author: CRENSHAW, Judge.

text:
    PINELLAS COUNTY, Florida, an Independent and Chartered Florida County, Appellant, v. The RICHMAN GROUP OF FLORIDA, INC., a Florida Corporation, Appellee.
    Case No. 2D16-3279
    District Court of Appeal of Florida, Second District.
    Opinion filed November 29, 2017. Rehearing Denied February 19, 2018
    Sylvia H. Walbolt, Chris W. Altenbernd, and Nicholas A. Brown of Carlton Fields Jorden Burt, P.A., Tampa; and James Bennett, Pinellas County Attorney's Office, Clearwater, for Appellant.
    Landis V. Curry, III, Scott A. McLaren, E.D. Armstrong, III, and Fred C. Marshall, II of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
   CRENSHAW, Judge.

Pinellas County appeals the final judgment awarding the Richman Group of Florida, Inc., over $16.5 million in damages under 42 U.S.C. § 1983 (2012), based on the trial court's conclusion that the County violated Richman's substantive due process and equal protection rights under the Fourteenth Amendment to the United States Constitution by denying Richman's proposed amendment to the County's land use plan. Because the trial court erred in concluding that the County had no rational basis to deny the proposed amendment, we reverse the final judgment. In light of this disposition, we do not reach the County's remaining arguments.

I. BACKGROUND

In 2012, Richman executed a contract to purchase 34.55 acres of land in the City of Safety Harbor subject to Richman obtaining certain government approvals to develop the land. At issue in this appeal is Richman's attempt to obtain approval of an amendment to the Countywide Future Land Use Plan that would have changed the land use designation of roughly sixteen acres of land from Industrial Limited (IL) to Residential Medium (RM) so that Richman could develop the property in a way that is not permitted on land with the IL designation.

A. The Legislative Framework

Under the Special Act governing the County's land use plan, only a local government with jurisdiction over the subject property may submit a proposal to amend the plan to the Pinellas Planning Council. Ch. 90-396, § 10(4)(a), at 40, Laws of Fla. The Council reviews the proposal and makes a recommendation to approve, deny, continue, or alter it. Id. § 10(4)(a), (b), at 40. If the Council recommends approval, it forwards the proposal along with its recommendation to the Board of County Commissioners for a public hearing and vote in the Board's capacity as the County Planning Authority (CPA). Id. § 10(4)(d), at 40. If the CPA votes to deny the proposal, any substantially affected person may seek a hearing before an Administrative Law Judge (ALJ) pursuant to Chapter 120, Florida Statutes; this hearing "is limited to a review of the facts pertaining to the subject property, the countywide future land use plan, and those rules, standards, policies, and procedures applicable thereto." Id. § 10(4)(d), (f), at 40-41. The hearing "is not the appropriate forum for a constitutional challenge." Id. § 10(4)(f), at 41. After the hearing, the ALJ's "recommended order shall be forwarded to and considered by the [CPA] in a final hearing. The basis for the [CPA's] final decision approving or denying the proposed amendment is limited to the findings of fact of the [ALJ]." Id. § 10(4)(d), at 40-41. The CPA's decisions under the act "are legislative in nature" and are subject to judicial review. Id. § 10(4)(g), at 41. Importantly, nothing in the Special Act mandates that proposed amendments that are consistent with the amendment review criteria must be granted by the CPA.

In line with this legislative framework, Richman applied to the City of Safety Harbor to initiate the process of amending the County's land use plan. After the Safety Harbor Commission approved Richman's proposal by a vote of 3-2, despite significant neighborhood opposition to it, the city submitted the proposal to the Council, which recommended approval by a vote of 8-5. The Council forwarded the proposal to the CPA along with its recommendation to approve the amendment.

In May 2013, the CPA considered Richman's proposal at a public hearing where hundreds of residents from the area surrounding the subject property expressed opposition to the amendment. The residents articulated specific, rational concerns that amending the land use designation to allow Richman's planned development of the property would cause traffic, transportation, safety, and economic problems. Members of the CPA, as well as some of the residents, highlighted the scarcity of IL-designated land in the area and explained that removing the IL designation would harm the local economy because it would result in even less land available to support "target employers" that bring high-paying jobs to the County's residents. Citing Resolution 06-3, which set forth "the need to reserve industrial parcels for target employers" in Pinellas County, the CPA unanimously voted to deny the amendment.

B. The Administrative Proceedings

As a person substantially affected by the CPA's denial, Richman obtained a hearing before an ALJ. The parties stipulated that the issue to be decided at that hearing was "[t]he manner in, and extent to, which the amendment is consistent" with the criteria in the rules governing amendments to the County's land use plan. The rules, promulgated pursuant to the Special Act, provide that "[i]n the consideration of a regular Countywide Plan Map amendment, it is the objective of these Countywide Rules to evaluate the amendment so as to make a balanced legislative determination based on" certain relevant considerations. The crux of the parties' dispute at this hearing was whether Resolution 06-3 was part of these relevant considerations. Agreeing with Richman, the ALJ resolved this dispute by finding that "Resolution 06-3 ... is not a source of criteria applicable to the [a]mendment" because that resolution had not been "repeated, paraphrased, or adopted by reference in the Countywide Rules." Thus, to the extent that the CPA denied the amendment because it was inconsistent with the relevant considerations in the rules-namely, Resolution 06-3-the ALJ concluded that the amendment was indeed consistent with the relevant criteria. However, the ALJ did not find, or otherwise conclude, that the CPA had to approve the amendment because it was consistent.

The ALJ did find that other sections of the rules were relevant to the dispute. Among those other sections, the ALJ highlighted section 2.3.3.6.1, which provides the following purpose behind the IL designation:

It is the purpose of this category to depict those areas of the county that are now developed, or appropriate to be developed, in a limited industrial manner; and so as to encourage the reservation and use of consolidated areas for industrial and industrial/mixed use in a manner and location consistent with surrounding use, transportation facilities, and natural resource characteristics.

Regarding the consistency between the current use of the land and the purpose laid out in section 2.3.3.6.1, the ALJ found that the property currently has "numerous industrial buildings and structures associated with a citrus processing facility that is no longer in operation." The property is otherwise undeveloped. Commercial areas run along the southern and western borders of the property, whereas a residential area runs along its eastern border. To the north is a large, undeveloped area that separates the property from another residential area. According to the ALJ, "[t]he area is not part of a larger consolidated industrial area, but the Richman parcel, together with the IL parcel across 10th Street South, could function as a small industrial park." The ALJ found that the property "can accommodate certain 'target employers,' " but it noted that the IL designation also broadly authorizes "other uses that would be incompatible with surrounding uses." In other words, only a limited array of target employers could utilize the subject property in a manner consistent with the surrounding properties.

Although the ALJ ultimately recommended that the amendment be approved, noting that it "creates more points of consistency and fewer points of inconsistency than the existing" designation, the ALJ expressly recognized that the final decision was left to the CPA, which had to make a "balanced legislative determination" whether to amend the plan or maintain the status quo. In making that legislative determination, the ALJ explained, "the CPA [was] not bound by the balance struck by the [ALJ], based on his perception of the differential importance of various findings." Nowhere in the ALJ's order did it find that the CPA had no rational basis to deny the amendment or that the preservation of IL land for target employers did not constitute a rational basis. Nor did the ALJ find that the existing designation was improper or that the current use of the property was inconsistent with its IL designation.

