Kramer A. LITVAK, John B. and Nancy L. McKamey, Carolyn Davis, Joseph Reynes and Michael Thiel, Appellants,
v.
SCYLLA PROPERTIES, LLC, William D. Clark, Jr. on their behalves and on behalf of others similarly situated and Citizens Property Insurance Corporation, Appellees.
District Court of Appeal of Florida, First District.
*1167 Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Terrie L. Didier of Beggs & Lane, RLLP, Pensacola, for Appellants.
John Beranek of Ausley & McMullen, Tallahassee, and Stuart R. Michelson of the Law Office of Stuart R. Michelson, Fort Lauderdale, for Appellees Scylla Properties, LLC and William D. Clark, Jr., and G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellee Citizens Property Insurance Corporation.
BENTON, J.
In proceedings below, Kramer A. Litvak, John B. and Nancy L. McKamey, Carolyn Davis, Joseph Reynes and Michael Thiel (the Litvak group) sought unsuccessfully to be heard in opposition to a motion to certify a class. We have jurisdiction, not only to review the order denying the Litvak group's motion to intervene as named plaintiffs, but also, since the Litvak group are members of the class although not named partiesto review the class certification order itself. In certifying the class, the trial court ruled class members like appellants had no ability to opt out. We do not address the merits of the certification order, but we reverse the order denying intervention, vacate the class certification order, and remand for further proceedings.
I.
Scylla Properties, LLC, and William D. Clark, Jr. (Scylla and Clark), brought suit against Citizens Property Insurance Corporation (Citizens) seeking to recover under insurance policies for losses incurred during the 2004 hurricane season. Asserting that a common legal question[1] made a *1168 class action appropriate, Scylla and Clark filed an amended complaint seeking certification, under Rules 1.220(b)(1) and 1.220(b)(3), Florida Rules of Civil Procedure, of a class that "consist[ed] of all persons who [we]re insured with Citizens and whose homes [we]re located in Florida and were rendered a `total loss' by Hurricanes in 2004, with the exception of those properties located within the jurisdiction of the Fourth District Court of Appeal."
Meanwhile, in separate actions, Mr. Litvak, like some (but not all) of the other members of the Litvak group, had also filed suit against Citizens, seeking recovery individually on first-party claims for losses incurred during the 2004 hurricane season. (Members of the Litvak group who had not already done so, the motion to intervene alleges, had plans to file suit against Citizens.) At a hearing in the Escambia County case Mr. Litvak brought against Citizens, the motion further alleges, Citizens' counsel told him that an order certifying a mandatory classthe order on review in our case No. 1D05-2163had been entered in the present (Scylla and Clark) case on April 5, 2005.
Less than thirty days later, on May 2, 2005, the Litvak group filed a motion to intervene in the Scylla and Clark case pursuant to Florida Rule of Civil Procedure 1.230. The motion requested "leave to intervene in this matter for all purposes, including the right to appeal the Court's . . . Findings and Order Certifying Class." The Litvak group alleged that they were members of the certified class, albeit not named, and asserted: "Litvak does not believe that the issues raised in this matter are best resolved by a class action and will opt out of the class if given the opportunity to do so."[2] The motion stated the Litvak group's intent to appeal the order certifying the class, unless it was revised to allow them to opt out.
Although their motion to intervene was still pending, the Litvak group filed a notice of appeal of the order certifying the class on May 5, 2005, thus initiating our case No. 1D05-2163.[3] Then on May 9, 2005, the Litvak group filed a motion asking us to relinquish jurisdiction, so that the trial court could rule on its motion to intervene. While the motion to relinquish jurisdiction was pending, the trial court held a hearing on reconsideration of class *1169 certification, the Litvak group's motion to intervene, and the motions for summary judgment filed by Citizens and Scylla and Clark.[4] Only thereafter did we relinquish jurisdiction.
