author: Per Curiam. Wetherell, J., concurring.

text:
    Kristopher Darwin ROBINSON, Appellant, v. Sabrina K. ROBINSON, Appellee.
    No. 1D17-336
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Kristopher D. Robinson of Robinson Collins P.L., Jacksonville, for Appellant.
    J. Stephen Alexander of Alexander Law Firm, LLC, St. Augustine, for Appellee.
    ON MOTION FOR REHEARING, CLARIFICATION, AND REHEARING EN BANC
   Per Curiam.

Appellant, the former husband, seeks review of the order dismissing the suit he filed against Appellee, the former wife, to set aside the mediated settlement and consent final judgment in the parties' divorce proceeding and to recover monetary damages from the former wife for civil theft. We reverse for the reasons that follow.

The former wife allegedly obtained photos of the former husband and his mistress that were "of a private nature" and then used the photos as leverage in the parties' divorce proceeding to coerce the former husband to enter into a mediated settlement that was favorable to her. The terms of the settlement were incorporated into a consent final judgment that was entered by the circuit court in Clay County in January 2014.

More than 2½ years later, after several unsuccessful attempts to modify the consent final judgment, the former husband filed a three-count complaint against the former wife in the circuit court in Duval County based on her "strong-arm and extortionate tactics" in the divorce proceeding. Count I sought to rescind the settlement "due to coercion and duress"; count II sought to set aside the consent final judgment "due to fraud on the court"; and count III sought damages under the civil theft statute stemming primarily from the former wife's having wrongfully obtained and used the photos of the former husband and his mistress to negotiate the favorable-to-her financial settlement of the parties' divorce case.

The former wife filed a motion to dismiss for improper venue or, alternatively, to transfer the case to Clay County where proceedings to modify the consent final judgment were ongoing. The former husband responded that venue was proper in Duval County because both parties now reside there, and he argued that the case should not be transferred to Clay County because, under Gordon v. Gordon , 625 So.2d 59 (Fla. 4th DCA 1993), an independent action was required to set aside the consent final judgment for fraud upon the court because it had been more than a year since the judgment was entered.

The trial court granted the motion to dismiss, reasoning that "it is apparent that the same issues raised in this case are also being litigated in [the Clay County case]." The court reiterated this point in the order denying the former husband's motion for rehearing, explaining that "the issues raised in [the former husband]'s complaint in this case are and should be litigated in the Clay County case." The court thereafter entered a final order dismissing this case with prejudice.

This appeal followed.

Based on our de novo review, we agree with the former husband that the trial court should not have dismissed the case with prejudice based on the venue motion filed by the former wife. Venue was proper in Duval County because both parties reside there, see § 47.011, Fla. Stat., and transfer-not dismissal-is the proper remedy where the trial court determines that there is a more convenient forum, see § 47.122, Fla. Stat. Moreover, abatement-not dismissal-would have been the proper remedy if the trial court was correct in concluding that the issues raised in this case were the same as those being litigated in the earlier-filed Clay County case. See Dhondy v. Schimpeler , 528 So.2d 403 (Fla. 3d DCA 1988).

Although the trial court's legal reasoning was incorrect, our original opinion nevertheless affirmed the dismissal order under the "tipsy coachman" doctrine. See Dade County School Board 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."). We now conclude, however, that the potential grounds for dismissal discussed in our original opinion should be addressed by the trial court in the first instance if raised by a proper motion.

Accordingly, the dismissal order is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED .

Lewis and Winsor, JJ., concur. Wetherell, J., concurs with opinion.

Wetherell, J., concurring.

I join the revised opinion because, unfortunately, the "tipsy coachman" doctrine cannot be stretched far enough to affirm the dismissal of the former husband's suit in its entirety. However, because the suit-which comes on the heels of the former husband's two prior unsuccessful attempts to obtain relief from his obligations under the consent final judgment-appears to be nothing more than an untimely and meritless case of "buyer's remorse,"

the trial court should consider imposing sanctions on the former husband under section 57.105, Florida Statutes, if and when the suit is dismissed on remand.

      See Robinson v. Robinson , 219 So.3d 933 (Fla. 1st DCA 2017) (affirming post-dissolution order insofar as it denied former husband's motion to eliminate his alimony obligation, but reversing order insofar as it reduced his child support obligation); Robinson v. Robinson , 169 So.3d 1168 (Fla. 1st DCA 2015) (per curiam affirmance of post-dissolution order denying former husband's supplemental petition to modify parenting plan).

      See § 772.11, Fla. Stat.

      See City of Gainesville v. Dep't of Transp. , 778 So.2d 519, 522 (Fla. 1st DCA 2001) ("Whether a complaint should be dismissed is a question of law. On appeal of a judgment granting a motion to dismiss, the standard of review is de novo.").

      Robinson v. Robinson , 43 Fla. L. Weekly D102, 2018 WL 283692 (Fla. 1st DCA Jan. 3, 2018).

      The count seeking to set aside the consent final judgment based on fraud (count II) appears to be time-barred because it alleges intrinsic fraud that had to be raised within one year after the judgment was entered. See Cerniglia v. Cerniglia , 679 So.2d 1160, 1163 (Fla. 1996) (holding that "allegations of coercion and duress ... constitute intrinsic fraud and [a]re thus subject to the one-year limitation for seeking relief from the final judgment"); Champion v. McDaniel , 740 So.2d 17, 19 (Fla. 1st DCA 1999) (reversing order setting aside marital settlement agreement based on motion for relief from judgment that was filed more than a year after entry of the judgment incorporating the agreement because the claims raised in the motion-which included a claim that the wife "pressured [the husband] into signing the agreement after confronting him with his admitted adultery"-did not amount to fraud on the court but rather merely showed that the wife "was in a superior bargaining position to [the husband]"). If the fraud count is dismissed and the consent final judgment remains in effect, it does not appear that the former husband will be able to obtain any meaningful relief by setting aside the mediation agreement (count II) because the agreement was incorporated into-and its terms are now part of-the judgment. The civil theft count (count III) appears to be negated in all respects except one by the mutual release of "any claims, damages or causes of action" contained in the consent final judgment attached to the complaint. See Striton Properties, Inc. v. City of Jacksonville Beach , 533 So.2d 1174, 1179 (Fla. 1st DCA 1988) ("Under Florida law, if an attached document negates a pleader's cause of action, the plain language of the document will control and may be the basis for a motion to dismiss."). The only aspect of the civil theft count that does not appear to be covered by the release is the claim that the former wife used the former husband's credit card without his authorization after the consent final judgment was entered (see Complaint at ¶ 46), but if that claim had merit it presumably would have been raised through a motion for contempt in one of the prior post-dissolution proceedings since the unauthorized use of the credit card was alleged to be "in direct violation of paragraph 11 of the [consent final judgment]."


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Norris HUBBARD, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-5977
    District Court of Appeal of Florida, Second District.
    March 21, 2018
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
    BY ORDER OF THE COURT
   The appellant's motion for rehearing, filed January 18, 2018, is granted to the extent that this court's prior opinion of January 17, 2018, is withdrawn and in its stead we substitute this order. No further motions for rehearing will be entertained.

ORDER STRIKING INITIAL BRIEF

LaROSE, Chief Judge.

Norris Hubbard, Jr., seeks review of his judgment and sentences for possession and sale of cocaine. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). Appellant's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which she represented that she "can find no meritorious argument to support the contention that the trial court committed significant reversible error." We must conduct an independent review of the record following such briefing. See In re Anders Briefs, 581 So.2d 149, 151 (Fla. 1991) (stating that following "counsel's submission of ... an Anders brief ... [t]he appellate court then assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record"). Our review reveals a sentencing error apparent on the face of the record. Accordingly, we strike counsel's brief under the authority of Florida Rule of Appellate Procedure 9.140(g)(2)(B). See Clark v. State, 223 So.3d 1126, 1126-27 (Fla. 1st DCA 2017) (striking Anders brief pursuant to rule 9.140(g)(2)(B) and directing appellate counsel to file motion to correct sentencing error upon court's discovery of "multiple sentencing errors"); K.O. v. State, 228 So.3d 162, 163 (Fla. 1st DCA 2016) (striking Anders brief to allow appellate counsel to file motion with the trial court under Florida Rule of Criminal Procedure 3.800(b) addressing sentencing error uncovered by appellate court); Adams v. State, 197 So.3d 641, 642 (Fla. 1st DCA 2016) ("[O]n the court's own motion and pursuant to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the [ Anders ] brief ... is stricken in order to permit the filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).").

Following the jury's return of guilty verdicts, the trial court sentenced Mr. Hubbard to concurrent terms of fifteen years' imprisonment on the sale and five years' imprisonment for the possession. The trial court designated him a habitual felony offender (HFO) for both offenses. However, the HFO designation for Mr. Hubbard's possession offense is improper.

Under section 775.084(1)(a)(3), Florida Statutes (2013), a defendant is subject to enhanced HFO sentencing when "[t]he felony for which the defendant is to be sentenced ... is not a violation of [section] 893.13 relating to the ... possession of a controlled substance." See also Coleman v. State, 927 So.2d 1048, 1048 (Fla. 2d DCA 2006) (" Section 775.084(1)(a)(3)... precludes sentencing a defendant as a habitual felony offender for violating section 893.13 relating to purchase or possession of a controlled substance."); Virgil v. State, 884 So.2d 373, 373-74 (Fla. 2d DCA 2004) (holding that a defendant may not be sentenced as a HFO for the offense of possession of a controlled substance); Roberts v. State, 753 So.2d 136, 137 (Fla. 2d DCA 2000) ("Only drug offenses relating to the purchase or the possession of controlled substances are exempt from habitualization; defendants sentenced for offenses relating to the sale of narcotics do not enjoy the benefit of this statutory exemption.").

