author: FERNANDEZ, J.

text:
    Tashara LOVE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2112
    District Court of Appeal of Florida, Third District.
    Opinion filed May 11, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and John Eddy Morrison, Assistant Public Defenders, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, and Amit Agarwal, Solicitor General (Tallahassee), for respondent.
    Cooper & Kirk, PLLC, Davis Cooper and David H. Thompson (Washington, D.C.), for the NRA Freedom Action Foundation, as amicus curiae.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   FERNANDEZ, J.

Petitioner Tashara Love seeks a writ of prohibition directing the trial court to discharge her from prosecution on the ground of statutory immunity pursuant to Florida's Stand Your Ground Law, section 776.032, Florida Statutes (2017). For the reasons set forth below, we deny the petition.

On November 26, 2015, Love and a group of women were involved in an altercation, which lasted approximately three minutes, outside a Miami-Dade County nightclub. At the end of the altercation, Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love does not dispute these facts.

Thereafter, the State charged Love with one count of attempted second degree murder with a firearm. Love invoked Florida's Stand Your Ground law, section 776.032, Florida Statute (2017), asserting she was immune from prosecution because she committed the crime while defending her daughter.

Before the date on which Love's immunity hearing was held, the Florida Legislature amended section 776.032. However, before that amendment, the Florida Supreme Court had held in Bretherick v. State, 170 So.3d 766 (Fla. 2015), that section 776.032(1) granted a person immunity from prosecution if the person was able to prove at a pretrial hearing, by a preponderance of the evidence, that the use of force was justified as outlined in the statute. Because no procedure or mechanism had been promulgated yet by Florida's Legislature regarding how to assess a defendant's immunity claim, the Florida Supreme Court, through statutory interpretation, determined that defendants had the burden of proof in pretrial immunity hearings and that they had to prove by a preponderance of the evidence that their "use of force was justified, as specified by statute." Id. at 775. Thereafter, in June 2017, the Legislature passed Ch. 2017-72, Laws of Florida, to amend the Stand Your Ground statute. The Legislature added subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

It became effective on June 9, 2017.

At Love's immunity hearing, the State's position was that section 776.032(4) did not apply retroactively. In the alternative, the State further argued that section 776.032(4) was unconstitutional. In its written order, the trial court rejected the State's retroactivity argument but agreed with the State that section 776.032(4) was unconstitutional because it violated the separation of powers. The trial court added that only the Florida Supreme Court had the authority to amend the burden of proof. The trial court thus applied the burden of proof applicable before the 2017 amendment and found that Love did not prove by a preponderance of the evidence that she was entitled to Stand Your Ground immunity. Love now petitions this Court.

First, we hold that the amendment to section 776.032 was constitutional. Article V, section 2(a) of the Florida Constitution states:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Article V, section 2(a) gives the Florida Supreme Court the authority to adopt rules of practice and procedure. However, the Legislature has the constitutional authority to enact procedural provisions in statutes that are intertwined with substantive rights. Caple v. Tuttle's Design-Build, Inc., 753 So.2d 49, 54 (Fla. 2000) (the Florida Supreme Court has "consistently rejected constitutional challenges where the procedural provisions were intertwined with substantive rights."). Subsection (1) of 776.032 gives "defendants a substantive right to assert immunity from prosecution and to avoid being subjected to trial." See Bretherick, 170 So.3d at 772 (Fla. 2015) (quoting Dennis v. State, 51 So.3d 456, 462 (Fla. 2010) ). Subsection (4) of 776.032 then establishes the burden of proof to be applied at the pretrial immunity hearing where the person's substantive right to Stand Your Ground immunity is being determined by the trial court. The amendment shifts the burden of proof to the prosecution after the defendant has made a prima facie claim of justified use of force, and it requires that the State meet this burden of proof with clear and convincing evidence. § 776.032(4), Fla. Stat. (2017). This is consistent with the well-established legislative practice of passing statutes allocating the burden of proof in judicial proceedings. In addition, section 776.032(4) does not conflict with any rule of procedure promulgated by the Florida Supreme Court because no such rule was added to the Florida Rules of Criminal procedure regarding section 776.032 before subsection (4), nor was there a rule of procedure set forth by the Legislature before January 2017. The Legislature, thus, had the constitutional authority to enact the burden of proof provision of section 776.032(4) in order to give effect to the substantive right to immunity in the Stand Your Ground statute.

Second, we hold that the statute did not apply to Love's case because the crime she committed occurred before the amendment's effective date, and the statute has no retroactive application. Section 776.032(4) was effective June 9, 2017, and Love shot Thomas on November 26, 2015. With regard to the issue of the statute's retroactivity, we find Smiley v. State, 966 So.2d 330 (Fla. 2007) to be particularly instructive, as well as controlling.

In Smiley, the defendant was charged with first degree premeditated murder occurring on November 6, 2004. Id. at 332. The defendant shot the victim who was an occupant of the defendant's cab. Id. Before trial, the defendant filed a motion to permit the use of two special jury instructions based upon the newly enacted statute, at the time section 776.013, Florida Statutes (2005). Those proposed instructions were:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he reasonable [sic] believes it is necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
A person who unlawfully and by force enters or attempts to enter a person's occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Id. The trial court granted the defendant's request to use these jury instructions after finding that "the statute was remedial and should have retroactive application." Id.

The State appealed to the Fourth District Court of Appeal via an emergency petition for writ of certiorari. The Fourth District granted the State's petition, holding that section 776.013, Florida Statutes (2005), does not apply to conduct committed prior to its effective date of October 1, 2005; therefore, the defendant was not entitled to the requested jury instructions. Id. at 332-333.

The defendant then filed a motion for rehearing or certification of this issue as a question of great public importance-the Fourth District denied rehearing. However, the Fourth District certified the following question to be of great public importance: "DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE?" State v. Smiley, 944 So.2d 1027, 1028 (Fla. 4th DCA 2006). The defendant in Smiley filed a notice to invoke discretionary jurisdiction with the Florida Supreme Court, and it granted review.

The Florida Supreme Court answered the question in the negative. Smiley, 966 So.2d at 332. According to Smiley, "a statute that achieves a 'remedial purpose by creating substantive new rights or imposing new legal burdens ' is treated as a substantive change in the law." Smiley at 334 (citing to Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994) ) (emphasis added). Here, the subsection (4) amendment to section 776.032 imposed a new legal burden on the State, requiring the State to prove by clear and convincing evidence that the defendant was not justified in using or threatening to use force as permitted in sections 776.012, 776.013, or 776.031, Florida Statutes. The amendment is thus treated as a substantive change in the law, and therefore does not apply retroactively.

Furthermore, Article X, section 9 of the Florida Constitution provides that "[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." The Florida Constitution imposes a restriction on retroactive application of criminal legislation. The Florida Supreme Court in Smiley went on to state:

As the State correctly argues, this constitutional provision precludes section 776.013 from applying retroactively to pending cases. The key determination is that section 776.013 qualifies as a "criminal statute." With regard to article X, section 9, the term "criminal statute" is defined in a broad context. In Washington v. Dowling , 92 Fla. 601, 109 So. 588 (1926), this Court provided the following definition for the words "criminal statute": "[A]n act of the Legislature as an organized body relating to crime or its punishment ... defining crime, treating of its nature, or providing for its punishment ... [or] deal[ing] in any way with crime or its punishment." Id. , 109 So. at 591.

Smiley, 966 So.2d at 337.

In the case before us, section 776.032(4) qualifies as a criminal statute because it affects whether the State can prosecute a defendant in the same manner as before subsection (4) was added. If the amended statute were to apply to Love, she could not be prosecuted in the same manner as before because the burden of proof at the immunity hearing would now shift to the State and the burden would rise to clear and convincing evidence. Thus, article X, section 9 of the Florida Constitution does not allow section 776.032 to be applied retroactively. Smiley, 966 So.2d at 337 ("[The defense] has a direct impact on the prosecution of the offense...").

In sum, although section 776.032(4), Florida Statutes (2017), is constitutional, under the authority of Smiley, Love is not entitled to the benefit of the shift in the burden of proof because the amendment to the statute by the Legislature in June 2017 operated prospectively and, thus, is inapplicable to Love's case. Accordingly, we deny Love's petition for writ of prohibition.

Petition denied. Conflict certified.

      A petition for writ of prohibition is the proper method to review a trial court's denial of Stand Your Ground immunity. Mobley v. State, 132 So.3d 1160, 1161 (Fla. 3d DCA 2014).

      With respect to the burden of proof in pretrial Stand Your Ground hearings, the Florida Supreme Court held in Bretherick, supra , that the burden of proof in pretrial immunity hearings was on the defendant, who was required to prove by a preponderance of the evidence that he was entitled to the statutory immunity. Bretherick was decisional law that established the procedures to use in pretrial immunity hearings in Stand Your Ground cases before June 9, 2017, because the Legislature had left this procedural gap.