Once we had relinquished jurisdiction in No. 1D05-2163, the trial court acted on the motion to intervene then pending below, denying it on June 8, 2005. We had resumed jurisdiction in No. 1D05-2163 by the time the Litvak group filed a motion for rehearing in the trial court as to, then a timely notice of appeal of, the order denying the motion to intervene, giving rise to our case No. 1D05-3727. The appeals from the order certifying the class, No. 1D05-2163, and the order denying the motion to intervene, No. 1D05-3727, were consolidated.[5] We now reverse the order denying the motion to intervene in No. 1D05-3727 and vacate the order certifying the class in No. 1D05-2163.
II.
The amended complaint alleged a class so numerous that joining all members was impractical[6]; that the named plaintiffs' *1170 claims turned on a common legal question; and that they were typical of the claims of the whole class, in that all members had insurance policies written by Citizens and subject to the Valued Policy Law (VPL), and had suffered total losses caused in part by windstorm. The amended complaint alleged that the class representatives would fairly and adequately protect the interests of the members of the class; that all class members' financial interests were aligned in the litigation; and that class counsel included the lawyer who brought the claim which resulted in the decision in favor of the insureds in Mierzwa v. Florida Windstorm Underwriting Association,
Citizens and Scylla and Clark filed an agreed motion for class certification, essentially tracking the allegations in the amended complaint, but stating that "[a]lthough Plaintiffs originally brought this action as a class action under Fla. R. Civ. P. 1.220(b)(1) and 1.220(b)(3), Plaintiffs and Citizens agree that this action should be heard as a class action under Fla. R. Civ. P. 1.220(b)(1) and 1.220(b)(2)." Simultaneously the parties jointly filed their stipulation of contested matters as to certification of class.
The parties identified only two issues as contested: whether the class should include owners of insured property lying within the territorial limits of the Fourth District Court of Appeal; and whether the class should be subdivided into three subclasses, based on the extent of damage done by wind. Scylla and Clark sought to exclude cases governed by the Fourth District's decision in Mierzwa, asserting that the insured parties in those cases were already assured that the VPL would apply in their cases. Citizens argued for three subclasses of insured owners whose property the hurricane had rendered a total loss: those whose windstorm damage did not exceed the deductible; those whose windstorm damage did exceed the deductible but caused less than half of the loss; and those whose windstorm damage caused more than half of the total loss. Opposing subclasses altogether, Scylla and Clark argued that plaintiffs whose windstorm damage did not exceed the deductible should simply be excluded from the class.
At the hearing on the motion for class certification, the trial judge raised the possibility of giving putative class members notice and an opportunity to opt out, but ultimately ruled that, although the plaintiffs originally brought the action under Florida Rules of Civil Procedure 1.220(b)(1) and (b)(3), requiring that notice be given to all class members,[7] the parties *1171 had since agreed, and should be allowed, to proceed with the case as a class action under Rules 1.220(b)(1) and (b)(2). The trial court dispensed with notice and ruled that the class consisted of all persons who were insured by Citizens as to structures deemed a total loss after the 2004 hurricane season, excluding those with properties located within the jurisdiction of the Fourth District Court of Appeal. Finding that all of the class members entered into the same form contract with Citizens, the trial court divided the class into three subclasses based on the part wind damage played in rendering the property a total loss.
The class certification order listed the Rule 1.220(a) requirements for certifying a class: numerosity of claims, commonality of claims, typicality of claims, and fair and adequate representation by the class representatives. Explaining that it had separately considered each of the requirements, the trial court made findings that the case met each requirement.[8] The class was certified as follows:
*1172 All persons whose Citizens-insured structures were damaged in the 2004 hurricanes by a combination of wind and flood in an amount giving rise to an actual or constructive total loss of the insured structures, other than those whose Citizens-insured structures were located in the counties of Broward, Indian River, Martin, Okeechobee, Palm Beach or St. Lucie.
In keeping with Citizens' request, the class was also divided into three subclasses:
a. insureds whose losses attributable to wind damage were less than their deductible;
b. insureds whose losses [were] attributable to wind damage were in excess of their deductible, but less than 50% of the value of the property; and
c. insureds whose losses attributable to wind damage were in excess of 50%, but less than 100% of the value of the property.
(No provision was made for the theoretical case in which wind damage caused exactly half the total loss.) Subsequent to class certification, Citizens filed its answer and affirmative defenses, and the case went forward.