Pursuant to rule 9.140(g)(2)(B), we strike the Anders brief so that counsel may file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to correct the sentencing error identified above. Within twenty days of the date of this order, counsel shall file such motion with the trial court, which the trial court shall dispose of in accordance with the procedures enumerated in rule 3.800(b)(2)(B). Following disposition, the clerk of the court shall transmit a supplemental record pursuant to Florida Rule of Appellate Procedure 9.140(f)(6), and counsel shall file an amended initial brief within twenty days following transmittal of the supplemental record.

LUCAS and BADALAMENTI, JJ., Concur.

      We note that counsel's representation imposes a higher standard than that contemplated by the Court in Anders. See Chapman v. State, 186 So.3d 3, 6 (Fla. 2d DCA 2015) ("Counsel's representation in this case that she 'is unable to make a good faith argument that reversible error occurred in the trial court' seems to this court to place the bar somewhat higher than that intended by the guidance in Anders.")


author: PER CURIAM.

text:
    WALT DISNEY PARKS AND RESORTS U.S., INC., Appellants, v. Troy Douglas GRIMES and Tracey Grimes, Appellees.
    Case No. 5D16-3555
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018 Rehearing Denied May 8, 2018
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellants.
    Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm, Longwood, for Appellees.
   PER CURIAM.

Walt Disney Parks and Resorts U.S., Inc. ("Disney") appeals the trial court's order granting the motion for new trial filed by Troy Douglas Grimes and Tracey Grimes ("the Grimeses") based upon certain arguments made by Disney's counsel during closing and not objected to by the Grimeses. We reverse.

Disney's arguments, while indeed improper, did not rise to the high standard delineated in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1031 (Fla. 2000). The Florida Supreme Court held in Murphy"that before a complaining party may receive a new trial based on [an] unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial." Id.; accord Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla. 2010) (holding that, if a party failed to object to an instance of attorney misconduct during trial, then the conduct is subject to a fundamental error analysis pursuant to Murphy ). We hold that the impropriety in Disney's closing arguments could have been cured by a timely objection, after which the trial court could have sustained the objection and issued a curative instruction to the jury. Therefore, the Grimeses failed to establish that "even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict." Murphy, 766 So.2d at 1030.

Because the Grimeses did not show that Disney's arguments were incurable, it is not necessary for us to determine whether the public's interest in our judicial system requires a new trial. See Carnival Corp. v. Jimenez, 112 So.3d 513, 522 (Fla. 2d DCA 2013) ("[I]f the complaining party fails to establish that the argument being challenged is improper, harmful, and incurable, then the analysis does not proceed to the last prong of this four-part test." (emphasis added) ). We reverse the order granting a new trial and remand the case for the trial court to reinstate the jury's verdict.

REVERSED and REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.


author: PER CURIAM. LOGUE, J. (concurring).

text:
    HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE COMPANY, INC., Petitioner, v. Raul AVILA and Doxanne Avila, Respondents.
    No. 3D17-465
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Cole, Scott & Kissane, P.A., and Kathryn L. Ender, Miami, and Therese A. Savona, Orlando, for petitioner.
    David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Perry & Neblett, P.A., and David A. Neblett, Miami, James M. Mahaffey III, Miami, and John A. Wynn, for respondents.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

INTRODUCTION

Homeowners Choice Property and Casualty Insurance Company ("Homeowners Choice") seeks certiorari review of the trial court's order requiring Homeowners Choice to produce certain items from its "claim file" in the underlying coverage dispute. Because we are bound by our existing precedent, including Castle Key Ins. Co. v. Benitez, 124 So.3d 379 (Fla. 3d DCA 2013), we grant the petition and quash the order under review.

FACTS

The underlying dispute arises out of the Avilas' insurance claim for damage caused to their property. The Avilas' homeowner's insurer, Homeowners Choice, made some initial payments following the Avilas' submission of their claim. However, on June 9, 2015, the Avilas' public adjuster sent a letter to Homeowners Choice, contesting the adequacy of the payments made. Homeowners Choice reopened the claim and made an additional payment, which the Avilas allege was still inadequate to cover the damage caused to their property.

Thereafter, the Avilas sued for breach of contract, in addition to alleged statutory violations. After the complaint was filed, the Avilas served a request for production on Homeowners Choice, seeking, inter alia , "[a]ny documents relating to the claim file," "[a]ll statements obtained by you, your attorneys or investigators, regarding any aspect of the subject property and/or subject claim, of Plaintiffs or Defendant, its employees, agents or servants, recorded oral or written ...," "[a]ny documents relating to evaluations of the loss," "[a]ny documents relating to any issues of insurance coverage," "[a] copy of all documents that contain or relate to any conclusions of the Defendant's employees, adjusters or agents that did any work or rendered any services for this claim," "[a]ny documents which would reflect the date litigation was anticipated for the subject claim," and "[a]ll claim documents prior to the date litigation was anticipated for the subject claim." In response, Homeowners Choice produced several of the requested items, but also objected to a number of the requests for production, asserting those items were protected by work product privilege and/or a "claims file privilege."

Homeowners Choice contemporaneously filed a privilege log, and the trial court conducted an in camera inspection of the disputed items. Despite argument by Homeowners Choice that many of the documents in its claim file were privileged, the trial court ordered some of the documents be produced, finding that they were not protected by either the work product privilege or a "claims file privilege." This petition followed.

ANALYSIS

In Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982 (Fla. 2d DCA 2011), the Second District considered a case with virtually identical underlying facts. Demmo filed an insurance claim, in 2008, with her insurer, Nationwide, for damage to her home caused by a sinkhole. Id. at 983. Nationwide approved and paid that initial claim. Id. On May 4, 2009, Demmo filed a second claim for water intrusion that she alleged was related to the sinkhole. Id. After investigating, Nationwide denied this second claim. Id.

Demmo filed a first party breach of contract action against Nationwide, and during pretrial discovery, Demmo requested that Nationwide produce documents from its claims file, including claims notes, activity logs, property loss notice information, and property loss notice forms. Id.

Nationwide refused to produce certain of those documents, claiming work product privilege, and filed a privilege log. Id. The trial court held a hearing and granted Demmo's motion to compel, concluding that "any documents created prior to Nationwide's May 28, 2009 denial of Demmo's claim were not work product because they were not prepared in anticipation of litigation," and ordered Nationwide to produce those documents. Id. at 984.

On certiorari review, the Second District quashed the order compelling discovery, finding, of significance, that it was unnecessary for the trial court to have reviewed the disputed documents in an effort to determine which were prepared in anticipation of litigation and which were not. Id. Instead, the Demmo court held:

[T]he trial court focused on the question of what is and what is not work product with regard to the documents sought. But that is not the determinative issue. Rather, the issue turns on what type of action Demmo has brought. Here she is not pursuing a bad faith claim, but rather seeks relief for breach of contract. "A trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer's claim file when the issue of coverage is in dispute and has not been resolved." Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009) ).

Id.

This court has followed and cited approvingly to Demmo on several occasions.

In State Farm Florida Insurance Co. v. Ramirez, 86 So.3d 1198 (Fla. 3d DCA 2012), this court granted certiorari relief where the trial court compelled the insurer to produce its entire claims file, citing to Demmo for the proposition that "claims file documents are protected from disclosure in a breach of contract action without a bad faith claim and the issue of coverage not yet resolved." Id. Although there was no discussion in Ramirez as to whether the trial court could have made an individualized determination of privilege through an in camera review of the disputed documents, the Ramirez court did hold that the petition was "premature" as to a subsequent trial court order directing the insurer to create a privilege log and provide the documents for in camera inspection, citing to Gaton v. Health Coalition, Inc., 774 So.2d 59 (Fla. 3d DCA 2000). Thus, while this court held in Ramirez that the trial court cannot order production of an entire claims file, it did not appear to reject altogether the proposition that a trial court may order the disputed documents within the claims file be reviewed in camera for an individualized determination, at least suggesting that this court may not have fully adopted the Demmo holding.

Nevertheless, and well before our decision in Ramirez, this court has granted certiorari relief under similar circumstances, and in seemingly broad terms. See, e.g., Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 251-52 (Fla. 3d DCA 2002) (granting certiorari relief and quashing the trial court's order denying Scottsdale's motion for protective order, holding: "Neither the insured nor the injured third party is entitled to discovery of the claims file in a declaratory action to determine coverage, because the claims file is the insurer's work product"); State Farm Fire and Cas. Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995) (granting certiorari, quashing the trial court's discovery order "in its entirety," and holding that "(a) State Farm's claims files, manuals, guidelines and documents concerning its claims handling procedures were irrelevant to the first party [coverage] dispute" and "(b) the defendant's surveillance photographs, witness statements and repair estimates were protected by the work product privilege"). See also State Farm Fla. Ins. Co. v. Desai, 106 So.3d 5, 6 (Fla. 3d DCA 2013) (in a declaratory action to determine coverage, the trial court entered a discovery order requiring State Farm to produce claims manuals and/or guidelines relating to certain policy language and to provide a representative to testify as to the claims manual, guidelines, and insurance policy; this court granted certiorari relief and quashed the order, holding that Florida law "prohibits insureds from obtaining discovery into an insurer's claims files and claims handling materials until contract/coverage litigation has been concluded").

