author: Levine, J.

text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2006-QO1, Appellant, v. JB INVESTMENT REALTY, LLC, BW Homeowners' Association, Inc., Boca Falls Homeowners Association, Inc., Henry R. Ensler, Homecomings Financial, LLC f/k/a Homecomings Financial Network, Inc., a dissolved Florida corporation, by and through Jill M. Horner, its president, and Kimberly A. Ensler, Appellees.
    No. 4D18-3240
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Nancy M. Wallace, Akerman LLP, Tallahassee, William P. Heller, Akerman LLP, Fort Lauderdale, and Eric M. Levine, Akerman, LLP, West Palm Beach, for appellant.
    Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, and Donald J. Thomas of Lewis & Thomas, LLP, Boca Raton, for appellees JB Investment Realty, LLC, and the Enslers.
   Levine, J.

The trial court entered an involuntary dismissal in this case after determining that the bank was required to enter into evidence the entire payment history in order to proceed with its mortgage foreclosure action. We find the trial court erred in granting an involuntary dismissal and requiring the entire payment history "from the beginning" to be in evidence before the bank could proceed with the foreclosure action. We therefore reverse and remand for a new trial.

Deutsche Bank ("the bank") brought a mortgage foreclosure action against appellees. The complaint alleged that the loan originated in 2005 and that a default occurred on July 1, 2012. At trial, the bank presented testimony from a default case analyst with the current servicer who also worked for a prior servicer. The witness generally testified about what a "boarding process" is, but never expressly testified that the loan documents in the instant case had been boarded. During the witness's testimony, the loan payment history from February 2008 to August 2018 was introduced into evidence over objection.

Significant to the issue in this case, the payment history did not include the period from the loan's inception in 2005 to February 2008. The witness did not know who serviced the loan during this period or why the principal of the loan had increased during this timeframe. The witness testified that the last payment received was in 2008, but that the bank was not seeking any interest or damages from prior to 2012. The witness testified to the amount of unpaid principal as well as taxes and insurance.

Appellees moved for involuntary dismissal based on failure to prove damages due to the lack of any payment history between 2005 and February 2008. The trial court stated that the Fourth District requires the "entire history of the loan ... from the beginning," and as a result, the trial court granted the motion for involuntary dismissal based on the fact that the bank did not have the loan's complete financial history. This appeal ensues.

"The applicable standard of review for a motion for involuntary dismissal is de novo ." Rouffe v. CitiMortgage, Inc. , 241 So. 3d 870, 872 (Fla. 4th DCA 2018). "A motion for involuntary dismissal under Fla. R. Civ. P. 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial ...." Id. "An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party's claim." Bayview Loan Servicing, LLC v. Luciano Del Lupo , 208 So. 3d 97, 98 (Fla. 4th DCA 2017) (citation omitted).

"To establish a prima facie case, a foreclosure plaintiff must prove ... the amount due." Liberty Home Equity Sols., Inc. v. Raulston , 206 So. 3d 58, 60 (Fla. 4th DCA 2016). "In other words, the plaintiff must introduce ... some evidence regarding the outstanding debt." Id.

Courts have "made a distinction between cases in which evidence of indebtedness was improperly admitted or was insufficient [and] those in which no evidence of the amount of indebtedness was admitted." Paeth v. U.S. Bank Nat'l Ass'n for C-Bass Mortg. Loan Asset-Backed Certificates , 220 So. 3d 1273, 1275 (Fla. 2d DCA 2017). In cases with insufficient evidence, "courts have remanded for further proceedings at which the plaintiff [can], in essence, try again." Id. In cases with no evidence of the amount of indebtedness, courts have "remand[ed] for an involuntary dismissal rather than ... give the party making the error an opportunity to retry its case." Id. (citation and quotation marks omitted).

Consistent with this rule, in Wells Fargo Bank, N.A. v. Eisenberg , 220 So. 3d 517, 522-23 (Fla. 4th DCA 2017), this court reversed an involuntary dismissal where the bank made a prima facie showing of the amounts due and owing, even though the portion of the payment history showing the date on which the borrower was alleged to have initially defaulted was not admitted into evidence. Similarly, in Deutsche Bank National Trust Co. v. Baker , 199 So. 3d 967, 968-69 (Fla. 4th DCA 2016), this court found the trial court erred in granting an involuntary dismissal where the bank presented prima facie evidence of damages, even though the evidence of damages was based on inadmissible hearsay that was erroneously admitted at trial.

Applying the above authority to the instant case, the bank made a prima facie showing of the amount of indebtedness by offering the payment history from February 2008 to August 2018 as well as witness testimony as to the amounts due and owing. Further, contrary to the trial court's finding, this court has never held that the entire loan history is required in order to foreclose on a mortgage.

Significantly, the bank sought damages only from 2012 onward. It did not seek any damages for the period during which there was no evidence as to the loan payment history. Following the trial court's reasoning, if a bank did not have the entire payment history in its business records, then it never would be able to foreclose. This is not the law, as each subsequent default creates a distinct cause of action subject to a different calculation of damages. See Bartram v. U.S. Bank, N.A. , 211 So. 3d 1009, 1019 (Fla. 2016). Thus, how much of the payment history is required to be entered into evidence generally will depend on the damages sought.

In sum, the trial court erred in granting an involuntary dismissal based on an incomplete payment history. When considered in the light most favorable to the bank, the evidence regarding the payment history was sufficient to establish a prima facie case on damages. Having admitted that evidence, the trial court erred by granting an involuntary dismissal. As such, we reverse the involuntary dismissal and remand for a new trial. See Bayview , 208 So. 3d at 98.

Reversed and remanded.

Damoorgian and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: May, J.

license: Public Domain

text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee Rali 2006-QS6, Appellant, v. Terri P. PAGE, et al., Appellees.
    No. 4D18-816
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Kimberly Held Israel and William L. Grimsley of McGlinchey Stafford, Jacksonville, for appellant.
    Nicole R. Moskowitz of Neustein Law Group, P.A., Aventura, for appellee, Terri P. Page.
    En Banc

      We decide this case en banc because it involves an issue of exceptional importance. Fla. R. App. P. 9.331(a).

   May, J.

The bank appeals an order awarding attorney's fees to the borrower following an involuntary dismissal of its foreclosure action. It argues the borrower is not entitled to attorney's fees after it prevailed on its standing defense. We agree and reverse.

The bank filed a foreclosure action. The borrower filed an answer and asserted the note and mortgage were void and unenforceable and the bank lacked standing. The case proceeded to trial.

At trial, the borrower argued the bank lacked standing because the note attached to the original complaint contained no endorsements, the endorsements on the note attached to the amended complaints did not contain dates, and the evidence failed to prove it had standing at the inception of the action. The bank responded that it had standing because it possessed the note at the time it filed the complaint.

The trial court granted the borrower's motion for involuntary dismissal. It noted the original complaint contained a note with no endorsements and that a successful transfer to a holder requires "evidence of it other than three year later appearing endorsements." It found no standing at the inception of the action even though the bank had established standing at trial. The bank appealed the involuntary dismissal. We affirmed without opinion. Deutsche Bank Tr. Co. Americas v. Page , 214 So. 3d 674 (Fla. 4th DCA 2016).

The borrower then moved for attorney's fees, arguing she prevailed in the action and the note and mortgage provided for attorney's fees. Pursuant to section 57.105(7), Florida Statutes (2017), she argued entitlement to attorney's fees. The trial court granted the borrower's motion and reserved jurisdiction to determine the amount.

