judgment dismissing Deutsche Bank's foreclosure case. Deutsche Bank successfully appealed that underlying judgment in case number 2D16-5635. As such, because Mr. Noll is no longer the prevailing party and no longer entitled to an award of fees and costs on that basis, we must reverse. See U.S. Bank Nat'l Ass'n for CSFB Heat 2006-7 v. Tranumn, 234 So.3d 871, 872 (Fla. 1st DCA 2018) (citing Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney's fees. Consequently, an award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed.") ).

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Bruce C. MATHESON, Appellant, v. MIAMI-DADE COUNTY, Florida and The Florida International University Board of Trustees, Appellees.
    No. 3D17-2473
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    Carlton Fields Jorden Burt, P.A., and Frank G. Burt, Washington, and Enrique D. Arana, and Todd M. Fuller, and Scott E. Byers, Miami, for appellant.
    Bilzin Sumberg Baena Price & Axelrod LLP, and Eileen Ball Mehta, for Florida International University Board of Trustees; Abigail Price-Williams, Miami, Miami-Dade County Attorney, and Miguel A. Gonzalez, and Monica Rizo Perez, Assistant County Attorneys, for Miami-Dade County, Florida, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See County of Volusia v. Detzner, 253 So.3d 507, 2018 WL 4272435 (Fla. Sept. 7, 2018) (A ballot title and summary was found not "defective for failing to inform voters of what the Appellants assert is Amendment 10's true chief purpose: to divest county voters of their current constitutional right to decide the structure of their local governments" because the summary "accurately states the effect that Amendment 10's passage would have on county charters and special laws; there is no need to explain ramifications that are implicit in those statements."); Dep't of State v. Fla. Greyhound Ass'n, 253 So.3d 513, 519, 2018 Fla. LEXIS 1593 *, 2018 WL 4275358 *3 (Fla. Sept. 7, 2018) ("When evaluating whether a proposed amendment's ballot language is clearly and conclusively defective, a court must look not to subjective criteria espoused by the amendment's sponsor but to objective criteria inherent in the amendment itself, such as the amendment's main effect.").


text:
    Lauren NIEBURG and Neil Nieburg, Appellants, v. Eric W. SULZBERGER, et al., Appellees.
    No. 3D16-1905
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Broad and Cassel, and Barbara Viota-Sawisch, Adam G. Rabinowitz, and Joseph H. Picone (Fort Lauderdale), for appellants.
    DLD Lawyers, and Pete L. DeMahy, Kenneth R. Drake, Coral Gables, and Richard N. Conforti, for appellee, Eric W. Sulzberger d/b/a Sulzberger and Sulzberger.
    Boyd Richards Parker & Colonnelli, P.L., and W. Todd Boyd, Miami, and Gissell Jorge, for appellees Neal Sandberg and Simon, Schindler & Sandberg, LLP.
    Carlton Fields Jorden Burt, P.A., and Charles M. Rosenberg, Naomi Berry, and Steven M. Blickensderfer, Miami, for appellees David Scully and Jack R. Loving, P.A.
    Before LOGUE, LUCK and LINDSEY, JJ.
   PER CURIAM.

Lauren and Neil Nieburg appeal the trial court's order dismissing their first amended complaint with prejudice. We affirm.

The Nieburgs alleged that three attorneys and two law firms committed legal malpractice and breached fiduciary duties. Eric Sulzberger was alleged to have been negligent in drafting the Nieburgs' mother and stepfather's estate and marriage documents. Neal Sandberg and his firm were alleged to have been negligent in reviewing and advising the Nieburgs' mother to sign an ante-nuptial agreement. And David Scully and his firm were alleged to have been negligent in advising the Nieburgs' mother about, and letting the statute of limitations lapse on, contesting their stepfather's estate and trust.

In general, "[a]n attorney's liability for negligence in the performance of his or her professional duties is limited to clients with whom the attorney shares privity of contract." Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1379 (Fla. 1993). "The exception to this general rule requiring privity of contract between the client and attorney is when the plaintiff is the intended third-party beneficiary of the services performed by the attorney." Driessen v. Univ. of Miami School of Law Children & Youth Law Clinic, No. 3D18-999, --- So.3d ----, ----, 2018 WL 4608760, at *1 (Fla. 3d DCA Sept. 26, 2018). "A party is an intended beneficiary only if the parties to the contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong." Dingle v. Dellinger, 134 So.3d 484, 488 (Fla. 5th DCA 2014). "To find the requisite intent, it must be shown that both contracting parties intended to benefit the third party; it is insufficient to show that only one party unilaterally intended to benefit the third party." Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 400 (Fla. 2d DCA 2000).

