text:
    Jonathan Mark VITO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3076
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

After Jonathan Vito pleaded guilty to robbery and his sentence was imposed, he filed a motion to withdraw his plea, which the trial court denied. He now appeals, asserting-for the first time-that the trial court failed to make on-the-record determinations of certain required factors regarding his entry of the plea. We affirm.

I.

Vito was charged with robbery with a firearm, but pleaded guilty to robbery without a weapon, which would subject him to a maximum twenty-year sentence by the trial court. At a hearing, Vito swore that he read and signed the written plea agreement, understood all the rights he was giving up by entering the plea, was entering the plea freely and voluntarily, was not coerced, and was satisfied with his counsel's performance. The trial court accepted Vito's plea. At the sentencing hearing more than four months later, Vito presented testimony of his reduced intellectual functioning, history of substance abuse, and need for treatment. Vito's counsel requested eighteen months plus treatment, but the trial court imposed a sentence of fifteen years.

Vito then filed a pro se motion to withdraw plea, asserting that he entered his plea "upon advice of counsel and with the understanding that he would infact [sic] receive drug treatment without being adjudicated to the Department of Correction[s]."

The trial court appointed conflict-free counsel and held a hearing, where Vito testified that his counsel advised him that he was unlikely to receive more than five to seven years in prison. Vito added that he "really didn't understand" the plea agreement when he signed it because he doesn't read well, though he acknowledged what he had told the trial court at the time. Asked if he remembered telling the judge what rights he was giving up, he stated, "Yeah, but I didn't understand the principle of, you know, the important part of it." Vito then conceded that he knew he could receive twenty years in prison before he entered the plea and that his counsel never promised that he would receive treatment or any specific sentence. Asked once more if he understood the plea agreement he signed, Vito stated, "I want to say no because I thought I was going to get treatment. I thought I was going to get help." The trial court denied the motion, finding that Vito was never promised treatment contrary to his assertion in his motion, he understood the plea agreement and what he could be sentenced to, and he simply hoped for a lighter sentence.

II.

"In order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered." Robinson v. State , 761 So.2d 269, 274 (Fla. 1999). This "burden rests on the defendant to show the trial court abused its discretion in denying the defendant's motion." Id.

On appeal, Vito argues that he entered the plea involuntarily. Specifically, he argues that the trial court failed to determine on the record that he understood the rights waived by (and potential consequences of) entering a guilty plea, as required by Florida Rule of Criminal Procedure 3.172(c). Without doubt, the trial court did not review each factor enumerated in Rule 3.172(c) in its colloquy with Vito.

We agree with the state that Vito did not preserve this argument. The sole contention in Vito's motion was that he was misadvised as to the sentence he would receive, but at the hearing he conceded that counsel did not promise any specific sentence and that he understood the full range of sentences that could be imposed. He asserts that he preserved his argument as to the Rule 3.172 factors based on his statement at the hearing that he "didn't understand the principle of it, you know, the important part of it" when the state reminded him that he swore that he understood the rights he was waiving. We find this statement insufficient to preserve for appeal the argument that Vito did not undersand some right or consequence of his plea under Rule 3.172(c).

Even if this statement could be stretched to satisfy the preservation requirement, "[f]ailure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice." Fla. R. Crim. P. 3.172(j). Vito cannot show prejudice because he has given no indication of any factor included in Rule 3.172 that he was unaware of or that would have affected his decision to enter the plea. Cf. State v. Yeomans , 172 So.3d 1006, 1009 (Fla. 1st DCA 2015) (finding that the trial court's failure to discuss the mandatory minimum sentence prejudiced the appellant where counsel affirmatively misadvised him on that point and he would not have entered the plea otherwise). Rather, it appears that Vito simply regretted entering the plea after the trial court imposed a substantial prison sentence.

III.

Vito failed to show that he entered his plea involuntarily following his post-sentencing motion to withdraw his plea, which alleged that he was misadvised as to his potential sentence. He abandoned that argument on appeal, and put forth an argument pointing out the trial court's noncompliance with Rule 3.172, but this argument was unpreserved and failed to demonstrate prejudice.

AFFIRMED.

B.L. Thomas, C.J., and Ray and Winokur, JJ., concur.

      Vito was a habitual felony offender subject to a thirty-year maximum sentence for robbery without a weapon, see §§ 812.13(2)(c), 775.084(4)(a)2., Fla. Stat., but the state agreed to a sentencing cap of twenty years.

      A defendant who pleads guilty or no contest may appeal an involuntary plea if preserved by a motion to withdraw plea. See Fla. R. Crim. P. 3.170(l ) ; Fla. R. App. P. 9.140(b)(2)(A)(ii) c.

      "[T]he trial judge must, when determining voluntariness, place the defendant under oath, address the defendant personally, and determine on the record that he or she understands" numerous factors, such as the defendant's rights to trial by jury and representation, and the terms and effect of the plea agreement. Fla. R. Crim. P. 3.172(c).

      The trial court properly rejected this argument. See J.A.N. v. State , 947 So.2d 1258, 1259 (Fla. 5th DCA 2007) ("Appellant did not have a right to withdraw his plea solely because the imposed sanctions were not consistent with his expectations.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jamel Lee BELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4413
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019.
    Jamel Lee Bell, pro se.
   PER CURIAM.

Affirmed. See McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013) ; Bell v. State, 27 So.3d 209 (Fla. 2d DCA 2010) ; Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009) ; Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009) ; Valdez-Garcia v. State, 965 So.2d 318 (Fla. 2d DCA 2007) ; Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006) ; Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002) ; Sims v. State, 141 So.3d 613 (Fla. 4th DCA 2014) ; Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001).

SILBERMAN, MORRIS, and SALARIO, JJ., Concur.


text:
    Marcus SCARVERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4376
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019.
    Marcus Scarvers, pro se.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So.2d 517 (Fla. 2007) ; Dale v. State, 703 So.2d 1045 (Fla. 1997) ; Knight v. State, 6 So.3d 733 (Fla. 2d DCA 2009) ; Pratte v. State, 946 So.2d 1184 (Fla. 2d DCA 2006) ; Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006) ; Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004).

SILBERMAN, MORRIS, and SALARIO, JJ., Concur.


author: Per Curiam.

text:
    James Robert GALLAGHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4521
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender; and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his conviction for two counts of sexual battery of a child-his own biological daughter-when she was between age six or seven, and ten or eleven. We have examined in full and on the merits the four issues he raises on appeal, and find no merit in them. In addition, we find that Appellant failed to preserve his argument that the trial court erred by failing to make an express finding that the State proved by clear and convincing evidence Appellant's similar abuse of two other girls. Appellant does not challenge the sufficiency of the evidence, and the record does not indicate that the trial court was unaware of the standard. See McLean v. State , 934 So.2d 1248, 1261-62 (Fla. 2006) (requiring clear and convincing evidence of prior acts of child molestation). Accordingly, we AFFIRM.

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Ramon Lawrence PARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4202
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019
    Ramon Lawrence Parker, pro se.
   PER CURIAM.

Affirmed. See Ch. 95-347, § 1, at 3045, Laws of Fla.; Ch. 77-266, § 1, at 1248, Laws of Fla.; McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013) ; Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009) ; Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002) ;

Williams v. State, 925 So.2d 427 (Fla. 3d DCA 2006) ; Romano v. State, 718 So.2d 283 (Fla. 4th DCA 1998).

SILBERMAN, MORRIS, and SALARIO, JJ., Concur.


text:
    Derrick J. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4437
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011) ; McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013) ; Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009) ; Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002) ; Dorsett v. State, 166 So.3d 898 (Fla. 4th DCA 2015) ; Shivers v. State, 96 So.3d 1039 (Fla. 4th DCA 2012) ; Atwater v. State, 781 So.2d 1149 (Fla. 5th DCA 2001) ; Robinson v. State, 642 So.2d 644 (Fla. 4th DCA 1994).

SILBERMAN, MORRIS, and SALARIO, JJ., Concur.


text:
    Solomon STEVENS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-372
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Solomon Stevens, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We issued a Spencer show cause order directing Appellant to demonstrate why he should not be prohibited from filing any appeal, petition, pleading, or motion pertaining to the conviction and sentence rendered in Case No. 35-1989-CF-001711 unless reviewed and signed by an attorney licensed to practice in the State of Florida. Having failed to file a response and thus failing to show cause why sanctions should not be imposed, we conclude that Appellant is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, we prohibit Appellant from filing with this Court any further pro se pleadings concerning Lake County Fifth Judicial Circuit case number 35-1989-CF-001711. The Clerk of this Court is directed not to accept any further pro se filings concerning this case and not to accept any telephone or in-person communications. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.").

FURTHER PRO SE FILINGS PROHIBITED.

HARRIS, GROSSHANS and SASSO, JJ., concur.

      State v. Spencer, 751 So. 2d 47 (Fla. 1999).


author: Taylor, J.

text:
    FLORIDA INVESTMENT GROUP 100, LLC, a Florida limited liability company, Appellant, v. Annalisa LAFONT, an individual, Appellee.
    No. 4D18-2075
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Mitchell W. Berger, P. Benjamin Zuckerman and Zachary P. Hyman of Berger Singerman, LLP, Fort Lauderdale, for appellant.
    Marc Edward Rosenthal, Paul David Edwards, Casey Ryan Cummings and Joseph Thomas Dunn of Rosenberg Cummings & Edwards PLLC, Fort Lauderdale, for appellee.
   Taylor, J.

Florida Investment Group 100, LLC, the seller under a residential real estate contract, appeals a final summary judgment entered in favor of the buyer, Annalisa Lafont, in her action for breach of contract. The issue presented in this appeal is whether the buyer, who never obtained "Loan Approval" as defined in the contract, was excused from performance of the contract where the appraisal of the property was insufficient under a proposed loan transaction that did not meet the financing terms required for Loan Approval. We conclude that the insufficient appraisal of the property did not excuse the buyer from closing where the buyer never obtained Loan Approval as defined in the contract. We therefore reverse.