      We are cognizant of the recent opinion out of the Second District Court of Appeal, Tymothy Ray Martin v. State, No. 2D16-4468, 43 Fla. L. Weekly D1016c, --- So.3d ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), where the Second District decided that section 776.032(4) is a procedural amendment that should be applied retroactively to all pending cases. We disagree with the Second District Court of Appeal's holding because we believe Smiley v. State, 966 So.2d 330 (Fla. 2007), mandates a finding that the subsection (4) amendment to section 776.032 is a substantive change in the law. We further disagree with the Second District Court of Appeal in Martin because we believe that Smiley's holding that Article X, section 9 of the Florida Constitution prohibits retroactive application of criminal legislation is applicable to section 776.032(4). Thus, we certify conflict with the Second District Court of Appeal's decision in Martin.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Bronislaw BAJCAR, Petitioner, v. Monika Klaudia BAJCAR, Respondent.
    Nos. 3D17-2726 & 3D17-2763
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Lowry at Law, P.A., and Carla P. Lowry (Fort Lauderdale), for petitioner.
    Mary Nikezic (Fort Lauderdale), for respondent.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   EMAS, J.

INTRODUCTION

Bronislaw Bajcar ("the father") petitions for a writ of certiorari, seeking relief from the trial court's writ of bodily attachment, issued against the father, directing that he be taken into custody for his failure to comply with previous orders of the trial court. Because the trial court failed to comply with the procedural requirements for indirect criminal contempt proceedings, depriving the father of the constitutional due process protections to which he is entitled, we grant the petition and quash the writ of bodily attachment.

FACTS AND PROCEDURAL HISTORY

The father, a Polish citizen, married Monika Klaudia Bajcar ("the mother"), also a Polish citizen, in Poland. The mother and father have a minor child, who is also a Polish citizen, and are currently embroiled in a divorce and child custody dispute in Poland.

In December 2013, the mother brought the child to Miami on a visitor visa. The father claims that the mother absconded from Poland with the child; nevertheless, on March 4, 2016, the Polish court entered a custody order, acknowledging the child's then-current residence in the United States, and granting visitation with the father for two weekends per month, in addition to Christmas Break and one month of summer vacation (June 15 to July 15). The Polish court order also expressly permitted the father to bring the child back to Poland for Christmas Break and summer vacation, with the proviso that he return the child to the child's home in the United States.

The August 3rd Order

When the mother allegedly refused the father his visitation rights, the father filed a petition in Miami-Dade Circuit Court to register and enforce the Polish order as written. The mother agreed that the Polish order should be recognized, but asserted that the Florida court could modify the terms of the order. The trial court referred the matter to a general magistrate, who specifically determined: "There is no basis for the Florida courts to modify the Polish court decrees on the issue of visitation between the father and the minor child. The Florida courts must enforce the Polish decrees." The trial court approved and ratified the general magistrate's recommendation on July 31, 2017. On August 3, 2017, the court granted the father's motion for makeup time sharing, allowing him to exercise his time sharing between August 3 and August 17.

The August 7th Order

The mother moved to vacate the trial court's order, claiming she was afraid the father would not return the child if the child was permitted to go with the father to Poland.

On August 7, 2017 the court held a hearing on the mother's motion to vacate. The court denied the mother's motion, acknowledging that the "State of Florida cannot interfere with judicial proceedings that are taking place in Poland and is required to honor and enforce the Polish Court's order." At that same hearing, the court ordered that the father could pick up the child that same day, and could travel with the child to Poland, but that he must return the child at noon on August 17, 2017. The order further provided that, before the mother turns over the child, the father must provide the mother with a travel itinerary containing his return date. The father was also ordered to permit the mother to speak to the child on a daily basis. Thereafter, the mother turned the child over to the father, who took the child to Poland as provided in the trial court's order. According to the mother, the father never provided her with the travel itinerary.

The August 11th Order

On August 10, the mother received a text from the child that simply read "Help." When she could not contact the child thereafter, the mother called the trial judge's chambers, and the court called the father's attorney and instructed him to tell the father not to travel to Poland with the child. The father's attorney advised the court that the father and child were already in Poland, pursuant to the court's August 7 order permitting same. Notwithstanding this communication from the father's attorney, the court entered an order, on August 11, requiring the father to "remain" in Florida and requiring the parties to appear in court on August 14, at which time the court was to determine whether the father was in violation of the trial court's August 7 order. The father did not appear on August 14, but the record does not reveal whether the court took any action at this hearing.

The Contempt Hearing and Issuance of the Writ of Bodily Attachment

More than three months later, on November 28, 2017, the mother filed an unsworn emergency motion for contempt and enforcement, asserting that the father was still in Poland with the child, that the mother had had no contact with the child, and that the mother was unable to exercise any time sharing. The emergency motion indicated that the mother had reason to believe the father was in Miami and would remain here for five days. The mother asked the trial court to order the father to appear and show cause why he should not be held in contempt for violating the court's previous order of August 7 (requiring the father to provide a travel itinerary and permit daily contact between the mother and child, and directing the child be returned to the mother on August 17) and August 11 (requiring the father to "remain" in Florida and ordering him to appear in court on August 14).

Two days later, on November 30, at 10:04 a.m., the trial judge's judicial assistant emailed counsel for the father, instructing him that the trial court would hear the mother's emergency motion for contempt and enforcement that same day, at 2 p.m. The father, who was still in Poland, did not appear at the hearing, but the father's attorney appeared by phone. This hearing was not recorded, and the father's attorney asserts he had inadequate time to secure a court reporter for the hearing.

At the conclusion of that hearing, the trial court issued a writ of bodily attachment, ordering the sheriff to take the father into custody and confine him in the county jail for his violation of the court's previous orders dated August 3, 2017, August 7, 2017 and August 11, 2017. This petition followed.

ANALYSIS

We first must determine whether the contempt hearing, and the writ of bodily attachment issued at the conclusion of that hearing, constituted a civil or criminal contempt. Generally speaking, a civil contempt is intended not to "punish" past conduct but to coerce future compliance. Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) ;

Sarron v. Crawford, 464 So.2d 644 (Fla. 3d DCA 1985). In other words, civil contempt is prospective, seeking to compel the contemnor to comply with an existing court order or obligation. While civil contempt may, under appropriate circumstances, result in incarceration of the contemnor, incarceration is not the ultimate goal; it is merely a means to an end. In the civil contempt context, the contemnor "carries the key to his cell in his own pocket," as he can purge himself of the contempt and will be released upon compliance with the court's order. Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla. 1977) ; Saunders v. Saunders, 183 So.2d 239 (Fla. 1st DCA 1966).

By contrast, criminal contempt is a sanction for past conduct, intended "to vindicate the authority of a court and to punish the offending participant." Bowen, 471 So.2d at 1277 ; The Florida Bar v. Taylor, 648 So.2d 709, 710 n.2 (Fla. 1995). Incarceration in this context is not merely a means to an end; it is an end unto itself. Based upon the circumstances of this case and the nature of the prior orders allegedly violated, we conclude that the writ of bodily attachment issued by the trial court constituted an indirect criminal contempt order.

A trial court clearly has the authority to enforce its orders and, where appropriate, to punish a party who violates those orders. However, before a court may impose indirect criminal contempt sanctions, "potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings." Bowen, 471 So.2d at 1277 ; White v. Junior, 219 So.3d 230 (Fla. 3d DCA 2017) ; Kersh v. State Farm Fire & Casualty Co., 686 So.2d 782 (Fla. 3d DCA 1997). See also Pugliese, 347 So.2d at 424-25.

The procedural components of an indirect criminal contempt are incorporated in Florida Rule of Criminal Procedure 3.840, which provides in pertinent part:

Rule 3.840. Indirect Criminal Contempt
A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner:
(a) Order to Show Cause. The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
(b) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars, or answer the order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant's omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
(c) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.
(d) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto at the defendant's request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense. All issues of law and fact shall be heard and determined by the judge.

Indirect criminal contempt proceedings require strict adherence to rule 3.840. Berlow v. Berlow, 21 So.3d 81 (Fla. 3d DCA 2009) ; Sylvester v. State, 923 So.2d 1289 (Fla. 5th DCA 2006) ; Levey v. D'Angelo, 819 So.2d 864 (Fla. 4th DCA 2002) ; Lindman v. Ellis, 658 So.2d 632 (Fla. 2d DCA 1995). In the instant case, no order to show cause was issued by the trial court. See rule 3.840(a) ; Goral v. State, 553 So.2d 1282 (Fla. 3d DCA 1989) (holding a motion for contempt or motion for order to show cause cannot itself serve as the order to show cause). Further, the motion for contempt was unsworn, was not accompanied by an affidavit, and neither the motion nor the court's communication to the father's attorney placed the father on notice that he was facing potential criminal penalties. See De Castro v. De Castro, 957 So.2d 1258 (Fla. 3d DCA 2007). Finally, the hearing which resulted in the issuance of the writ was held on less than four hours' notice to the father's attorney, and was held notwithstanding the fact that the attorney advised the court that the father was in Poland with the child. See rule 3.840(a) ; Goral, 553 So.2d at 1283 (two working days' notice of the contempt hearing did not provide a reasonable amount of time for preparation of a defense); Russ v. State, 622 So.2d 501 (Fla. 5th DCA 1993) (holding hearing less than two days after service of order to show cause violated due process rights of contemnor).

