author: Taylor, J. Kuntz, J. dissenting.

text:
    Lindsay OWENS, Appellant, v. Katherine L. CORRIGAN and KLC Law, P.A., Appellees.
    No. 4D17-2740
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Robert Garven, Coral Springs, for appellant.
    Katherine L. Corrigan of KLC Law P.A., Fort Lauderdale, for appellees.
   Taylor, J.

The plaintiff, Lindsay Owens, appeals a final order dismissing her legal malpractice complaint on the ground that the parties entered into an agreement to arbitrate the dispute. We reverse, finding that the arbitration clause in the retainer agreement was unenforceable for violating the Rules Regulating the Florida Bar.

The plaintiff filed a three-count legal malpractice action against the defendants, Katherine Corrigan, Esq., and the law firm KLC Law, P.A., alleging that the defendants negligently represented her in a dependency case, causing her to lose custody of her children.

The defendants moved to dismiss the complaint, asserting that the plaintiff had signed a retainer agreement requiring her to submit the dispute to binding arbitration. The retainer agreement included the following arbitration clause:

Any controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation shall be resolved through binding arbitration in Broward County, Florida, in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar, and judgment on the award may be entered in any court having jurisdiction thereof. [YOU ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION YOU ARE RELINQUISHING YOUR RIGHT TO BRING AN ACTION IN COURT AND TO A JURY TRIAL.]

The plaintiff filed a response in opposition to the motion to dismiss. First, the plaintiff argued that the arbitration clause was "vague and ambiguous" because the phrase "performance of legal services" was included within a reference to fees and charges, and because the arbitration clause stated that arbitration would be in accordance with the Fee Arbitration Rule. Second, the plaintiff argued that the arbitration clause was unenforceable because the retainer agreement did not comply with the Florida Bar Rule 4-1.5(i), which prohibits lawyers from making an agreement with a client for mandatory arbitration of fee disputes without advising the client in writing that the client should consider obtaining independent legal advice.

At the hearing on the motion to dismiss, the plaintiff's trial counsel seemed to concede (albeit incorrectly) that the fee arbitration program established in Chapter 14 of the Florida Bar Rules allowed arbitration of legal malpractice claims. Relying on the plaintiff's counsel's concession, the trial court granted the motion to dismiss and reasoned: "If Chapter 14 strictly said, you know, we only arbitrate fee disputes, then I think [the plaintiff] would be right. But Chapter 14 does not just arbitrate fees, it arbitrates all grievances."

The trial court later entered a final order of dismissal, finding that the parties "entered into an agreement to arbitrate that was not waived."

The plaintiff moved for rehearing, pointing out for the first time that jurisdiction to arbitrate under Chapter 14 was limited to disputes over the entitlement to or amount of legal fees. Thus, the plaintiff argued that her only available forum was the Florida judicial system, and that a denial of access to that forum would be a denial of due process.

The trial court denied the plaintiff's motion for rehearing. This appeal ensued.

On appeal, the plaintiff argues that: (1) the trial court's order violated her right to due process by denying her a proper forum for redress of grievances; (2) the arbitration agreement is unenforceable because it violated Florida Bar Rule 4-1.5(i) by omitting the cautionary notice required under that rule; and (3) the arbitration provision was ambiguous as to whether it required arbitration of a legal malpractice claim.

We address the plaintiff's second argument, which we find to be dispositive.

Standard of Review

The standard of review applicable to a trial court's conclusions regarding the construction and validity of an arbitration agreement is de novo. United HealthCare of Fla., Inc. v. Brown , 984 So.2d 583, 585 (Fla. 4th DCA 2008).

Requirements for Mandatory Arbitration

In deciding whether arbitration of a dispute is required, there are three elements for a court to consider: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp. , 750 So.2d 633, 636 (Fla. 1999).

Whether the Arbitration Clause is Unenforceable for Violating the Florida Bar Rules?

The plaintiff argues that the arbitration provision is invalid because it violated Florida Bar Rule 4-1.5(i). We agree.

Florida Bar Rule 4-1.5(i) prohibits lawyers from making an agreement with a client prospectively providing for mandatory arbitration of fee disputes without advising the client in writing that the client should consider obtaining independent legal advice:

(i) Arbitration Clauses. A lawyer shall not make an agreement with a potential client prospectively providing for mandatory arbitration of fee disputes without first advising that person in writing that the potential client should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions. A lawyer shall not make an agreement containing such mandatory arbitration provisions unless the agreement contains the following language in bold print:
NOTICE: This agreement contains provisions requiring arbitration of fee disputes. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration.

R. Regulating Fla. Bar 4-1.5(i).

Arbitration clauses in retainer agreements governed by Florida law "must comply with the Rules Regulating The Florida Bar." Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC, 59 So.3d 1173, 1176 (Fla. 4th DCA 2011). If a mandatory arbitration provision in a fee agreement "does not conform with Rule 4-1.5(i), the provision may be unenforceable on its face." Feldman v. Davis , 53 So.3d 1132, 1137 (Fla. 4th DCA 2011).

Here, the retainer agreement violated Florida Bar Rule 4-1.5(i) because the agreement prospectively provided for mandatory arbitration of fee disputes without giving the plaintiff the required written notice that she "should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions." Thus, because the arbitration clause does not comply with Florida Bar Rule 4-1.5(i), we hold that it is unenforceable on its face.

We disagree with the defendants' argument that Florida Bar Rule 4-1.5(i) is inapplicable because this case does not involve a fee dispute. Even though the arbitration clause could be read as requiring arbitration of matters in addition to fee disputes, this does not alter the fact that the arbitration clause clearly violated the rule by prospectively providing for mandatory arbitration of fee disputes without giving the required warning language. This is enough to invalidate the arbitration clause in its entirety.

Indeed, because the retainer agreement did not contain the required warning under Florida Bar Rule 4-1.5(i), the plaintiff was never placed on notice that she should consider consulting with another lawyer before signing an agreement with mandatory arbitration requirements. And, had the plaintiff consulted independent legal counsel, she presumably would have been advised that signing the agreement could result in her giving up the right to litigate a malpractice claim, which is far more serious than giving up the right to litigate a fee dispute.

We also decline to sever the portion of the arbitration clause that provides for mandatory arbitration of fee disputes. The portion of the arbitration clause requiring arbitration of fee disputes was inextricably intertwined with the portion requiring arbitration of disputes concerning the performance of legal services. Stated another way, an attorney's entitlement to recover fees depends in large part upon the competence of the attorney's performance. See , e.g. , Fla. Patient's Compensation Fund v. Rowe , 472 So.2d 1145, 1150 (Fla. 1985). Thus, because the mandatory arbitration of fee disputes went to the essence of the arbitration agreement, we decline to sever the invalid portion of the arbitration clause, which would require us to rewrite the agreement. See Shotts v. OP Winter Haven, Inc. , 86 So.3d 456, 459 (Fla. 2011) (refusing to sever the invalid portion of an arbitration agreement because it went to the "very essence of the agreement").

In short, the contract here at issue is different than the garden variety commercial contract. Lawyers owe ethical obligations and duties to their clients that exceed what the common law requires of arm's length contracting parties. We therefore hold that the arbitration clause in the retainer agreement was unenforceable on its face for violating Florida Bar Rule 4-1.5(i). Because the arbitration clause was unenforceable, we reverse the order dismissing the plaintiff's complaint and remand for further proceedings.

Reversed and Remanded.

Gross, J., concurs.

Kuntz, J., dissents with opinion.

Kuntz, J. dissenting.

The majority strikes the entirety of the contract's arbitration clause based upon a rule that applies only to disputes relating to attorney's fees. But this dispute does not involve attorney's fees. Thus, I respectfully dissent.

The plaintiff, the client, and defendant, the attorney, signed a retainer agreement that included the following arbitration clause:

Any controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation shall be resolved through binding arbitration in Broward County, Florida, in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar, and judgment on the award may be entered in any court having jurisdiction thereof. [YOU ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION
YOU ARE RELINQUISHING YOUR RIGHT TO BRING AN ACTION IN COURT AND TO A JURY TRIAL.]

The record on appeal indicates the attorney did not provide the notice required by Florida Bar Rule 4-1.5(i). And the majority holds this clause is unenforceable on its face for this reason.

The rule states that a "lawyer shall not make an agreement with a potential client prospectively providing for mandatory arbitration of fee disputes ." R. Regulating Fla. Bar 4-1.5(i) (emphasis added). Similarly, the rule expressly requires the parties add the following statement: "This agreement contains provisions requiring arbitration of fee disputes ." Id. (emphasis added). It is clear that Rule 4-1.5(i) undoubtedly applies to fee disputes.

If this dispute involved attorney's fees, the failure to comply with Rule 4-1.5(i) would likely be dispositive of a motion to compel arbitration. But, again, this dispute does not involve attorney's fees.

Rather, this dispute is a claim for malpractice-a claim that falls within the broad language of the arbitration clause. It is firmly established that "Florida public policy favors arbitration, and any doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration." BKD Twenty-One Mgmt. Co., Inc. v. Delsordo , 127 So.3d 527, 530 (Fla. 4th DCA 2012). In furtherance of the public policy of our state, we should not strike the entire agreement in reliance on an inapplicable rule.

The majority relies on both Feldman v. Davis , 53 So.3d 1132 (Fla. 4th DCA 2011) and Mintz & Fraade, P.C. v. Beta Drywall Acquisition, LLC , 59 So.3d 1173 (Fla. 4th DCA 2011), to support its contrary holding. I do not find those cases to be controlling.

