author: LOGUE, J.

text:
    OCEAN HARBOR CASUALTY INSURANCE, etc., Appellant, v. MSPA CLAIMS, 1, etc., Appellee.
    No. 3D17-392
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Conroy Simberg, and Shannon P. McKenna and Hinda Klein and Dale L. Friedman (Hollywood), for appellant.
    MSP Recovery Law Firm, and Frank C. Quesada, John H. Ruiz, Arlenys Perdomo, Gino Moreno, and Shayna Hudson, Miami, for appellee.
    Russo Appellate Firm, P.A., and Elizabeth Russo, Miami, for Property Casualty Insurers Association of America and Personal Insurance Federation of Florida, as amici curiae; Shutts & Bowen LLP, and Suzanne Youmans Labrit, B.C.S. (Tampa); William W. Large (Tallahassee), for Florida Justice Reform Institute, as amicus curiae.
    Before SALTER, LOGUE, and LUCK, JJ.
   LOGUE, J.

MSPA Claims 1, LLC ("MSPA") asserts it is an assignee of Florida Healthcare Plus, Inc., a defunct Medicare Advantage Organization ("MAO"). MSPA filed a class action seeking to represent other MAO's to prosecute a private cause of action for double damages under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(3)(A), against Ocean Harbor Casualty Insurance Company, a Florida no-fault automobile insurer. In its complaint, MSPA seeks reimbursement for the medical bills of Ocean Harbor's no-fault insureds which were paid by MSPA's alleged assignor under Medicare, but which should have been paid by Ocean Harbor. The trial court certified the class and Ocean Harbor appealed.

The appropriateness of the class certification turns largely on whether issues common to the class will predominate. Modern Medicare requires beneficiaries to exhaust available private insurance before Medicare pays any medical bills. Moreover, if a private insurer (deemed a "primary plan" in Medicare parlance) wrongfully fails to pay a bill it should have paid, Congress provided a private cause of action for double damages. The nature of proof required under this private cause of action is at the heart of this class certification.

Significantly, MSPA intends to demonstrate Ocean Harbor's responsibility as the primary plan, not by reference to pre-existing settlements by Ocean Harbor as was done in earlier cases, but by insurance contracts entered into under Florida no-fault statutes. MSPA's proof to establish liability therefore will necessarily devolve into a series of mini-trials under Florida no-fault law. § 627.736, etseq., Fla. Stat. For this reason, we reverse.

I. BACKGROUND

A. The Class Certification Hearing.

The hearing on class certification below revealed MSPA brought suit for a class action on behalf of itself and similarly situated entities against Ocean Harbor. The complaint alleged that Ocean Harbor failed to pay covered medical bills on behalf of certain insureds in violation of federal and state law. This failure caused Florida Healthcare Plus to make conditional payments under Medicare for those bills, thereby triggering a right to bring a private cause of action for double damages under 42 U.S.C. § 1395y(b)(3)(A).

MSPA contended class action was appropriate because some or all of the thirty-seven MAO's in Florida might be in a similar situation. Common issues will predominate, it asserted, because its right to payment from Ocean Harbor is "automatic." Proof of liability involves little more than establishing that (1) its assignor made a payment under Medicare to an enrollee or his or her provider, (2) the enrollee was also insured by Ocean Harbor, and (3) Ocean Harbor failed to pay or reimburse the payment. Any other issues as to liability were waived or can be ascertained based on a proprietary algorithm that its lead attorney, John H. Ruiz, developed in consultation with various experts. The algorithm analyzes police reports of accidents and other records that Ocean Harbor must make and report under federal and state law. MSPA asserted that the class-wide damages can be derived from statistical models.

Ocean Harbor countered that MSPA's characterization of its right to reimbursement as "automatic" is based upon Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229, 1232 (11th Cir. 2016), wherein the private insurer's responsibility to pay medical bills was demonstrated by a pre-existing tort settlement in which coverage was admitted and the amount due held in trust. Here, in contrast, Ocean Harbor argued, MSPA does not intend to demonstrate Ocean Harbor's responsibility to pay the medical bills at issue by pre-existing settlements reached by Ocean Harbor. Instead, MSPA intends to demonstrate Ocean Harbor's responsibility by other means, namely, Ocean Harbor's obligations under Florida's no-fault statutes and its' enrollees' no-fault policies with Ocean Harbor. Therefore, Ocean Harbor contended, MSPA's proof to establish liability will necessarily devolve into a series of mini-trials under Florida no-fault law.

B. The Trial Court's Certification Order.

The trial court agreed with MSPA. In regard to the proof required at trial, it held that "Medicare's Recovery Rights are Automatic." Order Granting Pl. MSPA's Mot. for Class Cert., MSPA Claims 1, LLC v. Ocean Harbor Cas. Ins., Case No. 2015-1946-CA-06, 2017 WL 477124 (Fla. 11th Cir. Ct. Feb. 2, 2017). "Moreover, once Medicare or an MAO pays as a secondary payer, there is no law that would penalize Medicare or an MAO, even if it paid in error, since the payment was supposed to be made by the primary payer." Id. at 22. Therefore, the trial court ruled, the required proof of liability consists only of "(1) the defendant's status as a primary plan; (2) the defendant's failure to provide for primary payment or appropriate reimbursement; and (3) the damages amount." Id. at 67.

The trial court found that all of Florida's thirty-seven MAOs were potential class members and, pursuant to Florida Rule of Civil Procedure 1.220(b)(3), certified a class to include:

entities that contracted directly with the Centers for Medicare and Medicaid Services ("CMS") and/or its assignee pursuant to Medicare Part C, including but not limited to, MAO's and other similar entities, to provide Medicare benefits through a Medicare Advantage plan to Medicare beneficiaries for medical services, treatment, and/or supplies as required and regulated by HHS and/or CMS as a direct payer of medical services/supplies and/or drugs on behalf of Medicare beneficiaries either for parts A, B and/or D, all of which pertain to the same medical services and/or supplies that were the primary obligation of the Defendant;
have made payment(s) for medical services, treatment and/or supplies subsequent to January 29, 2009, whereby the MAO, or its assignee, as a secondary payer, has the direct or indirect right and responsibility to obtain reimbursement for covered Medicare services, for which the Defendant, as the primary payer pursuant to Defendant's contract covering the Medicare enrollee pursuant to Florida No-Fault law ( section 627.736(4), Florida Statutes ), was/is financially responsible to a Medicare beneficiary for medical bills incurred as a result of the use, maintenance or operation of a motor vehicle; and
where the Defendant failed to properly pay for medical bills on behalf of its insureds and has otherwise failed to reimburse the MAO's or its assignees for their payment(s) as calculated pursuant to the recognized Current Procedure Terminology ("CPT") codes based on the fee-for-service by the primary payer, as delineated by section 627.736, Florida Statutes, for medical services and/or supplies for their damages.

MSPA, slip op. at 6.

C. The Appeal.

Ocean Harbor timely appealed. Among other matters, it contends the trial court erred in finding numerosity, commonality, adequate representation, predominance, and superiority. We address only predominance and do not reach the other issues.

II. ANALYSIS

A. Requirements of a Class Action.

This case involves the intersection of the law of Florida class actions, Federal Medicare, and Florida no-fault insurance. We examine each area in turn.

"[A]n appellate court reviews a trial court's grant of class certification for an abuse of discretion." Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102 (Fla. 2011). Of course, that discretion is to be applied within the structure of rule 1.220. Id. at 103. At the class certification stage, the inquiry does not focus on whether the class representatives will prevail at trial. Id. at 105. "Instead, the focus is on whether a litigant's claim is suited for class certification and whether the proposed class provides a superior method for the fair and efficient adjudication of the controversy." Porsche Cars N. Am., Inc. v. Diamond, 140 So.3d 1090, 1095 (Fla. 3d DCA 2014) (quotations and citation omitted).

"However, if consequential to its consideration of whether to certify a class, a trial court may consider evidence on the merits of the case as it applies to the class certification requirements." Sosa, 73 So.3d at 105. The prerequisites to class certification are well known: numerosity; commonality; typicality; and adequate representation. Fla. R. Civ. P. 1.220(a). In addition to meeting these threshold requirements, the class must fall within one of the three different types of class actions established in rule 1.220(b). Sosa, 73 So.3d at 106 ; Diamond, 140 So.3d at 1095.

The trial court certified this class under subsection (b)(3). "In a (b)(3) class action, not all issues of fact and law are common, but common issues predominate over individual issues." Diamond, 140 So.3d at 1095-96 (citing Fla. R. Civ. P. 1.220(b)(3) ). This occurs "when, considering both the rights and duties of the class members, the proof offered by the class representatives will necessarily prove or disprove the cases of the absent class members." Id. at 1096.

The class representative's case must not merely raise a common question; the proof of the class representative's case must also "answer the question." Id. (citing Sosa, 73 So.3d at 111 ). As the United States Supreme Court stated:

What matters to class certification ... is not the raising of common 'questions'-even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quotation omitted). As the Florida Supreme Court explained in Sosa:

[A] class representative establishes predominance if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact. A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members.

73 So.3d at 112 (internal citation omitted).

To determine "whether the proof offered by the class representatives will necessarily prove or disprove the cases of the absent class members," we turn to an examination of the proof required in this case.

B. The Law of Medicare.

1. Introduction.

The crucial issue in this case concerns what proof an MAO must present in a private cause-of-action under § 1395y(b)(3)(A) to establish that a no-fault insurer was the primary plan that should have paid or reimbursed payment for a medical bill absent proof of a judgment against or settlement by the primary plan. This issue arises from relatively recent developments in Medicare law. A brief review of the evolution of this law provides helpful background to resolve the issue before us.