CONCLUSION

The trial court failed to strictly comply with the requirements of rule 3.840, and denied the father those constitutional due process protections to which he is entitled in an indirect criminal contempt proceeding. The trial court thus departed from the essential requirements of the law, resulting in irreparable harm. We therefore grant the petition for writ of certiorari and quash the writ of bodily attachment.

Petition for writ of prohibition denied. Petition for writ of certiorari granted; writ of bodily attachment quashed.

      We have consolidated this petition with a writ of prohibition filed by the father after the trial court denied his motion for disqualification of the trial judge. See Case No. 3D17-2763. We deny that petition without further discussion.

      In 2008, the Florida Legislature replaced the terms "visitation" and "custody" in favor of the concepts of "time sharing" and a "parenting plan" that includes "parental responsibility." See Ch. 2008-61, s. 8, Laws of Fla; § 61.13(3),(5), Fla. Stat. (2017). However, our references here are to the terminology utilized by the Polish court in its orders.


author: ROTHENBERG, C.J.

text:
    CITY OF MIAMI, Appellant, v. MIAMI LODGE #20, FRATERNAL ORDER OF POLICE, Appellee.
    No. 3D17-1733
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Victoria Méndez, City Attorney, and Kevin R. Jones, Stephanie K. Panoff, and Forrest L. Andrews, Assistant City Attorneys, for appellant.
    Buschel Gibbons, P.A., and Robert C. Buschel and Eugene G. Gibbons (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   ROTHENBERG, C.J.

The City of Miami (the "City") appeals the corrected final order issued by the Public Employees Relations Commission ("PERC") in favor of Miami Lodge # 20, Fraternal Order of Police ("FOP"), which found that the City engaged in an unfair labor practice. We have jurisdiction under Article V, Section 4(b)(2) of the Florida Constitution and section 447.504(1), Florida Statutes (2016). For the reasons that follow, we reverse.

BACKGROUND

This cause is again before this Court after a protracted series of reviews of the disciplinary action taken against Larry Hagan ("Hagan"), a now former City of Miami police officer, for workplace misconduct. Although, the facts regarding the alleged misconduct are not relevant to this appeal, the procedural history is.

On November 12, 2013, Hagan was suspended for 120 hours without pay and notified of his right to either: (1) appeal his suspension to the City of Miami Civil Service Board ("Civil Service Board"); or (2) initiate the grievance procedure outlined in the governing Collective Bargaining Agreement. Hagan elected to appeal to the Civil Service Board. Under this process, the Civil Service Board reviews the evidence and makes a recommendation to the City Manager who may sustain, reverse, or modify the Civil Service Board's findings and/or recommendations. The City Manager's determination may then be appealed to the appellate division of the circuit court, and upon a determination by the circuit court appellate panel, the parties may petition for second-tier certiorari review in this Court. See City of Miami v. Hagan, 235 So.3d 977 (Fla. 3d DCA 2017) (" Hagan I").

A. Hagan's election to appeal his suspension to the Civil Service Board

Hagan elected to appeal his suspension, and on November 13, 2013, he filed a request for a hearing with the Civil Service Board. On March 31, 2015, the Civil Service Board found Hagan guilty of most of the charges and recommended upholding Hagan's 120-hour suspension. The Civil Service Board's findings and recommendation were then submitted to the City Manager. On April 17, 2015, the City Manager affirmed the Civil Service Board's factual findings. However, he modified Hagan's discipline from a 120-hour suspension to a termination of employment.

After obtaining the adverse ruling by the City Manager, Hagan took two inconsistent actions: (1) on April 29, 2015, through the FOP, he filed a grievance under the Collective Bargaining Agreement; and (2) on May 21, 2015, Hagan sought review of the City Manager's determination by the circuit court appellate division. In his petition for certiorari filed in the circuit court appellate division, Hagan argued that: (1) the City Manager abused his power by terminating Hagan, who had already been suspended for the same conduct and after he had already served the suspension; (2) the termination, in effect, resulted in "double jeopardy" because Hagan was being punished twice for the same offense; and (3) the decision to terminate Hagan was made without affording Hagan due process because he allegedly was not put on notice or given an opportunity to be heard. Hagan also specifically asked the circuit court appellate panel to consider certain sections of the Collective Bargaining Agreement.

On May 31, 2016, the circuit court appellate panel overturned the City Manager's termination of Hagan based upon its conclusions that: (1) the Civil Service Board lacked jurisdiction to hear Hagan's appeal because the Civil Service Board failed to conduct a hearing within thirty days of Hagan's request for a hearing; (2) the City Manager's decision to terminate Hagan without conducting a separate hearing resulted in successive sanctions for the same offense; and (3) the City Manager's termination of Hagan resulted in cumulative and successive punishments for the same offense.

Thereafter, the City filed a second-tier petition for writ of certiorari in this Court, seeking review of the circuit court appellate panel's opinion reversing the City Manager's termination of Hagan. In his response to the City's petition for second-tier certiorari review, Hagan argued that, although he had chosen to appeal his suspension to the Civil Service Board instead of pursuing the alternative route of selecting arbitration, as authorized by the Collective Bargaining Agreement, the City Manager's termination of Hagan was improper.

On November 13, 2017, this Court granted certiorari review and quashed the circuit court appellate panel opinion, finding that the circuit court appellate panel departed from the essential requirements of law in reversing the City Manager's termination of Hagan. Hagan I, 235 So.3d at 977. In Hagan I, this Court examined the City's Code and the relevant case law, and concluded that it was clear that the City Manager had the authority to terminate Hagan, and that Hagan was on notice of that possibility when he elected to appeal his suspension to the Civil Service Board. Id.

B. Hagan's Grievance

After Hagan elected to appeal his suspension to the Civil Service Board on April 17, 2015, the FOP filed a grievance on Hagan's behalf on April 29, 2015, under the Collective Bargaining Agreement. On July 1, 2015, the Director of the Department of Human Resources for the City denied Hagan's grievance based on his prior election of remedies. The FOP sought to arbitrate the grievance and, on October 13, 2016, proposed an arbitrator. In response, Ms. Panoff, an Assistant City Attorney, stated:

Our position on Hagan is that it is not arbitrable since Hagan elected his remedy pursuant to Article 6.4 of the applicable [Collective Bargaining Agreement]. Specifically, Hagan chose to appeal his suspension to the Civil Service Board. After the City Manager's termination, Hagan chose to appeal to the Circuit Court, Appellate Division, and the case is currently pending before the Third District Court of Appeal. Therefore, regardless of whether one argues that he elected a remedy with the Civil Service appeal or with the appellate proceeding, Hagan chose a remedy other than the grievance procedure.

Based on the City's refusal to arbitrate the grievance, the FOP filed an unfair labor practice claim against the City. The charging document alleges that "the Management Rights Article 4.1 [and Article 6.6] of the [Collective Bargaining Agreement] ... clearly limits the City to imposing only one form of disciplinary action," and the City's refusal to advance the grievance to arbitration constitutes an unfair labor practice. On February 24, 2017, a PERC-appointed hearing officer conducted a telephonic evidentiary hearing. The hearing officer recommended that PERC issue a final order directing the City to: (1) cease and desist from unilaterally refusing to process grievances through to arbitration and similarly interfering with the exercise of any rights guaranteed under Chapter 447, Part II, Florida Statutes; (2) arbitrate Hagan's grievance; (3) pay the FOP its reasonable attorney's fees and costs; and (4) post, for sixty days, a notice to bargaining unit members advising them of the contents of PERC's order. Thereafter, PERC entered a final order adopting the hearing officer's factual findings, incorporating the hearing officer's recommended order, and sustaining the FOP's unfair labor practice claim. The City's appeal of PERC's order follows.

ANALYSIS

Our review of PERC's corrected final order is de novo. Where an agency's interpretation of law conflicts with the plain and ordinary intent of the law or where the application of a statute does not require special agency expertise, no deference need be given to the agency's interpretation. Miami-Dade Cty. v. Gov't Supervisors Ass'n of Fla., 907 So.2d 591, 593-94 (Fla. 3d DCA 2005).

Because we find that PERC's interpretation is in conflict with the plain and clear language of section 447.401, Florida Statutes (2016), we afford PERC's interpretation no deference. Under section 447.401 and Articles 6.4, 6.6, and 6.8 of the governing Collective Bargaining Agreement, Hagan was entitled to only one remedy. Because he elected to appeal his suspension to the Civil Service Board and his subsequent termination to the circuit court appellate division, Hagan was precluded from relitigating his disciplinary action through the Collective Bargaining Agreement grievance process. We therefore conclude that PERC erred by addressing Hagan's grievance and determining that the City committed an unfair labor practice by refusing to process and arbitrate Hagan's grievance.

Section 447.401 provides career service employees with various avenues to address his or her grievances. There is nothing ambiguous about what section 447.401 provides, including its limiting language. Section 447.401 provides, in relevant part, as follows:

A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures.

(emphasis added). The following Articles in the governing Collective Bargaining Agreement are equally clear.

