author: ALTENBERND, Judge.

text:
    DISH NETWORK SERVICE L.L.C., Appellant, v. James MYERS, Appellee.
    No. 2D10-4434.
    District Court of Appeal of Florida, Second District.
    April 25, 2012.

      June Galkoski Hoffman of Fowler White Burnett, P.A., Fort Lauderdale; and Michael J. Lynott of McIntosh, Sawran, Peltz & Cartaya, P.A., Miami, for Appellant.
    Mark Tischhauser of Tischhauser Law Group, Tampa, for Appellee.
   ALTENBERND, Judge.

DISH Network Service L.L.C. (“DISH”) appeals a final judgment in a consumer debt collection practices lawsuit under the Florida Consumer Collection Practices Act (“FCCPA”). See §§ 559.55-.785, Fla. Stat. (2002). The judgment awards James Myers $5000 in actual damages, $1000 in statutory damages, $16,933.77 in costs, and $176,992.64 in attorneys’ fees. DISH challenges only the award of fees.

We conclude that the trial court erred by including travel time in its calculation of the lodestar fee award. It also erred in applying a contingent-fee multiplier of 2.0 that would have been prohibited if the trial court had given “due consideration and great weight” to the civil remedies available under the federal Fair Debt Collection Practices Act (“FDCPA”). See § 559.77(2), (5); 15 U.S.C. § 1692 (2000). Accordingly, we reverse and remand for entry of an order awarding fees based on the corrected lodestar amount alone.

I. ANATOMY OF A SMALL CLAIMS LAWSUIT RUN AMOK

In November 1999, Mr. Myers signed up for service with DISH. For whatever reason, in March 2001 he decided to terminate his service before the end of the contract period. From that point until about July 2002, he had ongoing accounting issues with DISH. On several occasions, DISH charged his credit card with amounts he claimed he did not owe. There is little question that this experience was very unpleasant for Mr. Myers and that DISH did not handle the matter well.

DISH maintains that it reimbursed Mr. Myers for most of his losses immediately after he retained an attorney. It claims that Mr. Myers sustained actual monetary losses of less than $15. Mr. Myers disagrees that he was reimbursed and claims that his actual monetary losses were closer to $500.

In February 2003, Mr. Myers’ attorneys filed a small claims action in Pasco County Court seeking damages within the jurisdictional limit of that court. The claim contained two theories. First, Mr. Myers alleged that DISH willfully engaged in conduct that could reasonably be expected to abuse or harass him or a member of his family in violation of section 559.72(7). Second, he alleged that DISH attempted to collect a debt while knowing that it was not a legitimate debt in violation of section 559.72(9).

DISH answered this claim and counterclaimed for about $240 that it maintained Mr. Myers owed as a result of terminating the contract early. Between mid-2003 and late 2006, little activity occurred in the court file. During that time, Mr. Myers unsuccessfully attempted to refer the matter to private mediation, and DISH voluntarily dismissed its counterclaim. Outside of the record, the parties apparently engaged in limited discovery and settlement efforts.

In mid-2007, Mr. Myers sought to amend his claim to seek punitive damages and also filed a motion and affidavit to transfer the claim to circuit court on grounds that his damages exceeded the jurisdictional limit of county court. The county court transferred the case to circuit court in July 2007. After an effort to mediate the case in circuit court, Mr. Myers filed a witness and exhibit list in October 2008 with forty witnesses, including a psychiatrist, Dr. Walter Afield. This caused DISH to request a compulsory mental examination with another expert. Eventually, Mr. Myers was sent to a psychologist, Dr. Randy Otto, for that compulsory examination.

The parties tried this case to a jury for two days in September 2009. Our record does not contain a complete transcript, but both experts testified. Dr. Afield testified that the debt collection experience from 2001 to 2002 caused Mr. Myers to experience post-traumatic stress syndrome and depression. He explained that Mr. Myers had had significant psychological issues as recently as 2009, but he did not expressly state that these recent conditions were brought on by the debt collection experience. Dr. Otto testified that Mr. Myers’ observable psychological conditions were more likely caused by other traumatic events in his life, which we will not detail in this opinion.

In closing argument, Mr. Myers’ attorney asked the jury for $680 in actual monetary damages, $12,000 for emotional distress, and $36,000 for psychiatric treatment. His efforts to obtain punitive damages did not reach the jury. Ultimately, the jury found that DISH had not attempted to collect a debt while knowing that it was not a legitimate debt but found that DISH had willfully engaged in conduct that could reasonably be expected to abuse or harass Mr. Myers or a member of his family in violation of section 559.72(7). It awarded Mr. Myers precisely $5000 for this statutory violation. The verdict suggests that the jury largely or completely rejected any claim based on a resulting psychological disorder.

Following the verdict, Mr. Myers’ attorneys filed a motion for fees and costs. Relying on the guidelines in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), the motion sought to establish a lodestar fee amount of $89,000, based primarily on 250 hours of time by Mark Tischhauser at an hourly rate of about $350. Mr. Myers’ attorneys asked the court to enhance the lodestar fee award using a contingency multiplier of 2.5. Thus, the attorneys were seeking fees of approximately $222,500. The motion also asked for $17,500 in costs, including $5200 for deposition transcripts and $9400 for Dr. Afield’s expert witness fees.

Ultimately, the court conducted a lengthy hearing on the issues of attorneys’ fees and costs, aspects of which we will discuss later in this opinion. DISH argued that the fees and costs were excessive and that the multiplier was unwarranted or unauthorized. Two attorneys testified as fee experts, and Mr. Myers testified about his efforts to retain an attorney. Because the hearing lasted longer than expected, the parties filed their final arguments as lengthy memoranda of law. The trial court then issued an order on the fees and costs. It accepted the hourly rates and the amounts of time for almost all of the entries on the submitted billing. It decided that a multiplier of 2.0 was appropriate and awarded fees of $176,992.64. It awarded costs of $16,933.77. The reason for the approximately $700 difference in the costs awarded versus the costs requested is not clear from our record.