Over a year later, the bank moved for reconsideration of the order granting attorney's fees and costs. It argued that since the borrower prevailed in its "lack of standing" argument, the borrower was not entitled to an attorney's fees award. The trial court denied the bank's motion.

The trial court awarded the borrower $ 52,294 in attorney's fees. From this final judgment, the bank now appeals.

The bank argues the borrower is not entitled to attorney's fees because the involuntary dismissal was based on the borrower's "lack of standing" defense. It further argues the borrower cannot take an inconsistent position and now argue entitlement to attorney's fees under the very contract upon which the bank failed to prove standing.

The borrower responds that this case is similar to Madl v. Wells Fargo Bank, N.A. , 244 So. 3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon , 44 Fla. L. Weekly D141, --- So.3d ----, 2018 WL 6816177 (Fla. 2d DCA Dec. 28, 2018). In those cases, the Fifth and Second Districts held that regardless of the borrower prevailing on a "lack of standing" defense, because there was proof of a contract between the parties at the time of trial, the borrower is entitled to fees. We disagree.

"[W]hen entitlement of attorney's fees is based on the interpretation of contractual provisions ... or a statute ... the appellate court undertakes a de novo review." Wells Fargo Bank Nat'l Ass'n v. Bird , 234 So. 3d 833, 834 (Fla. 5th DCA 2018).

Florida follows the "American Rule," which dictates that attorney's fees are only awarded if authorized by contract or statute. Glass , 219 So. 3d at 897.

Under section 57.105(7), "[i]f a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract." § 57.105, Fla. Stat. (2017).

"[W]here a party prevails by arguing the plaintiff failed to establish it had the right pursuant to the contract to bring the action, the party cannot simultaneously seek to take advantage of a fee provision in that same contract." Glass , 219 So. 3d at 898. Here, that is precisely what happened.

The borrower prevailed when the bank failed to prove standing at the inception of the action notwithstanding that it proved standing at the time of trial. The borrower cannot now rely upon the same contract for an award of attorney's fees.

Both the Fifth and Second Districts reached their holdings in Madl and Harris by relying upon the existence of a contract between the bank and the borrower notwithstanding the bank's failure to prove standing in the foreclosure action. We decline to go down that rabbit hole.

Here, the borrower prevailed due to the bank's failure to prove standing at the inception of the foreclosure action even though it established standing at the time of trial. The borrower cannot have it both ways. If the borrower prevails on its "lack of standing" defense, it cannot rely on the contract to obtain attorney's fees.

We adhere to our precedent in Glass and state our holding simply:

NO STANDING = NO ATTORNEY'S FEES

We certify conflict with Madl v. Wells Fargo Bank, N.A. , 244 So. 3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon , 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018).

Reversed.

Gerber, C.J., Warner, Gross, Taylor, Damoorgian, Levine, Ciklin, Conner, Forst, Klingensmith, and Kuntz, JJ., concur.

      The trial court also found the default letter defective.

      The Second District certified conflict with Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), review granted , SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018), and review dismissed as improvidently granted , 268 So.3d 676 (Fla. 2019), reh'g stricken , SC17-1387, 2019 WL 1986842 (Fla. May 6, 2019) and Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald , 215 So. 3d 116 (Fla. 3d DCA 2017).

      Because of our holding, we need not address the bank's jurisdictional argument.


author: Kuntz, J.

text:
    Douglas Anthony PERERA, Appellant, v. DIOLIFE LLC, a Florida limited liability company, Appellee.
    No. 4D18-892
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    J. David Huskey, Jr. of McGee & Huskey, P.A., Fort Lauderdale, for appellant.
    Lida Rodriguez-Taseff and Elan A. Gershoni of DLA Piper LLP (US), Miami, for appellee.
    ON APPELLEE'S MOTION FOR REHEARING EN BANC AND MOTION FOR CERTIFICATION TO THE FLORIDA SUPREME COURT
   Kuntz, J.

Diolife LLC's motion for rehearing en banc or, alternatively, for certification of an issue of great public importance is denied. We sua sponte withdraw our prior opinion and issue this opinion in its place.

Douglas Perera appeals the circuit court's final judgment. The circuit court entered judgment in Diolife's favor on both Diolife's action for declaratory relief and on Perera's counterclaims for breach of contract and specific performance. The court found the parties orally modified a written contract and, as a result, Diolife did not breach the contract. Alternatively, the court found that if Diolife breached the contract, Perera suffered no damages. Based on the facts and arguments presented, we reverse on both conclusions and remand for entry of judgment for Perera.

Background

i. Pre-Lawsuit

Perera and Diolife entered into a Membership Interest Purchase Agreement ("MIPA"), in which Perera agreed to sell to Diolife a 5% membership interest in Cowboys Saloon Holdings, LLC for $ 200,000. The parties completed this transaction of the MIPA.

The MIPA also gave Perera the option to sell another 5% interest in Cowboys Saloon Holdings in exchange for another $ 200,000 from Diolife. The option was exercisable in Perera's sole discretion and required Diolife to tender the purchase price. The MIPA required the sale of the additional interest to close on or before March 31, 2016. This agreement to buy another 5% of Cowboys Saloon Holdings also required Diolife to send written notice to Perera when it was ready to close:

Agreement to Purchase and Sell the Additional Interest. [Diolife] hereby irrevocably covenants and agrees to purchase from [Perera], and [Perera] shall have the option (exercisable in [his] sole discretion) to transfer, sell and deliver to [Diolife], the Additional Interest in exchange for a total purchase price of Two Hundred Thousand Dollars ($ 200,000.00) payable in cash at the Second Closing .... [Diolife] shall send written notice to [Perera] when it is ready to close on the purchase of the Additional Interest (the "Closing Notice"), and such notice shall be sent no later than March 21, 2016 ....

The MIPA specifically provided that it could not be amended orally or through the parties' actions:

Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the Seller and the Buyer, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Agreement or any provision hereof.

The parties jointly filed a detailed statement of stipulated facts before trial. They agreed that Diolife did not send the written notice by the March 21, 2016 deadline. Instead, on that day, Diolife's counsel sent Perera's counsel an email stating he understood their clients had "discussed an extension regarding the purchase of an additional 5% membership interest in" Cowboys Saloon Holdings. He suggested "moving the notice and closing date" and attached a draft amended agreement incorporating the proposed new dates.

Two days later, Diolife's counsel again emailed Perera's counsel, stating, "Thanks again for our call yesterday. Can you please provide the discussed offer in writing so my client can have something concrete to review?" Perera's counsel responded, "2.5% for $ 200,000. Must close by April 15. All other terms of the purchase option remain the same. This is a non-binding offer that only becomes effective upon execution of definitive documents." These terms formed the purported oral modification of the MIPA: Perera's sale of a 2.5% interest for $ 200,000, with an April 15, 2016 closing date.

Six days later, Perera sent a text message to Diolife's members stating that Cowboys Saloon Holdings was "raising cash from other big funds and ha[d] commitments for higher valuations." The purported commitments at higher valuations was the reason Perera was "pushing" Diolife's members to go through with the purchase before the closing deadline. "Once the deadline passed," however, Perera had to convince other investors to allow Diolife to pay $ 200,000 but receive only a 2.5% interest because the company's value was increasing. Perera also stated in the text message: "If you guys are not interested[,] I am OK with it but I am doing my best. Let me know your thoughts."

On April 5, 2016, Diolife's counsel again emailed Perera's counsel, stating he "believe[d] [their] clients have agreed on these terms. Please confirm same ...." On April 11, 2016, Perera's counsel emailed Diolife's counsel and attached a "First Amendment to Membership Interest Purchase Agreement." Perera signed the attachment, and it reflected the sale of a 2.5% interest for $ 200,000.