Based on the complaint and the underlying contracts in the record, the attorneys and law firms did not clearly express an intent to primarily and directly benefit the Nieburgs when they represented the Nieburgs' mother and stepfather. At best, the Nieburgs were incidental beneficiaries, which is insufficient. See Dingle, 134 So.3d at 488 ("Still, a person who is not a party to a contract may not sue for breach of that contract where that person receives only an incidental or consequential benefit from the contract." (quotation omitted) ).

The Nieburgs contend they should be allowed to amend their complaint, and normally they would be able to, but the trial court had the discretion to deny leave to amend where the "amendment would be futile." JVN Holdings, Inc. v. Am. Const. & Repairs, LLC, 185 So.3d 599, 601 (Fla. 3d DCA 2016) (quotation omitted). Here, the underlying contracts say what they say, and no amount of creative pleading can get around the fact that they do not evidence an intent to primarily and directly benefit the Nieburgs.

The trial court's order dismissing the Nieburgs' complaint with prejudice is affirmed.

Affirmed.


text:
    Chyvas Ariel PEOPLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-693
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018.
    Chyvas Ariel Peoples, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Chyvas Peoples appeals from the lower court's order denying his petition for writ of habeas corpus. We need not detail the allegations of the petition, other than to note that the record below establishes that Peoples' current incarceration stems from his 2008 trial, conviction and sentence in the Thirteenth Judicial Circuit, (Hillsborough County) for the crime of manslaughter.

Peoples is currently imprisoned in Miami-Dade County, and filed a petition for writ of habeas corpus in the Circuit Court of the Eleventh Judicial Circuit, raising a number of claims related to his underlying conviction and sentence. As the order on review correctly reflects, the lower court lacked jurisdiction to consider the petition in light of the fact that the petition was a collateral attack on a judgment and sentence issued in the circuit court of Hillsborough County, rather than an attack on the legality of Peoples' continued detention in Miami-Dade County:

This petition does not test the legality of his detention; it tests the validity of his conviction. Defendant argues that he was immune to prosecution under Florida's Stand Your Ground Law. "When a petitioner attacks the validity of the conviction by raising issues relating to the trial or to the propriety of a plea, jurisdiction in habeas proceedings lies with the trial court that imposed the sentence and rendered the judgment of conviction." Collins v. State, 859 So.2d 1244 (Fla. 5th DCA 2003).

Nevertheless, the lower court's order further determined that the petition was successive and untimely, and that Peoples' filing of the petition constituted an abuse of the writ. On this basis, the court below denied the petition, rather than transferring it to the proper jurisdiction. In this respect, the lower court's order was erroneous. Once the lower court determined (correctly) that the petition was a collateral attack on a judgment and sentence imposed by the circuit court in Hillsborough County, it was without jurisdiction to address the merits of the petition, and should have dismissed the petition without prejudice to refiling it in the court having jurisdiction, or transferred the petition to that court. See Dorn v. State, 156 So.3d 562 (Fla. 3d DCA 2015). As this court observed in Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005) :

The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence. Murray v. Regier, 872 So.2d 217, 223-24 (Fla. 2002) (because petition for writ of habeas corpus raised issues regarding petitioner's detention, the proper court to rule on the petition was the court where petitioner was being detained); Calloway v. State, 699 So.2d 849 (Fla. 3d DCA 1997) (explaining that a circuit court has no jurisdiction to review the legality of a conviction in another circuit); Leichtman v. Singletary, 674 So.2d 889 (Fla. 4th DCA 1996) (holding that a court from one county does not have jurisdiction to hear a petition collaterally attacking a judgment and sentence from another county.) Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence, and such an attack must be brought pursuant to Rule 3.800 or 3.850, not by petition for writ of habeas corpus. See Baker v. State, 878 So.2d 1236 (Fla. 2004) ; Borinstein v. State, 893 So.2d 687, 688 (Fla. 5th DCA 2005).

We therefore reverse the order denying the petition for writ of habeas corpus and remand with directions to transfer the petition to the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, Florida.