II. THE ECONOMICS DISCOURAGING SETTLEMENT OF SMALL CLAIMS LAWSUITS IN WHICH ONLY THE PLAINTIFF IS ENTITLED TO STATUTORY ATTORNEYS’ FEES AS A PREVAILING PARTY

Undoubtedly, there are many reasons why this seemingly ordinary lawsuit transformed from a case that could be resolved ■with a total expenditure of a few thousand dollars into one in which the judgment with attorneys’ fees and costs totals almost $200,000. That total does not include the fees DISH incurred in defending the case, the fees and costs associated with the determination of attorneys fees’ in the trial court, or the fees and costs generated by this appeal. We are not prepared to place blame for this noneconomic outcome on any party. If there is blame, there is surely enough to spread among many participants.

But it should not be overlooked that Mr. Myers is recovering only $6000 after all of the time involved in this case and after all of the prodding and poking into his private life. His expert, whose opinion the jury apparently did not accept, is recovering more than Mr. Myers, and his attorneys are recovering thirty times more than he is.

It also should not be overlooked that, prior to trial, DISH made offers to settle that would have resulted in a substantially greater award to Mr. Myers than he is receiving by this judgment. However, because his attorneys were working under a traditional contingency fee agreement, those offers — which did not include a separate award of attorneys’ fees — would have provided little compensation for Mr. Myers’ attorneys after they had invested substantial time in the lawsuit.

This case demonstrates an economic phenomenon that is probably an unintended consequence of a statutory award of attorneys’ fees under a statute like section 559.77(2). Under this statute, if the plaintiff recovers any amount from the jury, the defendant sustains an “adverse adjudication” that triggers the right for the plaintiffs attorneys’ to receive “court costs and reasonable attorney’s fees.” § 559.77(2). The plaintiff risks an award of fees only in the rare case where the lawsuit “fails to raise a justiciable issue of law or fact.” Id.

In a typical contingency fee case, the plaintiffs attorney will recover a fee based on a percentage of the total recovery. Thus, the monetary success of the client and the attorney are closely interrelated. By contrast, in this type of statutory fee case where the damages are relatively small, as the lawsuit progresses, it quickly becomes a larger monetary asset for the law firm than for the client. At $700 per hour under the award in this case, the law firm’s monetary interest in this case exceeded the interest of its client within a dozen hours of work.

By the time the lawsuit approaches trial, so long as the defendant is not making offers to settle that include a separate resolution of the fee issue, a reasonable offer for the client under a contingency contract is unlikely to be a reasonable offer from the perspective of the attorney. For example, in this case, immediately before trial an offer of $30,000 would have provided a gross award to Mr. Myers of $20,000 and a net award of about $10,000. He would have come out ahead. But the attorneys would have recovered only $10,000 after investing more than 200 hours. If the attorneys know that they can possibly recover more than $100,000 in attorneys’ fees by going to trial for two days, then mathematically they have an incentive at that point to go to trial even in a case where the chance of victory is quite small.

There is great merit in a system that creates “private attorneys general” to handle consumer claims, but the current structure seems to place private lawyers in a position where they have an economic incentive to pursue cases through to the end of a jury trial even when the real attorney general would never do so.

A solution to this economic problem is beyond the power of this court. A solution, if it exists, requires a change in substantive law by the legislature or in procedural law by the Florida Supreme Court. We use this case to describe the problem simply because it is such a good example.

From the perspective of the judiciary, the problem could be addressed, in part, if courts required offers from defendants in these cases to include a damages settlement to be paid to the plaintiff and a separate fee settlement to be paid to the plaintiffs attorneys. Although this change would eliminate the inherent conflict between the plaintiff and his or her attorney created by lump sum offers to settle this type of case, it would not eliminate all of the economic disincentives to settle these small lawsuits. Somehow we need to create a solution that continues to provide adequate protection for consumers, who must rely on private attorneys general for this legal work involving claims of small monetary value, without simultaneously creating undue incentives that hinder resolution of these claims prior to trial.

III. THE TRIAL COURT’S ERROR IN CALCULATING THE LODESTAR AND IN FAILING TO GIVE DUE CONSIDERATION AND GREAT WEIGHT TO THE COMPARABLE FEDERAL LAW

The FCCPA is very similar to the federal FDCPA. As a result, the Florida Legislature expressly requires that courts apply and construe the civil remedies provision in the Florida act with an eye to the federal law. The state law does not mandate that the state courts obey federal precedent. Rather, section 559.77(5) provides that “[i]n applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” (Emphasis added.)

In the trial court and in this court, DISH argues that the hourly rate in determining the lodestar amount should be capped at $250 per hour and that no contingency multiplier should be used because these are the rules that would apply to a similar case in federal court. DISH also argues that the number of hours the trial court used to calculate the lodestar fee was not reasonable because it included travel time and time for duplicative and unnecessary tasks. Although we are not convinced that the trial court erred in awarding an hourly rate in excess of $250, we conclude that a multiplier would not be used in federal court and that the trial court’s order does not demonstrate that it gave any weight, much less great weight, to the applicable federal law. We also conclude that the trial court erred in including travel time in the lodestar calculation.

A. The trial court did not abuse its discretion in determining that $350 per hour was a reasonable rate for purposes of the lodestar calculation.