Pursuant to the Special Act, the proposed amendment, along with the ALJ's order, came before the CPA for a final public hearing in January 2014. Again, numerous residents voiced their opposition, highlighting the problems that would be caused if the amendment was approved. The CPA expressed its disappointment with the ALJ's finding that Resolution 06-3 was not an official criterion applicable to the proposal, explaining that it had always intended for the resolution to be a part of the criteria and it relied on "staff and others telling [the CPA], yes, everything is in sync." Recognizing that it was bound only by the ALJ's findings of fact and that it still had to make the ultimate legislative decision, the CPA voted unanimously to deny the proposed amendment.

C. The § 1983 Proceedings

Instead of seeking judicial review of the CPA's denial as expressly authorized under the Special Act, Richman chose to sue the County for monetary damages under § 1983, alleging violations of its equal protection and substantive due process rights as secured by the Fourteenth Amendment to the United States Constitution. In its equal protection claim, Richman asserted that the CPA treated it differently from similarly-situated applicants by denying its application "without any conceivable basis to support its actions, or any rational relationship between its denial and any legitimate government interests." On the substantive due process claim, Richman asserted that the denial "was an irrational, arbitrary, and capricious decision without any rational basis in fact or law." In support of both theories, Richman alleged that "the CPA was legally required to approve" the amendment at the final hearing once the ALJ found that the amendment was consistent with all relevant criteria and that, instead of applying the existing criteria, the CPA denied the amendment based on "significant political pressure." (Emphasis added).

After a bench trial, the trial court entered a final judgment in favor of Richman on both counts. The court explained that the equal protection claim required a ruling "as to whether the County had a rational basis for denying" Richman's amendment and that the same " 'rational basis' question [was] the principal issue involved in the arbitrary and capricious due process claim."See, e.g., Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 467-68 (7th Cir. 1988) (noting that the same rational basis test applies to equal protection and substantive due process challenges).

On the question of whether the County had a rational basis to deny the application, the trial court found that the ALJ "ruled that 'industrial land preservation' was not a legitimate reason/rational basis for denying the [a]mendment." The court also determined that the ALJ found the existing IL designation on the property was "not consistent" with the relevant criteria in the rules. The trial court characterized both of these as findings of fact that were binding on the CPA under the Special Act and that were simply "ignor[ed]" by the CPA in denying the amendment. Expanding this perceived violation of the Special Act to the Constitutional dimension, the trial court concluded that "[b]ecause the CPA applied a non-existent criterion to deny Richman's Amendment, the County acted arbitrarily and capriciously in violation of Richman's Constitutional right to due process protections." But the trial court seemingly contradicted that conclusion by also finding that "[t]he evidence establishes that the CPA's final decision was based on a desire to appease the Safety Harbor residents, whose forceful opposition was brought to bear throughout the Countywide amendment process." Thus, the trial court apparently determined that both the constituents' rational objections and the economic impact of losing even more scarce industrial land suitable for target employers were not rational bases because those factors were not explicitly contained in the relevant criteria in the rules.

Based on its ruling that the County had no rational basis to deny the amendment, the trial court concluded that Richman was also entitled to relief on its equal protection claim because, "given that the relevant characteristics of the Richman Amendment and its comparators were the same, there is no rational basis for distinguishing between these amendments." The court noted that the "only meaningful difference" between Richman's amendment and its comparators was the "overwhelming neighborhood opposition," but it determined that such opposition was not a rational basis to deny the amendment.

The trial court rejected the County's argument that the CPA had the discretion to make a legislative decision to maintain the status quo based on the court's determination that the CPA's discretion was not "unbridled" in light of the limitations placed on it by the Special Act and the CPA's own review criteria. Quoting only a portion of this court's holding in Island, Inc. v. City of Bradenton Beach, 884 So.2d 107, 108 (Fla. 2d DCA 2004), the trial court acknowledged that the CPA's legislative decision was subject to the deferential "fairly debatable" standard of review, but it concluded that the CPA's decision to deny the amendment was not fairly debatable because the ALJ found both that the amendment satisfied the review criteria and that the current IL designation was not consistent with that same criteria.

The County now argues that the trial court erred in concluding that the ALJ's order established that the CPA could not rationally deny the amendment because, first, the ALJ made no such finding and, second, even under the limitations placed on it by the Special Act, the CPA still had the discretion to make the legislative, policy decision to maintain the status quo and its decision to do so was fairly debatable. Even if the trial court was correct that the Special Act mandated approval of the amendment, the trial court erred in equating this ostensible violation of state law to a violation of the Constitution because, under the exacting Constitutional standard, the CPA's decision was still rationally grounded in the public interest. The County maintains that the trial court similarly erred in granting relief on the equal protection claim because the court based its equal protection ruling on the same defective rational basis analysis it conducted on the substantive due process claim.

Richman responds that, in light of the limitations placed on it by the Special Act, the County had no discretion to deny the amendment once the ALJ issued its order. In fact, at oral argument, Richman's counsel emphasized that its position is that the CPA had absolutely no discretion to do anything other than approve the amendment at that point. Richman contends that the County's decision to intentionally violate the Special Act in order to appease the residents, without more, amounts to arbitrary and capricious action in violation of the Constitution.

II. ANALYSIS

Turning first to the due process claim, to support its claim for damages under § 1983 based on a violation of its substantive due process rights, Richman had to show that it had been deprived of a constitutionally recognizable interest and that the deprivation was the result of arbitrary and capricious action on the part of the County. See Gardens Country Club, Inc. v. Palm Beach County, 712 So.2d 398, 403 (Fla. 4th DCA 1998) (citing Exec. 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir. 1991) ). The County raises no challenge to the trial court's finding that Richman had a constitutionally recognizable interest in the proposed amendment. As such, our review is limited to the question of whether the County's denial of the amendment was arbitrary and capricious.

"Substantive due process challenges are analyzed under the rational basis test; that is, a legislative act of the government will not be considered arbitrary and capricious if it has 'a rational relationship with a legitimate general welfare concern.' " Id. at 404 (quoting Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th Cir. 1995) ). "In other words, the Plaintiff must show the government's infringement was 'arbitrary, conscience shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.' " 545 Halsey Lane Props., LLC v. Town of Southampton, 45 F.Supp.3d 257, 266 (E.D.N.Y. 2014) (quoting Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006) ). "In the zoning context, the issue is whether the [government's] action bore any substantial relation to the public welfare." Exec. 100, 922 F.2d at 1541. If the government's legislative decision is "at least debatable" there is no denial of substantive due process. Shelton v. City of College Station, 780 F.2d 475, 483 (5th Cir. 1986) (en banc). "Arbitrary conduct that might violate zoning regulations as a matter of state law is not sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of governmental authority that will offend the substantive component of the Due Process Clause." Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999).

[T]he conventional planning dispute-at least when not tainted with fundamental procedural irregularity, racial animus, or the like-which takes place within the framework of an admittedly valid state subdivision scheme is a matter primarily of concern to the state and does not implicate the Constitution. This would be true even were planning officials to clearly violate, much less "distort" the state scheme under which they operate.