      We do not address whether the trial court's determinations of successiveness, untimeliness, and abuse of the writ were correct; we merely hold that the trial court was without jurisdiction to reach these issues.


author: Per Curiam.

text:
    Charles E. HINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3936
    District Court of Appeal of Florida, First District.
    November 7, 2018 Rehearing Denied January 10, 2019
    Charles E. Hines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Makar, and Winsor, JJ., concur.


author: Warner, J.

text:
    Walter Bruno OLSON, Jr., Appellant, v. Cynthia Ann OLSON, Appellee.
    No. 4D18-1569
    District Court of Appeal of Florida, Fourth District.
    November 14, 2018
    Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   Warner, J.

The former husband appeals a temporary injunction which freezes all of the former husband's assets and, particularly, an impending inheritance. Although no evidence was offered by the former wife in support of her petition, the trial court granted the motion, making unsupported factual findings based upon the former wife's attorney's statements to the court. We reverse the temporary injunction.

"[A] party seeking a temporary injunction must establish that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest." Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc. , 51 So.3d 1191, 1195 (Fla. 4th DCA 2011).

Florida Rule of Civil Procedure 1.610(c) requires that "[e]very injunction shall specify the reasons for entry, [and] shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document ...." The trial court's order must contain "[c]lear, definite, and unequivocally sufficient factual findings [to] support each of the four conclusions necessary to justify entry of a preliminary injunction." City of Jacksonville v. Naegele Outdoor Advert. Co. , 634 So.2d 750, 754 (Fla. 1st DCA 1994) (alterations added).

The former wife filed a motion for ex parte injunction to freeze the former husband's assets because she holds an unsatisfied judgment for alimony and child support. Although filed as an ex parte injunction, the motion was noticed for hearing at which the former husband and his attorney were present. The former wife presented no evidence but relied solely on the statements of her attorney, her verified motion for injunction, and its attachments. A verified motion, by itself, is inadequate to establish the necessary proof when there is a noticed and contested evidentiary hearing. See Orkin Extermination Co. v. Tfank , 766 So.2d 318, 319-20 (Fla. 4th DCA 2000).

As we have said many times, the statements of an attorney are not evidence. We explained:

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he [or she] must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Smith v. Smith , 64 So.3d 169, 171 (Fla. 4th DCA 2011) (first alteration in original, second alteration added) (quoting Leon Shaffer Golnick Advert., Inc. v. Cedar , 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982) ).

Appellee has filed no brief in opposition, and that is well-advised as it is apparent from the trial transcript that no evidence supports the trial court's injunction order. We therefore reverse and remand for instructions to vacate the temporary injunction. Our reversal is without prejudice to renewing the request, although we express no opinion as to the merits of the issue or the appropriateness of injunctive relief.

Damoorgian and Conner, JJ., concur.


text:
    Stephen A. HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2322
    District Court of Appeal of Florida, First District.
    November 15, 2018 Rehearing Denied January 2, 2019
    Stephen A. Hawkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


author: COHEN, C.J.

text:
    S.B.-B. and B.B.-B., Appellants, v. In re: the Adoption of J.M.B.-S., a Child, Appellee.
    Case No. 5D18-979
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Lawrence P. Cartelli, Tavares, for Appellant.
    Barbara A. Eagan, of Eagan Appellate Law, PLLC, Orlando, for Appellee.
   COHEN, C.J.

S.B.-B. and B.B.-B. ("Mother" and "Prospective Adoptive Parent," respectively) appeal the denial of their petition for stepparent adoption of J.M.B.-S. ("Child"). In the petition, they sought to excuse the necessity of obtaining the consent of M.S. ("Father"), alleging that he abandoned Child pursuant to section 63.089(4), Florida Statutes (2016). We affirm.

We gather the following facts from the pleadings and the trial court's order. Child was born in 2008. At some point between 2008 and 2010, Mother and Father lived together, although it is unclear for how long. In 2010, Father filed a paternity action and was granted supervised visitation with Child. In 2012, Mother obtained an injunction against Father, which granted her sole custody of Child. The injunction provided that it could be modified in the paternity action, but Father made no effort to do so for four years.

In 2016, Father moved to dissolve the injunction. The court denied the motion, directing Father to file the motion in the paternity action. Father again took no action to do so. Mother and Prospective Adoptive Parent filed their petition for stepparent adoption in late 2016.

The trial court appointed a Guardian ad Litem and held a trial in early 2018. The Guardian's report, which is of little assistance in that it is conclusory in nature, notes that Father went through a sixty-day drug treatment program, has mental health issues, and has a child with his current girlfriend. The trial court's order notes that Father's "road to recovery has not been without setbacks." As of the time of trial, Father had no contact with Child for six years and had made no effort to support Child until after the petition was filed. However, Father technically made some effort to reestablish a relationship with Child by moving to dissolve the injunction. Despite this minimal effort, the trial court found that Father did not evince an intent to reject parental responsibilities and denied the petition for stepparent adoption.