6.4 . It is further agreed by the F.O.P. that bargaining unit members covered by this Agreement shall make an exclusive Election of Remedy prior to filing a 2nd step grievance or initiating action for redress in any other forum.... The Election of Remedy form will indicate whether the aggrieved party or parties wish to utilize the Grievance Procedure contained in this Agreement or process the grievance, appeal or administrative action before a governmental board, agency or court proceeding. Selection of redress other than through the Grievance Procedure contained herein shall preclude the aggrieved party or parties from utilizing said Grievance Procedure for adjustment of said grievance.
6.6 . Only a bargaining unit member who has permanent Civil Service status as a sworn Police Officer in the Miami Police Department may appeal a suspension, demotion, or dismissal through the grievance procedure contained in this Agreement or in accordance with the appeal procedure of the Civil Service Rules, but not both . Such grievances shall be filed at Step 3 within the time limits set forth for Step 1.
6.8 . Grievances shall be processed in accordance with the following procedure:
....
Step 2.
If the grievance has not been satisfactorily resolved at Step 1, the bargaining unit member or the Employee Organization representative shall complete the Election of Remedy form provided for in Section 6.4 of this Article before initiating the grievance to the second step of the Grievance Procedure. If the aggrieved party or parties elect the remedy other than the Grievance Procedure contained herein, the grievance shall be withdrawn for redress consistent with the Election of Remedy form....

(emphasis added).

Hagan chose to pursue a Civil Service Board review of his discipline, rather than utilizing the grievance procedure established under section 447.401 or the Collective Bargaining Agreement, and thereafter pursued an appeal to the circuit court appellant division to address the adverse Civil Service Board determination. Thus, under both section 447.401 and the Collective Bargaining Agreement, the grievance procedure under the Collective Bargaining Agreement was no longer available to Hagan or to the FOP for the purpose of addressing the disciplinary action. Consequently, the City was not required to arbitrate Hagan's grievance under the grievance procedure, and PERC erred by concluding that the City's refusal to arbitrate the grievance constituted an unfair labor practice.

Our conclusion that Hagan's election of the Civil Service Review procedure is a bar to pursuing the union grievance procedure is not only supported by section 447.401 and the Collective Bargaining Agreement, it is supported by the case law. Florida courts have consistently applied section 447.401 to bar attempts to pursue more than one avenue of redress. See, e.g., Metro. Dade Cty. v. Dade Cty. Ass'n of Firefighters, Local 1403, 575 So.2d 289, 290 (Fla. 3d DCA 1991) (holding that the Association of Firefighters' appeal of a firefighter's discharge through the civil service appeal procedure foreclosed any relief under the union grievance procedure); Hallandale Prof'l Firefighters, Local 2238 v. City of Hallandale, 777 So.2d 435, 435-36 (Fla. 4th DCA 2001) (holding that, by pursuing an unfair labor practice charge with PERC, the union was barred from also seeking arbitration of the same charges); Bass v. Dep't of Transp., 516 So.2d 972, 972 (Fla. 1st DCA 1987) (holding that PERC was required to dismiss the employee's civil service appeal because the employee had previously sought relief through a grievance procedure established by collective bargaining agreement).

Hagan contends that his union grievance action was not barred because at the time he elected to appeal to the Civil Service Board he had only been suspended, not terminated. This argument is without merit for two reasons. First, Hagan was on notice prior to his election to appeal his suspension to the Civil Service Board that the Board hearing his appeal would only have the authority to make a recommendation to the City Manager and that the City Manager had the authority to accept or modify the discipline recommended by the Board. Hagan, therefore, was on notice of the risk he was taking by appealing his suspension and the preclusive effect of his election of this remedy. Second, Hagan has already litigated the same issues at every level and every forum through the administrative process he now wishes to arbitrate and litigate through the union grievance process.

A. Hagan was on notice that his discipline could be modified when he elected the Civil Service Remedy

The City of Miami Code of Ordinances provides, in relevant part, as follows:

40-122.-Disciplinary actions generally.
(a) Authority of city manager, department director; appeals to board; investigatory, evidentiary powers of board. Any officer or employee in the classified service may be removed, fined, laid off, or reduced in grade by the city manager or by the director of the department in which he/she is employed, for any cause which will promote the efficiency of the service; but he/she must be furnished with a written statement of the reasons therefor within five days from the date of the removal, suspension, fine, layoff, or reduction in grade, and be allowed a reasonable time for answering such reasons in writing, which shall be made a part of the records of the board; and he/she may be suspended from the date when such written statement of reason is furnished him/her. No trial or examination of witness shall be required in such case except at the discretion of the city manager or the department director.
Any employee in the classified service who deems that he/she has been suspended, removed, fined, reduced in grade or demoted without just cause may, within 15 days of such action by the department director, request in writing a hearing before the civil service board to determine the reasonableness of the action. The board shall, within 30 days after appeal of the employee disciplined, proceed to hear such appeal. After hearing and considering the evidence for and against the employee, the board shall report in writing to the city manager its findings and recommendations. The city manager shall then sustain, reverse, or modify the action of the department director.
....
40-124.-Appeals from disciplinary actions.
(a) Generally. When any employee in the classified service with permanent civil service status has been suspended, reduced in rank, or dismissed appeals to the board, the appeal must be made in writing within 15 days from the effective date of the suspension, reduction, or dismissal; and the board within 30 days shall proceed to hear such appeal. The board, recognizing the disciplinary authority of the administrative head ... shall make its findings in writing to the city manager for his/her consideration, who shall enter an order affirming, reversing, or modifying the disciplinary action of the department director....

(emphasis added).

This Court previously found in Hagan I and in a parallel opinion, City of Miami v. Jean-Phillipe, 232 So.3d 1138, 1145 (Fla. 3d DCA 2017), that the City of Miami Ordinances are clear, and that following a Civil Service Board review of a disciplinary action, the City Manager will review the Civil Service Board's findings and disciplinary recommendation, and the City Manager may affirm, reverse, or modify the disciplinary recommended action. Hagan I, 235 So.3d at 981-82 ; see also City of Miami v. Reynolds, 34 So.3d 119, 120 (Fla. 3d DCA 2010) (concluding that "once misconduct has been determined by the Civil Service Board, the penalty to be assessed comes within the exclusive discretion of the City Manager and may be imposed without elucidation"); Kee v. Miami-Dade Cty., 760 So.2d 1094, 1094-95 (Fla. 3d DCA 2000) (concluding that the County Manager had complete discretion to determine the appropriate penalty where the hearing officer had decided that an offense requiring discipline had been committed, and therefore, denying the petition for writ of certiorari); City of Miami v. White, 165 So.2d 790, 791 (Fla. 3d DCA 1964) ("It may be that the punishment imposed was severe and obviously it was more severe than would have been imposed by the Civil Service Board, but as we have pointed out, it was not the prerogative of the Civil Service Board to punish the appellant but that of the City Manager[.]").

Hagan, therefore, was on notice that, when he elected to appeal his disciplinary action to the Civil Service Board, the City Manager would ultimately determine whether to affirm, reverse, or modify the discipline recommended by the Civil Service Board. The City Manager chose the latter.

B. Hagan has already fully litigated his claims

The grievance filed by the FOP on Hagan's behalf alleged that the City Manager's decision to terminate Hagan's employment: (1) violated Hagan's double jeopardy rights because Hagan was initially suspended and had already served his suspension; (2) violated Hagan's due process rights because he was not put on notice that his suspension could be modified to a termination and, had Hagan known that the City Manager could terminate Hagan's employment, he would not have elected the Civil Service Board route; and (3) the City Manager lacked sufficient evidence to impose such a sanction.

The record reflects that each of these grievances have already been thoroughly litigated through the appeals following the adverse Civil Service Board disciplinary recommendation. Hagan raised these arguments in his appeal to the circuit court. He claimed that the City Manager abused his power by terminating him for the same conduct that resulted in his suspension, which he had already served; his termination constituted double jeopardy and was unsupported by competent substantial evidence; and the termination was without notice and an opportunity to be heard. Hagan specifically asked the circuit court to consider the Collective Bargaining Agreement, cited to the Collective Bargaining Agreement, and relied on it.

Thereafter, the City sought second-tier certiorari review in this Court. In his response to the City's petition, Hagan admitted that he chose to appeal his suspension to the Civil Service Board instead of pursuing an alternate remedy or selecting arbitration as authorized by the Collective Bargaining Agreement. However, he argued, as he argued below, that the City Manager abused his power, and punished him twice for the same offense, thus constituting double jeopardy and violating his due process rights. This Court concluded that the City of Miami Code of Ordinances was clear; that Hagan was put on notice that he could be terminated by the City Manager, and thus, that there was no due process violation; and that his discipline was modified-he was not punished twice for the same conduct.

The FOP is therefore attempting to litigate, through the process set forth in the Collective Bargaining Agreement, the same claims Hagan has already litigated through the Civil Service Board process. The purpose of the election of remedies doctrine is to preclude this exact scenario. See Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000) (recognizing that the doctrine of election of remedies "is an application of a doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course") (quoting Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936) ); see also Schafer v. City of Pompano Beach v. IAFF, Local 1549, 39 F.P.E.R. ¶ 120 (2012) (" Section 447.401, Florida Statutes, raises an absolute statutory bar to re-litigating an employer's disciplinary action in an unfair labor practice case when the employee has already elected to challenge that disciplinary action in a civil service case or a grievance/arbitration.").