The Florida Supreme Court adopted the federal lodestar method as the starting point for determining reasonable attorneys’ fees. Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). The lodestar method requires the trial court to consider certain factors in determining the number of hours reasonably expended on the litigation and the reasonable hourly rate for the legal services provided. See Quanstrom, 555 So.2d at 830; Rowe, 472 So.2d at 1150. In Florida, the factors to consider vary based on the nature of the case. See Quanstrom, 555 So.2d at 830, 834-36. It is undisputed that this case is a “public policy enforcement case” in which the trial court must consider twelve factors in determining the fee, which are based on the factors relied on by federal courts in similar cases. See id. at 834 (quoting Blanchard v. Bergeron, 489 U.S. 87, 91 n. 5, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). We conclude that a trial court that relies on this methodology required by the Florida Supreme Court while considering fee awards in similar local federal cases has satisfied its obligation under section 559.77(5), and this court cannot overrule the trial court’s determination as to the lodestar amount absent an abuse of discretion. See First Fed. Sav. & Loan Ass’n of the Palm Beaches v. Bezotte, 740 So.2d 589, 590 (Fla. 4th DCA 1999).

Here, DISH does not assert that the trial court did not adhere to the correct methodology in calculating the lodestar amount to be $88,496.32. Rather, DISH argues that the trial court erred in concluding that a reasonable hourly rate for the majority of legal services provided in this Pasco County FCCPA case was $350 when federal courts have capped hourly rates in FDCPA cases at $250 per hour and there is no justification for the higher hourly rate. Although we agree that a trial court determining attorneys’ fees in an FCCPA case should give “due consideration and great weight” to the hourly rates federal courts have found to be reasonable in FDCPA cases, we hesitate to allow federal courts to become the arbiter of hourly rates in state court. Moreover, our research of hourly rates in comparable federal cases revealed that the Middle District of Florida has found rates of $300, $350, and $394 per hour to be reasonable. See Zachloul v. Fair Debt Collections & Outsourcing, No. 8:09-CV-128-T-27MAP, 2010 WL 1730789 (M.D.Fla. Mar. 19, 2010); Stone v. Nat’l Enter. Sys., No. 6:08-cv-1523-Orl-22GJK, 2009 WL 3336073 (M.D.Fla. Oct. 15, 2009); Rodriguez v. Fla. First Fin. Grp., Inc., No. 6:06-cv-1678-Orl-28DAB, 2009 WL 535980 (M.D.Fla. Mar. 3, 2009). Therefore, we cannot conclude that the trial court abused its discretion in finding that $350 per hour was a reasonable hourly rate for purposes of the lodestar calculation.

B. The trial court erred in including travel time for purposes of the lodestar calculation.

With regard to the number of hours reasonably expended on this litigation, we agree with DISH that the trial court erred in including approximately eleven hours of travel time in the lodestar fee calculation. In Florida, the longstanding rule is that an award of attorneys’ fees should not include travel time “without proof that a competent local attorney could not be obtained.” Mandel v. Decorator’s Mart, Inc. of Deerfield, Beach, 965 So.2d 311, 315 (Fia. 4th DCA 2007). In this case, there was no competent, substantial evidence to support a finding that Mr. Myers could not obtain a competent Pasco County lawyer to handle his case. The only evidence regarding the availability of local counsel was Mr. Myers’ testimony that he spoke with two or three Pasco County attorneys before he was referred to Mr. Tischhauser’s firm in Hillsborough County. This is not a complex case that would require the expertise of a board certified attorney. Although FCCPA cases require an attorney to be well-versed in the relevant law, most attorneys could obtain the requisite legal knowledge with a few hours of study. With this in mind, many competent Pasco County attorneys could have handled this case. Accordingly, the trial court must recalculate the lodestar fee without including travel time.

We conclude that the trial court’s determination regarding the remaining hours expended on this litigation is supported by the evidence. Although the number of hours is high, this case was active for several years and was tried to a jury for two days. There are no obvious entries of duplicative, excessive, or unnecessary time in this file.

C. Deference to federal law sharply limits the trial court’s authority to increase the lodestar amount by a contingency multiplier.

Section 559.77 is a fee-shifting statute, which authorizes the trial court to award reasonable attorneys’ fees and costs to the prevailing party. In general, since the United States Supreme Court’s 1992 ruling that “enhancement for contingency is not permitted under ... fee-shifting statutes,” the federal courts have not permitted a contingency multiplier in cases involving such statutes. City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). In Perdue v. Kenny A. ex rel. Winn, — U.S.-, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), the Supreme Court emphasized that “enhancements” to the lodestar “may be awarded in ‘ “rare” ’ and ‘ “exceptional” ’ circumstances.” Id. at 1673 (quoting Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Moreover, the Supreme Court stated that enhancements “may not be awarded based on a factor that is subsumed in the lodestar calculation.” Perdue, 130 S.Ct. at 1673 (citing Dague, 505 U.S. at 562-63, 112 S.Ct. 2638; Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 726-27, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (plurality opinion); Blum, 465 U.S. at 898, 104 S.Ct. 1541). Significantly, the Florida Supreme Court has noted that the existence of a contingent fee agreement “is but one of the factors to be considered” in determining the reasonable attorneys’ fee in public policy enforcement cases such as this one. Qucmstrom, 555 So.2d at 834.

