author: KHOUZAM, Judge.

text:
    Joseph E. ABDO, in His Capacity as an Individual and Managing Member of Social Media Ltd. LLC; Joseph M. Abdo, in His Capacity as an Individual and Member of Social Media Ltd. LLC; Ashley Abdo; Social Media Ltd. LLC, A Nevada Limited Liability Corporation; Social Media, Inc. Ltd ; and Social Media, Inc., Appellants, v. Khalil ABDO, in His Capacity as an Individual and Shareholder of Social Media, Inc., a Florida Corporation; Nada Abdo Quill; and Marie Abdo Silva, Appellees.
    Case No. 2D18-134
    District Court of Appeal of Florida, Second District.
    Opinion filed December 21, 2018
    Kraig S. Weiss and Paul K. Silverberg of Silverberg & Weiss, P.A., Weston; and Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellants.
    Craig L. Berman of Berman Law Firm, P.A., St. Petersburg, for Appellees.
   KHOUZAM, Judge.

In this nonfinal appeal, two nonresident entities, Social Media Ltd LLC (SMLL) and Social Media Inc. Ltd. (SMIL), challenge the trial court's order denying their motion to quash service and/or dismiss the second amended complaint based on a lack of personal jurisdiction. Because the second amended complaint fails to allege sufficient jurisdictional facts to establish Florida's personal jurisdiction over SMLL and SMIL, we reverse.

Factual Background

This case arose over a dispute regarding the ownership of several "adult-oriented" websites and the merchant account associated with those websites. In an attempt to regain some control over the websites and the income derived therefrom, Khalil Abdo, in his capacity as an individual and shareholder of Social Media, Inc. (SMI), and two other interested parties (collectively, the Appellees/Plaintiffs) filed a second amended complaint against their brother and SMI shareholder, Joseph E. Abdo (JEA), SMLL, SMIL, and others (collectively, the Appellants/Defendants). The Appellees/Plaintiffs sought both a declaratory judgment establishing ownership in the websites and damages for the wrongful transfer of the websites and merchant account to SMLL and SMIL. They alleged that JEA engaged in "self-dealing" when he transferred the websites and merchant account to SMLL and SMIL, where he and his son served in some corporate capacity. Specifically, the Appellees/Plaintiffs alleged that SMLL's "managing member" was JEA's son and SMIL's "officer, managing member, and owner" was JEA himself. And though JEA's son was alleged to be SMLL's managing member, the Appellees/Plaintiffs asserted that SMLL was actually "the alter ego of Defendant [JEA]."

In their second amended complaint, the Appellees/Plaintiffs raised several causes of action against JEA alone, including intentional interference with royalty agreements (count II), breach of fiduciary duty (count III), fraudulent transfers (count IV), securities fraud (count VI), and corporate waste (count VII). As to SMLL and SMIL, the Appellees/Plaintiffs did not assert any individual cause of action. Rather, they attempted to allege a claim of civil theft (count V) against "[a]ll Defendants." Finally, the Appellees/Plaintiffs alleged that "venue [was] proper ... because the acts and transactions ... occurred within Hillsborough County, Florida." And though SMLL and SMIL were alleged to be limited liability corporations existing under the laws of Nevada and the United Kingdom, respectively, the second amended complaint did not contain any reference to Florida's long-arm statute, section 48.193, Florida Statutes (2017).

Following the filing of the second amended complaint, SMLL and SMIL moved to quash service and, alternatively, to dismiss the complaint for failing to allege sufficient jurisdictional facts to bring it within the ambit of Florida's long-arm statute as required by Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). In response, the Appellees/Plaintiffs filed an amended memorandum opposing the motion to dismiss, arguing that personal jurisdiction over SMLL and SMIL exists because tortious conduct and fraudulent transfers occurred in Florida. On December 20, 2017, the trial court held a nonevidentiary hearing on the motion. At the hearing, the trial court orally denied the motion, finding-incorrectly-that paragraphs thirteen and fourteen of the second amended complaint alleged that SMLL and SMIL were "residents of Hillsborough County, Florida." Indeed, those paragraphs alleged only that JEA and his son were "citizen[s] of Hillsborough County, Florida." Despite this error, the trial court still entered a written order, denying the motion to quash service and/or dismiss the complaint. This appeal ensued.

Discussion

We review de novo a trial court's ruling on a motion to dismiss for lack of personal jurisdiction. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002) ; Stonepeak Partners, LP v. Tall Tower Capital, LLC, 231 So.3d 548, 552 (Fla. 2d DCA 2017). We also strictly construe the long-arm statute in favor of the nonresident defendant. Stonepeak Partners, 231 So.3d at 552 (citing Navas v. Brand, 130 So.3d 766, 770 (Fla. 3d DCA 2014) ).

To determine whether the trial court has personal jurisdiction over a nonresident defendant, the Florida Supreme Court in Venetian Salami set forth a two-step analysis. See Stonepeak Partners, 231 So.3d at 552. "The trial court must first determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. If it does, then the trial court must determine whether sufficient minimum contacts are shown to satisfy due process requirements." Id. (citation omitted) (citing Rautenberg v. Falz, 193 So.3d 924, 928 (Fla. 2d DCA 2016) ).

Section 48.193 lists the acts that may subject a nonresident defendant to Florida's long-arm jurisdiction. See § 48.193(1)(a)(1)-(9). The Appellees/Plaintiffs rely on three of those subsections, which provide as follows:

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
2. Committing a tortious act within this state.
....
7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

§ 48.193(1)(a)(1), (2), (7). And finally, the Appellees/Plaintiffs rely upon the alter ego theory of long-arm jurisdiction as a limited exception to the Venetian Salami two-step inquiry. See Bellairs v. Mohrmann, 716 So.2d 320, 322 (Fla. 2d DCA 1998). However, because we hold that the second amended complaint lacks sufficient allegations to establish Florida's long-arm jurisdiction over SMLL and SMIL under either section 48.193 or the alter ego theory of long-arm jurisdiction, the Appellees'/Plaintiffs' reliance is misplaced. We will address each argument in turn.

A. Section 48.193(1)(a)(2) : Committing Tortious Acts in Florida

The Appellees/Plaintiffs contend primarily that both SMLL and SMIL submitted themselves to the trial court's jurisdiction by committing various torts in Florida through their agent, JEA. More specifically, they contend that SMLL and SMIL committed the torts of (1) breach of fiduciary duty, (2) aiding and abetting breach of fiduciary duty, (3) conspiracy to commit breach of fiduciary duty, and (4) civil theft. SMLL and SMIL, however, contend that the Appellees/Plaintiffs failed to sufficiently plead any of those torts in their complaint. Based on our de novo review of the second amended complaint, we agree.

At the outset, it is clear that the Appellees/Plaintiffs failed to make any specific allegations that SMLL and SMIL breached a fiduciary duty, aided and abetted such a breach, or conspired to facilitate one. While these are undoubtedly valid intentional torts that would fall under the scope of section 48.193(1)(a)(2), the Appellees/Plaintiffs simply failed to plead these claims. The closest the Appellees/Plaintiffs came to alleging that SMLL and SMIL committed such intentional torts was in count III. And there, the Appellees/Plaintiffs alleged that only JEA-not SMLL and SMIL-breached a fiduciary duty by transferring the websites and the merchant account to SMLL and SMIL. The Appellees/Plaintiffs also failed to allege with any specificity any facts that SMLL and SMIL aided and abetted or conspired with JEA to facilitate such a breach. See, e.g., Wilcox v. Stout, 637 So.2d 335, 336 (Fla. 2d DCA 1994) ("Florida recognizes that civil conspiracies may exist as an independent tort."); Fonseca v. Taverna Imps, Inc., 212 So.3d 431, 442 (Fla. 3d DCA 2017) ("A cause of action for aiding and abetting the breach of a fiduciary duty requires a plaintiff to establish: 1) a fiduciary duty on the part of a primary wrongdoer; 2) a breach of that fiduciary duty; 3) knowledge of the breach by the alleged aider and abettor; and 4) the aider and abettor's substantial assistance or encouragement of the wrongdoing."). Indeed, to the extent the Appellees/Plaintiffs may hint at such a conspiracy in their second amended complaint, such vague allegations are not sufficient to establish personal jurisdiction. See NHB Advisors, Inc. v. Czyzyk, 95 So.3d 444, 448 (Fla. 4th DCA 2012) ("[A] court will decline to apply the co-conspirator theory to extend jurisdiction over nonresidents if the plaintiff fails to plead with specificity any facts supporting the existence of the conspiracy and provides nothing more than vague and conclusory allegations regarding a conspiracy involving the defendants.").