Most recently, in Castle Key Ins. Co. v. Benitez, 124 So.3d 379, 380 (Fla. 3d DCA 2013), this court appeared to adopt fully Demmo's holding and analysis:

In considering objections to discovery requests for claims file materials, the "determinative issue" is "what type of action" the insured has brought. Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011). Where, as here, the insured
is not pursuing a bad faith claim, but rather seeks relief for breach of contract[,] [a] trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer's claim file when the issue of coverage is in dispute and has not been resolved.

Id. at 380 (quoting Demmo, 57 So.3d at 984 ).

Thus, we granted the petition and quashed the order, holding that "[b]ecause the trial court order at issue directed the production of Castle Key's claims file when the issue of coverage is still in dispute, the order departs from the essential requirements of law." Id.

Again, it appears that the trial court in Castle Key ordered production of the entire claims file, and this court noted, in a footnote, that although the insureds asserted they were not seeking "claims handling material," "case law prohibiting the disclosure of 'claims file' material ... clearly encompasses items such as notes in the claims file, property loss information, and property loss notice forms, which are all specific to the handling of an individual claim." Id. at 380 n.1. This is fully consistent with the holding in Demmo, which negates any requirement that a trial court review those categories of disputed documents to determine the applicability of privilege.

Finally, in State Farm Mutual Automobile Insurance Co. v. Premier Diagnostic Centers, LLC, 185 So.3d 575 (Fla. 3d DCA 2016), we granted second-tier certiorari relief to an insurer in three first-party, non-bad-faith cases, where the trial court ordered it "to produce portions of its adjusters' claims files to a medical care provider." Id. at 575. (Emphasis added.) Citing to, inter alia , Castle Key, Ramirez and Demmo, we held that "[b]ecause this and other courts have repeatedly held that an insurer's claims file is not discoverable in cases such as this, we find not only that the wrong law was applied below but also that an irreparable departure from the essential requirements of the law resulting in manifest injustice has occurred as well." Id. at 575-76. We quashed the trial court's order, which required State Farm to produce its adjuster's notes.

We do observe, however, that counsel for both parties in this case referred to a "claims file privilege" during the hearing on Homeowners Choice's motion for a protective order. There is no such privilege by that designation in the cited cases or Florida's Rules of Procedure or Evidence Code. Thus, a specifically-articulated document request for "photographs of the alleged property damage" may require either (a) production of such photographs, or (b) disclosure on a privilege log with a specifically-articulated basis for protection from discovery, even if those photographs have been filed with other non-discoverable, claim-related documents in the insurer's "claims file" and coverage remains in dispute. We further observe that the Fourth District adopted a more specific approach to the various types of records that may be in an insurer's claims file in State Farm Florida Insurance Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012) (recognizing that an insured may, in a specific case and as to a specific record in an insurer's claims file, establish the necessity/good cause exception to the work product doctrine as provided by Florida Rule of Civil Procedure 1.280(b)(4) ).

CONCLUSION

Given our prior precedent, particularly the recent decisions in Ramirez, CastleKey and Premier Diagnostic Centers, by which this panel is bound, we grant the instant petition and quash the trial court's order.

SALTER and EMAS, JJ., concur.

LOGUE, J. (concurring).

I concur in the result reached by the majority opinion but write to emphasize that the law that shields from discovery materials in claims files is not new and it is not based solely on the work product privilege.

The petition under review arises from a first-party litigation where the insureds sued their insurer for damages arising from a breach of the policy because the insurer paid less than the entire amount claimed. The majority opinion grants certiorari and quashes an order requiring the production of adjusters' notes contained in the insurer's claims file. This result is mandated by long-standing precedent of the Florida Supreme Court, by the precedent of this District for nearly half a century, and by numerous decisions by the other Florida district courts of appeal.

In addition to work product, claims files usually contain confidential and proprietary claims-handling materials such as adjuster's notes; reserves placed on the claim; activity logs; underwriting documents; emails and correspondence; documents related to adjusting or denying the claim; business policies; claims handling manuals, policies or guidelines; and more. These claims handling materials, while discoverable in a cause of action alleging the insurer adjusted a claim in bad faith, are not discoverable in a straightforward first-party or third-party claim for damages based upon the policy. As the Supreme Court has explained, these materials "are not relevant to the only issues involved, those of coverage and damages." Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1129 (Fla. 2005). See Gov't Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 796 (Fla. 3d DCA 2007) (holding in such cases claims files are "immaterial"); State Farm Fire & Cas. Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995) (holding "claim files, manuals, guidelines and documents concerning its claim handling procedures [are] irrelevant to [a] first party dispute") (emphasis added).

Because claims handling materials are not relevant and material in an action by an insured against the insurer for simple damages and breach of contract when a potential bad faith claim is not ripe, and because these materials are confidential and proprietary, an order requiring their production is properly quashed by certiorari. See, e.g., State Farm Mut. Auto. Ins. Co. v. Premier Diagnostic Ctrs., LLC, 185 So.3d 575, 576 (Fla. 3d DCA 2016) ; Castle Key Ins. Co. v. Benitez, 124 So.3d 379, 380 (Fla. 3d DCA 2013) ; State Farm Fla. Ins. Co. v. Desai, 106 So.3d 5, 6 (Fla. 3d DCA 2013).

      The court dismissed the statutory violation counts and they are not at issue in this appeal.

      By order of this court, the documents identified in the privilege log and the subset of documents ordered by the trial court to be produced to the Avilas, were filed under seal for our review. Upon this court's review of those documents, it appears that each item ordered by the trial court to be produced was generated or created prior to June 9, 2015, which is the date the Avilas' public adjuster sent a letter to Homeowners Choice, contesting the amount paid on the claim. The documents (or portions of documents) ordered to be produced include items entitled "Claims Notes," "Activity Report," "Status Report," "Claim Log," and "Valuation Report."

      At the conclusion of its opinion in Demmo, the Second District included a footnote: "As this court did in Mastrominas, 6 So.3d at 1258 n. 2, we emphasize that [o]ur opinion should not be read as precluding appropriate discovery to the extent specific materials are discoverable. See [Am. Home. Assur. Co. v.] Vreeland, 973 So.2d [668], 672 [Fla. 2d DCA 2008) ]. Although a claims file is generally not discoverable, to the extent that materials contained therein are relied on at trial, those materials may be discoverable. See Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004) (holding that materials reasonably expected or intended to be used at trial are subject to discovery)." Demmo, 57 So.3d at 984 n. 2.

      In Gaton, 774 So.2d at 60, which dealt with a claim of trade secret privilege, we held that a certiorari petition was premature where the court's order merely ordered a party to produce requested materials for in camera inspection.

      In view of the facts recited in Aloni and the record in the present case, however, we decline to certify an express and direct conflict to the Florida Supreme Court under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi).

      See Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1129 (Fla. 2005) (quoting and approving the language in Fidelity & Casualty Insurance Co. of New York v. Taylor, 525 So.2d 908, 909 (Fla. 3d DCA 1987), that in "an ordinary 'insured vs. insurer' action brought only under the policy ... the carrier's claim file is deemed not producible essentially because its contents are not relevant to the only issues involved, those of coverage and damages").

      See, e.g., State Farm Mut. Auto. Ins. Co. v. Premier Diagnostic Ctrs., LLC, 185 So.3d 575, 576 (Fla. 3d DCA 2016) ; Castle Key Ins. Co. v. Benitez, 124 So.3d 379 (Fla. 3d DCA 2013) ; State Farm Fla. Ins. Co. v. Desai, 106 So.3d 5, 6 (Fla. 3d DCA 2013) (finding well taken the insurer's argument that Florida law "prohibits insureds from obtaining discovery into an insurer's claims files and claims handling materials until contract/coverage litigation has been concluded"); Granada Ins. Co. v. Ricks, 12 So.3d 276, 277 (Fla. 3d DCA 2009) ("discovery which concerns only potential issues of bad faith or other purported improprieties in defending [a] claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage"); Gov't Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 796 (Fla. 3d DCA 2007) (stating that in a lawsuit by a third party against GEICO's insured, "[t]he content of GEICO's internal claims handling procedures is immaterial"); Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 251 (Fla. 3d DCA 2002) ("When the issue of insurance coverage is unresolved and at issue in pending court proceedings, a trial court must not order an insurer to produce its claims files and other work product documents."); Allstate Ins. Co. v. Shupack, 335 So.2d 620, 621 (Fla. 3d DCA 1976) (issuing certiorari and quashing order requiring production of claims file in potential action for bad faith claims handling until the merits of the uninsured motorist claim had been determined).

      See, e.g., State Farm Fla. Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012) ("[W]here the issue of coverage is still unresolved at the time of the insurer's objection to the request for discovery of its claim file, the trial court departs from the essential requirements of law in overruling the insurer's objection."); Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011) (same); Allstate Ins. Co. v. Swanson, 506 So.2d 497, 498 (Fla. 5th DCA 1987) ("Until the right of coverage is first established, a plaintiff claiming to be an insured cannot compel disclosure of the insurer's work product and privileged matters in its claims file."); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998) (holding that in a bad faith action, when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer's claims file and the insurer's claims handling manuals and materials).


author: Per Curiam.

text:
    Donald Lee ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0414
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this Anders appeal, we affirm Appellant's judgment and sentences, but remand for the trial court to enter a written order specifying that Appellant admitted violating only certain conditions of probation., as alleged in Grounds VI-XIV of the amended affidavit of violation of probation. See Pittman v. State , 867 So.2d 621, 622 (Fla. 2d DCA 2004) (remanding for entry of formal order revoking probation that listed only the violations that had been admitted); Narvaez v. State , 674 So.2d 868, 869 (Fla. 2d DCA 1996) (noting that written order of revocation must comport with the oral pronouncement and remanding with instructions to strike violations neither admitted to nor found by the court from the order). Appellant need not be present.

