text:
    Kevin PETTWAY, Jennifer Wolfe, Nancy Murrey-Settle, and Fred Pope, Petitioners, v. CITY OF JACKSONVILLE, a Municipal Corporation, and Saleebas-2216 Oak Street, LLC, Respondents.
    No. 1D17-2279
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Bryan S. Gowdy of Creed and Gowdy, P.A., Jacksonville, and Barry A. Bobek of Barry A. Bobek, P.A., Jacksonville, for Petitioners.
    Craig D. Feiser, Assistant General Counsel of the Office of General Counsel, Jacksonville, for Respondent City of Jacksonville; Paul M. Harden, Jacksonville, for Respondent Saleebas-2216 Oak Street, LLC.
   Per Curiam.

ON MOTION FOR REHEARING AND CLARIFICATION

"Rendition" of an order, in legal parlance, is the triggering final event that starts the jurisdictional stopwatch for seeking appellate relief. In this case, at issue is whether the City Council of the Consolidated City of Jacksonville has the authority to determine the finality of the City's process for ordinances arising from its formal quasi-judicial proceedings, which in this case is a rezoning matter.

Kevin Pettway and others residing in his Riverside neighborhood ("Pettway") opposed the rezoning of nearby property to allow for a new restaurant, to be known as "The Roost." The property owner, "Saleebas-2216 Oak Street LLC" ("Saleebas"), filed rezoning applications that were reviewed first by the Jacksonville Planning and Development Department, which thereafter issued a report with conditions that was sent to the Jacksonville Planning Commission for review. A lengthy public hearing was held, after which the Commission issued its recommendation of approval.

Pursuant to the City's municipal code, Pettway requested a formal quasi-judicial hearing in front of the Land Use and Zoning Committee of the Jacksonville City Council, resulting in another lengthy hearing and ultimately the Committee's recommendation to approve the application. The final step was for the full nineteen-member City Council to consider the Committee's recommendation and to approve an ordinance allowing the rezoning, which it ultimately did on May 24, 2016.

That did not end the City's legislative process for this quasi-judicial matter. The City's rules on the topic-entitled "Final Order"-say that the type of ordinance at issue, involving "Formal Quasi-Judicial Procedures," must be executed by the Council President and Council Secretary and thereafter sent by certified mail to the "applicant and affected parties." JACKSONVILLE , FLA ., PROCEDURES GOVERNING QUASI-JUDICIAL ACTIONS Ch. 6, Rule 6.310. According to Dr. Cheryl Brown, the City Council's Secretary, the ordinance was signed by the Council President and herself, after which it was provided to the Office of Legislative Services and made available for public review on May 25, 2016 (and posted online that day). The signed ordinance was then filed in the "Jacksonville ordinance book" by "Legislative Staff" on June 14, 2016. Finally, as City rules require, the "Legislative Staff mailed a certified copy of the enacted ordinance with a cover letter to all property owners within 350 feet" of the rezoned property on June 20, 2016.

Under City Rule 6.310, the "date of rendition of the order shall be the date of mailing" of the ordinance to the applicant and affected parties, thereby establishing the finality of the order on that date. For that reason, Pettway sought review of the ordinance by filing a petition for certiorari with the circuit court on July 20, 2016, the last day within the thirty-day jurisdictional window under Florida appellate rules. Fla. R. App. P. 9.100(c)(2). They were advised by the City Council's Secretary that June 20, 2016, was the date of rendition of the ordinance, and an attorney with the general counsel noted that, due to a delay in the certified mailings being sent, the timing of an appeal would be affected due to the City's rendition rule.

Saleebas moved to dismiss Pettway's petition, claiming it was untimely filed for two reasons, one of which related to a snafu in the circuit court clerk's office that resulted in Pettway's petition being docketed and date-stamped as filed initially on July 20, 2016, but later changed to July 25, 2016, due to the clerk rejecting the petition for lack of an appendix. Pettway's appendix was made a part of the petition that was filed, but the appellate rules require a separately filed appendix. Fla. R. App. P. 9.220(c). For this reason, Pettway's petition was put in a "Pending Queue" and not deemed filed until July 25, 2016, when the matter was straightened out. The clerk, however, had a ministerial duty to accept and file the petition when it was received on July 20, 2016, thereby making that date the correct one for purposes of calculating the time for Pettway to file his petition. See State v. Johnson , 139 So.3d 968, 969 (Fla. 1st DCA 2014) (holding that notice of appeal was timely filed electronically, despite clerk of court placing it in "e-filing portal queue" for correction by filing party). The trial court dismissed Pettway's petition on other grounds, deeming whether it was filed on July 20th or 25th as moot. But, as Pettway points out, the legally correct date of filing was July 20th, when his petition was received by the clerk's office. This matters because Pettway's petition is untimely if deemed filed on the 25th, but-as discussed below-would be timely under City Rule 6.310.

As to the date of the ordinance's rendition, the trial court turned to Florida Rule of Appellate Procedure 9.020(i), which states that an "order is rendered when a signed, written order is filed with the clerk of the lower tribunal" and concluded that "[i]n the case of a quasi-judicial proceeding, the filing of the ordinance at issue with a government clerk or the person '... who most closely resembles a clerk in functions performed ' determines the date of 'rendition.' " (quoting Presidents' Council of SD, Inc. v. Walton Cty. , 36 So.3d 764 (Fla. 1st DCA 2010) ). The trial court agreed with Saleebas that rendition of the ordinance occurred on May 25, 2016, because the ordinance was "filed" on that date with "the City's Office of Legislative Services and available for public review on the City's website." The trial court specifically rejected the applicability of City Rule 6.310.

Pettway urges-and we agree-that City Rule 6.310 should be given effect. The City-which sides with Pettway on this procedural point-says that the date upon which certified mail is sent has always been the determinative date of finality for its quasi-judicial proceedings involving required notice to affected parties, such as those potentially impacted by a change in zoning. But it makes little sense for an earlier date of rendition-such as May 25, 2016, when the ordinance was sent to Legislative Services and made available on the City's website-because the applicant and affected parties aren't given actual notice at that time. Starting the thirty-day clock at that point would be premature; affected property owners could easily lose their right to contest final orders about which they are not notified via the certified mail process. In fact, an oversight in this case resulted in a delay in the dispatch of the certified notices until June 20th, which was almost a month after the ordinance had been sent to Legislative Services, creating a likelihood that the thirty-day jurisdictional window could lapse before recipients were notified. The certified letters should have been sent out within ten days, but either way, the date of the certified mailing would control. The applicant and some affected parties may know or become aware of an ordinance at an earlier time, of course, but the date of the certified mailings provides a termination point as well as a degree of predictability and regularity to the process. The City, which is a consolidated governmental body combining county and municipal functions under one roof, has uniform procedures adopted by its legislative branch, the City Council, designed to ensure orderly practices and an endpoint to the Council's actions.

The remaining question is whether giving effect to the City's "Final Order" rule can be harmonized with the Florida appellate rules. It can. Rendition requires three things: an order that is signed , written , and filed with the "clerk of the lower tribunal." Fla. R. App. P. 9.020(i). Under the City's "Final Order" rule, an ordinance arising from a quasi-judicial hearing is reduced to writing and then signed by the City Council President and Secretary. All that remains for the ordinance to be "rendered" is that it be filed in some way with a designated person who performs a clerk-like function. As counsel for Saleebas acknowledged, if the City's rules required that an ordinance be "filed" with the division chief of the City's Parks and Recreation Department, that choice governs and must be honored, even if it makes more sense for some other City official to play that role.

In this regard, the City's rule is simply another way of saying that the date of certified mailing serves the purpose of a "filing" date and thereby sets finality and rendition on that date (an event that becomes part of the ordinance file). The purpose of the word "rendition" in City Rule 6.310 is the same as the word "filed" in the appellate rules: each serves to define the final step that produces finality of the order (here, an ordinance). A more artful way would have been for the City's rule to say that "filing, and thereby rendition, shall be deemed to occur on the date of mailing," thereby more closely paralleling the wording of rule 9.020(i). The City has chosen a somewhat atypical, but nonetheless acceptable, means of establishing when its final quasi-judicial orders are deemed final. See Kowch v. Bd. of Cty. Comm'rs , 467 So.2d 340, 341 (Fla. 5th DCA 1985) ("In the instant case we hold that the letter sent to the parties informing them of the Commissioners' decision constitutes a decision reduced to a writing as provided in Rule 9.020(g)."). Electronic service of orders to affected parties has become commonplace, and the City's certified mailings, though involving ground delivery, parallel that process.

Notably, the caselaw takes a pragmatic approach in deciding unanswered questions like the one presented. For example, courts have determined who most resembles the "clerk" for purposes of rule 9.020 under various circumstances. As this Court held in a county government case:

Although the Department clerk's job title did not expressly identify her as the clerk and she also had other duties, the record establishes that she was the person in charge of such filings and that being the records clerk was a major part of her job responsibilities.

Presidents' Council of SD, Inc. , 36 So.3d at 765. Reviewing courts seek a reasonable resolution, one grounded in the realities of the record presented in each case. In that regard, the trial court here concluded that the Office of Legislative Services is the "clerk" for the purpose of the appellate rules. But the record suggests that the only person who closely resembles a "clerk" for the City is the Council Secretary whose affidavit and letter to Pettway made clear that City Rule 6.310 governs finality, and that June 20, 2016 was the operative date when the certified letters were sent to the applicant and nearby property owners. Under the circumstances presented, the important municipal goals of City Rule 6.310-ensuring finality of its quasi-judicial ordinances and timely notice to affected persons-can coexist with Florida's appellate rules.