As to Appellees/Plaintiffs' arguments that the trial court has jurisdiction over SMLL and SMIL based on the tort of civil theft, we also conclude that the second amended complaint's allegations were not sufficient to support the trial court's exercise of personal jurisdiction. "In order to establish an action for civil theft, the claimant must prove the statutory elements of theft, as well as criminal intent." Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000) ; see also Winters v. Mulholland, 33 So.3d 54, 56 (Fla. 2d DCA 2010) (stating that "the only statutory section potentially applicable" to a claim of civil theft is the criminal theft statute). As a result, the plaintiff must allege "that the defendant (1) knowingly; (2) obtained or used, or endeavored to obtain or use, the plaintiff's property; (3) with felonious intent; (4) to deprive plaintiff of its right to or a benefit from the property or appropriate the property to the defendant's own use or to the use of a person not entitled to the use of the property." Hawthorne v. Lyons, 192 So.3d 1279, 1280 (Fla. 1st DCA 2016)

(quoting Howard v. Murray, 184 So.3d 1155, 1168 n.24 (Fla. 1st DCA 2015) ); see also Winters, 33 So.3d at 56 (listing the same elements for the tort of civil theft).

Here, the second amended complaint did not make adequate allegations to state a cause of action for civil theft. At best, the Appellees/Plaintiffs have made nothing more than conclusory allegations, as the second amended complaint fails to allege any specific facts demonstrating how SMLL and SMIL knowingly obtained the websites and the merchant account with the requisite felonious intent. See Am. Seafood, Inc. v. Clawson, 598 So.2d 273, 274 (Fla. 3d DCA 1992) ("[G]eneral conclusory allegations ... are insufficient to state a cause of action for conversion or civil theft."). In fact, count V simply states that only JEA-not SMLL and SMIL-had the requisite "felonious intent." And though the Appellees/Plaintiffs averred that "[a]ll Defendants converted the Websites and Merchant Account clearly owned by [SMI] and continue week after week to engage in theft of assets of [SMI]," such an allegation fails to indicate (1) who actually engaged in the initial wrongful deprivation of the property and (2) how the perpetrator(s) did so with the requisite criminal intent. See Russo v. Fink, 87 So.3d 815, 818 (Fla. 4th DCA 2012) ("[T]he relevant act for personal jurisdiction purposes with regard to the tort of conversion is the initial wrongful deprivation." (citing Merkin v. PCA Health Plans of Fla., Inc., 855 So.2d 137, 140 (Fla. 3d DCA 2003) ) ). As such, the second amended complaint is devoid of sufficient allegations to state a cause of action for civil theft.

The Appellees/Plaintiffs further argue that the trial court has jurisdiction over SMLL and SMIL for the civil theft claim based on an agency theory. However, the Appellees/Plaintiffs not only failed to allege the elements of an agency relationship, but they also failed to allege that JEA was acting on behalf of SMLL and SMIL at the time of the civil theft. See Graham v. Lloyd's Underwriters at London, 964 So.2d 269, 275 (Fla. 2d DCA 2007) ("In order to establish the existence of an agency relationship, three elements are necessary: (1) acknowledgement by the principal that the agent will act on his or her behalf, (2) acceptance by the agent, and (3) control by the principal over the agent's actions."). It is not enough to simply argue on appeal that because JEA's son was the "managing member" of SMLL and JEA was "the officer, managing member, and owner" of SMIL, JEA was therefore acting within the scope of his representative capacity at the time of the civil theft. Indeed, the second amended complaint was devoid of any allegations to indicate that SMLL and SMIL controlled the actions of the purported agent, JEA. Accordingly, we conclude that the second amended complaint does not contain sufficient factual allegations for the trial court to exercise its long-arm jurisdiction over SMLL and SMIL under section 48.193(1)(a)(2).

B. Section 48.193(1)(a)(1) : Maintaining an Office in Florida

The Appellees/Plaintiffs next contend that SMLL submitted itself to the jurisdiction of Florida courts by "having an office" in Florida. See § 48.193(1)(a)(1). The Appellees/Plaintiffs argue that the second amended complaint establishes that SMLL maintained an office in Florida because SMLL's 2013 tax return, which was attached to the complaint as an exhibit, listed its "partnership address" as being located in Tampa. We disagree.

As stated earlier, Florida's long-arm statute grants jurisdiction "for any cause of action arising from ... [o]perating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state." Id. To sufficiently bring an action within the ambit of section 48.193(1)(a)(1), it appears necessary to plead either that a nonresident entity has an office in Florida or, at a minimum, a "de facto office" in Florida. See, e.g., Golant v. German Shepherd Dog Club of Am., Inc., 26 So.3d 60, 63 (Fla. 4th DCA 2010) (holding that even though a not-for-profit corporation did not maintain a physical office in the United States but operated almost exclusively from the homes of its board members, the complaint's allegation that the corporation had a "de facto office" in the home of one of its board members was sufficient to satisfy the first prong of the Venetian Salami inquiry and bring the plaintiff's action within ambit of section 48.193(1)(a)(1) ); Premier Hotel Corp. v. M Grp. Resorts, S.A., 753 So.2d 647, 647-48 (Fla. 3d DCA 2000) (holding that the basis for jurisdiction was sufficiently shown under section 48.193(1)(a) because (1) the nonresident corporation had an office in Florida as shown by the corporate president's letterhead and business cards and (2) the corporation conceded to performing some services in Florida on the contract at issue). The First District has also noted that a nonresident entity's Florida post office box is not the equivalent of maintaining a business office under the long-arm statute. See City Contract Bus Serv., Inc. v. Woody, 515 So.2d 1354, 1357 (Fla. 1st DCA 1987).

In this case, it is clear that the second amended complaint failed to allege any facts showing that SMLL had an office in Florida. And though we are "obliged to treat as true all of the [second] amended complaint's well-pleaded allegations, including those that incorporate attachments," Rudloe v. Karl, 899 So.2d 1161, 1164 (Fla. 1st DCA 2005), the second amended complaint itself contains no well-pleaded allegations that would allow us to verify from the attachments that SMLL had an actual or de facto business office in Florida. Indeed, similar to the post office box in Woody, SMLL's 2013 tax return reflects only that the "partnership address" was located in Tampa, Florida, not that it was conducting any business or had an office at that location. See 515 So.2d at 1357. Thus, because we must strictly construe the long-arm statute in favor of the nonresident defendant, we conclude that the second amended complaint failed to allege sufficient facts to subject SMLL to the trial court's jurisdiction in Florida under section 48.193(1)(a)(1).

C. Section 48.193(1)(a)(7) : Breach of Contract

The next issue is whether the second amended complaint contains sufficient allegations to allow the trial court to exercise its jurisdiction over SMLL based on a breach of contract theory. See § 48.193(1)(a)(7) ("A person ... submits himself ... to the jurisdiction of the courts of this state for any cause of action arising from ... [b]reaching a contract in this state by failing to perform acts required by the contract to be performed in this state."). The Appellees/Plaintiffs contend on appeal that because "SMLL obligated itself to pay royalties to Plaintiff Khalil Abdo in the forum state" and failed to make such payments, SMLL is subject to the trial court's personal jurisdiction based on a breach of contract.