2. Development of Medicare Law Leading to this Litigation.

When the Medicare program was enacted in 1965, Medicare paid all covered medical bills even though many beneficiaries had access to other insurance. Over time, Congress became concerned that "[M]edicare has served to relieve private insurers of obligations to pay the costs of medical care in cases where there would otherwise be liability under the private insurance contract." H.R. No. 96-1167, 96th Cong., 2d Sess., reprinted in, 1980 U.S. Code Cong. & Admin. News 5526, 5752.

In 1980, therefore, Congress enacted the Medicare Secondary Payer Act, which required beneficiaries to exhaust other insurance before Medicare would pay. Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, § 953, 94 Stat. 2599, codified as amended at § 1395y. "Congress's intent was to reposition the burden back to private insurers where it could best be absorbed, especially considering that these insurers had already assumed such burdens-and received the benefits-in contracts with the insured." Manning v. Utilities Mut. Ins. Co., 254 F.3d 387, 396 (2d Cir. 2001).

To implement this requirement, Congress defined such other insurance as a "primary plan" which includes "a group health plan or large group health plan, ... a workmen's compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance." § 1395y(b)(2)(A). Congress then prohibited Medicare from making payments when payment was available under a primary plan. Id. At the same time, it authorized Medicare to make "conditional payments" when the primary plan delayed payment and Medicare could recoup the conditional payment. § 1395y(b)(2)(B)(i).

In a provision sometimes called the "demonstrated responsibility requirement" Congress indicated that a primary plan's responsibility to make payment could be demonstrated by a judgment, payment by the primary plan, "or by other means." § 1395y(b)(2)(B)(i). The Secondary Payer Act also provided the United States a cause of action to recover conditional payments. § 1395y(b)(2)(B)(iii). In this manner, under the Secondary Payer Act, "Medicare benefits became an entitlement of last resort, available only if no private insurer was liable." W. Heritage Ins. Co., 832 F.3d at 1234.

In 1986, Congress added to the Secondary Payer Act the private cause of action at issue in this case. Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9319, 100 Stat. 1874 (1986). See Manning, 254 F.3d at 396-97. As codified, it reads:

There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).

§ 1395y(b)(3)(A). This provision is uniquely challenging to interpret. If read in a strictly literal manner, the United States Sixth Circuit tactfully noted, "the private cause of action is rendered inoperative." Bio-Med. Applications of Tennessee, Inc. v. Cent. States Se. & Sw. Areas Health & Welfare Fund, 656 F.3d 277, 286 (6th Cir. 2011). The problem arises from the statute's requirement that the primary plan must fail to pay "in accordance with paragraphs (1) and (2)(A)," neither of which expressly concerns a primary plan's responsibility to pay. Id.

Avoiding a construction of the Act that would render it a nullity, however, the Sixth Circuit has suggested "a primary plan is liable under the private cause of action when it discriminates against planholders on the basis of their Medicare eligibility and therefore causes Medicare to step in and (temporarily) foot the bill." Id. Similarly, the Eleventh Circuit has resolved the ambiguity of the private cause of action by holding that the "demonstrated responsibility requirement" of § 1395y(b)(2)(B)(i) quoted above, although not part of "paragraphs (1) and (2)(A)" referenced in the text, is incorporated into the provision creating the private cause of action. Allstate, 835 F.3d at 1359.

In 1997, Congress enacted part C of Medicare which authorized Medicare Advantage Organizations, the type of organization for which MSPA is the alleged assignee. The Balanced Budget Act of 1997, Pub. L. 105-33, codified as amended at 42 U.S.C. § 1395w-21, etseq. An MAO is a private, for-profit company that contracts with Medicare to provide Medicare coverage based on a flat rate per enrollee. It makes or loses money to the extent it succeeds in providing the required coverage at costs less than the flat rate. Id.

The final development in Medicare law relevant to this appeal is the advent of MAO's filing private causes of action under § 1395y(b)(3)(A) against primary plans. In 2012, the Third Circuit rejected prior precedent and recognized such a cause of action. In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 685 F.3d 353, 355 (3d Cir. 2012). In 2016, the Eleventh Circuit followed suit. W. Heritage Ins. Co., 832 F.3d at 1232. An MAO's access to the private cause of action, however, does not appear to be settled in light of several forceful and well-reasoned dissents.

3. MSPA Must Prove Bills are Due Under Florida No-Fault Law.

Based upon the statutory regime just reviewed, we cannot accept the argument that MSPA's reimbursement rights are "automatic" and "are not governed by Florida law relating to the recovery of benefits under a PIP policy." Contrary to MSPA's arguments, the Secondary Payer Act does not eliminate the terms and conditions of underlying State no fault law. Under the Secondary Payer Act, "Medicare does not pay until the beneficiary has exhausted his or her remedies under no-fault insurance." 42 C.F.R. § 411.51 (emphasis added).

As this language indicates, the Secondary Payer Act does not supersede an existing State insurance policy: it merely requires the exhaustion of the benefits under that policy. Except for making Medicare the secondary payer and private insurance the primary payer, the Secondary Payer Act "has never created or extended coverage; it has only dictated the order of payment when Medicare beneficiaries already have alternate sources of payment for health care." Blue Cross & Blue Shield of Texas, Inc. v. Shalala, 995 F.2d 70, 73 (5th Cir. 1993).

Indeed, the private cause of action under § 1395y(b)(3)(A) does not arise until Medicare makes a conditional payment when payment "can reasonably be expected to be made ... under no fault insurance." § 1395y(b)(2)(B)(ii). A payment "can reasonably be expected to be made" only when the applicable no fault policies and statutes require the payments. Thus, for each reimbursement it claims, MSPA must demonstrate that, not only did it make a proper conditional payment under Medicare law, but also that Ocean Harbor was required to make the payment in the first instance under Florida no-fault law.

The two cases primarily relied upon by MSPA do not support a contrary conclusion. In both cases, the MAO demonstrated the primary plan's responsibility to make the payment as required by § 1395y(b)(2)(B)(i) by reference to the primary plan's preexisting settlement of a claim relating to the tort which lead to the medical bills at issue. In In re Avandia Mktg., 685 F.3d at 355, Glaxo had reached an omnibus settlement of claims regarding the drug in which it set aside reserves to reimburse the Medicare Trust Fund. But it declined to make payments to the MAO. Id. There, the Third Circuit held that an MAO could file a private cause of action to participate in such preexisting tort settlements. Id.

Similarly, in Western Heritage, the MAO made conditional payments to one of its enrollees who was injured in an accident at a condominium insured by Western Heritage. 832 F.3d at 1232. Meanwhile, on behalf of its insured, Western Heritage settled the tort case and placed in trust the amount of the $19,155.41 for the medical bills. Id. The Eleventh Circuit upheld a judgment for the MAO based upon that preexisting settlement. Id.

Here, in contrast, MSPA does not intend to demonstrate Ocean Harbor's responsibility as a primary plan by means of a preexisting settlement involving Ocean Harbor. Instead, it intends to make that demonstration "by other means," namely Ocean Harbor's responsibility as established by Florida no-fault statutes and policies. For this reason, this case falls squarely outside the holdings of those two cases and squarely in the ambit of Allstate, 835 F.3d at 1361.

In Allstate, the Eleventh Circuit held that even without a settlement or payment by the primary plan, proof of the primary plan's "contractual obligation may serve as sufficient demonstration of responsibility for payment." Id. In so holding, the court made clear that an MAO must still carry the "burden to allege in their complaints, and then subsequently prove with evidence, that Defendants' valid insurance contracts actually render Defendants responsible for primary payment of the expenses Plaintiffs seek to recover. And Defendants may still assert any valid contract defense in arguing against their liability." Id. MSPA's position cannot be reconciled with Allstate.

4. Florida No-Fault Law is Not Preempted.

MSPA counters with several arguments. First, it contends that the Secondary Payer Act preempted most of Florida's no-fault laws through § 1395y(b)(3)(A). This reflects a fundamental misunderstanding of the Secondary Payer Act.

The Secondary Payer Act was never intended to broadly preempt State insurance law. To the contrary, "[w]hether a compensation carrier has a 'responsibility to make payment' with respect to an item or service is generally a matter of state law." See Ins. Guarantee Ass'n v. Burwell, 227 F. Supp. 3d 1101, 1113 (C.D. Cal. 2017) ("The Court is also unconvinced that CIGA has a 'responsibility to make payment' for a treatment not covered by its policy."). Thus, the Secondary Payer Act envisions the full enforcement of state insurance law, particularly full payments under State laws - but only when the conditions of those state insurance laws are met, subject to the condition that Medicare is secondary. See, e.g., Allstate, 835 F.3d at 1361.

Caldera v. Ins. Co. of the State of Pennsylvania, 716 F.3d 861, 867 (5th Cir. 2013), provides an example of how the Secondary Payer Act is based upon a "harmonious relationship with state [insurance] law." Id. at 864. In Caldera, a worker qualified for worker's compensation under Texas law sued his worker's compensation carrier for double damages under § 1395y(b)(3)(A)'s private cause of action. He claimed the cost of surgeries relating to a compensable accident. Texas law, however, imposed a requirement of preauthorization for major surgeries. The worker failed to obtain preauthorization. He contended federal law preempted that state law requirement when the claim was brought under § 1395y(b)(3)(A)'s private cause of action.

The Caldera court rejected this argument. It held that Congress never "intend[ed] to override a primary payer's ability to impose medical necessity requirements in accordance with state law." Id. at 867. Thus, "if a claimant fails to file a proper claim in accordance with state-law requirements and, therefore, cannot recover benefits from the primary payer, ... the claimant cannot succeed under [the Secondary Payer Act]." Id. Medicare is not left without remedies: it "can refuse to make a conditional payment, or it can seek reimbursement from the claimant himself." Id.