In conclusion, we hold that the ordinance at issue was rendered and became final on June 20, 2016, pursuant to the City's "Final Order" rule, which can be squared with the appellate rules, such that mandamus is proper. Griffin v. Sistuenck , 816 So.2d 600, 601 (Fla. 2002) (mandamus proper to reinstate case dismissed for lack of jurisdiction based on untimeliness). Because Pettway's petition was filed with the clerk of the circuit court within thirty days of the rendition of the ordinance, it was timely.

PETITION GRANTED ; ORDER QUASHED .

Makar, Osterhaus, and Winokur, JJ., concur.

      We deny rehearing but grant clarification, substituting this opinion for our original opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Doyle HEARD, Petitioner, v. DEPARTMENT OF CORRECTIONS and the Florida Commission on Offender Review, Respondents.
    No. 1D17-3759
    District Court of Appeal of Florida, First District.
    December 14, 2018 Rehearing Denied February 14, 2019
    Doyle Heard, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee; Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   Per Curiam.

In this certiorari proceeding, inmate Doyle Heard seeks review of the circuit court's denial of his petition for writ of habeas corpus in which he challenged (1) the cancellation of his overcrowding credits and (2) the calculation of the basic gain-time (BGT) he forfeited after his parole revocations. Like the circuit court, we find no merit in either claim. We write only to explain why the application of the BGT rule in the 1983 version of section 944.275, Florida Statutes, was not an ex post facto violation in this case.

Facts

In 1981, Heard was sentenced to consecutive prison terms of 15 years for strong-arm robbery and 50 years for kidnapping. The offenses were committed in 1980.

In 1987, Heard completed his sentence for strong-arm robbery and started serving his sentence for kidnapping. The Department of Corrections awarded Heard a lump sum of 6,000 days of BGT for this sentence based on the formula in the 1983 version of section 944.275, Florida Statutes.

In 1999, Heard was released on parole. After Heard's parole was revoked in 2001, the Department forfeited all 6,000 days of the BGT Heard had been awarded. However, the Department subsequently "re-audited" Heard's sentence and reduced the forfeiture to a prorated amount of BGT attributable to the period that Heard served in prison prior to his release on parole.

In 2011, Heard was again released on parole. After Heard's parole was revoked in 2014, the Department forfeited the prorated amount of BGT attributable to the time he served between his return to prison after his first parole violation and his second release on parole.

In 2016, Heard filed a petition for writ of habeas corpus challenging the Department's calculation of his sentence. Among other things, Heard argued that his sentence would have expired had the Department forfeited his BGT using the formula in the version of section 944.275 that was in effect in 1980 when he committed his offenses. The circuit court rejected this and all other claims raised in the habeas petition. Heard timely sought review of the circuit court's decision by filing a petition for writ of certiorari in this Court pursuant to Sheley v. Florida Parole Commission , 703 So.2d 1202 (Fla. 1st DCA 1997).

Analysis

At the time of Heard's offenses in 1980, BGT was awarded under the so-called "3-6-9 formula." This formula provided for a monthly award of BGT at a rate of 3 days per month for the first and second years of the defendant's sentence, 6 days per month for the third and fourth years, and 9 days per month afterwards. See § 944.275(1), Fla. Stat. (1979).

In 1983, section 944.275 was amended to provide for the lump sum award of BGT at a rate of 10 days for each month of the defendant's sentence ("the 10-day formula"). See § 944.275(4)(a), Fla. Stat. (1983) ; see also Fla. Admin. Code R. 33-603.402(3)(c) ("In order to establish an initial tentative release date, [BGT] awards are made in a lump sum upon entry into the [D]epartment's custody."). This new formula was retroactively applied to "all sentences imposed for offenses committed on or after July 1, 1978." § 944.275(6)(a), Fla. Stat. (1983).

Heard does not challenge the Department's use of the 10-day formula to calculate the award of his BGT. Instead, his challenge is limited to the use of that formula to calculate the amount of BGT forfeited after his parole revocations. Specifically, Heard argues that because the use of the 10-day formula results in the forfeiture of more BGT than would have been forfeited under the 3-6-9 formula, the retroactive application of the 10-day formula amounts to an ex post facto violation.

"Two elements must be present in order for a criminal or penal law to be ex post facto: (1) the law must be retrospective, that is, it must apply to events occurring before its enactment; and (2) the law must disadvantage the offender." Avera v. Barton , 632 So.2d 167, 168-69 (Fla. 1st DCA 1994) (citing Waldrup v. Dugger , 562 So.2d 687, 691 (Fla. 1990) ).

Here, Heard was not disadvantaged by the use of the 10-day formula to calculate the amount of BGT forfeited because the same formula was used to calculate the award of BGT and the Department only forfeited the amount of BGT attributable to the time served by Heard prior to his releases on parole. The fact that Heard forfeited more BGT (2,193 days) than he would have forfeited under the 3-6-9 formula (1,928 days) is not determinative because he was awarded more BGT (6,000 days) than he would have earned under the 3-6-9 formula (5,400 days). Avera and Burks v. McNeil , 984 So.2d 619 (Fla. 1st DCA 2008), are not contrary authority.

In Avera , the inmate was sentenced in 1979 to 30 years in prison. 632 So.2d at 168. In 1981, the inmate escaped and was recaptured the same day. Id. The Department retrospectively applied the 10-day formula to calculate the amount of BGT forfeited by the inmate. Id. We held that the Department's application of the 10-day formula to the inmate in that case was an ex post facto violation because the inmate would have forfeited a lesser amount of BGT under the 3-6-9 formula in effect "at the time of his escape and escape conviction." Id. at 169.

Section 944.28(1), Florida Statutes, which provides for the forfeiture of gain-time if the prisoner escapes or his parole is revoked, allows the Department to forfeit all gain-time earned prior to the escape or release on parole. The triggering event for the forfeiture in Avera was his escape in 1981, and at that time, the 10-day formula had not yet been enacted. Thus, it was an improper retrospective application of the law to calculate the forfeiture under the 10-day formula. By contrast, in this case, Heard's triggering events-the revocations of his parole-occurred long after the 10-day formula was in effect.

In Burks , the Department forfeited the entire lump sum of BGT awarded to the inmate under the 10-day formula. 984 So.2d at 620. We held this was error because, under the version of section 944.275 in effect at the time of the inmate's offense in 1981, BGT was awarded on a monthly basis. Id. Here, the Department did not forfeit the entire lump sum of BGT awarded to Heard under the 10-day formula. Instead, it only forfeited the portion of the award attributable to the months that he served prior to his releases to parole. This approach is consistent with Burks .

Conclusion

In sum, because Heard was not disadvantaged by the use of the 10-day formula to calculate the amount of BGT he forfeited after his parole violations, the circuit court correctly rejected his ex post facto claim. Accordingly, the petition for writ of certiorari is denied on the merits.

DENIED .

Wetherell, Rowe, and Winokur, JJ., concur.

      It is also noteworthy that Heard's tentative release date using the 10-day formula to award and forfeit BGT is almost a year earlier than it would be if the 3-6-9 formula was used to award and forfeit BGT.


author: SALARIO, Judge.

text:
    CERTIFIED WINDSHIELD, LLC, a/a/o French Lanham, Petitioner, v. GEICO GENERAL INSURANCE CO., Respondent.
    Case No. 2D18-1858
    District Court of Appeal of Florida, Second District.
    Opinion filed December 19, 2018. Rehearing Denied February 20, 2019
    Michael V. Laurato of Austin & Laurato, P.A., Tampa; Raymond T. Elligett, Jr. and Amy S. Farrior of Buell & Elligett, P.A., Tampa; and Anthony T. Prieto of Morgan & Morgan, P.A., Tampa, for Petitioner.
    Leah Ward Sears, John P. Marino, and Lindsey R. Trowell of Smith, Gambrell & Russell, LLP, Jacksonville, for Respondent.
   SALARIO, Judge.

This proceeding was initiated by the filing of a petition for writ of certiorari. Certified Windshield, LLC seeks review of the circuit court's order denying its motion for attorney's fees under section 627.428, Florida Statutes (2017), in a consolidated appeal of five county court cases reviewed by the circuit court acting in its appellate capacity. Normally, reviews of appellate circuit court opinions proceed under this court's second-tier certiorari jurisdiction. See Fla. R. App. P. 9.030(b)(2)(B). Here, however, we are not reviewing the circuit court's disposition of an appeal from an order of the county court. The fee motions filed with the circuit court were made in and originally decided by the circuit court. As the authorities discussed below show, our review of the circuit court's order disposing of those motions is by means other than second-tier certiorari.