Background

This case arises out of the buyer's efforts to recover her deposit on a residential real estate transaction that failed to close after the appraised value of the property was insufficient to allow the buyer to borrow funds under an approved loan with different financing terms than those called for in the contract.

The Contract

On May 3, 2017, the seller and the buyer entered into an "AS IS" Residential Contract for the Sale and Purchase of certain real property in Fort Lauderdale at a purchase price of $ 620,000. The buyer made a deposit of $ 62,000. The contract set the closing date for June 15, 2017.

The contract was subject to a financing contingency. Specifically, the contract was contingent upon the buyer obtaining approval of a conventional loan, within a "Loan Approval Period" of 30 days after the contract's effective date, in the amount of $ 465,000 at a fixed interest rate for a term of 30 years. The contract required the buyer to use good faith and diligent effort to obtain "Loan Approval," which was defined as "approval of a loan meeting the Financing terms."

If the buyer obtained Loan Approval, Paragraph 8(b)(iii) of the contract required the buyer to "promptly deliver written notice" of such approval to the seller.

If the buyer was unable to obtain Loan Approval, Paragraph 8(b)(iv) of the contract permitted the buyer, at any time prior to the expiration of the Loan Approval Period (i.e., by June 2, 2017), to notify the seller in writing and elect to either waive Loan Approval or terminate the contract.

Under Paragraph 8(b)(v) of the contract, if the buyer failed "to timely deliver either notice provided in Paragraph 8(b)(iii) or (iv) above" to the seller prior to the expiration of the Loan Approval Period, then "Loan Approval shall be deemed waived, in which event this Contract will continue as if Loan Approval had been obtained[.]"

Once Loan Approval had been obtained or was deemed to have been obtained, the buyer's failure to close would result in the deposit being paid to the seller unless the failure to close was due to any of the three reasons described in Paragraph 8(b)(vii).

Specifically, Paragraph 8(b)(vii) provides the following guidance regarding which party is entitled to the deposit if the buyer fails to close:

(vii) If Loan Approval has been obtained, or deemed to have been obtained , as provided above, and Buyer fails to close this Contract, then the Deposit shall be paid to Seller unless failure to close is due to: (1) Seller's default or inability to satisfy other contingencies of this Contract; (2) Property related conditions of the Loan Approval have not been met (except when such conditions are waived by other provisions of this Contract); or (3) appraisal of the Property obtained by Buyer's lender is insufficient to meet terms of the Loan Approval , in which event(s) the Buyer shall be refunded the Deposit, thereby releasing Buyer and Seller from all further obligations under this Contract.

(Emphasis added).

The Loan Application, the Appraisal, and the Failure to Close

On May 8, 2017, the buyer sent a copy of her mortgage loan application to a commercial lender.

The lender conditionally approved the buyer for a 12-month interest-only adjustable rate loan in the amount of $ 495,000. The lender used a computer program to set the interest rate terms of the loan. A condition of the approval was that the loan-to-cost ratio could not exceed 80 percent.

The buyer never obtained Loan Approval as defined in the contract-that is, approval for a 30-year fixed-rate loan. The buyer also did not provide written notice to the seller, prior to the expiration of the Loan Approval Period on June 2, 2017, that she was unable to obtain Loan Approval.

On June 5, 2017, after the expiration of the Loan Approval Period, an appraiser hired by the lender determined that the property's market value was $ 485,000, which was $ 135,000 less than the purchase price.

On June 12, 2017, the lender sent a letter to the buyer, informing her that because the appraisal of the property came in substantially below the purchase price, the lender was unable to fund a mortgage for the purchase of the property, despite the buyer's loan application being otherwise approved.

On June 13, 2017, the buyer's real estate agent sent the seller a proposed Release and Cancellation of Contract, seeking to cancel the contract and to instruct the escrow agent to disburse the deposit to the buyer.

On June 15, 2017, the buyer failed to close. The next day, the seller's counsel sent a letter to the escrow agent, asserting that the seller was entitled to the deposit.

The Lawsuit

The buyer filed a complaint against the seller for breach of contract. Although the buyer acknowledged that "Loan Approval was deemed waived" because she did not provide written notice to the seller under Paragraph 8(b)(iv) of the contract, the buyer nonetheless alleged that the appraisal of the property obtained by her lender was "insufficient to meet the terms of the Loan Approval." Thus, the buyer alleged that she was "entitled to be refunded her $ 62,000 escrow deposit and released from any further obligations under the Contract pursuant to Paragraph 8(b)(vii)."

The seller filed an answer and affirmative defenses. The seller denied the buyer's allegation that "the appraisal of the Property obtained by Plaintiff's lender was insufficient to meet the terms of the Loan Approval." The seller's first affirmative defense was that the buyer failed to state a valid claim for the return of her deposit because "there was no Loan Approval containing any specified appraisal amount."

The buyer moved for summary judgment, arguing in relevant part that: (1) because she failed to timely deliver notice to the seller concerning the status of Loan Approval, the contract proceeded as if Loan Approval had been obtained; and (2) she was entitled to a refund of her deposit under Paragraph 8(b)(vii) because "the appraisal of the property obtained by [her] lender was insufficient to meet the terms of the Loan Approval."

The seller filed a response in opposition to the buyer's motion for summary judgment but did not file its own motion for summary judgment.

The trial court entered summary judgment in favor of the buyer. The trial court ruled that "because [the buyer] failed to timely deliver either notice contemplated by Paragraph 8(b)(iii) or (iv) of the Contract prior to the expiration of the Loan Approval Period, the Loan Approval was deemed waived and the Contract continued as if Loan Approval had been obtained ...." The trial court further ruled that "because the appraisal obtained by the [buyer's] lender was insufficient to meet the terms of the Loan Approval, the parties were released from all further obligations under the Contract and [the buyer] [was] entitled to the Escrow Deposit pursuant [to] Paragraph 8(b)(vii)(3) of the Contract." This appeal ensued.

Standard of Review

A summary judgment is reviewed de novo. Haber v. Deutsche Bank Nat'l Tr. Co. , 81 So.3d 565, 566 (Fla. 4th DCA 2012). A trial court's interpretation of a contract is also reviewed de novo. Berkowitz v. Delaire Country Club, Inc. , 126 So.3d 1215, 1218 (Fla. 4th DCA 2012).

Analysis

On appeal, the seller argues that because Loan Approval was never obtained and the buyer did not timely notify the seller that she did not obtain Loan Approval, she waived Loan Approval and was required to close on the purchase of the property without the financing contingency. The seller further argues that because the buyer's proposed loan transaction did not contain the terms required for Loan Approval under the contract, paragraph 8(b)(vii)(3) did not excuse the buyer from performing. Asserting that Loan Approval is a prerequisite for Paragraph 8(b)(vii)(3) to excuse performance based on an insufficient appraisal, the seller maintains that the appraisal obtained for the buyer's proposed loan transaction is irrelevant. We agree with the seller's interpretation of the contract.

"In construing a contract, the legal effect of its provisions should be determined from the words of the entire contract." Sugar Cane Growers Co-op. of Fla., Inc. v. Pinnock , 735 So.2d 530, 535 (Fla. 4th DCA 1999). "[T]he actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls." Summitbridge Credit Invs. III, LLC v. Carlyle Beach, LLC , 218 So.3d 486, 488 (Fla. 4th DCA 2017) (citation and internal quotation mark omitted). "[T]he court's task is to apply the parties' contract as written, not 'rewrite' it under the guise of judicial construction." City of Pompano Beach v. Beatty , 222 So.3d 598, 600 (Fla. 4th DCA 2017).

A key principle of contract interpretation is that "courts must not read a single term or group of words in isolation." Am. K-9 Detection Servs., Inc. v. Cicero , 100 So.3d 236, 238 (Fla. 5th DCA 2012). "An interpretation of a contract which gives a reasonable, lawful and effective meaning to all of the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or of no effect." Herian v. Se. Bank, N.A. , 564 So.2d 213, 214 (Fla. 4th DCA 1990). "[N]o word or part of an agreement is to be treated as a redundancy or surplusage if any meaning, reasonable and consistent with other parts, can be given to it ...." Royal Am. Realty, Inc. v. Bank of Palm Beach & Tr. Co. , 215 So.2d 336, 338 (Fla. 4th DCA 1968).

Courts will generally strive to interpret a contract based on the definitions contained within the contract. Grant v. State Farm Fire & Cas. Co. , 638 So.2d 936, 937 (Fla. 1994). "Where the parties to a contract take pains to define a key term specially, their dealings under the contract are governed by that definition." In re Blinds to go Share Purchase Litig. , 443 F.3d 1, 7 (1st Cir. 2006).

In this case, it is undisputed that the buyer was deemed to have waived Loan Approval under Paragraph 8(b)(v), and that the contract continued as if Loan Approval had been obtained. Thus, the issue boils down to whether Paragraph 8(b)(vii)(3) excused the buyer from closing.

Under Paragraph 8(b)(vii)(3), if Loan Approval is "deemed to have been obtained" and the buyer fails to close, then the deposit must be paid to the seller unless "appraisal of the Property obtained by Buyer's lender is insufficient to meet terms of the Loan Approval[.]"

Because Loan Approval is a defined term in the contract, its contractual definition controls. Thus, applying the contractual definition of Loan Approval, we conclude that Paragraph 8(b)(vii)(3) applies only if "appraisal of the Property obtained by Buyer's lender is insufficient to meet terms of [approval of a loan meeting the Financing terms]."