In the only post-Da^e FDCPA case cited by Mr. Myers in which a federal court actually awarded a small enhancement to the lodestar, the enhancement was not based on the contingent nature of the fee agreement but rather on the attorney’s willingness to prosecute a difficult case and the impact the case would have on debt collection practices. See Lee v. Javitch, Block & Rathbone, LLP, 568 F.Supp.2d 870, 881 (S.D.Ohio 2008). In that same case, the district court noted that a contingency enhancement was “legally foreclosed” by Dague. Id. Indeed, other post-Dague FDCPA cases involving attorneys’ fees either do not mention contingency enhancements at all or note that federal courts may not award contingency enhancements under federal fee-shifting statutes. See, e.g., Bogner v. Masari Invs., LLC, No. CV-08-1511-PHX-DGC, 2010 WL 2595273 (D.Ariz. June 24, 2010); Zachloul, 2010 WL 1730789; Stone, 2009 WL 3336073; Rodriguez, 2009 WL 535980; Hagan v. MRS Assocs., Inc., No. Civ.A. 99-3749, 2001 WL 531119, at *10 (E.D.La. May 15, 2001); Clark v. Capital Credit & Collection Servs., Inc., 561 F.Supp.2d 1213, 1218 n. 2 (D.Or.2008). Thus, there is little doubt that if a case similar to this one were filed in the local federal court, the prevailing attorney would not receive a fee enhanced by a contingency multiplier.

The trial court has provided no explanation as to why a multiplier would be necessary to compensate attorneys for representing consumers in debt collection practices cases in county or circuit court as compared to federal district court. We are hard pressed to provide even a single reason why lawyers need to be encouraged to file these actions in state court rather than federal court.

In justifying the use of the multiplier, the trial court explained:

It also seems important to note that the possible use of a fee multiplier should also have the effect of encouraging defendants in FCCPA case[s] to be even more careful to avoid the potentially large outlays created by fee multipliers. The Defendant is also free to litigate such cases as vigorously as it desires and to insist upon a determination by the court. Unfortunately, nothing in life seems to come without a cost of some type. In this case, the cost of vigorously litigating the Plaintiffs claim and instituting a counterclaim against the Plaintiff, is the payment of a greater fee, which is then enhanced by a fee multiplier. To allow the Defendant to assume the posture that the Defendant has assumed in this case without requiring such a “cost” would encourage the rejection of claims ultimately determined to be meritorious and would lessen the likelihood of a pool of knowledgeable Plaintiffs’ lawyers who would be willing to risk them time in the search for merit in such cases.

It is noteworthy that the legislature chose to provide a $1000 statutory damage award that is essentially a penalty for violating the statute. See § 559.77(2). Neither state nor federal case law authorizes a trial court to use a multiplier as an extra “cost” for the defendant. Thus, if penalizing DISH for defending this case is the reason the trial court has chosen to disregard the comparable federal law, it is an inappropriate reason. Accordingly, we conclude that the trial court erred in awarding a contingency multiplier, at least in the absence of a well-articulated basis to demonstrate why the federal prohibition against contingency enhancements should not apply in this case.

IV. CONCLUSION

For the foregoing reasons, we affirm all aspects of this case except for the award of attorneys’ fees. We reverse that award and remand for entry of an order awarding fees based on the lodestar amount alone, which the trial court must recalculate without including travel time.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.

      . As of the date the case was transferred to circuit court, Mr. Myers' attorneys had spent approximately 116 hours on the case, which at the lodestar hourly rate of $350 would have resulted in a fee of approximately $40,600.

      . The trial court grants the statutory award of up to $1000 as a matter of course, and thus the statutory damages were not submitted to the jury for determination. See § 559.77(2).

      . Associates in the law firm billed a small amount of time in this case at a lower hourly rate, but there is no need to detail those facts in this opinion.

      . This same problem appears to exist with statutory fees awarded in personal injury protection ("PIP”) lawsuits. See, e.g., Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007) (where the disputed PIP benefit at issue amounted to $1,315.30 and the lodestar attorneys' fees amounted to $77,500).

      . See Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991).

      . In Florida, the factors trial courts are to consider can be found in rule 4-1.5 of the Rules Regulating the Florida Bar. See Quan-strom, 555 So.2d at 830 n. 3.

      . The twelve factors to be considered in public policy enforcement cases are as follows:
      (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) die preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

        Quanstrom, 555 So.2d at 834 (quoting Blanchard v. Bergeron, 489 U.S. 87, 91 n. 5, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). The factors significantly overlap with the eight criteria set forth in Disciplinary Rule 2-106(b) of The Florida Bar Code of Professional Responsibility, which lives on as rule 4-1.5. See Rowe, 472 So.2d at 1150.

      . DISH cited two 2005 cases from the Southern District of Florida for this proposition. See Bernard v. Int’l Portfolio Mgmt., Inc., No. 04-60671-CIV-ZLOCH, 2005 WL 1840157 (S.D.Fla. July 25, 2005); Casden v. JBC Legal Grp., P.C., Nos. 04-60669-Civ-MARRA, 04-60669-Civ-SELTZER, 2005 WL 165383 (S.D.Fla. Jan. 7, 2005).

      . In Perdue, the United States Supreme Court concluded that enhancements of the lodestar fee could be awarded in rare and exceptional circumstances only if there is "specific evidence that the lodestar fee would not have been ‘adequate to attract competent counsel.’ ” Perdue, 130 S.Ct. at 1674. Those rare and exceptional circumstances, as discussed in Perdue, are as follows: (1) "where the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney’s true market value,” (2) where "the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted,” or (3) where "an attorney’s performance involves exceptional delay in the payment of fees." Id. at 1674-75. Mr. Myers did not present specific evidence that the lodestar fee was not sufficient to attract competent counsel. Moreover, none of these exceptional circumstances apply in this case.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Mark L. DICKSON, Mark L. Dickson as Trustee of the Mark L. Dickson Revocable Trust, Nicholas Kavouklis, Sam Kelley, and Joseph J. Clauer, derivatively as members and on behalf of 775 Vero Estates, LLC, a Florida limited liability company, Appellants, v. George W. HEATON, Heaton Vero Properties, Inc., a Florida corporation, Lee Heaton, Thomas R. Newkirk, 155 Vero, LLC, a Florida limited liability company, 900 Vero, LLC, a Florida limited liability company, Appellees.
    No. 4D11-2411.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied May 23, 2012.
    Elliot H. Scherker, Alan T. Dimond, Brigid F. Cech Samóle and Timothy A. Kola-ya of Greenberg Traurig, P.A., Miami, for appellants.