The majority cites Feldman for the proposition that "[i]f a mandatory arbitration provision in a fee agreement 'does not conform with Rule 4-1.5(i), the provision may be unenforceable on its face.' " Slip Op. 4 (quoting Feldman , 53 So.3d at 1137 ). Feldman was an appeal of the circuit court's dismissal of a complaint "for declaratory relief regarding his obligations to pay attorney's fees under a contingency fee agreement." 53 So.3d at 1133. Clearly, a dispute relating to a contingency fee agreement is governed by Rule 4-1.5(i).

Mintz & Fraade involved a claim for legal malpractice. See 59 So.3d at 1174. We applied the Federal Arbitration Act and reversed the circuit court's denial of the defendant's motion to compel arbitration. Id. at 1175. The majority here notes that in the Mintz & Fraade opinion we stated that "[a]rbitration clauses in retainer agreements governed by Florida law 'must comply with the Rules Regulating The Florida Bar.' " Slip Op. 4 (quoting Mintz & Fraade, P.C. , 59 So.3d at 1176 ). But, in support of that statement, we cited Feldman and, as noted, Feldman was a dispute involving attorney's fees. Moreover, I do not read our reference to complying with the Rules Regulating the Florida Bar to be inconsistent with my view in this case. A contract between an attorney and client must comply with the applicable rules. However, here, the majority applies a rule that does not apply to the client's claims.

Next, the majority concludes that the provisions of the clause relating to fee disputes cannot be severed from the agreement. This is troubling, especially in light of the incorrect assertion by counsel for the plaintiff to the circuit court that malpractice disputes could fall within the parameters of the Fee Arbitration Rule. In light of that incorrect concession, the only inapplicable or improper portion of the arbitration clause was a reference to fees.

So the circuit court was not presented with a legitimate opposition to severance, and we should sever the portions of the arbitration provision relating to fee disputes and enforce the remainder of the agreement.

The plaintiff also argues the arbitration agreement is ambiguous because the discussion of attorney performance "is intertwined with Rule 14-1.2," and "[a] party reading such language could reasonably conclude that 'arbitration in accordance with the fee arbitration rule' would entail fee issues only."

An ambiguous contract provision is to be construed against the drafter, Delsordo , 127 So.3d at 530, and a retainer agreement is to be construed against the attorney and in favor of the client, Vargas v. Schweitzer-Ramras , 878 So.2d 415, 417 (Fla. 3d DCA 2004). But the mere fact that an arbitration agreement can be interpreted in more than one manner does not make it ambiguous. Delsordo , 127 So.3d at 530. Rather, to be ambiguous the additional manner of interpretation must be reasonable. Id. (holding that an arbitration provision "is ambiguous only if it is susceptible to more than one reasonable interpretation"). And "the interpretation of a contract which gives a reasonable meaning to all provisions of a contract is preferred to one which leaves a part useless or inexplicable." Resnick v. J. Weinstein & Sons, Inc. , 163 So.3d 700, 703 (Fla. 4th DCA 2015) (citations and internal quotation marks omitted). Further, we must "try to resolve an ambiguity in an arbitration provision in favor of arbitration." Jackson v. Shakespeare Found., Inc. , 108 So.3d 587, 593 (Fla. 2013).

In Vargas , the Third District addressed a similar issue, albeit with different contractual language, where the subject of the contract was exclusively attorney's fees. 878 So.2d at 417. The contract referenced submitting a final bill and issues such as "institut[ing] proceedings against you for the collection of fees." Id. The following paragraph stated "[a]ll such disputes and any counterclaim against us in an action for collecting for [sic] set off because of any alleged improper act or acts on our part shall be submitted to and shall be determined by the arbitrators." Id. (emphasis added). The Third District concluded that the plain language of the agreement demonstrated that it applied to fee disputes and that "the language in the pertinent paragraphs does not constitute a general arbitration clause establishing arbitration as the means for resolving any dispute relating to the representation." Id. at 417.

As discussed above, we reached a different conclusion in Mintz & Fraade , where the agreement stated:

The parties agree that they shall be deemed to have agreed to binding arbitration in New York, New York, with respect to the entire subject matter of any and all disputes relating to or arising under this Retainer Agreement, including, but not limited to, any fee disputes.

59 So.3d at 1175. We held that "[t]his language is broad enough to encompass the malpractice and breach of fiduciary duty claims because they are based solely on M & F's actions while providing services obtained through the retainer agreement." Id. at 1176.

Here, the arbitration agreement applied to "[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation." This language by itself is unambiguous and applies to the plaintiff's claims. However, we must consider the entirety of the arbitration provision and the remainder of the contract.

At the non-evidentiary hearing, the circuit court noted that the first page of the contract referenced that "these terms and conditions 'will also apply to any additional legal services that we may agree to provide that are outside the initial scope of our representation.' " Based on this provision, the court concluded that "certainly the retainer is talking about the scope of service, the scope of obligations that" the attorney undertook. The court concluded that "the obligations is the scope of service" and the "obligation" was included in the arbitration provision.

The circuit court did acknowledge the reference within the arbitration clause to arbitrating any disputes "in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar." The court stated that the language "could have been a little bit clearer but it's clear that she agreed to arbitrate all of this pursuant to Chapter 14."

Chapter 14 does not apply beyond fee disputes. In fact, the Fee Arbitration Rule specifically states that "[j]urisdiction is limited to matters in which: (1) there is no bona fide disputed issue of fact other than the amount of or entitlement to legal fees." R. Regulating Fla. Bar 14-1.2. But the plaintiff argued to the circuit court that it could apply and the court factored the plaintiff's argument into its decision. The court even noted that the analysis of the purported ambiguity would be different if Chapter 14 did not apply to malpractice claims. But, the plaintiff argued, it did apply.

A party cannot lead the court to a conclusion and then complain that the court accepted its argument. See, e.g. , Mann v. Yeatts , 111 So.3d 934, 938 (Fla. 5th DCA 2013) ("Although this argument is premised on a correct statement of the law, it is not preserved for our review because it was not argued below, and the purported error was invited by Appellant's incorrect argument to the trial court."); Risk Mgmt. Servs., Inc. v. McCraney , 420 So.2d 374, 375 (Fla. 1st DCA 1982) (holding "appellant induced the error by representing to the trial judge that [a case] was controlling" even though the case relied upon was no longer controlling when relied upon in the circuit court). Thus, the plaintiff waived its argument that the provision was ambiguous based upon its reference to Chapter 14.

In conclusion, we should sever those portions of the clause relating to fees and enforce the remainder of the signed contract. We should apply the clause as written, affirm the court's order in part, and remand with instructions to stay the case and appoint an arbitrator to arbitrate the dispute.

      For ease of reference, this opinion will refer to these rules collectively as the "Florida Bar Rules," and will refer to a specific rule as a "Florida Bar Rule."

      Chapter 14 of the Florida Bar Rules, which is entitled "Grievance Mediation and Fee Arbitration," does not provide a mechanism for arbitration of legal malpractice claims. While Chapter 14 allows for mediation of grievances other than fee disputes, jurisdiction for arbitration under Chapter 14 is limited to fee disputes. See R. Regulating Fla. Bar 14-1.2(a)(1) (stating that jurisdiction for arbitration is limited to matters in which "there is no bona fide disputed issue of fact other than the amount of or entitlement to legal fees").

      Although this specific argument was not discussed at the hearing on the motion to dismiss, it was presented to the trial court in the plaintiff's written response in opposition to the motion to dismiss. We find this to be sufficient to preserve the issue for appellate review. See Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.").

      On the one hand, the arbitration clause contains broad language stating that it applies to any claim "arising out of or relating to our ... performance of legal services," which would appear to encompass a legal malpractice claim. On the other hand, the clause states that any arbitration would occur "in accordance with the Fee Arbitration Rule (Chapter 14) of the Rules Regulating the Florida Bar," which would could be interpreted as restricting the scope of the clause to fee disputes, since jurisdiction for arbitration under Chapter 14 is limited to fee disputes. In any event, we need not decide whether the reference to the Fee Arbitration Rule renders the clause ambiguous as to whether the parties intended to arbitrate a legal malpractice claim. Our conclusion that the clause violates the Florida Bar Rules is dispositive.

      If the plaintiff had not waived this argument, I would remand the case for a determination as to whether the selection of the chosen forum was integral to the agreement. If the court found the chosen forum was integral to the agreement, I agree the motion to compel arbitration should be denied. But if the court found the chosen forum was not integral to the agreement, the motion to compel arbitration should be granted. See New Port Richey Med. Inv'rs, LLC v. Stern ex rel. Petscher , 14 So.3d 1084, 1087 (Fla. 2d DCA 2009) (citing § 682.04, Fla. Stat.); see also Betts v. FastFunding The Co., Inc. , 60 So.3d 1079, 1082-83 (Fla. 5th DCA 2011) ; Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000).

      Notably, Chapter 14 specifically states that all proceedings shall be governed by the Florida Arbitration Code. R. Regulating Fla. Bar 14-1.4 ("The Florida Arbitration Code (chapter 682, Florida Statutes), shall apply to arbitrations conducted under this chapter except as modified by or in conflict with these rules."). And the Florida Arbitration Code states that the court shall appoint an arbitrator when the chosen arbitrator does not or cannot act. See New Port Richey Med. Inv'rs, LLC , 14 So.3d at 1087 ("[T]he parties' arbitration agreement is not rendered invalid or unenforceable simply because the AAA is unavailable to conduct the arbitration. Instead, the circuit court must appoint another arbitrator or arbitrators.").


source: Caselaw Access Project

author: Forst, J. Warner, J., dissenting.

license: Public Domain

text:
    Daniel S. NEWMAN, etc., et al., Petitioners, v. MAYER BROWN, LLP, et al., Respondents.
    No. 4D17-3416
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Leo B. Reus, Scot C. Stirling and Robert O. Stirling of Beus Gilbert PLLC, Phoenix, and Stuart Z. Grossman and Rachel W. Furst of Grossman Roth Yaffa Cohen, P.A., Coral Gables, for petitioners.
    Eugene K. Pettis and Debra P. Klauber of Haliczer, Pettis & Schwamm, Fort Lauderdale, for respondents.
   Forst, J.