Here, Paragraph 8(b)(vii)(3) does not excuse the buyer's performance, because there was never an appraisal of the property obtained by the buyer's lender that was insufficient to meet the terms of approval of a loan meeting the financing terms of the contract . Without an actual Loan Approval as defined in the contract, there could be no appraisal of the property that was "insufficient to meet the terms of the Loan Approval."

It is of no import that the appraisal of the property was insufficient to meet the terms of a different loan for which the buyer was approved, because that loan did not meet the financing terms of the contract and thus did not constitute Loan Approval.

The buyer argues, however, that the seller's interpretation of Paragraph 8(b)(vii) "fails to give due effect to, negates, and leaves inexplicable" the "deemed to have been obtained" language in Paragraph 8(b)(vii). We disagree.

The seller's interpretation of Paragraph 8(b)(vii) does not render the "deemed to have been obtained" language meaningless. The "deemed to have been obtained" language makes it clear that if Loan Approval is "deemed to have been obtained" and the buyer fails to close the contract, the general rule is that the deposit is paid to the seller. The "deemed to have been obtained" language is also relevant to the exception in subpart (1) because, when Loan Approval is "deemed to have been obtained," the buyer's failure to close will be excused if the failure to close was due to "Seller's default or inability to satisfy other contingencies of this Contract."

Contrary to the buyer's argument, the excuse in Paragraph 8(b)(vii)(3) cannot apply to a situation where a Loan Approval is "deemed to have been obtained." A Loan Approval that is "deemed to have been obtained" is merely a legal fiction. A "deemed" Loan Approval does not have any terms for this court to analyze. In this case, there was never a Loan Approval as defined in the contract that would allow this court to look at the "terms of the Loan Approval" to decide whether an appraisal of the property was insufficient to meet its terms.

In sum, under the plain language of the contract, Paragraph 8(b)(vii)(3) does not excuse the buyer's performance, because there was never an appraisal of the property obtained by the buyer's lender that was insufficient to meet the terms of Loan Approval as defined in the contract.

We reverse the summary judgment and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

Ciklin and Levine, JJ., concur.

      Because the seller never moved for summary judgment in the trial court, we decline the seller's request that we remand this case to the trial court with instructions that summary judgment be entered in the seller's favor. See Univ. of Miami v. Sosa , 629 So.2d 172, 174 (Fla. 3d DCA 1993) ("Although not unauthorized, it is not generally accepted practice to enter summary judgment in favor of a nonmoving party.").


author: Gross, J.

text:
    FL HOMES 1 LLC and Jose Perez, Appellants, v. Toula KOKOLIS, as TRUSTEE OF the TOULA KOKOLIS REVOCABLE TRUST dated July 2, 2014, and FL Homes, LLC, Appellees.
    No. 4D18-2709
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Michael Winer, Fort Lauderdale, for appellants.
    Steven L. Wall of Mestdagh & Wall, P.A., Winter Park, for appellee, Toula Kokolis, as Trustee of the Toula Kokolis Revocable Trust dated July 2, 2014.
   Gross, J.

Full of sound and fury, this foreclosure case is the tale of the legal chaos that can happen when a mortgage holder initiates a foreclosure action but fails to include the sole record title holder as a party. We hold that a foreclosure judgment was void for the failure of the plaintiff to join the only record title owner of the property; because the judgment was void, a lis pendens filed in that proceeding had no effect on unrecorded property interests whose holders did not intervene in the foreclosure action.

Florida Homes I LLC and Jose Perez appeal a summary final judgment of re foreclosure in favor of appellee Toula Kokolis, as trustee of the Toula Kokolis Revocable Trust. The property at issue in this case has been the subject of three separate foreclosure actions: (1) an action filed by a homeowners' association; (2) the initial mortgage foreclosure lawsuit; and (3) the reforeclosure lawsuit.

Before any litigation, the property was owned by non-parties to this appeal, John Keefer and Denise Derosa-Keefer, who borrowed money and executed a note and mortgage in favor of the original lender. After multiple assignments, the note and mortgage landed with Greenwich Investors XLIII Trust 2013-1.

The Homeowners' Association Foreclosure Action

In 2012, Tall Pines Community Homeowners' Association, Inc. (the "HOA") initiated a lawsuit to foreclose the association's lien against the property. A final judgment of foreclosure led to a foreclosure sale on October 25, 2012.

At that foreclosure sale, appellant Perez made the winning bid of $ 22,100. Instead of putting the certificate of title in his name, Perez instructed the Clerk of Court to issue the title in the name of "FL Homes LLC." The certificate of title was subsequently issued in the name of FL Homes LLC on November 6, 2012.

At the time the certificate issued, Perez was unaware that an entity named FL Homes LLC already existed in Florida. Perez had absolutely no connection to that entity, so he had no authority to acquire property on its behalf. Perez chose the name FL Homes LLC believing that the name had not yet been taken. Not until he went to register FL Homes LLC, did Perez learn that a company with that name already existed.

On November 27, 2012, Perez registered a new entity named "FL Homes 1 LLC." Perez has never tried to retitle the property in the name of FL Homes 1 LLC. Perez took possession of the property, rented it out, and deposited rent checks in a bank account in the name of FL Homes 1 LLC. Perez also claims that he paid taxes and necessary fees associated with the property.

Initial Mortgage Foreclosure Action

Not surprisingly, after Keefer and Derosa-Keefer lost the property in the HOA

foreclosure action, their mortgage loan was in default. On February 8, 2013, a lawsuit to foreclose that mortgage was filed. Greenwich Investors was later substituted as the plaintiff. This foreclosure action named the HOA and the prior owners of the property, Keefer and Derosa-Keefer, as defendants. The lawsuit did not name FL Homes LLC as a defendant, nor did it mention or seek to foreclose any interest in the property conveyed by the certificate of title in the HOA foreclosure action.

On February 14, 2013, a notice of lis pendens was recorded. After such recording, appellants did not seek to intervene in the lawsuit.

On December 16, 2014, a final judgment was entered against John Keefer, Denise Derosa-Keefer, and the HOA. A judicial sale was held in accordance with that final judgment on February 11, 2015. Greenwich Investors was the highest bidder at the judicial sale and a certificate of title for the property was issued to Greenwich Investors on February 24, 2015.

On December 22, 2015, Greenwich conveyed the property to Toula Kokolis for $ 539,900. In 2016, Toula Kokolis conveyed the property by quitclaim deed to Toula Kokolis, as trustee of the Toula Kokolis Revocable Trust, the appellee here.

The Reforeclosure Lawsuit

On May 10, 2018, appellee filed the underlying action (the "reforeclosure lawsuit") to foreclose the mortgage against the interests or potential interests of parties omitted from the initial mortgage foreclosure lawsuit. The reforeclosure lawsuit named FL Homes LLC, FL Homes 1 LLC, and Perez as defendants. A notice of lis pendens was also recorded.

Appellants answered the complaint. FL Homes LLC also filed a response which stated, "FL Homes LLC claims no interest in this property and does not oppose the relief sought ...."

Appellee moved for summary judgment. Appellee argued that neither Perez nor FL Homes 1 LLC held any interest in the property. Appellee contended that any interest that existed by virtue of Perez's winning bid at the HOA foreclosure sale was unrecorded at the time the lis pendens was filed in the initial mortgage foreclosure lawsuit, so that such unrecorded interests were discharged by section 48.23, Florida Statutes.

Appellants responded that the lis pendens, final judgment of foreclosure, and certificate of title issued in the initial mortgage foreclosure lawsuit were void ab initio due to Greenwich's failure to name FL Homes LLC as a party in that lawsuit.

At the hearing on appellee's motion for summary judgment, appellee acknowledged that appellants may have an interest in the property because, after the HOA foreclosure sale, Perez took possession of the property, rented it out, and collected rent. Appellee argued that because appellants' interest was unrecorded, under the lis pendens statute, appellants had thirty days from the date the lis pendens was filed to intervene in the initial mortgage foreclosure action. Appellee contended that appellants' failure to intervene meant that the judicial sale in the initial mortgage foreclosure action "forever discharged" the property from all unrecorded interests and liens under section 48.23(1)(d), Florida Statutes (2017).

Appellants responded that because Greenwich failed to name Florida Homes LLC, an indispensable party, in the initial mortgage foreclosure action, both the lis pendens and final judgment were void.

The trial court ultimately found that the judgment was not "void for failure to name the indispensable party" and granted the summary final judgment of foreclosure.

The trial court entered a written final judgment of reforeclosure, which recognized that FL Homes LLC was the party named in the November 6, 2012 Certificate of Title and was the only defendant who had an interest in the property recorded in the public records. The final judgment granted FL Homes LLC an opportunity to redeem the property and set the redemption amount at $ 728,789.46.

Discussion

The failure to include FL Homes LLC in the initial mortgage foreclosure action resulted in a void final judgment. FL Homes LLC held title to the property at the time the initial mortgage foreclosure action was filed. "The fee simple title holder is an indispensable party in an action to foreclose a mortgage on property." Citibank, N.A. v. Villanueva , 174 So. 3d 612, 613 (Fla. 4th DCA 2015) (citing Oakland Props. Corp. v. Hogan , 96 Fla. 40, 117 So. 846, 848 (1928) (stating that "[o]ne who holds the legal title to mortgaged property is not only necessary, but is an indispensable, party defendant in a suit to foreclose a mortgage.")).

The failure to join FL Homes LLC rendered the entire foreclosure action void, so that the lis pendens filed in the initial foreclosure action cannot have had any legal effect. Under section 48.23, the nullifying impact of the lis pendens statute on unrecorded property interests turns on the prosecution of the lawsuit "to a judicial sale of the property." § 48.23(1)(d), Fla. Stat. (2017). A void final judgment begets a void judicial sale. It was as if the lis pendens were discharged, so that the notice did "not affect the validity of any unrecorded interest or lien." Id.