      Stephanie Reed Traband of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP, Miami, and John P. Leonard of McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, New Jersey, for appellees, George W. Heaton, Lee Heaton, Heaton Vero Properties, Inc., a Florida corporation, and 900 Vero, LLC, a Florida limited liability company.
    Michael A. Linsky of Michael A. Linsky, P.A., Tampa, for appellee, Thomas R. Newkirk.
   GROSS, J.

This case arises from a land speculation deal in which several investors formed a limited liability company, 775 Vero Estates, to flip five contiguous waterfront lots. After the company sold two of the lots to the lending bank, the bank foreclosed on the lots 775 Vero still owned. What looked like a good opportunity during the real estate bubble gave way to market realities after the bubble burst. Having lost their investments and expected profits, several of 775 Vero’s limited partners instituted a derivative action against the managing partners, claiming breach of fiduciary duties and breach of personal guaranties. After a bench trial, the circuit court entered judgment in favor of the defendants. This case concerns two final judgments for attorney’s fees entered in favor of the defendants. We affirm, finding a waiver of any failure to plead entitlement to attorney’s fees.

The plaintiffs’ operative complaint pleaded entitlement to attorney’s fees under paragraph 14.10 of the operating agreement for the limited liability company. In their operative answer, the one group of defendants (the Heaton group) did not mention this prevailing party provision, but pleaded entitlement to attorney’s fees only under subsection 608.601(5), Florida Statutes, which provides for fees to the defendant in a derivative action “if [the court] finds that the proceeding was commenced without reasonable cause.” Another defendant (Newkirk) did not plead entitlement to attorney’s fees at all in his operative answer, although two of his motions to dismiss which were never ruled upon included a request for attorney’s fees.

In a joint pretrial stipulation, the parties listed the following as an issue for determination: “Whether any of the parties to this action are entitled to their reasonable costs and expenses incurred in connection with this action, including reasonable attorneys’ fees. The parties stipulate and agree that the determination of the amount of any award of reasonable attorneys’ fees will be reserved for a subsequent proceeding.”

Following the final judgment, Newkirk moved the court for attorney’s fees under subsection 608.601(5), arguing that the plaintiffs commenced the action without reasonable cause, and also under the offer-of-judgment statute, since he had made the plaintiffs an offer to settle for $5,000. The Heaton defendants also moved for an award of attorney’s fees. They pointed to subsection 608.601(5), the offer-of-judgment statute, and the prevailing party provision in the operating agreement.

In their response, the plaintiffs argued that the Heaton defendants did not plead the operating agreement as a ground for attorney’s fees in their answers and New-kirk did not plead entitlement at all, so that they waived their entitlement to recover attorney’s fees. For this proposition, the plaintiffs relied on Stockman v. Downs, 573 So.2d 835 (Fla.1991). New-kirk responded that Stockman created an exception to the rule that a party plead entitlement “[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838 (citations omitted). He argued that the plaintiffs had the notice under Stockman because he asserted entitlement to attorney’s fees in some of the motions he filed and the joint pretrial stipulation said attorney’s fees would be considered later. The Heatons adopted this argument at the hearing.

Following the hearing, the trial court granted the defendants’ respective motions for fees. The court first found that the Heaton defendants had not complied with the offer-of-judgment statute and the plaintiffs had good cause to commence the lawsuit, but it declined to address whether Newkirk’s offer of $5,000 was made in good faith. It declined to do so because it found both sets of defendants entitled to fees under the operating agreement. The court wrote:

All parties were aware of the Operating Agreement of 775 Vero Estates, LLC and its provision regarding attorneys’ fees. The Plaintiffs were also aware of the Heaton Defendants and Newkirk’s intention to claim attorneys’ fees if they prevailed in this action from the content of the joint pretrial statement as well as from the Heaton Defendants’ Answer to the Second Amended Complaint, the Newkirk Motion to Dismiss the Amended Derivative Complaint, and the New-kirk Motion to Dismiss the Second Amended Derivative Complaint that they had earlier filed in this action, and the Heaton Defendants’ Motion to Dismiss in Dickson, et al. v. Heaton, et al., Case No. 50 2008 CA 035010 (15th Jud. Cir., Palm Beach County, Fla.). Therefore, the Court finds that the Heaton Defendants and Newkirk are entitled to an award of reasonable attorneys’ fees and costs pursuant to the terms of the Operating Agreement of [the limited liability company].

Three Supreme Court cases set the parameters for the pleading requirement necessary for a party to recover attorney’s fees in a civil action. Stockman held that “a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.” 573 So.2d at 837-38. Such pleading must occur in a pleading contemplated by Florida Rule of Civil Procedure 1.100(a). Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261, 1263 (Fla.1998). Pleading specificity is not required; “the contractual or statutory basis for the attorney fee need not be specifically pled and failure to so plead does not result in a waiver of the claim.” Caufield v. Cantele, 837 So.2d 371, 379-80 (Fla.2002). Also, Stockman recognized an exception to the pleading requirement it announced:

Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees. See, e.g., Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983) (defendant’s failure to raise entitlement to attorney’s fees until after judgment not fatal to claim where issue of attorney’s fees was raised at pretrial conference and plaintiffs pretrial statement listed defendant’s entitlement to fees as an issue); Mainlands of Tamarac by Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So.2d 226 (Fla. 2d DCA 1980) (parties’ stipulation during trial that the question of attorney’s fees would be heard subsequent to final hearing would permit recovery of attorney’s fees despite failure to plead entitlement to fees).