While it is certainly true that a breach of contract by a nonresident corporation may subject it to Florida's jurisdiction, the Appellees/Plaintiffs simply failed to allege a breach of contract in the second amended complaint. See Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) ("The elements of an action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach."). A review of the amended complaint reflects that only count II, which is entitled "Intentional Interference with Royalty Agreements," could possibly be construed as a breach of contract claim. There, however, it merely states that JEA "interfere[d] with Plaintiffs' receipt of royalty payments due to Plaintiffs beyond the February 2012 formation of Social Media, Inc. without cause or justification." There are no other factual allegations that could establish that SMLL breached a contract. Accordingly, the Appellees/Plaintiffs failed to allege sufficient jurisdictional facts to subject SMLL to the exercise of the trial court's jurisdiction under section 48.193(1)(a)(7).

D. The Exception to the Venetian Salami Inquiry: Jurisdiction under the Alter Ego Theory

The final issue is whether the trial court has jurisdiction over SMLL and SMIL based on an alter ego theory of long-arm jurisdiction. The Appellees/Plaintiffs argue on appeal that SMLL and SMIL are the alter egos of JEA. SMLL and SMIL, however, contend that because the Appellees/Plaintiffs failed to sufficiently plead an alter ego theory of jurisdiction, the trial court erred in denying their motion to dismiss. We agree.

"The alter ego theory of long-arm jurisdiction exists as a limited exception to the general, two-step process for establishing long-arm jurisdiction as set forth in [Venetian Salami ]." Bellairs, 716 So.2d at 322. "To demonstrate jurisdiction under an alter ego theory, the plaintiff must make sufficient jurisdictional allegations to pierce the corporate veil." Stonepeak Partners, 231 So.3d at 556 (citing WH Smith, PLC v. Benages & Assocs., 51 So.3d 577, 581 (Fla. 3d DCA 2010) ). Piercing the corporate veil requires the plaintiff to "establish 'both that the corporation is a "mere instrumentality" or alter ego of the defendant[ ] and that the defendant engaged in "improper conduct" in the formation or use of the corporation.' " Id. (alteration in original) (emphasis in original) (quoting Bellairs, 716 So.2d at 323 ). To show that a corporation is the "mere instrumentality" or alter ego of another person, the plaintiff must plead and ultimately "prove that 'the shareholder dominated and controlled the corporation to such an extent that the corporation's independent existence, was in fact nonexistent and the shareholders were in fact alter egos of the corporation.' " WH Smith, 51 So.3d at 582 (quoting Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008) ).

This court's decision in Bellairs is instructive as to whether the second amended complaint at issue satisfies those pleading requirements. In Bellairs, the trial court dismissed an amended third-party complaint against the nonresident principals of a radio broadcasting company (Miracle) that was doing business in Florida. 716 So.2d at 321. Raising multiple causes of action in tort, including fraud, conversion, and interference with business relationship, the third-party plaintiffs alleged that the nonresident principals of Miracle were individually liable for the activities they conducted in Florida under its corporate "guise." Id. at 322-23. The third-party plaintiffs alleged as follows:

"Miracle was a hollow shell with no ability to meet the obligations of the agreement," and ... "Miracle never had any existence separate and distinct from its 'shareholders.' " The amended third-party complaint also alleged that the Miracle Principals "failed to observe corporate formalities ... [and] did not recognize the existence of Miracle as a corporation in their own dealings." The amended third-party complaint further alleged that "Miracle is a mere instrumentality of its shareholders and the Miracle entity was used for improper conduct."

Id. at 323 (alteration in original) (quoting amended third-party complaint). Upon conducting a de novo review of the amended complaint, this court held that the trial court erred in dismissing the amended third-party complaint. Id. This court reasoned that the complaint's allegations "constitute[d] a prima facie case for jurisdiction because they allege[d] both that the resident corporation was a mere instrumentality of its shareholders[ ] and that the corporation was used for improper conduct." Id. As such, this court reversed and remanded for the trial court to hold a limited evidentiary hearing to resolve the jurisdiction issue as there were competing affidavits filed by the Miracle principals and the third-party plaintiffs. Id.

Here, unlike in Bellairs, we find that the second amended complaint did not plead sufficient facts to establish jurisdiction over SMLL and SMIL based on an alter ego theory. Although the second amended complaint documents JEA's improper conduct, including breach of fiduciary duty, fraudulent transfers, and intentional interference with a business relationship, the second amended complaint fails to allege how SMLL and SMIL were the mere instrumentalities of JEA. That is, aside from stating that JEA and his son were the managing members of both SMLL and SMIL, there are no allegations establishing how JEA "dominated and controlled [SMLL and SMIL] to such an extent that the corporation's independent existence, was in fact nonexistent and the shareholders were in fact alter egos of the corporation." See WH Smith, 51 So.3d at 582 ; see also Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120 (Fla. 1984) ("The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally." (quoting Advertects, Inc. v. Sawyer Indus., Inc., 84 So.2d 21, 22-23 (Fla. 1955) ) ). Nor are there any factual allegations establishing how the identities of either SMLL or SMIL were not lawfully maintained. See Houri v. Boaziz, 196 So.3d 383, 390 (Fla. 3d DCA 2016) ("The law is clear that the mere ownership of a corporation by a few shareholders, or even one shareholder, is an insufficient reason to pierce the corporate veil. '[E]ven if a corporation is merely an alter ego of its dominant shareholder or shareholders, the corporate veil cannot be pierced so long as the corporation's separate identity was lawfully maintained.' " (alteration in original) (quoting Gasparini, 972 So.2d at 1055 ) ). And though the second amended complaint posited that SMLL was "the alter ego of" JEA, such a conclusory allegation is insufficient to support the exercise of personal jurisdiction under an alter ego theory. See Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So.2d 843, 846 (Fla. 2d DCA 1986) (noting that a lone allegation expressing that certain individuals "were alter egos of [a] corporation ... would be insufficient" to establish a breach of contract claim against those individuals based on an alter ego theory); cf. Bellairs, 716 So.2d at 323 (illustrating the factual allegations necessary to constitute a prima facie case of jurisdiction based on the alter ego theory). Accordingly, we conclude that the trial court did not have jurisdiction over SMLL and SMIL based on an alter ego theory of long-arm jurisdiction.

Conclusion

Because the Appellees/Plaintiffs failed to sufficiently allege a basis for jurisdiction under either section 48.193 or the alter ego theory, we reverse the trial court's order denying the motion to dismiss the second amended complaint and remand for further proceedings.

Reversed and remanded.

SALARIO and BADALAMENTI, JJ., Concur.

      The initial complaint sought declaratory relief and was filed against JEA alone. The initial complaint did not contain any derivative claims on behalf of SMI.

      The Appellees/Plaintiffs argue that only SMLL, not SMIL, had an office in Florida. As such, this purported basis for jurisdiction is applicable to SMLL alone.

      Based on this conclusion, we do not reach the issue of whether SMLL and SMIL had sufficient minimum contacts with Florida. See Stonepeak, 231 So.3d at 558.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pamella MACGREGOR and David MacGregor, Appellants, v. DAYTONA INTERNATIONAL SPEEDWAY, LLC, and International Speedway Corp., Appellees.
    Case No. 5D17-2989
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018 Rehearing Denied January 29, 2019
    Shaun M. Cummings, Wil H. Florin and Tommy D. Roebig, Jr., of Florin Roebig, P.A., Palm Harbor, for Appellants.
    Scott A. Cole and Alexandra Valdes, of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

Pamella MacGregor and David MacGregor (Appellants) appeal the final summary judgment entered by the trial court in favor of Daytona International Speedway, LLC (DIS) and International Speedway Corporation (ISC). Appellants raise two points on appeal, both of which have merit. First, they argue the trial court erred in determining that the release Pamella signed applied to gross negligence. Next, they contend a genuine issue of material fact exists as to whether DIS's and ISC's employee was grossly negligent and therefore, entry of summary judgment on this issue was error. We agree and reverse.