Creative Env'ts Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982) (emphasis added).

A. The Fairly Debatable Standard

In resolving Richman's substantive due process claim, the trial court was required to apply the fairly debatable standard of review to the CPA's final decision. See Martin County v. Section 28 P'ship, Ltd., 772 So.2d 616, 619 (Fla. 4th DCA 2000) (explaining that there is a "close relationship between the fairly debatable standard and the review of substantive due process claims" (citing Martin County v. Section 28 P'ship,Ltd., 676 So.2d 532, 537 (Fla. 4th DCA 1996) )). "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Martin County v. Yusem, 690 So.2d 1288, 1295 (Fla. 1997). "This court reviews the trial court's application of the fairly debatable standard de novo." Island, 884 So.2d at 108.

Because reasonable persons could differ as to the propriety of the CPA's decision, we conclude that the trial court erred in ruling that the CPA's decision to maintain the status quo was not fairly debatable. First, despite Richman's insistence below and before this court, nothing in the Special Act mandated the CPA's approval of the amendment once the ALJ found that the amendment was consistent with the review criteria in the rules. On the contrary, as explained by the ALJ, even amendments that are consistent with the relevant considerations in the rules are still subject to the CPA's final legislative decision under the Special Act.

Although the trial court recognized that the CPA was required to make the final legislative decision, the court concluded that the CPA's discretion in making that decision was limited by the Special Act and that the CPA violated those limitations by ignoring the ALJ's findings. But, in arriving at this conclusion, the trial court mischaracterized the ALJ's findings. For instance, in reviewing the ALJ's order, the trial court concluded that "the specific issue presented to [the ALJ] was whether the County had any rational basis for denying the Amendment" under the rules. However, the parties stipulated that the issue presented to the ALJ was the manner in, and extent to, which the amendment was consistent with the rules, not whether the County had any rational basis for denying the amendment. Even if the ALJ did conclude that the CPA had no rational basis to deny the amendment, that conclusion would not be binding on the CPA because the CPA was limited only by the ALJ's findings of fact, whereas the question of whether a decision has a rational basis for the purposes of a § 1983 claim is a question of law. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1578 (11th Cir. 1989). Moreover, the hearing before the ALJ was "limited to a review of the facts pertaining to the subject property, the countywide future land use plan, and those rules, standards, policies, and procedures applicable thereto." Ch. 90-396, § 10(4)(f), at 41. Thus, under the plain language of the Special Act, the ALJ could not have ruled on the question of whether the CPA had a rational basis on which to deny the amendment, and the trial court erred in so concluding.

The trial court also erred in ruling that the ALJ's findings established that the existing classification was inconsistent with the criteria in the rules and relying on that inconsistency to conclude that, because no reasonable person could agree that an inconsistent designation should remain, the CPA's decision was not fairly debatable. To be sure, the ALJ did find that "[t]he IL category, with all potential uses allowed, is 'in the broadest sense' inconsistent with single-family uses to the north and east" and that "[t]he IL designation within the [Scenic Non-Commercial Corridor designation] is inconsistent with the goal of the corridor and is a factor (not a requirement ) in favor of changing [the] current IL designation." (Emphasis added). When it conducted its own balancing of the relevant considerations, the ALJ recommended approving the amendment because "the amendment creates more points of consistency and fewer points of inconsistency than the existing IL land use classification."

However, the ALJ never found that the IL designation was not suitable for the property, and at least some of the ALJ's findings support the CPA's decision to allow the IL designation to remain on the land. The ALJ found, for example, that the property is currently developed in an industrial manner and that it was still feasible for the property to be part of a small consolidated industrial park. These findings comport with the purpose behind the IL designation as stated in section 2.3.3.6.1 of the rules. And, while the ALJ did find that there were many uses allowed under the IL designation that would be inconsistent with surrounding uses, it did not find that all of the potential uses under the IL designation-including use for target employers-would be inconsistent. Indeed, it found that the subject property could nevertheless support certain target employers despite the surrounding limitations. Furthermore, pursuant to the Special Act, the ALJ's finding that the property could currently support target employers under the existing designation was a finding of fact that the CPA had to consider in making its final decision. Ch. 90-396, § 10(4)(d), at 40. In other words, although the ALJ found that Resolution 06-3 was not a criterion on which the CPA could conclude that the amendment was inconsistent with the rules, the ALJ did not find that the CPA was prohibited from otherwise considering the land's current suitability for target employers when making its final legislative determination. Accordingly, in the proper context of the ALJ's findings, the CPA's decision to deny the amendment and keep the land available for target employers was fairly debatable.

i. The Trial Court's Application of Island

Applying its determination that the ALJ's order established that the existing designation was inconsistent with the criteria in the rules to this court's opinion in Island, 884 So.2d 107, the trial court concluded that the CPA's decision was not fairly debatable. This, too, was error.

In Island, this court reviewed the trial court's finding that the City of Bradenton Beach's denial of two small-scale development amendments to the City's future land use plan was fairly debatable. 884 So.2d at 107-08. The developers in Island sought amendments that would have changed the designation of their property "from preservation, a classification which permits no development, to medium/high residential/tourist in order to construct a duplex on each of their two lots." Id. at 108. The evidence presented at trial showed that "the designation of the [developers'] property as preservation was erroneous because the property did not meet the definition of preservation [under the City's plan]." Id. The developers also presented evidence showing that the property had been taxed as residential property and that "the mayor's son had been issued a license to operate a sailboat rental business on the property, which activity is not allowed on preservation property." Id. According to the majority, no evidence rebutted the developers' evidence "that the property did not meet the definition of preservation." Id.

Holding that the trial court erred in finding that the City's denial was fairly debatable, this court explained that "[r]easonable persons could not differ in concluding that the [developers] were entitled to a small-scale amendment to the comprehensive plan because their property was improperly designated preservation." Id. (emphasis added). "[R]ecognizing the stringent requirements of the fairly debatable rule," Judge Villanti specified that he concurred with the majority because "[a]bsolutely all of the expert opinion and supporting data was unrefuted; i.e., that the preservation classification was imposed in error." Id. at 109 (Villanti, J., concurring). Thus, this court's application of the fairly debatable standard in Island is limited to situations in which unrefuted evidence establishes that an existing land use designation is improper under the terms of the land use plan itself.

Here, although the ALJ found that the amendment would make the property more consistent with the relevant criteria for approving an amendment to the plan, the ALJ did not conclude that the current designation was imposed in error or that the property was being used in a way inconsistent with its current designation. As explained above, the ALJ's findings show otherwise. Unlike Island, the amendment at issue here sought to change the property's valid, existing designation so that Richman could develop it in a way it had never been used before. Because there was no unrefuted evidence showing that the subject property did not meet the definition of IL land under the County's land use plan or that the property was being used in a way that was not permitted under its existing designation, the trial court erred in concluding that Island established that the CPA's denial was not fairly debatable.

B. The Rational Basis Question

Rejecting the County's argument that the CPA's decision was fairly debatable, the trial court determined that the CPA violated Richman's substantive due process rights both by denying the amendment based on the preference to preserve IL land, which the ALJ determined was not part of the relevant criteria for approving an amendment under the rules, and by making its decision simply to appease local residents. We address each alternative basis in turn.