573 So.2d at 838. One of the cases cited by Stockman in announcing the exception is Brown v. Gardens by the Sea South Condominium Ass’n. There we held that a defendant’s complete failure to raise entitlement to attorney’s fees under a contract until after judgment was not fatal where the issue of fees was raised at a pretrial conference and the plaintiffs pretrial statement identified as an issue, “Are any of the parties entitled to the recovery of attorney fees and, if so, in what amount.” 424 So.2d at 183. Application of the exception is consistent with the rationale for the Stockman pleading requirement — notice. “By pleading a claim to attorney’s fees, a party notifies the opposing party and prevents unfair surprise.” Caufield, 837 So.2d at 377.

In this case, the Stockman exception to the pleading requirement applies. As the trial judge found, all parties, who were represented by top flight attorneys, were aware of the attorney’s fee provision in the operating agreement and the intention of all parties to enforce it if they were able. In all material respects, the wording of the pretrial stipulation is identical to wording of the pretrial statement in Brown. See Save On Cleaners of Pembroke II Inc. v. Verde Pines City Ctr. Plaza LLC, 14 So.3d 295 (Fla. 4th DCA 2009). Because we decide the case on the issue of waiver, we do not reach the issue of whether pleading one specific ground for attorney’s fees precludes the later recovery of fees on a different ground, or whether, in light of Canfield’s allowance of a general request for fees, the pleading of a specific ground is surplusage without any limiting legal effect.

Affimed.

MAY, C.J., and DAMOORGIAN, J., concur.


author: TAYLOR, J.

text:
    Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4790.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Anthony Smith appeals the trial court’s denial of his motion to suppress. We reverse. Because appellant was legally parked on a residential street and did not give any indication that he might be in need of police assistance, we conclude that under the totality of the circumstances appellant was seized for Fourth Amendment purposes when the law enforcement officer parked “catty corner” to appellant’s vehicle, activated his emergency police lights, and used a spotlight to illuminate appellant’s vehicle.

Appellant was charged by information with possession of cocaine and misdemean- or possession of cannabis. He filed a motion to suppress, arguing that he was subject to an illegal search and seizure.

At the suppression hearing, a deputy of the Broward County Sheriffs Office testified that he was on duty in the early morning hours of April 11, 2010. At around 2:30 a.m., the deputy was driving on a residential street when he noticed an occupied SUV parked in front of a vacant open field. The SUV was legally parked, and its interior lights, headlights, and tail lights were all turned off. The deputy saw one individual in the vehicle, seated in the driver’s seat. The deputy testified that he became suspicious once he saw that the vehicle had no lights on.

The deputy pulled in front of the SUV and parked “almost catty corner” to where the SUV was parked. Although the deputy did not recall exactly how his police vehicle was positioned, he denied that he blocked in the SUV. The deputy activated his overhead emergency lights. He said he did this so that he would not be hit by oncoming traffic. The deputy also illuminated his spotlight to see the occupant of the vehicle. He testified that the area was known for drugs and prostitution, but he acknowledged that he had not observed any illegal activity occurring in the vicinity of the SUV before he approached.

The deputy got out of his car “to go and investigate” why the person was sitting in the car. When the deputy was sitting in his vehicle, he did not notice that the SUV was running. The deputy did not know if appellant was hurt or injured. As the deputy approached the vehicle, he detected the odor of marijuana. The deputy asked to see appellant’s driver’s license. The deputy, while talking to appellant, noticed a partially smoked marijuana cigarette in the ashtray. The deputy then arrested appellant. While conducting a search incident to the arrest, the deputy found a small bag of marijuana and a bag of cocaine.

The trial court denied appellant’s motion to suppress evidence. The trial court found that when the officer parked his patrol car, appellant was not blocked in or prohibited from leaving. Furthermore, the trial court reasoned that the officer put on his emergency lights “so that oncoming traffic would be able to see” him.

Appellant entered an open plea of no contest in this case, as well as another pending case. The court ultimately sentenced appellant to concurrent terms of 33.05 months in prison for the cocaine charges in both cases and to time served on all misdemeanor charges.

On appeal, appellant argues that the trial court erred in denying his motion to suppress, claiming that the officer illegally seized him without any suspicion of criminal activity. The state responds that the trial court properly denied the motion to suppress, arguing that the officer’s initial approach of appellant was a consensual encounter and that the officer immediately had a basis to detain appellant when the officer smelled marijuana and saw a marijuana cigarette in plain view.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. See Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011). However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues. See Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006).

The Florida Supreme Court has described three levels of police-citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla.1993). “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Id.

In distinguishing between a consensual encounter and a seizure, courts review whether, under the totality of the circumstances, a “reasonable person would feel free to disregard the police and go about his business.” State v. R.H., 900 So.2d 689, 692 (Fla. 4th DCA 2005) (internal quotations omitted).

In G.M. v. State, 19 So.3d 973 (Fla.2009), the Florida Supreme Court found that there is no per se rule that “the activation of police lights is dispositive of a finding that an individual has been ‘seized’ under the Fourth Amendment” and thus disapproved cases standing for the “absolute and inflexible proposition” that activation of police lights alone always constitutes a seizure. Id. at 974, 979. Rather, the court held that “per se rules remain disfavored under Fourth Amendment jurisprudence, and activation of police lights is only one important factor to be considered in a totality-of-the-circumstances analysis of whether a seizure in the constitutional context has occurred.” Id. at 974. Our supreme court noted that “other state courts have held that the activation of police lights alone did not constitute a seizure under circumstances where a motorist was stopped on a public roadway and the officer activated his or her lights either to indicate to other motorists that a car was parked on the roadway, or where the defendant gave some indication that he or she might be in need of assistance.” Id. at 979.