III.
"An order denying a motion to intervene is final as to and appealable by the movant. See, e.g., City of Sunrise v. Town of Davie,
Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.
(Emphasis supplied.) A person seeking leave to intervene must claim an interest "`of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.'" Union Cent. Life Ins. Co. v. Carlisle,
*1173 As nonnamed members of the class, they are indeed already parties to this class action lawsuit. But class members may intervene as named parties, in order to pursue objectives the original named class representatives fail to pursue, or to protect interests adverse to or incompatible with interests that the original named class representatives are pursuing, or if their representation is otherwise inadequate. As the revisers of the federal intervention rule explained:
A class member who claims that his "representative" does not adequately represent him, and is able to establish that proposition with sufficient probability, should not be put to the risk of having a judgment entered in the action which by its terms extends to him, and be obliged to test the validity of the judgment as applied to his interest by a later collateral attack. Rather he should, as a general rule, be entitled to intervene in the action.
Fed.R.Civ.P. 24(a) (2006) (Advisory Committee Notes, 1966 Amendment). Precisely because they are already parties, mandatory class members' intervention rights narrow the trial court's discretion in deciding motions by which mandatory class members seek to intervene as named parties. See Kearney v. Saline,
Citizens argues the general proposition that there is no absolute right to intervention. See Fla. Wildlife Fed'n, Inc. v. Bd. of Trs. of the Internal Improvement,
Citizens seems to contend that intervention simply in order to appeal should not be permitted. But see Ramos v. Philip Morris Cos.,
Citizens argues against allowing the Litvak group to intervene for the purpose of opposing the certification of a mandatory class, on grounds intervenors must take a lawsuit as they find it, subordinating their claims to those of the main parties. See, e.g., Krouse v. Palmer,
But here it is the Litvak group's own lawsuit. Despite their vigorous protests, they are inextricably caught up in litigation meant to decide their rights under their insurance policies. They sought to intervene as named parties, in order to be heard on questions affecting them, understandably afraid that they would not have a forum elsewhere. See generally Devlin v. Scardelletti,
*1175 "The provision for class suits is not a rule of law to be blindly followed without regard to the companion principle of law that no one can be bound by a judgment affecting his property without his day in court." City of Lakeland v. Chase Nat'l Co.,
IV.
The Litvak group never participated as named parties in the trial court because the trial court never granted their motion to intervene. For that reason, appellees argue, even if the Litvak group have standing[12] to appeal denial of their motion to intervene as named parties, the Litvak group lack standing to appeal the order certifying the class. We reject this argument. When nonnamed class members have sought relief in the trial court that an appealable order denies, "it now is clear that formal intervention no longer is necessary to lodge an appeal." 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1799, at 256 (3d ed. 2005).
The Litvak group were parties to the proceedings below, unable to opt out and so bound by the class certification order they now seek to appeal. They made every reasonable effort to oppose the trial court's certification of a mandatory class and are therefore proper parties to appeal the class certification order, even though their motion to intervene as named parties was denied. See Ramos,
In their motion to intervene, the Litvak group alleged that they were members of the class the trial court certified; that Citizens had asked for stays, citing the class action, in other pending lawsuits members of the Litvak group had brought; and that Citizens conceded that most members of the Litvak group were class members, a fact that does not seem to be *1176 in dispute. The trial court denied the motion without taking evidence.
The motion to intervene served two overlapping functions in the present case. It perfected the Litvak group's application to participate below as named parties, which eventuated in the final, appealable order denying intervention. Because it also apprised the trial courtby the only means availablethat a group of nonnamed class members objected to certification of a mandatory class, it now allows them to appeal the non-final class certification order, as well. This is the teaching of Devlin,[13] albeit by analogy. See
While Devlin involved a mandatory settlement class, the rationale is fully applicable in the present case. The Litvak group, although afforded no formal notice, and without any specific procedural prescription for making their position known to the trial court, nevertheless made their position clear and obtained a ruling in the trial court. They filed their motion to intervene and secured a ruling,[14] then appealed the denial of the motion to intervene,[15] along with the certification order. What was said in Devlin applies equally here:
What is most important to this case is that nonnamed class members are parties to the proceedings in the sense of being bound by the settlement. It is this feature of class action litigation that requires that class members be allowed *1177 to appeal the approval of a settlement when they have objected at the fairness hearing. To hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court. Particularly in light of the fact that petitioner had no ability to opt out of the settlement, appealing the approval of the settlement is petitioner's only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court might find legally inadequate.