Conclusion

Hagan previously elected to challenge his 120-day suspension by appealing to the Civil Service Board and then appealing that determination to the circuit court appellate division, which ultimately led to review by this Court. Thus, the FOP's attempt to pursue the same grievances Hagan has already fully litigated and which have been decided adversely violates section 447.401, Florida Statutes, and Articles 6.4, 6.6, and 6.8 of the governing Collective Bargaining Agreement. The City, therefore, was not required to arbitrate the grievance brought by the FOP, and PERC should have dismissed the grievance rather than concluding that the City's refusal to arbitrate constituted an unfair labor practice.

We therefore reverse the final order issued by PERC, which determined that the City engaged in an unfair labor practice, and the improperly awarded fees.

Reversed.

      The City's Director of Human Resources explained that Hagan's grievance had been denied by the City because Hagan had previously elected the remedy of appealing his suspension to the Civil Service Board, and thus, he could not pursue a grievance with the City.

      Step 1 under the Collective Bargaining Agreements is as follows:
      The aggrieved bargaining unit member shall discuss the grievance with his immediate supervisor within seven (7) working days of the occurrence which gave rise to the grievance. The F.O.P. representative may be present to represent the bargaining unit member if the bargaining unit member desires him present. The immediate supervisor shall attempt to adjust the matter and/or respond to the bargaining unit member within (7) working days.


text:
    Robert PERLBERG, Appellant, v. LUBERCY ASIA HOLDINGS, LLC, etc., Appellee.
    No. 3D17-2404
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Donald N. Jacobson, P.A., and Donald N. Jacobson (Palm Beach), for appellant.
    Holland & Knight LLP, and Monte S. Starr and J. Keith Ramsey (Orlando), for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   ROTHENBERG, C.J.

This case involves a dispute between the owner of a condominium, Lubercy Asia Holdings, LLC ("Lubercy"), and an interior design firm, Perlberg Associates, Inc. ("PAI"), whose lien against the condominium was declared fraudulent by the trial court and discharged. Specifically, the trial court's order granted Lubercy's motion for summary judgment on two counts. First, the order granted summary judgment against PAI on its claim to foreclose its lien on the condominium. Second, the order granted summary judgment in favor of Lubercy on its counterclaim that PAI and Robert Perlberg ("Perlberg"), the president of PAI, filed a fraudulent lien. The trial court's order declared PAI's lien on the condominium unenforceable, discharged the lien, and determined that Lubercy is entitled to prevailing party fees and punitive damages pursuant to section 713.31(2)(c), Florida Statutes. Perlberg appeals the trial court's order granting summary judgment. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

The trial court's order granting summary judgment is neither a final nor a partial final judgment because there are still several counts pending before the trial court in the complaint and counter-complaint that involve the same parties and arise out of the same underlying facts. See Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So.3d 559, 561-62 (Fla. 3d DCA 2015) (stating that "an order of the circuit court is 'final' if it ends all judicial labor in the case" and that an appellate court can hear a partial final judgment "only when the claims adjudicated by that order are separate and independent from the portion of the case still to be adjudicated.... If all claims arise from the same set of facts, an order resolving fewer than all of the counts is not appealable") (citations and footnote omitted).

On appeal, Perlberg also contests the trial court's determination that Lubercy is entitled to prevailing party fees pursuant to section 713.31(2)(c), but that determination is not appealable because the amount of fees has not yet been fixed. Threadgill v. Nishimura, 222 So.3d 633, 635 (Fla. 2d DCA 2017) ("An order that merely finds entitlement to attorney's fees but does not set an amount is a nonfinal, nonappealable order."); Mem'l Sloan-Kettering Cancer Ctr. v. Levy, 681 So.2d 842, 842 (Fla. 3d DCA 1996) (holding that "because the trial court's order finding that the appellees were entitled to an award of attorney's fees against the appellant did not fix the amount, we dismiss that portion of the appeal for lack of jurisdiction").

Perlberg contends that this Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), which grants district courts of appeal jurisdiction over appeals of non-final orders that determine "the right to immediate possession of property." However, even an order granting summary judgment and determining that a party has "no legal right to possess the property" is not appealable under rule 9.130(a)(3)(C)(ii) because it does not "determine the 'immediate right to possession' even though it may resolve the underlying legal issues." Tarik, Inc. v. NNN Acquisitions, Inc., 17 So.3d 912, 913 (Fla. 4th DCA 2009). Similarly, here, although the summary judgment order on appeal adjudicated some of the underlying legal issues, it did not determine the immediate right to possession of property. Accordingly, rule 9.130(a)(3)(C)(ii) does not provide this Court with jurisdiction.

For these reasons, we dismiss this appeal as taken from a non-final, nonappealable order.

Dismissed.


author: LaROSE, Chief Judge.

text:
    Joseph RAISSI, Appellant, v. Gail VALENTE, Appellee.
    Case No. 2D17-2641
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018 Rehearing Denied July 16, 2018
    Alexander Allred of Hillard, Cuykendall & Allred, P.A., Largo, for Appellant.
    Thomas John Dandar of Dandar Law Group, P.A., Tampa, for Appellee.
   LaROSE, Chief Judge.

Joseph Raissi appeals the trial court's final summary judgment entered in favor of his former business partner, Gail Valente. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse, in part, because the trial court erred in granting summary judgment on Mr. Raissi's counterclaim. We affirm the final summary judgment in all other respects without further discussion.

Factual Background

Mr. Raissi and Ms. Valente formed a limited liability company (LLC) to own and lease out a condominium in West Virginia. The condominium was the LLC's sole asset. The parties each used the condominium for personal vacations. Various disputes arose relating to the parties' payment for expenses and use of the condominium. Mr. Raissi eventually sold the condominium, without Ms. Valente's approval and without giving her a chance to buy the property.

As a result, Ms. Valente sued Mr. Raissi. Mr. Raissi filed a negligence counterclaim. He alleged that, without his knowledge or consent, Ms. Valente used his name and personal information to install a second telephone line at the condominium, and then failed to pay for this service. As a result, Mr. Raissi's credit suffered.

Ms. Valente later moved for summary judgment "on all or part of the issues in this case." In support of her motion, Ms. Valente claimed that Mr. Raissi testified at his deposition that he had no documents to support his counterclaim. Mr. Raissi filed an opposing affidavit. He asserted that the allegations in his counterclaim offered an "additional and factual basis to deny [Ms.] Valente's motion for summary judgment."

After a hearing on the motion, the trial court found that Mr. Raissi had no evidence to support his counterclaim, and held that Ms. Valente was entitled to summary judgment on that issue. Mr. Raissi unsuccessfully moved for reconsideration or clarification. The trial court subsequently entered a final summary judgment, again reciting that Ms. Valente was entitled to summary judgment on the counterclaim.

Analysis

Before us, Mr. Raissi maintains that the trial court erroneously ruled in favor of Ms. Valente on the counterclaim because (A) she failed to raise the counterclaim as an issue in her summary judgment motion, and (B) the record does not support the trial court's finding that Mr. Raissi had no evidence to support his counterclaim. More specifically, Mr. Raissi contends that his deposition reflects that he presently had no documentation to support the counterclaim; he did not concede that no documentation existed. Ms. Valente contends that she raised the counterclaim in her motion and demonstrated that Mr. Raissi could not prove his counterclaim.

We review a final summary judgment de novo. See Wesner v. JMS Marinas, LLC, 224 So.3d 912, 915 (Fla. 2d DCA 2017).

Florida Rule of Civil Procedure 1.510(c) provides that a summary judgment movant must state in her motion "with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify [the summary judgment evidence] ... on which the movant relies." This rule "eliminate[s] surprise and ... provide[s] parties a full and fair opportunity to argue the issues." H.B. Adams Distribs., Inc. v. Admiral Air of Sarasota Cty., Inc., 805 So.2d 852, 854 (Fla. 2d DCA 2001) (holding that the summary judgment motion violated rule 1.510(c) because the motion failed to provide notice that count I was to be considered on summary judgment when the motion and its affidavit "did not identify count I as one of the matters to be argued" or address any facts relevant to count I). "It is reversible error to enter summary judgment on a ground not raised with particularity in the motion." Gee v. U.S. Bank Nat'l Ass'n, 72 So.3d 211, 215 (Fla. 5th DCA 2011) (quoting Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006) ).

After the movant properly raises a ground for summary judgment, she must then prove she is entitled to summary judgment.

A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c) ). To obtain summary judgment on Mr. Raissi's negligence counterclaim, Ms. Valente had to "show unequivocally that there was no negligence, or that [Mr. Raissi's] negligence was the sole proximate cause of the injury." See Wills v. Sears, Roebuck & Co., 351 So.2d 29, 31 (Fla. 1977). "Courts must be particularly restrained in granting summary judgment in negligence cases ...." Grimes v. Family Dollar Stores of Fla., Inc., 194 So.3d 424, 428 (Fla. 3d DCA 2016).

