author: KELLUM, Judge. WELCH, Judge,

text:
    Allen Forrest PORTER, Jr. v. STATE of Alabama.
    CR-07-0471.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.
    Rehearing Denied April 10, 2009.
    Certiorari Quashed Sept. 11, 2009 Alabama Supreme Court 1080912.
    Mari Morrison, Birmingham, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   KELLUM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., concurs.

WINDOM, J., concurs in the result. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

Allen Forrest Porter, Jr., was convicted of one count of attempted trafficking in illegal drugs, a violation of §§ 13A-12-203 and 13A-12-231, Ala.Code 1975. The conviction stemmed from an incident occurring at a Walgreens pharmacy, where Porter was allegedly involved in submitting a illegitimate prescription to the pharmacist. The circuit court sentenced Porter as a habitual felony offender to life imprisonment and ordered Porter to pay the applicable fines.

Porter argued in a motion for a new trial that his counsel was ineffective. The circuit court denied Porter’s motion for new a trial, and he appealed. Among Porter’s ineffective-assistance-of-counsel claims was the contention that counsel failed to adequately challenge in the motion for a judgment of acquittal the evidence of Porter’s identification during the investigation. The unpublished memorandum disposes of this claim and Porter’s remaining ineffective-assistance-of-counsel claims by ruling that counsel’s decisions at trial were permissible strategy decisions.

I respectfully dissent from the following characterization of counsel’s performance as a strategy decision.

Deputy Forester, who arrived at the pharmacy to investigate the offense, walked past an individual he later identified from a photograph as Porter. During the investigation at the scene, Deputy Forester identified Porter as the person he saw leaving the store based on a single photograph shown to him by another investigating officer. Deputy Forester’s identification of Porter was introduced at trial through the testimony of another officer, who read Forester’s written incident report into evidence. That identification, together with information from the forged prescription, was used to obtain Porter’s conviction.

I believe counsel was ineffective. Porter’s defense was that he was misidentified as the perpetrator of the crime. Nevertheless, counsel did not move to suppress Deputy Forester’s identification of Porter based on Deputy Forester’s review of one photograph. This suggestive photographic array, consisting of one photograph, at the very least, should have been challenged to determine if it was impermissibly suggestive. See Blackmon v. State, 487 So.2d 1022 (Ala.Crim.App.1986); Ex parte Johnson, 620 So.2d 709 (Ala.1993). Counsel did not object to Deputy Forester’s report being read into evidence on the grounds that it was inadmissible hearsay. See James v. State 723 So.2d 776, 780 (Ala.Crim.App.1998) (“ ‘ “Ordinarily, the reports of investigating officers are not admissible in evidence. Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972); and Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963). See also § 32-10-11, Ala.Code 1975. They are deemed hearsay and do not fall within the ‘business records’ exception to that exclusionary rule. Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So.2d 599 (1952).” ’ ”).

Because identity of the perpetrator was the main issue in the case, I can think of no strategy that would excuse failing to suppress the identification attributed to Deputy Forester. I can think of no strategy that would excuse counsel’s allowing the State to bolster the identification of Porter in violation of the rule that prohibits the use of police reports to establish facts in a criminal case. Thus, I do not believe that counsel’s omissions can be classified as trial strategy. I believe the trial court erred in denying Porter’s motion for a new trial based on this claim of ineffective assistance of counsel.

Based on the above, I would reverse Porter’s conviction and remand for a new trial based on his ineffective-assistance-of-counsel claim.


source: Caselaw Access Project

author: McMILLAN, Retired Appellate Judge.

license: Public Domain

text:
    STATE of Alabama v. Shana R. CROMWELL.
    CR-07-1211.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied July 24, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1081431.

      Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellant.
    Jerry M. Blevins, Montgomery, for ap-pellee.
   McMILLAN, Retired Appellate Judge.

The appellant, Shana R. Cromwell, was indicted on a charge of soliciting the murder of her ex-husband, a violation of § 13A-4-1, Ala.Code 1975. Cromwell filed a motion to dismiss or, alternatively, for a judgment of acquittal in which she contended that she was not guilty of the charged offense as a matter of law because, she said, she had renounced her solicitation of the murder, as provided in § 13A-4-l(b). After a hearing, the parties filed briefs in support of their respective positions. The trial court then issued a written order, granting Cromwell’s motion to dismiss. In the order of dismissal, the trial court stated, in pertinent part: “Thus, the court concludes that during the telephone conversation of June 25, 2007, [Cromwell] satisfied the renunciation requirement set forth under § 13A-4-1(b)(1).” The court further stated:

“It is clear from the recorded conversation, taken as a whole, that [Cromwell] had, at that point, decided not to continue the solicitation to fruition and it is equally clear that she had abandoned her present intent to follow through with the planned murder of her ex-husband. The same was undisputedly understood by Cpl. [Scott] Donovan at the conclusion of his conversation with [Cromwell].”

In addition, the trial court stated that it was interpreting the “warning” provision of § 13A-4-l(b)(2) as “applicable only in the event that the requirement under § 13A-4-l(b)(l) was, for some reason, ineffective in terminating the solicitation.”

The record contains the following undisputed evidence: After engaging in an unpleasant divorce and a custody dispute with her ex-husband, Michael Flynn, Cromwell contacted her brother about hiring a hit man to kill Flynn. Scott Donovan, an agent with the Alabama Bureau of Investigation, posed as the hit man and met with Cromwell on June 15, 2007. Cromwell concedes that her actions at that time amounted to criminal solicitation. On June 25, 2007, Donovan telephoned Cromwell to discuss when the hit should take place. After discussing the advantages and drawbacks of killing Flynn that weekend while he had company at his home, Cromwell asked Donovan if he would hate her if she backed out of their agreement. He said that she needed to let him know, one way or the other, and she said: “Let’s just hold off for a while.” Donovan told her that she would have to hire someone else, and Cromwell said that she was concerned because an officer had seen her meeting with Donovan. She said that she was never nervous about “the first one,” which involved her children’s biological father, and that her gut was telling her “no[,] not right now.” Donovan asked if he should expect another call eventually, and she said: “No, ... if I go to get it done next time[,] ... [I’]ll ... try and ... find ... my uncle Lee.... That’s who helped me out last time.” Donovan told her that it would be better if she had someone else who could do the job later because he did not feel comfortable any longer, and the conversation ended shortly thereafter. In the order of dismissal, the trial court quoted from the transcript of a preliminary hearing in district court, in which Cromwell’s counsel asked Donovan whether he understood Cromwell to be saying in the telephone conversation “do not kill him.” Donovan responded: “Oh, yes, sir.”

Section § 13A-4-l(a), Ala.Code 1975, provides, in pertinent part, that “[a] person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a crime, he solicits, requests, commands or importunes such other person to engage in such conduct.” Subsection (b) of the statute provides, in pertinent part; that “[a] person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, he (1) notified the person solicited of his renunciation and (2) gave timely and adequate warning to the law enforcement authorities or otherwise made a substantial effort to prevent the commission of the criminal conduct solicited.” (Emphasis added.) The Commentary to § 13A-4-1 provides, in pertinent part:

“It should be emphasized that subsection (b) applies only to voluntary abandonment. A renunciation is not voluntary and complete if motivated by a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or a decision to postpone the crime until another time or to transfer the criminal effort to another victim or another but similar objective.”

In her brief to the trial court, Cromwell contended that the facts relative to the renunciation were undisputed because the parties had accepted the transcript of the June 25, 2007, conversation as accurate. She argued that the issue whether a renunciation occurred during this conversation was therefore a question of law for the court. In its brief, the State noted that Cromwell had relied heavily on the portion of the Commentary that states that any additional substantial efforts to prevent the commission of the crime are only needed if the solicitor’s renunciation fails to dissuade the person solicited. The State argued that the purported renunciation was not voluntary and complete because there was “absolutely no renunciation of [Cromwell’s] intent on seeing Mike Flynn dead.” The State further argued that “[Hooking at whether or not the person solicited was dissuaded to commit the crime only occurs after [Cromwell] can prove her intent not to have the crime solicited occur.” The State contended that the question of whether Cromwell had renounced the solicitation was a question that should be considered by the jury.

The Commentary to § 13A-4-1 states that subsection (b) provides for a renunciation “defense” that is similar to the defenses provided in § 13A-4-2 for an attempt and in § 13A-2-24 for complicity. In Lockett v. State, 505 So.2d 1281 (Ala.Crim.App.1986), this court addressed the defense of self-defense. Lockett argued that the trial court should have granted his motion for a judgment of acquittal because the State’s own evidence established that the charged killing was justifiably self-defense. In holding that the killing was not justifiable as a matter of law, we stated:

“In the absence of a thorough delineation by an Alabama appellate court of the respective roles of the trial court and the jury in treatment of a self-defense claim, we find the following helpful:
“ ‘The determination ... requires the application of the well-established rule, as stated in State v. Rash, [359 Mo. 215,] 221 S.W.2d [124,] at [124] [(1949)]:
“ ... Ordinarily self defense is in the nature of an affirmative defense, and a question for the jury. But whether the state’s evidence, which is neither disputed nor contradicted, established self defense so as to make a killing justifiable homicide instead of murder or manslaughter is a question of law for the court.” (Emphasis added.)’
“‘A further refinement of this rule is found in State v. Jackson, 522 S.W.2d 317 (Mo.App.1975) and cases cited therein, where the court said, [at 319]:
“ ... But where the evidence is conflicting or of such character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in self-defense in a particular case. (Cases cited) ... Only when all the evidence is undisputed and dear should a court dispose of a murder or manslaughter charge by acquittal without tendering the issue of self-defense to the jury, (cases cited). Rarely, then, is self-defense declared by law so as to bar the submission of the homicide offense altogether.” (Emphasis added.)’
“State v. Thornton, 532 S.W.2d 37, 42-43 (Mo.App.1975) (footnote omitted). Cf. Raines v. State, 455 So.2d 967, 974 (Ala.Crim.App.1984).”