The authorities addressing whether this kind of fee order should be reviewed by way of first-tier certiorari or, alternatively, under our appellate jurisdiction as a direct appeal, however, are conflicting. Compare Hallandale Chiropractic Ctr. v. United Auto. Ins. Co., 79 So.3d 868, 868 (Fla. 4th DCA 2012) (addressing the matter by way of first-tier certiorari), and Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., 99 So.3d 525, 525 n.1 (Fla. 3d DCA 2011) ("A petition for a writ of certiorari is the proper vehicle for review of the circuit court appellate division's denial of appellate attorney's fees."), with Massagee v. MGA Ins. Co., 128 So.3d 871, 871-72 (Fla. 5th DCA 2013) ("Because Massagee is asking this court to review only the circuit court's denial of his appellate attorney's fees motion, the circuit court's order is properly reviewed by way of direct appeal, not by collateral petition.... [T]he circuit court's order denying Massagee's request for appellate attorney's fees constituted an 'original decision' which had 'never before [been] subjected to judicial review.' " (second alteration in original) (citation omitted) (quoting Highwoods DLF EOLA, LLC v. Condo Developer, LLC, 51 So.3d 570, 573 n.1 (Fla. 5th DCA 2010) ) ). But cf. City of Miami Beach v. Deutzman, 180 So.3d 245, 245-46 (Fla. 3d DCA 2015) ("The order was the first ruling on the question of attorneys' fees. Properly viewed, our proceeding is not the second, but rather the first tier of appellate review."). The decision as to which form of jurisdiction is applicable can be outcome determinative because it dictates whether we review the circuit court's order under (from the perspective of the party seeking relief) the more demanding certiorari standard or the more forgiving standards applied under our appellate jurisdiction. Compare Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (reviewing attorney's fees order on direct appeal de novo with respect to statutory and contract interpretation questions and otherwise for abuse of discretion), with DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (requiring, among other things, a departure from the essential requirements of law to obtain certiorari relief).

In this case, however, the questions of what jurisdictional mechanism applies and, as a result, what standards apply are academic. We have some form of jurisdiction to consider the circuit court's order. And the trial court's order was correct because Certified Windshield did not prevail on appeal in the circuit court and is therefore not entitled to fees under section 627.428 as a matter of law. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 254 (Fla. 2006) ("[U]nder the plain language of section 627.428(1), an appellate court may not award attorney's fees to an insured unless the insured prevails on appeal."). No matter what standard is applied, then, Certified Windshield is not entitled to relief in this court. For purposes of disposing of the case, we treat the matter as a certiorari proceeding without addressing the jurisdictional issue, because that is how Certified Windshield filed the case in this court. Because the trial court was right on the merits, there was no departure from the essential requirements of law, and we deny the petition.

Denied.

KELLY, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    JENNIFER MILEY O/B/O J.A.M., Appellant, v. Jessica DUNN, BY AND THROUGH Vicki DUNN, Appellee.
    Case No. 2D17-4775
    District Court of Appeal of Florida, Second District.
    Opinion filed December 21, 2018
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Sara M. McKinley of McKinley Law Firm, P.A., Bartow, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Jennifer Miley, on behalf of her son J.A.M., appeals the trial court's order denying her motion to modify a final injunction for protection against sexual violence. The final injunction had been entered in 2007 in favor of J.A.M. and against respondent Jessica Dunn and prohibited Dunn, in pertinent part, from coming within 250 feet of the school that J.A.M. attended at that time, which is listed on the injunction. We agree with Miley's argument that the trial court abused its discretion in denying her request to update the injunction with J.A.M.'s current school and bus stop, and so we reverse the denial of her motion and remand for the trial court to enter an amended injunction reflecting the new school and bus stop.

Background

In 2007, the trial court entered a final injunction in favor of J.A.M. and against Dunn to protect J.A.M. from sexual violence. See § 784.046(2), Fla. Stat. (2007) (creating a cause of action for an injunction for protection from sexual violence); see also § 784.046(7)(b) (providing that "the court may grant such relief as the court deems proper, including ... relief as the court deems necessary for the protection of the petitioner, including injunctions or directives to law enforcement agencies, as provided in this section"). In pertinent part, the injunction prohibits Dunn from going within 250 feet of the "place where Petitioner attends school," and it lists the address of the preschool that J.A.M. had been attending in 2007. The trial court also ordered that the injunction would remain in full force and effect until further order of the court. See § 784.046(7)(c), Fla. Fam. L. R. P. 12.610(c)(4)(B).

In 2017, Miley moved for the court to modify the injunction pursuant to rule 12.610(c)(6) ("The petitioner or respondent may move the court to modify or vacate an injunction at any time."). See also § 784.046(10), Fla. Stat. (2017) (same); § 784.046(7)(c) ("Either party may move at any time to modify or dissolve the injunction. Such relief may be granted in addition to other civil or criminal remedies."). Miley asserted that J.A.M. was now attending high school at a K-12 school and that she subsequently had learned that Dunn's son was also attending that same K-12 school. Thus, Miley requested that the court update the final injunction to remove the address of J.A.M.'s former preschool and replace it with the address of his current K-12 school and the address of the bus stop where he catches the school bus.

Such relief would preclude Dunn from setting foot on the campus where her own son now attends kindergarten. Instead of formally responding to Miley's motion, however, Dunn moved separately to dissolve the injunction, asserting that it was no longer necessary and that it was impractical to prevent her from attending school functions and from transporting her son to and from school. Although Dunn alternatively moved to modify the injunction, she did not propose any specific modification.

The trial court heard both Miley's and Dunn's motions at a single hearing. In pertinent part, Miley testified that J.A.M. now attends high school at a K-12 school and rides the bus to school. Dunn testified that she recently enrolled her son in kindergarten at the same K-12 school but that she did not let him ride the bus to school because he was too young. Dunn acknowledged that she subsequently learned that J.A.M. attended school there. The court did not rule at the hearing, but in a written order, it stated that it was denying both Miley's "motion to modify" and Dunn's "motion to dismiss."

Dunn moved for clarification, asserting that she was unsure whether the trial court had denied her motion in toto or only to the extent that she had sought dissolution of the injunction. Dunn proposed that the court enter an order clarifying that she is permitted to be at the school "when needed to perform tasks associated with her child attending school." Miley timely filed a notice of appeal of the court's order denying her motion to modify the injunction, and the court never ruled on Dunn's motion for clarification. Dunn neither cross-appealed nor separately appealed the denial of her motion. Accordingly, we review the trial court's order only to the extent that it denied Miley's motion.

Discussion

In entering an injunction for protection against sexual violence, a court has wide discretion in setting forth terms necessary to protect the victim in light of the circumstances justifying the injunction. See § 784.046(7) ; Simonik v. Patterson, 752 So.2d 692, 693 (Fla. 3d DCA 2000) ("The terms of a permanent injunction must be confined to what is required by the circumstances justifying the injunction."). When seeking modification of an injunction for protection against sexual violence, therefore, the movant has the burden of establishing a change in circumstances such that equity requires the modification to ensure that the victim remains protected as was contemplated when the injunction was originally entered. See Reyes v. Reyes, 104 So.3d 1206, 1207 (Fla. 5th DCA 2012) ("[F]or a movant to be entitled to obtain relief on a motion to modify or dissolve a domestic violence injunction, the movant must prove a change in circumstances.");

Elias v. Steele, 940 So.2d 495, 497 (Fla. 3d DCA 2006) ("An individual seeking to modify or dissolve an injunction must establish that the circumstances justifying the injunction have changed so that the terms of the injunction are no longer equitable."). The trial court has broad discretion to modify or dissolve an injunction when changes in circumstances make it equitable to do so, see Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) ("[P]ermanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction 'whenever changed circumstances make it equitable to do so.' " (quoting Hale v. Miracle Enters. Corp., 517 So.2d 102, 103 (Fla. 3d DCA 1987) ) ), and so we review for an abuse of that discretion the court's denial of Miley's motion, see Simonik, 752 So.2d at 692-93.

With respect to the limited matter before us here, Miley did not seek a substantive modification of the original injunction but merely to update the original injunction with what Dunn concedes is J.A.M.'s current school and the bus stop location that he uses to get to school. Updating the address of J.A.M.'s school and bus stop in the injunction would thus be completely consistent with the trial court's exercise of its discretion in 2007 to fashion appropriate means to protect J.A.M. from sexual violence. Moreover, not only would granting this modification not change the relief that the court originally deemed necessary to protect J.A.M. when it entered the 2007 injunction, but it would comport with the longstanding notion that injunctions prohibiting conduct should be clearly defined because "[t]he one against whom it is directed should not be left in doubt about what he is to do." Pizio v. Babcock, 76 So.2d 654, 655 (Fla. 1954).

Conclusion

We therefore hold that the trial court abused its discretion in denying Miley's request to update the injunction with J.A.M.'s new school and bus stop information, reverse the trial court's order denying Miley's motion, and remand for entry of an amended final injunction reflecting that update. Our holding, however, is without prejudice to the trial court's resolution of the separate proceedings on Dunn's motion.

Reversed; remanded with directions.

NORTHCUTT and CRENSHAW, JJ., Concur.

      Unlike injunctions in civil cases that are governed by Florida Rule of Civil Procedure 1.610, the Florida Family Law Rules of Procedure apply to injunctions for protection from sexual violence. See Fla. Fam. L. R. P. 12.610(a).

      In her motion, Miley also requested that the court modify the injunction to include J.A.M.'s church and the pool where his swim team practices, but she did not pursue that request at the hearing and has apparently abandoned it on appeal. Accordingly, we do not address it.