Ms. Valente filed her summary judgment motion over two years after Mr. Raissi filed his counterclaim. Her motion "state[d] that there exist[ed] no genuine issue of material fact, and that [Ms. Valente] [was] entitled to judgment as a matter of law on all or part of the issues in this case." Ms. Valente alleged in her motion that "[Mr.] Raissi admitted that he does not have any documentation to support the allegations in his counterclaim." On our record, we can conclude safely that Mr. Raissi received sufficient notice that his counterclaim was teed up for hearing.

Nevertheless, the trial court should not have entered summary judgment on the counterclaim. When Ms. Valente moved for summary judgment, Mr. Raissi "had no burden to come forward with the evidence necessary to prove [his] case." See Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 869 (Fla. 2d DCA 2011). Instead, Ms. Valente had to demonstrate that Mr. Raissi could never prove his counterclaim. See id. She relied exclusively on Mr. Raissi's deposition. But Mr. Raissi testified only that, at the time of the deposition, he did not have any other documents besides his credit report to support his counterclaim. Mr. Raissi did not testify that he had no evidence whatsoever or that he could never obtain any evidence.

In fact, Mr. Raissi testified that he did not secure the second telephone line, and that Ms. Valente had a personal telephone line at the condominium. He further testified that there was an unpaid phone bill in his name linked to the condominium, and that the unpaid phone bill negatively affected his credit score and prevented him from refinancing his own properties. We are not convinced by Ms. Valente's argument that Mr. Raissi's self-serving statements are insufficient to defeat summary judgment. Cf. United States v. Stein, 881 F.3d 853, 858-59 (11th Cir. 2018) ("A non-conclusory affidavit which complies with [ Federal Rule of Civil Procedure 56 ] can create a genuine dispute concerning an issue of material fact, even if it is self-serving and/or uncorroborated."). Moreover, Mr. Raissi was not required to defeat summary judgment when Ms. Valente failed to meet her initial burden of showing the absence of any material fact.

Ms. Valente's reliance on the deposition testimony was insufficient to entitle her to a summary judgment. See Land Dev. Servs., Inc., 75 So.3d at 869 (reversing summary judgment because "Gulf View's bare assertion that the original note was not 'in evidence' at the time of the hearing was legally insufficient to meet its burden to prove that Land Development could not prevail were a trial to be held" (emphasis omitted) ); Kenyon v. Polo Park Homeowners Ass'n, Inc., 907 So.2d 1226, 1228 (Fla. 2d DCA 2005) ("The Association did not carry its burden by simply filing a motion in which it argued that the Kenyons had no evidence to support their claims."). Therefore, we reverse the trial court's final summary judgment as it pertains to Mr. Raissi's counterclaim, and remand for further proceedings consistent with this opinion.

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

CRENSHAW and LUCAS, JJ., Concur.

      We limit our discussion to those facts relevant to Mr. Raissi's counterclaim.


author: PER CURIAM.

text:
    Marcus RIVERO, Petitioner, v. Oscar FARACH, et al., Respondents.
    No. 3D18-491
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Law Offices of George W. Wickhorst, P.A., and George W. Wickhorst, III, for petitioner.
    Farrell Patel Jomarron & Lopez, and Jesmany Jomarron and Rachel A. Canfield, for respondents.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   PER CURIAM.

Marcus Rivero seeks a writ of certiorari quashing orders denying his motion to determine a court record as confidential and his motion for reconsideration. For the reasons which follow, we deny the petition.

I. Facts

This case originated with Rivero's claims for defamation and injunctive relief due to an anonymous online blog posting of a negative comment on a public website. The post contained Rivero's mugshot from a previously-sealed criminal proceeding. Rivero claims that Oscar Farach was the author of the comment, and that Farach's hired counsel improperly threatened to serve a litigation hold letter, attaching the anonymous comment, to more than one hundred potential witnesses. After one witness confirmed receipt of the letter, Rivero filed a second amended complaint naming Farach, as well as Farach's attorney and law firm, as defendants.

The defendants moved to dismiss the complaint for failure to state a cause of action, including Rivero's failure to attach a copy of the alleged defamatory statement to the complaint. The trial court granted the motion, but permitted Rivero to file a third amended complaint attaching the allegedly defamatory online blog post.

Complying with the trial court's order, Rivero attached, as an exhibit, a screenshot of the online blog post, while also filing a motion to determine the confidentiality of the attachment. The trial court denied the motion, concluding that the attached exhibit was not a court record subject to Florida Rule of Judicial Administration 2.420. After the denial of a motion for reconsideration, Rivero sought certiorari here.

II. Requirements for Certiorari Relief

To obtain certiorari relief, the petitioner must establish the following three elements: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004). With respect to the first element, a trial court's ruling departs from the essential requirements of the law when it violates a "clearly established principle of law resulting in a miscarriage of justice." Williams v. Oken, 62 So.3d 1129, 1133 (Fla. 2011).

III. Analysis

In his petition, Rivero contends that the trial court erred when it denied his motion to determine the confidentiality of court records because the ruling improperly unsealed a previously-sealed criminal record. More specifically, Rivero claims that the mugshot attached to the online blog post was a sealed court document in his criminal proceeding, and thus, the trial court cannot unseal the document unless the defendants establish good cause.

Rivero's argument, however, fails for two reasons: (1) the online blog post does not qualify as a judicial court record as defined by Rule 2.420(b) ; and (2) Rivero failed to meet his burden that the online blog post falls within the purview of the designated confidential court records in Rule 2.420(c).

First, Rivero seeks to seal a part of the online blog post at issue because it "contains information relating to Rivero that was previously sealed by order ... pursuant to section 943.059, Florida Statutes." The trial court disagreed and denied Rivero's motions, relying on Rule 2.420. Rule 2.420(a) explicitly provides that the public shall have access to all "records of the judicial branch" except those otherwise exempt from disclosure. When applying this rule, the trial court correctly analyzed the fact that the online blog post-including the mugshot-was not a court record connected with the official business of a judicial branch entity. This was the correct analysis based on Rivero's conclusory allegation that the blog "contains information ... previously sealed."

While the official mugshot was part of the previously-sealed record, nothing in Rule 2.420-including, the definitions of "records of the judicial branch" and "court records"-suggests that an attachment or exhibit that references or contains matters within the scope of a different court proceeding becomes part of a judicial record subject to confidentiality. See Media Gen. Operations, Inc. v. State, 12 So.3d 239, 240 (Fla. 2d DCA 2009) ("By definition, the record of a court proceeding is comprised only of matters that are part of the proceedings, i.e., the official business of the court.") (emphasis omitted). It seems counterintuitive, given the use of the introductory phrase "the public shall have access," that a record automatically becomes exempt from public disclosure simply because it "contains information" from a previously-sealed record in a different case and in a different division of the court. Moreover, Rivero did not allege the required standards for establishing the document as a "court record" or address the standards for sealing a document. See BDO Seidman, LLP v. Banco Espirito Santo Int'l, Ltd., 201 So.3d 1 (Fla. 3d DCA 2009) (holding that the sealing of the appendix on appeal, which contained public items, was not warranted because the appellant failed to address the required standards for sealing documents).

Accordingly, the trial court correctly determined that the online blog post was not a judicial record subject to Rule 2.420.

Second, even if the online blog post, attached as an exhibit, was considered a "court record" under Rule 2.420(b), Rivero's argument fails to address the fact that the online blog post is not a category of confidential record designated in Rule 2.420(c). In his petition, Rivero relies on the fact that the mugshot was determined to be confidential under Florida law in a prior criminal proceeding, thereby triggering Rule 2.420(c)(7) and (8). Rivero, however, fails to consider the fact that the official mugshot was determined to be confidential, rather than an online blog post that merely contained a screenshot of the mugshot. Rivero provides no authority that a previously-sealed, but subsequently publicized, court record renders confidential any reference or information related to the record in a new judicial proceeding.

Rivero's remedy was a motion to seal the online blog post pursuant to the test defined in Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988), and subsequently codified in Rule 2.420(c)(9). That rule authorizes a trial court to seal a court file if the court determines that confidentiality is required to protect certain designated interests. Rivero made no such motion, and did not establish an exception to the "strong presumption" of openness of court proceedings and records. See Barron, 531 So.2d at 118 ("[A] strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.").

Accordingly, Rivero's petition for writ of certiorari is denied.


text:
    Ryan Charles LINDEMUTH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2320
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Ryan Charles Lindemuth appeals the trial court's conviction and sentence. We affirm, as the trial court did not err in its use of the definition of the word "entice" in its jury instruction on the charge of interfering with the custody of a minor, pursuant to section 787.03(1), Florida Statute (2014).

Lindemuth was arrested and charged by Information with one count of interfering with the custody of a minor. The case went to a jury trial.

At trial, the victim, Joshua Gregis, told the jury what happened on the day of the crime, which occurred when Gregis was fourteen-years-old. On the afternoon in question, Gregis rode the bus home from school in the afternoon and arrived about 2:40 p.m. or 2:50 p.m. He was planning on going to his friend's house to do homework. Gregis informed his mother of his plans and then left on his bicycle.