To the extent that the trial court based its substantive due process ruling on its finding that the CPA was motivated by significant political pressure, the CPA's consideration of its constituents' concerns did not amount to a violation of the Constitution in this case. Without citing to any legal authority, the trial court determined that "neighborhood opposition is not a legitimate basis for denying a land use application," even though it agreed that such opposition was a "meaningful difference" between Richman's amendment and its purported comparators. However, resident opposition, provided it is motivated by legitimate concerns, can provide a rational basis for a government's land use decision. See, e.g., Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208 (11th Cir. 2007) ("In sum, the suggestion that the defendants violated the Equal Protection Clause by responding to the concerns of local citizens is, under these circumstances, without merit.");

Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1387 (11th Cir. 1993) ("Merely because citizen input may not be a sufficient basis for a rational government land use decision in every instance does not mean it can never be a sufficient basis for such a decision. In most cases it will be. Where, as here, citizens consistently come before their city council in public meetings on a number of occasions and present their individual, fact-based concerns that are rationally related to legitimate general welfare concerns, it is not arbitrary and capricious for a city council to decide without a more formal investigation that those concerns are valid and that the proposed development should not be permitted." (citation omitted)); Greenbriar, 881 F.2d at 1579 ("[A] planning commission or a City Council is not a judicial forum; it is a legislative body held democratically accountable through precisely the forms of political suasion to which Greenbriar objects. ... Here, there is no indication that Council members' attention to citizens' concerns in assessing Greenbriar's zoning plan deprived their decision of a rational basis." (citations omitted)); Estabrook, 680 F.2d at 832 ("Here it is merely indicated that town officials are motivated by parochial views of local interests which work against plaintiffs' plan and which may contravene state subdivision laws."). In fact, the Special Act mandates notice to all affected residents and a public hearing before the adoption of any amendment to the land use plan. Ch. 90-396, § 10(5), at 41. As such, even the Special Act itself contemplates the CPA's consideration of concerns from local residents.

Richman argues that the CPA could not consider the residents' objections because that consideration was not part of the relevant criteria in the rules, criteria which limited the CPA's discretion under the Special Act. While Richman's argument may support a determination that the CPA violated state law, Richman fails to appreciate that it chose to bring this dispute into the Constitutional arena where "[i]t has long been established that zoning regulations will not be declared unconstitutional as violative of substantive due process unless they 'are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' " Greenbriar, 881 F.2d at 1577 (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394, 47 S.Ct. 114, 71 L.Ed. 303 (1926) ). This rigorous Constitutional standard requires more than a violation of state law. See, e.g., Coniston Corp., 844 F.2d at 467 ("Something more is necessary than dissatisfaction with the rejection of a site plan to turn a zoning case into a federal case; and it should go without saying that the something more cannot be merely a violation of state (or local) law."); Estabrook, 680 F.2d at 833 ("It is not enough simply to give these state law claims constitutional labels such as 'due process' or 'equal protection' in order to raise a substantial federal question under section 1983."). That "something more" was simply not present in this case. Here, hundreds of local residents articulated specific, rational concerns regarding the proposed amendment's effect on the general welfare. Accordingly, even if the CPA violated the Special Act, it did not violate the Constitution of the United States in considering legitimate input from affected residents.

In alternatively concluding that the CPA's application of the IL preference was arbitrary and capricious, the trial court relied on Everett v. City of Tallahassee, 840 F.Supp. 1528 (N.D. Fla. 1992), explaining that "[t]he same logic applies in this case, where Richman was subject to the application of an uncodified policy that never had been adopted as part of the applicable criteria." We cannot agree.

Everett involved a § 1983 action brought by the owner of a 3.52-acre undeveloped property against the City of Tallahassee alleging, among other things, a violation of the owner's substantive due process rights. 840 F.Supp. at 1530. The litigation arose after the City denied the owner's request to change the zoning of the property from residential to nonresidential use, citing an uncodified, standardless policy as the only reason for the denial. Id. at 1537. The owner also presented evidence showing that the City itself violated this same uncodified policy, as well as other zoning restrictions, in order to build City facilities on property adjacent to the owner's land. Id. at 1541. In analyzing the owner's claim, the court applied the principle that "[a] violation of state law, without more, is not a denial of due process of law." Id. at 1543 (citing Coniston Corp., 844 F.2d 461 ). Nevertheless, the court ruled that the uncodified policy was "unconstitutionally vague" and held that "[b]ecause no standards [were] set forth in the [policy], the City's arbitrary and capricious use of the policy violate[d] [the owner's] substantive due process rights." Id. at 1546.

The same logic does not apply to this case. Here, Richman made no argument, and the trial court made no ruling, that the policy to preserve IL land was unconstitutionally vague. There is also no indication that the uncodified policy in Everett was related to a legitimate welfare concern, whereas here, the policy to preserve IL land for target employers who bring high-paying jobs to the County is related to a legitimate fiscal concern. Moreover, the City violated its own uncodified policy to suit its own purposes in Everett; Richman alleged no such conduct on the part of the County in this case. Thus, unlike this case, Everett clearly concerned something more than a simple violation of state law.

Finally, we reject Richman's assertion that in reversing the final judgment at issue here we would need to overrule our decision in City National Bank of Florida v. City of Tampa, 67 So.3d 293 (Fla. 2d DCA 2011). The relevant portion of that decision simply discusses the cognizability of claims under § 1983 and contains no rational basis analysis. City Nat'l Bank of Fla., 67 So.3d at 297.

III. RESOLUTION

As the trial court noted, the dispositions of both of Richman's Constitutional claims hinge on the question of whether the CPA had a rational basis to deny the amendment. Having concluded that the trial court erred in ruling that the CPA's decision lacked a rational basis, we reverse the final judgment in its entirety.

Reversed.

LaROSE, C.J., and MORRIS, J., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Elizabeth Francis MARSH, a/k/a Elizabeth Frances Marsh, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3542
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018 Rehearing Denied June 19, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Elizabeth Marsh rear-ended another vehicle while under the influence of illegal substances causing serious bodily injury to two of its passengers. As to each passenger she was convicted of driving under the influence (DUI) with serious bodily injury and driving while license suspended (DWLS) with serious bodily injury. We conclude that the dual convictions as to each victim based on the serious bodily injury arising from one act violate the constitutional prohibition against double jeopardy. We therefore affirm the convictions for DUI causing serious bodily injury but reverse the convictions for DWLS causing serious bodily injury and remand with directions to enter convictions for two counts of DWLS.

Marsh entered an open, no contest plea to the above third-degree felony charges and to the second-degree misdemeanor charge of failure to carry adequate liability insurance. The trial court imposed consecutive five-year sentences for each felony count and sentenced Marsh to time-served for the misdemeanor count. Marsh raises two issues on appeal. First, she argues that the trial court erred by failing to award her sufficient jail credit. We find no merit in this argument and reject it without further comment. It is Marsh's second argument concerning double jeopardy that warrants discussion.