      Notwithstanding Dunn's outstanding motion for clarification with respect to the denial of her motion to dissolve the injunction, we have jurisdiction to review the trial court's denial of Miley's motion to modify the injunction, which is a separate proceeding despite the trial court's consideration of the motions at the same hearing. See S. L. T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974) ("[G]enerally, to be appealable as final, an order or decree must dispose of all the issues or causes in the case, but this general rule is relaxed where the judgment, order or decree adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court."); cf. Fla. R. App. P. 9.020(i)(1) (providing that if there is a timely and authorized motion tolling rendition directed towards a final order, then that "final order shall not be deemed rendered as to any existing party until the filing of a signed, written order disposing of the last of such motions"); compare Fla. Fam. L. R. P. 12.610(c)(6) (providing that either the petitioner or the respondent may at any time file a motion to modify or vacate an injunction entered pursuant to the Florida Family Law Rules of Procedure), with Fla. Fam. L. R. P. 12.100(a), .110(h), .170(a) (requiring that for proceedings that may not be initiated by motion under the Florida Family Law Rules of Procedure, a party seeking postjudgment relief must file a supplemental petition and an opposing party must raise any postjudgment claims arising out of the same transaction or occurrence via a counter-supplemental petition). Although most of the parties' arguments on appeal focus on whether Dunn should be allowed to set foot on the campus of the K-12 school, that question is not currently before this court; it is in Dunn's separate proceeding-which is not on appeal but still pending in the trial court-that the determination must be made whether to dissolve or substantively modify the injunction as Dunn asks.


author: PER CURIAM.

text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. Jeanette BIGNEY, Jason Thagard and the Travelers Home and Marine Insurance Company, Respondents.
    Case No. 5D18-2124
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Stuart J. Freeman, of Freeman Goldis & Cash, P.A., St. Petersburg, for Petitioner.
    Joseph R. Bryant, of Morgan & Morgan, Tampa, for Respondent, Jeanette Bigney.
    Jeffrey E. Bigman and Brooke M. Gaffney, of Smith, Stout, Bigman & Brock, P.A., Daytona Beach, for Respondent, Jason Thagard.
    Eugene P. Murphy, of Robinson & Cole LLP, Miami, for Respondent, The Travelers Home and Marine Insurance Company.
   PER CURIAM.

Progressive Select Insurance Company (Progressive) seeks certiorari review of the trial court's order denying a motion to dismiss based on nonjoinder. Finding that the trial court departed from the essential requirements of law, we grant the petition.

"An appellate court may grant a petition for certiorari only where the petitioner demonstrates (1) a departure from the essential requirements of the law (2) resulting in material injury for the remainder of the case (3) that cannot be remedied on post-judgment appeal." Cohen v. D.R. Horton, Inc., 121 So.3d 1121, 1124 (Fla. 5th DCA 2013) (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) ). A material injury for which there is no adequate remedy on plenary appeal is otherwise termed irreparable harm and must be considered first because it is jurisdictional. See generally Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 351 (Fla. 2012).

In 2014, Respondent, Jeanette Bigney, was injured when she was struck by a motor vehicle driven by Jason Thagard. Thereafter, Bigney filed suit against Thagard, Travelers Home and Marine Insurance Company (Travelers), and Thagard's insurer, Progressive. The complaint alleged six counts: (1) negligence against Thagard; (2) an underinsured motorist claim against Travelers; (3) civil conspiracy between Progressive and Travelers; (4) tortious interference with contract against Travelers; (5) breach of fiduciary duty to Bigney against Travelers; and (6) aiding and abetting Travelers in the breach of its fiduciary duty to Bigney against Progressive.

Relevant to this appeal are counts three and six. In count three, Bigney alleged that Progressive and Travelers "agreed between and amongst themselves, as a corporate scheme, plan and design, by and through their employees and agents, engaged in the unlawful practice of subrogating against their insureds settlement proceeds from their settlement with the at fault parties." In count six, she alleged that Travelers breached its duty of good faith and fair dealing by secretly seeking from Progressive recoupment of Med Pay benefits it provided under contract to assist in paying Bigney's medical bills. Bigney further alleged that Progressive substantially assisted and encouraged Travelers to breach Travelers' fiduciary duty to Bigney by knowingly paying Travelers $5000 owed to Bigney. Because Bigney was a stranger to the Progressive policy and because she had not obtained a verdict against Thagard, Progressive moved to dismiss both counts under the nonjoinder statute. See § 627.4136, Fla. Stat. (2017). The trial court denied the motion finding the counts were independent from the insurance contract.

Section 627.4136(1), provides:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

Stated differently, "[u]nder the nonjoinder statute, an injured third party may not file a direct action against a liability insurer for a cause of action covered by a liability insurance policy without first satisfying either one of two conditions precedent: (1) obtaining a settlement against the insured or (2) obtaining a verdict against the insured." Hazen v. Allstate Ins. Co., 952 So.2d 531, 534 (Fla. 2d DCA 2007). However, the nonjoinder statute does not bar a direct action against an insurer by a third party on an obligation that is independent of the insurance contract. Id. at 538 (citing Cresci v. The Yacht, "Billfisher," Official No.: 517-614, 874 F.2d 1550, 1551 (11th Cir. 1989) ).

It is undisputed that Bigney had not obtained a settlement or verdict against Thagard prior to filing suit against Progressive. Thus, the question we must answer is whether the counts of civil conspiracy and aiding and abetting the breach of fiduciary duties are independent from the insurance contract. Inasmuch as both counts are explicitly based on "fiduciary duties," "legal obligations," "Med Pay benefits," and "liability limits" established in the insurance contract, we conclude they are not independent. Indeed, the insurance contract is the only reason Progressive has to deal with Bigney. See Hazen, 952 So.2d at 539 (explaining third party could not allege "legal ground upon which insurer could be deemed to have acted independently" because insurance contract was only reason insurer had to deal with third party (citing Howton v. State Farm Mut. Auto. Ins. Co., 507 So.2d 448 (Ala. 1987) ) ); McWhirter v. Fire Ins. Exch., Inc., 878 P.2d 1056, 1059 (Okla. 1994) ).

Because counts three and six are not independent of the insurance contract, they are premature until Bigney obtains a judgment or settlement against Thagard. Consequently, forcing Progressive to litigate those counts before they are ripe will result in irreparable harm.

PETITION GRANTED.

BERGER, WALLIS and LAMBERT, JJ., concur.


author: Kelsey, J. Makar, J., dissenting.

text:
    William LEE, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D15-5339 1D15-5340 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied February 26, 2019
    Susanne K. Sichta, Rick A. Sichta, and Joseph Hamrick of The Sichta Firm, LLC, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Kelsey, J.

We affirm William Lee's convictions and sentences for two counts of attempted first-degree murder, one count of shooting or throwing deadly missiles, and tampering with evidence. We write only to address the unpreserved argument that the trial judge departed from the role of a neutral arbiter and thereby vitiated the fairness of the trial.

Judges' Involvement At Trial

It has long been the law that "Every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge." State ex rel. Mickle v. Rowe , 100 Fla. 1382, 131 So. 331, 332 (1930) (holding judge should have granted motion to disqualify him in a case involving a bank in which he had deposited 5 or 6 dollars before the bank closed). In the specific context of conducting court proceedings, judges have the statutory obligation to control the admission of evidence. § 90.104(2), Fla. Stat. (2015) (requiring judges to "conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means."). A judge may question witnesses to clarify issues, as long as the questions do not demonstrate a departure from the judge's neutral position. Williams v. State , 143 So.2d 484, 488 (Fla. 1962) ; see § 90.106, Fla. Stat. (2015) ("A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.").

Judges are warned to "be cautious in cutting off counsel's questions and interjecting [their] own questions to a witness." Grant v. State , 764 So.2d 804, 806 (Fla. 2d DCA 2000). A judge should not only be impartial, but should "leave the impression of impartiality on all those who attend court." Sparks v. State , 740 So.2d 33, 35-36 (Fla. 1st DCA 1999). A judge who assumes the role of prosecutor deprives the defendant of a fair and impartial tribunal, which, as a deprivation of due process, constitutes fundamental error. Cagle v. State , 821 So.2d 443, 444 (Fla. 2d DCA 2002).

However, "it is clear that not every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error." Mathew v. State , 837 So.2d 1167, 1170 (Fla. 4th DCA 2003) ; see also Jones v. State , 385 So.2d 132, 134 (Fla. 4th DCA 1980) ("Initially, we point out there are occasions where there is no error in rebuking defense counsel in the presence of the jury.").

Facts Of This Case

The State theorized that this shooting involved a love triangle gone awry. Lee shot into an SUV driven by another man, and in which rode Lee's own sometime girlfriend. During the trial, the judge made several comments about defense counsel's questions and the prosecutor's failure to object to them. The judge also asked several questions of one of the State's witnesses, a detective, when the witness remained confused about defense counsel's questions despite several attempts at reframing them.

First, defense counsel asked the girlfriend if the driver was upset that she preferred to be with Lee because Lee could better provide for her. The judge called a sidebar and told defense counsel that even though the State was not objecting, he was not going to allow counsel to continue asking the witness what was in the driver's mind.

Next, defense counsel asked the driver if he told the girlfriend the two of them were done because she had at one point chosen Lee, and the court called another sidebar. The judge told the prosecutor he was sitting like a "bump on a log" while defense counsel was asking irrelevant questions about a relationship between the two victims. The judge told defense counsel that she had elicited "a gracious plenty" about the victims' relationship, so she could ask a couple more questions, then move on.