Petitioner Daniel Newman ("the Receiver") seeks certiorari review of a non-final order that granted Respondent Mayer Brown, LLP's motion to compel discovery with respect to thirty-eight nonparties. Below, Newman was appointed as a receiver for these thirty-eight investor entities and individuals ("Assignors"), which all contractually assigned their claims against Mayer Brown to the Receiver. The latter is the plaintiff, and Mayer Brown is one of the defendants in the underlying action. During discovery, Mayer Brown moved to compel the Receiver to produce documents and comply with deposition requests concerning the Assignors. The trial court granted the motion and the Receiver filed the instant petition for writ of certiorari, arguing that the trial court erred in compelling discovery because the Assignors were nonparties and thus could not take part in discovery without a subpoena. As set forth below, we deny the petition.

Background

In May 2009, Newman was appointed by the United States District Court for the Middle District of Florida as a receiver for claims of securities fraud filed by four hedge funds ("Founding Partners") and for the Founding Partners Capital Management Co. ("FPMC"). The federal court order appointing the Receiver gave him authority to assert claims "for the benefit and on behalf of" the four funds and "their investors and other creditors," i.e., the Assignors. Newman filed suit against Mayer Brown, a law firm, which allegedly facilitated the fraud. The suit was filed by Newman both in his capacity as Receiver for the funds and as the "Assignee" of claims belonging to thirty-eight individual or entity investors in the funds.

Both parties filed discovery requests. At issue is Mayer Brown's request for the production of privilege logs by the nonparty Assignors and its request that the Assignors appear for deposition. The Receiver refused to comply with these discovery requests, arguing that he did not represent the Assignors and that they are not parties to this action. He further claimed he was not in custody, possession or control of the Assignors' documents and could not force the Assignors to produce documents or appear for depositions.

Mayer Brown filed a motion to compel compliance with its discovery requests, arguing at the subsequent hearing that "a defendant who is sued on an assigned claim may not be subjected to a greater discovery burden than if the claim had not been assigned." The assignment agreements entered into by the Receiver with each of the thirty-eight Assignors are central to Mayer Brown's contention that the assignments provide benefits to the Assignors, as each assignment states that "any recoveries made on [the Receiver's] Claims [related to the individual assignor's investment in the funds] shall benefit all creditors and investors ... to the extent determined appropriate by the Receiver or directed by the Court ...." Mayer Brown furthermore noted that the Assignors "agree[d] to provide reasonable cooperation and assistance to the Receivers' (sic) legal counsel and/or the Receiver in connection with the Claims" and set forth details of this cooperation and assistance, including an agreement to appear for deposition and "delivering a sworn or written statement of facts known to Assignor."

Newman responded that the Assignors were not parties and Mayer Brown should therefore use subpoenas and "discovery devices that are appropriate for non-parties."

The trial court granted Mayer Brown's motion to compel. The order states that the Assignors "shall be treated as parties to the case for discovery purposes in producing documents and appearing for deposition ... with the same protections and obligations applying to the Assignors as apply to [the] parties." (emphasis added). The Receiver filed the instant petition seeking certiorari review of the order.

Analysis

"[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston , 655 So.2d 91, 94 (Fla. 1995). The critical inquiry for jurisdictional purposes is whether the order "creates material harm irreparable by postjudgment appeal." Bared & Co. v. McGuire , 670 So.2d 153, 156-57 (Fla. 4th DCA 1996) (quoting Parkway Bank v. Fort Myers Armature Works, Inc. , 658 So.2d 646, 649 (Fla. 2d DCA 1995) ).

The Receiver makes several arguments in his petition, the main one being that because the Assignors are nonparties, the trial court departed from the essential requirements of the law by compelling them to respond to discovery requests without notice. He contends that Florida Rule of Civil Procedure 1.351 mandates that only a subpoena can compel discovery of nonparties. The Receiver cites to Parker v. James , 997 So.2d 1225 (Fla. 2d DCA 2008), and Graham v. Dacheikh , 991 So.2d 932 (Fla. 2d DCA 2008), among others, to assert the general proposition that an order requiring production of nonparties without notice "departs from the essential requirements of the law and causes irreparable injury to the privacy rights of nonparties who have been given no notice and no opportunity to be heard in this proceeding." Graham , 991 So.2d at 933.

Mayer Brown answers that the cases relied upon by the Receiver involve traditional nonparties who lack a direct stake in the litigation. The assignors in the instant case, by contrast, retain a financial interest.

We agree that the cases cited by the Receiver are distinguishable. First, the Assignors are not traditional "nonparties" under Rule 1.351. As noted above, the Receiver entered into a contractual agreement with each of the thirty-eight Assignors, in which the Receiver agreed that any recovery in litigation brought by the Receiver "shall benefit all creditors and investors ... to the extent determined appropriate by the Receiver or directed by the Court." As the Receiver's attorney admitted at the hearing on the motion to compel, the Assignors stand to gain "something in the hundreds of millions of dollars" should the Receiver prevail in the underlying action.

Though we can find no Florida case on point, various federal courts have held, under the similarly-worded Federal Rules of Civil Procedure, that because assignors retained substantial, financial interests in their assigned claims, they could be treated as de facto parties for purposes of discovery "when to do otherwise would frustrate discovery, regardless of whether this frustration is intentional or not." In re Infant Formula Antitrust Litig. , No. MDL 878, 1992 WL 503465, at *9 (N.D. Fla. Jan. 13, 1992) (citing Natta v. Hogan , 392 F.2d 686, 691 (10th Cir. 1968) ). See also Royal Park Invs. SA/NV v. Deutsche Bank Nat'l Tr. Co. , No. 14-CV-4394, 2016 WL 4613390, at *3 (S.D.N.Y. Aug. 31, 2016) (holding that "an assignee, pressing the rights of its assignors ... must also assume the discovery obligations of those assignors."); JPMorgan Chase Bank v. Winnick , 228 F.R.D. 505, 506 (S.D.N.Y. 2005) ("It is both logically inconsistent and unfair to allow the right to sue to be transferred to assignees ... free of the obligations that go with litigating a claim."); Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd. , 171 F.R.D. 135, 148 (S.D.N.Y. 1997) (holding that it would be "anomalous" for an assignor bank that had a "substantial interest" in the underlying case, to assign its claims and "to frustrate [the defendant's] right to discover documents in [the assignor's] possession.").

These federal cases recognize, as do we, that it would be patently unfair to allow assignors to use the assignment contract as both a shield and a sword, allowing them on the one hand to evade good faith discovery requests by adverse parties, and on the other ultimately reap the benefits of any damages awarded to them by way of their assigned actions. See, e.g. , JPMorgan Chase Bank , 228 F.R.D. at 506 ("If the plaintiff's theory carried the day, the assignor would be able to assign a claim more valuable than it could ever have, because its claim, if pursued by the assignor, would entail certain obligations that, when assigned, would magically disappear."). See also In re Skelaxin (Metaxalone) Antitrust Litig. , No. 1:12-md-2343, 2014 WL 129814, at *2 (E.D. Tenn. Jan. 10, 2014) (holding that "it would be wholly unfair for Plaintiffs to step into the shoes of the assignors for the purposes of bringing their claims and not also assume a claimant's attendant discovery obligations.").

Not only do the Assignors in this case have a financial interest in the litigation, but they also agreed in the assignment contracts entered into with the Receiver to contribute to discovery matters during the course of litigation, including "delivering ... sworn or written statements of facts known to Assignor," reviewing documents, "answering questions and providing information dealing with Assignor and the claims," and appearing for depositions. By agreeing to submit themselves to discovery, the Assignors have essentially waived their Rule 1.351 argument, thereby failing to establish that the trial court's discovery order departed from the essential requirements of the law and/or caused irreparable harm. In fact, for the most part, the order that is challenged in this petition did little more than compel the Assignors to do what they previously agreed to do in their agreements with the Receiver, and the order expressly states that the Assignors have the "same protections obligations" that apply to parties.

As a final point, there is no evidence in the record or in the briefs filed in this action indicating that Mayer Brown has failed to accommodate any genuine issues presented by the Receiver or any of the Assignees with respect to discovery requests. "Procedural due process requires both fair notice and a real opportunity to be heard." Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth. , 795 So.2d 940, 948 (Fla. 2001). Here, the record evidence demonstrates that the Receiver is in an adequate position to reasonably apprise the Assignors of any impending discovery requests, and that it has done so. The fact that the Assignors entered into an assignment contract, in which they explicitly agreed to comply with any discovery requests sent to them by the Receiver, further obviates any notice concerns.

Conclusion

Because the trial court's discovery order did not depart from the essential requirements of the law, and because the Receiver and the Assignors have failed to show the order to compel will cause material injury or irreparable harm, we deny the petition. The assignment contract requires the Assignors to assist in discovery, and so Rule 1.351 is inapplicable to the facts of this case. Furthermore, there are no notice or due process violations here. The record shows that the Receiver can adequately contact the Assignors to produce discovery, and has in fact already done so. Accordingly, Mayer Brown is entitled to discovery from the Assignors, just as if the Assignors had brought this action themselves on their own claims.

Petition denied .

Gerber, C.J., concurs.

Warner, J., dissents with opinion.

Warner, J., dissenting.

I would grant the petition, as the trial court departed from the essential requirements of law in asserting jurisdiction over persons who were not brought before the court in accordance with the rules or statutes. However, based upon the agreement between the non-parties who assigned their claims in this litigation to the Receiver, the trial court can compel the Receiver to produce the assignors, the failure of which could result in the striking of the recalcitrant assignor's claim.