Also expressly contrary to MSPA's preemption argument is Western Heritage, which held that a primary plan " 'fails to provide for primary payment (or appropriate reimbursement)' [thus triggering the private cause of action] when it fails to honor the underlying statutory or contractual obligation." Id. at 1237 (quoting § 1395y(b)(3)(A) ) (emphasis added). This language recognizes that an MAO pursuing a claim against an insurance carrier must demonstrate that the carrier "fail[ed] to honor the underlying statutory or contractual obligation." 832 F.3d at 1237.

5. 42 C.F.R. § 411.24(f) is Invalid.

MSPA next cites 42 C.F.R. § 411.24(f) in support of its broad preemption argument. 42 C.F.R. § 411.24(f) provides that Medicare "may recover without regard to any claims filing requirements that the insurance program or plan imposes on the beneficiary or other claimant such as a time limit for filing a claim or a time limit for notifying the plan or program about the need for or receipt of services." Initially, we note that, at best, this regulation would excuse MSPA from compliance with State claims filing requirements - not the substantive law governing no-fault claims such as relatedness to a covered accident, reasonableness, deductibles, and policy limits.

More importantly, however, § 411.24(f) was declared invalid in Health Ins. Ass'n of America, Inc. v. Shalala, 23 F.3d 412, 425. In Shalala, an insurance association claimed § 411.24(f) exceeded the statutory authority delegated to Medicare. After reviewing the controlling statutes, the court agreed 411.24(f) was void. Noting that the cause of action for direct recovery is premised upon the determination that a primary plan "has or had a responsibility to make payment," § 1395y(2)(B)(ii), the court reasoned that this criteria would not be satisfied "[i]f the beneficiary and provider have already missed the filing deadline by the time Medicare makes its payment." Id. at 419. Accordingly, the court held, " 42 CFR § 411.24(f)... go[es] beyond the Secretary's statutory authority and hence [is] invalid." Id. at 425.

6. Ocean Harbor did not Fail to Exhaust Administrative Remedies Regarding Florida No-Fault law.

Finally, MSPA contends that Ocean Harbor failed to exhaust available administrative remedies. MSPA argues that it made an "organization determination" that Ocean Harbor had the responsibility to make payments and that Ocean Harbor could have challenged these determinations pursuant to 42 C.F.R. § 422.566, etseq. We reject this argument for two reasons. First, we were unable to find in this record examples of when and where MSPA made administratively appealable "organization determinations" that Ocean Harbor had the responsibility to make specified payments. More importantly, we find nothing in the cited regulations that creates a federal administrative remedy for a primary plan like Ocean Harbor to challenge such an "organization determination."

The regulations cited by MSPA deal only with claims by an enrollee against an MAO. 42 C.F.R. § 422.566. As used in these regulations, the list of "organization determinations" is limited to instances where the MAO paid or denied an enrollee's or an enrollee's provider's request for Medicare payments. Id. Moreover, only enrollees, providers furnishing services to enrollees, or enrollee's estates can request an organization determination. Id. Nowhere is a primary plan given the right to request a determination regarding its responsibility to make a particular payment or the right to seek administrative review of such a determination.

In 2012, in fact, Congress created a "right of appeal for secondary payer determinations relating to ... no fault insurance" - the exact type of right to administrative appeal MSPA claims was available to Ocean Harbor. In doing so, however, Congress excluded MAO's. Instead, Congress made the administrative remedy available only to decisions made by the Secretary and "for which the Secretary is seeking to recover conditional payments from an applicable plan ... that is a primary plan ...." The Strengthening Medicare And Repaying Taxpayers Act of 2012, P.L. 112-242, section 201 (viii) (2012) (codified as amended at 42 U.S.C. § 1395y(b)(2)(B)(viii) ) ("the SMART Act").

Like the SMART Act itself, the regulations promulgated under the SMART Act apply only to determinations by the Secretary under Medicare Parts A and B and not to determinations by MAO's under Medicare Part C. 42 C.F.R. § 405.900 ("This subpart establishes the requirements for appeals of initial determinations for benefits under Part A or Part B of Medicare."). During the notice and comment period for the regulations, various commenters requested the regulations be made applicable to Secondary Payer actions by MAO's created by Part C, but the Secretary declined: "This request is outside of the scope of this rule. The SMART Act amended only the MSP [Medicare Secondary Payer] provisions for Medicare Part A and Part B." Fed. Reg. 80, 39 sec. II.B., 8 at 10616 (Friday, Feb. 27, 2015) (codified at 42 C.F.R. § 405). Indeed, referring to the regulations that existed prior to the adoption of regulations pursuant to the SMART Act, the Secretary noted that "[u]nder our existing regulations under part 405 subpart I, beneficiaries have formal appeal rights; applicable plans do not have such rights." Fed. Reg. 80, 39, at 10613.

Thus, we see nothing in these regulations whereby a primary plan like Ocean Harbor could administratively contest a determination by MSPA that Ocean Harbor was responsible to make a particular payment. The cases cited by MSPA in support of its argument are inapposite. They concern the requirement that a Medicare enrollee exhaust administrative remedies before suing Medicare in federal court. None of those cases stand for the proposition that a primary plan had to exhaust administrative remedies before defending a claim that it was the responsible primary plan for a medical bill.

For these reasons, we reject the notion that MSPA claims "reimbursement rights are not governed by Florida law relating to the recovery of benefits under a PIP policy" and are therefore "automatic" under § 1395y(b)(3)(A). Instead, MSPA must demonstrate that, in addition to any requirements of federal law, Ocean Harbor was required to make the payment in the first instance under Florida no-fault law for each reimbursement it claims.

7. Florida No-Fault Law.

In its no-fault law, Florida has gone to great lengths to craft a statutory structure that protects both the insured and insurer in a process that promotes accurate and expedited payments of medical bills and lost income up to a statutory amount to covered persons. Substantively, Florida law provides that claims under No-Fault policies "are due and payable as loss accrues upon receipt of reasonable proof of such loss." § 627.736(4), Fla. Stat. It authorizes an insurer to decline payment or reduce payment if "the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of [certain statutory limits and schedules]." Id. It allows exclusions from coverage for certain injuries, including injuries that were intentionally self-inflicted, incurred during the commission of a felony, or incurred while operating a vehicle without the owner's permission. Id. § 627.736(4), Fla. Stat.

Procedurally, Florida law mandates that a demand letter to be sent to the insurer as a condition precedent to litigation. § 627.736(6) & (7), Fla. Stat. It provides that payments are overdue if not paid within 30 days of written notice of the circumstances and amount of a covered loss, but allows an insurer to decline to pay all or part of a claim subject to the insurer specifying in writing what and why it is declining to pay. § 627.736(4), Fla. Stat. It allows insurers to require written notice of a loss as soon as practicable. Id. It requires providers to submit claims on certain forms with certain attestations signed by the provider and the insured. Id. It authorizes the insurer to obtain copies of relevant medical records and to require a mental or physical examination of an insured by physicians. Id.

In terms of remedies, Florida law provides civil actions for penalties against an insurer who fails to timely pay valid claims and against an insured who commits insurance fraud. § 627.736(12), Fla. Stat. It makes its payments primary to Medicare and requires an insurer to repay the full amount to a Medicare program "within 30 days after receiving notice that the Medicare program paid such benefits." § 627.736(4), Fla. Stat. Thus, payment under Florida no-fault law proceeds on a factually intensive bill-by-bill and case-by-case basis. Under its theory, MSPA will have to prove Ocean Harbor was required to pay each particular bill and Ocean Harbor will be entitled to raise any appropriate defense under the statute and policies.

III. CONCLUSION

This case does not involve a situation in which MSPA's proof of its own claim "necessarily proves the cases of the other class members." Sosa, 73 So.3d at 112 (internal citation omitted). Proof that certain medical bills paid by MSPA's alleged assignor should have been paid by Ocean Harbor as a primary payer will not establish that other medical bills paid by a different MAO should also have been paid by Ocean Harbor as a primary payer. To the contrary, proof to establish liability will necessarily devolve into a series of mini-trials under Florida no-fault law, § 627.736, etseq., Fla. Stat., which precludes a finding of predominance and renders this case inappropriate for class action treatment. Accordingly, we reverse the provisions of the certification order under review in conflict with this opinion. The remainder of the order is quashed without prejudice.

REVERSED and REMANDED for further proceedings consistent with this opinion.

      The Florida term for no-fault insurance is "personal injury protection" ("PIP"). See § 627.736, etseq., Fla. Stat. Since the Medicare statutes at issue use the term "no-fault," that term will be used in this opinion.

      Interpreting the Medicare statutes can be challenging. Courts have called the Medicare statutes "remarkably abstruse," MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1358 (11th Cir. 2016), if not "one of the most completely impenetrable texts within the human experience." Humana Med. Plan, Inc. v. Reale, 180 So.3d 195, 199 (Fla. 3d DCA 2015) (quoting Parra v. PacifiCare of Arizona, Inc., 715 F.3d 1146, 1149 (9th Cir.2013). See also In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 685 F.3d 353, 365 (3d Cir. 2012) (noting "a declaration that the language of the Medicare Act is clear may be counterintuitive.").

      Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 880 F.3d 1284, 1300 (11th Cir. 2018) (Tjoflat, J. dissenting); W. Heritage Ins. Co., 832 F.3d at 1240 (Pryor, J. dissenting); see Jennifer Jordan, Is Medicare Advantage Entitled to Bring a Private Cause of Action Under the Medicare Secondary Payer Act?, 41 Wm. Mitchell L. Rev. 1408, 1417 (2015). Because the issue is not before us, we assume but do not decide that an MAO has a private cause of action under § 1395y(b)(2)(B)(i) against a primary plan.