Preliminarily, we note that Marsh did not waive a double jeopardy challenge by entering a plea because the plea was a general plea, as opposed to a plea bargain. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). On the merits, this case is controlled by our decision in Kelly v. State, 987 So.2d 1237, 1238 (Fla. 2d DCA 2008), in which this court addressed a double jeopardy challenge to dual convictions for DUI with serious bodily injury and driving without a valid license with serious bodily injury, both convictions being based on the same injury.

In Kelly, the defendant argued that the convictions were impermissible because they punished the defendant twice for causing injury to a single victim by one act. Id. This court agreed based on the longstanding double jeopardy principle applied in State v. Cooper, 634 So.2d 1074 (Fla. 1994), and State v. Chapman, 625 So.2d 838 (Fla. 1993), precluding dual convictions for the single death of a victim that occurred as a result of one act of operating a vehicle while under the influence. Kelly, 987 So.2d at 1238-39. This court noted that this principle had been applied in Cooper to determine that convictions for both DUI manslaughter and DWLS causing death were impermissible. Kelly, 987 So.2d at 1238 (citing Cooper, 634 So. 2d at 1075).

This court found the Kelly defendant's dual convictions for DUI causing serious bodily injury and driving without a valid license causing serious bodily injury were analogous to those in Cooper in that they imposed two penalties for causing serious injury to a single victim by one act of operating a vehicle while under the influence. Id. at 1239. Thus, the dual convictions violated the defendant's double jeopardy rights. Id.

In this case, the defendant was convicted of DUI causing serious bodily injury and DWLS causing serious bodily injury. As in Kelly, her convictions were enhanced for causing serious injury to a victim as the result of the defendant's single act of operating her vehicle. Thus, Marsh's convictions for both offenses for each victim violate the constitutional prohibition against double jeopardy.

The State asserts that Kelly was erroneously decided because it improperly extended the rule precluding dual punishment for a single homicide to dual punishment for a single injury. In support of its argument, the State relies on the Fifth District's decision in Lott v. State, 74 So.3d 556, 559-60 (Fla. 5th DCA 2011), in which the court determined that convictions for both reckless driving and DWLS that were enhanced for causing serious bodily injury to the same victim did not place the defendant in double jeopardy.

In so doing, the Fifth District rejected the defendant's argument that dual convictions were impermissible under Cooper and Chapman as interpreted in Kelly because they imposed dual penalties for causing serious bodily injury to only one victim during a single act. Lott, 74 So.3d at 559-60. The court found no legal support "to extend the reasoning from Cooper and Chapman, both of which involved a single homicide, to the instant case where a single serious injury occurred." Lott, 74 So.3d at 559.

We remain unconvinced that Kelly was wrongly decided. The rule set forth in Cooper and Chapman is referred to as the "single homicide rule." See McCullough v. State, 230 So.3d 586 (Fla. 2d DCA 2017). The rule, which is based on the premise "that the legislature did not intend to punish a single homicide under two different statutes," applies even in circumstances where the double jeopardy analysis set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), may not grant relief. McCullough, 230 So.3d at 591 (quoting Houser v. State, 474 So.2d 1193, 1197 (Fla. 1985) ).

The single homicide rule was first adopted by the supreme court in Houser to preclude dual convictions for DWI manslaughter and vehicular homicide based on a single death. Id. The Houser court recognized that the two crimes passed muster under Blockburger, but it explained that " Blockburger and its statutory equivalent in section 775.024(1), Fla. Stat. (1983), are only tools of statutory interpretation which cannot contravene the contrary intent of the legislature." Houser, 474 So.2d at 1196. Because "Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes," these dual convictions were impermissible regardless of whether the offenses satisfy the Blockburger test. Id. at 1197.

The single homicide rule "is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing." Gordon v. State, 780 So.2d 17, 25 (Fla. 2001), receded from on other grounds by Valdes v. State, 3 So.3d 1067 (Fla. 2009). "[P]hysical injury and physical injury causing death, merge into one and it is rationally defensible to conclude that the legislature did not intend to impose cumulative punishments." Id. (quoting Carawan v. State, 515 So.2d 161, 173 (Fla. 1987) (Shaw, J., dissenting) ). Although there was no death in Gordon, the supreme court determined that "the logical extension of" the single homicide rule precludes dual convictions based on a single attempted homicide. Id.

In Kelly, this court applied the same principle to preclude enhancements to dual convictions for single acts of operating a vehicle that cause serious bodily injury to another. The "notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing," Gordon, 780 So.2d at 25, and a singular attempted killing, see id., apply with equal force to multiple punishments for a singular serious bodily injury committed during a single act.

This principle is reinforced by a comparison of the facts of Cooper with those in this case. In Cooper, the supreme court applied the single homicide rule to hold that dual convictions for DUI manslaughter and DWLS causing death violate double jeopardy when there is only a single death. 634 So.2d at 1075. The defendant had rear-ended a vehicle while driving under the influence, and the crash had caused the death of its passenger. Cooper v. State, 621 So.2d 729, 730 (Fla. 5th DCA 1993), approved, 634 So.2d 1074 (Fla. 1994). The supreme court determined that the defendant could be convicted of both DUI manslaughter and DWLS as long as the latter charge was not enhanced for causing death as provided in section 322.34(3), Florida Statutes (1991). Cooper, 634 So.2d at 1075.

In this case, Marsh was convicted of DUI with serious bodily injury and DWLS causing serious bodily injury for rear-ending a vehicle while driving under the influence and causing serious bodily injury to two of its passengers. Marsh's convictions for DWLS causing serious bodily injury were actually enhanced by a later version of the same enhancement statute in Cooper. See § 322.34(6), Fla. Stat. (2014). Both versions provide for enhancement when the defendant "causes the death of or serious bodily injury to another." § 322.34(3), Fla. Stat. (1991) (emphasis added); § 322.34(6), Fla. Stat. (2014) (emphasis added).

The fact that Marsh did not kill the victims in the vehicle she rear-ended does not distinguish this case from Cooper in any meaningful way. If enhancement of the Cooper defendant's charge for DWLS was improperly cumulative, then enhancement of Marsh's charge for DWLS was likewise improperly cumulative. Thus, the Kelly court properly relied upon Cooper and Chapman to conclude that convictions for DUI causing serious bodily injury and driving without a valid license causing serious bodily injury to the same victim placed the defendant in double jeopardy.

In conclusion, we reject the State's assertion that Kelly improperly extended the rule precluding dual punishment for a single homicide to precluding dual punishment for a single injury. And for the reasons set forth in Kelly, Marsh's dual enhancements for causing serious bodily injury for each victim violate the constitutional prohibition against double jeopardy. Thus, we affirm Marsh's convictions for two counts of DUI causing serious bodily injury but reverse the convictions for two counts of DWLS causing serious bodily injury and remand with directions to enter convictions for two counts of DWLS.

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

CRENSHAW and MORRIS, JJ., Concur.


text:
    Steven E. SOULE, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as trustee FOR BNC MORTGAGE LOAN TRUST 2007-1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-1, Appellee.
    Case No. 2D16-3231
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018 Rehearing Denied September 18, 2018
    Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellant.
    David S. Ehrlich of Blank Rome LLP, Fort Lauderdale, for Appellee.
    BY ORDER OF THE COURT:
   Appellant's motion for rehearing is granted, the prior opinion dated May 2, 2018, is withdrawn, and the attached opinion is issued in its place. Because full relief has been granted by the panel's ruling on the motion for rehearing, Appellant's motion for rehearing en banc is denied as moot. Appellee's motion to reconsider or strike the court's order granting appellant's appellate attorneys' fees is denied.