The essential facts of G.M. were that G.M. was in the back seat of a parked vehicle in a public park, the officers’ unmarked vehicle quickly entered the park with the emergency lights activated and stopped behind the parked car, the individuals did not act like they wanted help from law enforcement, the non-uniformed officers showed badges and possessed holstered firearms, and, while the first officer approached one of the cars, a second officer took up a position where he could stop anyone who attempted to leave. Id. at 974-75, 979-80. Applying a totality-of-the-circumstances analysis, the court concluded that if the defendant had been aware of the emergency lights under the facts of that case, a seizure would have occurred. Id. at 979-80. The court explained:

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

Id. at 980 (citation omitted; bold emphasis added). However, the court concluded that “G.M. did not observe the activated lights when the officers arrived, and he became aware of the police presence only when” the officer actually appeared at the window of the vehicle. Id. at 983. Therefore, the court concluded that G.M. was not seized until after the officer had already witnessed him in possession of marijuana and ordered him to spit it out. Id.

In this case, the question is whether appellant was seized before the officer approached his vehicle and smelled the marijuana. Activation of emergency police lights is one factor to be considered in a totality-of-the-circumstances analysis of whether a seizure has occurred. G.M., 19 So.3d at 974. Likewise, use of a spotlight or flashlight is another factor to be considered in evaluating whether a person would reasonably believe he was free to leave, but the use of a spotlight, without more, does not transform a consensual encounter into an investigatory stop. See State v. Goodwin, 36 So.3d 925, 927 (Fla. 4th DCA 2010) (holding that the officer’s mere use of her spotlight and flashlight did not transform the consensual encounter into an investigatory stop).

Here, the officer activated his emergency lights, parked “catty corner” to appellant’s vehicle — which according to the officer was legally parked on the side of a residential street — and used his spotlight to illuminate the interior of appellant’s vehicle. Although the deputy testified that he activated his emergency lights to warn traffic of his presence and that he did not know whether appellant was hurt or injured, we do not view these factors as dispositive. Notably, appellant was not parked in an emergency lane of a highway or some other place that would give an objective indication that appellant needed assistance. Rather, appellant was legally parked on the side of a residential street. We acknowledge that if a person is parked on the shoulder of a highway, or otherwise gives some indication to a police officer that he might be in need of assistance on the roadway, a reasonable person in such circumstances would not necessarily perceive the officer’s use of emergency lights as a show of authority. See State v. Seymour, 72 So.3d 320, 322-23 (Fla. 2d DCA 2011) (officer’s activation of emergency lights did not constitute a seizure where the officer stopped in response to three men on the side of the road flagging him down). However, in this case there was no objective indication that appellant was in need of aid, nor did appellant exhibit any conduct to indicate that he sought police assistance.

The trial court found that the officer activated his lights to warn oncoming traffic that he was parked on the roadway. However, the officer’s subjective intent in activating his emergency lights was irrelevant where, as here, this intent was never conveyed to appellant. The question is how the circumstances, viewed objectively, would have been perceived by a reasonable person in appellant’s position. See G.M., 19 So.3d at 980 n. 5 (“[Rjegardless of the officers’ intent in activating the lights, whether a seizure occurred is determined by what a reasonable person in G.M.’s position would have concluded based upon the conduct of the officers.”); see also State v. Williams, 185 S.W.3d 311, 318 (Tenn.2006) (“While the officer may have subjectively intended to activate his blue lights solely for his safety and the safety of others on the road, the litmus test is the objective belief of a reasonable person in the position of the defendant, not that of the officer.”).

Under the totality of the circumstances, where, as here, appellant was legally parked on a residential street and did not give any indication that he might be in need of police assistance, no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person’s parked vehicle. See G.M., 19 So.3d at 980 (“Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances.”). This is not a case where a reasonable person would have perceived the activation of emergency lights as a mere safety precaution and felt free to leave.

Finally, based on the testimony that the officer parked “catty corner” to appellant’s vehicle and shined a spotlight on appellant, logic dictates that, unlike the defendant in G.M., appellant was aware that the officer activated his emergency lights. Therefore, appellant was seized for Fourth Amendment purposes when the officer activated his emergency lights and used a spotlight to illuminate appellant’s vehicle.

Because the deputy seized appellant before detecting the odor of marijuana, and because the seizure was not founded upon reasonable suspicion, we reverse the denial of the motion to suppress and remand with directions for the trial court to vacate appellant’s convictions in this case.

Reversed and Remanded.

POLEN and HAZOURI, JJ., concur.

      . In case number 4DI0-4789, which was the appeal of the other pending case, we affirmed the denial of appellant's motion to suppress without opinion.


text:
    Tyrell MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2390.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s conviction of robbery with a firearm without further comment but reverse his conviction for armed burglary of an occupied structure because the state failed to allege and prove ownership of the burgled structure.

The robbery occurred at a bread distribution center in Belle Glade owned by the Flowers Baking Company; the victim was an employee of AMB Company, a subsidiary of the Flowers Baking Company. The employee did not normally work at the Belle Glade location. He was there to service an open distribution route the company was trying to sell to an independent distributor. For the burglary charge, the information alleged that the structure was the property of the employee.