      See Reale, 180 So.3d at 205 ("Because the [enrollees] did not obtain a final decision from the Secretary, as required by § 405(g), their dispute is not subject to judicial review."); see also Potts v. Rawlings Co., LLC, 897 F.Supp.2d 185, 199 (S.D.N.Y. 2012) (ruling that court lacked subject matter jurisdiction because enrollees "were obligated to exhaust their administrative remedies before bringing this action.");W. Heritage Ins. Co., 832 F.3d at 1240 ("Before Western settled with the Reales, Humana issued to Ms. Reale an Organization Determination for $19,155.41. Ms. Reale was entitled to administratively appeal that amount but did not. See 42 U.S.C. § 1395w-22(g). The amount that Humana may recover is therefore fixed, at least as to Ms. Reale." This was true "[e]ven if Western retains the right to dispute the amount.").


source: Caselaw Access Project

author: ROTHSTEIN-YOUAKIM, Judge.

license: Public Domain

text:
    Philip Wallace STAUDERMAN, DOC #080760, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2982
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018. Rehearing Denied January 4, 2019
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Philip Wallace Stauderman appeals the sentence imposed after the circuit court granted his postconviction motion and vacated his previously imposed illegal sentence. We disagree with Stauderman that State v. Akins, 69 So.3d 261 (Fla. 2011), governs the outcome of this appeal, and we affirm the court's imposition of a ten-year habitual felony offender (HFO) sentence on resentencing notwithstanding the court's failure to designate Stauderman as an HFO at the prior sentencing hearing.

Background

In December 2011, Stauderman entered a negotiated no-contest plea to felony battery (two or more prior convictions), a third-degree felony. See § 784.03(2), Fla. Stat. (2010). Pursuant to the plea, the circuit court sentenced him as an HFO to sixty-six months' imprisonment followed by fifty-four months' drug offender probation. See § 775.084(1)(a), (3)(a), (4)(a)(3), Fla. Stat. (2010).

Following release from the incarcerative portion of his probationary split sentence, Stauderman admitted violating his probation. At the violation of probation (VOP) hearing, the possibility of an HFO sentence repeatedly came up, but when the time came to actually impose sentence, the circuit court did not orally pronounce Stauderman an HFO. Nonetheless, the court sentenced Stauderman to ten years' imprisonment:

All right, sir, having accepted your plea, find it's made freely, knowingly and voluntarily, I'm gonna adjudicate you guilty of the underlying offense, if you haven't been already. Revoke and terminate your previously ordered probation, sentence you to ten years in the Florida Department of Corrections. You'll get credit for any and all prison credit that you are entitled to and you will get credit for any jail credit from the time as a violator.
You have 30 days to appeal the judgment and sentence of the Court. If you can't afford an attorney for purpose of appeal one can be appointed for you.
That's all, sir.

In addition, the court's written sentence included the HFO designation.

Stauderman did not appeal. Instead he sought postconviction relief, arguing that because the oral pronouncement controlled over his written sentence and the circuit court had failed to orally pronounce the HFO designation at the sentencing on the VOP, his ten-year sentence was an illegal sentence that exceeded the applicable non-HFO sentence for his offense. Citing Akins, 69 So.3d 261, he also argued that the court's failure to designate him as an HFO at sentencing on the VOP precluded the court from designating him as an HFO upon resentencing. The State conceded that his ten-year sentence was illegal because the court had failed to orally pronounce the HFO designation at sentencing on the VOP but argued that Akins was distinguishable and that the court could designate him as an HFO upon resentencing.

The circuit court agreed that Stauderman's ten-year non-HFO sentence was illegal and granted his motion. On resentencing, however, the court disagreed with Stauderman's argument that reimposing the HFO designation would violate double jeopardy. Thus, the court again orally pronounced a ten-year sentence, but this time it also orally pronounced Stauderman's HFO designation. This timely appeal follows.

Analysis

We review de novo the legality of Stauderman's sentence and his claim of a double jeopardy violation. See Akins, 69 So.3d at 268.

As an initial matter, the circuit court correctly granted Stauderman's postconviction motion. As the parties agreed, the court failed to orally pronounce Stauderman's HFO designation at the original sentencing on the VOP. As the parties also agreed, the circuit court's post hoc HFO designation in the written sentence could not remedy its failure to orally designate him as an HFO. See Fla. R. Crim. P. 3.700(a), (b) ; Akins, 69 So.3d at 269 (" 'Generally, courts have held that a written order must conform to the oral pronouncement ... because the written sentence is usually just a record of the actual sentence required to be pronounced in open court.' As a result, when there is a discrepancy between the written sentence and 'the oral pronouncement, the oral pronouncement prevails.' " (alteration in original) (quoting Justice v. State, 674 So.2d 123, 125 (Fla. 1996) ) ). Although the court had designated Stauderman as an HFO when it had imposed the split sentence for the underlying offense, Akins holds that a defendant in that situation loses his HFO designation if the circuit court fails to repeat it when sentencing him on an ensuing VOP. See Akins, 69 So.3d at 263, 272. Because the court failed to redesignate Stauderman as an HFO as Akins requires and his ten-year sentence exceeded what the trial court could impose for a non-HFO sentence, the ten-year sentence was illegal, and Stauderman was entitled to resentencing.

The concurrence's reliance on O'Neal v. State, 862 So.2d 91 (Fla. 2d DCA 2003), Lewis v. State, 16 So.3d 1021 (Fla. 5th DCA 2009), and Scanes v. State, 876 So.2d 1238 (Fla. 4th DCA 2004), to conclude to the contrary is misplaced. First, in light of Akins, we cannot agree that O'Neal, to the extent that it held that a circuit court need not make a specific oral pronouncement that the defendant is being sentenced as an HFO, see 862 So.2d at 92-93, is still good law. Moreover, to whatever extent Lewis and Scanes survive Akins, they are factually distinguishable. In both of those cases, the court specifically pronounced the defendant's HFO status at the sentencing hearing notwithstanding that its pronouncement was in some way attenuated from the actual imposition of sentence. See Lewis, 16 So.3d at 1022 ; Scanes, 876 So.2d at 1239. At Stauderman's original sentencing on the VOP, in contrast, although the circuit court mentioned that Stauderman had been "previously designated as a habitual felony offender" and defense counsel briefly discussed Stauderman's prior sentencing as an HFO, the court never orally pronounced Stauderman's HFO status at that hearing.

Stauderman contends that Akins further required the circuit court to correct the illegality by resentencing him to a non-HFO sentence, but a brief review of the facts in Akins establishes that its application to Stauderman's situation ended with the granting of resentencing. In Akins, the circuit court adjudicated Akins guilty of a second-degree felony and sentenced him as an HFO to a true split sentence of thirty years' imprisonment with the last ten years suspended and to be served on probation. Akins, 69 So.3d at 263-64. After Akins admitted a VOP, the court sentenced him to five years' imprisonment without a subsequent term of probation and failed to designate him as an HFO either orally at the sentencing hearing or in its written sentence. Id. at 264-65.

Thereafter, the circuit court, on its own motion, amended the judgment to designate Akins as an HFO. Id. at 266. On review, the supreme court held "that the [circuit] court's subsequent imposition of an HFO designation to Akins'[s] judgment and sentence violated double jeopardy and amounted to an illegal sentence." Id. at 268.

Importantly, however, Akins's five-year sentence was a legal sentence. See Clark v. State, 72 So.3d 222, 224-25 (Fla. 2d DCA 2011) (recognizing that the sentence under review in Akins was a "new, final, and legal sentence following a violation of probation, not a correction of a prior illegal sentence"). Here, in contrast, Stauderman's ten-year non-HFO sentence imposed after revocation of probation was illegal from the get-go. Because that ten-year sentence was illegal, jeopardy never attached to it. See Kelsey v. State, 206 So.3d 5, 11 (Fla. 2016) ("In 2012, we clarified that jeopardy attaches only to a legal sentence." (citing Dunbar v. State, 89 So.3d 901, 905 (Fla. 2012) ) ). And if jeopardy has never attached, there can be, as a matter of law, no double jeopardy. Thus, to the extent that Akins held that the circuit court violated double jeopardy when it amended Akins's VOP sentence to include the HFO designation, it is inapposite.

Instead, having granted Stauderman's motion, the circuit court was free to correct the illegal sentence on resentencing by imposing "any sentence consistent with the sentencing laws in effect on the date of the offense, even if it result[ed] in a harsher sentence." Clark, 72 So.3d at 226. That included designating Stauderman as an HFO notwithstanding its failure to do so at the prior hearing. See Plute v. State, 835 So.2d 368, 369 (Fla. 2d DCA 2003) (explaining that after the circuit court granted Plute's rule 3.800(a) motion, the court was free to resentence Plute as a habitual offender despite having originally sentenced him under the sentencing guidelines because when the original sentence is illegal, "[i]t is well established that a harsher sentence may be imposed on resentencing ... without violating double jeopardy"; Harris v. State, 624 So.2d 279, 280 (Fla. 2d DCA 1993) (holding that the circuit court did not violate double jeopardy by imposing a habitual offender sentence on resentencing after direct appeal despite that the court did not do so originally because it incorrectly believed that Harris's offenses were not subject to habitualization; "When he chose to appeal from his convictions and sentences, ... Harris risked having the [circuit] court's misperception of the law corrected"), approved, 645 So.2d 386 (Fla. 1994) ; see also Galindez v. State, 955 So.2d 517, 525 (Fla. 2007) (Cantero, J., specially concurring) ("We have consistently held that resentencing proceedings must be a 'clean slate,' meaning that the defendant's vacated sentence becomes a 'nullity' and his 'resentencing should proceed de novo on all issues bearing on the proper sentence.' " (first quoting Preston v. State, 607 So.2d 404, 408 (Fla. 1992) ; and then quoting Morton v. State, 789 So.2d 324, 334 (Fla. 2001) ) ).