Id. at 10-11,
In short, there is little, if anything, to recommend Citizens' argument that, even if intervention should have been allowedand it should have beenthe order certifying the class ought to remain unassailable. The Litvak group did everything it could to make its position known to the trial court. See generally City of San Benito v. Rio Grande Valley Gas Co.,
Where objectors seek intervention in order to appeal and intervention is denied, the appropriate procedure is to appeal both the final judgment and the order denying intervention. If on appeal it is shown that the trial court erred by denying intervention, the appellate court will then consider the merits of the challenge to the settlement.
Ramos,
The appeal in No. 1D05-2163 was taken from the non-final order granting class certification, not from a final judgment. In Florida,[16] the right to appeal an order *1178 granting certification of a class is no less certain than the right to appeal a final judgment. Like Texas law, Florida law differs from federal law on this point. Florida Rule of Appellate Procedure 9.130 allows an appeal as of right from any order certifying a class. See Fla. R.App. P. 9.130(a)(3)(C)(vi) (conferring jurisdiction to hear appeals involving non-final orders which determine "that a class should be certified").
The same situation obtains in Texas, where a Texas court has opined, with regard to appeals of class certification orders by nonnamed parties:
The Texas Civil Practice and Remedies Code grants a litigant the absolute right to an interlocutory appeal of a trial court's ruling "that . . . certifies or refuses to certify a class in a suit brought under TEX. R. CIV. P. 42." The Texas Supreme Court has held that the right to an interlocutory appeal under this rule extends to any order that "alter[s] the fundamental nature of the class." We know of no Texas case that limits this right to only named class representatives. . . . Presumably, the reason a class should be certified "as soon as practicable" is so that the unnamed class members may be notified as soon as possible that their rights may be impacted by the lawsuit. Once a class action has been certified, an unnamed class member may intervene in the class action or may challenge the certification decision itself by interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(3). Delaying the certification decision until the final judgment would effectively cut off that right to interlocutory appeal. The intervention requirement is predominately a device fashioned by federal courts, and the federal rules do not have a statute comparable to the one in Texas that allows for interlocutory appeal of a certification ruling. Imposition of the federal intervention requirement in settlement class cases seems at odds with Texas' policy of granting appeal of right of class certification decisions.
Northrup v. Sw. Bell Tel. Co.,
V.
We reverse the order denying the motion to intervene, vacate the order certifying the class, and remand for further proceedings. On remand, any party seeking certification of a class will have the burden to show that class certification is proper under Rule 1.220(a) and Rule 1.220(b). See Fla. R. Civ. P. 1.220(b) (2006). To the extent allegations pertinent to class certification are disputed, the trial court will have "to ascertain whether the facts actually support the allegations." KPMG Peat Marwick LLP v. Barner,
PADOVANO and LEWIS, JJ., concur.
NOTES
Notes
[1] The legal question asserted concerns what effect, if any, the Valued Policy Law (VPL) has in cases in which wind and water combined to render property Citizens insured against windstorm a total loss. We have not decided this precise question. In a case involving a private insurer, where water and wind combined to cause a total loss, we recently held that the "plain language in the 2004 version of the statute makes the insurer liable, if at all, then in the full amount for which the property was insured." Fla. Farm Bureau Cas. Ins. Co. v. Cox,
"With specific reference to the VPL, the Florida Supreme Court has held that `any provisions of the policy under consideration in conflict with the [valued policy law] statute are devitalized by it.' Martin v. Sun Ins. Office of London,
[2] The Litvak group listed ten reasons for opposing the order certifying the class, viz.: 1) the judge did not perform a rigorous analysis, which is required by the rules of civil procedure; 2) the class did not meet the certification criteria under Florida Rules of Civil Procedure 1.220(b)(1) and (b)(2); 3) the class violated due process rights of the class members because the order did not provide for notification of the class; 4) the common issues of law did not predominate over the individual fact issues; 5) the representatives' claims were not typical of all class members' claims; 6) the representative class members' attorneys could not provide fair and adequate representation of all members of the class, particularly for subclass "a"; 7) venue in Leon County was inconvenient for most class members and would not allow for adequate representation of class members; 8) a mandatory class action would prejudice class members with individual claims; 9) the subclasses were not based on any rational distinctions; and 10) one of the three subclasses would not be represented, as there were only two class representatives.