505 So.2d at 1284-85. Because different inferences might reasonably be drawn from the evidence of renunciation in the present case, the issue should be submitted to the jury, rather than determined by the court. The trial court’s order dismissing the case is reversed and the cause remanded.

The foregoing opinion was prepared by Retired Appellate Judge H.W. “Bucky” McMillan, while serving on active-duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WTNDOM, and KELLUM, JJ., concur.

      . A transcript of the hearing was not included in the record on appeal.

      2. Cpl. Donovan posed as a hit man and was contacted by Cromwell.

      . The Commentary states, in pertinent part:
      "Moreover, under subsection (b), the solicitor must notify the person solicited of his renunciation which could be an important step in preventing the commission of the offense initially advocated. Should notification of the solicitor's renunciation fail to dissuade the person solicited, the solicitor must undertake ■ an additional substantial effort to prevent the crime.”


author: PER CURIAM.

text:
    Robert Todd FELDMANN, M.D., Petitioner, v. Elizabeth VEACH and Thomas Veach, her husband, Bruce I. Timins, M.D., and Shands at Lake Shore Inc. d/b/a Shands at Lake Shore Hospital, Respondent.
    No. 1D09-3349.
    District Court of Appeal of Florida, First District.
    Nov. 3, 2009.
    Michael R. D’lugo, Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Petitioner.
    Sharon H. Proctor, Proctor Appellate Law, P.A., Lake Saint Louis, for Respondent.
   PER CURIAM.

DENIED. See Lakeland Reg’l Med. Ctr., Inc. v. Neely, 8 So.3d 1268 (Fla. 2d DCA 2009); see also Florida Eye Clinic, PA. v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009).

HAWKES, C.J., WOLF and WETHERELL, JJ„ concur.


author: WARNER, J.

text:
    The FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. DEVON NEIGHBORHOOD ASSOCIATION INC. d/b/a Devon Neighborhood & Condominiums A-J Association, Inc., Appellee.
    No. 4D09-377.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.

      Philip E. Ward, Jeffrey T. Kuntz, Roland E. Schwartz and Evan D. Appell of Gray Robinson, P.A., Fort Lauderdale, and John A. Kirst, Jr. of Gray Robinson, P.A., Orlando, for appellant.
    Daniel S. Rosenbaum, John M. Siracusa, Mark G. Keegan and Richard C. Valuntas of Katzman Garfinkel Rosenbaum, LLP, West Palm Beach, for appellee.
   WARNER, J.

Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order denying its motion to compel an appraisal of property damage to condominium association property owned by the Devon Neighborhood Association, Inc. (“Devon”). Devon claimed that FIGA had waived its right to an appraisal by participating in the lawsuit and also by failing to comply with section 627.7015, Florida Statutes. We hold that FIGA is precluded from asserting its right to compel the appraisal process by failing to provide the notice required by the statute, the application of which does not violate the impairment of contracts clause of the constitution. We affirm.

Devon timely filed a claim with its insurer, Southern Family Insurance (“Southern”), after the condominium association property sustained damage when Hurricane Wilma struck in October 2005. Devon submitted its first sworn proof of loss claim in February 2006. Southern became insolvent and was placed into receivership in April 2006. By operation of law, FIGA assumed responsibility for Devon’s claim. Three days later, Devon submitted a second sworn proof of loss statement, increasing the claimed amount of loss. It is undisputed that before becoming insolvent, Southern paid Devon approximately $2.5 million. FIGA paid Devon an additional $1.7 million for a total payment of $4.2 million. In December 2007, a contracting company hired by Devon estimated additional damage in the amount of $4.8 or $5 million. The additional claims involve three roofs and replacing all the glass sliders and windows. Devon submitted the report with the $4.8 million in additional claims to FIGA on January 30, 2008, and FIGA refused to pay.

On February 11, 2008, Devon filed a two-count complaint against FIGA. Count I alleged breach of contractual and statutory duties in failing to fully compensate it for all losses covered under the policy. Count II sought a declaration of the validity of the insurance contract, a determination of Devon’s rights and obligations under the policy, a determination of whether the damages and losses were covered claims, and a declaration that the deductible provisions were void. FIGA answered, alleging various affirmative defenses, and demanding an appraisal of the damages pursuant to the terms of the Southern policy.

FIGA moved to compel an appraisal. Devon objected, both because it contended that FIGA had waived its right by participating in the lawsuit and because both Southern and FIGA had failed to comply with section 627.7015(2), Florida Statutes (2005), by not notifying Devon of the statutory mediation process available to it. Failure to do so prevented the insurer from insisting on the appraisal process as a precondition to legal action, in accordance with the statute. Ultimately, the trial court denied the motion to compel the appraisal, prompting this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

FIGA claims that it is not bound by the notice provisions of section 627.7015(2), as the amendment which would have applied the statute to the insurance contract in this case was enacted after the policy went into effect. It contends that to apply it to the contract would amount to an unconstitutional impairment of contract. Because these issues are ones of constitutional and statutory interpretation, our review is de novo. Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). Balancing the nature and extent of the impairment of contract with the state’s objective goals, we conclude that the statutory amendment is constitutionally permissible. See Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774 (Fla.1979).

Section 627.7015 establishes a mediation alternative for the handling of property insurance claims. The legislatively approved purpose provided:

There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner’s and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation. The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process. Before resorting to these procedures, insureds and insurers are encouraged to resolve claims as quickly and fairly as possible.

§ 627.7015(1), Fla. Stat. (2005). Upon receiving a claim, the insurer must notify the claimant of its right to mediation. § 627.7015(2), Fla. Stat. (2005).

The version of the statute in effect when the policy in this case became effective provided for mediation for homeowners’ residential policies only. The legislature amended the statute, effective July 1, 2005, extending the mediation alternative to “commercial residential insurance policies.” Included within the statutory definition for such policies is coverage provided by condominium associations for common elements. See § 627.4025, Fla. Stat. (2005). The policy in this case constituted a commercial residential policy.

The amended statute also added a penalty for the insurer’s failure to comply with the notice requirements: “[T]he insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.” § 627.7015(7), Fla. Stat. (2005).

It is undisputed that the notice provisions of section 627.7015(2) were not complied with in this case. FIGA, however, contends that the provisions of the amended statute cannot be applied retroactively because the insurance contract was executed prior to the date of the statutory amendment, even though the loss occurred and the claim was submitted after the enactment of the amendment.

The prior version of the statute, which was in effect at the time the parties entered into the contract, did not apply to condominium associations nor did it provide a penalty for failing to notify the claimant of its right to mediation.

Similar to the federal constitutional contract clause, Article I, Section 10 of the Florida Constitution, prohibits the enactment of any “law impairing the obligation of contracts.” In Pomponio, after reviewing the evolution of contract clause analysis by the United States Supreme Court from strict prohibition to the use of a balancing approach, the Florida Supreme Court itself adopted a balancing approach to determine whether a statute amounted to a constitutionally impermissible impairment of contract. The court said:

In our view, any realistic analysis of the impairment issue in Florida must logically begin both with Yamaha Parts Distributors, Inc. v. Ehrman, [316 So.2d 557 (Fla.1975) ] which applied the well-accepted principle that virtually no degree of contract impairment is tolerable in this state, and with the notion enunciated in Louisiana ex rel. Ranger v. New Orleans, [102 U.S. 203, 26 L.Ed. 132 (1880) ] that “he who pays too late, pays less.”
Our conclusion in Yamaha that “virtually” no impairment is tolerable necessarily implies that some impairment is tolerable, although perhaps not so much as would be acceptable under traditional federal contract clause analysis.
To determine how much impairment is tolerable, we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state’s objective, or whether it unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve that objective.

378 So.2d at 780 (footnotes omitted). The court noted that in Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), the Supreme Court listed factors to be considered in a balancing test:

(a) Was the law enacted to deal with a broad, generalized economic or social problem?
(b) Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?
(c) Does the law effect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?

Pomponio, 378 So.2d at 779 (footnotes omitted).