One day later, Diolife's counsel emailed Perera's counsel stating, "Our client has informed us that they do not intend to move forward with the transaction. Thanks."

Seven days after Diolife notified Perera that it would not move forward, Perera sent a demand letter to Diolife and stated in his cover letter that it was his "final attempt to resolve this issue in an attempt to preserve a working business relationship."

ii. The Lawsuit

Nine days after it notified Perera that it would not be completing its purchase of the additional interest in Cowboys Saloon Holdings, and only two days after Perera sent his demand letter, Diolife brought an action for declaratory judgment to determine whether Perera had a right to claim a breach of the MIPA. Perera filed a counterclaim alleging a breach of contract and seeking specific performance of the contract.

During the lawsuit, Perera remained willing to perform and signed an affidavit stating, "I remain ready, willing and able to convey the 5% Additional Interest to" Diolife. But the circuit court stated in the final judgment that Cowboys Saloon Holdings was formally dissolved and "run into the ground."

The court first entered summary judgment against Perera on his claim for specific performance. Next, after a non-jury trial, the court found for Diolife on its claim for declaratory judgment and on Perera's counterclaim for breach of contract. Perera appeals the court's judgment.

Analysis

Perera raises three issues on appeal, arguing the court erred by concluding that: (i) the parties entered into an oral modification of the MIPA, (ii) Perera did not suffer any damages even if Diolife breached the MIPA, and (iii) Diolife did not anticipatorily repudiate the MIPA.

We agree with Perera's first two points on appeal and reverse. Because we reverse the judgment, we find it unnecessary to address the third issue on appeal.

i. Diolife Breached the MIPA

The MIPA required Diolife to purchase another 5% membership interest in Cowboys Saloon Holdings for $ 200,000 and to close by March 31, 2016. It is undisputed the additional purchase did not happen by the deadline. As a result, Diolife breached the original contract. But Diolife argued, and the circuit court agreed, that the parties orally modified the MIPA before any breach occurred.

We first address whether the parties orally modified the MIPA.

When a contract does not address modification, oral modification of the contract is generally permissible. Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc. , 145 So.3d 989, 992 (Fla. 4th DCA 2014) (citations omitted). But "[c]ontracting parties are at liberty to address any issue they see fit, including the question of whether their agreement may be modified at all, and, if so, how." Id. at 993 (citation omitted).

Here, the MIPA contained a provision barring amendment other than through a writing signed by all parties. When a contract contains such a provision, any alleged oral modification is generally disposed of as a matter of law, and the court should enforce the contract as written. Id. But this rule has an exception dating to a 1956 opinion from our supreme court. In Professional Insurance Corp. v. Cahill , 90 So.2d 916 (Fla. 1956), the court explained that even when the contract contains a provision precluding oral modification,

[a] written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.

Id. at 918 (citation omitted). In Okeechobee Resorts , we examined the "judicial choirs' lack of perfect harmony" in applying Cahill and the various holdings from the courts. 145 So.3d at 995. But we concluded that despite the various applications of Cahill , Cahill remains binding precedent. Id. We explained that this requires the plaintiff to prove:

(a) that the parties agreed upon and accepted the oral modification (i.e., mutual assent); and (b) that both parties (or at least the party seeking to enforce the amendment) performed consistent with the terms of the alleged oral modification (not merely consistent with their obligations under the original contract); and (c) that due to plaintiff's performance under the contract as amended the defendant received and accepted a benefit that it otherwise was not entitled to under the original contract (i.e., independent consideration).

Id. (emphases removed).

Applying that test to this case, we conclude that the parties did not modify the MIPA. Diolife argued the parties orally modified the closing deadline and, as a result, it did not breach the contract. And the circuit court agreed, finding the parties agreed-by oral conversations, text messages, and emails-to extend the closing deadline.

But because the MIPA contains a provision precluding oral modification, to establish an oral modification, Diolife needed to establish that the parties acted on the modification and that it would "work a fraud" on Diolife to refuse performance. See Cahill , 90 So.2d at 918. Diolife failed to meet this burden.

At best, Diolife presented evidence that on the day of the deadline, its counsel sent an email about a potential revision to the MIPA. Days later, after other emails, Perera's counsel emailed Diolife's counsel: "... All other terms of the purchase option remain the same. This is a non-binding offer that only becomes effective upon execution of definitive documents." Other messages from Perera included requiring Diolife to pay the same $ 200,000 for only 2.5% of stock instead of the 5% set forth in the MIPA.

But the parties did not act on the communication about potentially amending the MIPA. Most significantly, Diolife never acted on the MIPA or the alleged oral modification because Diolife never sent Perera the required funds. Thus, the Cahill requirement that the oral modification must have been "accepted and acted upon by the parties" was not satisfied. See 90 So.2d at 918.

As a result, the parties did not amend the MIPA, and Diolife breached the agreement on March 31, 2016, when it failed to close on the purchase of the additional interest in Cowboys Saloon Holdings.

ii. Perera Sustained Damages

The circuit court found that Perera sustained no damages, a conclusion that would require judgment in Diolife's favor even if Diolife breached the contract. The circuit court determined that because the value of a 5% interest in Cowboys Saloon Holdings exceeded $ 200,000 on the day of the breach, Perera did not sustain a loss. We disagree.

In arriving at its conclusion, the court reasoned: 1) "the value of a 5% membership interest in Cowboys Saloon was higher than the contract value in the MIPA of $ 200,000.00, otherwise Mr. Perera would not have been trying to get $ 200,000.00 for a 2.5% interest"; and 2) there were text messages between the parties and "the agreement that Mr. Perera later entered into, which the Court understands did not go forward ...." The court considered the subsequent agreement but refused to consider that the subsequent agreement did not go forward or that Cowboys Saloon Holdings was dissolved. The court stated that it would not consider that "point later in time." But Perera's attempts to obtain better terms in exchange for excusing Diolife's breach is not evidence of the market value of the 5% interest in Cowboys Saloon Holdings. Furthermore, the court relied on text messages that Perera sent after Diolife's deadline to send notice that it was prepared to complete the purchase. Finally, the "agreement later entered into" occurred after the breach. In any event, the court effectively used the out-of-pocket measure of damages to conclude Perera sustained no damages.

But, in a breach of contract action, "[a] non-breaching party is entitled to recover the benefit of its bargain under a contract." Nat'l Educ. Ctrs., Inc. v. Kirkland , 635 So.2d 33, 34 (Fla. 4th DCA 1993). "[T]he goal of damages is to place the injured party in the same position in which it would have been had the breach not occurred." Tucker v. John Galt Ins. Agency Corp. , 743 So.2d 108, 111 (Fla. 4th DCA 1999).

Perera was entitled to the benefit of his bargain. He did not have to search for a potential second investor during the short time between Diolife's correspondence announcing it "did not intend to move forward with the transaction" and the date Diolife filed the lawsuit. In total, only nine days elapsed between Diolife's correspondence withdrawing from the MIPA and the date it filed the lawsuit. Even while the lawsuit was pending, Perera testified by affidavit that he remained "ready, willing, and able" to conclude the transaction as written in the MIPA.

On the date of the breach, March 31, 2016, Perera had a right to receive $ 200,000 and, instead, he received nothing. See Shearson Loeb Rhoades, Inc. v. Medlin , 468 So.2d 272, 273 (Fla. 4th DCA 1985) (stating that damages generally "should be measured as of the date of the breach" (quoting Grossman Holdings Ltd. v. Hourihan , 414 So.2d 1037, 1040 (Fla. 1982) )). His text message bragging about the increased value of the company does not change the fact that he did not receive the benefit of the bargain-$ 200,000.