As he was riding, Gregis noticed Lindemuth's car and felt worried because he did not know Lindemuth. Gregis had his cell phone in his hand. Lindemuth was in his car, following behind Gregis, when he drove up right next to Gregis and asked to use his phone. Lindemuth spoke to Gregis through the passenger side of the vehicle. Gregis said no.

Lindemuth continued to follow Gregis, even as Gregis turned onto the street toward his friend's house. Gregis then moved his bicycle into the left-hand lane to allow Lindemuth's car to pass, but Lindemuth came up alongside Gregis and veered the car to get closer to Gregis. The vehicle crossed the yellow line dividing the lanes of the road. Gregis was on the edge of the lane, as far over as he could be without entering someone's front yard. Gregis got off his bicycle and stopped. Lindemuth approached and again asked to use Gregis's phone. Gregis said no. Lindemuth then showed Gregis a bunch of money/cash, told him he could hold the cash while Lindemuth used the phone, and told Gregis he was not going to steal his phone. Gregis again said no, and Lindemuth told him, "You can get in and hold the money." Lindemuth said he was not going to steal Gregis's phone and that he just needed to call a buddy of his. Lindemuth appeared upset and then sped away in his vehicle. Gregis arrived at his friend's house and told his friend's mother what had happened. She said the police should be called.

Gregis's father, Anthony Gregis, testified at trial that the family gave no one standing authority to take custody of their child during the afternoons after school. He stated that when he arrived home after work, he saw his son getting out of a police car, and Gregis informed him of the incident with Lindemuth. Gregis's mother, Angela Gregis, testified that she gave her son permission to go to his friend's house after school and that he did not have permission to get into Lindemuth's car.

Lindemuth was thereafter arrested and charged with one count of interfering with the custody of a minor, under section 787.03(1), Florida Statutes (2014). The jury convicted him of that offense, and the trial court sentenced him to five years probation.

On appeal, Lindemuth contends, in part, that he committed no crime because the statute is inapplicable to the evidence the jury heard, and the jury instruction's definition of "entice" led the jury to erroneously convict him. We disagree.

Section 787.03(1) provides:

Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any minor or any incompetent person from the custody of the minor's or incompetent person's parent, his or her guardian, a public agency having the lawful charge of the minor or incompetent person, or any other lawful custodian commits the offense of interference with custody and commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

We agree with the State that section 787.03(1) applies to a situation such as the one before us, where a stranger attempts to get a minor into his car by offering him money. The statute does not require the minor to be physically taken from his parents' custody.

Section 787.03(1) prohibits interference with parental custody by a person who is not a parent or lawful custodian of the minor child in question, without the lawful authority to do so. Parents have a legal right to the custody of their minor children. State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla. 1957). Custody is more than just being in physical custody of a minor child at a given moment in time. A child is in his or her parent's custody at all times because the meaning of custody encompasses other responsibilities relating to the protection, supervision, welfare, and care of a child. For example, parental custody includes the decision-making authority to decide where the child lives, health care issues, where the child goes to school, and what, if any, religion the child practices. See §§ 61.13(2), Fla. Stat. (2018) ; Abbo v. Briskin, 660 So.2d 1157, 1161 (Fla. 4th DCA 1995). As such, parental custody is not limited to just being in physical control of a child.

Lindemuth further contends that the statute is vague and that the definition of "entice" confused the jury. However, we find that section 787.03(1) is applicable to the case before us, where Lindemuth enticed Gregis to enter his car without parental permission to do so, thus interfering with parental custody. See Leding v. State, 725 So.2d 1221 (Fla. 4th DCA 1999) (affirming a conviction for enticing children into a car, where the children stayed in the front yard and did not enter the defendant's car).

The trial court here instructed the jury that entice meant "to lure, induce, tempt, incite, or persuade a person to do a thing." The trial court wanted it to be clear there was no sexual component to the definition of entice in the jury instruction, as subsection (1) of section 787.03, under which Lindemuth was charged, has no sexual component to it. No sexual intent finding on Lindemuth's part was required by the jury in order to find him guilty of interference with custody, as the jury found here.

In addition, the trial court used the definition of "entice" that the Fourth District Court of Appeal used, in part, in Leding . In Leding, the defendant was charged with "enticing two children" under section 787.03(1), Florida Statutes (1995). As in the case before us, the defendant in Leding never said anything sexual, and there was no evidence to suggest Leding had a sexual intent. Because there was no standard jury instruction to define entice, and it was not defined in section 787.03(1), the Fourth District Court of Appeal used the definition in Black's Law Dictionary. There, the trial court instructed the jury with Black's Law Dictionary's definition of "entice," which stated:

To wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce. To lure, induce, tempt, incite, or persuade a person to do a thing ... Enticement of a child is inviting, persuading or attempting to persuade a child to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the person of said child.

Leding, 725 So.2d at 1222 (emphasis added).

The Fourth District Court of Appeal found that the trial court did not err in instructing the jury with the definition of entice that it used, finding that the word "entice" was "specific enough to give persons of common intelligence and understanding an adequate warning." Id. Florida law recognizes that in the absence of a statutory definition, the plain and ordinary meaning of a word can be ascertained by looking to a dictionary. Suddath Van Lines, Inc. v. State, Dept. of Env. Protection, 668 So.2d 209, 212 (Fla. 3d DCA 1996). Therefore, 787.03(1) is not vague, and the trial court did not err in using the definition of entice that it used in the jury instruction.

We decline to address Lindemuth's additional issue on appeal, finding it to be meritless. We therefore affirm Lindemuth's conviction and sentence.

Affirmed.

      The citation in Leding does not state which edition of Black's Law Dictionary was used.


author: Roberts, J.

text:
    HIGHWOODS PROPERTIES, INC., Appellant, v. MILLAR ELEVATOR SERVICE COMPANY and Schindler Elevator Company, Appellees.
    No. 1D16-5675
    District Court of Appeal of Florida, First District.
    May 16, 2018 Rehearing Denied July 17, 2018
    Richard A. Sherman, Sr., and James W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale; Dennis R. Schutt and Jeffrey Devonchik of Schutt, Schmidt & Noey, Jacksonville, for Appellant.
    Jay C. Howell of Jay Howell & Associates, Jacksonville; Stuart Aaron Weinstein, Richard S. Weinstein, and Richard P. Hermann, II, of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton; Bradley J. Edwards of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale; H. Christopher Bartolomucci of Kirkland & Ellis, Washington, D.C., for Appellees.
   Roberts, J.

Highwoods Properties Incorporated (Highwoods) appeals a final order denying its motion for final judgment for indemnity against Schindler Elevator Company (Schindler). For the reasons discussed herein, we find Highwoods was not precluded from seeking indemnity in this action, but remand for further litigation on the merits of the indemnity claims. We affirm the final order in part, reverse in part, and remand for further proceedings.

Factual Background

In 1997, Highwoods entered into an elevator service contract with Schindler's predecessor in interest, Millar Elevator Service Company. Under the terms of the service contract, Schindler was responsible for maintenance and repair of elevators in a Jacksonville office building owned by Highwoods, which included response to elevator entrapments. The service contract also included a reciprocal indemnity provision.

In 1999, Janice Beasley was entrapped and injured in an elevator in the subject office building. She and her husband, Stephen Beasley, filed suit against Highwoods and Schindler alleging Highwoods breached a common law duty to use reasonable care in the inspection and maintenance of the elevator, and Schindler negligently failed to perform its duty, per the service contract, to inspect and maintain the elevator. Counsel for Highwoods asked Schindler to assume the defense of the entire case per the service contract, but Schindler declined the request. Highwoods then filed a cross-claim against Schindler for common law and contractual indemnity that alleged Highwoods was entirely without fault, that the plaintiffs' damages were solely and proximately caused by Schindler, and that any liability on Highwoods's part would be "vicarious, constructive, derivative, and technical in nature."

Some years later, the plaintiffs amended the complaint to include a claim that Highwoods had a non-delegable duty under chapter 399, Florida Statutes, to ensure the safe operation and proper maintenance of the elevator. The amended complaint also alleged Highwoods and Schindler failed to reasonably respond to the elevator malfunction. Highwoods did not seek to amend its cross-claim in response to the amended complaint.

The case proceeded to a jury trial that was bifurcated into two phases: liability and damages. On liability, the jury determined that neither Highwoods nor Schindler was negligent in the inspection, maintenance, service, or repair of the elevator. The jury found Highwoods and Schindler were each fifty percent negligent in their response to the elevator malfunction. Highwoods later successfully moved for a directed verdict on liability. The order granting the motion for directed verdict found no evidence that Highwoods's active negligence was a legal cause of the plaintiffs' injuries, but concluded Highwoods had a non-delegable duty to the plaintiff regarding the safe operation and proper maintenance of the elevator in question.