At issue in Pomponio was a statutory requirement that condominium lease payments be deposited in court during the pendency of litigation over the lease. A developer could not withdraw those payments during the litigation. “Barring the current use of court-retained rent moneys is an economic deprivation for which a landlord obviously has not bargained, producing potential erosion of value (at least in our persistently inflationary economy) which goes beyond mere inconvenience.” Id. at 780-81. The court determined that this impaired the landlord’s contract. Balanced against this economic deprivation, the statute expressed no policy or objective for the restriction, although the court determined that the state exercised its police power to protect the public. In sum, however, the court did not find that the state’s interest outweighed the impairment of the landlord’s contract.

In United States Fidelity & Guaranty Co. v. Department of Insurance, 453 So.2d 1355 (Fla.1984), the court applied the Pomponio balancing analysis to hold that an amendment to the automobile excess profits law, which authorized the Department of Insurance to order refunds of excess profits from insurance carriers, was not an unconstitutional impairment of existing contracts. While noting that complete destruction of contractual expectations is not necessary for a finding of substantial impairment, the court did not consider a regulation that restricts a party to reasonable expectations of gains on a contract as substantially impairing the contract. The court further considered the extent to which the industry complaining was subject to regulation in the past, noting that the insurance industry is subject to substantial regulation in Florida. The state’s purpose in the enactment was to prevent excess profits in a regulated industry. The court found that the impairment was minimal and was outweighed by the state’s interest in eliminating windfall profits.

We have recently applied the Pomponio analysis to conclude that a constitutional amendment establishing a patient’s right to discover medical records involving an adverse medical incident did not unconstitutionally impair a hospital’s contract with its doctors which included confidentiality provisions. See Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236 (Fla. 4th DCA 2009).

In contrast, the Pomponio balancing test does not apply where a statute results in the immediate diminishment of value in a contract. See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978) (anti-stacking provision of uninsured motorist statute unconstitutionally reduced value of policy procured prior to its passage); Lee County v. Brown, 929 So.2d 1202, 1209 (Fla. 2d DCA 2006) (imposition of school impact fee to building contracts unconstitutional if it “retroactively turns otherwise profitable contracts into losing propositions”). The statutory provision in this case does not result in an immediate diminishment in the value of a contract. Therefore, the Dewberry principle does not apply.

Instead, we apply the Pomponio balancing test. First, the degree of impairment of the insurance contract is minimal. The insurance company must provide notice of the opportunity to mediate an insurance claim. Mediation is nonbinding. While the statute requires the insurer to bear the costs of mediation, namely the costs of the mediators and an administrative fee, we do not deem that of significance, particularly in light of U.S. Fidelity, where the court deemed that the much more substantial economic impact of recovery of excess profits constituted a minimal impairment of contract. Not every contract will be mediated. The costs of mediation are significantly less than the costs of an appraisal.

Against that minimal impact, the state’s purpose is explicit and reflects a substantial economic issue for homeowners. The state recognized that the appraisal process was both time-consuming and expensive for homeowners. Mediation in advance of the process could substantially reduce costs to both homeowners and insurers. The legislature identified the cost of such appraisals to homeowners as a broad economic problem, whose solution in this manner is a proper exercise of the state’s authority. See, e.g., U.S. Fidelity, 453 So.2d at 1360 (“If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem.”) (citation omitted).

The regulation affects insurance, a heavily regulated industry. The contents of insurance policies and the procedures for handling claims are regulated by statutes as well as Department of Insurance regulations. See, e.g., § 627.701, Fla. Stat., et seq. The statute in question affects in a minimal way the process of settling a claim. It does not permanently and substantially change the contractual arrangements between the parties.

Based upon an application of the balancing test, we find that the statutory amendment subjecting commercial residential insurance policies to the mediation provisions of section 627.7015 was not an unconstitutional impairment of the existing insurance policy. Since neither the original insurer, Southern, nor FIGA complied with its notice provisions, FIGA cannot now demand the completion of the appraisal process as a precondition to litigation.

FIGA also argues that the notice provisions of the statute (and the consequent loss of appraisal rights) should not apply to it, because it is a creature of statute and is not subject to all the liability of the insurer. However, section 631.57(l)(b), Florida Statutes, provides that FIGA shall “[b]e deemed the insurer to the extent of its obligation on the covered claims, and, to such extent, shall have all rights, duties, defenses, and obligations of the insolvent insurer as if the insurer had not become insolvent.” (Emphasis supplied). One of the duties of the insurer was compliance with the provisions of section 627.7015. The cases cited by FIGA for the proposition that it should not be liable for an insurer’s violation of statute are inapposite as they all deal with coverage of a loss. Here, no coverage issue is involved. Only the process of settling the claim is affected by the statute.

Finally, FIGA argues that where notice of the mediation process is not supplied, the statute requires only that the insured is not required to participate in any contractual appraisal process of the property losses “as a precondition to legal action” for breach of the insurance contract for non-payment. Because the policy in question does not make the appraisal a “precondition” to suit, the statute is in effect irrelevant. We find this argument meritless. FIGA moved to compel an appraisal and stay the action in the trial court pending the appraisal. If the action is stayed, FIGA is preventing further legal action until the appraisal is accomplished. It has treated the appraisal as a precondition to legal action.

For the foregoing reasons, we affirm the trial court’s ruling.

POLEN and TAYLOR, JJ., concur.


author: VILLANTI, Judge.

text:
    William H. WINTERS, Appellant/Cross-Appellee, v. Richard MULHOLLAND, Appellee/Cross-Appellant, and Marc E. Yonker, Appellee.
    No. 2D08-5270.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.
    Rehearing Denied March 9, 2010.

      Stuart C. Markman and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa; and Donald A. Smith, Jr., and Melissa C. Horne of Smith, Tozian & Hinkle, P.A., Tampa, for Appellant/Cross-Appellee.
    David A. Maney and Lee S. Damsker of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, for Appellee/Cross-Appellant.
    No appearance for Appellee Marc E. Yonker.
   VILLANTI, Judge.

William H. Winters appeals the final judgment entered against him in this action brought by Richard Mulholland after Winters left Mulholland’s law firm and took several clients with him. Mulholland cross-appeals the remittitur of the jury’s verdict. We reverse the final judgment in favor of Mulholland and remand for entry of judgment in favor of Winters because Mulholland failed to prove the causation element of his civil theft claim. This resolution renders Winters’ other claims and Mulholland’s cross-appeal moot.

The facts in this case are enough to make any legal ethics professor cringe. Taking the facts in the light most favorable to the jury’s verdict, the evidence at trial showed that after working as an associate at Mulholland’s law firm for over fifteen years, Winters decided to leave and strike out on his own. In the months leading up to his departure, Winters considered which of his assigned clients he wanted to try to take with him when he left the firm. During this time, Winters removed at least one client file from Mul-holland’s office and copied it before returning it. He kept other client files with him rather than leaving them at the office. Elizabeth Chapa, Winters’ paramour and a former Mulholland paralegal, hacked into Mulholland’s firm computer system and altered client contact data for some of the clients assigned to Winters to make it more difficult for Mulholland to contact these clients. All of this was done at a time when Winters knew he was leaving the firm but had not yet told Mulholland of his plans.

On Friday, June 22, 2001, Winters packed up certain client files and left for the weekend. On Monday, June 25, 2001, Winters did not return to work. Instead, he called Mulholland’s office manager and told him that a letter of resignation was on his desk. When Mulholland requested the return of the client files in Winters’ possession, Winters told Mulholland that he would have to sue him to get them. Winters also told Mulholland that he had told the departing clients that Mulholland was retiring and no one would be available to handle their cases. When Mulholland pointed out that this was untrue, Winters replied, “I know it, but they don’t.”

Ultimately, twelve of Mulholland’s most lucrative clients left the firm with Winters. Mulholland subsequently brought an action for writ of replevin to recover his original client files. After the writ issued, Winters returned the client files that were in his possession; however, some documents were missing from some of the returned files. None of the twelve clients who left with Winters ever returned to Mulhol-land’s firm.

Based on these actions, Mulholland brought a suit against Winters for civil RICO, federal RICO, civil theft, conversion, intentional interference with advantageous business relationships, accounting, and extinguishment of retaining liens. In these claims, Mulholland sought damages in an amount based on the attorney’s fees received by Winters from the settlement of the twelve clients’ cases. Discovery was prolonged and contentious, and the case ultimately went to trial in 2008.

For reasons not apparent from the record, after the close of all evidence, Mulhol-land chose to submit only his civil theft claim to the jury. Winters’ motion for directed verdict on this claim was denied, and the jury ultimately found that Winters had committed civil theft. The jury awarded Mulholland $748,502.90 in damages and $130,500 in attorney’s fees. In response to various posttrial motions, the trial court remitted the damages award to $383,105 but then trebled it to $1,149,315 pursuant to the civil theft statute. The final judgment ultimately entered against Winters and in favor of Mulholland was $1,470,453.

In this appeal, Winters raises three issues concerning the propriety of the judgment entered against him. Mulholland cross-appeals the remittitur of the jury’s verdict. We find merit only in Winters’ argument that Mulholland failed to prove that any of Winters’ actions were the proximate cause of any damages suffered by Mulholland. This decision renders the other issues raised on appeal and cross-appeal moot.

The applicable civil theft statute, section 772.11, Florida Statutes (2001), provides, in pertinent part,

Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.