Steven E. Soule appeals the final judgment of foreclosure entered in favor of U.S. Bank National Association, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1 (the Bank). While Soule raised a number of grounds for reversal of the final judgment, we reject all of his arguments except one relating to the sufficiency of the evidence to establish that the Bank complied with paragraph 22 of the mortgage by giving notice of the default to Soule. On this single basis, we reverse and remand for entry of an involuntary dismissal of the Bank's case.

In November 2013, the Bank filed its foreclosure complaint against Soule based on his alleged failure to make his March 2011 payment and all subsequent payments. In his answer, Soule denied that the Bank had complied with all conditions precedent to bringing the action and alleged as an affirmative defense the Bank's failure to comply with the notice provisions of paragraph 22 of the mortgage.

At trial, Ocwen employee Nena Kamman testified on behalf of the Bank. Ocwen was the servicer of Soule's loan at the time of trial, but Ocwen had taken over servicing of the loan from Chase, and Chase was the servicer that had prepared and allegedly mailed the default letter pursuant to paragraph 22 in May of 2011. Kamman testified that she had never worked for Chase.

During trial, Kamman testified that the default letter was part of the business records that Ocwen received from Chase. She also testified to the boarding process for new loans that Ocwen obtained. As part of that testimony, she asserted that Ocwen would not have boarded a loan if there were any "red flags" related to the loan. She testified that such a "red flag" might arise if "there was any indication that a breach letter hadn't been sent." But she did not testify to how anyone at Ocwen would know whether a default letter that was imaged into Chase's system had or had not been mailed or what information might be in Chase's file to indicate that a default letter had not been mailed. She did testify that a default letter would not have been imaged into Chase's system if it had not been mailed, but she admitted that she had never been trained in any of Chase's procedures and she offered no testimony that would show that she had any personal knowledge of this alleged imaging procedure.

Both at trial and in this appeal, Soule argued that Kamman's testimony was insufficient to establish that the default letter prepared by Chase had actually been mailed. Soule admitted that Kamman's testimony was sufficient to permit the Bank to introduce the default letter into evidence; however, he argued that simply introducing the letter into evidence was insufficient to show that it was mailed. Relying on Eig v. Insurance Co. of North America, 447 So.2d 377, 379 (Fla. 3d DCA 1984), Soule argued that the Bank had to introduce competent, substantial evidence of what Chase's routine business practices were in order to rely on those practices to prove conformity therewith. And because Kamman did not have personal knowledge of Chase's routine business practices concerning the mailing of default letters, her testimony could not provide competent, substantial evidence of those practices. Therefore, he argued, while the default letter itself was admissible, there was no evidence to prove that it was mailed and so the Bank's case should be dismissed. The trial court rejected this argument, as initially did we.

At the time of trial and when this case was originally heard at oral argument, there was no law from this district on the issue of what foundational testimony was required to prove that a default letter had been mailed by a prior servicer. However, we recently issued an opinion addressing this exact issue in Spencer v. DiTech Financial, LLC, 242 So.3d 1189 (Fla. 2d DCA 2018). In that case, EverHome was the predecessor servicer to DiTech. Id. at ----, 43 Fla. L. Weekly at D721. At the foreclosure trial, Ms. Knight, an employee of DiTech, testified that EverHome, as the prior servicer, had prepared and mailed the default letter to Spencer in 2010. Id. However, the testimony established that Ms. Knight had never worked for EverHome, had no personal knowledge of its practices or procedures for preparing and mailing default letters, had not read EverHome's policies and procedures for preparing and mailing default letters, and had never spoken to anyone at EverHome about how this particular letter had been generated or mailed. Id. Moreover, the evidence showed that the loan was transferred to DiTech in 2014-four years after the default letter had been created and allegedly mailed. Id. In finding Ms. Knight's testimony insufficient to prove that the default letter had been mailed, this court explained:

This evidence was insufficient to show that the default letter was actually sent. "The fact that a document is drafted is insufficient in itself to establish that it was mailed." Allen v. Wilmington Tr., N.A., 216 So.3d 685, 687-88 (Fla. 2d DCA 2017) ; see also Edmonds v. U.S. Bank Nat'l Ass'n, 215 So.3d 628, 630 (Fla. 2d DCA 2017) (citing Allen with approval). Rather, "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen, 216 So.3d at 688.
Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014) ). But the witness must have personal knowledge of the company's general mailing practice-meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters. See id.; Edmonds, 215 So.3d at 630 ; see also CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome's mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

Id. (emphasis added). And because Ms. Knight's testimony was insufficient to establish that the default letter was mailed, this court reversed the final judgment and remanded for entry of an involuntary dismissal. Id.

The facts of this case are essentially on all fours with Spencer. Like DiTech, Ocwen here was a successor servicer that had not prepared or mailed the default letter. And Kamman, like Ms. Knight, worked for the successor servicer and had no personal knowledge of the mailing practices of the predecessor servicer. Therefore, while Kamman's testimony was sufficient to lay the foundation to admit the letter as a business record, it was insufficient to prove that Chase had actually mailed the letter because Kamman had no personal knowledge of either that fact or Chase's policies and practices for mailing. Without testimony based on such personal knowledge, the Bank's only competent evidence was that the default letter had been prepared-not that it had been mailed. Therefore, for the same reasons we did in Spencer, we reverse the final judgment in this case and remand for entry of an involuntary dismissal.

Reversed and remanded for dismissal.

CASANUEVA and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trust FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2006-FF16, ASSET-BACKED CERTIFICATES SERIES 2006-FF16, Appellant, v. Paul A. GREEN, Appellee.
    Case No. 5D17-710
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018 Rehearing Denied September 24, 2018
    N. Mark New, II, William L. Grimsley and Joseph A. Apatov, of McGlinchey Stafford, Jacksonville, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, and Latasha C. Scott, of Lord Scott, PLLC, Tampa, for Appellee.
   PER CURIAM.

Deutsche Bank National Trust Company, as Trustee for First Franklin Mortgage Loan Trust 2006-FF16, Asset-Backed Certificates Series 2006-FF16 (Bank), appeals the trial court's involuntary dismissal of its foreclosure action against Paul A. Green on statute of limitations grounds. Because the specific default date asserted in Bank's foreclosure complaint, July 1, 2010, was within the five years prior to the filing of its complaint on June 30, 2015, the action was not barred by the statute of limitations, and it was error to conclude otherwise. See Bank of N.Y. Mellon v. Stallbaum, 230 So.3d 1271, 1271 (Fla. 5th DCA 2017) (concluding that where complaint alleged a continuous state of default that included acts of default occurring within five-year period, statute of limitations did not bar complaint); Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168-69 (Fla. 5th DCA 2017) ("Because Bank alleged and proved missed payments within five years prior to the filing of its complaint, its action was not barred by statute of limitations."). It does not matter that a prior foreclosure action based on the same note and mortgage was involuntarily dismissed. Bank "ha[s] the right to file a subsequent foreclosure action-and to seek acceleration of all sums due under the note-so long as the foreclosure action was based on a subsequent default, and the statute of limitations ha[s] not run on that particular default." Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009, 1012 (Fla. 2016). Green concedes this point on appeal, noting in his answer brief that at the time the trial court involuntarily dismissed Bank's foreclosure complaint, it did not have the benefit of this Court's opinion in Stallbaum.