In English v. Bankers Trust Co. of California, N.A. , 895 So. 2d 1120 (Fla. 4th DCA 2005), we wrote that the failure to join the fee simple owner in a foreclosure action rendered the foreclosure action void. There, the lender filed a foreclosure action against the original borrower, obtained a final judgment, and purchased the property at the foreclosure sale. Id. at 1121. Immediately thereafter, the lender learned that the borrower had conveyed the property to another before the foreclosure action, so it brought a second foreclosure action, naming both the original borrower and the new owner as defendants. Id. Summary judgment was entered for the lender. Id.

On appeal, the original borrower sought to avoid a deficiency judgment by arguing that res judicata precluded her from being joined in the new action because of the prior action. Id. We affirmed the summary judgment, explaining that res judicata did not apply because the original judgment was void:

The trial court correctly concluded that the first action was void. Significantly, this is not a re-foreclosure to extinguish a junior lienor. Rather, this second action is an initial foreclosure as to the fee simple owner. Because Lesa Investments, the undisputed owner, was not a party to the first suit, the initial foreclosure judgment could not result in a valid sale, as the owner of the fee simple title was an indispensable party.
....
We note that, more than a century ago, the Florida Supreme Court recognized that "a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale." If the foreclosure proceeding has no effect to transfer title because the legal title holder has not been joined, it is simply another way of saying that the foreclosure proceeding is void.

Id. at 1121 (emphasis added) (internal citations omitted); see also Villanueva , 174 So. 3d at 613-14.

That the initial foreclosure judgment was void for failure to join an indispensable party distinguishes this case from Epstein v. Bank of America , 162 So. 3d 159 (Fla. 4th DCA 2015). There, we rejected a bank's due process challenge to a final judgment where the bank was not asserting its own constitutional rights, but those of another. Id. at 162. We observed that "constitutional rights are personal and may not be asserted vicariously." Id. (quoting Broadrick v. Oklahoma , 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ). This case involves statutory rights under the lis pendens statute, not constitutional rights. Because the impact of the lis pendens upon appellants' property rights depended upon the validity of the initial final judgment, appellants had standing to attack the final judgment as void.

Appellee argues that the final judgment in the initial mortgage foreclosure lawsuit was not void in its entirety and was ineffective only as to FL Homes LLC's interest in the property. However, the cases cited by appellee are distinguishable because in those cases, at least one owner of the property was named in the foreclosure action and was properly foreclosed upon, while another owner was omitted from the action. See R.W. Holding Corp. v. R.I.W. Waterproofing & Decorating Co ., Inc. , 131 Fla. 424, 179 So. 753 (1938) (title owners for two of three parcels of land named in foreclosure action, but title owner of third parcel omitted); Key West Wharf & Coal Co. v. Porter , 63 Fla. 448, 58 So. 599 (1912) (mortgagor named in foreclosure action, but not others whom the mortgagor had conveyed portions of the premises to); Sudhoff v. Fed. Nat'l Mortg. Ass'n , 942 So. 2d 425 (Fla. 5th DCA 2006) (husband named in foreclosure lawsuit, but not wife). Thus, in cases where there are multiple owners of property, but one or more of the property owners is omitted, "a foreclosure suit may be maintained even though the holder of the legal title to the property is not a party to the foreclosure, but ... the decree only establishes the rights of persons who are parties." Pan Am. Bank of Miami v. City of Miami Beach , 198 So. 2d 45, 47 (Fla. 3d DCA 1967).

Unlike the cases cited by appellee, in this case there was only one record title owner of the property at the time the initial mortgage foreclosure lawsuit was filed-FL Homes LLC. Therefore, consistent with this court's precedent, the failure to name FL Homes LLC in the initial mortgage foreclosure lawsuit rendered the entire foreclosure action void. As the successor in interest to the original mortgage, appellee's interest in the property is superior to that of appellants; our holding is that appellee may not rely on section 48.23 in a summary judgment to obtain a final judgment of foreclosure.

We reverse the summary judgment of foreclosure and remand to the circuit court for further proceedings consistent with this opinion.

Warner and Forst, JJ., concur.


author: LUCK, J.

text:
    Thomas DEPRINCE, Appellant, v. STARBOARD CRUISE SERVICES, INC., Appellee.
    No. 3D16-1149
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    McDonald Hopkins, and Robert A. Cohen, Mario M. Ruiz and Joelle H. Dvir, Miami, for appellant.
    Isicoff Ragatz and Eric D. Isicoff, Teresa Ragatz and Carolina A. Latour, Miami, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, SCALES, LUCK and LINDSEY, JJ.
    On Motion for Rehearing En Banc
   LUCK, J.

In 1965, our state Supreme Court held that Florida law allowed for rescission of a contract based on unilateral mistake. Maryland Cas. Co. v. Krasnek, 174 So.2d 541, 542 (Fla. 1965) ("Although there is little doubt that the statement in the District Court's opinion that unilateral mistake provides no basis for rescission of a contract or for other equitable relief therefrom, represents the majority view, we are of opinion that it does not accurately reflect Florida case law." (citations omitted) ). But what elements are required to prove unilateral mistake? Our court has read Krasnek to answer the question in two ways. In one line of cases, we have read Krasnek to require that the party seeking rescission prove "the mistake was induced by the party seeking to benefit from the mistake." DePrince v. Starboard Cruise Servs., Inc., 163 So.3d 586, 592 (Fla. 3d DCA 2015) ( DePrince I ); Rachid v. Perez, 26 So.3d 70, 72 (Fla. 3d DCA 2010) ; Lechuga v. Flanigan's Enters., Inc., 533 So.2d 856, 857 (Fla. 3d DCA 1988). In another line of cases, we have not required the party seeking rescission to prove that she was induced to make the mistake. See U.S. Alliance Corp. v. Tobon, 715 So.2d 1122, 1123 (Fla. 3d DCA 1998) ; Penn. Nat'l Mut. Cas. Ins. Co. v. Anderson, 445 So.2d 612, 613 (Fla. 3d DCA 1984). To address the lack of uniformity, we grant Starboard Cruise Service's motion for rehearing en banc, vacate the panel opinion, DePrince v. Starboard Cruise Servs., Inc., 43 Fla. L. Weekly D171, --- So.3d ----, 2018 WL 443153 (Fla. 3d DCA Jan. 17, 2018) ( DePrince II ), and recede from Lechuga, Rachid, and DePrince I to the extent they require inducement as an element of unilateral mistake. We conclude that a party seeking rescission of a contract based on a unilateral mistake does not have to prove that she was induced into making the mistake by the other party, and affirm the judgment for Starboard.

FACTUAL AND PROCEDURAL BACKGROUND

1. The cruise. On February 11, 2013, Thomas DePrince, a passenger aboard a cruise ship, visited the ship's jewelry boutique, operated by Starboard, where he indicated his interest in purchasing a fifteen to twenty carat loose diamond. DePrince specified he wanted an emerald cut, high quality, color D, E, or F diamond with a G.I.A. certificate. Because the shipboard jewelry store did not have such a diamond, the store's manager, Mr. Rusan, electronically mailed Starboard's corporate office.

Ms. Jimenez, at the corporate office, reached out to Starboard's diamond vendor in California, Sophia Fiori. Mr. Bachoura from Sophia Fiori, with some reservations because he did not believe a sale of this magnitude should take place aboard a ship, called a diamond broker in New York, Julius Klein, for its available inventory. Julius Klein sent Mr. Bachoura a list of diamonds available with the desired specifications. The list provided a per-carat price and a net price for each diamond. Mr. Bachoura selected two diamonds from the inventory listing, and electronically mailed the following information to Ms. Jimenez:

These prices are ship sailing prices based on the lowest tier diamond margin we have. Let me know if you have any questions.
EC 20.64 D VVS2 GIA VG G NON selling price $235,000
EC 20.73 E VVS2 GIA EX EX FNT selling price $245,000

Ms. Jimenez forwarded this information to Mr. Rusan on the ship. Mr. Rusan, in turn, presented the information to DePrince and his partner, Mr. Crawford.

Neither Ms. Jimenez nor Mr. Rusan had ever sold a large loose diamond before, and did not realize the quoted price was per carat. Mr. Crawford, who was a certified gemologist, asked the opinion of DePrince's sister, a graduate gemologist. Ms. DePrince warned that something was not right because the price for a diamond of that size should be in the millions and recommended not buying the diamond.

Disregarding his sister's advice, DePrince contracted with Starboard to purchase the 20.64 carat diamond for the quoted $235,000 price, paying with his American Express credit card. Shortly after the sale, Starboard discovered that the $235,000 price was per carat. Starboard immediately notified DePrince of the error and reversed the charges to his credit card. DePrince then filed this complaint seeking to enforce the parties' contract.

2. DePrince I. The trial court initially granted summary judgment in favor of Starboard on June 20, 2014, based on Starboard's defense of unilateral mistake. This court reversed that judgment in DePrince I . There, the court reviewed the various tests for determining whether a party's agreement could be rescinded based on a unilateral mistake. Concluding that the panel and trial court were bound by the "four-prong test to establish unilateral mistake," the court

held that in order to rescind an otherwise-valid contract based on a unilateral mistake, the party seeking to avoid the contract must show:
(1) [T]he mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.

Id. at 592 (quotation omitted; footnote omitted). The court explained that "this panel - along with the trial court - is of course bound by" the four-prong test. Id. at 591. Later in the opinion, the court "reiterate[d] our position" that we "currently adhere[ ] to the four-prong test." Id. at 594. The court then went on to apply the four-prong test to the facts in the record at the summary judgment hearing.