Under section 812.014, Florida Statutes (2001), the only statutory section potentially applicable to Mulholland’s claims, a person “commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another[.]” Section 812.012(3) defines “obtains or uses” as any manner of:

(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.
(d)l. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
2. Other conduct similar in nature.

§ 812.012(3).

In this case, taking the evidence in the light most favorable to the jury’s verdict, the evidence showed that Winters copied at least one of Mulholland’s client files and retained several other paper files for a short period of time after he left Mulhol-land’s firm. When the files were returned, some documents were missing from some of the files. Winters’ paramour hacked into Mulholland’s computer system and altered certain information pertaining to some of Winters’ clients to make it harder for Mulholland to contact these clients. In addition, Winters told some of Mulhol-land’s clients that Mulholland was retiring and that no one would be available to handle their cases after Winters left.

There is no real question that these activities constitute the unauthorized use of Mulholland’s client files, misappropriation, fraud, and deception. Thus, Mulhol-land did prove that a “theft” occurred. However, it is not enough for a plaintiff prosecuting a cause of action for civil theft to show only that a theft of his or her property occurred. Instead, section 772.11 also requires the plaintiff to prove by clear and convincing evidence that he or she was injured “by reason of any violation” of the listed theft statutes. See, e.g., Anthony Distribs., Inc. v. Miller Breiving Co., 941 F.Supp. 1567, 1576 (M.D.Fla.1996) (noting that the activities that constitute the “theft” under the statutory definitions must be the cause of the plaintiffs injuries and finding that it was not Miller’s improper actions but actually Anthony’s own marketing scheme that caused Anthony’s losses). Accordingly, to recover damages for civil theft, a plaintiff must prove causation, i.e., that the defendant’s actions that support a finding of theft were the proximate cause of the plaintiffs damages.

In this case, however, Mulholland presented no evidence to prove that the theft was connected to the loss of his clients and thus was the cause of his damages. For example, Mulholland presented no evidence that any client chose to leave Mulholland and go with Winters because Winters had a copy of their file. While Winters may have made unauthorized use of Mulholland’s paper files, in the absence of some evidence that Mulholland was injured by Winters’ having taken and copied these files, the evidence is insufficient to support a judgment for civil theft.

Similarly, while the alterations to the client information in the computer system may have affected Mulholland’s ability to contact his clients, no client testified that he or she left Mulholland and went with Winters because Mulholland never contacted them. Further, the alterations to the information in the computer did not, in and of themselves, deprive Mulholland of his client information because he testified that he had the written intake sheet in the client files, which contained this same information.

Finally, Mulholland did not present any evidence to establish that any of the clients left because Winters told them that Mul-holland was retiring. In fact, the evidence presented was to the contrary. Mulhol-land’s former client Bruce Murakami testified that he left Mulholland’s firm and went with Winters because Mulholland was a name only — not the person who had been handling his case — and that he wanted to stay with the lawyer who had been personally handling his case. Mulholland did not call a single client to testify that he or she was told by Winters that Mulhol-land was retiring and that he or she would have stayed with Mulholland knowing otherwise. Thus, Mulholland presented no evidence to establish that Winters’ behavior supporting the finding of “theft,” loathsome as it might have been, actually caused any of the clients to leave Mulhol-land, resulting in his loss of the right to the fees.

The facts from an out-of-state case present a good contrast to the evidence presented by Mulholland. In Connors, Fiscina, Swartz & Zimmerly v. Rees, 599 A.2d 47, 49 (D.C.1991), Swartz became dissatisfied with his position at his medical malpractice firm and decided to leave. While still with the Connors firm, he contacted another firm, the Boccardo firm, about going to work there. Id. Swartz promised the Boccardo firm that he would bring some of his clients with him. Id. Once an agreement was in place with Boccardo but before resigning from the Connors firm, Swartz contacted several of his current clients. Id. at 50. As the court described,

Armed with the form substitution agreements and termination agreements, Swartz proceeded to contact several clients whom he hoped to take with him to the Boccardo law firm. Between April 15, 1982, and April 21, 1982, Swartz met with Calvin W. Shives (April 15th), Irene P. Krueger (April 16th), Richard and Gladys Hemphill (April 16th), Alexandria Sloan (April 17th), and Loretta E. Washington (April 21st) either at their homes or their work to inform them that he was leaving CFSZ to join the Boccardo law firm. After providing each client with the Boccardo law firm brochure and emphasizing particular facts about the firm, Swartz informed each client of his or her options: to remain with CFSZ, to go with him to Boccardo, or to retain other counsel. Each client signed the termination agreement and substitution agreement at his or her meeting with Swartz.
Only the Hemphills expressed any doubts about signing the agreements. In the course of the meeting in which Swartz first told the Hemphills that he was leaving the firm, he also told them that CFSZ planned to sell their case to a Wisconsin firm for $50,000 and that CFSZ lacked the financial resources to press the Hemphills’ case. The Hemp-hills spoke with Swartz several times after the meeting, expressing their concerns about their representation. In a further effort to convince the Hemphills to go with him to the Boccardo law firm, Swartz wrote a letter to them repeating his earlier statements that CFSZ planned to have a Wisconsin law firm handle the case and stating that a possible conflict may have existed with the partners’ medical practices. Swartz also informed the Hemphills that he had “bought” Mr. Hemphill’s medical records from CFSZ. Having lost all confidence in both Swartz and CFSZ, the Hemphills decided to follow the earlier advice of their personal attorney that they retain Marvin Ellin, Esq., to represent them in their medical malpractice claim.

Id. at 49-50 (footnote omitted).

At the trial on the Connors’ firm’s tor-tious interference claim against Swartz, Swartz called the clients who left with him to testify. Id. at 51. Each client testified that “they had a close and satisfying professional relationship with Swartz, that they had no relationship with any other attorney at CFSZ, and ... that they would have followed Swartz anywhere.” Id. Based on this testimony, the trial court found that even though Swartz had blatantly lied to some of the clients, that conduct was not “ ‘responsible for the severing of the contractual relationship’ between the clients and CFSZ.” Id. at 50. Instead, the clients left because “the lawyer with whom they had a close and satisfying professional relationship was leaving the firm, and ... they had no such relationship with any of the firm’s other lawyers all of whom ... were faceless strangers.” Id.

In contrast to Swartz, Mulholland in this case did not call any of his former clients to testify as to why they severed their contractual relationship with Mulholland’s firm. Mulholland established Winters’ bad actions. He also established that certain clients left his firm and went with Winters. But he failed to present any evidence that would even tend to show that Winters’ lies and misrepresentations caused the clients to leave the Mulholland firm. This lack of evidence of proximate cause is fatal to Mulholland’s civil theft claim.

As the plaintiff seeking damages, Mul-holland had the burden to present evidence to prove each of the elements of his statutory civil theft claim — one of which was causation. When Mulholland failed to present any evidence to prove this element, Winters was entitled to a directed verdict in his favor. The trial court could not allow the jury to speculate on causation, particularly because a claim for civil theft requires that the plaintiff prove his or her case by clear and convincing evidence. See § 772.11. Accordingly, we reverse the final judgment in favor of Mul-holland and remand for entry of a final judgment in favor of Winters.

Reversed and remanded for entry of judgment in favor of Winters.

CASANUEVA, C.J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . Mulholland also sued Marc E. Yonker, who left the Mulholland firm at about the same time as Winters and who ultimately teamed with Winters to form a new law firm. By the same verdict at issue in this appeal, the jury found in favor of Mulholland and against Yonker. After various posttrial proceedings, the trial court entered a judgment against Yonker, which Yonker has not appealed. He is named as an appellee in this case pursuant to Florida Rule of Appellate Procedure 9.020(g)(1).

      . There was no evidence presented at trial to show that Winters asked Chapa to do this. However, there was some evidence that he was aware of what she had done and failed to take any steps to notify Mulholland or correct the information.

      . At oral argument, counsel for Mulholland opined that Winters’ conduct was so repugnant and unprofessional that causation and damages should be presumed. Tempting as such a presumption might be under the circumstances of this case, we can find no precedent to support this proposition.


author: MORRIS, Judge.

text:
    Douglas J. MORGAN, individually and on behalf of others similarly situated, Appellant, v. Jim COATS, Pinellas County Sheriff, Appellee.
    No. 2D09-1352.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    Rehearing Denied May 7, 2010.

      Brandon S. Vesely and Michael J. Keane of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellant.
    Richard C. McCrea, Jr., of Greenberg Traurig, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Douglas J. Morgan appeals from an order denying his motion for class certification. He originally filed a complaint against Jim Coats, the Pinellas County sheriff, asserting claims for breach of an oral contract, quantum meruit, and unjust enrichment; all the claims pertained to his prior employment as a detention deputy for the sheriffs office. He thereafter sought class certification on behalf of all detention deputies who worked standard 8-1/2-hour shifts during the two years preceding the filing of the complaint. It appears from the trial court’s order that after a careful analysis of the facts and thoughtful discernment of the law, the circuit court denied class certification on the basis that Morgan failed to prove the commonality and typicality prongs of the class certification test. The circuit court also found that Morgan failed to prove that common issues predominated over individual questions and that class action status was the superior means of adjudicating the controversy. However, we conclude that in making these findings, the circuit court erred.