The circuit court, therefore, did not err in designating Stauderman as an HFO at resentencing following vacatur of his illegal sentence notwithstanding its failure to designate him as such at the prior sentencing hearing. Accordingly, we affirm Stauderman's ten-year HFO sentence.

Affirmed.

SILBERMAN, J., Concurs.

BLACK, J., Concurs with opinion.

BLACK, Judge, concurring with opinion.

I concur that this court must affirm Stauderman's new sentence upon violation of his probation. And while I agree that Stauderman's sentence is not a double jeopardy violation or contrary to State v. Akins, 69 So.3d 261 (Fla. 2011), I find it necessary to make two points.

First, as this is an appeal from Stauderman's new sentence, in order to preserve the issue Stauderman presents on appeal he needed to have objected to the sentence at the sentencing hearing or to have filed a motion to correct his sentence under Florida Rule of Criminal Procedure 3.800(b). See Fla. R. App. P. 9.140(e) ("A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b)."). Here, Stauderman argued the issue at his resentencing, thus preserving the issue. See Clark v. State, 72 So.3d 222, 224 (Fla. 2d DCA 2011) ("[Clark] argues, as he did in his 3.800(b)(2) motion, that when the trial court sentenced him the second time and failed to pronounce his HFO status, the trial court could not, at the third sentencing, reimpose his HFO status."); cf. Carter v. State, 43 Fla. L. Weekly D1338, D1338, 249 So.3d 665 (Fla. 4th DCA June 13, 2018) (affirming sentence alleged to be in violation of State v. Akins, 69 So.3d 261, 269 (Fla. 2011), because "defendant did not preserve the alleged error by bringing the alleged error to the circuit court's attention by objecting at the time of sentencing or by filing a rule 3.800 motion to correct sentencing error"); Akins v. State, 926 So.2d 412, 413 (Fla. 2d DCA 2006) ("[O]ur record does not establish that he has challenged the amendment in the circuit court. As such, we have no jurisdiction to review the double jeopardy issue in this proceeding.").

Second, I disagree with the dicta in the majority that the postconviction court correctly granted Stauderman's postconviction motion, resulting in the new sentence at issue, despite the State's apparent concession of error. The transcript of the VOP hearing reflects that Stauderman's status as a habitual felony offender was addressed three times. In the first instance, during the plea colloquy, Stauderman affirmatively stated that he understood that when he was originally sentenced he was sentenced as an HFO which meant that he faced ten years in prison for violating his probation. In the second instance, again during the plea colloquy, the trial judge asked Stauderman if he understood that since he had been designated an HFO he could be sentenced up to ten years in prison, double the statutory maximum. Stauderman again affirmatively stated that he understood. Finally, Stauderman's status as an HFO was addressed by defense counsel prior to the imposition of the sentence. There are no "magic words" which the court must use in sentencing a defendant as an HFO. Scanes v. State, 876 So.2d 1238, 1239-40 (Fla. 4th DCA 2004) ("Here, it is clear from the plea colloquy, the written habitual felony offender finding, and the written sentence, that the trial court intended to, and did, contemporaneously sentence Scanes as a habitual felony offender. 'Magic words' are not necessary to establish what the sentencing court intended." (footnote omitted) ). The record makes it clear that everyone in the courtroom-and particularly Stauderman-understood that he was being sentenced as an HFO. See, e.g., O'Neal v. State, 862 So.2d 91, 93 (Fla. 2d DCA 2003) ("[W]here a trial court finds that a defendant qualifies as a habitual felon, it is not necessary for the trial court to specifically state that it is imposing a habitual offender sentence."); Lewis v. State, 16 So.3d 1021, 1021 (Fla. 5th DCA 2009) ("Having independently reviewed the record, we agree with the State that the transcript of the sentencing hearing ... clearly demonstrate[s] that the trial court intended to, and did, sentence Lewis as an HFO when the original probationary sentences were imposed."). In my opinion, Stauderman's motion for postconviction relief should not have been granted in the first instance; his VOP sentence was not illegal. The resentencing in this case was unnecessary.

      The maximum non-HFO sentence that the trial court could impose following revocation of Stauderman's probation was not the statutory maximum of 5 years' imprisonment prescribed for a third-degree felony but 74.7 months' imprisonment, which was lowest permissible sentence on Stauderman's Criminal Punishment Code scoresheet. See § 921.0024(2), Fla. Stat. (2010).

      Our holding comports with the United States Supreme Court's statement that "[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947) ); see also Harris v. State, 645 So.2d 386, 388 (Fla. 1994) (quoting DiFrancesco with approval).


text:
    5F, LLC; and Mount Massive, LLC, Appellants, v. BOCA GRANDE ISLE LLC ; Three Sisters Isle LLC; Redfish Alley, LLC; Osprey Alley LLC; Gordon Burns; Marie Burns ; Elizabeth Ghriskey; John Samuels and Diane Samuels, as trustees of the JS Residential Trust Agreement Dated December 13, 2012, and the DS Residential Trust Agreement Dated December 13, 2012; Ann S. Aikens, Martin L. Katz, and Joseph Aviv, as trustees of the Robert Aikens Revocable Trust; and Alan Pike, as trustee of the Chad Rustan Pike 2012 Revocable Trust, Appellees.
    Boca Grande Isles Property Owners Association, Inc., Appellant, v. Boca Grande Isle LLC ; Three Sisters Isle LLC; Redfish Alley LLC; Osprey Alley LLC; Alan Pike, as trustee of the Chad Rustan Pike 2012 Revocable Trust; Reynolds Guyer ; Bob Hall; John Jackoboice; Lynn Kieffer; Steve Kieffer; Jay Proops; Linda Wiggin; Three Sisters Homeowners Association, Inc.; Ron Strich; Chris Johnson; and Jeff Deaterly, Appellees.
    Case Nos. 2D17-949 2D17-1155 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018. Rehearing Denied December 12, 2018
    Jason A. Lessinger and Bradley J. Ellis of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellants 5F, LLC and Mount Massive, LLC.
    J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellant Boca Grande Isles Property Owners Association, Inc.
    John A. DeVault, III, Michael E. Lockamy, and John G. Woodlee of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville; and Richard W. Hawthorne of Richard W. Hawthorne, Jacksonville, for Appellee Boca Grande Isle LLC.
    David B. Weinstein and Ryan T. Hopper of Greenberg Traurig, P.A., Tampa, for Appellees John Samuels, Diane Samuels, Gordon Burns, and Marie Burns.
    Christopher L. Ulrich of Cummings & Lockwood, LLC; and Marve Alaimo of Porter, Wright, Morris, & Arthur, Naples, for Appellee Elizabeth Ghriskey.
    No appearance for remaining Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

We affirm the trial court's entry of final summary judgment in favor of the plaintiffs on count one of the complaint and the plaintiffs/counterclaim defendants on count one of the amended counterclaim in Case No. 15-CA-001157. The restrictions on the use of Lot 99 of Boca Grande Isles (BGI), as set forth in the 1974 Declaration of Restrictions that binds all of the lot owners of BGI (the Declaration), run with the land and may be amended only upon the unanimous consent of all of the lot owners of BGI. See Van Loan v. Heather Hills Prop. Owners Ass'n, 216 So.3d 18, 23 (Fla. 2d DCA 2016) ("Because there was no express delegation of authority to the [property owners association] to amend the restrictive covenants, the restrictive covenants can only be amended by the consent of all the property owners in the subdivision." (citing Roth v. Springlake II Homeowners Ass'n, 533 So.2d 819, 820 (Fla. 4th DCA 1988) ) ). The plaintiffs' and counterclaim defendants' later purchases of their lots did not effect a novation of the Declaration to the extent that it sets forth restrictions that run with the land and constitute a contract among all of the lot owners. Cf. Jakobi v. Kings Creek Vill. Townhouse Ass'n, 665 So.2d 325, 327 (Fla. 3d DCA 1995) (holding, in the context of personal contractual obligations between a townhouse owner and the master and townhouse associations, that the transfer of a townhouse deed, "rather than effecting a mere assignment, constituted a novation of the bylaws and declaration of covenants and restrictions as between the Master Association, the Townhouse Association, and the owner" (emphasis added) ).

Because we hold that affirmance is warranted on this basis, we do not comment on the trial court's alternative conclusion, as set forth at paragraphs 30 through 36 of the magistrate judge's thorough and well-reasoned report and recommendation of September 1, 2016.

Affirmed.

NORTHCUTT and SALARIO, JJ., Concur.

      Boca Grande Isle LLC, Three Sisters Isle LLC, Redfish Alley LLC, and Osprey Alley LLC. (During the pendency of this appeal, the property owned by Boca Grande Isle LLC was transferred to Alan Pike as trustee of the Chad Rustan Pike 2012 Revocable Trust. The appellants' motion to join the trustee as an appellee to these proceedings was granted.)