Yet Diolife passionately argues in its motion that "the benefit of the bargain measure of damages absolutely requires a plaintiff to prove the actual value of the property at the time of the breach." In support of this assertion, Diolife relies on Kind v. Gittman , 889 So.2d 87, 90 (Fla. 4th DCA 2004). In Kind , we stated that "the 'benefit of the bargain' rule [ ] awards as damages the difference between the actual value of the property and its value had the alleged facts regarding it been true." Id. (quoting Martin v. Brown , 566 So.2d 890, 891-92 (Fla. 4th DCA 1990) ). But Kind involved a claim for fraudulent inducement, and this appeal does not.

Still, Diolife is correct that the difference between the contract price and the market value of the interest in the company is one potential measure of damages. See, e.g. , Estate of Callaway v. Garner , 297 Ga. 52, 772 S.E.2d 668, 670 ( 2015) ; Miga v. Jensen , 96 S.W.3d 207, 216 (Tex. 2002) ; Aroneck v. Atkin , 90 A.D.2d 966, 456 N.Y.S.2d 558, 559 (1982) ; Langlois v. Maloney , 95 N.H. 408, 64 A.2d 697, 702 (1949). Generally, these cases hold that damages for breach of a stock purchase agreement are measured by comparing the stock's contract price to its market value. See Aroneck , 456 N.Y.S.2d at 559.

That is one potential measure of damages. It is not the only one. Diolife incorrectly maintains it would be "unprecedented" to hold that the seller of an interest in a business can receive the contract price. Based on these facts and legal arguments, such a holding is not "unprecedented" or "blatantly wrong."

In fact, "where a buyer breaches his contract to purchase certain specific shares of stock," "[t]he general rule" allows the seller three options. Annotation, Measure of Damages for Buyer's Breach of Contract to Purchase Shares of Stock , 44 A.L.R. 358 (1926) (citing Mason v. Decker , 72 N.Y. 595, 599 (N.Y. 1878) ).

• First, "the seller may treat the stock as belonging to the buyer and recover the contract price ...." Id. ; see also 12A Fletcher Cyc. Corp. § 5630 (2018) ("If the seller of stock has delivered it, an action for the price agreed upon may be maintained.").
• Second, the seller may "resell the property as agent of the buyer and recover the difference between the contract price and the net amount received on the resale." Annotation, Measure of Damages for Buyer's Breach of Contract to Purchase Shares of Stock , 44 A.L.R. 358 (1926).
• Third, the seller "may keep the shares of stock and recover as his damages the difference between the contract price and the value of the stock at the time when the buyer should have accepted the same." Id.

The first available remedy allows a plaintiff to seek the contract price from the defendant, a remedy long ago accepted throughout this country. See, e.g. , Pittsburgh Hardware & Home Supply Co. v. Bown , 174 F. 981, 983 (3d Cir. 1909) ; Veatch v. Howard , 166 Colo. 549, 444 P.2d 865, 867 (1968) ; Davies v. Semloh Hotel, Inc. , 86 Utah 318, 44 P.2d 689, 691 (1935) ; Lam v. White , 204 Ky. 557, 264 S.W. 1113, 1115 (1924) ; Tucker v. Scott , 181 Cal. 734, 186 P. 150, 151 (1919).

Similarly, the Pennsylvania Supreme Court explained that the "law in this state as well as elsewhere is that, where the vendor has tendered a delivery of the specific property, for example, stock or bonds, required by the contract, he is entitled to the agreed price." Vilsack v. Wilson , 269 Pa. 77, 112 A. 17, 19 (1920) (citations omitted). And the New York Court of Appeals explained that when a buyer fails to tender the agreed purchase price for stock, "it is too well-settled to be longer disputed that the plaintiff could treat the stock as belonging to the defendant, and sue for and recover the price agreed to be paid for it." Mason , 72 N.Y. at 599 (citations omitted).

Like Diolife, a defendant recently argued to Connecticut's intermediate appellate court that "the only proper measure of damages is the difference between the purchase price of the stock and the value of the stock." Whitney v. J.M. Scott Assocs., Inc. , 164 Conn.App. 420, 137 A.3d 866, 871 (2016). The court rejected the defendant's argument and approved the trial court's imposition of damages in the amount due on the agreement. Id. at 871-72 (awarding damages equal to the total amount due on the agreement minus what the plaintiff had received).

Thus, the remedy awarded to Perera in this case is not "unprecedented." In fact, it appears the First District allowed the same remedy in Black v. Frank , 176 So.2d 113, 114-15 (Fla. 1st DCA 1965). There, the seller of stock in a restaurant filed a breach of contract lawsuit against the buyer. Id. at 114. The trial court awarded damages to the seller "pursuant to the original agreement to purchase the assets." Id. at 115. On appeal, the buyer argued the trial court erred in awarding damages, as the proper remedy was to return the stock to the seller. Id. The First District disagreed and held that the seller could obtain damages in accordance with the obligations of the contract. Id.

And the Third District allowed the same remedy when a buyer refused to pay for stock she requested a broker acquire. Mass v. Gordon , 101 So.2d 836, 837-38 (Fla. 3d DCA 1958). The court explained that "the broker has an election of remedies." Id. at 837. The broker could "treat the stock as the property of the customer, and sue for the full purchase price upon a tender of the stock; or, he may sell the stock promptly or within a reasonable time, and recover the difference between the purchase price and the amount received on such sale." Id.

The Florida Supreme Court has also recognized that a closely held corporation may be treated differently when dealing with the breach of a contract to purchase stock. The court held that "[t]he rule enunciated by this Court ... appears to be in accord with the weight of American authority in holding that contracts for the sale of stocks that have no recognized market value, or which are not readily procurable except from the defendant will be specifically enforced." McCutcheon v. Nat'l Acceptance Corp. , 143 Fla. 663, 197 So. 475, 478 (1940) (citation omitted); see also Jackson Land Co. , 153 So.2d at 828 ; Baruch v. W. B. Haggerty, Inc. , 137 Fla. 799, 188 So. 797, 799 (1939) ; Chace v. Johnson , 98 Fla. 118, 123 So. 519, 521 (1929).

Similarly, we have explained that

[i]n Baruch ... the [Florida Supreme Court] held that where the corporation was a closed one, and where none of the stock had ever been put on the market and had no readily ascertainable market value and where the stock had no fixed value and no par value, the buyer would be entitled to invoke the aid of equity to enforce a contract for sale of stock. Further, the court found the doctrine of mutuality of remedy would entitle the seller to specific performance[.]

Camp v. Parks , 314 So.2d 611, 613-14 (Fla. 4th DCA 1975). The fact that Cowboys Saloon Holdings was an entity without stock on a public market is a factor to be considered.

Perera was entitled "to pursue any remedy which the law affords." Black , 176 So.2d at 115. In Black , the First District held the seller of stock had a right to pursue the remaining contract amount from the buyer. Id. So too does Perera. While the generally accepted remedy may be (and should be) the difference between the agreed purchase price and the market value of the stock, that is not a viable remedy in this case. On these unique facts and based on the issues raised, Perera is entitled to the $ 200,000 stated on the face of the MIPA.

Conclusion

Diolife breached the MIPA when it did not close on the purchase of the additional 5% interest, and there was no valid oral modification. As a result, Perera sustained damages in the amount of $ 200,000. We therefore reverse the court's judgment and remand for entry of judgment consistent with this opinion.