Nevertheless, Green urges us to affirm based on a series of tipsy coachman arguments. We have thoroughly reviewed Green's arguments in support of affirmance and find no merit in them. The evidence introduced at trial, including the original note and mortgage, the acceleration letter, and the payment history, established that the note and mortgage executed by Green existed, Bank had standing to foreclose, Green failed to make the July 1, 2010 payment and all subsequent payments, and that Green received the acceleration letter. See Bank of Am., N.A. v. Delgado, 166 So.3d 857, 859 (Fla. 3d DCA 2015) (citing Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) ); see also Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016).

The acceleration letter contained the amount necessary to cure the default and reinstate the loan under paragraph 19 of the mortgage. Green argues that the acceleration letter did not substantially comply with paragraph 22 of the mortgage because the amount necessary to cure the default was incorrect due to the effect of the dismissal of the previous foreclosure action. He contends that pursuant to Bartram, 211 So.3d at 1012, 1021, the borrower can cure the default by resuming normal monthly payments in the month after dismissal. However, this language in Bartram was discussing the reinstatement provision in paragraph 19, which clearly states that the amount necessary to cure the default and reinstate the loan consists of, among other things, "all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred" and "all expenses incurred in enforcing this Security Instrument." Reinstatement involves a new promise made by the borrower, based on the terms in paragraph 19, acknowledging the full amount owed under the loan in exchange for reinstatement of the loan. See Silva v. Robbins, 115 Fla. 830, 156 So. 280, 281-82 (Fla. 1934) (noting that moral obligation is sufficient consideration when barred debt is acknowledged in new promise); Wassil v. Gilmour, 465 So.2d 566, 568 (Fla. 3d DCA 1985) (stating that acknowledgment of debt is a new promise) (citing Jacksonville Am. Publ'g Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672, 676-77 (Fla. 1940) ). This new promise has the effect of acknowledging and reviving any barred debts creating "a new and independent cause of action on that separate undertaking." Wassil, 465 So.2d at 568 (citing Tate v. Clements, 16 Fla. 339, 364, 366-67 (1878) ); accord Nolden v. Nolden, 650 So.2d 84, 85 (Fla. 5th DCA 1995). Thus, the dismissal of the previous foreclosure action has no applicability to the amount necessary to cure the default and reinstate the loan under paragraph 19.

Moreover, the trial court concluded Green suffered no prejudice from the content of the acceleration letter based on his testimony that he did not attempt to contact Bank or Bank's servicer after receiving the acceleration letter. See Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242, 1248-49 (Fla. 5th DCA 2012) ). Green's argument that he was prejudiced would require reversing the trial court's finding that he was not. A tipsy coachman argument is not proper if it would result in an outcome other than an affirmance. See MacKenzie v. Centex Homes, 208 So.3d 790, 793 n.3 (Fla. 5th DCA 2016) ; Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto Ins. Co., 103 So.3d 866, 869 (Fla. 4th DCA 2012). Similarly, Green's tipsy coachman argument concerning the effect the running of the statute of limitations on some payment defaults may have on the amount due on the note and mortgage encounters the same problem because it would, if successful, not result in affirmance but would instead merely reduce the amount Bank can recover in the foreclosure judgment on remand after reversal. See MacKenzie, 208 So.3d at 793 n.3 ; Advanced Chiropractic & Rehab. Ctr. Corp., 103 So.3d at 869.

Accordingly, we reverse the order of the trial court involuntarily dismissing the action and remand for a determination of the amount due and entry of final judgment of foreclosure in favor of Bank.

REVERSED and REMANDED with instructions.

TORPY and BERGER, JJ., and JOLLEY, M.G., Associate Judge, concur

      See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.").

      The payment history showed that Green had not made any payments since before September 1, 2008.

      As the trial court has not yet made factual findings as to the amount Bank is due, we express no opinion as to the effect of the statute of limitations on this amount.


author: Per Curiam.

text:
    Lavar Monte THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1916
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

A grand jury indicted Lavar Thompson for first-degree murder, home-invasion robbery, burglary with a firearm, kidnapping, and arson. Thompson was convicted on all counts. Because the State sought the death penalty, the case proceeded to a penalty phase, after which the jury voted to spare Thompson's life. The court sentenced Thompson to life in prison, and Thompson now appeals.

I.

Bill and Connie Couch lived in Lake Butler. Their property comprised a mobile home, several outbuildings, and a camper trailer Mr. Couch called his "man cave." The Couches' daughter, Chloe, and Mrs. Couch's son from a previous relationship lived with them on the property.

In January 2012, Ronald Griffis knocked on the Couches' front door, offering to pave their driveway. After some negotiating, Griffis and Mr. Couch agreed on a deal, and Griffis said he would come back with a work crew to begin the job.

The next day, Griffis arrived with his girlfriend and two other workers: Amanda Jeffery (Griffis's sister) and Michael Pierce, known to the work crew by his street name, "Rat." The crew worked on the driveway for the next two days. When they finished, the crew asked Mrs. Couch for payment. Mrs. Couch, who was home alone with Chloe, told them Mr. Couch would pay them after he returned and inspected the job. Dissatisfied with this response, Rat became agitated and started pacing back and forth on the Couches' porch saying he'd get his money "one way or another." Mrs. Couch eventually called law enforcement, and officers told the work crew that if they wanted to wait for Mr. Couch, they had to do so off the Couches' property. Meanwhile, Jeffery decided to drive Rat back to his apartment in Starke while the rest of the crew waited on the side of the road near the Couches' home.

On the drive to Starke, Jeffery and Rat discussed burglarizing the Couches' property to get the money they felt they were owed. Rat said he knew someone who could help them do it. Arriving at his apartment complex, Rat saw Appellant Lavar Thompson walking nearby and told him to expect a call later that night. Around 2:30 in the morning, Rat called Jeffery, telling her to come pick him and Thompson up in Starke. Jeffery did as she was told.

A few hours later, Mrs. Couch woke up to find a masked man holding a gun in her face. The man told her "this is a robbery" and said he was going to rape her. With her daughter sleeping nearby, Mrs. Couch begged the man not to. The man then said he would not rape her, but he forced her out of the mobile home, across the yard, and into the Couches' camper.

As Mrs. Couch entered the camper, she saw Mr. Couch covered in blood. His teeth were on the floor. Another masked man-significantly taller than the first and wearing a tan jacket-was standing next to Mr. Couch. The taller man took Mrs. Couch into the camper's bedroom and demanded combinations to nearby safes. When Mrs. Couch explained she didn't know the combinations, both men started beating Mr. Couch with a wrench and stabbing him with an ice pick.