Defense counsel also asked the driver several questions about his driving the SUV away from the shooting that night and totaling it two days later. The State objected when defense counsel then asked the driver to confirm that he did not make an insurance claim after he totaled the vehicle. This time the judge called a sidebar and more sternly chastised defense counsel for asking "completely immaterial" questions. He also shamed the State for "sitting on your ass yet again" and letting defense counsel do whatever she wanted. At the conclusion of the sidebar, defense counsel moved on to asking the driver about the shooting itself.

Later, defense counsel was questioning the detective about a surveillance video he copied from the apartment complex's surveillance system. Specifically, counsel questioned the detective about when he realized the copy was not timestamped, but he was confused by the questions, so the State objected to the form of the question. After defense counsel made a few attempts to clarify the questions without success, the judge "chime[d] in" to ask some questions of his own. He had the witness clarify the timeline of when he discovered and then copied the footage. Finally, he asked the detective when he realized the copy did not have a running time stamp on it.

Analysis

Lee argues that the judge's actions constituted fundamental error because they gave the impression that the judge was not acting as an impartial arbiter. See Sparks , 740 So.2d at 35-36. We disagree. Our review of the record leads us to conclude that the trial judge did not violate the governing legal principles. Rather, he assisted both sides in clarifying issues and excluding inadmissible evidence. Further, and significantly, Lee has failed to demonstrate fundamental error.

These facts are unlike those in other cases holding that trial courts acted improperly. In Cagle , the court reversed a revocation order where the trial court essentially took over the prosecutor's job of calling and questioning witnesses. 821 So.2d at 444 ; see also Lang v. State , 228 So.3d 153, 155 (Fla. 4th DCA 2017) (reversing a revocation order where the judge gathered his own evidence and used it to make crucial credibility determinations). In Evans v. State , 831 So.2d 808, 811 (Fla. 4th DCA 2002), the court reversed a defendant's conviction where the trial judge suggested to the State that it should inquire into the immigration status of a witness after that witness declared she was a law-abiding citizen. Similarly, in Lee v. State , 789 So.2d 1105, 1107 (Fla. 4th DCA 2001), the court reversed a conviction where the judge prompted the State to have the witness identify a scar on the defendant's arm for the jury. Lastly, in Sparks , this Court reversed a conviction where the judge pointed the prosecutor to evidence he could use to question the credibility of the defendant after the prosecutor had concluded his questioning of the defendant. 740 So.2d at 37. We held that the trial judge fundamentally erred when he assumed the role of prosecutor. Id. at 36-37.

Here, the judge demonstrated growing frustration with defense counsel's questioning of witnesses, and was equally frustrated with the prosecutor's failure to object to inadmissible evidence. However, unlike Cagle , Evans , Lee , Lang , and Sparks , the judge here did not take over prosecuting the State's case, nor did he prompt the prosecutor to enter evidence or cross-examine a witness with certain questions. He instead chastised both attorneys for allowing the jury to hear inadmissible evidence. The judge had a duty to keep the jury from hearing this inadmissible evidence, and his actions were directed at carrying out that duty. Carrying out that judicial duty inherently favors neither party. The fact that Lee's counsel happened to be the lawyer repeatedly attempting to elicit irrelevant testimony from witnesses does not make the judge's actions unfair to Lee.

Even if we interpret the judge's comments as favoring the prosecution, his actions do not rise to the level of fundamental error. See Grant , 764 So.2d at 805-06. In Grant , the trial judge became upset with defense counsel's question of a witness and butted in to ask the witness questions. Id. The judge also curtailed the defense's examination of the witness and questioned the relevancy of some of the testimony defense counsel elicited from that witness. Id. at 806. The court distinguished the case from Sparks , saying that while trial judges should "be cautious in cutting off counsel's questions and interjecting [their] own questions to a witness," the judge's actions did not constitute fundamental error. Id. at 805-06. The specially concurring judge in Grant aptly summarized the principles involved and reaffirmed the propriety of judicial involvement as needed to "preclude the admission of evidence in order to curb litigation abuses; to reasonably manage and control the conduct of the litigation and its participants; to control the mode and interrogation of witnesses; and, to remedy different forms of litigation abuse." Id. at 806-07 (Salcines, J., specially concurring). Consistent with performing these duties, a trial judge need not be "an iceberg only to be heard at calving." Id. Where, as in this case, the judge never assumed the role of prosecutor, and performed appropriate management and gate-keeping functions, almost entirely at sidebar, his actions do not constitute fundamental error.

Similarly in Mathew , the trial judge repeatedly chastised defense counsel in front of the jury. 837 So.2d at 1169. He said, in front of the jury, that he believed defense counsel's actions were improper, and refused to discuss the issues at sidebar. Id. He said the trial was "starting to sound like Jerry Springer." Id. The court held that, although the comments at issue were improper, they did not rise to the level of fundamental error. The Mathew court contrasted its facts with those in another case, Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980). In Jones, the trial court, in the presence of the jury, scolded the defense attorney for arguing with his own witness. Id. at 133. The judge then said, "Just a minute. Don't interrupt me. The next time you do that it's going to cost you. You understand? ... Get your foot off the Bench. Stand up there like you know what you're doing." Id. The judge then interrupted defense counsel's question to state that he thought counsel was being misleading. Id. It was important to the Jones court that the inappropriate attacks on counsel were made in open court. Id. at 133-34. In contrast here, the judge's attempts to curtail questioning about irrelevant matters were proper and were done at sidebar where, although the jury could see that a sidebar was occurring, the substance of the discussion was not aired in open court. Both the judicial function being performed, and the manner in which it was carried out, differed in this case. This case falls far short of the facts in Jones , and aligns with Mathew and other cases involving permissible judicial involvement not amounting to fundamental error. Here, the judge stepped in to exclude inadmissible evidence and to facilitate clarity for a witness who was clearly confused by the way questions were phrased. We find no fundamental error.

Conclusion

In sum, the judge did not assume the role of prosecutor, and his comments were directed at fulfilling his duty as a neutral arbiter to prevent inadmissible evidence from being presented to the jury. For these reasons, the judge's actions did not vitiate the fairness of Lee's trial. We note, however, that trial judges who become involved in directing lawyers and questioning witnesses run the risk of having their actions unnecessarily become the focus of the appeal. We reject Lee's other arguments without comment and affirm his judgment and sentence.

Wetherell, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

During a timeout in the Big Game, a player coming off the field was berated for performing poorly, scolded for being "a bump on a log." Another timeout was called and the player was rebuked for "sitting on your ass yet again." The rant continued: "I don't know what you guys are doing over there. I'm not sure you need to be here, just let [the other team] do whatever [it] wants." A harangue like this from an irate coach is unremarkable; after all, his job is to win the game. What would be startling is if the haranguer was the game's referee , the person on the field whose job is to ensure a fair and impartial contest for the players and onlookers alike.

Yet that is what happened in the trial of William Lee. As defense counsel questioned a prosecution witness, the trial judge unilaterally initiated a series of increasingly antagonistic sidebars, punctuated by the quotes above, during which he criticized defense counsel about what he believed the theory of the case was and how her evidence didn't make sense to him ("Somebody clue me in. I'm obviously missing it."). Without a State objection, the trial judge called sidebars, lectured defense counsel, and restricted defense presentations, chiding the prosecutor for his lack of vigor ("shame on the State for sitting on your ass yet again") and failure to protest ("I've let umpteen things go by because nobody is [objecting]"). In effect, the judge performed real-time CLE timeouts for the prosecution's benefit during a live criminal trial. Chastine v. Broome , 629 So.2d 293, 295 (Fla. 4th DCA 1993) ("Obviously, the trial judge serves as the neutral arbiter in the proceedings and must not enter the fray by giving 'tips' to either side.").

The first sidebar began with the judge saying, "[m]aybe the State is not going to object" before he explained and ruled that he was "not going to allow" the defense's line of questioning. The sidebars continued, each prompted by the trial judge's increasing displeasure with the defense's theory and evidence, openly reflecting his discontent with what he perceived as a slow-witted prosecutor who wasn't objecting enough. At one point, the trial judge-again unilaterally and without a State objection-told defense counsel to stop her line of questioning and threatened unspecified sanctions if she did not ("If it happens again, we're going to have a different conversation."). The sidebars played out in front of the jurors, who did not hear the discussions, but could reasonably infer the judge's displeasure. See Sparks v. State , 740 So.2d 33, 37 (Fla. 1st DCA, 1999) (jury witnessed sidebar and could reasonably infer that subsequent questioning was based on new information obtained from judge).

A lack of neutrality arose in other respects. For instance, the trial judge interrupted defense counsel's cross-examination of an important witness, actively questioning him (eighteen questions and almost three pages of the trial transcript), and elicited testimony that was favorable to the prosecution (despite the prosecution's failure to do so on direct examination), before congratulating himself in front of the jury (Judge: "Did that help?" Jurors: "Yes. Thank You." Judge: "Sometimes I miss being a lawyer, you know. But, anyway, glad I could help, because it helped me too."). See Seago v. State , 23 So.3d 1269 (Fla. 2d DCA 2010) (Trial judge's sua sponte inquiry as to whether State's forgetful witness had been deposed violated judicial duty of neutrality resulting in prejudicial error.); see generally Williams v. State , 143 So.2d 484, 488 (Fla. 1962) (Trial judge "may ask questions to clarify the issues but he should not lean to the prosection [sic] or defense lest it appear that his neutrality is departing from center.").