      The counterclaim defendants included the four plaintiffs plus additional counterclaim defendants Gordon and Marie Burns, Elizabeth Ghriskey, John and Diane Samuels as trustees of the JS and DS Residential Trusts, and Robert Aikens. (Mr. Aikens passed away during the course of the litigation and his property was transferred to Martin L. Katz and Joseph Aviv as trustees of the Robert Aikens Revocable Trust.)


author: ATKINSON, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-6, Mortgage Backed Pass-Through Certificates Series 2006-6, Appellant, v. William F. NOLL, III, Appellee.
    Case No. 2D16-5635
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018. Rehearing Denied January 7, 2019
    A. Donald Scott, Jr. of Clarfield, Okon, Salomone & Pincus, Orlando, for Appellant.
    Louis D. D'Agostino and Maria Vigilante of Cheffy Passidomo, P.A., Naples, for Appellee.
   ATKINSON, Judge.

Deutsche Bank National Trust Company ("Deutsche Bank") appeals the final summary judgment entered in favor of William F. Noll, III, dismissing its foreclosure case due to lack of standing. We reverse because the lower court erroneously determined that because the Collier County Clerk of Court (the "Clerk") had possession of the original promissory note filed in a previously-dismissed foreclosure action, the Clerk, rather than Deutsche Bank, was the holder of the note at the time the foreclosure case was commenced.

In March of 2011, Deutsche Bank filed suit against Mr. Noll in Collier County Circuit Court to foreclose on a mortgage (the "Prior Foreclosure"). The Prior Foreclosure arose out of a monetary default under the terms of a promissory note and mortgage executed by Mr. Noll on September 26, 2006. The original principal amount due under the note was $2,600,000. Mr. Noll defaulted under the terms of the note and mortgage by failing to make the payment due on May 1, 2010, and failing to make all payments due thereafter. Deutsche Bank filed the original promissory note with the Clerk on March 11, 2014, in anticipation of a hearing on its motion for summary judgment. The Prior Foreclosure was involuntarily dismissed without prejudice on November 10, 2014. Deutsche Bank did not retrieve the original promissory note from the court file.

On May 5, 2015, Deutsche Bank filed another foreclosure action against Mr. Noll based on the same promissory note. It alleged in the complaint that it was the "holder of the original note secured by the mortgage and [was] entitled to foreclosure pursuant to Florida Statute 673.3011(1)." A copy of the promissory note was attached to the complaint evidencing a blank indorsement. In the certification of possession of original promissory note, Deutsche Bank's attorney certified that "[o]n April 29, 2015 at 11:09 a.m., [she] reviewed the original Note at Collier County Courthouse and personally verified that Collier County Clerk is in the possession of the Note on behalf of Plaintiff." Deutsche Bank filed a motion to transfer the original loan documents filed in the Prior Foreclosure into the new court file, which was granted on March 9, 2016.

Both Deutsche Bank and Mr. Noll filed motions for summary judgment. Mr. Noll argued that Deutsche Bank lacked standing because at the time of filing its second foreclosure action, the original note was in the possession of the Clerk in the case file of the Prior Foreclosure. The trial court granted summary judgment in favor of Mr. Noll based upon its finding that the Clerk was the holder of the original note at the time the complaint was filed and, as a result, Deutsche Bank lacked standing to foreclose.

This court reviews decisions involving whether a party has standing to bring a mortgage foreclosure action de novo. St. Clair v. U.S. Bank Nat'l Ass'n, 173 So.3d 1045, 1046 (Fla. 2d DCA 2015). The de novo standard of review also applies to orders granting summary judgment, Olivera v. Bank of Am., N.A., 141 So.3d 770, 773 (Fla. 2d DCA 2014), which are reviewed under the following two-pronged analysis: (1) whether, drawing every possible inference in favor of the non-movant, there are any genuine issues of material fact and (2) whether the movant is entitled to a judgment as a matter of law, Maynard v. Household Finance Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003).

As the parties have identified no disputed issue of material fact, the question for this court is purely a legal one: whether Deutsche Bank was the holder of the original promissory note on May 1, 2015, when it filed the mortgage-foreclosure complaint, notwithstanding the fact that the note was in the possession of the Clerk because it remained in the court file from the Prior Foreclosure.

Florida courts require a party seeking to enforce a promissory note and to foreclose on the collateral securing that debt to establish that they have standing to do so when they file suit. See Corrigan v. Bank of Am., N.A., 189 So.3d 187, 191 (Fla. 2d DCA 2016) (Lucas, J., concurring) (outlining the origins of the standing-at-inception rule in foreclosure cases). Both holders and non-holders in possession with rights of a holder are entitled to enforce a negotiable instrument such as the promissory note at issue in this appeal. § 673.3011, Fla. Stat. (2016). A holder is the person in possession of the negotiable instrument which is either payable to the bearer (i.e., indorsed in blank) or payable to an identified person who is in possession. § 671.201(21)(a), Fla. Stat. (2016).

Lack of direct, physical possession of the original promissory note when the case is filed does not, without more, defeat a party's ability to establish its standing to foreclose. See Phan v. Deutsche Bank Nat'l Tr. Co., 198 So.3d 744, 747 (Fla. 2d DCA 2016) ; Caraccia v. U.S. Bank, Nat'l Ass'n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016) (finding plaintiff's failure to have physical possession of the note did not deprive it of standing because "[e]ven where a third party has physical possession of the note, so long as the plaintiff 'had the power to exercise control over it, then [the plaintiff] had constructive possession of the note' " (quoting Deakter v. Menendez, 830 So.2d 124, 128 (Fla. 3d DCA 2002) ) ).

Mr. Noll points out two cases in which this court has decided that a plaintiff lacked standing where the original notes were filed with the clerk of court in the case files of prior foreclosure actions. However, these cases- Partridge v. Nationstar Mortgage, LLC, 224 So.3d 839 (Fla. 2d DCA 2017) and Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231 (Fla. 2d DCA 2016) -do not support his position. At issue in Partridge was a purported assignment of the mortgage, but not the note, after the original note was filed with the court in the prior foreclosure action instituted by a different plaintiff. Geweye, on which this court relied in Partridge, did not address whether the plaintiff had standing at the inception of the action. Geweye, 189 So.3d at 231-33 ("There is no dispute that Chase had standing when the foreclosure complaint was filed."). Rather, the court held that the substituted plaintiff lacked standing to enforce the note at the time of trial despite the original note having been in the court file because the evidence established the mortgage, but not the note, had been assigned to the plaintiff. Id. at 233.

This case does not turn on the effectiveness of a post-commencement assignment after the original note was surrendered to the clerk. Here, while the note did remain in the direct, physical possession of the Clerk in the case file of the Prior Foreclosure at the time of filing the second action, Deutsche Bank was the plaintiff in both actions. And because Deutsche Bank retained the power to exercise control over the note, it had the possession necessary to establish that it was a holder with standing to file the later foreclosure action. See Bank of N.Y. Mellon v. Heath, 219 So.3d 104, 106 (Fla. 4th DCA 2017) (describing one in constructive possession as having "such control over the property that he may deliver the possession of it, if he so desires" (quoting Bush v. Belenke, 381 So.2d 315, 316 (Fla. 3d DCA 1980) ) ).

Yet, Mr. Noll contends-as the trial court concluded-that the Clerk became the holder when Deutsche Bank surrendered the original promissory note to it in anticipation of entry of a final judgment in the Prior Foreclosure. But this argument proves too much: if the Clerk was the holder of the note at the time Deutsche Bank filed the instant action solely because the note remained in the prior case file, then every clerk would become a holder of every bearer note surrendered to it by a foreclosure plaintiff. Consequently, no such plaintiff could ever foreclose because every plaintiff's standing would evaporate when it relinquished its status as the holder of a note that it was required to surrender to the clerk in order to obtain a judgment of foreclosure.

In other words, there is nothing pertinent to distinguish this scenario-a promissory note sitting in the Clerk's file for a dismissed case-from the normal scenario in which a foreclosure plaintiff surrenders the note to the clerk in a pending case before entry of a final judgment. The clerk has the same level of control over the promissory note in either situation-consistent with its duty to maintain any type of filed document. See generally § 28.13, Fla. Stat. (2016) (describing the duties of the clerk of the circuit court with respect to the maintenance of papers and electronic filings).

A plaintiff must surrender the original promissory note prior to entry of final judgment of foreclosure in order to prevent the note from being further negotiated. See Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010) ("[I]n the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment."); Heller v. Bank of Am., N.A., 209 So.3d 641, 644 (Fla. 2d DCA 2017) ("Because a promissory note is a negotiable instrument, it is necessary to surrender the original note to remove it from the stream of commerce and prevent the negotiation of the note to another person."); see also Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). This purpose is irreconcilable with the notion that the Clerk itself becomes the holder by virtue of being entrusted with the note to prevent its negotiation.

While leave of court would be required to remove the original note from the custody of the Clerk, see § 28.13, the Clerk would have no authority to relinquish the note to anyone else but Deutsche Bank. By surrendering the original promissory note to the Clerk for the limited purpose of removing it from the stream of commerce to obtain a judgment of foreclosure, Deutsche Bank did not relinquish the statutorily required possession necessary to establish its status as a holder of the note with standing to sue for its enforcement. As such, the trial court erred in granting summary judgment in favor of Mr. Noll.

Reversed and remanded for further proceedings.