I. Facts

Morgan worked as a detention deputy for the sheriffs office from June 1985 to December 2004. Morgan was scheduled to work standard eight-hour shifts. Yet, like all detention deputies, he was required to arrive thirty minutes before his shift for a roll-call or “read off,” at which time detention deputies who were beginning their shifts would be given their assignments and advised of events which occurred prior to their shift. Thus the eight-hour shifts were really 8 1/2 hours. Detention deputies were paid for the mandatory roll-call period.

However, detention deputies were provided with an unpaid thirty-minute meal break, which was supposed to be included in each 8-1/2-hour shift. In the event that a deputy’s meal break was interrupted, that deputy was to be compensated for the work performed. While detention deputies could leave the jail compound during their meal breaks if they received permission to do so, sheriffs office employees acknowledged that it was rare for detention deputies to receive permission to leave. And when detention deputies remained on the premises during their meal breaks, they were considered to be on call and were required to assist with disturbances and any other matters which arose.

The basis for Morgan’s claims was that although he worked 8 1/2 hours, he was only compensated for eight hours. He argued that because detention deputies were required to remain on call during their meal breaks when they stayed on the premises and because they almost never left the premises for meal breaks, they were essentially working during such breaks and thus should have been compensated for the entire 8-1/2-hour period. In seeking class certification, Morgan argued that he met the commonality and typicality requirements for class certification because the sheriff engaged in a similar course of conduct with each detention deputy.

In finding that Morgan failed to meet the commonality prong, the circuit court held that each class member’s claims would be based on unique factual determinations and would require individualized proof. In finding that Morgan failed to meet the typicality prong, the circuit court similarly held that it was reasonable to conclude that there would be significant factual distinctions between Morgan’s claims and those of the other class members. Finally, in determining that Morgan failed to prove that common issues predominated and that class action status was the superior means of adjudicating the controversy, the circuit court noted that individualized inquiries would be necessary for each claim and that “any realization of judicial economy as proposed by Morgan would come at the expense of the due process rights of [the sheriff].”

II. Analysis

A. Requirements for Class Certification

“Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of [Florida Rule of Civil Procedure 1.220(a) ] ... have been met.” City of Tampa v. Addison, 979 So.2d 246, 251 (Fla. 2d DCA 2007). Those elements are known as the numerosity, commonality, typicality, and adequacy of representation elements. See id. In addition to meeting those elements, plaintiffs are required to satisfy one of the three subdivisions of rule 1.220(b). See id. Relevant to this case is rule 1.220(b)(3), which requires that common questions predominate over individual ones and that class action status is a superior means of adjudicating the controversy. “The party moving to certify the class has the burden of proving the propriety of class action status.” Addison, 979 So.2d at 252. “Although a trial court will generally be required to conduct an evidentiary hearing to determine whether to certify a class, the trial court’s proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits.” Id.

We review the circuit court’s order denying class action status for an abuse of discretion. See Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So.2d 575, 581 (Fla. 2d DCA 2007).

B. The Circuit Court Erred by Finding that Morgan Failed to Meet the Commonality and Typicality Prongs.

1. Commonality

“The ... primary concern in considering the ... commonality of claims should be whether the representative’s claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory.” Powell v. River Ranch Prop. Owners Ass'n, Inc., 522 So.2d 69, 70 (Fla. 2d DCA 1988); see also Terry L. Braun P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002) (citing McFadden v. Staley, 687 So.2d 357 (Fla. 4th DCA 1997)). “Where both liability and damages depend on individual factual determinations, resolution of these claims can only be decided on an individual basis which is inconsistent with the commonality requirement for class actions.” Terry L. Braun, P.A., 827 So.2d at 267. But “[t]he threshold for commonality is not high ... [and fjactual differences between class members do not necessarily preclude a finding of commonality.” Leszczynski v. Allianz, Ins., 176 F.R.D. 659, 671 (S.D.Fla.1997) (citations omitted); see also Powell, 522 So.2d at 70 (“Rule 1.220[ ] do[es] not require that class certification be denied merely because the claim of one or more class representatives arises in a factual context that varies somewhat from that of other plaintiffs.”). “ ‘The requirement is met if the questions linking the class members are substantially related to the resolution of the litigation even though the individuals are not identically situated.’ ” Collins v. Int’l Dairy Queen, Inc., 168 F.R.D. 668, 673-74 (M.D.Ga.1996) (quoting Coleman v. Cannon Oil Co., 141 F.R.D. 516, 521 (M.D.Ala.1992)).

In this case, Morgan concedes there is no common, formal contract between the sheriff and all of the detention deputies. However, he suggests that the hiring of each deputy resulted in a type of common, oral contract. He then contends that even without a common contract, recovery may still be had because the sheriff engaged in a similar course of conduct with all detention deputies. The similar course of conduct was the sheriffs failure to pay the detention deputies for their meal periods, which Morgan claims were compensable — whether they were interrupted or not — due to the fact that the deputies had to remain on call and provide assistance with matters when needed. Other courts have determined that such claims meet the commonality prong. See Clausnitzer v. Fed. Express Coup., 248 F.R.D. 647, 656 (S.D.Fla.2008) (holding commonality element was met where undisputed evidence reflected existence of documents constituting alleged contracts between the parties as well as company policy of failing to pay for all time worked); Basco v. Wal-Mart Stores, Inc., 216 F.Supp.2d 592, 599 (E.D.La.2002) (finding commonality prong was met where plaintiffs claimed that defendant entered into and breached contracts with plaintiffs by requiring them to work off-the-clock and miss meal and rest breaks). Indeed, it is precisely “ ‘because the complaint alleges a scheme or common course of misconduct against’ ” the detention deputies that “ ‘class certification is appropriate[] regardless of the existence of some differences in class members’ positions.’ ” Collins, 168 F.R.D. at 674 (quoting Longden v. Sunderman, 123 F.R.D. 547, 558 (N.D.Tex.1988)).

While it is true that there will be some factual variations among the class members’ claims, such as when each detention deputy was hired and the extent to which they spent their meal breaks performing services for the benefit of the sheriffs office, such issues go to the determination of damages rather than to liability. And individualized damages inquiries do not preclude class certification. See Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 91 (Fla. 1st DCA 2004). It is clear that each class member would have claims predicated upon the same course of conduct by the sheriff and that such claims would be based upon the same legal theories. Accordingly, the circuit court erred when it found that Morgan failed to meet the commonality requirement.

2. Typicality

“ ‘The key inquiry in determining whether a proposed class has “typicality” is whether the class representative is part of the class and possesses the same interest and suffers the same injury as the class members.’ ” Clausnitzer, 248 F.R.D. at 656 (quoting Medine v. Wash. Mut., F.A., 185 F.R.D. 366, 369-70 (S.D.Fla.1998)). “The test for typicality, like the test for commonality, is not demanding and focuses on the general similarity between the named plaintiffs]’ legal and remedial theories and the theories of those whom they purport to represent.” Basco, 216 F.Supp.2d at 599. ‘“The typicality requirement may be satisfied despite substantial factual differences ... when there is a strong similarity of legal theories.’ ” Clausnitzer, 248 F.R.D. at 656 (quoting Murray v. Auslander, 244 F.3d 807, 811 (11th Cir.2001)).

Here, Morgan alleged that he suffered the same injury: not being paid for meal breaks. He also alleged that his claim was based on the same legal theories as the claims of the rest of the class members: breach of contract, quantum meruit, and unjust enrichment. Thus, Morgan satisfied the typicality prong by meeting the minimal requirement of showing that he possessed the same interest and had suffered the same type of injury as the rest of the class members. The fact that the extent of his injury (i.e., damages) might vary from that of the other class members does not bar a finding of typicality in this case. See Ouellette, 888 So.2d at 91; see also Clausnitzer, 248 F.R.D. at 657 (finding that in breach of contract action, typicality prong was met where all potential class members were subject to same company-wide policy that purportedly resulted in work being performed without pay); Basco, 216 F.Supp.2d at 599-600 (finding that in breach of contract action, typicality prong was met where all members were subject to same pay pattern and practice by company, despite fact that damages and circumstances surrounding contract formation would be different for each plaintiff). We therefore conclude that the circuit court erred when it determined that Morgan failed to satisfy this prong.

C. The Circuit Court Also Erred in Its Determination that Morgan Failed to Prove: (1) that Common Issues Predominated and (2) that Class Action Status Was the Superior Means of Adjudicating the Controversy.

1. Predominancy

Not only was Morgan required to meet the four-prong test for class certification set forth in rule 1.220(a), he also had to meet the requirements set forth in subsection (b)(3). The predominancy requirement set forth in rule 1.220(b)(3) is far more demanding than the commonality requirement. See Rollins, Inc. v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006); Clausnitzer, 248 F.R.D. at 657.

To certify a class, rule 1.220(b)[3] requires not only that common questions exist, but that those common questions predominate over individual questions. Rule 1.220 also requires a class action to be manageable and superior to other proceedings. To determine if the requirements of rule 1.220 have been met, a trial court must envision how a class action trial would proceed.
Under this analysis, the trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.