The trial judge also referred to the "expert fella" for the prosecution who had procured a surveillance videotape (which was the focus of the cross-examination), thereby placing the court's imprimatur on a non-expert and a key piece of the State's evidence that the defense sought to rebut as to its accuracy and reliability. Johnson v. State , 114 So.3d 1012, 1016-17 (Fla. 5th DCA 2012) ("While a judge may take the initiative to clear up uncertainties in the issues of a case, the law is clear, especially in a criminal prosecution, that the trial court should take great care not to intimate to the jury the court's opinion as to the weight, character, or credibility of any evidence adduced."); § 90.106, Fla. Stat. ("A judge may not sum up the evidence or comment to the jury upon the weight of evidence [or] the credibility of witnesses ....").

Lee's defense counsel did not object to the trial court's behavior during the proceedings, but impartiality of a trial judge constitutes fundamental error that can be raised for the first time on appeal, which Lee has done. Sparks , 740 So.2d at 35. Fundamental error arises in the rare cases where "the interests of justice present a compelling demand for its application," such as where a "trial judge's errors, taken cumulatively," render a trial "fundamentally unfair as to amount to a denial of due process." Grigg v. State , 230 So.3d 943, 947 (Fla. 1st DCA 2017) (remanding for new trial due to trial judge's improper and prejudicial colloquy with jurors during voir dire).

On this record, Lee has shown fundamental error under our precedent, particularly Sparks . In that case, this Court held that a single sidebar at which the trial judge referred to an affidavit that the prosecution then used to impeach a witness constituted fundamental error necessitating a new trial. 740 So.2d at 37. This was so even though the jury could see-but wasn't privy to-the sidebar discussion; and the trial judge merely pointed out the affidavit, making "[n]o other representations, suggestions, inquiry, or statements" on the matter. Id. at 34. It was enough that the "jury could have reasonably inferred that the prosecutor's new information used during the resumed questioning of the defendant had been obtained from the judge." Id. at 37. Sparks and related cases establish that judicial neutrality is required whether the trial judge is in the jury's presence or outside the jury's earshot at sidebar: a "duty of neutrality is especially important when the trial judge is in the presence of a jury," but it is equally true that "a trial court can commit error-even fundamental error-outside the presence of the jury by taking actions that obviously favor one side or the other." J.L.D. v. State , 4 So.3d 24, 26 (Fla. 2d DCA 2009) ; see Sparks , 740 So.2d at 37 (jury witnessed prosecutor's resumption of questioning after sidebar where judge pointed out existence of affidavit).

Sparks involved a single judicial act at sidebar outside the jury's presence. In contrast, both strains of judicial prejudice-i.e., conduct in and outside the jury's presence-are present here, the confluence of which crossed the line into fundamental error that negates the "requirement of judicial impartiality," which "is at the core of our system of criminal justice." McFadden v. State , 732 So.2d 1180, 1184 (Fla. 4th DCA 1999) ; see Smith v. State , 205 So.3d 820, 823 (Fla. 2d DCA 2016) (Trial court's departure from its role of neutral arbiter amounted to fundamental error.); Johnson , 114 So.3d at 1017-18 (Trial court's "conduct vitiated the validity of the proceedings," amounting to fundamental error "that undermines the confidence in the trial outcome and goes to the very foundation of a case" or denies due process.); Sparks , 740 So.2d at 37 (Trial judge "assumed the role of prosecutor ... [which] constitutes error" that was not harmless.).

Rather than an impartial referee as to both teams, the trial judge assisted the prosecution, undercut the defense, and became an active questioner during the trial solely to Lee's detriment; the saga played out in sidebars and before the jury itself. Unlike Sparks and cases where a trial judge makes a single interruption of cross-examination without a party's objection, see Grant v. State , 764 So.2d 804 (Fla. 2d DCA 2000), this case involves multiple interruptions plus active questioning and commentary by the trial judge. The judicial duty is not to be an active participant in this manner or to this degree; even the State concedes that the "trial judge's involvement in the case was not best practice."

The trial judge may have had benign motives, but the appearance of neutrality is important, such that even unintentional conduct can compromise a trial. See Lyles v. State , 742 So.2d 842, 843 (Fla. 2d DCA 1999) ("Whether intentional or not, the trial judge gave the appearance of partiality by taking sua sponte actions which benefitted the State."). And it is principally the trial lawyers' duty-not the judge's-to keep a jury from hearing inadmissible evidence. J.B. v. State , 705 So.2d 1376, 1378 (Fla. 1998) ("In the absence of a proper objection, a trial judge does not have an obligation to prohibit inadmissible evidence from being considered by the fact finder."); CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 104.1 (2018) ("Under our adversary system, the burden is on counsel to make a specific objection prior to a witness answering a question.").

It has been long-recognized that the "single most dominant factor in the administration of a trial is the conduct of the judge; the manner in which he exercises control over such proceedings is reflected through his remarks and comments." Hunter v. State , 314 So.2d 174, 174 (Fla. 4th DCA 1975). Trial judges face persistent challenges in courtroom management, "the difficulty of which is too often taken for granted." Id. In administering justice, a "trial judge must be equal to the task; and should endeavor to avoid the type of comment or remark that might result in inhibiting counsel from giving full representation to his client or that might result in bringing counsel into disfavor before the jury at the expense of the client." Id. at 175. Here, the sidebars, judicial examination, and commentary might not individually tip the scales, but their collective and cumulative effects "require relief because [Lee's] trial was rendered 'fundamentally unfair as to amount to a denial of due process.' " Grigg , 230 So.3d at 947 (citations omitted); see also Love v. State , 569 So.2d 807, 810 (Fla. 1st DCA 1990) ("A judge must not only be impartial, he must leave the impression of impartiality upon all those who attend court.").

      Our Court should neither rely on nor adopt Mathew v. State , 837 So.2d 1167, 1169 (Fla. 4th DCA 2003), which found no fundamental error on the facts of that case despite the trial judge: (a) "repeatedly, and without objection, comment[ing] that he believed defense counsel's actions were improper," (b) "without objection, interrupt[ing] defense counsel's closing argument to inform defense counsel that the court believed defense's argument was 'inappropriate,' " (c) "attempt[ing] to tell the prosecutor, in detail, what questions to ask" to satisfy a hearsay exception, (d) "refus[ing] to allow defense counsel to have a side bar as to objections," and (e) "ma[king] a reference in front of the jury that the trial was 'starting to sound like Jerry Springer.' " Surely this degree of departure from neutrality ought not to be the standard in our District.

      The majority in Grant explicitly rejected the special concurrence of Judge Salcines in that case, concluding that the trial court's conduct in interrupting cross-examination was "clearly improper." 764 So.2d at 806 ("While the concurring opinion concludes that the trial judge prevented the introduction of irrelevant evidence and curtailed the introduction of repetitious and confusing evidence, our review of the record does not permit us to join in that assessment of the trial judge's activity.").


author: B.L. Thomas, C.J.

text:
    Nora LAFRENIERE, Vice President and General Counsel of Otis Elevator Company, Appellant, v. Catherine CRAIG-MYERS, Individually and as Personal Representative of the Estate of Robert Myers, Appellee.
    No. 1D18-1918
    District Court of Appeal of Florida, First District.
    December 28, 2018 Rehearing Denied February 27, 2019
    Kenneth B. Bell and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellant.
    Philip J. Padovano of Brannock & Humphries, Tallahassee, and Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L. Matthew of Sidney L. Matthew, P.A., Tallahassee, for Appellee.
   B.L. Thomas, C.J.

The trial court's non-final order denied Appellant's motion to dismiss the amended complaint. Appellant argues that the corporate shield doctrine bars the trial court from exercising personal jurisdiction over a nonresident corporate officer acting in a corporate capacity, and that the amended complaint fails to allege a basis for personal jurisdiction under Florida's long-arm statute sufficient to pierce that corporate shield. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). We hold that the trial court erred in denying Appellant's motion to dismiss, because Appellant was acting in a corporate capacity at all relevant times, and no valid exception to the corporate shield doctrine applies in this case.

Robert Myers, an employee of Otis Elevator Company, was tragically killed while conducting an elevator inspection and repair. Separate investigations were conducted by the Tallahassee Police Department and the Occupational Safety and Health Administration ("OSHA"). OSHA issued four citations to Otis Elevator Company for regulatory violations classified as "serious."

Appellee brought a wrongful death action against Otis Elevator Company and Appellant, alleging that jurisdiction was invoked pursuant to section 768.16, Florida Statutes, "the Florida Wrongful Death Act." Count II of the amended complaint asserted a "Cause of Action for Wrongful Death Damages Against [Appellant] Arising From Criminal Acts Exception to Worker's Compensation Employer/Manager Immunity Provided in Section 440.11(1)(b)2, Florida Statutes." Appellee's amended complaint alleged that the Occupational Health and Safety Act of 1970 requires elevator owners to have their technicians disable elevators using "lockout" or "tagout" procedures before commencing repairs, but that Otis Elevator Company has a policy of requiring its technicians to enter elevator shafts for up to 15 minutes without disabling or tagging out the elevators. The amended complaint described prior instances where OSHA issued citations to Otis Elevator Company for "serious" violations of its elevator regulations.