Pamella was injured when she was run over by a tow truck that was backing up in counter-race direction on Pit Row during a Sports Car Club of America (SCCA) race held on September 29, 2013, at the Daytona International Speedway. The tow truck driver was instructed to back up in that direction by an employee of DIS and ISC. In order to enter the non-spectator restricted area of the speedway during the race, pursuant to section 549.09(2), Florida Statutes (2013), Pamella was asked to and did sign a release and waiver of liability and assumption of risk agreement. The release stated in relevant part:

2. Hereby RELEASE, WAIVE, and DISCHARGE SCCA, the promoters, participants, racing associations, sanctioning organizations or any affiliate, subsidiary or subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any person in any RESTRICTED AREA, sponsors, advertisers, owners and lessees of premises used to conduct the EVENTS, premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENTS and for each of them, their directors, officers, agents, and employees, all for the purposes herein referred to as "RELEASEES," FROM ALL LIABILITY TO ME, my personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR[E] ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN THE DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENTS, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. In addition, I COVENANT NOT TO SUE any of the RELEASEES based upon any claim arising out of any of the EVENTS.
....
5. Hereby acknowledge that THE EVENTS ARE POTENTIALLY VERY
DANGEROUS and involve the risk of serious injury and/or death and/or property damage. I also expressly acknowledge that INJURIES MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.
6. Hereby agree that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the RELEASEES, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Province or State in which the EVENTS are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, not withstanding [sic], continue in full legal force and effect.

In determining that the signed release barred suit in this case, the trial court found that section 549.09 did not preclude the release from "negligence" claims from also applying to gross negligence claims and that a reply to DIS's and ISC's affirmative defense of release was necessary to raise section 549.09 as an issue in the case. We disagree. Although the language of the release states that it "extends to all acts of negligence," in the context of closed-course motorsport facilities, the Legislature has explicitly excluded gross negligence from the definition of negligence for injuries occurring in the nonspectator areas of the facility. § 549.09(1)(e), Fla. Stat. (2013). The explicit exclusion of gross negligence from the definition of negligence in this context prevents the release in this case from barring the gross negligence claim. See Hager v. Live Nation Motor Sports, Inc., 665 F.Supp.2d 1290, 1294 (S.D. Fla. 2009) ("When the legislature expressly permits certain conduct, and then specifically excludes certain conduct from the definition of what is permitted, the legislature intends to prohibit the excluded conduct."); Marchman v. St. Anthony's Hosp., Inc., 152 So.3d 830, 832-33 (Fla. 2d DCA 2014) (finding exclusion from definition in one statute was effective in limiting scope of another statute where definition was applicable).

We also conclude the trial court erred when it determined as a matter of law that DIS and ISC did not "engage[ ] in conduct that reaches the level of gross negligence." Where a genuine issue of material fact exists, the determination of whether conduct amounts to gross negligence is a jury question. See Hodges v. Helm, 222 So.2d 418, 420 (Fla. 1969) (citing Cormier v. Williams, 148 Fla. 201, 4 So.2d 525 (1941) ); Dep't of Agric. & Consumer Serv. v. Shuler Ltd. P'ship, 139 So.3d 914, 915 (Fla. 1st DCA 2014) (citing Courtney v. Fla. Transformer, Inc., 549 So.2d 1061 (Fla. 1st DCA 1989) ). Because there was evidence in the summary judgment record supporting at least a prima facie case for gross negligence when construed in the light most favorable to Appellants, we reverse on this point as well. See Hodges, 222 So.2d at 419 ; Ramsey v. Dewitt Excavating, Inc., 248 So.3d 1270, 1273-74 (Fla. 5th DCA 2018) (citing Boston ex rel. Estate of Jackson v. Publix Super Mkts., Inc., 112 So.3d 654, 658-59 (Fla. 4th DCA 2013) ); Villalta v. Cornn Int'l, Inc., 109 So.3d 278, 280 (Fla. 1st DCA 2013) (citing Madaffer v. Managed Logistics Sys., Inc., 601 So.2d 1328 (Fla. 2d DCA 1992) ).

REVERSED AND REMANDED.

TORPY, BERGER and WALLIS, JJ., concur.

      A reply to DIS's and ISC's affirmative defenses was not required to make the applicability of section 549.09 an issue in this case because no new facts were required. It is clear from the second amended complaint that the incident occurred in the nonspectator area of a closed-course motorsport facility. See § 549.09(1)(a), (2), Fla. Stat. (2013) ; U.S. Bank Nat'l Ass'n for Registered Holders of Citigroup Mortg. Loan Tr. 2007-AHL2, Asset-Backed Pass-Through Certificates, Series 2007-AHL2 v. Wilson, 252 So.3d 306, 308 (Fla. 5th DCA 2018) (citing Kitchen v. Kitchen, 404 So.2d 203, 205 (Fla. 2d DCA 1981) ).

      DIS's and ISC's reliance on DeBoer v. Florida Offroaders Driver's Association, 622 So.2d 1134, 1136 (Fla. 5th DCA 1993) and Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2d DCA 1990) is misplaced because the causes of action in those cases accrued before the October 1, 1991 effective date of section 549.09. Ch. 1991-104, § 2, Laws of Fla.


author: ORFINGER, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Karl H. WALLACE, Appellee.
    Case Nos. 5D17-813 5D17-2852
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Rhonda B. Boggess, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    Daniel L. Hightower and David D. Guiley, of Daniel L. Hightower, P.A., Ocala and Nichole J. Segal, Philip M. Burlington and Adam Richardson, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellee.
   ORFINGER, J.

State Farm Mutual Automobile Insurance Company appeals the partial final and supplemental cost judgments entered in favor of Karl H. Wallace in his suit for uninsured motorist benefits arising out of a motor vehicle accident. We affirm the judgments, but write to address one of State Farm's arguments.

Mr. Wallace was injured in a vehicular accident with an uninsured motorist. At trial, Dr. Chintan Desai, a board certified radiologist specializing in magnetic resonance imaging ("MRI"), testified as a retained expert for Mr. Wallace. Dr. Desai interpreted an MRI as showing an endplate edema and annular tear at L2-L3 and an annular tear at the L5-S1 level. To explain his findings, Dr. Desai used an exhibit, consisting of two MRI images showing the L2-L3 and L5-S1 levels of the spine with typed labels that restated his findings. Mr. Wallace then sought to introduce the two-image exhibit with Dr. Desai's labels into evidence. State Farm objected, explaining that while it did not object to unaltered images being admitted into evidence, it did object to Dr. Desai's annotations, which, it contended, merely restated his opinions. Mr. Wallace countered that the images and Dr. Desai's labels were "factual findings" and thus were admissible. The trial court overruled State Farm's objection and allowed the labeled exhibit ("Desai exhibit") into evidence.

Later in the trial, State Farm asked its expert, Dr. Steve Bailey, a neurosurgeon, whether there was endplate edema on the images comprising the Desai exhibit, as Dr. Desai had noted. Mr. Wallace objected, arguing that it was improper to comment on another witness's testimony. The trial court agreed and sustained the objection. The trial court also prohibited State Farm from using the Desai exhibit when questioning Dr. Bailey.