Reversed and remanded.

Gerber, C.J., and Taylor J., concur.

      Perera requests that we sanction Diolife's counsel for "numerous improper statements criticizing this Court" and for filing an improper motion for rehearing. We decline to issue sanctions but, as the Fifth District has done, we stress that "[m]otions for rehearing are not to be used for the purpose of venting counsel's frustrations with the form or substance of the court's decision." Marion v. Orlando Pain & Med. Rehab. , 67 So.3d 264, 265 (Fla. 5th DCA 2011) (citation omitted).

      Diolife argues that there were two oral amendments to the MIPA. First, Diolife argues the parties extended the deadline to close on the purchase of the additional stock. Second, Diolife argues the parties modified the stock purchase agreement. But Diolife made no payment to Perera for the additional interest; it did not pay Perera by the original deadline or the allegedly extended deadline. And when the allegedly extended deadline came, Diolife failed to make payment pursuant to the original terms or the allegedly amended terms. Modified or not, Diolife was in breach.

      Stock is delivered when an agreement to purchase is signed and the seller has no further obligations. Jackson Land Co. v. Harbeson , 153 So.2d 826, 828 (Fla. 1963) ("There was no failure on the part of the Harbesons to deliver the stock. That was accomplished when the contract was signed."); see also Radiation Dynamics, Inc. v. Goldmuntz , 464 F.2d 876, 891 (2d Cir. 1972) ; Mason , 72 N.Y. at 598.

      Perera did not appeal the court's judgment on his claim for specific performance, perhaps because performance is now impossible, though it was possible when Diolife filed the lawsuit.


author: Conner, J.

text:
    ORTHOPEDIC CENTER OF SOUTH FLORIDA, Petitioner, v. Michael SODE, Respondent.
    No. 4D18-3478
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Richard A. Jarolem of Traub Lieberman Straus & Shrewsberry, LLP, Palm Beach Gardens, for petitioner.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Thomas H. Leeder of Leeder Law, Plantation, for respondent.
   Conner, J.

In this case, we address a matter of first impression: the extent to which the financial discovery limitations applicable to an expert apply to the business entity with which the expert is affiliated. Orthopedic Center of South Florida ("Petitioner"), a non-party in the action below, petitions for a writ of certiorari, seeking to quash a discovery order overruling its objections to a proposed subpoena duces tecum. The proposed subpoena was served on Petitioner by Michael Sode ("Respondent"). Petitioner contends the order compelling it to produce certain documents for "reference purposes only" at deposition is beyond the scope of permissible discovery under Florida Rule of Civil Procedure 1.280(b)(5) and Elkins v. Syken , 672 So. 2d 517 (Fla. 1996). We grant the petitition because we conclude that: (1) the protections from invasive discovery afforded to individual experts apply equally to the business entity with which the expert is affiliated; (2) Respondent used an improper discovery methodology; and (3) the order grants impermissible discovery.

Background

In the action below, Respondent filed a complaint against the defendant for alleged injuries he suffered in a bicycle accident. Respondent served a proposed subpoena duces tecum on Petitioner, the business entity under which the doctor who performed the compulsory medical exam runs his practice.

Petitioner objected to the discovery requests and moved for a protective order. At the hearing, Petitioner conceded that Respondent was entitled to some discovery pursuant to Allstate Insurance Co. v. Boecher , 733 So. 2d 993 (Fla. 1999). However, Petitioner contended that most of what Respondent sought was not proper discovery from the examining doctor, who was an expert under rule 1.280(b)(5)(A)(iii). Petitioner argued, therefore, that Respondent could not circumvent the rule by requesting the otherwise impermissible discovery from the non-party corporate entity affiliated with the examining doctor.

Respondent argued that the limits of Elkins and rule 1.280(b)(5) do not apply to Petitioner because it is a corporation, and it is not afforded the protections of an expert. Respondent argued that the defense expert, along with several other doctors, are officers, directors, and partners of Petitioner. Respondent asserted that five out of nine of the doctors, who are owners of Petitioner, perform compulsory medical examinations for the defense. Respondents contended that the partners share in the revenue and profits, and that could point to financial bias and incentive for the defense expert to accept a certain type of case. Respondent also pointed out that it learned through a deposition that the defense firm had hired Petitioner 120 times in three years, showing that Petitioner had made hundreds of thousands of dollars from this type of work.

The trial court sustained some objections and overruled others. The trial court did not address Petitioner's objections that the discovery exceeded rule 1.280(b)(5), or that such discovery requests were burdensome and invasive on a non-party. The trial court did not make findings of "unusual or compelling circumstances," but it compelled the discovery. See Fla. R. Civ. P. 1.280(b)(5)(A). The trial court ordered that Petitioner's representative must bring to the deposition "for reference purposes only" documents responsive to Respondent's requests 1, 2, 6, 8-12, and 15. These paragraphs requested documents pertaining to the following:

1. Voire Dire of the Designated Witness(es): Does the witness maintain a curriculum vitae or resume? Please provide a brief description of your biographical background, including your employment history and educational history. Please describe your relationship with the Practice[ ] and the provenance of your designation as its witness for the relevant subject matters. Please describe all steps you have taken to prepare for your testimony on those subjects matters for which you have been designated, including, where appropriate, persons interviewed and documents reviewed. Have you prepared any notes, written summaries, or document collections to assist you in making your testimony accurate and complete? Have you brought those with you today? During your testimony, will you refer to any such notes, written summaries, or document collections when necessary to ensure your testimony is accurate and complete?
2. Overview and Ownership. Describe the medical Practice's business model and primary business activities. Does the medical Practice have any signed contracts with the Defendant, Defendant's Insurance Company, or Defendant's Law Firm[?] Provide the names and identities of all persons or entities who hold or have held a direct or indirect ownership interest in your Practice. Describe how the owners share and divide in the Practice[']s profits, revenues, and expenses. Does the medical Practice track the amount of business generated by each doctor within the Practice? If yes, how so? Does the doctor that brings in or obtains the patient or medical exam receive a larger share of the revenue generated by that examination? Do the other doctors within the Practice also share in the revenue generated by the doctor that brought in the patient or exam to a lesser degree?
....
6. Revenues. The percentage of your revenue that is generated from providing medical services in the last three full years. Please be prepared to specific [sic] the percentage of revenue derived from (1) Defense Compulsory Medical Exams (DCME); (2) PIP Independent Medical Exams (PIP IME); (3) Worker's Compensation Claims; (4) Fees for Depositions on behalf of Defendants; (5) Trial Testimony on behalf of Defendants; (6) Letters of Protection; (7) Health Insurance; (8) PIP; (9) Consulting Work. Please be prepared to provide the revenue percentage or split for your treatment of patients that actually choose your Practice versus patients that were referred to your Practice for treatment or medical evaluations by employers, insurance companies, defense law firms or their servicing agents.
....
8. Letters of Protection (LOP). Has your Practice accepted LOPs? Under what circumstances does or has your Practice accept[ed] LOPs? How many LOPs have you accepted in each year? Does accepting an LOP in anyway change your doctor's care and treatment of a patient? Whether the Practice has ever accepted less than full face value of a medical bill generated under LOP, and if so, the average percentage discount you have accepted.
9. DCMEs. Does your Practice perform DCME? Identify each doctor within your Practice that performs DCME. Who makes the decision in choosing your doctors to perform the DCME? Who are you hired by to perform the DCME? Provide the total number of DCMEs performed by all the doctors in your Practice. Please be able to further specify how many DCMEs were performed by each doctor within your Practice for each year. Please identify each insurance company that [has] paid you for performing these DCMEs for each year and the number of times per year. Please identify each defense law firm that you [sic] enlisted your services in performing DCME for each year and the number of times per year.
10. PIP IMEs. Does your Practice perform PIP IMEs? Identify each doctor within your Practice that performs PIP IMEs. Who chooses your doctors to perform the PIP IMEs? Who are you hired by to perform the PIP IMEs?
Does the injured party choose your doctor? Provide the total number of PIP IMEs performed by all the doctors in your Practice for each year. Please be able to further specify how many PIP IMEs were performed by each doctor within your Practice for each year. Please identify each insurance company that [has] paid you for performing these PIP IMEs for each year and the number of times per year. Please identify each defense law firm that you [sic] enlisted your services in performing PIP IMEs for each year and the number of times per year.
11. Worker's Compensation. Does your Practice accept worker's compensation cases? How does your practice obtain worker's compensation cases? Identify the doctors in your Practice that provide worker's compensation medical care and treatment to injured employee/patient. Does the injured employee/patient get to choose your Practice or doctors as their initial choice doctor? Does the employer, worker's compensation insurance company, or servicing agent get to choose your Practice as the injured employee's initial choice of doctor? How many injured employees/patients worker's compensation cases does your Practice obtain each year as the initial treating physician? Does your Practice perform IMEs for employers, worker's compensation insurance companies, or their servicing agents? If so, how many IMEs does your Practice perform each year for the employer, worker's compensation insurance carrier, and servicing agent? Specify how many IMEs each doctor performs per year for the employer, worker's compensation insurance carrier, and servicing agent. Does you[r] Practice perform IMEs for injured Employees/Claimants? If so, how many IMEs does your Practice perform each year for injured Employees/Claimants?
12. Consulting. Provide the total number of times you have performed consulting work on behalf of any defendants, insurance companies, and defense law firms. Please be able to further specify how many were performed by each doctor in the Practice for each year.
....
15. Marketing and Advertising. Does your Practice market or advertise its services? If so, what services does it market or advertise? How does your Practice market or advertise? Does it use any online services or websites? If so, identify each online service or website that the Practice uses? What specific services does the Practice market or advertise using the online services or websites?