The amended complaint further alleged that "in the course and scope of her employment as General Counsel and as corporate officer" of Otis Elevator Company, Appellant closely managed, directed, supervised, monitored and controlled in-house and retained counsel, including the following alleged actions taken by legal counsel at Appellant's express direction:

a. actions purposefully taken to intentionally conceal and prevent disclosure of the OSHA citations against Defendant Otis to the public and Otis service technician employees;
b. actions purposefully taken to contest and appeal OSHA citations for the intentional benefit of delay, concealment, misrepresentation and non-disclosure of the ... risks of serious injury and death to Otis service technician employees from their continued use of the Otis "15 Minute Rule";
c. actions purposefully taken to contest the OSHA citations specifically to prevent subsequent issuance by OSHA of "REPEAT" or "Willful" citations for repeat conduct in subsequent cases .... "Repeat" OSHA violations are issued for substantially similar violations occurring within the past three years;
d. actions purposefully taken to conceal from the public and Otis service technician employees that Otis was continuously and purposefully subjecting its service technician employees to continued enforcement of its "15 Minute Rule" with conscious disregard to the ... risks of serious injury and death.

The amended complaint further alleged that "in the course and scope of her employment," Appellant "did intentionally, consciously and deliberately aid, abet, counsel, command, induce and procure Defendant Otis Elevator Company managers, supervisors, and service technician employees to intentionally and willfully violate" five OSHA provisions, and that she "consciously intended to cause and caus[ed] Otis officers, managers, supervisors and employees to violate" the applicable OSHA regulations. Appellee alleged that the decedent's death was a direct and proximate result of Appellant's conduct.

Further, Appellee alleged that Otis Elevator Company intentionally concealed its contributions to the deaths of its employees and misrepresented to its employees that the previous deaths were solely attributable to employee error, despite federal courts having ruled that the company's policies and 15-minute rule violated OSHA regulations. Appellee alleged that the company "told its employees to continue to follow the deadly dangerous Otis 15-minute rule" and "continued to encourage its employees to intentionally violate OSHA regulations" despite knowing of the court rulings. These allegations placed the blame squarely on Otis Elevator Company; Appellant was not mentioned.

Appellant moved to dismiss the amended complaint for lack of personal jurisdiction. She attached an affidavit in support of her motion, attesting that she does not exercise supervisory control over Otis North America's local branch offices. She further stated that although she "may have limited contact on occasion" with Otis North America's outside legal counsel, it is the company's in-house counsel, not Appellant, who directly supervises and controls outside legal counsel.

The trial court held a non-evidentiary hearing on Appellant's motion to dismiss. Appellant argued that Appellee submitted no competing evidence as to jurisdiction; Appellee argued that no competing affidavit or evidentiary hearing was necessary, because Appellant's affidavit failed to refute the alleged bases for personal jurisdiction. The trial court denied Appellant's motion to dismiss. This interlocutory appeal follows.

Analysis

An order denying a motion to dismiss for lack of personal jurisdiction is reviewed de novo . Wendt v. Horowitz , 822 So.2d 1252, 1256 (Fla. 2002). The facts are to be derived "from the affidavits in support of the motion to dismiss, and the transcripts and records submitted in opposition to the motion to dismiss." Id. at 1254. To determine if personal jurisdiction may be exercised over a nonresident defendant, "a court must determine whether sufficient jurisdictional facts are alleged to bring the action within the ambit of Florida's long-arm statute." Kitroser v. Hurt , 85 So.3d 1084, 1087 (Fla. 2012). Florida's long-arm statute is "to be strictly construed, in order to guarantee compliance with due process requirements." Aetna Life & Cas. Co. v. Therm-O-Disc, Inc. , 488 So.2d 83, 87 (Fla. 1st DCA 1986).

Here, neither the amended complaint nor the trial court's order specify which subsection of the long-arm statute provides a basis for jurisdiction. However, even if the appealed order does not state the basis for its decision, personal jurisdiction may be derived from the facts alleged in the complaint. Allerton v. State Dep't of Ins. , 635 So.2d 36, 39 (Fla. 1st DCA 1994).

Florida's long-arm statute contains two provisions that provide a basis for personal jurisdiction - specific jurisdiction and general jurisdiction. Appellee admits that the amended complaint does not support general jurisdiction.

Section 48.193(1)(a), Florida Statutes, confers specific jurisdiction over

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

I. Whether the amended complaint alleged a cause of action arising from a tort committed in Florida

The corporate shield doctrine provides that personal jurisdiction cannot be exercised over a nonresident corporate employee sued individually for acts performed in a corporate capacity. Doe v. Thompson , 620 So.2d 1004, 1005 (Fla. 1993). "The rationale of the doctrine is 'the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer.' " Id. at 1006 (quoting Estabrook v. Wetmore , 129 N.H. 520, 529, 529 A.2d 956 (1987) ). In Doe , the plaintiff brought a gross negligence suit against a chief executive officer, alleging the officer failed to take adequate measures to prevent sexual assault. 620 So.2d at 1004. The supreme court held that personal jurisdiction was not established, because "[the defendant's] allegedly negligent actions are not alleged to have been taken outside his duties as [the corporation]'s president and chief executive officer; rather, [the plaintiff] alleges that he was acting within the scope of his employment." Id. at 1006.

Although the corporate shield doctrine generally insulates any nonresident corporate officer acting on behalf of his employer, an exception exists "[w]here an individual, nonresident defendant commits negligent acts in Florida , whether on behalf of a corporate employer or not[.]" Kitroser , 85 So.3d at 1090 (emphasis added). In Kitroser , the complaint alleged that "while the [corporate] employees were personally in Florida, each engaged in some form of negligent conduct, either by training or supervision of [the employee] or both, which contributed to [the decedent]'s death." Id. at 1089. Because the torts were allegedly committed within the state, the supreme court held that "[t]he corporate shield doctrine, therefore, is inapplicable and does not exclude the [corporate] employees from the exercise of personal jurisdiction by Florida courts." Id. The supreme court distinguished Doe , reasoning that in that case, the defendant's "out-of-state activities alone did not form a predicate for in-state jurisdiction." Id. at 1089. The court reasoned that "[t]o hold otherwise would be tantamount to providing corporate employees with a form of diplomatic immunity." Id. at 1090.

Here, all pertinent paragraphs in Appellee's amended complaint alleged that Appellant acted "in the course and scope of her employment and as corporate officer." Thus, the corporate shield doctrine bars the exercise of personal jurisdiction, unless facts alleged in the amended complaint show that Appellant committed a tort in Florida. Id. at 1090.

The amended complaint alleged that Appellant "routinely visited and continues to visit Florida ... in her role as a corporate Vice President of Otis and as General Counsel of Otis," and that she is the Principal on a current contract between Otis Elevator and the Board of County Commissioners in Miami-Dade. In a section titled Parties, the amended complaint alleged that "while physically located inside and outside of Florida," Appellant communicated with outside counsel headquartered in Florida regarding the legal representation of Otis Elevator in various legal matters, including cases of elevator technician deaths.

Although these allegations plainly assert that Appellant visited Florida throughout a span of nine years, none of the allegations suggest that she committed a tort while in the forum state. Although Count II (the sole cause of action against Appellant) alleges that Appellant violated Titles 18 and 29 of the United States Code by aiding, abetting and directing Otis employees to commit OSHA violations, nowhere is it alleged that she was in Florida during the alleged actions.

Although the exception for committing a tort "in Florida" generally requires a defendant's physical presence, the exception may also encompass alleged tortious acts committed outside of Florida, if those acts involved communication directed into Florida for the purpose of committing a fraud, slander, or some other intentional tort. See Allerton , 635 So.2d at 39. In Allerton , the defendant was an investment advisor sued for allegedly orchestrating financial schemes. The defendant moved to dismiss the complaint, arguing that the corporate shield doctrine insulated him "because he was acting in an agency capacity for his employer." 635 So.2d at 39. This Court held that "the facts as alleged in the complaint preclude [the defendant]'s reliance upon the 'corporate shield doctrine[.]' " Id. at 37. The basis for this holding was that the complaint alleged intentional tortious conduct "aimed at a Florida resident," and "[t]he quality and nature of [the defendant's] actions were not so 'random, fortuitous or attenuated' that [he] could not reasonably anticipate being haled into court in Florida." Id. at 40 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 486, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). See also State, Office of Attorney Gen., Dep't of Legal Affairs v. Wyndham Int'l, Inc. , 869 So.2d 592, 597 (Fla. 1st DCA 2004) (holding that corporate shield doctrine protects against "untargeted negligence" but not against "intentional tortious acts expressly aimed at the forum state." (quoting Doe , 620 So.2d at 1006 n.1 ) ).

In Rensin v. State, Office of Attorney General, Department of Legal Affairs , the complaint alleged that the defendant himself falsely advertised in Florida, solicited business in Florida, and breached contracts with Florida residents; these allegations satisfied the plaintiff's initial burden to assert a basis for personal jurisdiction. 18 So. 3d 572, 575 (Fla. 1st DCA 2009). This Court elaborated on the intentional-tort exception:

In each of [the] cases where jurisdiction was found, the plaintiff produced evidence of the specific conduct on the part of the corporate officer that constituted a fraud or intentional tort. In each case, the nonresident corporate officer personally and intentionally engaged in the tortious conduct and the specific conduct of the nonresident corporate officer was calculated to inflict a direct injury upon a resident of Florida.