The court concluded that there was a genuine issue of material fact on the inducement prong because "knowledge of an error is markedly different than inducement of that error." Id. at 592. As an example of inducement, the court quoted the test for fraudulent inducement, and explained in a footnote:

We do not hold that the burden to establish inducement for purposes of the first prong of a unilateral mistake defense is the same as proving the elements for a fraudulent inducement defense, but merely use fraudulent inducement by way of example to demonstrate that inducement requires some type of action, not mere knowledge. In fact, the burden of proof cannot be the same because such a requirement would render the unilateral mistake of fact defense completely obsolete by requiring a party seeking to avoid a contract on that basis to prove fraudulent inducement, which is itself sufficient to render a contract voidable by the aggrieved party.

Id. at 592 n.6 (emphasis added).

The court also concluded that there was a genuine issue of material fact on the negligence prong. "[W]hether Starboard made a reasonable and understandable mistake or acted negligently in its handling of the sale is a disputed issue of fact," the court explained. Id. at 593. Based on this, the court reversed the summary judgment for Starboard and remanded for further proceedings because "[t]here remain genuine issues of material fact to be resolved." Id. at 598.

3. The trial. The case went to trial on April 4, 2016 on DePrince's claim of breach of contract, and Starboard's defense of unilateral mistake. By the end of the case the issues had been whittled down. The parties did not dispute that they entered into an agreement; the only issue was whether Starboard was excused from that agreement because it made a unilateral mistake. The trial court instructed the jury on the elements of the unilateral mistake affirmative defense, including inducement: "To establish this defense Starboard must prove ... the mistake was induced by the party, here Mr. DePrince, seeking to benefit from the mistake. Inducement may occur through misrepresentations, statements, or omissions which cause the contracting party to enter into a transaction."

The jury found that Starboard should be excused from performing under the contract because it committed a unilateral mistake. The trial court denied DePrince's motion for directed verdict on the unilateral mistake affirmative defense, and entered judgment for Starboard consistent with the jury's verdict. This appeal followed.

4. DePrince II. In DePrince II, a divided panel of the court, being bound by DePrince I, reversed the judgment for Starboard and remanded for a new trial because the trial court's jury instruction on the inducement prong of the unilateral mistake test was inconsistent with DePrince I. The trial court defined inducement to include DePrince's omission of information about the price of the diamond, even though DePrince I defined inducement to be "some type of action, not mere knowledge." See DePrince II, 43 Fla. L. Weekly at D174, --- So.3d at ---- ("Defining inducement as making misrepresentations and statements is correct, but the trial court went astray by telling the jury that an omission of information can be inducement. DePrince I was clear 'that inducement requires some type of action, not mere knowledge,' and as an example gave making a false statement." (quoting DePrince I, 163 So.3d at 592 & n.6 ) ).

5. Motion for Rehearing En Banc. Starboard moved for rehearing en banc based on the lack of uniformity in our decisions. According to Starboard, in some of our cases ( Lechuga, Rachid, and DePrince I ) we have required parties claiming a unilateral mistake to meet a four-part test that included inducement as an element. In other cases ( Anderson and Tobon ), we have not required inducement. We grant rehearing en banc to resolve this conflict.

DISCUSSION

While the panel in DePrince II was bound by DePrince I to hold that the unilateral mistake doctrine required some type of action to induce the mistake, the en banc court is not so bound. See State v. Washington, 114 So.3d 182, 188-89 (Fla. 3d DCA 2012) ("This panel is not free to disregard, or recede from, that decision; only this Court, sitting en banc, may recede from an earlier opinion."). We, unlike the DePrince II panel, are allowed to take a fresh look at the Florida Supreme Court's Krasnek decision to see if it required inducement as an element of unilateral mistake, and to review the two strands of our post- Krasnek decisions: those that have not required inducement ( Anderson and Tobon ); and those that have ( Lechuga, Rachid, and DePrince I ).

Krasnek

In Krasnek, the plaintiff was injured by a car owned by a furniture company. 174 So.2d at 542. The furniture company filed an insurance claim with Maryland Casualty Company. Id. The insurance company, "believing that their company carried liability insurance on the vehicle involved," negotiated a settlement with the injured plaintiff. Id. The terms of the settlement were as follows: the plaintiff signed and delivered a general release, and in exchange, the insurance company gave the plaintiff a check for $759.86. Id. After the check was delivered, but before it was deposited, the insurance company "discovered that earlier information received from its home office was in error and that the policy covering the vehicle in question had been permitted to lapse." Id. Immediately after discovering the coverage error, the insurance company "stopped payment on the check." Id. The plaintiff sued to enforce the settlement. Id. The insurance company "defended ... on the equitable ground that the settlement contract was subject to rescission by reason of a unilateral mistake as to a material fact." Id.

The trial court granted summary judgment for the insurance company, but the district court reversed on two grounds. Id. First, the district court concluded that "under Florida law, unilateral mistake provide[d] no basis for equitable relief and therefore no defense" to rescind the contract. Id. Second, the district court found that even if unilateral mistake was a valid defense, the insurance company did not meet the elements of reliance and undue negligence. Id.

The Florida Supreme Court accepted conflict jurisdiction on the first holding that under Florida law there was no unilateral mistake defense. Id. Discussing a string of earlier cases, the Court concluded that "this court has granted equitable relief on the basis of unilateral mistake." Id. at 543. Having decided the conflict issue, the Court "turn[ed] to the alternative grounds for the holding below." Id. at 543. The Court explained there was "no doubt that the law was correctly stated" in the district court's decision. Id. There could be no "equitable relief on the ground of unilateral mistake," the Court said, "in instances in which the mistake is the result of a lack of due care or in which the other party to the contract has so far relied upon the payment that it would be inequitable to require repayment." Id. The trial court had found, "first, that the mistake did not result from an inexcusable lack of due care in the circumstances, and second, that the [injured plaintiff]'s position had not been so changed in reliance on the contract that it would be unconscionable to order rescission." Id. Because these findings were supported by substantial evidence, the Florida Supreme Court concluded that "they should not be disturbed on appeal." Id. The Court reversed the district court, and directed the trial court "to reinstate the judgment" for the insurance company. Id. at 544.

Post- Krasnek ( Anderson and Tobon ): Inducement Not Required

Following Krasnek, in Anderson and Tobon, we did not require inducement as an element of unilateral mistake. In Anderson, a couple's Cadillac caught fire. 445 So.2d at 613. The car, at the time of the fire, was insured by Pennsylvania National. Id. The insurance company's adjuster went to the dealer's lot where the Cadillac had been taken, but he mistakenly inspected the wrong fire-damaged Cadillac (which looked like the couple's car and had a similar vehicle identification number). Id. Based on the inspection of the wrong car, the insurance company determined it was a total loss and issued a check "for the full insured value of the[ ] car." Id. Before the check was cashed, however, the error was discovered and the insurance company stopped payment on the check. Id. The couple sued to enforce the settlement, and the trial court found for the couple. Id.

We reversed because Krasnek "squarely h[eld] that a party - even an insurance company such as the present appellant - should be relieved of the consequences of a unilateral mistake like the one involved here." Id. The court explained that neither of the two exceptions to the unilateral mistake doctrine discussed in Krasnek (reliance and undue negligence) applied:

Neither of the two exceptions stated in the decision itself apply. First, the plaintiffs did not detrimentally rely upon the mistake since, as they concede, their only action which even arguably so qualifies, a commitment to purchase an expensive replacement vehicle, occurred before they knew of the extent of the carrier's erroneous largesse. Second, while some degree of negligence was undoubtedly involved - in common, as the supreme court pointed out ... with all such cases - it surely does not approach the inexcusable lack of due care the court indicated was necessary to entitle the plaintiffs to retain their consequent windfall.

Id. (citations and quotations omitted).

Tobon also explained the test for unilateral mistake without reference to inducement.

In Tobon, the plaintiff sued a security company and its driver for wrongful death. 715 So.2d at 1122. The company filed an offer of judgment "on behalf of" the security company, which was accepted by the plaintiff. Id. at 1122-23. Shortly after the offer had been accepted, the security company moved to clarify that the offer was made on its behalf and on behalf of the driver. Id. at 1123. The same attorney represented the security company and driver, and testified that "after his secretary typed up the offer of judgment he reviewed it but failed to notice that [the driver]'s name was not on it." Id. The trial court denied the motion and entered judgment consistent with the offer. Id.

The question on appeal was "whether the mistake in this case afford[ed] ground for relief." Id. We said that it did, citing to Krasnek and explaining that "the Florida Supreme Court has held that a contract such as the settlement agreement in this case may be rescinded on the grounds of unilateral mistake unless the mistake is a result of an inexcusable lack of due care or if the other party to the contract has so far relied upon the contract that it would be inequitable to rescind." Id.

Post- Krasnek ( Lechuga , Rachid , and DePrince I ): Inducement Required

On the other hand, in three of our post- Krasnek cases - Lechuga, Rachid, and DePrince I - we have said that to prove unilateral mistake, the mistaken party must show that it was induced into making the mistake by the other party. In Lechuga, for example, which was decided after Anderson but before Tobon, the plaintiff sued a bar after the plaintiff was beaten up in the bar's parking lot. Lechuga, 533 So.2d at 856. During settlement negotiations, the bar told the plaintiff that it would be filing a bankruptcy petition. Id. "Based on that representation," the plaintiff authorized his attorney to accept the settlement. Id. After the case was dismissed, the plaintiff "learned that [the bar] did not file for liquidation in bankruptcy, as was represented to [the plaintiff], but instead filed for reorganization under the bankruptcy laws." Id. When the plaintiff refused to sign the settlement documents, the bar moved to compel enforcement of the settlement agreement, which was granted by the trial court. Id. at 857.

The plaintiff argued on appeal that his attorney was authorized to settle only if the bar was going into liquidation under the bankruptcy laws, and there was a unilateral mistake as to the bar's ability to satisfy a judgment. Id. We agreed, and reversed for both reasons. The "unrebutted testimony" was that the plaintiff's attorney did not have blanket authority to unconditionally settle the case, we said, and "[e]ven if [the plaintiff] had given his attorney authority to settle, the agreement could still be rescinded on the basis of a unilateral mistake." Id.