State Farm correctly contends that the trial court erred by allowing Mr. Wallace to present the Desai exhibit to the jury with Dr. Desai's opinions superimposed on the MRI images. Contrary to Mr. Wallace's argument, the Desai exhibit should not have been admitted in evidence with Dr. Desai's annotated opinions. Certainly the images themselves were admissible, but Dr. Desai's annotations represented his opinions and were not "factual findings," as Mr. Wallace contends. See, e.g., Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 56-57 (Fla. 4th DCA 1994) (holding trial court erred when it allowed charts and summaries prepared by experts into evidence).

Likewise, as State Farm argues, the trial court erred by precluding State Farm from using the admitted Desai exhibit to obtain its expert's opinion on the same images. Contrary to the trial court's ruling, State Farm's expert should have been permitted to review the images contained in the Desai exhibit and testify that he saw no abnormalities, without commenting on Dr. Desai's opinion. See Caban v. State, 9 So.3d 50, 53 (Fla. 5th DCA 2009) (explaining that expert may properly explain opinion on issue in controversy so long as expert does not attack opposing expert's ability, credibility, reputation or competence). However, we find the errors harmless as Dr. Bailey was permitted to offer his opinion using substantially similar MRI images. Thus, we affirm the judgments.

AFFIRMED.

WALLIS and EDWARDS, JJ., concur.

      This Court has jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; N. Am. Capacity Ins. Co. v. C.H., 173 So.3d 1075, 1077 (Fla. 2d DCA 2015) ("It is generally true that a final ruling on coverage is appealable when a bad faith claim remains pending between the parties, with the rationale being that the coverage issue should be completely resolved before the bad faith claim proceeds."); United Auto. Ins. Co. v. Tienna, 780 So.2d 1010, 1011 n.4 (Fla. 4th DCA 2001) (noting that "cases involving a contractual claim for insurance coverage and an attendant bad faith claim" are exception to general rule that "partial final judgments are premature and erroneous").


author: ORFINGER, J. EISNAUGLE, J., concurring in part and dissenting in part.

text:
    William L. GRANT, Appellant, v. CITIZENS BANK, N.A. F/K/A RBS Citizens, N.A., Appellee.
    Case No. 5D17-726
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 26, 2018
    EN BANC
   ORFINGER, J.

William L. Grant appeals the trial court's final judgment of foreclosure in favor of Citizens Bank, N.A. f/k/a RBS Citizens, N.A., following a non-jury trial. While Grant raises several issues, only two, the application of the statute of limitations and the award of attorney's fees, merit discussion. We consider this matter en banc so that we may recede from our opinion in Velden v. Nationstar Mortgage, LLC, 234 So.3d 850 (Fla. 5th DCA 2018), which held that a lender could not recover damages for defaults that occurred more than five years prior to the filing date of the lawsuit. Instead, we adopt the view of the statute of limitations set forth in Justice Lawson's concurring opinion in Bollettieri Resort Villas Condominium Ass'n v. Bank of New York Mellon, 228 So.3d 72 (Fla. 2017).

In September 2005, Grant executed a note to SunTrust Mortgage, Inc., secured by a mortgage on real property. The note and mortgage were eventually transferred to Citizens Bank. After Grant failed to make the payment due in December 2010, and all subsequent payments, Citizens Bank accelerated Grant's loan, requiring him to pay the full unpaid principal amount of the loan, plus interest, fees and other charges to cure the default. Grant did not cure the default, and in November 2015, Citizens Bank filed the foreclosure complaint at issue (its third foreclosure action against Grant on the same note and mortgage), alleging Grant defaulted on the note and mortgage by failing to pay the December 2010 payment and all subsequent payments. The complaint sought interest from November 1, 2010, together with principal, attorney's fees and other damages. In response, among other affirmative defenses, Grant argued that the statute of limitations barred Citizens Bank from collecting any amounts due on the note and mortgage accruing more than five years prior to the filing of the complaint. Following a trial, the court entered final judgment in favor of Citizens Bank, and at Citizens Bank's request, awarded interest back to May 2009, a date more than five years prior to the filing of the foreclosure action.

On appeal, Grant argues it was error for the trial court to award interest that accrued more than five years prior to the filing of the action. He further contends that the trial court erred by awarding relief that was not requested in the pleadings or tried by consent. Because we recede from Velden, we disagree with Grant's argument concerning the statute of limitations. However, we agree with his position that the trial court erred when it awarded relief not requested in the pleadings.

Florida has a five-year statute of limitations for "action[s] on a contract, obligation, or liability founded on a written instrument," or "to foreclose a mortgage." § 95.11(2)(b)-(c), Fla. Stat. (2016). In the context of an installment obligation such as the note and mortgage found here, our supreme court held in Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009, 1019 (Fla. 2016), that "with 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." Recently, in his concurring opinion in Bollettieri, Justice Lawson addressed what he perceived to be "a widespread and fundamental misunderstanding, in Florida, regarding how the statute of limitations, § 95.11(2)(c), Fla. Stat. (2017), operates vis-à-vis a long-term note (and mortgage)." 228 So.3d at 73 (Lawson, J., concurring). Justice Lawson observed that when the right to accelerate the debt for non-payment is optional with the holder of the note, the statute of limitations does not run until the note is due unless the lender or holder accelerates and declares the full balance due earlier. Id. at 74. Justice Lawson concluded that because the promissory note in that case allowed the lender or holder to hold off or forbear accelerating the note upon the borrower's non-payment, such forbearance would "not constitute a waiver or defense against future collection of all sums due and owing under the note." Id.

Here, the note contained the same provisions. Applying Bartram and the logic of Justice Lawson's concurring opinion in Bollettieri to this case, while Citizens Bank could have waited until the note's maturity date (i.e., fifteen years after the note was executed) to bring its action for nonpayment on the note and to foreclose the mortgage, it was not required to do so. Instead, Citizens Bank accelerated the debt, as it was permitted to do, and filed suit. Had it pleaded a default date of May 2009, more than six years from the first default date alleged (and proved) in the complaint, under Justice Lawson's analysis, Citizens Bank would not have waived or forfeited its right to an award in the final judgment of all monies, including interest, owed for non-payments on the note based on the statute of limitations defense. Nevertheless, since Citizens Bank failed to plead for interest from May 2009, and it was not tried by consent, the trial court erred in awarding interest accruing prior to November 2010. See Wachovia Mortg. Corp. v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015) ("A trial court is without jurisdiction to award relief that was not requested in the pleadings or tried by consent."); see also Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1252 (Fla. 2008) (reiterating that to allow court to rule on matter without proper pleadings and notice violates party's due process rights).

Grant also challenges the trial court's award of attorney's fees. He argues that Citizens Bank offered no evidence to support the award of attorney's fees. We agree. Because Citizens Bank did not present any evidence of attorney's fees at trial, we reverse the fee award without remand on that issue. See Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040 (Fla. 2d DCA 2015) (explaining that "when the record on appeal is devoid of competent substantial evidence to support the attorney's fee award, the appellate court will reverse the award without remand for additional evidentiary findings" (quoting Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So.3d 958, 961 (Fla. 4th DCA 2014) ) ).

Accordingly, we affirm the judgment except insofar as it awards interest accruing prior to November 1, 2010. In doing so, we recede from Velden and adopt the view articulated in Justice Lawson's concurring opinion in Bollettieri regarding the statute of limitations in installment obligation cases. We also strike the award of attorney's fees.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., TORPY, EVANDER, BERGER, WALLIS, LAMBERT, EDWARDS, and HARRIS, JJ., concur.

EISNAUGLE, J., concurs in part and dissents in part, with opinion, in which GROSSHANS, J., concurs.

EISNAUGLE, J., concurring in part and dissenting in part.

I agree that we should strike the award of attorney's fees due to a lack of competent substantial evidence and reverse the award of interest accruing prior to November 2010 because Appellee failed to plead for that relief.