Humana, Inc. v. Castillo, 728 So.2d 261, 266 (Fla. 2d DCA 1999); see also Clausnitzer, 248 F.R.D. at 657 (holding that to meet the predominancy requirement, a plaintiff must prove that common issues of law and fact “ ‘ha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to ... relief ” (alteration in original) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.2004))). Common issues do not predominate over individual questions if the common issues break down into individual factual and legal issues. See Clausnitzer, 248 F.R.D. at 657. “Certification is inappropriate in the event that ‘plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their claims.’ ” Id. (quoting Klay, 382 F.3d at 1255).

In this case, although there will be some factual variations among the claims of each class member, those variations go to the determination of each class member’s damages rather than to the elements of the claims. The actual claims are based on the same legal theories and are based on the same course of conduct by the sheriff. Thus, if Morgan is able to prove the elements of his claims, he would necessarily be able to prove the elements of the claims of each of the other class members. Consequently, Morgan adequately proved that common issues predominate over individual questions.

2. Superiority

We also believe that Morgan adequately proved that class action status was the superior means of adjudicating the controversy. There are three factors for courts to consider when determining whether class action status is the superior means of adjudicating the controversy; they are: (1) whether class action status would provide the plaintiffs with their only economically viable remedy; (2) whether there is a likelihood that the individual claims are sufficiently large to justify the expense of conducting separate litigation; and (3) whether the case is manageable as a class action. See Liggett Group v. Engle, 853 So.2d 434, 445-46 (Fla. 3d DCA 2003), approved in part and quashed in part on other grounds, 945 So.2d 1246 (Fla.2006).

In this case, these factors weigh in favor of a finding of superiority. There are approximately 1000 prospective class members, and their claims — seeking payment for 2.5 hours of work each week — are not so large that the cost of conducting individual litigation would be justified. Rather, we believe that allowing the detention deputies to proceed with their claims in a class action suit would be the most economically viable remedy. We also believe that due to the large number of potential class members and the fact that their claims are based on the same course of conduct, the litigation would be more manageable if it was subject to class action status rather than individual suits. Accordingly, we hold that the trial court erred by finding that Morgan failed to meet the predominancy and superiority requirements for class action status.

III. Conclusion

For these reasons, we conclude that the trial court erred by denying Morgan’s motion for class certification. We hold that Morgan sufficiently met the commonality and typicality requirements set forth in rule 1.220(a), as well as the predominancy and superiority requirements set forth in rule 1.220(b). We therefore reverse and remand for proceedings in conformance with this opinion.

Reversed and remanded for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Although Morgan testified that he was not sure whether he was paid for the roll-call period or for his thirty-minute meal break, a sheriffs office employee testified that in 1989, the office initiated a policy of paying the detention deputies for the roll-call period. And in Morgan's memorandum of law in support of his motion for class certification, he conceded that the “[sheriff's] policy appears to be that deputies were compensated for the [roll-call period], but not compensated for the meal period."

      . Because we agree with the circuit court that the numerosity and adequacy of representation components of the class certification test were met, we need not discuss Morgan’s allegations pertaining to these components.


author: CRENSHAW, Judge.

text:
    Jon VOLLMER, Appellant, v. Gayle Satcher VOLLMER, Appellee.
    Nos. 2D08-6319, 2D09-211.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    Rehearing Denied May 12, 2010.

      Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
    Reuben A. Doupé and Stephanie A. Sussman of Asbell, Ho, Klaus, Goetz & Doupé, P.A., Naples, for Appellee.
   CRENSHAW, Judge.

In these consolidated cases, the former husband, Jon Vollmer, appeals the trial court’s final order on his supplemental petition to modify alimony and child support, and the trial court’s order and judgment on the former wife’s motion for attorney’s fees and costs. Because we find that the trial court’s determination of the former husband’s current income was not supported by competent, substantial evidence, we reverse and remand for further proceedings. We also reverse the portions of the final order determining child support and the order on attorney’s fees and costs because both findings depend on a recalculation of the former husband’s income. However, we summarily affirm on all other aspects and specifically observe that the trial court did not err when it refused to make any modification retroactive, nor did it err in awarding child support that exceeded the statutory guidelines.

The former husband and the former wife, Gayle Satcher Vollmer, married in 1990 and divorced in 2005. During their divorce proceedings, the parties entered into a marital settlement agreement which was incorporated into the final judgment of dissolution. The agreement required the former husband to pay the former wife a monthly alimony obligation of $27,500 and $4279 in child support payments for the three minor children born of the marriage. In addition, the former husband agreed to pay for the children’s private school tuitions and extracurricular expenses.

In 2007, the former husband filed a supplemental petition seeking the downward modification of his alimony and child support obligations due to a material change in his financial circumstances. The former husband sought the modification because his base salary and equity compensation were reduced due to a corporate reorganization at his job. In October 2008, the trial court conducted a hearing on the former husband’s petition, wherein it attempted to resolve the dispute between the parties concerning the former husband’s actual reduction of income.

Due to the complex nature of how and when the former husband was paid, the trial court was presented with four different methods of calculating the reduction of his gross income. Based on these methods, the trial court obtained four different percentages — 10.5%, 15%, 23%, and 25%— and averaged these percentages to determine that the former husband’s annual gross income was reduced by 17%. The trial court then reduced the former husband’s monthly alimony payments to $22,825, a 17% reduction. The trial court also adjusted the former husband’s monthly child support obligation to $8678, but did not modify the former husband’s payments as to the children’s schooling or extracurricular activities.

A trial court’s award of alimony is reviewed under an abuse of discretion standard. See Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003). An award must be reversed “where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded.” Id.

In Solomon v. Solomon, 861 So.2d 1218 (Fla. 2d DCA 2003), this court concluded that the trial court improperly split the difference between competing valuations of the Solomons’ marital home because there was no evidence in the record to support the new value assigned by the trial court. Id., 861 So.2d at 1221 (citing Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990)); see also Augoshe v. Lehman, 962 So.2d 398, 403 (Fla. 2d DCA 2007) (determining the court’s midpoint valuation of a motel acquired during the marriage was improper because it was not based on competent, substantial evidence). Likewise, we find the trial court abused its discretion when it calculated an independent average of the former husband’s reduction in income because the finding of a 17% decrease, standing alone, was not supported by competent, substantial evidence. If the trial court decides to utilize an averaging method, the method should be implemented only if competent substantial evidence supports the court’s assessment. The trial court’s determination must also be supported by the appropriate findings.

Further, we point out that the trial court erred by considering the former husband’s one-time receipt of $21,960 of equity compensation in March 2008 and his anticipated yet unearned stock awards for December 2008 as part of his annual income for 2008. Such nonrecurring income can instead be considered by the trial court when the recurring income is not sufficient to meet a child’s needs. See § 61.30(13), Fla. Stat. (2007); Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007). Thus, on remand the trial court is directed to “consider the relative financial circumstances of both parties at the time of the final judgment compared with the parties’ relative financial circumstances when the petition for modification was filed.” Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004). This consideration must include “[a]ll sources of income available to either party,” including the former wife’s income. § 61.08(2)(g).

Finally, in light of our reversal of the trial court’s determination of the former husband’s income, the trial court is directed to revisit and, if needed, recalculate its modification of child support. See § 61.14(1); Hudson-McCann v. McCann, 8 So.3d 1228, 1230 (Fla. 5th DCA 2009). Similarly, the trial court must reexamine the former wife’s award of attorney’s fees and costs. See Augoshe v. Lehman, 964 So.2d 277, 277 (Fla. 2d DCA 2007); see also Huntley v. Huntley, 578 So.2d 890, 893 (Fla. 1st DCA 1991) (“Reconsideration of the parties’ incomes will also require reconsideration of each party’s ability to pay attorney’s fees.”).

Reversed in part, affirmed in part, and remanded with directions.

KELLY and MORRIS, JJ., Concur.

      . After entering into the marital settlement agreement, the former husband immediately moved for the trial court to set it aside. The trial court denied his motion, and we affirmed the decision. See Vollmer v. Vollmer, 963 So.2d 239 (Fla. 2d DCA 2007) (table opinion). We also affirmed the trial court’s order granting attorney’s fees to the former wife. Id.


author: FULMER, CAROLYN K, Senior Judge.

text:
    BRUCE TANSEY CUSTOM CARPENTRY, INC., a Florida corporation, and Bruce Tansey, Appellants, v. Gary W. GOODMAN and Jennifer S. Goodman, Appellees.
    No. 2D08-6163.
    District Court of Appeal of Florida, Second District.
    March 5, 2010.
    Rehearing Denied April 30, 2010.
    Ronald L. Stetler of Garlick, Stetler & Skrivan, LLP, Naples, for Appellants.
    Henry Paul Johnson and Jeffrey D. Sam of Henry Johnson & Associates, P.A., Naples, for Appellees.
   FULMER, CAROLYN K, Senior Judge.

Appellants, Bruce Tansey Custom Carpentry, Inc. (Custom Carpentry) and Edmond B. Tansey (Tansey), challenge a final judgment entered after a nonjury trial in this appeal arising from a contract to repair and remodel the home of appellees, Gary and Jennifer Goodman. We find merit in two of the issues raised by Tansey and, therefore, reverse the final judgment in part.