SILBERMAN and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Santiago JIMENEZ a/k/a Santiago Milian, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2705
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See § 812.13(3)(b), Fla. Stat. (2014) (providing: "An act shall be deemed 'in the course of the taking' if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events"); Fonseca v. State, 547 So.2d 1032 (Fla. 3d DCA 1989) (affirming robbery conviction where defendant grabbed money from a store cash register and ran; the cashier chased defendant and grabbed him, preventing him from leaving the store; the cashier and defendant fell to the ground, at which time defendant punched and kicked the cashier and then fled the store); Messina v. State, 728 So.2d 818 (Fla. 1st DCA 1999) (holding that robbery can be established by proof that force was used to retain the victim's property once it has been taken); Lemus v. State, 641 So.2d 177 (Fla. 5th DCA 1994) (same).


author: SLEET, Judge.

text:
    James R. WOLDSETH, DOC #R33402, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2354
    District Court of Appeal of Florida, Second District.
    Opinion filed November 16, 2018 Rehearing Denied January 8, 2019
    James R. Woldseth, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Special Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

James Woldseth appeals his amended sentences after the postconviction court granted his Florida Rule of Criminal Procedure 3.850 motion, vacating one of his convictions and resentencing him on his remaining offenses. We affirm Woldseth's amended sentences and restitution order of $823,233.88 to the victim. However, on appeal he argues that the trial court erroneously imposed costs and fees when it resentenced Woldseth on May 10, 2017. We agree. Because costs and fees were orally waived at the resentencing hearing, we reverse and remand for the trial court to strike the award of court costs and fees.

Affirmed in part, reversed in part, and remanded with instructions.

KELLY, and MORRIS, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Scott L. SORENSON, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, AS TRUSTEE FOR the CERTIFICATE HOLDERS CWALT, INC., Alternative Loan Trust 2006-OA7 Mortgage Pass-Through Certificates, Series 2006-OA7; Hayam Salah Gabr; National City Bank; Unknown Tenant No. 1; Unknown Tenant No. 2; and All Unknown Parties Claiming Interest by, Through, Under or Against a Named Defendant to this Action, or Having or Claiming to Have Any Right, Title or Interest in the Property Herein Described, Appellees.
    Case No. 2D16-273
    District Court of Appeal of Florida, Second District.
    Opinion filed November 16, 2018 Rehearing Denied January 8, 2019
    Bruce Jacobs and Court E. Keeley of Jacobs Legal, PLLC, Miami, for Appellant.
    William L. Grimsley and Derek K. Mountford of McGlinchey Stafford, Jacksonville; and Charles E. Stoecker, and Ralph W Confreda, Jr., of McGlinchey Stafford, Fort Lauderdale, for Appellee The Bank of New York Mellon f/k/a The Bank of New York, CWALT, Inc., alternative loan trust 2006-OA7 mortgage pass-through certificates, series 2006-OA7.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Scott L. Sorenson appeals the final judgment of foreclosure entered against him and in favor of the Bank of New York Mellon, f/k/a the Bank of New York, as trustee for the certificate holders CWALT, Inc., alternative loan trust 2006-OA7 mortgage pass-through certificates, series 2006-OA7. We reverse and remand because the court should have allowed Sorenson to amend his pleadings. In light of this holding, we do not reach the remaining issues.

On October 9, 2009, the Bank of New York Mellon filed its original foreclosure complaint against Sorenson, alleging that it was the owner and holder of a lost note that Sorenson had failed to make payments on since January 1, 2009. Attached to the complaint was a copy of the note, which showed that the Bank was not the original lender and bore no endorsements. In March 2010, the Bank filed a supplemental exhibit with a copy of the note bearing an undated, blank endorsement signed by David Spector, as managing director of the original lender.

In December 2010, Sorenson filed an answer and affirmative defenses. Among other claims, he denied that the endorsement and delivery of the note preceded the filing of the suit; argued that the Bank did not have standing to foreclose; challenged the validity of the endorsement on the copy of the note filed in March 2010; and asserted that the Bank had unclean hands because it had imposed illegal or negligent charges on him.

The Bank filed an amended complaint in August 2013, dropping the lost note count. Attached to the amended complaint was a copy of the note endorsed in blank. This was the same version of the note as filed in March 2010.

In May 2015, Sorenson retained new counsel and sought to amend his answer and affirmative defenses and to add a counterclaim reflecting new theories of the case. The crux of the new arguments was that the evidence on which the Bank relied to show standing had been fraudulently created and produced. Specifically, Sorenson claimed that the Bank had added the undated endorsement during the current litigation, had provided perjured testimony to falsely backdate the endorsement, and had submitted a false assignment of the note and mortgage to support its timeline of events. At the time Sorenson first sought to amend, trial was scheduled for June 2015. The trial court denied the request to amend. The trial proceeded as scheduled but ended in a mistrial because the Bank's witness was unavailable to complete her testimony.

In August 2015, Sorenson again sought to amend his affirmative defenses and counterclaims, allegedly based on the discovery of additional evidence of misconduct. His motion was denied. And finally, the day before trial in January 2016, Sorenson made one last request to amend his pleadings. The request was denied based on the length of time that the case had been pending. "[I]n a seven-year-old case it's time to either settle the case or get it tried," the court stated. The trial was held, and final judgment of foreclosure was entered.

On appeal, Sorenson argues that he should have been given the opportunity to amend his pleadings to include his fraud defense. Florida Rule of Civil Procedure 1.190(a) provides that "[l]eave of court [to amend pleadings] shall be given freely when justice so requires." Behind this rule is a "[p]ublic policy favor[ing] the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit." Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011) (citing S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So.3d 56, 62 (Fla. 2d DCA 2011) ). "A trial court's refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile." Id. (citing S. Developers & Earthmoving, Inc., 56 So.3d at 62-63 ). Granting leave to amend is particularly appropriate where the amendment is based on the same conduct, transaction, or occurrence from which the original claim arose and only changes a party's legal theory of the case. See Dausman v. Hillsborough Area Reg'l Transit, 898 So.2d 213, 215 (Fla. 2d DCA 2005).

It is true that "[t]his liberality in granting leave to amend diminishes as the case progresses to trial." Marquesa at Pembroke Pines Condo. Ass'n, Inc. v. Powell, 183 So.3d 1278, 1280 (Fla. 4th DCA 2016) (alteration in original) (quoting Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 237-38 (Fla. 3d DCA 1983) ). But even where the motion to amend is not filed until shortly before trial, the "justice factor" can outweigh the prejudice to the opposing party caused by having to prepare for the new issue-typically, such prejudice should be remedied with a continuance instead of the denial of amendment. See Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234, 236-37, 236 n.2 (Fla. 3d DCA 2003). Here, Sorenson did not wait until the eve of trial to attempt to amend his pleadings. Though his final request was made the day before the second trial, by that point he had already made two previous attempts to amend and those requests had been denied.

We conclude that the court abused its discretion in denying Sorenson the opportunity to amend to add new arguments solely because of the length of time the action had been pending. There is no indication that the Bank would be prejudiced by allowing amendment, especially considering the case had been pending so long in large part due to the Bank's actions. There is also no indication that Sorenson had abused the privilege to amend or that amendment would be futile. To resolve this case on the merits, as the law favors, amendment should be allowed. Accordingly, we reverse and remand with directions that the trial court permit Sorenson to amend his pleadings.

Reversed and remanded with directions.

NORTHCUTT and MORRIS, JJ., Concur.


text:
    HARBORSIDE SUITES, LLC, Appellant, v. Michael ROSEN, et al., Appellees.
    No. 3D18-293
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    The Lehman Law Firm, PLLC, and Gary E. Lehman ; Nelson Mullins Broad and Cassel, Beverly A. Pohl and Barbara Viota-Sawisch (Fort Lauderdale), for appellant.
    Gunster, Angel A. Cortiñas and Jonathan H. Kaskel ; Akerman LLP, Michael B. Chavies and Naim S. Surgeon, Miami, for appellees.
    Before SUAREZ, LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Harborside Suites, LLC, appeals the trial court order dissolving writs of garnishment after the trial court's non-evidentiary hearing on the allegation of appellee debtor, Michael Rosen, as well as that of third parties, claiming that the garnished funds belong to someone other than the debtor. We reverse and remand for trial, on the authority of Merriman Investments, LLC v. Ujowundu, 123 So.3d 1191, 1193 (Fla. 3d DCA 2013) :

Once issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see § 77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debtor. See § 77.16, Fla. Stat. (2001). Either method requires a trial of the issues. §§ 77.07, 77.16.

Reversed and remanded for further proceedings.


author: FERNANDEZ, J.

text:
    FLORIDA RECOVERY ADJUSTERS, LLC and Oscar Valdes, Appellants, v. PRETIUM HOMES, LLC, Appellee.
    Nos. 3D17-575 3D17-433
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Roniel Rodriguez, IV, Aventura, for appellants.
    The Barthet Firm, Paul D. Breitner and Jessica A. Goldfarb, Miami, for appellee.
    Before FERNANDEZ, LUCK and LINDSEY, JJ.
   FERNANDEZ, J.

In these consolidated appeals, defendants, Florida Recovery Adjusters, LLC (FRA) and Oscar Valdes (Valdes) (collectively, the appellants) appeal two final default judgments entered ex-parte by the trial court against them and in favor of plaintiff, Pretium Homes, LLC (Pretium). We affirm the March 17, 2017 ex parte Final Default Judgment in Garnishment as to Chase Bank. With regard to the January 25, 2017 ex parte Final Default Judgment, we affirm its entry as to the breach of contract count and the unjust enrichment count. However, we reverse that portion of the judgment as to the civil theft count because we find that the trial court abused its discretion in awarding unliquidated treble damages to Pretium based on Pretium's erroneously alleged civil theft claim and remand the case for a trial on damages solely as to Pretium's surviving counts.

Pretium, a Florida limited liability company, entered into a contract for insurance with a non-party insurance agency, National Real Estate Group (National), which provides its services through a third-party, Affinity Loss Management Services (Affinity). On December 15, 2015, after suffering water damage to its property, Pretium entered into an insurance adjustment agreement (Agreement) with FRA, a Florida limited liability company, through its agent, Valdes. Pursuant to the Agreement, FRA was to provide services related to the insurance adjustment for Pretium's loss. The Agreement contained the following clauses: (1) an assignment clause that reserved "20% of the initial amount recovered" to FRA; (2) a payment clause where Pretium agreed to instruct National to name "Florida Recovery Adjusters as a payee of all insurance settlement proceeds"; and (3) an attorneys' fees clause that entitled the prevailing party "to recover its court costs and reasonable attorney's fees, including fees and costs in all appellate or bankruptcy [sic]."