[3] Citizens and Scylla and Clark filed a joint motion to dismiss the appeal (of the non-final order certifying the class) in No. 1D05-2163, arguing that appellants had no standing to appeal because they had not been granted the right to intervene below. The Litvak group responded to the motion by arguing that intervention was not required for nonnamed members of a class to appeal orders affecting the class, citing Devlin v. Scardelletti,
[4] Because the hearing had been set before the notice of appeal had been filed, and because the motion to relinquish was pending here, the trial judge listened to arguments so he would be in a position to rule, if the motion to relinquish jurisdiction was granted, without requiring the parties to make another appearance.
[5] While these appeals were pending, the trial court proceeded to the merits of the action below. On June 16, 2005, the judge entered a non-final order on the motions for summary judgment, granting Scylla and Clark's motion and denying Citizens' motion for summary judgment. Partial Final Judgment was entered on June 30, 2005, in favor of Scylla and Clark in the amount of the policy limits in each case. Summary Final Judgment was also entered regarding the class and each subclass. The court entered summary final judgment on the "Class Claim for Declaratory Relief" in favor of the insured plaintiffs. The court declared:
[T]he valued policy law requires Citizens to pay policy limits, less deductibles, to the Class members where Citizens-insured structures were damaged in the 2004 hurricanes by a combination of wind and flood in an amount giving rise to an actual or constructive total loss. Under the reasoning in Mierzwa, which this Court adopts, so long as Citizens had any liability for wind damage, its liability is in the amount of its policy limits.
This Court further DECLARES that Citizens is not entitled to a setoff of any amounts paid by a flood carrier for damage to insured properties.
The court also created two further subclasses: 1) the final judgment subclass (those class members as to whom Citizens acknowledges no basis for disputing coverage); and 2) the non-final judgment subclass (class members as to whom Citizens disputed coverage, had not yet determined if it disputed coverage, or could raise affirmative defenses against the policyholder's right to receive payment). The court found that each member of the final judgment subclass was entitled to judgment as a matter of law and ordered final judgments for each member in the amount of the member's policy limit. The court explained that partial final judgments were being entered for Scylla and Clark, and that judgment would be entered on behalf of the remaining class members as the members were identified. Citizens has appealed this judgment in No. 1D05-3480.
[6] The amended complaint alleged that prosecution of some ten thousand separate claims in various jurisdictions would be necessary and would create problems for many insured parties and might result in inconsistent and varying adjudications for insured individuals and Citizens alike, potentially causing "incompatible and inconsistent rulings and degrees of liability for [Citizens]." But see generally Seven Hills, Inc. v. Bentley,
[7] This court explained in Seven Hills, Inc., that a court certifying a class under Rules 1.220(a) and 1.220(b) must determine whether class members should be given the opportunity to opt out.
Although the trial court properly certified the settlement class for purposes of injunctive and declaratory relief under rule 1.220(b)(2), the record is devoid of the necessary rule 1.220(d)(1) showing as to why class members were not permitted to opt out of such a class. The trial court relied solely on the certification standard under rule 1.220(b)(1)(A) to support its determination that a mandatory class was necessary. Because this standard was inapplicable in the instant case, the trial court abused its discretion in creating a mandatory class.