AFFIRMED but REMANDED for correction.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Tony E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1141
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Tony E. Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This is an appeal from an order on a motion for clarification of sentence, which we have treated as an appeal from a summary ruling on a postconviction motion pursuant to Florida Rule of Appellate Procedure 9.141(b)(2). We reverse and remand for correction of Appellant's judgments and sentences insofar as they contain conflicting sentencing provisions, which are also inconsistent with Appellant's plea agreement.

Appellant entered a negotiated guilty plea to armed robbery with a firearm in six cases: case numbers 2014-CF-2685, 2014-CF-2746, 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750. The plea agreement clearly provided that the ten-year mandatory minimum sentences in all of Appellant's cases would run concurrently except for the sentence in case number 2014-CF-2685, which would run consecutively to the sentence in case number 2014-CF-2746. Thus, Appellant would serve concurrent sentences in case numbers 2014-CF-2746, 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750, after which he would then serve the sentence in case number 2014-CF-2685.

However, the judgments and sentences erroneously reflect that Appellant is to serve the sentence in case number 2014-CF-2685 concurrently with-instead of consecutively to-the sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750. Further, the judgments and sentences reflect that although the sentence in case number 2014-CF-2685 is to run consecutively to the sentence in case number 2014-CF-2746, the sentences in both of these cases are to run concurrently with the sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750. It is axiomatic that two consecutive prison sentences cannot both run concurrently with a third prison sentence where all three sentences are of equal length.

The judgments and sentences must be corrected to consistently reflect the sentence structure outlined by the negotiated plea agreement. Thus, we reverse and remand with directions that that trial court correct the judgment and sentence in case number 2014-CF-2685 by removing all reference to the sentence running concurrently with the sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750. Moreover, we direct the trial court to correct the judgments and sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750 by removing all reference to the sentences therein running concurrently with the sentence in case number 2014-CF-2685. To the extent Appellant claims that double jeopardy principles require that all of his sentences run concurrently, Appellant has no legitimate expectation of finality in a sentence structure that is inconsistent with his negotiated plea agreement. See Annatone v. State , 198 So.3d 1031, 1033-35 (Fla. 5th DCA 2016) (citing Dunbar v. State , 89 So.3d 901 (Fla. 2012) ); see also Martinez v. State , 216 So.3d 734, 739-40 (Fla. 4th DCA 2017) (en banc).

REVERSED and REMANDED with directions.

Lewis, Roberts, and Jay, JJ., concur.


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

text:
    Adrian P. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3415
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Adrian P. Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was convicted of manslaughter by culpable negligence and sentenced to 30 years' imprisonment, with a 15-year minimum-mandatory term, and designated as an Habitual Felony Offender and Prison Releasee Reoffender. At trial, the jury found by special interrogatory that the victim's death was "caused by the neglect of [Appellant], a caregiver."

The victim was a four-month-old infant. Appellant forcibly thrust a baby wipe down the infant's mouth and into his throat so deeply that he asphyxiated. The emergency room physician had to remove the foreign object from the infant's mouth with forceps. Expert testimony established that the infant could not have ingested the wipe on his own volition. The foreign object had blood on it that was attributed to an injury to the infant's mouth, a torn frenulum, that bled on the wipe as it was forcibly shoved into the infant's throat.

Although Appellant was charged with second-degree murder, the jury returned a verdict of guilt for the lesser-included crime of manslaughter. This court affirmed Appellant's conviction and sentence, without opinion, in Smith v. State, 25 So.3d 1229 (Fla. 1st DCA 2010). In Appellant's first collateral case, he claimed defense counsel was ineffective and sought relief under Florida Rule of Criminal Procedure 3.850. That motion was denied by the trial court, and this court affirmed, without opinion, in Smith v. State, 129 So.3d 1072 (Fla. 1st DCA 2013).

Appellant's second postconviction motion was filed under Florida Rule of Criminal Procedure 3.800(a), where he asserted that the trial court improperly designated him as a Prison Releasee Reofffender, because he had not been released from prison within three years of the date he committed the manslaughter. The trial court denied the claim. This court affirmed in Smith v. State, 151 So.3d 44 (Fla. 1st DCA 2014), rev. denied, 163 So.3d 513 (Fla. 2015), where we held that Appellant did qualify for the designation as a Prison Releasee Reoffender, based on his return to prison for a violation of conditional release and his subsequent second release from prison within three years of the date of the crime.

In this collateral appeal, Appellant's fourth appearance in this court, he asserts that his Habitual Felony Offender designation is an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), because one of his qualifying felonies, a 1996 conviction for attempted burglary, was not valid. Appellant relies on Heggs v. State, 759 So.2d 620, 627 (Fla. 2000), where the Florida Supreme Court held that Chapter 95-184, Laws of Florida, violated the single-subject rule of Article III, section 6 of the Florida Constitution. We note that in Heggs , the supreme court held that certain sentences imposed under the legislation were invalid during a very limited time period, which expired approximately two decades ago.

Regardless, Appellant cannot challenge his Habitual Felony Offender sentence in an unrelated case by attempting to attack the 1996 conviction for burglary used to habitualize him under Florida Rule of Criminal Procedure 3.800. Appellant was required to move to vacate his 1996 conviction in a separate proceeding, filed under Florida Rule of Criminal Procedure 3.850, within two years of the date his conviction became final. But a motion attacking the 1996 conviction would clearly be untimely at this point.

As we stated in State v. Williams , 854 So.2d 215 (Fla. 1st DCA 2003), and reiterate here, rule 3.800(a) does not authorize a legal challenge to a conviction: "Because Rule 3.800 provides only an avenue for correcting, modifying, or reducing a sentence," Appellant's challenge to an underlying conviction could not be considered in the trial court under this limitation of Florida Rule of Criminal Procedure 3.800. Id. at 217.

Thus, although it was not the reason for the trial court's ruling denying relief here, we affirm on this basis. See Childers v. State, 936 So.2d 585, 587 (Fla. 1st DCA 2006), rev. denied, 939 So.2d 1057 (Fla. 2006) (affirming trial court ruling on different ground under "tipsy coachman" doctrine).

AFFIRMED .

Wolf and Ray, JJ., concur.


text:
    John JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3266
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Charles Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant's motion filed March 13, 2018, is granted. This appeal is hereby dismissed as untimely.

Lewis, Roberts, and Jay, JJ., concur.


text:
    LASALLE BANK, N.A. as Trustee FOR WAMU MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-HYO5 TRUST, Petitioner, v. David L. GRIFFIN ; Terrell K. Johnson; and Linda Johnson; et al., Respondents.
    No. 1D17-5122
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Allison Morat of Pearson Bitman LLP, Maitland, for Petitioner.
    Michael S. Burke and Eric A. Krebs of Burke Blue Hutchison Walters & Smith, P.A., Panama City, for Respondent David L. Griffin.
   Per Curiam.

Petitioner LaSalle Bank, N.A., seeks a writ of prohibition to prevent the circuit court from considering a motion for damages due to betterment that a third party purchaser filed against Petitioner after the circuit court entered a final judgment of foreclosure in Petitioner's favor. Agreeing that the circuit court lacks jurisdiction to consider the motion, we grant the writ.

The circuit court entered a final judgment of foreclosure in March of 2010. Before the foreclosure sale, the defendant property owners, with Petitioner's approval, entered into a short sale agreement with a third party, John Warren, and negotiated a sale price of $900,000. However, due to an error, the law firm representing Petitioner at the time did not file a motion to cancel the sale. The property was sold at a foreclosure sale to Respondent David Griffin for $75,000.

Three days after a certificate of title was issued to Griffin, Petitioner moved to vacate the sale and title. In December of 2011, the circuit court granted the motion and entered an order vacating sale. The circuit court found that Griffin was the brother-in-law of John Warren, appeared at the sale at the request of John Warren, and purchased the property pursuant to the instructions of John Warren and using funds provided by John Warren. The court found that the foreclosure bid was grossly inadequate, and that while there was no misconduct, Griffin knowingly capitalized on Petitioner's law firm's failure to cancel the sale and his bid could not be characterized as a good faith bid. Griffin had objected to the motion to vacate, claiming that he had spent approximately $160,000 related to the repair of the property.

Griffin moved for rehearing of the order vacating sale, arguing that the order failed to order the return of his purchase funds to him and had not reserved jurisdiction to determine the amount of money he was owed for his improvements to the property. Thereafter, on June 21, 2012, the circuit court entered an amended order vacating sale. The sale remained vacated, but the amended order provided that Griffin was entitled to a return of his foreclosure sale purchase price. The circuit court also "reserve[d] jurisdiction to consider whether or not Mr. Griffin is entitled to damages and or other relief for the value added to the Property for the repairs and improvements made by Mr. Griffin to the Property. Mr. Griffin shall have twenty (20) days from the date of this Amended Order Vacating sale to file an appropriate pleading with this Court seeking damages or such other relief as the Court deems just."