Under the facts as found by the trial court, there is ample case law to support a finding that Father abandoned Child. See, e.g., F.L.C. v. G.C., 24 So.3d 669, 670-71 (Fla. 5th DCA 2009) ; M.A.F. v. E.J.S., 917 So.2d 236, 237-39 (Fla. 5th DCA 2005). While the findings appear inconsistent with the ultimate conclusion, we do not know what testimony was presented at the hearing. The trial court, which presided over both the injunction and paternity actions, was better able to evaluate the parties and the totality of the circumstances. Without a transcript of the proceedings, we are not in a position to reverse the denial of the petition. E.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ; cf. Parker v. Unemplmt. App. Comm'n, 41 So.3d 1090, 1091 & n.1 (Fla. 5th DCA 2010) (affirming order where record did not include hearing transcript and indicating that "we cannot reweigh the evidence").

AFFIRMED.

EVANDER and BERGER, JJ., concur.

      The trial court took judicial notice of both the injunction and paternity cases.


author: CRENSHAW, Judge.

text:
    CITIZENS PROPERTY INSURANCE, CORPORATION, Appellant, v. Rona SALKEY and Trevor Salkey, Appellees.
    Case No. 2D14-3002 2D14-5077
    District Court of Appeal of Florida, Second District.
    Opinion filed November 16, 2018 Rehearing Denied December 26, 2018
    Kara Berard Rockenbach and David A. Noel of Link & Rockenbach, P.A., West Palm Beach; and Andrew P. Rock and Karen M. Walker of The Rock Law Group, Maitland, for Appellant.
    Raymond T. Elligett, Jr. and Amy S. Farrior, of Buell & Elligett, P.A., Tampa; and K.C. Bouchillon of Sanders Law Group, Bartow, for Appellees.
   CRENSHAW, Judge.

Upon remand from the Florida Supreme Court, we reconsider our prior decision in light of the subsequent opinion in Sebo v. American Home Assurance Co. (Sebo II ), 208 So.3d 694 (Fla. 2016). In Sebo II, the supreme court clarified that the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, is the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. Id. at 697.

In Salkey, we concluded that the trial court improperly instructed the jury on the concurrent-cause doctrine and that it should have instructed the jury on the efficient-proximate-cause doctrine. Citizens Prop. Ins. Corp. v. Salkey, 190 So.3d 1092, 1094 (Fla. 2d DCA 2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017). We also concluded that the jury instructions were confusing and may have misled the jury. Id. at 1094-95. Because our determination that the jury instructions were confusing and may have misled the jury is not affected by Sebo II, we again reverse and remand for a new trial. We do not reach the issue of the attorneys' fee award.

Background

In 2008, Rona and Trevor Salkey (the Salkeys) purchased an all-risk homeowner's insurance policy from Citizens Property Insurance Corporation (Citizens). The policy insured against the risk of direct physical losses to the property unless expressly excluded. Losses caused by mine subsidence and sinkholes were excluded from the main policy. However, the Salkeys purchased the optional sinkhole loss coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity.

The Salkeys presented a sinkhole claim to Citizens after discovering damage to their property during the policy period. Citizens retained MCD of Central Florida (MCD) to evaluate the property for sinkhole activity. MCD concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the Salkeys' house was built. Citizens denied the Salkeys' sinkhole claim, and the Salkeys filed a breach of contract claim against Citizens.

At trial, the parties disputed causation. Citizens presented expert testimony to argue that there was no sinkhole activity and the damage to the property was caused only by the ongoing decay of the soils beneath the home. The Salkeys' presented their own expert evidence that while the soils beneath the home were decaying and contributing to the damage suffered, the most substantial factor in the loss was sinkhole activity. Citizens did not dispute that the Salkeys' property suffered damage during the policy period; therefore, the trial court granted the Salkeys' motion for directed verdict on their threshold burden: to prove that physical damage occurred during the policy period.