Certiorari Analysis

Certiorari review is discretionary. Grabel v. Sterrett , 163 So. 3d 704, 706 (Fla. 4th DCA 2015). Before relief may be granted, the petition must establish a departure from the essential requirements of law, resulting in material injury that cannot be corrected on post-judgment appeal. Id. "Certiorari jurisdiction does not lie to review every erroneous discovery order." Katzman v. Rediron Fabrication, Inc. , 76 So. 3d 1060, 1062 (Fla. 4th DCA 2011) (citing Allstate Ins. Co. v. Langston , 655 So. 2d 91, 94 (Fla. 1995) ). As such, appellate courts generally do "not review orders denying a party's over-breadth or burdensome[ ] objections to discovery." Id. However, disclosure of otherwise private financial information can result in irreparable harm if a petitioner affirmatively establishes the discovery is irrelevant to any issue in the litigation. Id.

Respondents contend that because the discovery order is not the subject of a "clearly established principle," certiorari relief is not available, and Petitioner will have to wait for a resolution when and if a plenary appeal is brought. However, "Petitioner is a non-party, [and] to the extent the order compels production of cat-out-of-the-bag information, certiorari jurisdiction lies." Grabel , 163 So. 3d at 706.

We grant certiorari relief because we conclude that the protections from invasive discovery afforded to individual experts apply equally to the business entity with which the expert is affiliated. That being the case, we determine that certiorari relief should be granted for two additional reasons: (1) Respondent used an inappropriate methodology for discovery; and (2) the proposed subpoena duces tecum seeks unauthorized information. We explain our reasoning.

Protections Afforded to Individual Experts Apply to Business Entities

In Elkins , our supreme court recognized the necessity of striking a balance between a party's need for information to demonstrate a medical expert's potential bias, with the expert's right to be free from burdensome and intrusive discovery requests. 672 So. 2d at 522. In striking that balance, the supreme court adopted rule 1.280(b)(5), which limits discovery from experts who are obviously hired by one party. See Worley v. Cent. Fla. Young Men's Christian Ass'n , 228 So. 3d 18, 22-23 (Fla. 2017) (discussing reasons for adopting rule 1.280(b)(5)(A)(iii) ). The limitations were deemed necessary to prevent overly intrusive and harassing financial discovery which "serves only to emphasize in unnecessary detail that which would be apparent to the jury on the simplest cross-examination: that certain doctors are consistently chosen by a particular side in personal injury cases to testify on its respective behalf." Elkins , 672 So. 2d at 521 (approving and quoting Syken v. Elkins , 644 So. 2d 539, 545 (Fla. 3d DCA 1994) ). The Elkins court further explained:

Discovery was never intended to be used as a tactical tool to harass an adversary in a manner that actually chills the availability of information by non-party witnesses; nor was it intended to make the discovery process so expensive that it could effectively deny access to information and witnesses or force parties to resolve their disputes unjustly. To allow discovery that is overly burdensome and that harasses, embarrasses, and annoys one's adversary would lead to a lack of public confidence in the credibility of the civil court process. The right to a jury trial in the constitution means nothing if the public has no faith in the process and if the cost and expense are so great that access is basically denied to all but the few who can afford it. In essence, an overly burdensome, expensive discovery process will cause many qualified experts, including those who testify only on an occasional basis, to refrain from participating in the process, particularly if they have the perception that the process could invade their personal privacy.

Id. at 522.

Rule 1.280(b)(5) specifically provides:

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
....
(A)(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness ; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate.

Id. (emphases added).

We conclude that the protections afforded to an expert under rule 1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner, the non-party corporate entity with which the expert is affiliated. To hold otherwise would render Elkins and Rule 1.280 meaningless and create the same "chilling effect" from which Elkins sought to protect experts.

Improper Methodology

We begin with the observation that the notice of proposed subpoena duces tecum under review is unusual in its methodology. Specifically, it more accurately appears to be a document asking questions or requesting descriptions , rather than listing types of documents sought. According to the petition, Respondent served Petitioner with a proposed subpoena duces tecum in conjunction with the oral deposition of a corporate representative on a date to be determined in the future. We further note that the order granting discovery directs that Petitioner's representative must bring to the deposition, "for reference purposes only," documents responsive to Respondent's requests. Thus, we assume the trial court construed the proposed subpoena duces tecum to be a discovery vehicle in which Respondent put Petitioner on notice of the questions Respondent would be asking during deposition, with the expectation that the deponent would bring documents to the deposition that would verify the answers to the questions.

The use of a proposed subpoena duces tecum for the production of documents for use at deposition is authorized under Florida Rule of Civil Procedure 1.310(b)(1). Fla. R. Civ. P. 1.310(b)(1) ("If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena must be attached to or included in the notice [of taking deposition]."). We note that Florida Rule of Civil Procedure 1.351 addresses production of documents without deposition from non-parties. See Fla. R. Civ. P. 1.351(a). The procedure under rule 1.351 provides that advance notice of the request for production is accomplished by attaching to the notice a copy of the subpoena proposed to be served which, among other things, "shall include a designation of the items to be produced[.]" Fla. R. Civ. P. 1.351(b). We do not agree that the language of the rules requiring "the designation of the materials to be produced under the subpoena," Fla. R. Civ. P. 1.310(b)(1), or "a designation of the items to be produced" without deposition, Fla. R. Civ. P. 1.351(b), allows for a subpoena that asks questions or requests descriptions, rather than list the types of documents sought. Respondent has cited no caselaw for such an interpretation. Such an interpretation is fraught with problems, not the least of which would be the onslaught of motions addressing objections or compliance issues, revolving around interpreting the actual information sought by propounding a question.