As noted in the majority, in the proceedings, Mayer Brown sought discovery from the Assignors. Specifically, it propounded to Receiver requests to produce documents of assignors and also attempted to schedule their depositions without the necessity of subpoenas. Receiver argued the Assignors were non-parties. Therefore, Mayer Brown was required to comply with the Rules of Civil Procedure for the production of documents or depositions from non-parties. Mayer Brown moved to compel the Receiver to produce the documents and to arrange for depositions of the individual assignors. Should the Receiver fail to do so, Mayer Brown requested that Receiver not be allowed to pursue the assignors' claims. Only the Receiver was served with notice of the motion and hearing on it.

The trial court granted Mayer Brown's motion, but it vastly expanded it to hold that Assignors were "parties" to the proceeding for discovery purposes. The court ordered:

Assignors shall be treated as parties to the case for discovery purposes in producing documents and appearing for deposition, and shall respond to notices of deposition and document requests directed to the Assignors as if the Assignors were parties to the case, with the same protections and obligations applying to the Assignors as apply to parties.

Receiver filed this petition for certiorari contending that the court had departed from the essential requirements of law, causing irreparable harm not remediable on appeal, as the assignors were never brought before the court before being declared parties to the proceeding for discovery.

I would hold that the trial court departed from the essential requirements of law. Assignors were never brought before the court by subpoena and had no notice of the motion to compel. As such, without notice or opportunity to be heard, they have been subject to the jurisdiction of the Florida courts. This is a denial of due process. See Dep't of Children & Families v. T.S ., 154 So.3d 1223, 1226 (Fla. 4th DCA 2015) ("Notice and an opportunity to be heard are the hallmarks of due process.")

The Rules of Civil Procedure provide for the production of documents and depositions of non-parties. See generally Fla. R. Civ. P. 1.310, 1.350. Depositions of non-parties require the service of a subpoena. See Fla. R. Civ. P. 1.410. A non-party who disobeys a subpoena can be held in contempt. See Fla. R. Civ. P. 1.410(f). A subpoenaed non-party can also be liable for costs and attorney's fees for failing to comply with discovery. See Fla. R. Civ. P. 1.380(a)(4). However, there is no provision in the rules to make non-parties subject to the jurisdiction of the court, and thus, its authority to sanction, without some service of process or subpoena.

The trial court relied on federal cases which have treated assignors as parties so as not to frustrate discovery. See Natta v. Hogan , 392 F.2d 686, 691 (10th Cir. 1968) ; see In re Infant Formula Antitrust Litig ., No. MDL 878, 1992 WL 503465, at *9 (N.D. Fla. Jan. 13, 1992) ; see Compagnie Francaise D'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co. , 105 F.R.D. 16, 34 (S.D.N.Y. 1984). These cases all allowed discovery because the courts found that the assignors were the real parties in interest in the litigation.

There is no statute or rule in Florida which permits the trial court to deem real parties in interest, not joined as actual parties in an action, as subject to the jurisdiction of the court for purposes discovery. In North Ridge Medical Plaza v. Tenet Healthcare Corporation , 719 So.2d 1014, 1015 (Fla. 4th DCA 1998), we held that a beneficial owner of property or a real party in interest must be subpoenaed for deposition. The trial court's ruling is directly contrary to North Ridge.

We are not at liberty to change our rules and statutes to achieve a desired result. Therefore, the trial court's order deeming these assignors as subject to the court's jurisdiction departs from the essential requirements of law.

The court would have been within its jurisdiction to grant the relief that Mayer Brown requested in its motion. Each assignor had agreed in its assignment to cooperate with the Receiver with respect to discovery, including production of documents and appearing at a deposition and trial. Thus, there was a contractual relationship between the Receiver and Assignor with respect to discovery in the case. Mayer Brown sought to compel the Receiver to produce documents from the assignors and to depose the assignors. Given the Receiver's obligation to provide discovery as a party and the assignor's contractual obligation with the Receiver, the trial court could compel the Receiver to produce documents or the assignor for deposition, and if the Receiver failed to do so, the assignor's claim may be dismissed from the suit. This would be consistent with the rules and with due process. The assignor would not be personally subject to sanctions, costs, or attorney's fees without due process of law, yet Mayer Brown would have a method to enforce discovery obligations against the Receiver.

For the foregoing reasons, I dissent from the denial of the petition for writ of certiorari.

      Ernst & Young was also a defendant in the case, but the instant petition does not involve it.

      The four hedge funds are (1) Founding Partners Stable-Value Fund, L.P.; (2) Founding Partners Stable-Value Fund II, L.P.; (3) Founding Partners Hybrid-Value Fund, L.P.; and (4) Founding Partners Global Fund, Ltd.

      The Assignors are individuals, IRAs, trusts, LLCs, partnerships, and other entities.

      The complaint contends Mayer Brown is guilty of (1) professional malpractice; (2) aiding and abetting breaches of fiduciary duty; (3) aiding and abetting fraud; (4) aiding and abetting breaches of statutory duties; (5) negligent misrepresentation; and (6) fraud.

      Rule 1.351 states in relevant part that "[a] party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things." Fla. R. Civ. P. 1.351(a).

      Federal Rule of Civil Procedure 34 requires, just like Rule 1.351, that a court first issue a subpoena before compelling certain discovery of nonparties. Fed. R. Civ. P. 34.


author: Taylor, J.

text:
    Gustav RENNY, Appellant, v. Erikah BERTOLOTI, Appellee.
    No. 4D17-2068
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Bryan J. Yarnell of Bryan J. Yarnell, PLLC, North Palm Beach, for appellant.
    Alexandra Sierra-De Varona of De Varona Law, Boca Raton, for appellee.
   Taylor, J.

Gustav Renny appeals two orders: (1) an order denying his motion to enforce a settlement agreement with Appellee Erikah Bertoloti that was reached pursuant to the offer of judgment statute; and (2) an order dismissing Bertoloti from the lawsuit pursuant to a separate settlement agreement between appellant and other parties to the lawsuit. For the reasons that follow, we reverse both orders.

In 2015, appellant sued Ilia Mogilevsky and a multitude of other defendants. Appellant later filed an Amended Complaint adding Appellee Erikah Bertoloti as a defendant in the lawsuit. Appellant eventually filed the operative Third Amended Complaint, which contains one count relevant to Bertoloti.

In the relevant count, appellant brought a claim against Mogilevsky and Bertoloti for violating 18 U.S.C. § 2510, et seq., by unlawfully intercepting appellant's oral communications. Specifically, appellant alleged that he and Mogilevsky shared an office, Mogilevsky employed Bertoloti as a secretary, Mogilevsky influenced Bertoloti "to secretly record [appellant's] conversations," and both Bertoloti and Mogilevsky were liable for causing appellant's oral communications to be recorded without appellant's knowledge or consent.

On November 4, 2016, Bertoloti served a proposal for settlement on appellant in the amount of $13,350. The proposal required appellant to sign a general release and to execute a Notice of Voluntary Dismissal as to Bertoloti. The release also contained the following covenant: "[Appellant] hereby additionally covenants not to sue [Bertoloti] or to file any complaint of any kind whatsoever with any federal, state, or local governmental body, agency, or instrumentality arising out of or in any way relating to any of the Released Matters."

On November 29, 2016, before accepting Bertoloti's proposal for settlement, appellant and related parties (collectively the "Renny Parties") executed a Confidential Settlement Agreement ("CSA") with Mogilevsky and related parties (collectively the "Mogilevsky Parties") to resolve both the instant lawsuit and a separate lawsuit brought by the Mogilevsky Parties.

The CSA also identified certain Secondary Parties, i.e., an entity called LendingOne and its counsel, "who are not parties to this Settlement Agreement but are or may be impacted hereby." The Secondary Parties were parties to the separate Mogilevsky lawsuit.

Bertoloti was not a party to the CSA, nor was she a Secondary Party to the CSA. Notably, there were 55 parties identified in the CSA as Mogilevsky Parties, and Bertoloti was not among them.

Paragraph 3 of the CSA required appellant to dismiss all claims he had "against all parties in the lawsuits with prejudice" in the event the Mogilevsky Parties entered into a settlement with either of the Secondary Parties.

Paragraph 7 of the CSA provided that the parties "shall not disclose the existence of this Settlement Agreement to any other parties to the Renny or Mogilevsky Actions" until a final settlement with the Secondary Parties had been reached or a dismissal of the Renny and Mogilevsky actions had occurred.

Paragraph 8 of the CSA provided for a general mutual release between the Mogilevsky Parties and the Renny Parties and their respective employees and agents.

Paragraph 9 of the CSA required the parties to execute a Notice of Voluntary Dismissal in the lawsuits, which would be held in escrow until a final settlement agreement was reached between the Mogilevsky Parties and each of Secondary Parties, at which point it would be filed with the court.

Exhibit "B" to the CSA included a Notice of Voluntary Dismissal which required appellant to "voluntarily dismiss with prejudice any and all claims, cross-claims and counterclaims that have been or could have been brought in the above captioned actions."

On December 2, 2016, four days after signing the CSA, appellant accepted Bertoloti's proposal for settlement (the "Renny-Bertoloti settlement").

On January 12, 2017, appellant filed a motion to enforce settlement agreement and for entry of final judgment against Bertoloti. Appellant alleged that his acceptance of the proposal for settlement created a binding settlement agreement and that Bertoloti breached the agreement by failing to make any payment toward the settlement.

By January 13, 2017, the Mogilevsky Parties and the Secondary Parties finalized a settlement and voluntarily dismissed with prejudice all claims against each other.

In March 2017, appellant filed a notice of voluntary dismissal of all parties except Bertoloti.