On July 11, 2012, Griffin filed a motion for damages due to betterment. He sought the value of the improvements he had made to the property, in the amount of $368,000. The motion remained pending for over four years, as a subsequent foreclosure sale was vacated and the foreclosure sale was rescheduled two more times. In October of 2016, the circuit court granted Griffin's motion to refer his motion for damages to mediation. No agreement was reached at mediation, and, at a foreclosure sale in May of 2017, the property was sold to U.S. Bank in its capacity as Successor Trustee. In August of 2017, Griffin noticed his motion for damages for hearing, and the circuit court again referred the matter to mediation.

At that point, Petitioner moved to strike the order referring the case to mediation, arguing the circuit court was without jurisdiction to order it to mediate the motion for damages more than seven years after the foreclosure judgment had become final. The circuit court denied this motion, finding it had jurisdiction to order the parties to mediation.

We agree with Petitioner that the circuit court did not have jurisdiction to entertain Griffin's third-party motion for damages after it rendered the final judgment of foreclosure in 2010. " 'The rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied.' " Travelers Cas. & Surety Co. of Am. v. Culbreath Isles Prop. Owners Ass'n, Inc. , 103 So.3d 896, 899 (Fla. 2d DCA 2012) (quoting Liberty Ins. Corp. v. Milne , 98 So.3d 613, 615 (Fla. 4th DCA 2012) ). In Travelers , a homeowners' association filed a complaint against property owners alleging violation of deed restrictions, and the circuit court entered final summary judgment in favor of the property owners. The parties later settled all claims, including attorney's fees. After the settlement, the association served a motion to file a supplemental complaint to pursue a third-party indemnification claim against Travelers. The Second District found, relying on the rule quoted above, that a "circuit court therefore exceeds its jurisdiction by allowing the filing of a third-party complaint after the case has proceeded to this point of finality." Id. The Second District rejected the association's argument that the circuit court had jurisdiction to proceed under its inherent continuing jurisdiction to enforce the final judgment, finding the third-party complaint was not an enforcement action, but sought relief from a third party that was not joined in the proceedings below, based on its obligations under an insurance contract that was not at issue in the proceedings. Id. See also Central Mortg. Co. v. Callahan , 155 So.3d 373, 375 (Fla. 3d DCA 2014) ("[A] court 'does not have the power to impose upon a party a new duty not previously adjudicated.' Superior Uniforms, Inc. v. Brown , 221 So.2d 214, 215 (Fla. 3d DCA 1969).").

Here, the circuit court reserved jurisdiction to consider a claim that was not related to its ability to enforce the final judgment of foreclosure. Instead, Griffin's motion for damages raised a new claim that was not part of the previous foreclosure litigation. Accordingly, the circuit court exceeded its jurisdiction by proceeding on the motion.

Finally, even though Petitioner participated in one mediation on the pending motion for damages and waited five years to raise this jurisdictional argument, Petitioner has not waived the jurisdictional defect. See 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd. , 92 So.3d 320, 321 (Fla. 1st DCA 2012) (Ray, J., concurring) (explaining "case jurisdiction" and citing cases establishing that under precedent from this Court, lack of case jurisdiction cannot be waived).

Accordingly, we grant the petition for writ of prohibition and quash the order denying Petitioner's motion to strike the order referring the case to mediation. The circuit court does not have jurisdiction to consider Griffin's motion for damages.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Gary MIXON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2813
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 1, 2018
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State , 223 So.3d 1106 (Fla. 5th DCA 2017).

EVANDER, LAMBERT and EDWARDS, JJ., concur.


text:
    Antony Lee TURBEVILLE, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D17-221
    District Court of Appeal of Florida, First District.
    May 3, 2018
    John A. Richert of Richert Quarles P.A., Clearwater, for Appellant.
    Gregory D. Venz, Deputy General Counsel, Marshawn Michael Griffin, Assistant General Counsel, Department of Financial Services, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant Antony Lee Turbeville challenges a Final Order of the Department of Financial Services revoking Appellant's insurance license, following the Department's finding that Appellant violated section 626.621(13), Florida Statutes (2015). Appellant argues that: (1) the language of section 626.621(13), Florida Statutes, and the penalty guidelines of Florida Administrative Code Rule 69B-231.090(13) (2015) are ambiguous and should be construed in his favor; (2) that the Department's application of rule 69B-231.090(13) constitutes an ex post facto violation; and (3) that the Department's application of the section 626.621(13), Florida Statutes, to licensees of the Financial Industry Regulatory Authority ("FINRA") violates a licensee's constitutional right to remain silent.

Facts

Appellant entered the securities industry in 1987 and registered with several FINRA member firms from 1987 through 2015. Among other products, Appellant sold Collateralized Mortgage Obligations, which are complex debt securities that essentially repackage mortgage loans as bonds purchasable by investors.

On December 30, 2009, FINRA filed a six-count complaint against Appellant, alleging violations of the Securities Exchange Act and the National Association of Securities Dealers rules. FINRA's Extended Hearing Panel conducted a sixteen-day hearing and issued its order on May 31, 2012. The Extended Hearing Panel found that Appellant intentionally or recklessly misrepresented the risks of the Collateralized Mortgage Obligations and sold them to elderly and unsophisticated investors. From July 2005 to July 2007, Appellant, his colleague, and their firm earned approximately $492,500 in commissions from seven customers who lost approximately $1.6 million as a result of Appellant's transactions. The Extended Hearing Panel further found that Appellant, along with two colleagues, violated section 10(b) of the Securities Exchange Act and rule 10b-5 thereunder, and violated FINRA rules 2120 and 2110, and this decision barred Appellant from associating with any FINRA-regulated firm in any capacity.

Appellant appealed this decision to the National Adjudicatory Council ("Council"), FINRA's appellate panel, on June 12, 2012. The Council affirmed the Hearing Panel's factual findings and the sanctions on April 16, 2015.

On April 19, 2016, the Department filed a one-count complaint against Appellant, alleging a violation of section 626.621(13), Florida Statutes. An informal hearing was held pursuant to section 120.57(2), Florida Statutes, as Appellant conceded there were no material facts in dispute. The Department's hearing officer filed his Written Report and Recommended Order, stating the following conclusions: (1) the National Adjudicatory Council's decision of April 16, 2015 constituted final disciplinary action by FINRA, and final agency action under state law, pursuant to section 626.621(13), Florida Statutes ; (2) Appellant violated section 626.621(13), Florida Statutes ; and (3) under Florida Administrative Code Rule 69B-231.090(13), the penalty to be imposed is the highest identical penalty imposed by a national securities association upon which the statutory violation is based, which was the revocation of Appellant's insurance license. The Department issued its final order adopting the hearing officer's findings of fact, conclusions of law, and recommendation, and the Department revoked Appellant's license.

Analysis

1. Is the language of section 626.621(13), Florida Statutes (2015), or Florida Administrative Code Rule 69B-231.090(13) ambiguous?

We review issues of statutory interpretation de novo. Sullivan v. Fla. Dep't of Envtl. Prot. , 890 So.2d 417, 420 (Fla. 1st DCA 2004).

Administrative agencies are afforded wide discretion in the interpretation of a statute which they administer, but appellate courts are not required to defer to an unreasonable statutory interpretation. Id. "If the agency's interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed," Florida Dep't of Education v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003), but " 'judicial adherence to the agency's view is not demanded when it is contrary to the statute's plain meaning.' " Werner v. Dep't of Ins. & Treasurer, 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) (quoting PAC for Equality v. Dep't of State, Fla. Elections Comm'n , 542 So.2d 459, 460 (Fla. 2d DCA 1989) ). Statutes providing for revocation or suspension of a license to practice "are deemed penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee." Beckett v. Dep't of Fin. Servs. , 982 So.2d 94, 100 (Fla. 1st DCA 2008) (quoting Elmariah v. Dep't of Prof'l Regulation, Bd. of Med. , 574 So.2d 164, 165 (Fla. 1st DCA 1990) ). But " '[w]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.' " Borden v. East-European Ins. Co. , 921 So.2d 587, 595 (Fla. 2006) (quoting Daniels v. Fla. Dep't of Health , 898 So.2d 61, 64 (Fla. 2005) ).

Section 626.621, Florida Statutes, as it read at all times pertinent here, provided:

The department may, in its discretion ... revoke ... the license ... of any ... agent ..., and it may suspend or revoke the eligibility to hold a license ... of any such person, if it finds that as to the ... licensee ... any one or more of the following applicable grounds exist under circumstances for which such ... revocation ... is not mandatory under s. 626.611:
....
(13) [The licensee has] been the subject of or has had a license ... or other authority to conduct business subject to any decision ... by any ... national securities ... association involving ... a violation of any rule or regulation of any national securities ... association.

Florida Administrative Code Rule 69B-231.090 describes specific penalties for violations of section 626.621, Florida Statutes :

If it is found that the licensee has violated any of the following subsections of Section 626.621, F.S., for which ... revocation of license(s) ... is discretionary, the following stated penalty shall apply:
....
(13) Section 626.621(13), F.S.-
(a) The highest identical penalty to the penalty imposed by the ... national securities ... association or, if not available, the highest substantially similar penalty to the penalty imposed.
1. A revocation, removal, lifetime prohibition, lifetime bar or lifetime ban, or the equivalent, or any suspension with a duration greater than 24 months, shall result in revocation; and
2. A suspension with a duration of less than 24 months, shall result in a suspension of equal length.