However, "the cardinal principle of judicial restraint-if it is not necessary to decide more, it is necessary not to decide more-counsels us to go no further." PDK Labs. Inc. v. U.S. D.E.A. , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). Although I find no error in the majority's substantive analysis receding from Velden v. Nationstar Mortgage, LLC , 234 So.3d 850 (Fla. 5th DCA 2018), I dissent from that part of the opinion because it is not only unnecessary, it is irrelevant to our disposition in this case.

To illustrate the point, if we decided the interest issue on statute of limitations grounds after receding from Velden , we would affirm the award instead of reverse. As such, this portion of the majority's opinion goes beyond resolving the controversy between the parties and is in the nature of an advisory opinion. See Dep't of Rev. v. Kuhnlein , 646 So.2d 717, 721 (Fla. 1994) ("[T]he parties must not be requesting an advisory opinion, except in those rare instances in which advisory opinions are authorized by the Constitution." (citations omitted) ).

We should not bend principles of restraint in the name of correcting an errant decision. Instead, we should balance both responsibilities by waiting for a case in which the issue is ripe for decision. As Justice Canady has observed, "[u]nder the Florida Constitution, [Florida courts do] not have the power to reach out and grab cases that we deem worthy of our attention." Pino v. Bank of N.Y. , 76 So.3d 927, 931 (Fla. 2011).

GROSSHANS, J., concurs.

      We also recede from U.S. Bank, N.A. v. Diamond, 228 So.3d 177 (Fla. 5th DCA 2017), to the extent that opinion is inconsistent with this opinion.

      Grant's position regarding the statute of limitations was consistent with the opinion that we would later announce in Velden, which had not been issued at the time the trial court entered the final judgment in this case.


author: SCALES, J. Rothenberg, C.J., specially concurring.

text:
    Daniel JUNIOR, etc., Appellant, v. James LACROIX, Appellee.
    No. 3D17-452
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2018.
    Abigail Price-Williams, Miami-Dade County Attorney, and Michael B. Valdes and Oren Rosenthal, Assistant County Attorneys, for appellant.
    Woodward and Reizenstein, P.A., and Philip L. Reizenstein, Miami, and Bhakti Kadiwar, for appellee.
    Chad A. Reader, William C. Peachey, Erez Reuveni and Vinita B. Andrapalliyal (Washington, D.C.), for the United States of America as amicus curiae.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   SCALES, J.

Appellant Daniel Junior, the director of the Miami-Dade County Corrections and Rehabilitation Department ("Department"), appeals the trial court's writ of habeas corpus that, inter alia : (1) ordered the release of the appellee James La Croix, notwithstanding that LaCroix was subject to a federal immigration detainer; and (2) declared Miami-Dade County's policy toward federal immigration detainers to be unconstitutional under the Tenth Amendment of the United State Constitution.

Because the trial court lacked jurisdiction to adjudicate the constitutionality of the subject federal immigration detainer, we reverse and quash the writ.

I. Facts

A. LaCroix held in custody

Twice in January of 2017, LaCroix was charged with driving with a suspended license while an habitual traffic offender, a third degree felony pursuant to section 322.34(5) of the Florida Statutes. LaCroix was out on felony bond for the first offense when he was arrested for the second offense. Upon this second arrest, he was placed in the custody of the Department. LaCroix pleaded guilty to each offense, and on February 28, 2017, the trial court adjudicated him guilty and sentenced him to time served.

Thus, as of February 28, 2017, LaCroix was eligible for release from jail. While he was in custody, however, the Department of Homeland Security (DHS) transmitted to Department a DHS Form I-247X, commonly known as a federal immigration detainer. In this form, an officer of the United States Immigration and Customs Enforcement represented that the federal government suspected that LaCroix, a Haitian national, was "a removable alien." As such, the form requested that Department maintain custody of LaCroix for an additional period not to exceed forty-eight hours after the time he would otherwise be released from jail in order to allow DHS to take custody of him.

On March 1, 2017, LaCroix was transferred into federal custody pursuant to the federal immigration detainer. LaCroix remained in the county jail pursuant to this detainer request. At some point, LaCroix was deported from the United States.

B. The habeas corpus proceedings below

On February 28, 2017, LaCroix filed in the trial court an "Emergency Petition for Writ of Habeas Corpus." LaCroix's petition simply stated that Department had failed to release LaCroix from jail after the expiration of his sentence. Immediately after receiving LaCroix's petition, the trial court ordered Department to file a response by March 2, 2017. Department met this filing deadline and, on March 2, 2017, the trial court conducted a hearing on LaCroix's petition. Although LaCroix was no longer in Department's custody, the trial court nonetheless entered the instant writ of habeas corpus on March 3, 2017. Department timely appeals

C. Miami-Dade County's policy toward immigration detainer requests

LaCroix's habeas corpus proceedings unfolded against the background of Miami-Dade County's efforts to adjust to evolving federal immigration policy. In 2013, the Miami-Dade County Commission passed Resolution No. R-1008-13, which directed the County Mayor to implement a policy whereby Department would not honor a federal immigration detainer request unless: (i) the federal government agreed to reimburse Miami-Dade County for all expenses related to the detainer request, and (ii) the inmate had either a conviction for a forcible felony or a pending charge of a non-bondable offense. Because the federal government and Miami-Dade County never came to agreement over the terms of this 2013 Resolution, Miami-Dade County ended its cooperation on federal immigration detainer requests. On January 25, 2017, President Trump issued an Executive Order that, in part, would terminate certain federal grant funding to local government "sanctuary jurisdictions." Even though Miami-Dade County had not declared itself a "sanctuary" county, given the discord with the federal government over County Resolution No. R-1008-13, the County Mayor directed Department to begin honoring federal immigration detainer requests again.

The Miami-Dade County Commission convened in special session on February 17, 2017, to consider to what extent Miami-Dade County should cooperate with the DHS on federal immigration detainer requests in light of the federal government's apparent threat to restrict grant funding to Miami-Dade County. At this meeting, the County Commission adopted two Resolutions: (i) to return to Miami-Dade County's pre-2013 policy of cooperation on immigration detainer requests so long as the federal government showed probable cause for the detainer (Resolution No. R-163-17); and (ii) to authorize an appropriate legal challenge in the event the federal government denied grant funding due to Miami-Dade County's policy on federal immigration detainer requests (Resolution No. R-164-17).

D. The Tenth Amendment basis for the trial court's grant of the writ

In adjudicating LaCroix's habeas corpus petition, the trial court applied a Tenth Amendment analysis to Department's continued incarceration of LaCroix. The trial court found that because the federal government has exclusive dominion over immigration and deportation, Department cannot be "commandeered" to perform the federal function of detaining prisoners for deportation purposes. In other words, DHS could not "conscript" Department officers and facilities to continue LaCroix's custody after his state sentence expired. The trial court also found that President Trump's Executive Order coerced Department compliance based on the threat of lost grant funding to Miami-Dade County if Department declined to cooperate with federal immigration detainer requests. Finally, the trial court found that LaCroix had standing to seek habeas corpus relief based on a Tenth Amendment violation.

II. Analysis

We quash the subject writ on the authority of Ricketts v. Palm Beach County Sheriff, 985 So.2d 591 (Fla. 4th DCA 2008), which held that a State trial court lacks jurisdiction to adjudicate the validity of a federal immigration detainer.

In the Ricketts case, the Palm Beach County Sheriff arrested Ricketts for a third degree felony and held him in the county jail. After Ricketts attempted to post bond, the Sheriff refused to accept the bond because the Sheriff had received a federal immigration detainer request. Ricketts sought habeas corpus relief from the circuit court, asserting that he was illegally detained without judicial oversight or a showing of probable cause. Id. at 592. The trial court denied Ricketts's petition for writ of habeas corpus and the Fourth District affirmed. Id. at 592-93. The Fourth District, citing Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), stated: "[A] state court cannot adjudicate the validity of the federal detainer, as the area of immigration and naturalization is within the exclusive jurisdiction of the federal government." Id. at 593.