In April 2017, Mogilevsky and Bertoloti filed an amended motion to enforce the CSA, arguing that the CSA required appellant to dismiss all parties, including Bertoloti, because the Mogilevsky Parties had finalized a settlement with a Secondary Party. Furthermore, they argued that Bertoloti was released from liability as a third party beneficiary of the CSA's general release of the Mogilevsky Parties and their employees, because the Third Amended Complaint alleged that Mogilevsky "employed Bertoloti as a secretary."

The trial court granted Bertoloti's motion to enforce and denied appellant's motion to enforce. The trial court ruled that Bertoloti was a third party beneficiary of the CSA, that the CSA required appellant to dismiss Bertoloti from the lawsuit with prejudice, that the required dismissal served as a release of all claims against Bertoloti, and that Bertoloti was given no additional consideration for her proposal for settlement once appellant agreed to dismiss Bertoloti pursuant to the CSA. This appeal ensued.

Boiled down to its essence, the issue on appeal is whether the settlement agreement reached under the offer of judgment statute is enforceable even though, at the time appellant had accepted Bertoloti's proposal for settlement, appellant had already entered into a settlement agreement with other parties to the lawsuit that required the dismissal of Bertoloti upon the other parties' satisfaction of a contractual obligation.

"The standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 is de novo because a proposal for settlement is in the nature of a contract." Brower-Eger v. Noon , 994 So.2d 1239, 1240-41 (Fla. 4th DCA 2008). Likewise, we review the interpretation of the settlement agreement de novo. Patterson & Maloney v. Gumberg , 828 So.2d 403, 405 (Fla. 4th DCA 2002).

As a preliminary matter, we conclude that Bertoloti's proposal and appellant's acceptance complied with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, creating a settlement agreement tantamount to a consent judgment that the trial court had continuing jurisdiction to enforce under section 768.79(4). See Mady v. DaimlerChrysler Corp. , 59 So.3d 1129, 1131, 1134 (Fla. 2011) (holding that a settlement reached under Florida's offer of judgment statute "is tantamount to a consent judgment" and represents a "judicially sanctioned change" in the parties' legal relationship).

Turning to the substance of the dispute, we conclude that nothing in the CSA renders the Renny-Bertoloti Settlement unenforceable.

First, we find that Bertoloti had not been released under paragraph 8 of the CSA at the time appellant accepted her proposal for settlement. Although appellant alleged in his complaint that Bertoloti was employed by Mogilevsky, "[a] complaint, as a pleading, is merely a tentative outline of the position which the pleader takes before his case is fully developed on the facts through discovery and evidence." Paul v. Humana Med. Plan, Inc. , 682 So.2d 1119, 1123 (Fla. 4th DCA 1996). In this case, there is no record evidence that Bertoloti was an employee or agent of any of the Mogilevsky Parties.

In the litigation, Bertoloti signed an affidavit attesting that: (1) from May 2014 to January 2015, she was an employee doing secretarial work for Maxim Real Estate Holdings, LLC; and (2) from February 2015 to the present, she was working as an independent contractor doing secretarial work for Ilia Capital, LLC. However, neither Maxim Real Estate Holdings, nor Ilia Capital, is listed in the CSA as a Mogilevsky Party. Thus, while Bertoloti may have been an employee or agent of either Maxim Real Estate Holdings or Ilia Capital, her affidavit indicates that she was not an employee or agent of a Mogilevsky Party.

Moreover, even assuming that Bertoloti was an employee or agent of a Mogilevsky Party, our reading of the CSA as a whole indicates that Bertoloti was not an intended third party beneficiary of the CSA. A party is an intended third party beneficiary of a contract "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." Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd. , 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

Here, the very fact that the CSA does not mention Bertoloti at all-even though she was a party defendant to appellant's underlying lawsuit-indicates that the CSA was not intended to "primarily and directly" benefit Bertoloti. In fact, Bertoloti was not even identified as one of the Secondary Parties who "are or may be impacted" by the CSA. Furthermore, the parties to the CSA were barred from disclosing its existence to Bertoloti for a period of time, which further supports the conclusion that Bertoloti was not an intended third party beneficiary of the CSA. Had the CSA truly been intended to release Bertoloti immediately upon its execution, we believe it would have said so more explicitly.

Second, we find that the Renny-Bertoloti Settlement is not unenforceable merely because the CSA contained a provision requiring the dismissal of Bertoloti from the lawsuit in the event the Mogilevsky Parties entered into a settlement with either of the Secondary Parties.

The general rule is that a dismissal with prejudice "is equivalent to or tantamount to a release." Eason v. Lau , 369 So.2d 600, 601 (Fla. 1st DCA 1978). However, although a voluntary dismissal with prejudice divests the trial court with jurisdiction to enforce a settlement agreement, the dismissal does not preclude a party from bringing a new breach of contract action to enforce the settlement agreement. MCR Funding v. CMG Funding Corp. , 771 So.2d 32, 35 (Fla. 4th DCA 2000). Likewise, the doctrine of res judicata does not bar a party from filing a separate action to enforce a settlement agreement after litigation has been terminated by a voluntary dismissal with prejudice. Oceanair of Fla., Inc. v. Beech Acceptance Corp. , 545 So.2d 443, 443 (Fla. 1st DCA 1989).

Here, we find that the dismissal provision in paragraph 3 of the CSA did not serve as a release of any claim appellant had against Bertoloti for breach of the Renny-Bertoloti Settlement. Paragraph 3 of the CSA required appellant to dismiss all claims he had "against all parties in the lawsuits with prejudice" in the event the Mogilevsky Parties entered into a settlement with either of the Secondary Parties. However, Bertoloti had not been dismissed from the lawsuit pursuant to the CSA prior to appellant accepting Bertoloti's proposal for settlement. Moreover, appellant's duty to dismiss Bertoloti from the lawsuit had not arisen under the CSA at the time appellant accepted Bertoloti's proposal for settlement, as the Mogilevsky Parties had not yet entered into a settlement with a Secondary Party.

Accordingly, we find that the dismissal provision in paragraph 3 of the CSA does not bar any claim appellant has against Bertoloti for breach of the Renny-Bertoloti Settlement, because: (1) appellant accepted the proposal for settlement before Bertoloti had been dismissed from the lawsuit and before appellant's duty to dismiss Bertoloti from the lawsuit had arisen under the CSA; and (2) a voluntary dismissal with prejudice does not constitute a release of a claim for breach of a settlement agreement concerning the underlying litigation.

Third, we conclude that the Renny-Bertoloti Settlement was supported by consideration on the part of appellant. This conclusion is supported by the following reasons: (1) Bertoloti had not already been released or dismissed at the time appellant accepted her proposal for settlement; (2) any duty to dismiss Bertoloti from the lawsuit was not owed to Bertoloti under the CSA, but instead was owed to the Mogilevsky Parties; and (3) the Renny-Bertoloti Settlement provided a broader release than the general release in the CSA. See Mangus v. Present , 135 So.2d 417, 419 (Fla. 1961) (consideration is present so long as there is any detriment to the promisee or benefit to the promisor); Scherer v. Laborers' Int'l Union of N. Am. , 746 F.Supp. 73, 83 (N.D. Fla. 1988) ("The performance of a pre-existing duty may be consideration if the duty is not owed to the promisor.").

In sum, we hold that the Renny-Bertoloti Settlement was enforceable as a consent judgment, that Bertoloti was not an intended third party beneficiary of the CSA, that Bertoloti was not released by either the CSA or by a voluntary dismissal before appellant accepted her proposal for settlement, and that the CSA did not release any claim appellant had against Bertoloti for breach of the Renny-Bertoloti Settlement. We therefore reverse the orders on appeal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

Warner and Levine, JJ., concur.

      Because a voluntary dismissal with prejudice does not preclude a subsequent action for breach of a settlement agreement concerning the underlying litigation, see MCR Funding , 771 So.2d at 35, it necessarily follows that a voluntary dismissal with prejudice would not serve as release of any claim appellant has against Bertoloti for breach of the Renny-Bertoloti Settlement.


author: Gross, J.

text:
    Travis L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2157
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

We affirm appellant's convictions and write to address one issue.

Appellant was jointly tried along with his co-defendant. At trial, the state sought to introduce a still photograph taken from the convenience store security video to show that appellant's mother had previously identified the co-defendant in the photograph, which had her initials written at the top. Following Ibar v. State , 938 So.2d 451 (Fla. 2006), the trial court precluded the admission of the photograph. During trial, the co-defendant asked certain questions of a detective on cross-examination regarding prior identifications, which, as the trial court ruled, opened the door to the evidence previously held inadmissible.

On appeal, appellant challenges the admission of that testimony against him. He relies on United States v. White , 887 F.2d 267 (D.C. Cir. 1989), which holds that the opening-the-door doctrine does not apply to testimony elicited by co-defendants. White clearly states its holding:

The prosecution may not gain, through the device of a joint trial, admission against one defendant of otherwise inadmissible evidence on the happenstance that the door to admitting the evidence has been opened by a co-defendant.

Id. at 270.

We do not reach the White issue because appellant failed to preserve it by raising the "specific ground" of the objection at trial. § 90.104(1), Fla. Stat. (2017) ; Vergara v. State, 486 So.2d 14, 15 (Fla. 3d DCA 1986) (appellant's failure to specifically object at trial failed to preserve his objection based on Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ). Appellant's objection to "hearsay" at trial was insufficient to put the court on notice of the White issue he now raises on appeal.

Affirmed .

Conner and Klingensmith, JJ., concur.


author: Per Curiam.

text:
    Al Legett BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3308
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Al Legett Burgess, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals his aggravated sentences of life in prison for kidnapping with a deadly weapon and sexual battery with a deadly weapon as well as his designation as a sexual predator. Although appellant was also sentenced to thirty years for aggravated battery with a deadly weapon, he does not challenge that sentence. Appellant raises five issues on appeal. We find them all to be without merit. However, we remand for the trial court to correct a scrivener's error in the basis for designating appellant a sexual predator. The written order mistakenly based the designation on a conviction for sexual battery upon a child under section 794.011(2)(a). In fact, appellant was convicted of armed sexual battery on a person over twelve but under eighteen under section 794.011(4)(a). As such, we remand for correction of this scrivener's error to reflect the correct offense that formed the basis for the sexual predator designation.