Appellant argues that the statute and rule are ambiguous, because neither provide guidance for what date should be used to compute penalties under section 626.621(13), Florida Statutes, or more specifically, whether the Extended Hearing Panel's or the National Adjudicatory Council's decisions constitute "final agency action" as described in the statute. Therefore, Appellant argues, the statute must be construed in favor of Appellant, which would define the Extended Hearing Panel's decision on May 31, 2012, as the final agency action and ultimately result in an impermissible ex post facto application of Florida Administrative Code Rule 69B-231.090(13), because Appellant's violation occurred before the rule was promulgated on March 24, 2014.

Interpretation of FINRA's rules is exclusively a federal question. See Turbeville v. Fin. Indus. Regulatory Auth. , 2016 WL 501982 (M.D. Fla. Feb. 9, 2016) (holding removal to federal court was proper where Tuberville's pleading required court to interpret FINRA's rules). Federal circuit courts have held that "[t]he NAC's decision (or the Hearing Panel's decision if there was no appeal) is FINRA's final action unless FINRA's Board of Governors calls for review." Scottsdale Capital Advisors Corp. v. Fin. Indus. Regulatory Auth., Inc. , 844 F.3d 414, 418 (4th Cir. 2016). Further, "[a]n appeal to the National Adjudicatory Council from a decision issued pursuant to Rule 9268 or Rule 9269 shall operate as a stay of that decision until the National Adjudicatory Council issues a decision pursuant to Rule 9349 ...." FINRA Rule 9311(b).

Thus, the Extended Hearing Panel's decision is final unless appealed to the National Adjudicatory Council. If appealed to the Council, the decision is stayed.

Appellant argues that section 626.621(13), Florida Statutes, is ambiguous, because it does not specify whether the decision of the Extended Hearing Panel or of the National Adjudicatory Council should be used for penalty calculation. This argument incorrectly implies that two parallel decisions co-exist and that the Florida Statutes must differentiate them. On the contrary, as stated above, the Extended Hearing Panel's decision only becomes effective if it is not appealed; if appealed, it is stayed until the National Adjudicatory Council makes a decision, which then becomes FINRA's final action. At no time during the procedure do two countervailing decisions co-exist simultaneously; thus, there is no need for section 626.621(13) to specify which decision should be relied upon.

Appellant also argues that section 626.621(13), Florida Statutes, is ambiguous, because it applies to "any decision ... by any ... national securities ... association." (Emphasis added.) But this court has found that the Florida Office of Financial Regulation was permitted to apply a statute very similar to the one at issue here, to deny registration to an applicant who was found in a FINRA arbitration decision to have violated securities laws.

In Wojnowski v. State , Office of Financial Regulation , this court analyzed section 517.161(1)(m), Florida Statutes (2011), which permitted the Office to deny registration to any applicant who " '[h]as been the subject of any decision ... by any ... national securities ... association, involving a violation of any federal or state securities or commodities law ....' " 98 So.3d 189, 191 (Fla. 1st DCA 2012) (quoting § 517.161(1)(m), Fla. Stat. (2011) (emphasis added) ). This court found that the State was permitted to deny the applicant's registration application, because, after a FINRA arbitration decision, the applicant was clearly "subject to" a decision by FINRA, defined as a "national securities association." And because FINRA made a finding that the applicant had violated state securities laws, the State was permitted to rely on the FINRA award to deny the applicant's registration application. Id.

Here, the language of section 626.621(13), Florida Statutes, mirrors almost verbatim the language of section 517.161(1)(m), Florida Statutes, analyzed in Wojnowski . Using a virtually identical statute as its authority to do so, the Department revoked Appellant's license on the basis of FINRA's finding that Appellant violated securities laws. In Wojnowski , this court noted that the language in section 517.161(1)(m), Florida Statutes, broadly allowed the State to deny registration, if the applicant had been "the subject of any decision" by an association such as FINRA. 98 So.3d at 191 (emphasis in original). This court found the phrase "any decision" to mean precisely that: any decision by an association such as FINRA. Id. The phrase "any decision" in section 626.621(13), Florida Statutes, is not ambiguous; it means that the agency is authorized to revoke a license, if the licensee has been the subject to any decision by a national securities association such as FINRA. See also Wright v. City of Miami Gardens , 200 So.3d 765, 771 (Fla. 2016) (holding that a statute allowing mayoral candidate to be disqualified if a bank returned his qualifying fee check for "any reason" was unambiguous, as "any reason" included reasons which were not the fault of the candidate, but finding statute unconstitutional).

Appellant additionally argues that section 626.621(13), Florida Statutes, is ambiguous, because both a licensee and FINRA are allowed to appeal the decision of the Extended Hearing Panel. Again, section 626.621(13), Florida Statutes, allows the Department to revoke a license, if the licensee has been the subject of "any decision" by an association such as FINRA. The fact that either FINRA or a member may appeal a decision by the Extended Hearing Panel does not create ambiguity; the final decision from either appeal would fall under "any decision," and the Department may revoke a license based on either. See Wojnowski , 98 So.3d at 191 ; Wright , 200 So.3d at 771.

2. Does the use of Florida Administrative Code Rule 69B-231.090(13) constitute an ex post facto application?

A law violates the prohibition against ex post facto laws if two conditions are met: (a) it is retrospective in effect, and (b) it alters the definition of criminal conduct or increases the penalty by which a crime or civil infraction is punishable. Art. I, § 10, Fla. Const ; Gwong v. Singletary , 683 So.2d 109, 112 (Fla. 1996). The ex post facto prohibition applies to criminal or civil penal statutes. Lescher v. Fla. Dep't of Highway Safety & Motor Vehicles , 985 So.2d 1078, 1081 (Fla. 2008). Statutes providing for the revocation or suspension of a license to practice are deemed penal in nature. Elmariah , 574 So.2d at 165.

Section 626.621(13), Florida Statutes, authorizes the Department to revoke a licensee's license, if the licensee has had his or her authority to conduct business subjected to any decision of a national securities association. FINRA is such an association. Wojnowski , 98 So.3d at 191. Appellant argues that the decision of the Extended Hearing Panel operated as FINRA's final action, and he therefore was subject to FINRA's decision, and by extension violated section 626.621(13), Florida Statutes, on May 31, 2012, twenty-two months before the promulgation of Florida Administrative Code Rule 69B-231.090(13). But, Appellant argues that because he committed the violation before promulgation of the rule authorizing his punishment, the Department's revocation of his license is an impermissible ex post facto application.

The Department argues that FINRA's final action occurred on April 15, 2016, when the National Adjudicatory Council issued its decision; therefore, Appellant violated section 626.621(13), Florida Statutes, after the promulgation of Florida Administrative Code Rule 69B-231.090(13). Thus, Appellee argues, the license revocation was not an ex post facto application.

The applicable FINRA rules state:

9311. Appeal By Any Party; Cross-Appeal
(a) Time to File Notice of Appeal
A Respondent or the Department of Enforcement or the Department of Market Regulation may file a written notice of appeal within 25 days after service of a decision issued pursuant to Rule 9268 or Rule 9269.
(b) Effect
An appeal to the National Adjudicatory Council from a decision issued pursuant to Rule 9268 or Rule 9269 shall operate as a stay of that decision until the National Adjudicatory Council issues a decision pursuant to Rule 9349[.]
9349. National Adjudicatory Council Formal Consideration; Decision.
(a) Decision of National Adjudicatory Council, Including Remand
In an appeal or review of a disciplinary proceeding ... the National Adjudicatory Council, after considering all matters presented in the appeal or review and the written recommended decision of the Subcommittee or, if applicable, the Extended Proceeding Committee, may affirm, dismiss, modify, or reverse the decision of the Hearing Panel, or if applicable, Extended Hearing Panel[.]

(Emphasis added.) In Scottsdale , the United States Court of Appeals for the Fourth Circuit interpreted the FINRA rules to state: "The NAC's decision (or the Hearing Panel's decision if there was no appeal) is FINRA's final action unless FINRA's Board of Governors calls for review." 844 F.3d at 418.

Therefore, the appeal that Appellant initiated stayed the decision of the Extended Hearing Panel rendered in 2012, making it non-final by definition under FINRA Rule 9311(b). See Century Sur. Co v. de Moraes , 998 So.2d 662, 663 n.1 (Fla. 4th DCA 2009) ("[a] stay ... essentially postpones one proceeding until a contingency occurs").

Appellant cites Miami-Dade Water and Sewer Authority v. Metropolitan Dade County for the proposition that an order, judgment or decree is final when the order appealed "constitutes an end to the judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties directly affected." 469 So.2d 813, 814 (Fla. 3d DCA 1985). Appellant thus argues that the Extended Hearing Panel functions as a trial court, and that after its decision, nothing further remained to be done to terminate the dispute between the parties. Appellant acknowledges that the National Adjudicatory Council may review and reverse or modify the Extended Hearing Panel's decision, but he argues that because the Extended Hearing Panel functions as a trial court, its decision is final and comes after the work of the Extended Hearing Panel is completed.