The Court in Ricketts recognized that, once a person in custody becomes subject to a valid federal immigration detainer, he or she no longer is held in the custody of the state. Id. On the date of his petition for habeas corpus relief, LaCroix's physical location was a county jail cell, but his custodial status was established under federal authority. The federal courts have exclusive jurisdiction over a person in custody pursuant to valid federal authority. Ableman v. Booth, 62 U.S. 506, 523-24, 21 How. 506, 16 L.Ed. 169 (1858).

LaCroix seeks to distinguish Ricketts by arguing that Ricketts challenged his detention on due process grounds rather than on a Tenth Amendment basis. We note, parenthetically, that LaCroix did not raise the Tenth Amendment in his petition either, though the trial court based its grant of the writ on a Tenth Amendment rationale. In any event, LaCroix's effort to distinguish Ricketts is immaterial in light of the overriding jurisdictional issue in this case. Simply put, irrespective of whether the challenge to the federal immigration detainer is based on an alleged due process violation or a Tenth Amendment violation, a state court cannot adjudicate the validity of a federal immigration detainer.

Reversed; writ of habeas corpus quashed.

Fernandez, J., concurs.

Rothenberg, C.J., specially concurring.

Although I completely agree with the excellent analysis performed and the conclusion reached in the majority opinion, I write to address the highly unusual and troubling procedural evolution of this case.

After posting a bond and obtaining a release from custody following a felony arrest, the defendant, James E. LaCroix ("LaCroix"), was arrested on January 28, 2017 and charged with having committed another felony. Based upon the new felony arrest while out on bond, LaCroix's bond was revoked and he remained in custody. On the following day, January 29, 2017, the Department of Homeland Security ("DHS") submitted a Request for Voluntary Transfer form ("DHS Form I-247X," "voluntary immigrations detainer request," or "federal detainer") to Miami-Dade County ("the County"). The voluntary immigration detainer request states that LaCroix had been deemed an immigration enforcement priority by DHS because "in the judgment of a designated senior DHS official, his [ ] removal would serve an important federal interest." The voluntary immigration detainer request further provides that: there was a finding of probable cause that LaCroix is a removable alien; his identity had been confirmed; a final order of removal had been issued; and requests that the County detain LaCroix for a period of time not to exceed forty-eight hours beyond the time LaCroix would otherwise be released to allow DHS to assume custody of LaCroix.

LaCroix remained in custody from January 28, 2017 to February 28, 2017. On February 28, 2017, LaCroix appeared before Judge Milton Hirsch. During LaCroix's appearance, Judge Hirsch accepted LaCroix's guilty pleas to both felony cases, adjudicated LaCroix guilty, and sentenced LaCroix to credit for time served.

At the hearing, and after LaCroix's plea, LaCroix's counsel informed Judge Hirsch that, due to a federal detainer, LaCroix would not be released and thus he intended to file an emergency motion for LaCroix's release. Judge Hirsch advised LaCroix's to file a petition for writ of habeas corpus rather than a motion for LaCroix's release, and although no motion or petition had yet been filed , Judge Hirsch stated that he would enter an order directing Daniel Junior, the Director of the Department of Corrections ("the Department"), to respond within two days. Immediately thereafter, and while still at the hearing, Judge Hirsch produced and issued a previously prepared order with copies for distribution. In this order, Judge Hirsch made findings regarding mootness; made claims as to what LaCroix would allege even though no motion or petition had been filed, no allegations had yet been made, and no defenses had yet been raised; ordered Daniel Junior to respond in writing on or before noon on March 2, 2017 if he intended to oppose the petition; and set a hearing for March 2, 2017 at 1:00 p.m.

Judge Hirsch's order specifically states that LaCroix alleges "that he is charged with no Florida crime and serving no county sentence." The order then finds, "If that is so, the county has neither the authority nor, presumably, the desire to continue to hold him in its custody." Lastly, the order claims that LaCroix is (will be) alleging "that in continuing to hold him, the county acts as an agent for ICE, a federal entity."

As directed by the trial court, LaCroix's counsel filed an emergency petition for writ of habeas corpus, not an emergency motion for release. The unsworn petition challenged the legality of LaCroix's continued detention beyond the expiration of his sentence. The petition, however, made no claim that the County was acting as an "agent for ICE," as the trial court's order contended it would allege.

On the next morning, March 1, 2017, and within twenty-four hours of LaCroix's plea, LaCroix was released by the County and transferred into the custody of federal immigration officials. On March 2, 2017, as directed by the trial court, the County filed a response to the petition. In its response, the County attached a copy of DHS Form I-247X (the voluntary immigration detainer request), which stated that a finding of probable cause had been made by immigration officials, LaCroix's identity had been confirmed, an order for LaCroix's removal had been issued, and LaCroix's detention was at the request of the federal detainer form. The County additionally informed the trial court that LaCroix had already been transferred into federal immigration custody and put the trial court on notice that an appellate court decision, which was binding authority on the trial court, had already determined that the state court lacks jurisdiction to determine the issue raised in the petition: the validity/legality of the federal detainer. Specifically, the County cited to Ricketts v. Palm Beach County Sheriff, 985 So.2d 591 (Fla. 4th DCA 2008), which held that: (1) Ricketts could not "secure habeas corpus relief from the state court on the legality of his federal detainer" because "[t]he constitutionality of his detention pursuant to both the I-247 and I-203 federal forms is a question of law for the federal courts," id. at 592-93 ; and (2) "a state court cannot adjudicate the validity of the federal detainer, as the area of immigration and naturalization is within the exclusive jurisdiction of the federal government." Id. (citing Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ; DeCanas v. Bica, 424 U.S. 351, 354, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) ).

In its response, the County noted that, although the Third District had not yet spoken on the issue, the Fourth District had in Ricketts; Ricketts was "an on-all-fours decision that dismissed a virtually identical petition"; and the trial court was required to render a similar dismissal, even if the trial court disagreed with that outcome.

After receiving the County's response, with the attached copy of the federal detainer form, the trial court conducted the scheduled hearing on March 2, 2017. At the hearing, which was very brief, as reflected by the thirteen pages of transcript, LaCroix's counsel argued that LaCroix was being unlawfully detained by the County because he had completed his sentence and because his detention was based upon nothing more than a request by the federal government without probable cause. However, as the County had already provided proof that LaCroix was no longer being detained by the County and that his detention for twenty-four hours was based not only on probable cause, but on confirmation of his identity and a final order of removal, this argument was without merit.

LaCroix's counsel also raised, for the first time at the hearing, that the Tenth Amendment barred the County's voluntary cooperation with ICE on immigration detainers. In response, the County reiterated the arguments made in its written response and additionally informed the trial court that the final order of removal referenced in the detainer request means that LaCroix had already gone through the adjudicative process, his claim had been heard, and a final order was issued stating that LaCroix shall be removed from the United States.

The County additionally argued that, although there are procedural safeguards which protect individuals from being held indefinitely, federal law authorizes the federal government and state and local agencies and detention facilities to cooperate with each other. If an individual wishes to attack the legality or constitutionality of a federal detainer request, he or she must do so in federal court, with notice to the federal government and by providing the federal government with an opportunity to defend against the claims. That was not done in this case. The petition made no constitutional challenge; the petition was filed in state court, which has no authority to adjudicate such claims; and no notice was given to the federal government. Lastly, the County argued that Ricketts controls and that LaCroix had cited to no case that had concluded contrary to the Fourth District's decision in Ricketts. Thus, the County argued that the petition should be dismissed for lack of jurisdiction.