Affirmed and remanded.

Damoorgian, Levine and Kuntz, JJ., concur.


text:
    Antrawn D. PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1317
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Antrawn D. Price, Madison, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Harrison v. State , 765 So.2d 159 (Fla. 5th DCA 2000) (finding that where appellant fails to show that his sentence would be different had he been sentenced under the prior version of the statute, his Florida Rule of Criminal Procedure 3.800 claim fails).

Warner, May and Levine, JJ., concur.


author: Kuntz, J.

text:
    Brandon Roshawn S. GRANGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-603
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Brandon Roshawn S. Granger, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Brandon Granger appeals the circuit court's denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He argues the imposition of a twelve-year sentence after his probation violation is illegal because he committed only a technical violation, and the new sentence exceeds his original youthful offender sentence. We affirm.

We write to note that this Court's opinions have consistently required a court to maintain a defendant's youthful offender status even when being resentenced on a substantive probation violation. See, e.g. , Larkins v. State , 159 So.3d 386, 386 (Fla. 4th DCA 2015) ; Smith v. State , 143 So.3d 1023, 1024-25 (Fla. 4th DCA 2014) ; St. Cyr v. State , 106 So.3d 487, 488-89 (Fla. 4th DCA 2013) ; Lachenauer v. State , 117 So.3d 880, 880-81 (Fla. 4th DCA 2013) ; Johnson v. State , 41 So.3d 1115, 1115 (Fla. 4th DCA 2010) ; Rogers v. State , 972 So.2d 1017, 1019-20 (Fla. 4th DCA 2008). The Florida Supreme Court has now expressly disapproved of each of these cited cases and held that "when a youthful offender commits a substantive violation of probation and the trial court elects to impose a sentence in excess of the six-year cap, the sentence necessarily becomes an adult [Criminal Punishment Code] sentence such that the defendant does not retain his or her 'youthful offender status.' " Eustache v. State , 248 So.3d 1097, (Fla. July 12, 2018). Thus, in this case, the court was not required to maintain the defendant's youthful offender status on resentencing.

Affirmed.

Ciklin and Conner, JJ., concur.


text:
    Norris COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-644
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The state filed an affidavit alleging eleven counts of appellant's having violated his probation. Three of the counts related to failure to pay restitution and costs (counts 1-3), six counts related to fleeing from the police in a car chase (counts 4-9), and two counts related to aggravated child abuse (counts 10-11). The trial court found willful and substantial violations for all of the counts except counts 1, 8, and 9. As to those counts for which the court found willful and substantial violations, the court found that the failure to pay restitution and court costs did not warrant a prison sentence (counts 2-3). However, the court found that the car chase and child abuse (counts 4-7 and 10-11) did warrant a prison sentence and sentenced appellant to twelve years in prison for the robbery offense underlying appellant's probation.

We affirm the order revoking appellant's probation and imposing sentence. However, we remand with instructions for the trial court to strike the violations for failure to pay restitution and court costs because the record does not demonstrate that appellant had the ability to pay those costs. See Del Valle v. State , 80 So.3d 999, 1011 (Fla. 2011) ; Allen v. State , 464 So.2d 256, 256 (Fla. 4th DCA 1985). Because the trial court expressly stated that the violation for those two counts did not warrant a prison sentence and that its sentence was based on the other violations, "it is clear from the record that the trial court would have revoked probation and imposed the same sentence based solely upon the remaining counts ...." Mata v. State , 31 So.3d 257, 260 (Fla. 4th DCA 2010). Therefore, we affirm the order revoking probation but remand for the trial court to strike its findings of violations for counts 2 and 3.

Affirmed and remanded.

Levine, Forst, JJ., and Artau, Edward L., Associate Judge, concur.


text:
    Avion LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3671
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Hart v. State , 246 So.3d 417 (Fla. 4th DCA 2018) (en banc). Although two members of this panel dissented in Hart , we affirm because we are bound by Hart , which is currently the law of this district. We again certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

Warner, May and Ciklin, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. RIVERSIDE MEDICAL ASSOCIATES, INC., a/a/o Normadel Burke, and James Baylis, Respondents.
    No. 4D18-1185
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Michael J. Neimand, House Counsel, Miami, and Eric G. Belsky of Leiter Belsky & Tharp, Fort Lauderdale, for petitioner.
    Henry A. Seiden of Seiden Law, Delray Beach, for respondent Riverside Medical Associates, Inc., a/a/o Normadel Burke.
   Per Curiam.

We grant the petition for writ of certiorari. The circuit court's order granting plaintiff's motion to amend a complaint to add a punitive damages claim fails to make "an affirmative finding that the plaintiff made a 'reasonable showing by evidence,' which would provide a 'reasonable evidentiary basis for recovering such damages....' " Leinberger v. Magee , 226 So.3d 899, 901 (Fla. 4th DCA 2017) (quoting Varnedore v. Copeland , 210 So.3d 741, 747-48 (Fla. 5th DCA 2017) ); see also Petri Positive Pest Control, Inc. v. CCM Condo. Assoc., Inc. , 174 So.3d 1122 (Fla. 4th DCA 2015) ; Henn v. Sandler , 589 So.2d 1334, 1335 (Fla. 4th DCA 1991) (en banc) (stating that section 768.72, Florida Statutes creates "a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury").

We quash the order under review which rules that the "motion is granted" and remand to the circuit court "to enter its affirmative findings or, if necessary, hold further proceedings consistent with this opinion." Petri Positive , 174 So.3d at 1122.

WARNER, GROSS and KUNTZ, JJ., concur.


text:
    Barbara MOLINA, Appellant, v. Joseph Richard VALENZUELA, Appellee.
    No. 4D17-2379
    District Court of Appeal of Florida, Fourth District.
    May 16, 2018
    William M. Layton of Harvey Waddell & Layton, Lake Worth, for appellant.
    No appearance required for appellee.
    ON RESPONSE TO ORDER TO SHOW CAUSE
   Kuntz, J.

Joseph Richard Valenzuela filed a petition in the circuit court seeking an injunction for protection against stalking and asked the court to prevent Barbara Molina from "coming to my home or talking to me!" The court denied a request for a temporary injunction and set the petition for an evidentiary hearing. After a brief but thorough hearing, the court issued a final judgment of injunction for protection against stalking, granting Valenzuela's petition and ordering Molina not to go or be within five feet of Valenzuela's house or place of employment; be within one hundred feet of his vehicle; or have any contact with him. The injunction expressly stated it was in effect until December 29, 2017.

Molina appeals the court's final judgment. But, because the injunction expired by its own terms, we issued an order to show cause requiring Molina to state why this appeal is not moot. Molina responded, stating that she requests a ruling on the appropriateness of the court's actions and so the public records reflect that none of her actions violated Florida law.

The mootness scenario presented here is like that discussed in Bevan v. Wolfson , 638 So.2d 527 (Fla. 2d DCA 1994). In Bevan , the circuit court issued two injunctions for protection against repeat violence. Id. at 527. Both injunctions expired and were no longer in effect, leading the court to issue an order to show cause on mootness. Id.

The court explained that there are three exceptions to the mootness rule: (i) questions of great public importance; (ii) when issues are likely to recur; and (iii)

where collateral legal consequences affecting the rights of a party flow from the issue in the case. Id . (citing Godwin v. State , 593 So.2d 211, 212 (Fla. 1992) ). The Bevan court found that none of the three exceptions applied and that the appeal should be dismissed. Id. As the Bevan court did, we also find that none of the three exceptions apply to this case. See also Operation Rescue Nat'l v. City of Orlando , 712 So.2d 449, 451 (Fla. 5th DCA 1998).

Finally, although Molina does not raise the issue, to prevent confusion we note that the third mootness exception applies when the injunction is for the protection against domestic violence. E.g. , Rodman v. Rodman , 48 So.3d 1022, 1022 (Fla. 1st DCA 2010). Collateral consequences that flow from an injunction for the protection against domestic violence prevent application of the mootness doctrine. One such collateral consequence is a potential prohibition on owning a firearm. Boyles v. Tiefenthaler , 810 So.2d 1041 (Fla. 2d DCA 2002) ("Although the six-month injunction has expired by its own terms, this case is not moot because the issuance of the injunction prevents Boyles from carrying a gun under federal law and thus affects her career in law enforcement."). But the injunction at issue is not an injunction for protection against domestic violence and, regardless, Molina does not argue that there may be collateral consequences relating to her ability to possess a firearm, or any other collateral consequences.

The injunction appealed expired by its own terms. Thus, the appeal is dismissed as moot.

Dismissed as moot.

Taylor and May, JJ., concur.


author: SLEET, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MRI ASSOCIATES OF TAMPA, INC., d/b/a Park Place MRI, Appellee.
    Case No. 2D16-4036
    District Court of Appeal of Florida, Second District.
    Opinion filed May 18, 2018
    D. Matthew Allen of Carlton Fields Jorden Burt, P.A.; Chris W. Altenbernd of Banker Lopez Gassier P.A., Tampa and Marcy Levine Aldrich and Nancy A. Copperthwaite of Akerman LLP, Miami, for Appellant.
    David M. Caldevilla of de la Parte & Gilbert, P.A.; Kristin A. Norse and Stuart C. Markman of Kynes, Markman, Felman, P.A.; Craig E. Rothburd of Craig E. Rothburd, P.A., John V. Orrick, Jr., of the Law Offices of John V. Orrick, P.L., Tampa, and Scott R. Jeeves of Jeeves Law Group, P.A., St. Petersburg, for Appellee.
   SLEET, Judge.