At the charge conference, Citizens objected to a number of the Salkeys' proposed jury instructions. The trial court crafted the following instruction:

Plaintiffs have the burden of proof to establish, by the greater weight of the evidence, that their property experienced damages from a sinkhole. If the greater weight of the evidence does not support the Plaintiff's claim, your verdict should be for the Defendant, Citizens Property Insurance Corporation.
If, however, the greater weight of the evidence supports the Plaintiffs' claim, then your verdict should be for the Plaintiffs, the Salkeys.
The court has determined and now instructs you that the Plaintiffs have met their burden of proving that damage occurred to their home during the policy period.
You are instructed that the burden of proof is on Defendant to prove that all of the damage to the residence is caused by conditions excluded under the policy.
The Defendant has the burden to prove that all of the damage is non-sinkhole related. If you find that any damage is caused by sinkhole activity, or that sinkhole activity is acting in conjunction with any other cause, the Defendant has not met its burden and you must find that the damage is a covered loss.

The jury returned a verdict in favor of the Salkeys. Thereafter, the trial court entered a final judgment in favor of the Salkeys, and in a separate order it granted the Salkeys' motion for attorneys' fees and costs. Citizens appealed the final judgment.

As set forth in our prior opinion, we concluded that the trial court improperly instructed the jury on Citizens' burden of proof. Salkey, 190 So.3d at 1094. Specifically, we held that the trial court should have instructed the jury on the efficient-proximate-cause theory and not the concurrent-causation theory. Id. We further concluded that the jury instructions were confusing and may have misled the jury, which also required reversal. Id. at 1094-95.

In reaching the conclusion that the trial court should have instructed the jury on the efficient-proximate-cause theory, we relied on this court's decision in American Home Assurance Co. v. Sebo (Sebo I ), 141 So.3d 195 (Fla. 2d DCA 2013), which has since been quashed by the supreme court. See Sebo II, 208 So.3d 694. Thereafter, the supreme court quashed our decision in Salkey and remanded it to this court for reconsideration in light of the Sebo II decision. Salkey, 190 So.3d 1092.

Analysis of the case on remand

In Sebo II, the supreme court clarified that the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, is the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. Id. at 697. On remand, Citizens argues that the concurrent-cause doctrine should not be applied in this case, despite Sebo II, because the policy here includes anti-concurrent cause language.

"An anti-concurrent cause provision is a provision in a first-party insurance policy that provides that when a covered cause and non-covered cause combine to cause a loss, all losses directly and indirectly caused by those events are excluded from coverage." Liberty Mut. Fire Ins. Co. v. Martinez, 157 So.3d 486, 487 n.1 (Fla. 5th DCA 2015). In Sebo II, the supreme court contemplated that it would have applied the efficient-proximate-cause doctrine had there been anti-concurrent cause provisions in the contract. Sebo II, 208 So.3d at 700.

Citizens argues that its policy contains language sufficient to avoid application of the concurrent-cause doctrine in two places. First, Citizens argues that the earth movement exclusion contained in the policy explicitly contains anti-concurrent cause language:

1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
....
b. Earth Movement and Settlement, meaning:
....
(3) mine subsidence;
....
i. Loss caused by "sinkhole."

However, the sinkhole endorsement purchased by the Salkeys expressly provides as follows:

The GENERAL EXCLUSIONS - Earth Movement and Settlement exclusion 1.b. does not apply with respect to coverage provided by this endorsement.
....
The GENERAL EXCLUSIONS - Loss caused by Sinkhole exclusion 1.i. does not apply with respect to coverage provided by this endorsement.

Accordingly, because the plain language of the sinkhole endorsement explicitly states that the anti-concurrent cause language found in section 1 of the policy does not apply to sinkhole claims, the anti-concurrent cause provision found in section 1 does not apply in the instant case so as to avoid application of the concurrent-cause doctrine.

Citizens also argues that the sinkhole endorsement requires "direct physical loss" caused by sinkhole activity. Contrasted with the other exclusionary clauses in Citizens' policy, the "direct physical loss" language is insufficient to avoid application of the concurrent-cause doctrine.

Therefore, applying Sebo II to the instant case, we conclude that the trial court properly instructed the jury on the concurrent-cause doctrine, requiring it to determine if at least one of the concurrent causes was covered under the insurance policy.

However, in Salkey, we also concluded that the jury instructions were confusing and may have misled the jury, which required reversal. Salkey, 190 So.3d at 1094-95. This case involved an all-risks insurance policy. "[A]n insured claiming under an all-risks policy has the burden of proving that the insured property suffered a loss while the policy was in effect. The burden then shifts to the insurer to prove that the cause of the loss was excluded from coverage under the policy's terms." Mejia v. Citizens Prop. Ins. Corp., 161 So.3d 576, 578 (Fla. 2d DCA 2014) (citing Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984) ).