The Goodmans contracted with Tansey in September 2004 to correct water damage resulting from a leak in the kitchen area of the Goodmans’ home. The parties entered into two additional contracts in November 2004 which expanded the project to additional remodeling unrelated to the water damage.

On April 26, 2005, Custom Carpentry filed a elaim of lien in the public records of Collier County. The lien names Custom Carpentry as the lienor. The signature block in the lien states “Bruce Tansey Custom Carpentry, Inc. By: Bruce Tan-sey, President.” The lien states that the amount which remains unpaid is $19,351.10. An amended claim of lien was recorded February 9, 2006, which added a statutory warning at the top. The amended lien also sets forth that the lienor was Custom Carpentry. It was executed by Tansey as president of Custom Carpentry, and it restated that the amount remaining unpaid was $19,351.10.

The Goodmans filed suit in the circuit court in Collier County against Custom Carpentry and Tansey, individually. Count I was directed against Custom Carpentry and sought an order of the trial court vacating and canceling the lien. Count II was directed against Custom Carpentry and sought punitive damages pursuant to section 713.31, Florida Statutes (2005), for the filing of a fraudulent lien. Count III was a count for breach of contract by the Goodmans against Tansey, individually.

On March 3, 2006, Custom Carpentry and Tansey filed their answer, affirmative defenses, and counterclaim against the Goodmans. Count I of the counterclaim was an action to enforce a lien on real property by Custom Carpentry. Count II of the counterclaim was brought by Custom Carpentry against the Goodmans for breach of contract. Count III of the counterclaim was an action by Custom Carpentry against the Goodmans for unjust enrichment. Count IV of the counterclaim was an action by Custom Carpentry against the Goodmans on a quantum meru-it theory. Tansey, individually, did not seek relief in the counterclaim.

In December 2006, the Goodmans filed an amended complaint, which added allegations in Count II to establish that the amended claim of lien filed by Custom Carpentry was also fraudulent. Count II of the amended complaint does not seek relief against Tansey, individually.

In its final judgment, the trial court found that the contracting parties were Gary W. Goodman, Jennifer Goodman, Edmond B. Tansey, individually, and Bruce Tansey Construction, which was the fictitious name of Edmond B. Tansey at the time the contracts were executed. The court found that Custom Carpentry did not enter into any contract with the Good-mans and did not provide any labor, services, or materials to the project. The court made extensive findings addressing the scope of the contracts, the extent that each side performed under the contracts, and the damages incurred by each side. The court concluded that the Goodmans paid for work not performed and that Tan-sey provided specific labor, services, and materials in an unworkmanlike manner. However, the court found that the Good-mans were entitled to less compensation than they were seeking. The court also found that there were additional services performed for which Tansey was entitled to compensation, but it was less than the amount he was seeking.

As to the claim of lien recorded in April 2005, and the amended claim of lien recorded in February 2006 by Custom Carpentry, the trial court found that both liens were fraudulent as defined by section 713.31, Florida Statutes. Consequently, the court ordered that for the original claim of lien the Goodmans “shall recover from Defendants, Bruce Tansey Custom Carpentry, Inc. and Edmond B. Tansey ... statutory damages in the amount of $17,446.93” plus attorney’s fees, paralegal fees, and costs. Likewise, the court found that as a consequence of the amended claim of lien, the Goodmans shall recover from Bruce Tansey Custom Carpentry, Inc. and Edmond B. Tansey statutory damages in the amount of $17,446.93 plus fees and costs.

On appeal, Tansey first argues that the trial court erred in finding that he was individually liable to the Goodmans for filing a fraudulent lien and amended fraudulent lien. We agree that it was error for the trial court to find Tansey individually liable for the filing of a fraudulent lien. The complaint and amended complaint did not allege individual liability. Even if the complaint had alleged that Tansey was individually liable, the evidence did not support individual liability where Custom Carpentry was the lienor and Tansey signed the liens as president of Custom Carpentry. Neither the original lien nor the amended lien stated or implied that Tansey, individually, was the lienor. On remand, the trial court must revise the final judgment to reflect that Tansey is not individually liable for the fraudulent lien.

Next, Custom Carpentry and Tan-sey argue that the trial court erred in awarding punitive damages to the Good-mans of $17,446.93 for the first claim of lien and a separate punitive damage award of $17,446.93 for the amended claim of lien. We agree with Custom Carpentry and Tansey that the separate punitive damage award for the amended claim of lien is duplicative. The evidence supports only one punitive damage award. On remand the trial court must reduce the punitive damages awarded accordingly.

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

NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Judy HAGNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4597.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2010.
    Rehearing Denied April 12, 2010.
    Judy Hagner, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

PALMER, ORFINGER, and TORPY, JJ. concur.


text:
    REGIONS BANK, etc., Petitioner, v. Scott ALLEN, William Allen, Troy Atwood, et al., Respondent.
    No. 5D09-1143.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2010.
    Rehearing Denied April 13, 2010.

      Virginia B. Townes, Brandon W. Banks and Michael A. Nardella, of Akerman Sen-terfitt, Orlando, for Petitioner.
    Robert Dyer, Stephen D. Milbrath, Neal J. Blaher and David W. Magana, of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, for Respondent.
   PER CURIAM.

Petitioner, Regions Bank [“Bank”], as successor in interest to AmSouth Bank, seeks certiorari review of an order of the trial court compelling it to produce certain documents, which Bank claims are privileged. Because the order is inadequate to prevent the disclosure of privileged documents, we grant the writ.

An action was brought against Bank, Ameriprise Financial Services, Christopher Coulther, who is an Ameriprise financial adviser, and Thomas Romanac, who is an Ameriprise employee, by ninety-nine plaintiffs. Each of the plaintiffs is an investor who was persuaded by Coulther to invest in real estate in Costa Rica. The current petition involves an order of the trial court requiring Bank to provide discovery to these ninety-nine plaintiffs.

As to Bank, plaintiffs have asserted five claims: negligence and gross negligence, breach of contract, breach of fiduciary duty, aiding and abetting fraud, and statutory securities violations. Plaintiffs served Bank with an extensive request for production of documents.

In response to the production requests, Bank asserted:

Bank also objects to this Request because it seeks documents, if any exist, barred from disclosure or discussion by federal law, including but not limited to, 12 C.F.R. § 21.11 and 31 U.S.C. § 5318(g).

The essential function of 31 U.S.C. § 5318(g) is to require financial institutions to report “suspicious transactions”— those that may relate to a violation of any law or regulation. This legislation is implemented by 12 C.F.R. § 21.11, which provides for the creation, filing and use of “suspicious activity reports” [“SARs”]. Among its provisions is a requirement of confidentiality for the SAR, even including whether one has been prepared or filed. It is the position of Bank that it cannot even acknowledge whether documents protected by 31 U.S.C. § 5318(g) exist.

On February 3, 2009, in response to Bank’s objections, plaintiffs filed a Motion and Memorandum to Compel Production of Documents by Regions Bank [“Motion to Compel”] in which they sought production of “investigatory” material. The investigatory material includes internal emails and communications addressing accounts containing investor funds for the Costa Rica investments. Plaintiffs assert this material is relevant and not privileged. Plaintiffs even claim that the SARs are no longer confidential, but, even if the SARs are still protected, Bank is not free to refuse to produce its “investigatory” and compliance files simply because a SAR may or may not have been contemplated or issued.

After a hearing, the trial court determined that any SAR, to the extent it exists, is privileged and not to be produced by Bank. Second, as to any documents supporting a SAR, if it exists, the trial court compelled Bank to produce them, but with SAR references redacted. It is Bank’s position that federal law protects such supporting documents from being produced and that redacting any reference to SARs from supporting documents is not sufficient to comply with federal law.

Federal courts have interpreted 31 U.S.C. § 5318(g) to mean that SARs themselves are not discoverable, but facts giving rise to the filing of a SAR are discoverable, if those facts are available in a document created in the ordinary course of the bank’s business. See Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir.1999); U.S. v. Holihan, 248 F.Supp.2d 179, 186-87 (W.D.N.Y.2003); Weil v. Long Island Sav. Bank, 195 F.Supp.2d 388, 387-88 (E.D.N.Y.2001); Bank of China v. St. Paul Mercury Ins. Co., 2004 WL 2624673, *5-6, 2004 U.S. Dist. LEXIS 23364, *16-17 (S.D.N.Y. Nov. 18, 2004).

In Whitney National Bank v. Karam, 306 F.Supp.2d 678, 682 (S.D.Tex.2004), the federal district court explained:

The regulation is broader in its prohibition against disclosure of the existence or content of a SAR than is the statute. Title 31 U.S.C. § 5318(g), as implemented by 12 C.F.R. § 21.11(k), creates an unqualified discovery and evidentiary privilege that courts have held cannot be waived. See Gregory v. Bank One, 200 F.Supp.2d 1000, 1002 (citing Lee v. Bankers Trust, 166 F.3d 540, 544) (“even in a suit for damages based on disclosures allegedly made in an SAR, a financial institution cannot reveal what disclosures it made in an SAR, or even whether it filed an SAR at all”), and Weil, 195 F.Supp.2d at 389-90 (observing that SAR confidentiality privilege is neither qualified nor subject to waiver by the financial institution). A court is not authorized to order the disclosure of a SAR under the Act.