State Farm Mutual Automobile Insurance Company appeals the final declaratory judgment denying its motion for summary judgment and entering final judgment in favor of MRI Associates of Tampa, Inc., d/b/a Park Place MRI (Park Place). The circuit court ruled that State Farm's Personal Injury Protection (PIP) policy failed to clearly and unambiguously elect to limit reimbursement payments to the schedule of maximum charges described in section 627.736(5)(a)(1) - (5), Florida Statutes (2013). Because the express language of State Farm's PIP policy does clearly and unambiguously elect to limit reimbursement payments for medical expenses to the schedule of maximum charges, we reverse.

The facts are undisputed in this case. This action arises from nineteen individual PIP claims involving State Farm insureds who were injured in automobile accidents in 2013, received MRIs from Park Place, and subsequently executed assignments of benefits to Park Place. Park Place submitted the bills to State Farm under the insureds' PIP policies, and State Farm paid portions of each of the nineteen bills in accordance with its interpretation of its policy. Park Place disputed the amounts paid by State Farm, and State Farm filed an action seeking a declaration of its rights and obligations under its policy and the PIP statute, section 627.736. Park Place countersued, seeking a declaration of its rights and obligations under the State Farm policy and the PIP statute and an injunction to prevent State Farm from limiting its payments for charges to the schedule of maximum charges.

To calculate the amount payable to Park Place for the MRI charges at issue, State Farm relied on the following language from its policy:

We will pay in accordance with the No-Fault Act properly billed and documented reasonable charges for bodily injury to an insured caused by an accident resulting from the ownership, maintenance, or use of a motor vehicle as follows:
....
We will limit payment of Medical Expenses described in the Insuring Agreement of this policy's No-Fault Coverage to 80% of a properly billed and documented reasonable charge , but in no event will we pay more than 80% of the following No-Fault Act "schedule of maximum charges" including the use of Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers.

The policy defines a reasonable charge as follows:

Reasonable Charge , which includes reasonable expense, means an amount determined by us to be reasonable in accordance with the No-Fault Act , considering one or more of the following:
1. usual and customary charges;
2. payments accepted by the provider;
3. reimbursement levels in the community;
4. various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages;
5. the schedule of maximum charges in the No-Fault Act [;]
6. other information relevant to the reasonableness of the charge for the service, treatment, or supply; or
7. Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, if the coding policy or payment methodology does not constitute a utilization limit.

The State Farm policy tracks the method of reimbursement calculation outlined in section 627.736(5)(a) and the limitation set forth in section 627.736(5)(a)(1). State Farm contends that it is authorized under the 2013 PIP statute to limit its maximum payment to eighty percent of the schedule of maximum charges under section 627.736(5)(a)(1). Park Place disagrees, arguing that State Farm must elect either the reasonable charge method of calculation under section 627.736(5)(a) or the schedule of maximum charges method of calculation under section 627.736(5)(a)(1) and that because its policy includes both, State Farm relies on an "unlawful hybrid method" of reimbursement calculation. Park Place contends that because State Farm cannot elect both calculation methods, it must use the reasonable charge method as outlined in the definitions section of its policy and section 627.736(5)(a). We disagree.

This court reviews a final summary judgment de novo. Motzenbecker v. State Farm Mut. Auto. Ins. Co., 123 So.3d 600, 602 (Fla. 2d DCA 2013) (reviewing a ruling on cross-motions for summary judgment where both parties sought declaratory relief); see also Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973, 975 (Fla. 2017) ("Because the question presented requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law-specifically, the PIP statute-as well as to interpret the insurance policy, our standard of review is de novo." (quoting Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147, 152 (Fla. 2013) ) ). " '[L]egislative intent is the polestar that guides a court's inquiry under the No-Fault Law,' including the PIP statute. 'Such intent is derived primarily from the language of the statute.' " Virtual Imaging, 141 So.3d at 154 (citation omitted) (quoting Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 334 (Fla. 2007) ).

In 1971 the Florida Legislature enacted the Florida Motor Vehicle No-Fault Law "to provide for medical, surgical, funeral, and disability insurance benefits without regard to fault[ ] and to require motor vehicle insurance securing such benefits." Id. at 152 (quoting § 627.731, Fla. Stat. (2008) ). The mandate that an insurer reimburse a percentage of the reasonable expenses for medically necessary services "is the heart of the PIP statute's coverage requirements." Id. at 155. Under the 2013 version of the PIP statute, an insurer is required to pay the reasonable charges for medically necessary services under section 627.736(5)(a) ; however, it may elect to limit its payment using the schedule of maximum charges under section 627.736(5)(a)(1). See Virtual Imaging, 141 So.3d at 150 ("[T]he PIP statute, section 627.736, requires the insurer to pay for 'reasonable expenses ... for medically necessary ... services' but merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements." (citation omitted) ). To make this election, the insurer must provide notice to the insured in the policy. § 627.736(5)(a)(5) ; see also Orthopedic Specialists, 212 So.3d at 976-77.

In Virtual Imaging, the Florida Supreme Court considered "the effect of the 2008 amendments [to the PIP statute] on an insurer's ability to limit reimbursements" before the legislature enacted the notice requirement in 2012. 141 So.3d at 154. The 2008 PIP statute contained language similar to the 2013 PIP statute regarding the reasonable charge calculation method and the schedule of maximum charges limitation in subsections (5)(a)(1) and (5)(a)(2), respectively. By placing the reasonable charge method and the fee schedules limitation in two separate but coequal subsections of 627.736(5)(a), the legislature created two distinct reimbursement calculation methodologies. Id. at 156 ("[T]here are two different methodologies for calculating reimbursements to satisfy the PIP statute's reasonable medical expenses coverage mandate."). The supreme court held that the statute thus "offered insurers a choice ... to limit reimbursements based on the Medicare fee schedules or ... based on the [reasonable charge] factors enumerated in section 627.736(5)(a)(1)." Id. at 157. Relying on the permissive language of section 627.736(5)(a)(2), the supreme court explained that an "insurer must clearly and unambiguously elect the [schedule of maximum charges] payment methodology in order to rely on it." Id. at 158 (citing Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67-68 (Fla. 4th DCA 2011) ). Because the insurer's policy made no specific reference to the schedule of maximum charges, the supreme court ultimately concluded that it could not limit its reimbursement based on those fee schedules. Id. at 160.

In Orthopedic Specialists, the supreme court considered the 2009 version of the PIP statute, which included language identical to the 2008 statute defining the reasonable charge and schedule of maximum charges calculation methodologies in subsections (5)(a)(1) and (5)(a)(2), respectively. Relying on Virtual Imaging, the supreme court reaffirmed that the reasonable charge calculation methodology and the schedule of maximum charges limitation were separate and distinct and that each individually "satisf[ied] the PIP statute's reasonable medical expenses coverage mandate." Orthopedic Specialists, 212 So.3d at 976. But the supreme court went on to explain that the insurer's "PIP policy cannot contain a statement that the insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute's reasonable medical expenses coverage mandate" and that the policy cannot "state that the insurer will calculate benefits solely under the Medicare fee schedules contained within section 627.736(5)(a)(2) because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive payment methodology." Id. at 977 (noting that the schedule of maximum charges outlined in section 627.736(5)(a)(2) contained both Medicare fee schedules and non-Medicare fee schedules). Accordingly, the supreme court expressly rejected the argument urged by Park Place in this appeal, that an insurer's policy must completely disclaim the reasonable charge methodology to elect the schedule of maximum charges limitation. Id. at 975 (rejecting the Fourth District's holding that a "policy must make it inescapably discernable that it will not pay the 'basic' statutorily required coverage [mandate of eighty percent of reasonable expenses for medically necessary services] and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement" (alteration in original) (quoting Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19, 26 (Fla. 4th DCA 2015) ) ). Because the insurer's policy "clearly and unambiguously state[d] that '[a]ny amounts payable' for medical expense reimbursements 'shall be subject to any and all limitations, authorized by section 627.736, ... including ... all fee schedules,' " the supreme court concluded that the policy adequately placed the insured and service providers on notice of the insurer's election of the schedule of maximum charges limitation. Id. at 977-78 (second alteration in original).

Significantly, neither Virtual Imaging nor Orthopedic Specialists applies to policies created after the 2012 amendment to the PIP statute, which the State Farm policy at issue in this case was. See Orthopedic Specialists, 212 So.3d at 974 ; Virtual Imaging, 141 So.3d at 150 ("[O]ur holding applies only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012.").

In 2012 the legislature substantially amended section 627.736(5), setting forth the schedule of maximum charges limitation as a subsection of the reasonable charge calculation methodology. Ch. 2012-197, § 10, at 2743-44, Laws of Fla. As a result of this amendment, the reasonable charge and schedule of maximum charges methodologies are no longer coequal subsections of 627.736(5)(a); instead the reasonable charge method is set forth in subsection (5)(a), and the schedule of maximum charges limitation is provided in subsection (5)(a)(1). Based on the current construction of the PIP statute, we conclude that there are no longer two mutually exclusive methodologies for calculating the reimbursement payment owed by the insurer. See Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So.3d 120, 126 (Fla. 2016) ("When a statute is amended to change a key term or to delete a provision, 'it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment.' " (quoting Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla.1977) ) ). The 2013 PIP statute includes the fact-dependent calculation of reasonable charges as a part of the definition of "[c]harges for treatment of injured persons" under section 627.736(5)(a). And an insurer may not disclaim the fact-dependent calculation; however, it may elect to limit its payment in accordance with the schedule of maximum charges under subsection (5)(a)(1)(a)-(f). Accordingly, we reject Park Place's argument that State Farm's policy contains an "unlawful hybrid method" of reimbursement calculation and is therefore impermissibly vague. State Farm's inclusion of the statutory factors in its definition of reasonable charges tracks the PIP statute and is not inconsistent with the policy language limiting reimbursement to the schedule of maximum charges.

"Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written." Orthopedic Specialists, 212 So.3d at 975-76 (quoting Washington Nat'l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) ). State Farm's policy clearly and unambiguously states that "in no event will we pay more than 80% of the ... No-Fault Act 'schedule of maximum charges.' " The policy also includes language virtually identical to that of section 627.736(5)(a)(1)(a)-(f), listing verbatim all of the applicable fee schedules that it will use to limit reimbursement. State Farm's policy language is even more clear and unambiguous than that at issue in Orthopedic Specialists, which "state[d] that '[a]ny amounts payable' for medical expense reimbursements 'shall be subject to any and all limitations, authorized by section 627.736, ... including ... all fee schedules.' " 212 So.3d at 977 ; see also Allstate Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, 226 So.3d 262, 266 (Fla. 2d DCA 2016), review denied, No. SC16-1100, 2017 WL 3326810 (Fla. Aug. 4, 2017). Because the State Farm policy includes mandatory language expressly limiting reimbursement for reasonable medical expenses to the schedule of maximum charges set forth in section 627.736(5)(a)(1)(a)-(f), we conclude that it is sufficient to place insureds and service providers on notice as required by section 627.736(5)(a)(5). Accordingly, we reverse the trial court's order granting summary judgment in favor of Park Place, and we certify the following question of great public importance:

DOES THE 2013 PIP STATUTE AS AMENDED PERMIT AN INSURER TO CONDUCT A FACT-DEPENDENT CALCULATION OF REASONABLE CHARGES UNDER SECTION 627.736(5)(a) WHILE ALLOWING
THE INSURER TO LIMIT ITS PAYMENT IN ACCORDANCE WITH THE SCHEDULE OF MAXIMUM CHARGES UNDER SECTION 627.736(5)(a)(1) ?

Reversed and remanded for further proceedings consistent with this opinion; question certified.

CASANUEVA and CRENSHAW, JJ., Concur.

      In their appellate briefs and at oral argument, the parties also disputed whether the actual payments made by State Farm were in compliance with the schedule of maximum charges limitation. However, by stipulation of the parties, the trial court's summary judgment order was limited to the issue of whether State Farm's policy "lawfully invokes the schedule of maximum charges ... set forth in section 627.736(5)(a)(1)"; therefore, whether the amount actually paid by State Farm complies with the schedule of maximum charges was not before the trial court and is thus outside the scope of our appellate review.

      Section 627.736(5)(a) provides:
      (5) Charges for treatment of injured persons.-
      (a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered .... In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

      Section 627.736(5)(a)(1) provides that "[t]he insurer may limit reimbursement to 80 percent of the ... schedule of maximum charges."

      See §§ 627.730-.7405.


author: PER CURIAM.

text:
    Rodney LOUIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0978
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Rodney Louis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 223 So.3d 1095, 1097 (Fla. 3d DCA 2017) ("The record, which includes the plea colloquy, clearly refutes these claims, and under Florida law, a defendant is bound by the statements he makes under oath during a plea colloquy.") (citing Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006) ); see also Fultz v. State, 218 So.3d 924, 925 (Fla. 3d DCA 2016) (affirming the trial court's order denying the defendant's Rule 3.850 postconviction motion because "all of [the defendant's] claims are refuted by the record.").


author: Levine, J. Gerber, C.J., concurring in part and dissenting in part. May, J., Dissenting.

text:
    Christin BILOTTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3559
    District Court of Appeal of Florida, Fourth District.
    June 6, 2018
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Levine, J.

We deny the state's motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant appeals her conviction for second-degree murder. We reverse the conviction for all the reasons stated in Pacchiana v. State , 240 So.3d 803 (Fla. 4th DCA 2018).

Reversed and remanded .

Gerber, C.J., concurs in part and dissents in part with opinion.

May, J., dissents with opinion.

Gerber, C.J., concurring in part and dissenting in part.

For the reasons expressed in my concurrence in Pacchiana v. State , 240 So.3d 803 (Fla. 4th DCA 2018), I concur with Judge Levine's ultimate conclusion to reverse the defendant's conviction and remand for a new trial.

May, J., Dissenting.

For the reasons expressed in my dissent in Pacchiana v. State , 240 So.3d 803 (Fla. 4th DCA 2018), I dissent from the majority on the prospective juror issue. I would affirm the conviction.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR MORGAN STANLEY ABS CAPITAL 1, INC. TRUST 2006-HE3, Appellant, v. Mary E. FORESTER, Appellee.
    Case No. 5D17-1811
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018 Rehearing Denied September 13, 2018
    J. Kirby McDonough, S. Douglas Knox, and Michael J. Labee, of Quarles & Brady LLP, Tampa, for Appellant.
    Sebrina L. Slack, of Landis Graham French, PA, Deland, for Appellee.
   PER CURIAM.

Appellant, Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital 1, Inc. Trust 2006-HE3 ("Appellant"), appeals from a summary final judgment entered in favor of Appellee, Mary E. Forester ("Appellee"), in the third foreclosure action between these parties on the same note and mortgage. The trial court concluded that Appellant's instant suit was barred by res judicata and the statute of limitations because the two prior suits were involuntarily dismissed with prejudice, which constituted adjudications on the merits, and "because the time has expired as to any date of default with the exception of subsequent defaults which are not appropriate in this case."

Appellant argues that the trial court erred in entering summary judgment in both respects, because the complaint alleged new and subsequent defaults in the instant foreclosure suit that occurred after the dismissal of the prior actions. Appellant also asserts that its action is not barred by the statute of limitations because it filed the complaint within five years of the alleged defaults. We agree with Appellant on both points and write only to address its res judicata argument.

"While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue." Singleton v. Greymar Assocs. , 882 So.2d 1004, 1007 (Fla. 2004) (citations omitted). "[E]ach subsequent default accruing after the dismissal of an earlier foreclosure action creates a new cause of action." Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1020 (Fla. 2016).

While Appellant has alleged some defaults in its most recent complaint that were dismissed in its prior actions, it also alleged new and different defaults that occurred after the two prior dismissals. As such, the trial court erred when it applied the doctrine of res judicata to these subsequent defaults. We therefore reverse the entry of summary judgment and remand for further proceedings.

REVERSED and REMANDED.

EVANDER and EISNAUGLE, JJ., and BASS, J., Associate Judge, concur.


author: SUAREZ, J.

text:
    U.S. BANK, N.A., as Trustee, etc., Appellant, v. Juan RAMIREZ, Appellee.
    No. 3D17-1402
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Pearson Bitman LLP, and Allison Morat (Maitland), for appellant.
    Mandel Law Group, P.A., and Roberta G. Mandel, Coral Gables, for appellee.
    Before SUAREZ, SALTER, and SCALES, JJ.
   SUAREZ, J.

In this foreclosure action, the mortgagee, U.S. Bank, N.A., appeals from the order granting the mortgagor's, Juan Ramirez, Motion to Dismiss for failure to abide by the applicable statute of limitations. We reverse in accordance with this Court's decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc) and the Florida Supreme Court's decision in Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016).

Ramirez negotiated a mortgage agreement with US Bank and agreed to make monthly payments on the first day of each month beginning on December 1, 2005. On April 21, 2008, US Bank filed a Mortgage Foreclosure Complaint against Ramirez, alleging that Ramirez failed to make all payments due from January 1, 2008. This initial action was involuntarily dismissed without prejudice by the trial court due to a lack of prosecution.

Subsequently, on June 12, 2015, US Bank filed a new Verified Complaint to Foreclose Mortgage, alleging that Ramirez had failed to make the August 1, 2010 payment and all subsequent payments thereafter. In response, Ramirez filed a Motion to Dismiss claiming that US Bank failed to abide by the applicable statute of limitations. Ramirez argued that US Bank had five years to bring this action for foreclosure from the date of the original acceleration in the April 21, 2008 action. Based on this argument, the trial court granted Ramirez's Motion to Dismiss, but provided US Bank thirty days to bring any information to dispute the statute of limitations issue.

Instead, US Bank filed a Motion for Reconsideration, or in the Alternative, Motion for Rehearing, which was later amended by US Bank. However, the trial court entered an order denying this motion. Finally, the trial court entered a Final Order of Dismissal on July 12, 2017 upon Ramirez's Motion for Entry of Final Order of Dismissal.

We disagree with the trial court's decision to grant Ramirez's Motion to Dismiss on the basis that the second foreclosure action was barred by the five-year statute of limitations stemming from the prior acceleration. Because US Bank's complaint specifically alleged that Ramirez missed the August 1, 2010 payment and "all subsequent payments," and the action was filed within five years of the alleged defaults, the statute of limitations did not extinguish US Bank's claim in this action. See Beauvais, 188 So.3d at 944-45 ; Bartram, 211 So.3d at 1019.

[W]ith each subsequent default, the statute of limitations runs from the date of each new default, providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.... [T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a 'separate and distinct' default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked .

Bartram at 1019, (emphasis added); see also Nationstar Mortg., LLC v. Silva, 239 So.3d 782 (Fla. 3d DCA 2018).

When a mortgage foreclosure action is involuntarily dismissed, either with or without prejudice, the effect of the involuntary dismissal is revocation of the acceleration, which then reinstates the mortgagor's right to continue to make payments on the note and the mortgagee's right to seek acceleration and foreclosure based on any subsequent defaults. Bartram, 211 So.3d at 1012. Thus, the statute of limitations does not continue to run on the amount due under the mortgage. Id.

Accordingly, we reverse the order granting Ramirez's Motion to Dismiss and remand with instructions to reinstate the Bank's complaint in foreclosure.