The taller man sat Mrs. Couch down on the couch next to her husband and started binding her with duct tape. When Mrs. Couch resisted, the man struck her on the forehead with a gun. The men then asked Mrs. Couch where they kept their gasoline. She said she didn't know. Eventually, one of the men left the camper and returned with lighter fluid, spraying it throughout the camper and on Mr. Couch. Mrs. Couch asked if they were going to burn her and Mr. Couch alive. They said "no," then cut the duct tape off Mrs. Couch and took her back to the mobile home, leaving Mr. Couch in the camper.

Back in the mobile home, Mrs. Couch sat quietly while the men gathered televisions, game consoles, and other electronics, putting them in Mrs. Couch's SUV. The shorter man also took Mrs. Couch's wedding band off her finger. Around this time, when the mask slipped off the shorter man's face, Mrs. Couch recognized him as Rat, the man who helped pave her driveway.

After loading Mrs. Couch's SUV with stolen property, Rat and the taller man walked out the Couches' front door. Mrs. Couch ran after them to see if they were actually gone. When she got to the door, she saw the camper in flames. She then found Mr. Couch face down on the camper's steps, close to the flames. Although he was alive then, he died later that day.

A few hundred yards from the Couches' home, Amanda Jeffery sat in a parked car, watching emergency response vehicles speed past her. Union County Sheriff's Office Investigator Jerry Feltner, driving one of those vehicles, recognized Jeffery and stopped to ask her what she was doing. Jeffery told Feltner about the driveway job and said she was waiting on her brother to come back from the Couches' house. Feltner told Jeffery that the Couches had just been burglarized and asked if she knew a man who was working with them. Jeffery told Feltner that a man named "Rat" had worked with them. She said she didn't know Rat's real name but knew he was from Starke. Feltner then called a Starke law enforcement officer, asking about anyone named Rat. The Starke officer later determined Rat was Michael Pierce.

Now knowing Pierce (Rat) was a suspect, the Starke officer drove to Rat's apartment complex, parked across the street, and waited to see if Rat would show up. Before long, a car pulled up with Rat and Thompson inside. They parked, went inside, returned in different clothes, and drove off. The Starke officer pulled them over and took them into custody.

Police began gathering evidence left in the wake of Mr. Couch's murder: One of Rat's cousins found stolen electronics and a bloodstained gun inside a shed near his house. A tan bloodstained jacket turned up in Thompson's apartment. Mrs. Couch's SUV was found, on fire, in a graveyard. Police found a purple bloodstained glove by the road near Mrs. Couch's SUV. Officers submitted all this evidence for DNA testing, which returned matches to Mr. Couch (for all items) and Thompson (for the jacket and glove).

II.

Nearly four years after the crime, Thompson went to trial for first-degree murder, robbery, arson, and kidnapping. By this time, Pierce (Rat) had already pleaded guilty to murder and received multiple life sentences. Jeffery, who had also pleaded guilty, testified at Thompson's trial that she drove Pierce and Thompson from Starke to the Couches' home in Lake Butler and gave Pierce a gun to use during the crime. She also said that Thompson was complicit in the plan, that he discussed details of the robbery with Pierce before being dropped off.

Along with Jeffery's testimony and the evidence recovered from Pierce's cousin's house, Thompson's home, and Mrs. Couch's stolen SUV, the State sought to enter into evidence a blood-stained wallet and shoes that the State indicated had been taken from Thompson when he was booked into the Bradford County jail.

Thompson objected to the admission of this evidence, arguing that the State could not authenticate the wallet and shoes because it could not produce a witness to testify definitively that he or she removed each item from Thompson. Instead, the first person to acknowledge the receipt of each piece of evidence did not know precisely where the items came from other than from either Pierce or Thompson during booking. Thompson argued that this initial gap in chain of custody meant that the items were inadmissible. Ultimately, the court overruled Thompson's objections and the wallet and shoes were admitted. Those evidentiary rulings are the subject of this appeal.

III.

"Authentication or identification of evidence is required as a condition precedent to its admissibility." § 90.901, Fla. Stat. (2016). A litigant can satisfy this requirement with "evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. The threshold for authentication is "relatively low," and it "only requires a prima facie showing that the proffered evidence is authentic." Mullens v. State , 197 So.3d 16, 25 (Fla. 2016). And parties can rely on direct or circumstantial evidence to meet this low threshold, State v. Love , 691 So.2d 620, 621 (Fla. 5th DCA 1997), including evidence about an item's "appearance, content, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances," Gosciminski v. State , 132 So.3d 678, 700 (Fla. 2013). "Once a prima facie showing of authenticity is made, the evidence comes in, and the ultimate question of authenticity is for the jury." Id. (citing Charles W. Ehrhardt, Florida Evidence § 901.1, at 1092-93 (2013 ed.) ). On appeal, we review a trial court's conclusions about authentication only for an abuse of discretion. Mullens , 197 So.3d at 25.

Here, Thompson argues that the State failed to make a prima facie showing of authenticity because there was no testimony specifying which person initially took custody of the wallet or shoes. But to any extent Thompson's authenticity arguments rely on the State's inability to establish a precise chain of custody, that reliance is misplaced. The only time admissibility turns on the State's ability to demonstrate chain of custody is when the opposing party has demonstrated a probability that the item has been tampered with. See Armstrong v. State , 73 So.3d 155, 171 (Fla. 2011) (holding that once the moving party has demonstrated a probability of tampering, "the burden shifts to the nonmoving party to establish a proper chain of custody or submit other evidence that tampering did not occur"). And Thompson never presented any evidence of tampering. Indeed, Thompson's trial counsel admitted there was no evidence of tampering. Accordingly, the burden never shifted to the State.

To the extent Thompson argues the State did not present sufficient evidence for a prima facie showing of authenticity, we again disagree. The Bradford County Sheriff's Office evidence custodian testified that the wallet contained credit cards in Thompson's name, his Florida Driver's License, and his Social Security card. These contents suggest that the wallet was owned by Thompson. See Gosciminski , 132 So.3d at 700. As for the shoes, Agent Woodrow Beauchamp III testified that he removed the shoes from Thompson during booking but forgot to record that on the evidence receipt. (Another witness testified that a different agent removed the shoes, but that witness acknowledged he might have confused that other agent with Beauchamp.) There was also testimony that the shoes could not have been mixed up with Pierce's shoes because the men were placed in separate cells and Thompson's shoes did not have laces and Pierce's did. This testimony did enough to send the question of authenticity to the jury. See id. There was no abuse of discretion. Mullens , 197 So.3d at 25.

Finally, even if the court erred in admitting the wallet and shoes, that error was harmless beyond a reasonable doubt. There was substantial direct evidence of Thompson's guilt: Jeffery testified Thompson agreed to take part in the robbery and that she dropped both of them near the Couches' property the morning of the crime. The jacket recovered from Thompson's apartment was stained in Mr. Couch's blood and Mrs. Couch identified it as the jacket Rat's accomplice wore inside the camper. And Mr. Couch's blood and Thompson's DNA were found on the purple glove near Mrs. Couch's smoldering SUV. Considering the quality and quantity of the other evidence presented at trial, we are convinced that there is no reasonable possibility that any error related to the admission of the wallet and shoes contributed to the verdict. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

AFFIRMED .

Wolf, Osterhaus, and Winsor, JJ., concur.