In this case, defendants have disavowed any desire to discover the existence or contents of a SAR, but seek all communications between the Whitney Bank

Parties and law enforcement or government agencies relating to the defendants or their transactions or activities at Whitney Bank. The line defendants seek to draw is not one the cases recognize. Under the cases applying the statute and regulations, a court should protect against discovery into information that would reveal that a report of a suspicious transaction to a government agency has been prepared or filed or would reveal its contents. The cases have read this prohibition as extending to whether a SAR or other report of suspicious transaction to a governmental agency exists; whether such a report is being prepared or has been filed; and the contents of such a report or the information contained therein. Courts have, however, allowed the production of supporting documentation that was generated or received in the ordinary course of the bank’s business, on which the report of suspicious activity was based.

Both parties also rely, in part, on an appellate opinion from California, Union Bank of California v. Superior Court, 130 Cal.App.4th 378, 29 Cal.Rptr.3d 894 (2005). In that case, petitioner bank sought review of a trial court order compelling production of the bank’s internal SARs. The underlying action involved investors who alleged they had been defrauded by an investment scheme. The opinion offers a good description of the court opinions on this issue nationwide.

[T]he prohibition against disclosing a SAR protects from discovery not just the SAR and its contents, but also information that would disclose preparation of a SAR. {See Whitney Nat. Bank v. Karam (S.D.Tex.2004) 806 F.Supp.2d 678, 682 {Whitney).) The federal statute, 31 U.S.C. § 5318(g), as implemented by regulation, 12 C.F.R. § 21.11(k), “creates an unqualified discovery and evidentiary privilege that courts have held cannot be waived. [Citations.].” (Whitney, supra, 306 F.Supp.2d at p. 682.) Although the regulation is broader in its prohibition against disclosure of the existence or content of a SAR than is the statute, it has been held consistent and in harmony with the enabling statute. (United States v. Holihan (W.D.N.Y.2003) 248 F.Supp.2d 179, 186 (Holihan); Weil v. Long Island Sav. Bank (E.D.N.Y.2001) 195 F.Supp.2d 383, 388-389 (Weil).)
While the regulation prohibits disclosure of SAR’s and their contents, courts have uniformly held that “supporting documentation” underlying a SAR that, is generated or received in the ordinary course of a bank’s business is discoverable. {See Whitney, supra, 306 F.Supp.2d at p. 682; Gregory v. Bank One Corp. Inc., (S.D.Ind.2002) 200 F.Supp.2d 1000, 1002 (Gregory); Holihan, supra, 248 F.Supp.2d at p. 187; Cotton, supra, 235 F.Supp.2d at p. 814; Weil, supra, 195 F.Supp.2d at p. 389.) The trial court relied heavily on the distinction between SAR’s and supporting documentation in arriving at its holding, noting the regulations recognize a distinction between SAR’s and supporting documentation but afford confidential status only to SAR’s and their contents.
These authorities confirm that documentation supporting a SAR is subject to discovery, but they beg the question of what comprises “supporting documentation.” The court in Cotton described two types of supporting documents: “The first category represents the factual documents which give rise to suspicious conduct. These are to be produced in the ordinary course of discovery because they are business records made in the ordinary course of business. The second category is documents representing drafts of SARs or other work product or privileged communications that relate to the SAR itself. These are not to be produced because they would disclose whether a SAR has been prepared or filed.” (Cotton, supra, 235 F.Supp.2d at p. 815.) Thus, transactional and account documents such as wire transfers, statements, checks, and deposit slips are the types of documents generated in the ordinary course of business that are subject to discovery. {Id. at p. 814.) Such documents would be prepared regardless of whether a financial institution has an obligation to report suspicious activity to the federal government. By contrast, a draft SAR or internal memorandum prepared as part of a financial institution’s process for complying with federal reporting requirements is generated for the specific purpose of fulfilling the institution’s reporting obligation. These types of documents fall within the scope of the SAR privilege because they may reveal the contents of a SAR and disclose whether “a SAR has been prepared or filed.” (12 C.F.R. § 21.11(k) (2005).) Unlike transactional documents, which are evidence of suspi-eious conduct, draft SAR’s and other internal memoranda or forms that are part of the process of filing SAR’s are created to report suspicious conduct.
Grafton Partners contends that reports of suspicious activity other than SAR’s are subject to discovery, citing Gregory, supra, 200 F.Supp.2d 1000 (regulation “requires confidentiality only of SARs and their contents, not of other reports of suspicious activity....”). {Id. at p. 1002.) Likewise, the trial court held that not all reports of suspicious activity are covered by the SAR privilege, and it concluded a bank may not expand the SAR privilege to cover its internal reports just by merging its internal investigations with federal reporting obligations. The trial court reasoned the SAR privilege is primarily intended to protect the confidentiality of communications between financial institutions and federal authorities.
We do not suggest that all reports of suspicious activity are protected by the SAR privilege. We are mindful that evidentiary privileges should be narrowly construed because they prevent otherwise admissible and relevant evidence from coming to light. (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1236, 9 Cal.Rptr.3d 812.) Financial institutions may have risk management procedures in place for detecting suspicious activity wholly apart from their procedures for complying with federal reporting obligations. A bank may not cloak its internal reports and memoranda with a veil of confidentiality simply by claiming they concern suspicious activity or concern a transaction that resulted in the filing of a SAR.

Union Bank of California, 29 Cal.Rptr.3d at 901-03.

In the current case, the trial court sustained Region Bank’s objections on the basis of 12 C.F.R. § 208.62(j) and related regulations but only in that: (1) Bank need not produce any responsive SARs, and (2) it may redact from any requested document any reference to a SAR or any language disclosing whether there was or was not a SAR or whether a SAR was or will be prepared. The trial court correctly determined that Bank should not produce any SARs; however, the second ruling is too broad because redaction will not be adequate to protect the confidentiality of a SAR investigation or the fact of a SAR’s preparation. Redaction of a document does not change its character.

We grant this writ reluctantly because it appears to us that the trial court has familiarized itself with the existing case law, is cognizant of the controlling principles concerning this specific statutory rule of confidentiality and because the order under review seeks a workable procedure that is not far off the mark. The trial court may also have suspected that Bank’s view of the scope of SAR confidentiality is over-broad and subject to misapplication. Nevertheless, we have become persuaded that redaction is inadequate to assure the requirements of the federal legislation and regulations are met. Rather, it will be necessary for the trial court to examine in camera any documents that may fall into a grey area of disclosure. Because these are not difficult concepts to apply, we expect that the documents about which Bank is truly in doubt will be few in number.

WRIT GRANTED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.

      . See generally Alex C. Lakatos & Mark G. Hanchet, Confidentiality of Suspicious Activity Reports, 124 Banking L.J. 794 (2007).

      . The written order of the trial court stated in pertinent part as follows:
      The Court sustains Region Bank’s objections on the basis of 12 C.F.R. § 208.62(j) and related regulations but only to the following extent: it need not produce any responsive suspicious activity reports (SARs), if any, and it may redact from any requested document any reference to a SAR or any language disclosing whether there was or was not a SAR or whether a SAR was or will be prepared. All other portions of the requested documents and all other requested documents shall be produced, notwithstanding any claim of confidentiality based upon the cited regulations.
      The order of the trial court also denied Bank's motion to stay production of documents pending the outcome of this petition, but this Court rendered an order staying the production of said documents.

      3. 12 C.F.R. § 21.1 l(k) applies to national banks:
      Confidentiality of SARs. SARs are confidential. Any national bank or person subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR shall decline to produce the SAR or to provide any information that would disclose that a SAR has been prepared or filed, citing this section, applicable law (e.g., 31 U.S.C. 5318(g)), or both, and shall notify the OCC.
      12 C.F.R. 208.62(j) applies to banks that are members of the federal reserve system:
      Confidentiality of SARs. SARs are confidential. Any member bank subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR shall decline to produce the SAR or to provide any information that would disclose that a SAR has been prepared or filed citing this section, applicable law (e.g., 31 U.S.C. 5318(g)), or both, and notify the Board.

        . See also Int’l Bank of Miami, N.A. v. Shinitzky, 849 So.2d 1188, 1192-93 (Fla. 4th DCA 2003).


text:
    MAMBI CHEESE COMPANY, INC. and Juan Andres Sanchelima, Appellants, v. SIF LAND, INC., Appellee.
    No. 1D09-5081.
    District Court of Appeal of Florida, First District.
    March 22, 2010.
    Rehearing Denied April 28, 2010.
    I. Albert Gonzalez of Law Office of I. Albert Gonzalez, P.L., Miami, for Appellants.
    Claire A. Duchemin of Claire A. Duche-min, P.A., Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Heartland Organics, Inc. v. MC Devs., LLC, 8 So.3d 1227 (Fla. 1st DCA 2009).

WOLF, LEWIS, and MARSTILLER, JJ., concur.