Subpoena Duces Tecum Seeks Unauthorized Information

As stated above, the protections afforded to an expert under rule 1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner. Accordingly, to the same extent such information could be obtained from an expert, we conclude it is proper to seek the production of documents from a business entity non-party with whom an expert is affiliated that could establish bias on the part of the expert. Therefore, except as to paragraphs 1 and 15 of the proposed subpoena, we conclude that the trial court went well beyond the limits of rule 1.280(b)(5) and Elkins. The contested order permits excessive discovery, with no finding of unusual or compelling circumstances. For example, the request under paragraph 2 ("Overview and Ownership") quoted above, seeks the following information:

Provide the names and identities of all persons or entities who hold or have held a direct or indirect ownership interest in your Practice. Describe how the owners share and divide in the Practice[']s profits, revenues, and expenses. Does the medical Practice track the amount of business generated by each doctor within the Practice? If yes, how so? Does the doctor that brings in or obtains the patient or medical exam receive a larger share of the revenue generated by that examination? Do the other doctors within the Practice also share in the revenue generated by the doctor that brought in the patient or exam to a lesser degree?

Such a request is not authorized under rule 1.280(b)(5)(A)(iii) or Elkins . We reject Respondent's argument that proof that the defense law firm hired Petitioner, a business entity with nine doctors, for 120 cases in three years supports an "unusual or compelling circumstance" for the requested information.

Finally, to the extent this case presents a novel issue, we note Judge May's specially concurring opinion in Coopersmith v. Perrine , 91 So. 3d 246 (Fla. 4th DCA 2012) :

In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore financial interests of medical witnesses and the volume of referrals to those witnesses. See Elkins v. Syken , 672 So. 2d 517 (Fla. 1996). And now, attempts to expand the scope of that discovery to treating physicians as well as retained experts are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over-strained justice system, it further taints the public's view of our profession.

Id. at 248 (May, C.J., specially concurring). We caution trial counsel from employing, and trial courts from approving, novel discovery methods which exceed the limits of authorized discovery.

Petition granted.

Damoorgian and Levine, JJ., concur.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Derek Lang SHINE Jr., Appellee.
    No. 3D15-2876 Consolidated: 3D15-2877
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas and Jonathan Tanoos, Assistant Attorneys General, for appellant.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Jeffrey Paul DeSousa, Assistant Public Defenders, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ JJ.
    ON MOTION FOR REHEARING
   SUAREZ, J.

The State of Florida moves for rehearing of this Court's August 23, 2017 opinion. We grant rehearing, withdraw our prior opinion and substitute the following opinion in its stead.

The State of Florida appeals the downward departure sentence imposed upon Defendant Derek Lang Shine on December 22, 2015 in connection with a probation violation. Finding that the trial court failed to provide a valid legal ground for its downward departure, we reverse.

In 2015, Shine was convicted and sentenced to three years of drug offender probation, pursuant to a plea agreement with the State. Later in 2015, Shine violated his probation and the trial court revoked probation and sentenced him to forty (40) months of prison followed by forty (40) months of probation for count one and a concurrent term of forty (40) months prison, followed by a concurrent term of twelve (12) months of probation for count two. The sentence imposed was a downward departure sentence to which the State objected.

The trial court's written sentencing order states that the downward departure was based on the fact that "Defendant has been granted a previous downward departure based on a valid uncoerced plea agreement ... [and] it would be inappropriate, too harsh and contrary to the principles of graduated sanctions to now sentence the Defendant to 73.65 months imprisonment which is the lowest permissible prison sentence, absent a downward departure."

We conclude that the trial court's reasoning does not amount to a valid legal basis for the downward departure sentence imposed. See § 921.0026 Fla. Stat. (2014) ; State v. Pita, 54 So.3d 557 (Fla. 3d DCA 2011) ; State v. Kasten, 775 So.2d 992 (Fla. 3d DCA 2000) ; State v. Nolasco, 542 So.2d 1052 (Fla. 3d DCA 1989). Consequently, we reverse and remand for resentencing within the sentencing guidelines.

Reversed and remanded.

      The State filed two separate appeals in connection with Defendant's sentences which were imposed simultaneously and which were intended to run concurrently. In case number 15-2876 the State appeals the sentence imposed in connection with lower tribunal case number 2014-CF-890 (i. sale of cocaine within 1000 feet of a convenience business on September 4, 2014 and ii. unlawful use of a two-way communications device). In case number 15-2877 the State appeals the sentences imposed in connection with lower tribunal number 2014-CF-891 (i. sale of cocaine within 1000 feet of a convenience business on September 3, 2014 and ii. unlawful use of a two-way communications device). We hereby consolidate Third District case numbers 15-2876 and 15-2877 under case number 15-2876. We note that because both sentences were imposed at the same time and were intended to be served concurrently, there was no necessity for the filing of two separate cases and we encourage the State to appeal simultaneous sentences as a single case in the future.


author: LAMBERT, J.

text:
    Warren K. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3811
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019 Rehearing Denied July 1, 2019
    Warren K. Mitchell, Lake City, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.
   LAMBERT, J.

Warren K. Mitchell petitions this court for habeas corpus relief to correct a "manifest injustice" that he asserts has resulted in his "continued unlawful detention." We deny the petition.

Mitchell was charged by information with robbery while carrying a firearm or deadly weapon, a first-degree felony punishable by up to life in prison, and a second count of possession of a firearm by a convicted felon. The parties agreed to a severance of this latter count, and the case proceeded to trial on the charge of robbery with a firearm or deadly weapon. The State presented evidence at trial that Mitchell robbed the manager of a Metro PCS store in Orlando, Florida, of approximately $ 200. According to Mitchell's petition, the manager testified at trial that he and Mitchell were the only individuals in the store when Mitchell walked around a store counter, lifted his shirt, and placed his hand on what appeared to be a silver, automatic-type handgun tucked in his waistband. The manager had seen this type of weapon only once or twice before and only saw the handle and trigger areas as Mitchell's hand remained on the weapon. Mitchell demanded money from the manager, who complied by opening the cash register and giving him $ 200. Mitchell then escorted the manager to a back room of the store and ordered that he remain there for ten minutes. After Mitchell fled from the store, the manager called the police and later picked Mitchell out from a photographic lineup.

During closing arguments, Mitchell's counsel argued to the jury that it had to consider whether the State proved beyond a reasonable doubt that his client used a firearm during the alleged commission of the robbery. Counsel asserted that based on the trial evidence, "we don't know if it's a real gun or not" or "if it was a gun." He acknowledged that the manager went through a stressful situation and that, although the manager "may have thought" it was a gun, "that's not evidence beyond a reasonable doubt that that was a real gun, we don't know."

The trial court instructed the jury on the precise definition of what constitutes a "firearm." It immediately thereafter provided the separate definition of a deadly weapon, explaining that a weapon is deadly if it is used or threatened to be used in a way likely to produce death or great bodily harm. Following the conclusion of all jury instructions, the jury was provided with a verdict form that gave it the options of finding Mitchell guilty of robbery with a firearm or deadly weapon, as charged in the information; guilty of the lesser included offense of robbery with a weapon; guilty of the lesser offense of robbery; or not guilty.