Where it is shown that (1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust, a unilateral mistake may provide a basis for rescission of a contract.

Id. (emphasis added). We cited Krasnek as support for this four-part test.

We reaffirmed the four-part test, including the inducement prong, in Rachid. There, the wife sought to rescind her prenuptial agreement based on unilateral mistake because "she was uninformed or misunderstood significant facts." 26 So.2d at 71. We affirmed the trial court's order denying the wife's motion to set aside the order granting the motion to enforce the mediated settlement agreement because the wife "fail[ed] to present the legal argument of unilateral mistake below." Id. at 72. But "[e]ven if [she] had preserved the issue of unilateral mistake, we would affirm," we said, because "the record d[id] not support the legal remedy of rescission on the basis that the settlement agreement was the product of a unilateral mistake." Id. We explained that "[u]nder Florida law, the party seeking rescission based on unilateral mistake must establish" the four-part test, quoting and citing to Lechuga. Id. Because the wife did "not claim that any party misled or induced her to enter into the settlement agreement," she did not meet her burden. Id.

In DePrince I, we acknowledged the various tests for unilateral mistake, but stated unequivocally that "[t]his Court's most recent decisions on this topic clearly articulated and reaffirmed the viability of the four-prong test to establish a unilateral mistake." 163 So.3d at 591 (citing Rachid ). "[T]his Court," we held, "currently adheres to the four-prong test as stated in Rachid and Lechuga." Id. at 594.

Resolving the Conflict: Inducement Is Not Required

We agree with Starboard that inducement is not an element of unilateral mistake, and for three reasons, we recede from Lechuga - and the cases that followed it ( Rachid and DePrince I ) - to the extent they require inducement. First, the inducement requirement is inconsistent with Krasnek. Krasnek used the term induce once, and it was only to describe an older case from the 1920s ( Langley ) that the Florida Supreme Court used to reject the conclusion that unilateral mistake had no basis in Florida law. See Krasnek, 174 So.2d at 542 ("[I]n the Langley [v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927) ] case ... although it appears that the mistake was actually induced by the party against whom rescission was sought, the fact is that the court held in favor of rescission on the ground of unilateral mistake.").

Two of its other older cases, the Court said, were "rather more in point" and "noteworthy." Id. at 542-43. In one case, "the decedent of the party suing for rescission had executed a general release in favor of the other party to an accident, unaware at the time that he had suffered more serious injuries than yet appeared." Id. at 542 (discussing Boole v. Fla. Power & Light Co., 147 Fla. 589, 3 So.2d 335 (1941) ). In the other case, "the board of trustees of a church sought to cancel a deed by which they had conveyed certain church property, on the ground that they had by mistake included land which had previously been conveyed to another grantee." Id. at 543 (discussing Crosby v. Andrews, 61 Fla. 554, 55 So. 57 (1911) ). In both cases, the Court granted rescission of the contracts based on unilateral mistake. And in both cases, the party that benefited from the mistake did not induce it.

In the part of the Krasnek opinion discussing the district court's conclusion that the insurance company had not met the test for unilateral mistake, the Court said there was "no doubt" the district court "correctly stated" the law for unilateral mistake: equitable relief for a unilateral mistake would be prevented "in instances in which the mistake is the result of a lack of due care or in which the other party to the contract has so far relied upon the payment that it would be inequitable to require repayment." Id. Unlike for negligence, the Court did not require lack of inducement as a way to prevent the application of the unilateral mistake doctrine.

Nor could it. A court's holding can only go as far as its facts, see Miccosukee Tribe of Indians v. Lewis Tein, P.L., 227 So.3d 656, 661 (Fla. 3d DCA 2017) ("One of the basic principles of appellate law is that the holding of a decision cannot extend beyond the facts of the case."), cert. denied, --- U.S. ----, 138 S.Ct. 741, 199 L.Ed.2d 606 (2018), and the facts in Krasnek did not include inducement. There, the insurance company erroneously believed that it insured the car that injured the plaintiff. Krasnek, 174 So.2d at 542. The error was caused by the insurance company's home office, which discovered the policy had lapsed after the settlement. Id. The insurance company's mistake was its own doing, and was not induced by the injured plaintiff or anyone else. Krasnek could not have concluded that the mistaken party was induced into making the mistake by the other party. Yet, the Court still found that the trial court got it right in rescinding the contract. Our Lechuga decision was wrong for reading Krasnek as requiring inducement as an element of unilateral mistake. ( Rachid and DePrince I simply followed Lechuga's lead.)

Second, the Florida Supreme Court did not require inducement in its most recent discussion of the unilateral mistake test. In 2013, the Court adopted standard jury instructions for contract and business law cases, and included one for the unilateral mistake affirmative defense. In re Standard Jury Instructions - Contract & Bus. Cases, 116 So.3d 284, 323-24 (Fla. 2013). In support, the instruction cited our Anderson decision as one of its sources and authorities. Id. at 324. As the Court reminded us, publishing standard instructions "does not foreclose either requesting additional or alternative instructions or contesting the[ir] legal correctness" Id. at 288. We cite the unilateral mistake instruction not for its "correctness," but to show the Court knows how to read the unilateral mistake cases better than we can. The Court adopted an instruction based on Anderson that did not require inducement as an element of unilateral mistake.

Third, the other four district courts also have read Krasnek consistent with how we read it in Anderson and Tobon as not requiring inducement:

• First District. "In order to establish that the mistake is one for which equitable relief may be granted, it must be established that it is one of such consequence that enforcement would be unconscionable; it must relate to the substance of the consideration, that is, a material feature; the mistake occurred regardless of the exercise of ordinary care; and it must be possible under the circumstances to place the other party in status quo." State Bd. of Control v. Clutter Const. Corp., 139 So.2d 153, 156 (Fla. 1st DCA 1962).
• Second District. "Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would be inequitable to order rescission." Fla. Ins. Guar. Ass'n, Inc. v. Love, 732 So.2d 456, 457 (Fla. 2d DCA 1999).
• Fourth District. "[A] trial court may rescind an agreement based on unilateral mistake if (1) the mistake did not result from an inexcusable lack of due care, and (2) defendant's position did not so change in reliance that it would be unconscionable to set aside the agreement. Additionally, we will look at whether the unilateral mistake goes to the very substance of the agreement." Garvin v. Tidwell, 126 So.3d 1224, 1228 (Fla. 4th DCA 2012) (quotations omitted).
• Fifth District. "Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contract it would be inequitable to order rescission." Flynt v. Progressive Consumers Ins. Co., 980 So.2d 1217, 1219 (Fla. 5th DCA 2008).
* * *

Based on Krasnek, our decisions in Anderson and Tobon, the Florida Supreme Court's standard instruction on unilateral mistake, and the unilateral mistake cases from the other four districts, we conclude that inducement is not an element of unilateral mistake. A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable. See Krasnek, 174 So.2d at 543 ("There is no doubt that the law was correctly stated therein as preventing equitable relief on ground of unilateral mistake in instances in which the mistake is the result of a lack of due care or in which the other party to the contract has so far relied upon the payment that it would be inequitable to require repayment."); Anderson, 445 So.2d at 613 ("[T]he case is ... governed by [ Krasnek ], which squarely holds that a party ... should be relieved of the consequences of a unilateral mistake like the one involved here. And there are no grounds for departing from Krasnek in this case. Neither of the two exceptions stated in the decision itself apply. First, the plaintiffs did not detrimentally rely upon the mistake since, as they concede, their only action which even arguably so qualifies, a commitment to purchase an expensive replacement vehicle, occurred before they knew of the extent of the carrier's erroneous largesse. Second, while 'some degree of negligence' was undoubtedly involved - in common, as the supreme court pointed out ... with all such cases - it surely does not approach the 'inexcusable lack of due care' the court indicated was necessary to entitle the plaintiffs to retain their consequent windfall." (footnote and citations omitted) ).

This Case

Applied to this case, the jury was properly instructed on the elements of unilateral mistake, although the instruction included extra language on inducement, which we've concluded is not an element. The trial court instructed the jury that: "Starboard m[u]st show that there was no inexcusable lack of due care under the circumstance on its part, the party seeking return to the status quo. Starboard must also show that denial of release from the agreement would be inequitable. In other words, it would be inequitable to hold it to the contract. And it must show that Mr. DePrince did not change his position in any way and that granting relief would not be unjust."

Competent substantial evidence supported the jury's finding that all the required elements for unilateral mistake had been met. Starboard received incorrect information from its home office, which caused the company to quote a price that was a fraction of the company's cost to purchase the diamond wholesale. Based on the evidence, the jury was entitled to find that the mistake was not "inexcusable," and DePrince did not detrimentally rely on the mistake such that it would be unconscionable to rescind the sales contract.

CONCLUSION

We granted the motion for rehearing en banc, and vacated our opinion in DePrince II, to resolve the lack of uniformity in our decisions defining the elements of unilateral mistake. Having resolved the conflict, we conclude that inducement is not a required element, and recede from Lechuga, Rachid, and DePrince I to the extent they held that it was. Without inducement as an element, we affirm the trial court's judgment for Starboard.

      "A 'loose diamond' refers only to the gemstone itself, rather than a gemstone that is a component of a larger piece of jewelry." DePrince I, 163 So.3d at 589 n.1.

      "[T]he Gemological Institute of America (the 'GIA'), [is] a not-for-profit entity that grades and certifies gemstones ...." Zaretsky v. William Goldberg Diamond Corp., 820 F.3d 513, 516 (2d Cir. 2016).

      DePrince's complaint also included claims for specific performance and conversion but he voluntarily dismissed those before trial.