The case proceeded to a jury trial on phase two for causation and damages. During the phase two trial, Highwoods and the plaintiffs reached a secret settlement agreement that Highwoods characterizes as a "high-low" agreement between $490,000 and $510,000. Highwoods remained in the trial, but did not appear on the verdict form. Highwoods's settlement agreement with the plaintiffs was not disclosed to the jury and was not disclosed to Schindler and the trial court until later. While the jury was deliberating, Schindler and the plaintiffs reached a settlement, which was disclosed to the court. The jury returned a verdict for $13,000,000, which was in excess of Schindler's settlement amount. The plaintiffs eventually dismissed the action against both parties.

Highwoods Granted Summary Judgment on Indemnity

Highwoods moved for summary judgment against Schindler, seeking common law and contractual indemnity for its $510,000 payment to the plaintiffs. A new judge entered summary judgment in favor of Highwoods on both claims. The order found the juries' determinations that Schindler was negligent and was the legal cause of the plaintiffs' injuries coupled with the court's previous determination that Highwoods remained vicariously liable to the plaintiff by operation of its non-delegable duty under section 399.02(5)(b), Florida Statutes, satisfied the requirements for Highwoods to be indemnified under the clear and unambiguous indemnity provision of the contract. The order also found no genuine issue of material fact with regard to common law indemnity. The order found Highwoods had established it remained liable to the plaintiff and had remained a party defendant with exposure based upon its non-delegable duty for Schindler's negligence. The order required Schindler to reimburse Highwoods's $510,000 payment to the plaintiffs as well as Highwoods's attorney's fees and costs. Schindler unsuccessfully sought reconsideration of the summary judgment order.

Highwoods Denied Final Judgment on Indemnity

Highwoods next moved for entry of a final judgment on indemnity. A new judge denied the motion for four reasons: (1) Highwoods's cross-claim for indemnity was never updated after the amended complaint and should be deemed abandoned; (2) Highwoods's payment to the plaintiffs was made without legal obligation and was voluntary, which obviated any right to indemnity from Schindler; (3) Highwoods's settlement payment to the plaintiffs was void and could not provide a basis for indemnification because it was a prohibited Mary Carter agreement; and (4) even if indemnity was permissible, the summary judgment order could not stand because Schindler had no opportunity to argue the voluntary nature of Highwoods's settlement, no opportunity to challenge the reasonableness and necessity of the settlement, and no opportunity to assess the reasonableness and necessity of Highwoods's attorney's fees and costs. The final order denied the motion for entry of final judgment on the indemnity claims and vacated the orders on summary judgment without prejudice to Highwoods's right to file a separate indemnity action against Schindler.

We conclude that the final order on appeal prematurely decided the issue of voluntariness in point (2), but agree with the portion of the final order vacating summary judgment for the reasons discussed in point (4) of the final order. We reverse points (1) and (3) of the final order, which means that Highwoods's cross-claim for indemnity survives in this action. We remand to allow Highwoods to pursue a full trial on indemnity in this action.

The Final Order Erred in Determining Highwoods's Cross-Claim for Indemnity Was Abandoned

In point (1) of the final order, the trial court determined Highwoods had abandoned its cross-claim by failing to amend it after the plaintiffs amended their complaint to inject new issues of non-delegable duty and negligent response. We disagree and find that the cross-claim withstood the amendment of the complaint and should not have been deemed abandoned in this action. Highwoods was under no obligation to amend its cross-claim in response to the amended complaint. The cross-claim for indemnity was not "locked in" by the allegations in the original complaint and stood over after the complaint was amended. See Mortg. Guarantee Ins. Corp. v. Stewart , 427 So.2d 776, 780 (Fla. 3d DCA 1983) ("[T]he law has always permitted a person to bring an indemnity claim quite apart from the characterization of his conduct in the original complaint filed by the injured party."); Rea v. Barton Protective Servs., Inc. , 660 So.2d 772, 773 (Fla. 4th DCA 1995) (recognizing the indemnity cross-claim was not bound by the allegations of the original complaint and its characterization of conduct).

Highwoods's cross-claim asserted claims for common law and contractual indemnity. The cross-claim also asserted that the plaintiffs' damages were solely and proximately caused by Schindler, that Highwoods was entirely without fault, and that any liability on Highwoods's part would be "vicarious, constructive, derivative, and technical in nature." This language was also sufficient to place Schindler on notice of a claim for indemnity based upon a breach of a non-delegable duty. See Houdaille Indus., Inc. v. Edwards , 374 So.2d 490, 493 (Fla. 1979) ("[Idemnity] shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious constructive, derivative, or technical liability, to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable."); Stewart , 427 So.2d at 779 (recognizing a defendant, who is not personally liable but has a non-delegable duty, may assert a claim for indemnity against an independent contractor hired to discharge the non-delegable duty). We reverse the portion of the final order deeming the cross-claim abandoned in this action. Highwoods's cross-claim for contractual and common law indemnity withstood the amended complaint and remains viable in this action if Highwoods wishes to pursue it on remand.

The Final Order Erred in Concluding Highwoods's Settlement was a Prohibited Mary Carter Agreement

In point (3), the trial court denied indemnification on the finding Highwoods's $510,000 payment was a prohibited Mary Carter agreement that unfairly prejudiced Schindler. We disagree.

A Mary Carter style agreement is one in which a defendant in a multi-defendant case secretly agrees with the plaintiff to work together to the detriment of the other defendant. Panama City-Bay Cty. Airport & Indus. Dist. v. Kellogg Brown & Root Servs., Inc. , 140 So.3d 1112, 1116 (Fla. 1st DCA 2014) (citing Dosdourian v. Carsten , 624 So.2d 241, 243 (Fla. 1993) ). In Frier's, Inc. v. Seaboard Coastline Railroad Company , 355 So.2d 208, 210 (Fla. 1st DCA 1978), this Court recognized the following hallmarks of a typical Mary Carter agreement:

(a) secrecy;
(b) the agreeing defendants remain as party defendants in the lawsuit;
(c) the agreeing defendants' liability is decreased in direct proportion to the nonagreeing defendants' increase in liability;
(d) the agreeing defendant guarantees the plaintiff a certain amount of money if plaintiff does not receive a judgment against any of the defendants or if the judgment is less than a specified sum.

Mary Carter style agreements are not allowed in Florida because they are antithetical to the trial process, create a charade of adversity, and prejudice the non-settling defendant. Dosdourian, 624 So.2d at 245-46.

Here, Highwoods's $510,000 payment was done in secret and was dependent on the jury's verdict. However, the payment was made during the damages phase of the case, well after liability had already been determined in phase one. Thus, there was no incentive to decrease Highwoods's liability or increase Schindler's liability because liability had already been determined. The settlement agreement lacked two key features of a Mary Carter agreement: Highwoods elected to remain in the case, but was not required to do so, and Highwoods could not and did not inflict any harm upon Schindler by remaining in the case. Highwoods had a legitimate reason to stay in the case based on the previous court rulings on its non-delegable duty and on summary judgment. The settlement here does not raise red flags of deceit, collusion, or fraud that were of concern in Dosdourian . Because the settlement is not a prohibited Mary Carter agreement, indemnification was improperly denied for this reason. We reverse the portion of the final order denying indemnification on the finding that the settlement was a prohibited Mary Carter agreement.

The Final Order Erred in Finding Highwoods's Settlement was Voluntary

In point (2) of the final order, the trial court held Highwoods could not seek indemnification from Schindler for its voluntary $510,000 payment, which was made without any legal obligation to pay. See Arison v. Cobb Partners, Ltd. , 807 So.2d 101, 106 (Fla. 3d DCA 2002). We reject this conclusion as premature at this juncture. First, it contradicts the reasoning in point (4) of the final order in which the trial court found the summary judgment order was improperly entered where Schindler had no opportunity to argue the voluntariness of the $510,000 payment. Second, the previous rulings regarding Highwoods's non-delegable duty in the case created enough of an uncertainty to justify Highwoods's decision to remain in the case and to protect itself against potential liability. Camp, Dresser & McKee, Inc. v. Paul N. Howard Co. , 853 So. 2d 1072, 1079 (Fla. 5th DCA 2003) (holding a party seeking indemnification must establish that the settlement was made based on its potential liability to the plaintiff, which is required because the indemnitee cannot be a mere volunteer who settled without obligation to do so). We reverse point (2) to the extent the trial court determined the payment was voluntary. The parties will have the opportunity to re-litigate this issue on remand.

Conclusion

Based on the foregoing, we affirm the portions of the final order that vacated the summary judgment orders. We reverse the trial court's decision to deny the motion for entry of final judgment of indemnity in this action. Highwoods's cross-claim remains viable in this action should Highwoods wish to pursue indemnification on remand.

KELSEY and M.K. Thomas, JJ., concur.

      Our opinion addresses Issues II-VI of Highwoods's amended initial brief. Issue I is affirmed without comment.

      The parties do not dispute that Schindler was obligated to honor the service contract after merging with Millar. The two companies will be referred to collectively as Schindler for ease of reference.

      Under the terms of the agreement, if the total damages were less than $490,000, Highwoods would pay $490,000. If the total damages were between $490,000 and $510,000, Highwoods would pay the damage amount. If the total damages exceeded $510,000, Highwoods would pay $510,000.