Following the hearing, the trial court issued its order granting the petition. The order, which is longer that the hearing transcript, relies on "facts" wholly outside the record with no evidence to support them, makes findings on arguments not raised in the petition or at the hearing, and in many instances, it is factually incorrect. In fact, the order states that much of its findings are based on the trial court's independent investigation and review of Miami Herald newspaper articles.

The order begins with its research regarding the size of the County's correctional system and the number of incarcerated individuals. It then discusses historical data the trial court pulled from Miami Herald newspaper articles that discussed the number of detainer requests issued in 2012, and the vote by the Miami-Dade County Commission in 2013 to no longer honor such requests. Next, the order cites to a Miami Herald newspaper article that referenced an executive order signed by President Donald Trump, which the article claimed threatened to cut federal grants to counties and cities that do not cooperate fully with Immigration and Customs enforcement and forced the County Mayor to immediately reverse the County's policy and to order county jails to comply with these detention requests. The trial court then found that the County's correctional facilities and personnel "have been conscripted to lock him [LaCroix] up for and on behalf of the federal government and to do so at the county's expense."

The trial court's order builds on its unsubstantiated theme of coercion by claiming, again without evidentiary support and even in the absence of such a claim by LaCroix, that the Department's detention of LaCroix was achieved by "financial starvation," rendering the Department "the cat's paw of ICE." In addition to these unsubstantiated claims, the order contends that LaCroix had argued that the Department's detention of him was in violation of the "anti-commandeering principle of the Tenth Amendment."

The order then makes findings that are contrary to the unrefuted evidence submitted at the hearing. For example, the order finds that the detainer request was founded on mere belief by ICE that it had a basis to "inquire further as to LaCroix's status." The detainer request was submitted with the County's written response to the trial court's directive and contrary to the trial court's order, it unequivocally states that a finding of probable cause for removal had been made and a final order of removal has been issued. Additionally, at the hearing, counsel for the County reiterated that a finding of probable cause for removal had been made, LaCroix had been given a hearing before an immigration judge, and thereafter the immigration judge issued a final order for LaCroix's removal from the United States. Upon the issuance of that order, federal authorities had the right to seize LaCroix. The County's cooperation simply provided ICE with the option of picking LaCroix up from the county jail within forty-eight hours of his plea, rather than seizing him as he left the courtroom. Thus, the trial court's order is factually incorrect.

Lastly, I feel compelled to address the trial court's failure to follow binding precedent, as this is not the first time this trial judge has failed to do so. See State v. Washington, 114 So.3d 182 (Fla. 3d DCA 2012). Just as in Washington, the trial court failed to follow binding state precedent, and instead, relied on non-state, non-binding opinions to support its position. In Washington, this Court reminded the same trial judge that "[t]he decision[s] of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme] Court." Washington, 114 So.3d at 185 (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980) ). "Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts." Washington, 114 So.3d at 185 (quoting Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ).

In Ricketts, the Fourth District unequivocally held that "a state court cannot adjudicate the validity of the federal detainer, as the area of immigration and naturalization is within the exclusive jurisdiction of the federal government." Ricketts, 985 So.2d at 593 (citing Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ). "The constitutionality of his detention pursuant to both the I-247 and I-203 federal forms is a question of law for the federal courts." Id. at 592-93. As the opinion explains:

Once appellant posts bond on his state charges or his state sentence expires, he will be "released" from state custody and then booked on the federal immigration detainer. At that point, the sheriff will not be holding appellant pursuant to state authority but pursuant to federal authority, and the legality of the detainer and the process by which he is held will be a question for the federal courts.

Id. at 593 (footnote omitted).

Just as in Ricketts, LaCroix completed his state sentence, he was booked on a federal immigration detainer, and he was being held pursuant to federal authority when the petition for writ of habeas corpus was filed. And, in this case, LaCroix was released to federal custody prior to the hearing. Thus, LaCroix's attacks upon the legality and/or constitutionality of his temporary detention by the County pursuant to the federal detainer was not properly raised in the state circuit court and should have been dismissed for lack of jurisdiction.

The trial court's findings of coercion are also not supported by the record. The trial court's order claims that the County was coerced into cooperating with the federal government. However, the County, which was ordered to respond to the petition, made no such claim and the record on appeal demonstrates the opposite.

In response to concerns by the County Mayor and the County Commissioners regarding the potential loss of certain federal funds if declared a "sanctuary jurisdiction," the County Commission called for a special meeting to be held on February 17, 2017 to discuss the County's policy regarding federal immigration detainer requests. Prior to the meeting, a legal opinion was requested and received from the County Attorney's Office. In its opinion, the County Attorney advised, among other things, that the Tenth Amendment of the United States Constitution protected the County from being compelled to enforce a federal regulatory program, and any cooperation between the County and the federal government with respect to immigration enforcement "must, as a matter of law, be voluntary." The opinion also advised that the County had not been designated a sanctuary jurisdiction, the current definition of sanctuary jurisdictions did not include the County, and the vast majority of the County's federal funding was not at risk whether or not the County decided to revise its federal detainer policy.

At the Commission meeting on February 17, 2017, the County Commission considered six separate resolutions offering differing levels of cooperation with the federal government regarding immigration detainer requests. After its discussion, the County Commission voted to return to its pre-2013 policy and honor federal detainer requests, provided a finding of probable cause for removal had been made. Further, the County states in its answer brief before this Court that, "To date, no grants issued by the Department of Justice and Homeland Security-nor any other federal department-have been conditioned on voluntary compliance with ICE immigration detainers."

Although the Tenth Amendment protects states and local governments from being "commandeered" or compelled to enact and enforce a federal regulatory program, it does not foreclose the federal government from "encourag[ing] a State [or local government] to regulate in a particular way, or ... hold out incentives to the States as a method of influencing a State's policy choices." New York v. United States, 505 U.S. 144, 161, 166, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) ; see also South Dakota v. Dole, 483 U.S. 203, 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (holding that the federal government "may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives").

Notably, the County, itself, has not alleged coercion, and if the County wished to make such a claim, its challenge would be in federal court.

Conclusion

In my opinion, the trial court impermissibly crossed the line between neutral arbiter of the facts to that of an advocate, preparing and issuing an order before the filing of any motion or petition by LaCroix based on arguments not made by LaCroix. The trial court's order granting LaCroix's petition also misstated the record evidence, improperly relied on non-record "evidence" culled from non-authoritative newspaper articles and failed to apply binding precedent. Thus, for the reasons articulated in the majority opinion and in this specially concurring opinion, I agree that reversal of the trial court's order is mandated.

      Because LaCroix has been deported pursuant to the subject federal immigration detainer, LaCroix argues that Department's appeal is moot. Notwithstanding LaCroix's mootness claim, we examine the legal appropriateness of the writ because the issues implicated by it are likely to recur. "It is well settled that mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur." Holly v. Auld, 450 So.2d 217, 218 n.1 (Fla. 1984).

      The record is not clear as to precisely when LaCroix was transported from the county jail and deported.

      As Department's initial brief points out, the meaning and implications of the January 25, 2017 Executive Order; the federal government's immigration detainer policies; federal grant guidelines as they relate to local government compliance with federal immigration law; and the status of Miami-Dade County's own compliance with the relevant federal law, 8 U.S.C. § 1373, all continued to evolve in the months after the trial court granted the writ of habeas corpus to LaCroix. Our focus, though, is on the trial court's action of March 2-3, 2017.

      The Tenth Amendment to the United States Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

      Our standard of review for a writ of habeas corpus is de novo . State v. S.M., 131 So.3d 780, 784 (Fla. 2013).

      Because we conclude that the trial court lacked jurisdiction to adjudicate the validity of the federal immigration detainer, we need not, and therefore do not, reach the issue of whether LaCroix has standing to assert a Tenth Amendment "commandeering" challenge.