Here, the jury instructions improperly informed the jury that the Salkeys had the burden to prove "that their property experienced damages from a sinkhole," see Mejia, 161 So.3d at 578, but then correctly advised that the "court has determined and now instructs you that the Salkeys have met their burden of proving that damage occurred to their home during the policy period." The trial court then instructed that Citizens had the "burden to prove that all of the damage is non-sinkhole related." These instructions are confusing and may have misled the jury, causing it to conclude that the Salkeys' had proved that their property was damaged by a sinkhole-a burden they did not have-and making it impossible for Citizens to meet its burden of proving that no loss was sinkhole related. See, e.g., Allstate Ins. Co. v. Vanater, 297 So.2d 293, 295 (Fla. 1974) ("An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused [it] to arrive at a conclusion that otherwise [it] would not have reached." (citing Finch v. State, 116 Fla. 437, 156 So. 489 (Fla. 1934) ) ). Because the supreme court's decision in Sebo II does not affect our conclusion that the jury instructions were confusing and may have misled the jury, we again reverse and remand for a new trial.

Reversed and remanded.

BLACK and SALARIO, JJ., Concur.

      Judge Salario has been substituted for Judge Altenbernd, who was on the original panel.

      Citizens Prop. Ins. Corp. v. Salkey, 190 So.3d 1092 (Fla. 2d DCA 2016), quashed, 42 Fla. L. Weekly S751 (Fla. June 23, 2017).


text:
    P.R., Father of M.C., A.C. and A.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-2467
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Samuel T. Lea, of Law Office of Samuel T. Lea, Orlando, for Appellant.
    Kelley Schaeffer, of Children's Legal Services, Bradenton, and Ward L. Metzger, of Department of Children and Families, Jacksonville, for Appellee.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Guardian ad Litem Program.
   PER CURIAM.

P.R., father of M.C., A.C., and A.C. (B.A.C.), appeals the trial court's order terminating his parental rights. As to B.A.C., we affirm the final judgment terminating P.R.'s parental rights because the grounds for termination based on sections 39.806(1)(c), 39.806(1)(j), and 39.806(1)(k), Florida Statutes (2017), were supported by competent, substantial evidence. We also affirm the final judgment terminating P.R.'s parental rights as to M.C. and A.C. because the grounds for termination based on sections 39.806(1)(e) 1., 39.806(1)(e)3., and 39.806(1)(j) were supported by competent, substantial evidence. However, we conclude that the trial court's finding of abandonment as to M.C. and A.C. based on section 39.806(1)(b) was not supported by competent, substantial evidence. Section 39.806(1)(b) permits termination of parental rights based on abandonment, which is defined in section 39.01(1), Florida Statutes (2017), as "a situation in which the parent ..., while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both." P.R. attended eight out of fourteen visitation appointments and talked to the children on the phone up to eleven times in the six-month period that was discussed at trial. During those visits he provided the children with small toys and pocket money. While section 39.01(1) provides that "marginal efforts" and "incidental or token visits" will not prevent a finding of abandonment, the gaps in visitation in this case caused by P.R.'s six missed visits were not sufficient to constitute abandonment. See C.B. v. Dep't of Child. & Fams., 199 So.3d 528, 528-29 (Fla. 5th DCA 2016) (citing J.L. v. Dep't of Child. & Fams., 143 So.3d 1158, 1158 (Fla. 5th DCA 2014) ); S.L. v. Dep't of Child. & Fams., 120 So.3d 75, 77 (Fla. 4th DCA 2013) ; T.G. v. Dep't of Child. & Fams., 8 So.3d 1198, 1199 (Fla. 4th DCA 2009) ; see also A.S. v. Dep't of Child. & Fams., 162 So.3d 335, 339 (Fla. 4th DCA 2015) (citing § 39.01(1), Fla. Stat. (2014) ). The only testimony concerning P.R.'s relationship with M.C. and A.C. did not state that the relationship was no longer substantial and positive. Accordingly, we affirm the termination of P.R.'s parental rights, but we remand for modification of the final judgment to remove the finding of abandonment.

AFFIRMED and REMANDED.

TORPY, BERGER and GROSSHANS, JJ., concur.

      We use B.A.C. here to distinguish between the two children with the same initials. B.A.C. refers to the child born earlier this year.

      We note that P.R. was found indigent by the trial court, and there was no testimony at trial concerning P.R.'s financial resources beyond his monthly rent payment.