The jury found Mitchell guilty, as charged, of robbery with a firearm or deadly weapon. The jury also returned a separate verdict finding that Mitchell did not carry, display, use, or possess a firearm in the commission of this offense. Based on this factual finding, the trial court, post-verdict, adjudicated Mitchell guilty solely of robbery with a deadly weapon and sentenced him to serve thirty years in prison. On direct appeal, this court affirmed Mitchell's judgment and sentence without opinion. Mitchell v. State , 65 So.3d 1064 (Fla. 5th DCA 2011).

Mitchell argues in his present petition that the verdict finding him guilty of robbery with a firearm or deadly weapon is inconsistent with the jury's separate, special verdict that he did not carry, display, use, or possess a firearm during the commission of the robbery. Mitchell essentially reasons from these allegedly conflicting verdicts that he could only be guilty of unarmed robbery, a second-degree felony, and asks that we direct the trial court to vacate his current judgment and sentence, enter a new judgment of simple robbery, and resentence him accordingly. Our task here is to decide whether these verdicts are truly inconsistent such that Mitchell is entitled to his requested relief.

"An inconsistent verdicts claim presents a pure question of law and is reviewed de novo." Zelaya v. State , 257 So.3d 493, 496 (Fla. 4th DCA 2018) (quoting Brown v. State , 959 So.2d 218, 220 (Fla. 2007) ). Mitchell acknowledges that, as a general rule, inconsistent verdicts are permitted in Florida because they may be the result of lenity or the jury's exercise of its "inherent authority to acquit," even when the facts support a conviction. See Brown v. State , 966 So.2d 989, 990 (Fla. 5th DCA 2007). Instead, Mitchell argues that the one recognized exception to this general rule-the "true inconsistent verdict"-applies to his case, entitling him to relief. This exception results when "an acquittal on one count negates a necessary element for conviction on another count." State v. Powell , 674 So.2d 731, 733 (Fla. 1996) (quoting Gonzalez v. State , 440 So.2d 514, 515 (Fla. 4th DCA 1983) ). Under such circumstances, the charges are legally interlocked and thus are "truly inconsistent." Id. This exception to the court otherwise permitting inconsistent verdicts is warranted because the possibility of a wrongful conviction outweighs the rationale for allowing the inconsistent verdicts to stand. Id.

Contrary to Mitchell's argument, we find nothing inconsistent about the jury's verdicts. The case of State v. McGhee , 174 So.3d 470 (Fla. 1st DCA 2015), is particularly instructive on this issue. There, the defendant was charged with committing an aggravated assault arising from an altercation in which he allegedly threatened the victim with an old, black gun. Id. at 471. Aggravated assault is defined as an assault with a deadly weapon without an intent to kill. See § 784.021(1)(a), Fla. Stat. (2014). During closing argument, defense counsel openly questioned the victim's testimony about seeing a firearm as opposed to some other object as well as the victim's physical capacity to have identified a firearm. McGhee , 174 So.3d at 472. The State responded in its closing argument that based on both common sense and the victim's testimony, the defendant was using a firearm to threaten the victim, "but no matter what it was, he was certainly using it in a way to threaten to make it look like a real firearm." Id.

The jury found the defendant guilty of aggravated assault, but in a separate special verdict, found that the defendant did not actually possess a firearm when committing the offense. Id. at 471. The trial court granted the defendant's posttrial motion for arrest of judgment, essentially agreeing with the defendant that the jury's special finding as to the lack of a firearm negated the verdict of aggravated assault because, with no deadly weapon, the two verdicts were truly inconsistent. Id. The court reduced the aggravated assault conviction to simple assault. Id.

The First District Court reversed and remanded with instructions to reinstate the jury's verdict. Id. at 472. It first observed that the case, as presented to the jury, involved a dispute as to the nature of the weapon involved. Id. The court noted that under the aggravated assault statute, a "deadly weapon" need not be a firearm; "it is simply an object used or threatened to be used in a way likely to produce death or great bodily harm." Id. (citing J.L. v. State , 60 So.3d 462, 464 (Fla. 1st DCA 2011) ). Accordingly, the court concluded that there was nothing inconsistent with the jury finding the defendant guilty of aggravated assault yet finding that the defendant was not in actual possession of a firearm because "[a]pparently, [the jury] determined that the firearm-looking weapon used by [the defendant] to commit the offense was not actually a firearm, a finding well within the scope of the parties' arguments about the disputed weapon." Id. ; accord Reeder v. State , 399 So.2d 445, 446 (Fla. 5th DCA 1981) (reasoning that "[t]he jury could have found that an assault occurred and that the pistol or object used constituted a deadly weapon but that the State failed to prove beyond a reasonable doubt that the pistol met the statutory definition of a 'firearm' ") (citations omitted).

Significantly, in the present case, Mitchell was, in fact, convicted of the charged offense of robbery with a firearm or a deadly weapon. Cf. Davis v. State , 235 So.3d 320, 321 (Fla. 2018) (holding that reductions for convictions of robbery with a deadly weapon to robbery with a weapon were warranted when the defendant was charged only with robbery with a firearm and not robbery with a deadly weapon and the jury found that the defendant was not in possession of a firearm during commission of the robbery). And, much like in McGhee , defense counsel here argued that the manager was mistaken in his belief that Mitchell actually possessed a gun. The evidence also supported that Mitchell was threatening the manager with a weapon in a fashion to make it look like he had a "real" firearm. Thus, just as the "firearm-looking weapon" was a deadly weapon to support the aggravated assault conviction in McGhee , so too was the "firearm-looking weapon" here threatened to be used in a way to produce death or great bodily harm, justifying the conviction for robbery with a deadly weapon.

Accordingly, we conclude that the verdict of robbery with a firearm or deadly weapon, as charged, and the verdict that Mitchell was not in actual possession of a firearm, were not truly inconsistent. Mitchell is not entitled to habeas corpus relief.

Finally, Mitchell has now raised this same issue in several earlier posttrial proceedings before the trial court and thereafter on subsequent appeals. We caution him that further repetitive filings regarding his conviction and sentence in Orange County Circuit Court Case No. 48-2009-CF-017527-0 may result in sanctions imposed against him, such as a bar on pro se filings in this court regarding this circuit court case and a referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999) ; § 944.279(1), Fla. Stat. (2018).

PETITION FOR WRIT OF HABEAS CORPUS DENIED.

ORFINGER and EDWARDS, JJ., concur.

      See Anglin v. Mayo , 88 So.2d 918, 919 (Fla. 1956) ("If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice."); Paul v. State , 183 So.3d 1154, 1156 (Fla. 5th DCA 2015) (granting habeas corpus relief in exceptional circumstances where reliance on earlier erroneous appellate court decision in the case would result in manifest injustice).

      See § 812.13(2)(a), Fla. Stat. (2009).

      The trial court separately granted Mitchell's post-verdict motion for judgment of acquittal on the severed count of possession of a firearm by a convicted felon.

      We separately note that the verdict finding that Mitchell was not in actual possession of a firearm during the robbery is truly inconsistent with the severed count of possession of a firearm by a convicted felon and, as previously indicated, the trial court correctly granted Mitchell's posttrial motion for judgment of acquittal on that count.


author: PER CURIAM.

text:
    Parnell SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-483
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019 Rehearing Denied June 18, 2019
    Parnell Smith, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See § 775.082(3)(a), Fla. Stat. (1983) (providing that a person who has been convicted of a life felony committed prior to October 1, 1983 may be punished "by a term of imprisonment for life or for a term of years not less than 30 and, for a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years") (emphasis added).