Id. at 356. In the class certification order under review here, the trial court made no mention of any showing why the class should be mandatory. In fact, the trial court made no findings regarding the certification of the class under Rules 1.220(b)(1) and (b)(2). Thus, on remand, if the trial court again certifies a mandatory class under Rule 1.220(b)(1) or (b)(2), the trial court must include findings regarding whether a showing has been made that notice of the right to opt out is not required. See Fla. R. Civ. P. 1.220(d)(1) (2006); Seven Hills, Inc.,
[8] Specifically, the court found that there were hundreds, and perhaps more than a thousand, members of the proposed class and that joinder was impractical. The court found that class action was a superior vehicle to all other methods of fair and efficient adjudication of the controversy. The court also found that the prosecution of separate claims "would substantially impair or impede the ability of each class member to protect their interests" because there would be potentially thousands of cases throughout the state, which could result in review by various appellate courts of the state. The court found that "[b]y bringing a class action, the issues [would] be addressed once and resolved once." The court also found that because of the great number of plaintiffs spread among different jurisdictions, individual prosecution of claims "creates or may create a risk of inconsistent or varying adjudications concerning individual members of the class that would or may establish incompatible and inconsistent rulings and degrees of liability for Citizens." The court thus found that the requirement of numerosity was met.
The court next addressed commonality, identifying as common issues of law whether the VPL required payment of policy limits and whether Citizens was entitled to a set off for other insurance payments to plaintiffs. The court found that while there may be separate issues of fact, these issues of law were common to each claim. The court also divided the class into the three subclasses requested by Citizens, including subclass "a": plaintiffs whose windstorm damage was less than their deductibles.
The court next addressed typicality and explained that the definition of the proposed class was limited to those persons with claims substantially identical to Scylla's and Clark's: "a claim for payment of policy limits under the Citizens wind policy because of an actual or constructive total loss of the insured property as a result of a combination of wind and flood damage." Thus, the court found that the typicality requirement was met.
Finally, the court addressed fair and adequate representation. The court found that the class representatives would fairly and adequately represent the class because the class representatives had a common interest with the class and no conflict of interest with any member of the class. The court explained that the class representatives had the same financial interest and that counsel was experienced and, in fact, included the attorney for the plaintiffs in Mierzwa v. Florida Windstorm Underwriting Association,
[9] A motion to intervene must identify an interest at stake that the would-be intervenor has standing to assert. At stake in the present case is the right to insurance proceeds the Litvak group claim as owners of insured property. "First, the trial court must determine that the interest asserted is appropriate to support intervention. Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention." Union Cent.,
This language has been definitively construed to require more than merely asserting a putative right. See Union Cent. Life Ins. Co. v. Carlisle,
Y.H.,
[10] We do not agree that "[i]ntervention in a lawsuit after final judgment, essentially for purposes of taking part in an appeal, is rarely permitted," Schiller v. Schiller,
[11] Before Devlin was decided, the Seventh Circuit ruled that nonnamed class members could not appeal a judgment in favor of certain defendants, saying their choices, if they were dissatisfied with the representation, were to opt outa choice unavailable to appellants hereor to intervene in federal district court. See In re Brand Name Prescription Drugs Antitrust Litig.,
[12] The United States Supreme Court explained that the traditional requirements of standinginjury, causation, and redressabilitywere clearly satisfied by a member of a class bound by a judgment. See Devlin v. Scardelletti,
[13] The Court decided in Devlin that a nonnamed member of a mandatory class could appeal approval of the settlement the named parties reached, even though the nonnamed class member had not intervened in the case, but had instead merely objected to the settlement at a "fairness hearing."
The Court held the nonnamed class member was a party for purposes of appealing an order by which he was bound, explaining that, in overruling the nonnamed class member's objection, "[t]he District Court's approval of the settlementwhich binds petitioner as a member of the classamounted to a `final decision of [petitioner's] right or claim' sufficient to trigger his right to appeal." Id. at 9,
[14] The court in Barnhill,
[15] The present case can be distinguished from a case in which dissenting class members seek to intervene as named parties but do not appeal the denial of their motion to intervene. See Concerned Class Members v. Sailfish Point, Inc.,
[16] In contrast, Federal Rule of Civil Procedure 23(f) (2005) reads: "A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order." Federal cases often turn on whether an order certifying class is appealable at all, a question Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi) answers in the affirmative in every case. See generally, e.g., Hevesi v. Citigroup Inc.,