The decision in Miami-Dade Water and Sewer described the rule for finality of a trial court's decision when determining whether the judicial labor was terminated and therefore subject to appellate review. 469 So.2d at 814. Comparing the Extended Hearing Panel to a trial court and the National Adjudicatory Council to an appellate court is a false analogy. Significant here, parties to a National Adjudicatory Council hearing, with leave of the Council, may submit additional evidence . FINRA Rule 9346(b). Likewise, a party may introduce rebuttal evidence in response to proposed additional evidence at this stage. FINRA Rule 9346(c). Additionally, a decision by the National Adjudicatory Council is required to contain "a statement setting or the findings of fact with respect to any act or practice the Respondent was alleged to have committed or omitted." FINRA Rule 9349(b)(3). Thus, unlike an appellate court reviewing a final order by a trial court, the National Adjudicatory Council may hear new evidence and make findings of fact. It is clear that the "judicial labor of the trial court" is therefore not complete when a member appeals a decision from the Extended Hearing Panel to the National Adjudicatory Council. Miami-Dade Water & Sewer , 469 So.2d at 814. Further, Appellant's trial court analogy is inappropriate because, after a criminal trial, "a conviction on appeal at sentencing is not yet final ." Baxter v. State , 617 So.2d 338, 340 (Fla. 1st DCA 1993) (emphasis in original). Here, as after a trial, the lower tribunal's decision is not final for sentencing purposes during the pendency of appeal.

Appellant also argues that the use of "any decision" is impermissible, because it would allow the Department to use the decision of either the Extended Hearing Panel or the National Adjudicatory Council to revoke his license, which could result in an ex post facto application due to the possibility of change in the Department rule. However, the Extended Hearing Panel's decision was stayed when Appellant initiated his appeal to the National Adjudicatory Council. Scottsdale , 844 F.3d at 418. A "stay" is the "postponement or halting of a proceeding, judgment, or the like." Black's Law Dictionary (10th ed. 2014); de Moraes , 998 So.2d at 663. Therefore, a decision by the Extended Hearing Panel is postponed, halted, or suspended when an appeal is initiated. Such a suspended judgment therefore would not fall under the "any decision" definition in section 626.621(13), Florida Statutes, because it is stayed until "a contingency occurs"-in this case, the resolution by the National Adjudicatory Council. Id.

Therefore, because FINRA's action was not final until April 16, 2015, when it was resolved by the National Adjudicatory Council, the Department's application of Florida Administrative Code Rule 69B-231.090(13) (adopted March 24, 2014) to Appellant's violation of section 626.621(13), Florida Statutes, was not an ex post facto application, as the violation occurred after the promulgation of the rule, based on the Council's affirmance of the Extended Hearing Panel's decision.

3. Does the use of a FINRA decision in a license-revocation proceeding constitute a violation of the right to remain silent?

"Because license revocation or suspension proceedings are penal in nature, the fifth amendment right to remain silent applies." McDonald v. Dep't of Prof'l Regulation , 582 So.2d 660, 662 n.2 (Fla. 1st DCA 1991). Appellant argues that even though section 626.621(13), Florida Statutes, does not expressly subject him to discipline for refusal to testify, it allows the discipline indirectly, thus violating the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution.

FINRA Rule 8210 requires members to submit sworn testimony in response to FINRA inquiries, and a failure to respond may result in sanctions. Appellant argues that because section 626.621(13), Florida Statutes, allows the Department to revoke a licensee's license if he or she has been subject to a decision by FINRA, a licensee can indirectly have his or her license revoked by failing to respond to a FINRA Rule 8210 request. Because the Fifth Amendment applies to license-revocation proceedings, Appellant argues that the Department cannot revoke a license by relying on the decision of an association that does not afford its members the right to remain silent.

Appellant cites State ex rel. Vining v. Florida Real Estate Commission , 281 So.2d 487 (Fla. 1973), as analogous to the present case. In Vining , the Florida Supreme Court analyzed a statute that required licensed realtors to respond by means of a sworn answer to charges made by the Real Estate Commission. 281 So.2d at 491. The penalty for failure to respond to such charges was the entry of a default judgment against the defendant, which could have resulted in suspension or revocation of the realtor's license. Id. The supreme court held that there was "basic constitutional infirmity" in a statute requiring a response under the threat of license revocation or suspension, which amounted to compelling the defendant to be a witness against himself within the meaning of the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution. Id. at 491-92. Vining is distinguishable, however, because there, testimony was compelled by state action. By contrast, section 626.621(13), Florida Statutes, does not subject licensees or applicants to discipline for refusal to testify, but allows the Department to revoke a license if the licensee's authority to conduct business was subject to a decision by a non-governmental national securities agency.

Because interpretation of FINRA rules is a federal question, Florida courts have not discussed an agency's authority to discipline a licensee as a result of the licensee's refusal to testify before FINRA. The United States Court of Appeals for the Second Circuit has determined that "testimony in an NASD proceeding may entail exposure to criminal liability, but that in itself is not enough to establish the requisite governmental nexus" to trigger Fifth Amendment protection. D.L. Cromwell Inv., Inc. v. NASD Regulation, Inc. , 279 F.3d 155, 162 (2d Cir. 2002) (quoting Jackson Metro. Edison Co. , 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ). Such a nexus exists where (1) the state has exercised coercive power over a private decision, or where (2) the private entity has exercised powers that are typically exclusive to the state. Cromwell, 279 F.3d at 161 (citing Blum v. Yaretsky , 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) ). A federal district court in New York similarly held that investigations by FINRA do not trigger the Fifth Amendment right against self-incrimination, even though the testimony may later subject a defendant to civil and criminal enforcement proceedings by the government:

It is beyond cavil that the NASD is not a government agency; it is a private, not-for-profit corporation. It was not created by statute. None of its directors or executives are government officials or appointees. It receives no government funding, and not being a part of the government or owing its existence to the government, its actions cannot be imputed to the government nor can its agents bind the government. It is also beyond cavil that questions put to the defendants by the NASD in carrying out its own legitimate investigative purposes do not activate the privilege against self-incrimination nor would the Fourth Amendment place any limitation upon the NASD in pursuing its regulatory functions. Nor would a violation of a rule of the NASD which would subject the defendants to sanctions by that Association, and even to civil and criminal enforcement proceedings by the government, suffice to create an agency relationship between the NASD and the government.

United States v. Shvarts , 90 F.Supp.2d 219, 222 (E.D.N.Y. 2000) (citations omitted; abrogated on other grounds); see also Cromwell , 279 F.3d at 162 (2d Cir. 2002) (holding that, because there is not a "sufficiently close nexus" to make NASD actions "fairly attributable" to the government, testimony in an NASD proceeding does not trigger Fifth Amendment protection); Waddell & Reed Fin., Inc. v. Torchmark Corp. , 223 F.R.D. 566, 622 (D. Kan. 2004) (holding communication with NASD in connection with investigation could be used to subject members to civil liability).

We agree with these courts that, because testimony to FINRA is not compelled by state action, the privilege against self-incrimination in the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution is not activated. Therefore, the Department's reliance on FINRA's decision in punishing Appellant under Florida Administrative Code Rule 69B-231.090(13), pursuant to section 626.621(13), Florida Statutes, is not unconstitutional.

Conclusion

FINRA rules and federal court rulings state that if the Extended Hearing Panel's decision is appealed, the decision by the National Adjudicatory Council is FINRA's final action. Thus, the language of section 626.621(13), Florida Statutes, is not ambiguous, and the Department's application of the statute and Florida Administrative Code Rule 69B-231.090(13) is not an ex post facto application. Additionally, because testimony to FINRA is not compelled by State action, the use of testimony in FINRA license-revocation proceedings does not violate the right to remain silent as found in the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution. We therefore affirm the Department's final order.

AFFIRMED .

Makar and Winokur, JJ., concur.

      In July 2007, in connection with the consolidation of its regulatory functions of the New York Stock Exchange, the National Association of Securities Dealers (NASD) changed its name to the Financial Industry Regulatory Authority (FINRA). Eppinger v. Sealy , 25 So.3d 69, 72 n.1 (Fla. 5th DCA 2009).

      In 2017, the legislature amended section 626.621, Florida Statutes. § 626.621, Fla. Stat. (2015), amended by ch. 2017-175, § 27, at 23-24, Laws of Fla. The pre-2017 language of section 626.621(13) still exists, but now as section 626.621(12). All references herein to section 626.621(13) refer to the statute as it read in 2015, when FINRA affirmed the sanctions against Appellant.


author: LAGOA, J.

text:
    Suresh GIDWANI and Bina Gidwani, Appellants, v. Sherry ROBERTS and Alice Randolph, Appellees.
    No. 3D17-677
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Arnold R. Ginsberg, P.A., and Arnold R. Ginsberg, for appellants.
    Pathman Lewis, LLP, and Peter L. Meltzer and John A. Moore, for appellees.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   LAGOA, J.