Id. at 575-76. Thus, the conduct alleged must consist of intentional and tortious acts "expressly aimed at" Florida, with knowledge by the defendant that it "would have a potentially devastating impact" upon the victim. Calder v. Jones , 465 U.S. 783, 783-84, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ; see also Rensin , 18 So.3d at 576 ("[T]he specific conduct of the nonresident corporate officer was calculated to inflict a direct injury upon a resident of Florida."); Goldberg v. United States , 2014 WL 2573060 at *1, 5 (S.D. Fla. 2014) ("Although Goldberg alleges more than 'untargeted negligence,' he does not allege, argue, nor submit evidence that the [defendants'] conduct was expressly aimed at Goldberg or would have a potentially devastating impact upon Goldberg.").

The threshold question raised is whether the complaint sufficiently states a cause of action for an intentional tort. See Wendt , 822 So.2d at 1260 ; Klayman v. Judicial Watch, Inc. , 2013 WL 4780139 at *1, 5 (Sept. 5, 2013) ("The Court's consideration of whether personal jurisdiction exists ... must be undertaken in the light of the claims presented, and the Court should therefore first determine whether the Amended Complaint states any claim for relief against the individual defendants, and if so, on what theories."); 8100R.R. Ave. Realty Tr. v. R.W. Tansill Contr. Co. , 638 So.2d 149, 151 (Fla. 4th DCA 1994) ("[T]he sole basis for jurisdiction is that the [appellant] committed a tort in Florida.... [W]e must of necessity determine whether [the complaint] states a cause of action in tort, in order to determine jurisdiction.").

The sole cause of action against Appellant is a claim for "Wrongful Death Damages Against [Appellant] Arising From Criminal Acts Exception to Workers' Compensation Employer/Manager Immunity provided in Section 440.11(1)(b) 2, Florida Statutes." Section 440.11(1)(b), Florida Statutes, provides that workers' compensation is the exclusive remedy in place of all other liability, except as follows:

(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee , and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

(Emphasis added). District courts have discussed the high standard of virtual certainty, stating that to reach this level, " 'a plaintiff must show that a given danger will result in an accident every - or almost every - time.' " R.L. Haines Constr., LLC v. Santamaria , 161 So.3d 528, 531 (Fla. 5th DCA 2014) (quoting List Indus., Inc. v. Dalien , 107 So.3d 470, 471 (Fla. 4th DCA 2013) ).

The conduct alleged in the complaint was not "virtually certain to result" in death or injury. Without virtual certainty, the allegations in the amended complaint do not sufficiently state a cause of action alleging an intentional tort as defined in the workers' compensation statute. Cf. Santamaria , 161 So.3d at 531.

Appellee argues that its amended complaint alleged conduct by Appellant that amounted to a first-degree misdemeanor, thereby removing workers' compensation exclusivity as to Appellant. See § 440.11(1)(b), Fla. Stat. However, section 440.11(1)(b) does not declare that criminal conduct by a corporate officer constitutes an intentional tort; it only states that such conduct, if amounting to a first-degree misdemeanor, removes the immunities provided by the workers' compensation statute. See id. The question before us is whether Appellant is alleged to have committed an intentional tort sufficient to overcome the corporate shield doctrine, not whether Appellant is protected by workers' compensation immunities. Because the amended complaint does not allege that the conduct by Otis Elevator Company was virtually certain to result in injury, it cannot be said that Appellant was a principal to an intentional tort as defined by the workers' compensation statute.

Appellee argues that the amended complaint also alleged fraud intentionally and expressly directed into Florida, thereby alleging an intentional tort sufficient to pierce the corporate shield. However, there is no fraud count in the complaint; in fact, the word fraud is never mentioned in the cause of action against Appellant or in the general allegations. See 8100 R.R. Ave. , 638 So.2d at 151 ; see also Reina v. Gingerale Corp. , 472 So.2d 530, 531 (Fla. 3d DCA 1985) ("facts constituting fraud must be clearly stated"); A.S.J. Drugs, Inc. v. Berkowitz , 459 So.2d 348, 349 (Fla. 4th DCA 1984) (holding that fraud requires a knowingly false statement, an intent that it be acted on, and detrimental reliance); Fla. R. Civ. P. 1.120(b) (describing Florida's heightened pleading requirements for fraud actions).

The amended complaint alleged that Otis Elevator Company knowingly made false statements to its employees and the public by stating that the company "stands behind its policies and procedures with respect to employee safety and believes they are consistent with applicable OSHA regulations." Although the amended complaint alleged that Appellant controlled the actions of retained legal counsel and supervisors, it does not allege that Appellant personally made any false statements or that she instructed anyone else to make a false statement; the complaint only alleges that Appellant directed the company to take actions "to intentionally conceal" OSHA citations.

Even accepting these allegations as true, as we must, this alleged direction by Appellant could be satisfied by the company doing nothing at all; e.g., not publishing a report on the citations or not holding safety meetings. See Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1290 (11th Cir. 2010) ("[C]ourts may infer from the factual allegations in the complaint 'obvious alternative explanation[s],' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer."); cf. Morales v. Racetrac Petroleum, Inc. , 2017 WL 6320299 at *1, 2 (M.D. Fla. Dec. 11, 2017) (dismissing complaint alleging intentional-tort exception to workers' compensation immunity, because the complaint's vague and conclusory allegations "merely recite the elements of the intentional tort exception without providing facts from which the Court could draw a favorable instance"). Without clearly stated allegations asserting that Appellant "personally and intentionally engaged in the tortious conduct," we cannot say that "the specific conduct of the nonresident corporate officer was calculated to inflict a direct injury upon a resident of Florida." Rensin , 18 So.3d at 576. In the absence of an intentional tort, Appellee cannot rely on the intentional-tort exception to the corporate shield doctrine.

II. Whether the amended complaint alleged a cause of action arising from a business venture in Florida

Section 48.193(1)(a) 1. confers jurisdiction where a complaint alleges facts stating a cause of action that arises from "[o]perating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state." § 48.193(1)(a) 1., Fla. Stat. When a defendant contests a complaint's jurisdictional allegations, or the minimum contacts supporting jurisdiction, he or she "must file an affidavit in support of his or her position. The burden is then placed upon the plaintiff to show by counter-affidavit the basis upon which jurisdiction is obtained." Doe , 620 So.2d at 1005. "If the affidavits can be harmonized, the court can resolve the jurisdiction issue based upon the undisputed facts. If not, 'the trial court [must] hold a limited evidentiary hearing in order to determine the jurisdiction issue.' " Schwartzberg v. Knobloch , 98 So.3d 173, 178 (Fla. 2d DCA 2012) (quoting Venetian Salami Co. v. Parthenais , 554 So.2d 499, 502-03 (Fla. 1989) ).

Here, Appellant submitted an affidavit attesting that she resides in Connecticut and is licensed to practice law in Connecticut and Maryland. She stated that at no time has she: had a usual place of abode in Florida; had a personal bank account in Florida; had a personal phone number in Florida; owned real property in Florida; filed a personal tax return in Florida; or had a business office in Florida. She attested that she never served as general counsel for Otis North America (a subsidiary of Otis Elevator Company alleged to have relocated to Florida) or supervised Florida branch offices, and that any work she performed in Florida was in her capacity as a corporate officer.

Appellant's sworn statements refute any allegation asserting a "business venture" basis for jurisdiction, thereby shifting the burden back to Appellee. Cf. Doe , 620 So.2d at 1005. Although Appellant admitted signing the company's annual report submitted to the Florida Secretary of State, this is insufficient to establish jurisdiction, as the cause of action does not arise from this contact. See Carter v. Estate of Rambo , 925 So.2d 353, 356 (Fla. 5th DCA 2006).

Appellee's response in opposition to Appellant's motion to dismiss merely reasserted the allegations in the amended complaint and referred to admissions in Appellant's affidavit. See Goldberg , 2014 WL 2573060 at *3 (to prevail after a defendant refutes allegations, a plaintiff must do more than " 'merely reiterate the factual allegations in the complaint' " (quoting Future Tech. Today, Inc. v. OSF Healthcare Sys. , 218 F.3d 1247, 1249 (11th Cir. 2000) ). Although Appellee's response refers to exhibits attached to the amended complaint, none of the exhibits show personal business ventures. As Appellant's sworn affidavit refuted any allegations of a personal business office or personal business venture, and as Appellee presented no evidence to counter that affidavit, there was no basis for the trial court to exercise specific jurisdiction under section 48.193(1)(a) 1., Florida Statutes.

The corporate shield doctrine bars Florida courts from exercising personal jurisdiction over Appellant. We thus reverse and remand with directions to the trial court to enter an order dismissing the amended complaint as to Appellant.

REVERSED AND REMANDED.

Roberts and Osterhaus, JJ., concur.

      Section 48.193(1), Florida Statutes, enumerates other bases for specific jurisdiction, but only subsections (a)1. and (a)2. are relevant here.

      Because the amended complaint fails to assert a basis for long-arm jurisdiction in the absence of alleging an intentional tort, we need not address whether Appellant's affidavit refutes the allegations, or whether Appellant has minimum contacts sufficient to satisfy due process. See Doe , 620 So.2d at 1005.