      SOURCES AND AUTHORITIES FOR 416.26
      1. A contract may be "set aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionable." BMW of N. Am. v. Krathen, 471 So.2d 585, 588 (Fla. 4th DCA 1985) (citing Maryland Cas. Co. v. Krasnek, 174 So.2d 541 (Fla.1965) ; Orkin Exterminating Co. v. Palm Beach Hotel Condo. Ass'n, Inc., 454 So.2d 697 (Fla. 4th DCA 1984) ; Pennsylvania Nat'l Mutual Cas. Ins. Co. v. Anderson, 445 So.2d 612 (Fla. 3d DCA 1984) ).
      Standard Jury Instructions - Contract & Bus. Cases, 116 So.3d at 324.

      We agree with DePrince II that none of the evidentiary issues raised by DePrince, "separately or together, constituted reversible error warranting a new trial." 43 Fla. L. Weekly at D175, --- So.3d at ----. And because we are affirming based on the jury's finding that Starboard made a unilateral mistake, we do not need to reach the issue of whether the jury's verdict on Starboard's fraudulent inducement defense was supported by the evidence.


author: LAGOA, J.

text:
    ATLANTIC CIVIL, INC., etc., Appellant, v. Edwin O. SWIFT, III, etc., et al., Appellees.
    No. 3D15-1594
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018. Rehearing Denied February 8, 2019
    Shubin & Bass, P.A., and Jeffrey S. Bass and Katherine R. Maxwell; Hershoff, Lupino & Yagel, LLP, and James S. Lupino, for appellant.
    Cole Scott & Kissane, P.A., and Kathryn L. Ender, for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
    ON MOTION FOR REHEARING

      Chief Judge Rothenberg did not participate in oral argument, but participated in the decision.

   LAGOA, J.

Appellees, Edwin O. Swift, III ("Swift") and Key Haven Estates, LLC ("Key Haven"), move for rehearing of this Court's opinion, Atlantic Civil, Inc., v. Swift, 42 Fla. L. Weekly D516, --- So.3d ----, 2017 WL 815362 (Fla. 3d DCA Mar. 1, 2017). Upon consideration of the motion for rehearing and Appellant Atlantic Civil, Inc.'s ("Atlantic Civil") response, we grant the motion for rehearing, withdraw our prior opinion, and substitute the following opinion it its place.

Atlantic Civil appeals the denial of its second renewed motion for attorneys' fees based upon a Proposal for Settlement (the "Proposal") served pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2010), and Florida Rule of Civil Procedure 1.442. We hold that the Proposal was invalid under Attorneys' Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), and affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In 2008, Atlantic Civil entered into a contract with the Florida Department of Transportation that required it to excavate fill material along a section of highway located in Monroe County. Atlantic Civil temporarily stored the fill material on land owned by Key Haven. Swift is the managing member of Key Haven. A dispute arose concerning ownership of the fill material, and as a result, Atlantic Civil filed suit against Swift, individually, and Key Haven. The operative complaint alleged a count for conversion against Swift and Key Haven (Count I), a count for unjust enrichment against Key Haven (Count II), and a count for tortious interference against Swift and Key Haven (Count III).

On February 4, 2010, Atlantic Civil served the Proposal on Swift and Key Haven pursuant to section 768.79, Florida Statutes, and rule 1.442. The Proposal provided, in relevant part, as follows:

PROPOSAL FOR SETTLEMENT
Plaintiff Atlantic Civil, Inc. ("ACI"), by and through undersigned counsel and pursuant to Section 768.79, Florida Statutes and Rule 1.442, Florida Rules of Civil Procedure, makes the following proposal for settlement to defendants Edwin O. Swift, III ("Swift") and Key Haven Estates, LLC ("Key Haven") (collectively, "Defendants"), the terms of which are as follows.
1. Nature of Resolved Claims. ACI proposes to resolve all claims brought by ACI against Defendants in the above-captioned action ....
2. Amount of Proposal. ... ACI proposes that Defendants pay ACI the total amount of FIFTY THOUSAND DOLLARS ($50,000.00) apportioned as follows: from Swift to ACI, the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000), and from Key Haven to ACI, the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), in full and complete settlement of the claims identified in paragraph (1) above. 3. Proposal Inclusive of Attorney's Fees. The total amount of FIFTY THOUSAND DOLLARS ($50,000.00) demanded in paragraph (2) above includes attorney's fees and costs.
* * *
5. Nonmonetary or Other Conditions. This proposal is conditioned on the mutual exchange of general releases (attached hereto as Exhibits A and B) as described in this paragraph. ACI will dismiss this action with prejudice and execute a general release, in favor of Defendants, of the claims identified in paragraph (1) above. Likewise, Defendants will execute a general release, in favor of ACI, of all counterclaims arising from or connected to this action which, if not asserted herein, would be barred by final judgment in this matter.
6. Acceptance or Rejection of Proposal. This proposal shall be deemed rejected unless Defendants accept it by delivering written notice of acceptance to ACI within thirty (30) days .... If Defendants do not timely accept this proposal, Swift and/or Key Haven may be liable for reasonable attorney's fees and costs incurred by ACI from the date of filing this proposal pursuant to Section 768.79, Florida Statutes.

The Proposal was not accepted, and the matter proceeded to a bench trial.

The trial court found Swift and Key Haven not liable on all counts and entered final judgment in their favor. Atlantic Civil appealed the final judgment to this Court in Atlantic Civil, Inc. v. Swift, 118 So.3d 271 (Fla. 3d DCA 2013). This Court affirmed in part and reversed in part, finding that Atlantic Civil established its claim for conversion as a matter of law, and remanded for entry of a judgment in favor of Atlantic Civil. Id. at 271. On remand, the trial court entered an amended final judgment in favor of Atlantic Civil and against Swift and Key Haven, jointly and severally, in the amount of $86,108.51.

Atlantic Civil moved for attorneys' fees based on the Proposal. In its second renewed motion for attorneys' fees, Atlantic Civil argued that "[b]ecause the Final Judgment for [Atlantic Civil] is greater than $62,500, which amount is 25 percent greater than the Proposal for Settlement the Defendants rejected, [Atlantic Civil] is entitled to recover the attorneys' fees and costs it incurred from February 4, 2010, the date of the Proposal for Settlement,"

pursuant to section 768.79. Swift and Key Haven filed a memorandum in opposition to Atlantic Civil's motion for attorneys' fees, arguing that the Proposal was invalid because, among other reasons, it was conditioned on both Swift and Key Haven accepting the Proposal, and thereby deprived each defendant of independent control of his or its decision to settle. The trial court conducted a hearing on the motion and made an oral finding that the language of the proposal "defeats the required opportunity to independently evaluate and settle the claim." The trial court entered an order denying Atlantic Civil's second renewed motion for attorneys' fees, finding "for the reasons stated on the record, that the Plaintiff's Proposal for Settlement fails to satisfy the particularity requirement of Rule 1.442 of the Florida Rules of Civil Procedure and is ambiguous." This appeal followed.

II. STANDARD OF REVIEW

"The eligibility to receive attorney's fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo." Pratt v. Weiss, 161 So.3d 1268, 1271 (Fla. 2015) ; see also Key W. Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So.3d 718, 720 n.1 (Fla. 3d DCA 2015) ("This Court reviews de novo a trial court's ruling on a motion to award attorney's fees and costs pursuant to the offer of judgment statute and rule.").

III. ANALYSIS

Florida courts are required to strictly construe the provisions of the offer of judgment statute, section 768.79, and rule 1.442, which implements section 768.79. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003) ; see, e.g., Audiffred v. Arnold, 161 So.3d 1274, 1279 (Fla. 2015) (applying "the required strict construction of the rule and the statute" in finding that the offer, which would have resolved all pending claims by two plaintiffs against one defendant, must be treated as a joint proposal). This is so because the statute and rule "are in derogation of the common law rule that each party should pay its own fees." Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 394 (Fla. 2016) ; see also Pratt, 161 So.3d at 1271 ("This Court has held that subdivision (c)(3) of rule 1.442, which requires a joint proposal to state the amount and terms attributable to each offeror or offeree, must be strictly construed because it, as well as the offer of judgment statute, is in derogation of the common law rule that each party is responsible for its own fees.").

In Attorneys' Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), the Florida Supreme Court's strict application of the apportionment requirement of rule 1.442(c)(3) resulted in the invalidation of a joint proposal for settlement "where one defendant presented an offer to two plaintiffs that was conditioned upon the acceptance of both plaintiffs." Pratt, 161 So.3d at 1272 (stating that "[s]trict application" of the apportionment requirement of rule 1.442 resulted in invalidation of proposal for settlement in Gorka ). In Gorka, the issue before the Court was "whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable." 36 So.3d at 649. The specific proposal for settlement at issue was made by defendant, Attorneys' Title Insurance Fund, Inc., to two plaintiffs, Gorka and Larson, and "offered payment of $12,500 to Gorka and payment of $12,500 to Larson in full settlement of all claimed damages, attorneys' fees, and costs." Attorneys' Title Ins. Fund, Inc. v. Gorka, 989 So.2d 1210, 1211 (Fla. 2d DCA 2008). The proposal was further " 'conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.' " Id.

The Court held that the proposal was invalid "because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal." Gorka, 36 So.3d at 647 ; see also Audiffred, 161 So.3d at 1279 ("We held that the proposal in Gorka was invalid because the conditional nature of the offer divested each plaintiff of independent control over the decision to settle."); Pratt, 161 So.3d at 1272 (same). In reaching its conclusion, the Court explained that:

we have drawn from the plain language of rule 1.442 the principle that to be valid and enforceable a joint offer must (1) state the amount and terms attributable to each party, and (2) state with particularity any relevant conditions. A review of our precedent reveals that this principle inherently requires that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties' decisions . Otherwise, a party's exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees.