Appellants, Suresh Gidwani and Bina Gidwani (collectively "Appellants"), appeal from a final summary judgment as to liability, as well as a final judgment awarding both damages and attorneys' fees, entered in favor of Appellees, Sherry Roberts ("Roberts") and Alice Randolph (collectively "Appellees"). Because genuine issues of material fact exist as to who owns the parking spaces numbered 410 and 411, we reverse the final summary judgment as to liability entered in favor of Appellees. We further reverse the final judgment awarding damages and attorneys' fees in favor of Appellees.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 29, 1998, Appellees purchased a penthouse condominium unit ("Unit PH-2") at the Decoplage Condominium (the "Decoplage") in Miami Beach from John Fries ("Fries"). Fries originally purchased Unit PH-2 in 1994 from the Decoplage's developer, which assigned parking spaces numbered 410 and 411 (the "Decoplage Spaces") to Fries with the unit. That assignment was memorialized by a written instrument (the "Decoplage Assignment"), which provided that the Decoplage Spaces were for the "exclusive use of the Unit PH-2." Appellees testified that Fries orally assigned the Decoplage Spaces to them with their purchase of Unit PH-2, which they had used uninterrupted for thirteen years, but that they were unable to contemporaneously record the assignment due to the condominium developer's policies. In April 1999, the Decoplage amended its Declaration of Condominium to require unit owners to record their assignments of parking spaces. It was not until March 28, 2011, that Appellees recorded a certificate, prepared by Roberts, evidencing the assignment of the Decoplage Spaces to them from Fries in the Official Public Records of Miami-Dade County.

On March 29, 2011, Appellants finalized their purchase of a Decoplage condominium unit ("Unit 1033") from Dorian A. Vergos ("Vergos"), which was evidenced by a warranty deed recorded in the Official Public Records of Miami-Dade County on April 12, 2011. Subsequently, Appellants received an "approval" from the Decoplage that referenced the Decoplage Spaces as being assigned to Unit 1033. The Decoplage's corporate representative testified, and a letter from the Decoplage's counsel stated, however, that this "approval" only pertained to unit purchases and neither approved nor disapproved parking space assignments. The corporate representative also testified that the Decoplage does not independently verify parking space assignments, but instead relies upon information provided by the unit owners. This "approval" was the only record evidence suggesting Appellants were assigned the Decoplage Spaces, as Appellants' Purchase and Sale Agreement for Unit 1033 did not reference the Decoplage Spaces. Moreover, Appellants never met or spoke with Vergos and thus was unaware of whether Vergos ever had the right to the Decoplage Spaces.

After Appellants' purchase of Unit 1033, a dispute commenced over the assignment of the Decoplage Spaces. Initially, Appellants received a remote transmitter that allowed them to enter the Decoplage's parking garage, but the Decoplage temporarily revoked their access for a five-month period. The Decoplage subsequently informed the parties that they would need to resolve their ownership claims of the Decoplage Spaces through litigation.

On May 6, 2013, Appellees filed a complaint against Appellants seeking declaratory relief, injunctive action, and damages resulting from Appellants' rental of the Decoplage Spaces to third parties. Following discovery, Appellees moved for summary judgment on the issue of whether Appellants were liable on all counts alleged in their complaint. Appellees filed a sworn affidavit from Roberts with exhibits. In her affidavit, Roberts attested that Fries had orally assigned the Decoplage Spaces with the purchase of Unit PH-2 and that Fries had also provided an undated letter (the "Fries Letter") confirming the assignment to Appellees. The Fries Letter was an exhibit to Roberts' affidavit. The Fries Letter, however, was not created contemporaneously with Appellees' purchase of Unit PH-2, but instead purportedly signed by Fries when Appellees found him, by chance, at a Starbucks on Miami Beach after litigation began. Fries was not deposed nor did he file an affidavit attesting to the veracity of the letter.

In their Response and Memorandum of Law in Opposition to the Motion for Summary Judgment, Appellants argued that Appellees failed to satisfy their burden of proving that no genuine issues of material fact existed in the case. First, Appellants argued that the records of the condominium association produced and authenticated by Decoplage's designated corporate representative and member of board of directors at his deposition contradicted Appellees' claim. Second, Appellees argued that the Fries Letter attached as Exhibit A to the Roberts's affidavit was "not certified, notarized, verified or authenticated in any admissible manner."

Following a hearing, the trial court granted Appellees' summary judgment motion, and entered a final judgment for damages and attorneys' fees in favor of Appellees, which was later amended on March 2, 2017. Appellants filed this timely appeal.

II. STANDARD OF REVIEW

We review de novo an order granting summary judgment. Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009). In reviewing a summary judgment, this Court must consider the evidence in the light most favorable to the non-moving party and if the slightest doubt exists, summary judgment must be reversed. Id.

III. ANALYSIS

On appeal, Appellants argue that because the record does not conclusively demonstrate that Appellees own the rights to use the Decoplage Spaces, the trial court erred in granting summary judgment as genuine issues of material fact exist regarding who owns the parking spaces. We agree.

As a general principle, a " 'motion for summary judgment is not a substitute for a trial on the merits.' "

Redland Ins. Co. v. Cem Site Constructors, Inc., 86 So.3d 1259, 1261 (Fla. 2d DCA 2012) (quoting Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995) ). " 'Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' " Estoril Inc. v. Mayfield Condo. Ass'n, Inc., 104 So.3d 386, 388 (Fla. 3d DCA 2013) (quoting MGM Constr. Servs. Corp. v. Travelers Cas. & Sur. Co. of Am., 57 So.3d 884, 885 (Fla. 3d DCA 2011) ). In evaluating whether summary judgment is appropriate, the trial court must determine whether the record evidence conclusively demonstrates that the moving party proved no genuine issues of material fact exist, i.e., "to 'establish irrefutably that the nonmoving party cannot prevail were a trial to be held.' " Redland, 86 So.3d at 1261 (emphasis in original) (quoting Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011) ); accord Estoril, 104 So.3d at 388-89. If the slightest doubt exists as to a genuine issue of material fact, the summary judgment must be reversed. Alvarez-Mejia v. Bellissimo Props., LLC, 208 So.3d 797, 799 (Fla. 3d DCA 2016) ; Daneri v. BCRE Brickell, LLC, 79 So.3d 91, 93-94 (Fla. 3d DCA 2012) ). Once the movant produces competent evidence in support of summary judgment, "the opposing party must come forward with counterevidence sufficient to reveal a genuine issue" of material fact. Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) ; accord Valderrama v. Portfolio Recovery Assocs., Inc., 972 So.2d 239, 239 (Fla. 3d DCA 2007). On summary judgment, the trial court "may neither adjudge the credibility of the witnesses nor weigh the evidence." Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

In support of their motion for summary judgment, Appellees identified the following evidence as conclusively establishing their right to use the Decoplage Spaces: 1) Appellees' testimony that Fries orally assigned the Decoplage Spaces to them with their purchase of Unit PH-2; 2) the Decoplage Assignment; 3) the unauthenticated Fries Letter; 4) Appellees' certificate recording the assignment of the Decoplage Spaces; 5) Appellants' recorded warranty deed and Decoplage "approval"; 6) the Decoplage's letter stating it did not approve parking space assignments; 7) Appellants' Purchase and Sale Agreement for Unit 1033; and 8) portions of Appellants' and the Decoplage's representative's depositions. Appellees argue that this evidence conclusively proved that they were assigned the Decoplage Spaces by Fries and that Appellants failure to introduce a counter-affidavit or counter-evidence to the contrary revealing the existence of a genuine issue of fact supports affirmance of the trial court's order.

While it is true that an opposing party must go beyond merely asserting that an issue exists to defeat summary judgment, Landers, 370 So.2d at 370, the non-movant party has no obligation to file a counter-affidavit or counterevidence if the moving party has failed to meet their initial burden of proving the absence of any genuine issues of material fact. Deehl v. Sparks Constr. Co., 191 So.2d 605, 607 (Fla. 3d DCA 1966) ("The burden of showing absence of any genuine issue is on the moving party for summary judgment, and the burden of proving the existence of such issue is not shifted to the opposing party until the movant has successfully met such burden.").

We find that Appellees failed to meet their initial burden. The only evidence that purportedly established a transfer of the Decoplage Spaces to Appellees was the Fries Letter. However, as the Appellants argued below and on appeal, the Fries Letter purporting to evidence the assignment of the Decoplage Spaces to Appellees was not competent evidence as it was not properly authenticated. See Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2nd DCA 2011) (holding that "unauthenticated copies of default letters ... were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment."); Booker v. Sarasota, Inc., 707 So.2d 886, 889 (Fla. 1st DCA 1998) ("A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive."). A party cannot simply attach unsworn or unauthenticated documents to a motion for summary judgment and satisfy the procedural requirements of Florida Rule of Civil Procedure 1.510(e). See Freiday v. OneWest Bank, 162 So.3d 86, 87 (Fla. 4th DCA 2014). Because "only competent evidence may be considered by the court in ruling upon a motion for summary judgment," a document attached to a motion for summary judgment or a document attached to an affidavit that is not otherwise authenticated is not competent evidence. Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997).

IV. CONCLUSION

Because genuine issues of material fact exist as to who owns the Decoplage Spaces, we reverse the trial court's final summary judgment order in favor of Appellees and further reverse the subsequent amended final order awarding damages and attorneys' fees.

Reversed and remanded for further proceedings.

      Appellees urge us to take judicial notice of an amendment to the Decoplage's Declaration of Condominium in the public records of Miami-Dade County requiring the Decoplage's unit owners to record their assignments of parking spaces. This amendment, however, was never introduced into evidence below and is thus not in the record. See Bull v. Jacksonville Fed. Sav. & Loan Ass'n, 576 So.2d 755, 756 (Fla. 1st DCA 1991). Before a court may take judicial notice, "a court must 'afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.' " Rodriguez v. Philip, 413 So.2d 441, 442 (Fla. 3d DCA 1982) (quoting § 90.204, Fla. Stat. (1979) ). Because Appellees did not follow these proper steps in requesting that the trial court take judicial notice of the amendment, we are unable to do so.