Thereafter, FRA submitted a claim on behalf of Pretium that was approved and settled for $21,265.55. On May 25, 2016, Affinity issued a check for $18,000.00, that was payable to "Pretium Homes/Florida Recovery Adjusters" and delivered it to FRA. Upon receipt of the payment from Affinity on June 9, 2016, FRA deposited the check to its account but did not return the remaining balance to Pretium. Subsequently, based on section 772.11(1), Florida Statutes (2014), Pretium alleged a civil theft claim and made three written demands that requested treble damages in the amount of $54,000.00 - three times the check amount of $18,000.00 that was deposited into FRA's account - plus attorneys' fees. FRA and Valdes did not reply.

Pretium sued FRA and Valdes for (1) civil theft, (2) breach of contract (only against FRA), and (3) unjust enrichment on October 25, 2016, and personally served them on December 8, 2016. On December 29, 2016, Pretium moved for entry of default against the appellants as a result of their failure to respond to the summons or otherwise defend the case. The trial court entered an order of default on January 18, 2017. Thereafter, on January 25, 2017, the trial court entered its Final Default Judgment based on Pretium's ex-parte motion and supporting affidavits. The trial court accepted Pretium's affidavits for (1) interest calculations on the alleged principal liquidated balance of $18,000.00, (2) claim demonstration, (3) attorneys' fees and costs, and (4) reasonable attorneys' fees, and subsequently awarded the treble damages amount of $54,000.00 and the accrued interest amount of $548.80 plus attorneys' fees, as pled by Pretium. On January 26, 2017, Pretium served copies of the trial court's Final Default Judgment to the appellants. The appellants did not respond. On February 7, 2017, the trial court issued a Writ of Garnishment (Writ) against the appellants' bank, Chase Bank, as requested by Pretium. The Writ was served on Chase Bank the following day, and the appellants were served with copies of the Writ on February 10, 2017.

The appellants claimed that they became aware of the suit upon the garnishment of their accounts on February 10, 2017, and thus, they appeared in the proceedings for the first time by filing several emergency motions on February 14, 2017, specifically: (1) Verified Motion to Set Aside Default and Verified Motion to Vacate Default Final Judgment Dated January 25, 2017, (2) Supplemental Response to Motion to Vacate; and (3) Verified Emergency Motion to Dissolve Writ of Garnishment. The trial court deferred ruling on emergency motions (1) and (2) pending an evidentiary hearing, but denied emergency motion (3). The appellants then appealed to this Court the trial court's Final Default Judgment.

On February 17, 2017, Chase Bank filed its Answer to Writ of Garnishment (Answer) and confirmed its possession of the appellants' assets. Pretium served copies of the Answer to the appellants and provided notice that a motion to dissolve or object must be filed within 20 days. The appellants, however, did not take any action. On March 14, 2017, the trial court issued the second final default judgment as requested by Pretium's proposed ex-parte Final Judgment in Garnishment as to Chase Bank because the appellants failed to respond within the deadline. The appellants also appealed to this Court the trial court's Final Default Judgment in Garnishment.

On appeal, the appellants claim that the January 25, 2017 Final Default Judgment is defective and void as a matter of law because it improperly awards unliquidated damages and attorneys' fees. The appellants claim that the damages award is predicated on a facially deficient statutory notice demanding unliquidated damages in addition to the statutory damages. Also, the appellants appeal the March 14, 2017 Final Default Judgment, claiming that the trial court violated their due process rights by withholding their opportunity to defend. We review the appeal of a trial court's final default judgment under a gross abuse of discretion standard. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 665 (Fla. 3d DCA 2007). First, we affirm the trial court's January 25, 2017 ex parte Final Default Judgment as to the breach of contract claim against FRA and the unjust enrichment claim against FRA and Valdes. This default final judgment was correctly entered due to appellants' failure to timely respond to Pretium's complaint. See Rule 1.500(a), Fla. R. Civ. P. We also affirm the March 17, 2017 Final Default Judgment in garnishment as to Chase Bank, correctly entered on Pretium's motion for garnishment after final judgment. See § 77.01, Fla. Stat. (2017).

Turning next to Pretium's civil theft count against the appellants, pursuant to Florida Statute section 812.014(1), a theft is committed when a non-owner "knowingly obtains or uses, or endeavors to obtain or to use, the property of another." Pretium's civil theft allegation thus fails under the plain language of the Agreement that Pretium agreed to "irrevocably and unconditionally assign" its funds to the appellants and instruct National "to make payment directly to Florida Recovery Adjusters for the full amount due to Florida Recovery Adjusters." Because FRA was named as a valid payee of the check, the appellants did not obtain or use the property of another, but of their own. The appellants had the right to deposit the check that named FRA as a co-payee with Pretium.

In addition, the Florida Civil Theft Statute, section 772.11(1), Florida Statutes (2014), provides that the person claiming a civil theft claim "must make a written demand for $200 or the treble damage amount of the person liable for damages." Here, Pretium mailed three demand letters to the appellants; however, it failed to meet the statutory requirement. Pretium's demand letters were facially deficient because they requested more than the maximum treble damages amount of $43,200.00, three times the recovered amount after the 20% assignment, plus attorneys' fees. Taking every allegation in the complaint as true, Pretium would never have been entitled to the treble damages amount of $54,000.00 liquidated in the ex-parte default judgment. Thus, Pretium's civil theft allegation claiming that the appellants stole Pretium's property and interfered with its right to property fails because Pretium waived its exclusive rights to the check by entering into the Agreement.

Furthermore, we agree with the appellants' claim that Pretium's complaint was not well-pleaded. The Agreement, which was submitted by Pretium with the complaint, negated its civil theft allegation. In addition to Pretium's failure to comply with sections 772.11(1) and 812.014(1), Pretium's complaint directly contradicted the Agreement's assignment clause by indicating an incorrect amount as its statutory damages. The complaint stated the total recovered amount of $18,000.00 as the basis for its treble damages; however, such amount is wrong under the Agreement. Furthermore, the record's clear indication of Pretium's endorsement of the check over to FRA conflicts with the allegation that the appellants stole the funds.

Florida Rule of Civil Procedure 1.130(b) provides that "any exhibit attached to a pleading shall be considered a part thereof for all purposes." Any exhibits attached to a complaint are controlling when there is a conflict between the complaint and the exhibits. Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994). Accordingly, we evaluate the inconsistency between Pretium's civil theft allegation and the accompanying exhibits by focusing on the latter. Upon such review, the civil theft claim is insufficient because it failed to properly incorporate the Agreement, and the exhibit of the deposited check demonstrates that Pretium relayed the check over to FRA through its endorsement. Thus, the contractual dispute, not an act of theft, gave rise to the claim. See Walker III v. Figarola, 59 So.3d 188, 190 (Fla. 3d DCA 2011).

The trial court's award of treble damages is void because this is not a prima facie civil theft case. Because Pretium's statutory claim for civil theft was invalid, the trial court's award of treble damages was not supported by competent substantial evidence.

In sum, the trial court abused its discretion in granting unliquidated treble damages on an erroneously alleged civil theft claim. We thus vacate that portion of the January 25, 2017 Final Default Judgment that awards damages based on the invalid civil theft claim, as well as costs and fees that flowed from that claim, and remand for further proceedings on damages arising only from the properly pled claims for breach of contract and unjust enrichment. We affirm the January 25, 2017 ex parte Final Default Judgment as to the breach of contract and unjust enrichment claims, and we affirm the March 14, 2017 ex parte Final Default Judgment.

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.


text:
    Dandre Curtez RUSSELL, DOC# R79128, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3205
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the order revoking Mr. Russell's probation and imposing sentence without comment. However, as the trial court recognized in its order denying Mr. Russell's motion to correct sentencing error, the scoresheet erroneously assessed four additional legal status points and twelve additional community violation points. Accordingly, we remand for the court to correct those errors. See Montanez v. State, 160 So.3d 540, 541 (Fla. 2d DCA 2015).

Affirmed; remanded with instructions.

KHOUZAM, LUCAS, and SALARIO, JJ., Concur.

      We note that even where a scoresheet error is innocuous, like in this case, the trial court should ensure that any mistakes of which it is aware are corrected before entering a judgment. See Holmes v. State, 109 So.3d 1191, 1192 (Fla. 2d DCA 2013) ("[T]o avoid questions in future proceedings, we remand for the scrivener's error on the scoresheet to be corrected."). A trial court should not decline, as the trial court did in this case, to rectify minor sentencing errors on the ground that the errors are harmless. See Philip J. Padovano, Florida Appellate Practice § 27:4 (2018 ed.) ("The harmless error rule is designed to encourage a realistic approach to appellate review by allowing the appellate courts to consider not only the existence of error at the trial level, but the effect of the error." (emphasis added) ).


text:
    ASSOCIATION OF POINCIANA VILLAGES, INC., Petitioner, v. GURSKY RAGAN, P.A., etc., et al., Respondents.
    No. 3D18-1267
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Patsko Law Group, and Joseph T. Patsko (Tampa) and Michael J. Bayern (Tampa), for petitioner.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Abbey L. Kaplan and Josh M. Rubens, Miami, for respondents.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Petition dismissed. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (holding that "to obtain a writ of certiorari, there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal") (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ). See also Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (recognizing that "[t]he last two elements are jurisdictional and must be analyzed before the court may even consider the first element").