Gorka, 36 So.3d at 650 (emphasis added) (citation omitted).

Significantly, the rule set forth in Gorka that a joint proposal for settlement must be structured such that each offeree can independently evaluate and settle his or her respective claim irrespective of any other offeree's decision has been applied in the absence of language expressly requiring mutual acceptance. See Pacheco v. Gonzalez, 254 So.3d 527, 534 n.6 , 2018 WL 2224163 (Fla. 3d DCA May 16, 2018) ("[W]e find no logical basis to prevent Gorka from applying to proposals for settlement where the text, though not explicitly requiring mutual acceptance, clearly prevents either offeree from independently evaluating the settlement offer."); see also Chastain v. Chastain, 119 So.3d 547, 550 (Fla. 1st DCA 2013) (applying Gorka to invalidate a proposal for settlement that "did not expressly require joint acceptance," but was "clear ... that there was one offer in the amount of $5,002 and that the offer ... was conditioned on joint acceptance"); Schantz v. Sekine, 60 So.3d 444, 446 (Fla. 1st DCA 2011) (finding proposal for settlement invalid under Gorka where "[a]lthough not as direct as the wording of the settlement offer in Gorka, the ... language [stating that 'Plaintiffs shall execute a general release' and that the proposal 'shall be deemed rejected by the Plaintiffs' if not accepted] ... conditions settlement on Appellants' mutual acceptance of the offer and joint action in accordance with its terms").

Applying these principles to the instant case, we find the Proposal to be invalid and unenforceable. Paragraph 2 of the Proposal requires that "Defendants pay ACI the total amount of FIFTY THOUSAND DOLLARS ($50,000.00)" in order to settle Atlantic Civil's claim. Paragraph 3 reiterates that Atlantic Civil demands "[t]he total amount of FIFTY THOUSAND DOLLARS ($50,000.00)." The Proposal therefore seeks the single sum of $50,000. And although the Proposal apportions that total sum as a payment from Swift to Atlantic Civil in the amount of $25,000 and a payment from Key Haven to Atlantic Civil in the amount of $25,000, it does not state how much either party would be required to pay to settle Civil Atlantic's claim on his or its own. Additionally, the Proposal requires that the "Defendants will execute a general release" and that the Proposal "shall be deemed rejected unless Defendants accept it," thereby conditioning settlement on Swift and Key Haven's "mutual acceptance of the offer and joint action in accordance with its terms." See Schantz, 60 So.3d at 446. We therefore find that the Proposal fails to meet Gorka's requirement that both offerees-Swift and Key Haven-be able to "independently evaluate or settle his or her respective claim by accepting the proposal." 36 So.3d at 647. Accordingly, we hold that the Proposal is an invalid joint proposal for settlement, which cannot form the basis of an award of attorneys' fees under section 768.79 and pursuant to rule 1.442. See Pacheco, 254 So.3d at 530 (holding joint proposal for settlement that was unclear as to how much each defendant would have to pay if either wanted to settle and required " 'acceptance of this offer by the ... DEFENDANTS' " to be invalid under Gorka ).

IV. CONCLUSION

"[P]roposals for settlement made under section 768.79 and rule 1.442 have ... generated significant ancillary litigation and case law." Id. And although expressly permitted under rule 1.442(c)(3), "joint proposals have become a trap for the wary and unwary alike" under the principle set forth in Gorka. Id. at 535. For that reason, we once again take the opportunity to caution counsel in our district to avoid joint proposals. See id.

Because the Proposal deprived Swift and Key Haven of the ability to independently evaluate and accept Atlantic Civil's offer to settle its claims, we hold that the Proposal is invalid under the dictates of Gorka. Accordingly, the trial court's order denying Atlantic Civil's second renewed motion for attorneys' fees is affirmed.

Affirmed.

      In the same motion, the appellees also moved for certification of conflict to the Supreme Court of Florida. That aspect of the motion is denied.

      Section 768.79 states in relevant part:
      If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand.
      § 768.79(1), Fla. Stat. (2010).

      Rule 1.442(c)(3), which sets forth the requirements for joint proposals such as the one at issue here, provides as follows: "A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party."

      Atlantic Civil argues that Swift possessed the authority to bind Key Haven at least to an amount of $25,000. The fact that Swift had full authority to do so, however, does not relieve the Proposal of its conditional nature. Indeed, Swift's considerations in determining whether to settle the individual claims may be different from those at issue in determining whether to settle on behalf of Key Haven.

      We note that neither of the two exceptions to the rule articulated in Gorka is applicable here. First, as we explained in Pacheco, Gorka "does not apply to a proposal for settlement made by multiple offerors to a single offeree." 254 So.3d at 532. In the instant case, the Proposal was made by a single offeror to joint offerees. Thus, this exception does not apply. The second limitation on Gorka applies when "a party is alleged to be solely vicariously, constructively, derivatively, or technically liable" pursuant to rule 1.442(c)(4). Id. Atlantic Civil does not assert that it is entitled to attorneys' fees pursuant to subdivision (c)(4) of rule 1.442 and a review of the Amended Complaint shows that Atlantic Civil does not allege that Swift or Key Haven is solely vicariously liable. See id. ("The plain language of rule 1.442(c)(4) limits its application to scenarios where a party's liability is alleged to be solely vicarious or otherwise indirect.").


author: SUAREZ, J.

text:
    Mark IACONO and L24M, LLC, Petitioner, v. SANTA ELENA HOLDINGS, LLC and Dominic Cavagnuolo, Respondents.
    No. 3D18-2165
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2018
    Black, Srebnick, Kornspan & Stumpf, P.A., and Jared Lopez and Joshua A. Shore, for petitioner.
    Lombana Hoelle Trial Law, and Hector J. Lombana ; Law Offices of Anthony Accetta, and Anthony Accetta, for respondent.
    Before SUAREZ, SALTER, and EMAS JJ.
   SUAREZ, J.

Mark Iacono and L24M, LLC seek certiorari relief from an order compelling the depositions of their attorneys, Jared Lopez and Joshua Shore, and paralegal, Barbara Andrade. Because Respondents Dominic Cavagnuolo and Santa Elena Holdings, LLC failed to satisfy the requirements set forth in Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), we grant the Petition for Writ of Certiorari and quash the discovery order under review without prejudice.

This case stems from an April 2018 board meeting where Cavagnuolo was allegedly voted out as the manager of L24M, and Iacono was allegedly voted in. Attorneys Lopez and Shore and paralegal Andrade were present at the meeting. Following the board meeting, Iacono filed the underlying action, on behalf of L24M, against Cavagnuolo and Santa Elena Holdings, alleging wrongful acts with respect to the formation and management of L24M. Cavagnuolo contends that he is still the manager of L24M because the required votes were never obtained to remove him. Based on this assertion, he filed a motion to disqualify Iacono's attorneys from representing L24M. Cavagnuolo also served Lopez, Shore, and Andrade with subpoenas for depositions.

During a brief status conference, the trial court granted Cavagnuolo's oral motion to compel compliance with the subpoenas. Cavagnuolo argued that the depositions were necessary to prepare for the upcoming hearing on his motion to disqualify and that the information could not be obtained by any other means. The court did not allow opposing counsel to respond to Cavagnuolo's allegation that the information was unavailable from any other source, and it granted Cavagnuolo's motion to compel. Iacono then filed an emergency motion for protective order, which was denied. Iacono now seeks certiorari review of the trial court's discovery order.

"A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused 'material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.' "

Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987) ). We have certiorari jurisdiction to review the court's discovery order because it orders opposing counsel to appear for depositions. We have previously held that taking the deposition of opposing counsel in a pending case is an extraordinary step that will rarely be justified, and we have reviewed such discovery orders on certiorari. Eller-I.T.O. Stevedoring Co., L.L.C. v. Pandolfo, 167 So.3d 495, 496 (Fla. 3d DCA 2015) (citing State v. Donaldson, 763 So.2d 1252, 1254 (Fla. 3d DCA 2000) ).

Where the deposition of opposing counsel is it issue, the party seeking such a deposition has the burden of meeting the three-factor test outlined in Shelton, 805 F.2d at 1327 :

We recognize that circumstances may arise in which the court should order the taking of opposing counsel's deposition. But those circumstances should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.

(citation omitted); see also Zimmerman v. State, 114 So.3d 446, 447 (Fla. 5th DCA 2013) ("The Shelton test was intended to protect against the ills of deposing opposing counsel in a pending case that could potentially lead to the disclosure of the attorney's litigation strategy. Because of a belief that the discovery process was being abused, the Shelton test was erected as a barrier to protect trial attorneys from unnecessary depositions." (citation omitted) ); see also Eller-I.T.O., 167 So.3d at 496.

Based on the record below, we conclude that Cavagnuolo failed to satisfy the requirements set forth in Shelton. During the brief status conference at which Cavagnuolo moved to compel compliance with the subpoenas, the trial court did not consider all of the Shelton factors and did not even allow opposing counsel to respond to Cavagnuolo's allegation that no other means existed to obtain the information other than to depose opposing counsel:

THE COURT: Let me cut you -- because this is motion calendar and -- no, I'm not going to allow a response. Counsel, I'm going to require the depositions to go forward.

The court, therefore, departed from the essential requirements of the law when it granted Cavagnuolo's motion to compel. Accordingly, we grant the Petition for Writ of Certiorari and quash the lower court's discovery order without prejudice.

Petition granted.


text:
    Vincent PHILPOT, Appellant, v. The STATE of Florida, Appellee.
    No. 16-65
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Affirmed. See State v. Michel, 43 Fla. L. Weekly S551, 43 Fla. L. Weekly S298 (Fla. July 12, 2018) (holding "that juvenile offenders' sentences of life with the possibility of parole after 25 years do not violate the Eighth Amendment of the United States Constitution as delineated by the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Virginia v. LeBlanc, --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017)").