Where a burglary is charged, “allegations of ownership of the premises burglarized are material and substantial matters and must be proved in order to support a conviction.” Gagne v. State, 138 So.2d 90, 91 (Fla. 2d DCA 1962). The Supreme Court explained the ownership requirement in D.S.S. v. State:

Ownership of the building or structure is a material element of the crime of burglary. In re M.E., 370 So.2d 795, 796 (Fla.1979).... The purposes of the ownership element are to prove the accused does not own the property and to sufficiently identify the offense to protect the accused from a second prosecution for the same offense. In re M.E., 370 So.2d at 796-97. This Court has held that the ownership element in burglary is not the same as ownership in property law but, rather, means “any possession which is rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control.” Id. at 797.

850 So.2d 459, 461 (Fla.2003). Proof of possession is required for the additional reason that burglary is “an offense involving the possessory rights of another.” Potter v. State, 91 Fla. 938, 109 So. 91, 94 (1926).

When a business owns burgled premises, well-established case law from the Supreme Court does not allow the state to list a mere employee as the owner of the premises in the charging document and then prove at trial that the employee’s ownership or possession of the premises is rightful as against the burglar.

Smith v. State, 96 Fla. 30, 117 So. 377 (1928), is the earliest case disallowing the use of an employee as the owner of property in a burglary charge. There, for a charge of breaking and entering a dwelling, the state alleged that the dwelling was the property of Frank Heide. Id at 377. At trial, the state proved that the dwelling was “the property of H. Rich Mooney.” Id. Heide was an employee of Mooney who took care of the grounds and used a key to “open the house occasionally for ventilation.” Id. Although the defendant was convicted at trial, the Supreme Court reversed because the nature of the employee’s possession of the dwelling was insufficient proof of ownership to support the breaking and entering charge. Id.

In 1979, the Supreme Court softened the holding of Smith to allow the manager of a business to serve as an “owner” of property in a burglary charge, but reaffirmed the disqualification of a mere employee from performing that function. See In re M.E., 370 So.2d at 797. That case held that where the information listed the manager of a grocery store as the owner of burgled premises, such “an allegation of ownership ... [was] legally sufficient because a manager always has lawful control over the premises superior to that of the burglar.” Id. The Supreme Court cited Smith with approval and drew a distinction between the manager of a business and an employee:

The uncontradicted testimony established that [the manager] ran the store; ... that he was in charge; and that he was more than merely an employee or servant.

Id. (emphasis added). The italicized language demonstrates that the Supreme Court reaffirmed the holding in Smith and maintained a distinction between a manager and an employee. Unlike the manager who exercises lawful control over premises, a servant or employee occupies the space but does not control it. See also Adirim v. State, 350 So.2d 1082, 1084 (Fla. 3d DCA 1977) (holding that where state alleged that burglarized structure was property of victim, the branch manager of the firm that owned the property, the victim had a sufficient possessory interest to support burglary charge, where he “was more than a mere employee,” but was the “individual responsible for custody of the stolen items”).

The Supreme Court did not alter the holding of Smith or In re M.E. in D.S.S., a case involving the burglary of a high school. The information alleged that the Hillsborough County School Board owned the building. D.S.S., 850 So.2d at 461. The Supreme Court held that the state presented sufficient circumstantial evidence of the school board’s ownership where it proved that the school was located in Hillsborough County and the assistant principal testified that he “had worked at the school since it opened in 1972, was called to the school after the burglary, had intended to open it for a group that day, and was involved in directing the clean-up that followed.” Id. at 462. D.S.S. was not a case where the state alleged ownership of an employee, such as a janitor, and then proved that form of ownership at trial. For the purpose of alleging and proving the owner of property in a burglary charge, Smith’s distinction between the manager of a business and the employee of a business survives.

In this case, the information alleged that the victim was the owner or possessor of the warehouse. The evidence established that the actual owner was Flowers Baking Company. Unlike the victim in In re M.E., the victim was not a manager of the property owner; he was an employee of a subsidiary of Flowers who did not regularly work at the warehouse. Like the victim-employee in Smith, the victim here did not have the requisite pos-sessory interest in the property to support the burglary charge. His interest in the warehouse was limited to servicing the open distribution route.

Based on the foregoing, we reverse the armed burglary conviction.

Affirmed in part, reversed in part, and remanded.

MAY, C.J., and DAMOORGIAN, J., concur.


author: SUAREZ, J.

text:
    Dennis L. WILLIAMS, Appellant, v. The CITY OF MIAMI, Appellee.
    Nos. 3D11-1037, 3D11-1031.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Diaz, Reus & Targ, and Michael Diaz, Jr., Carlos F. Gonzalez and Xingjian Zhao, Miami; Randy C. Golden, for appellant.
    Julie O. Bru, City Attorney, and John A. Greco and Kevin R. Jones, Assistants City Attorneys, for appellee.
    Before SUAREZ, CORTIÑAS and SALTER, JJ.
   SUAREZ, J.

Dennis L. Williams seeks to reverse a final summary judgment granted to the City of Miami. We affirm, as Williams failed to exhaust his administrative remedies prior to bringing his claim in circuit court, pursuant to the Florida Whistle-blower’s Act.

Williams retired from the Miami Police Department [“Department”] after twenty five years of service, and continued to serve as a member of the Department’s Auxiliary/Reserve Officer Program. He became aware of a reprimand that had been placed in his file after his retirement, arising from an incident that occurred pri- or to his retirement. Williams filed a memo with, and received a response from, the Department’s Disciplinary Review Board. The Department subsequently terminated Williams from the Department’s Auxiliary/Reserve Officer Program. Williams then filed this civil rights Complaint against the City of Miami pursuant to the Florida Whistle-blower’s Act, section 112.3187, Florida Statutes (2009), without first filing his grievance with the Civil Service Board. The City filed a motion for summary judgment, arguing that Williams could not bring his claim under the Florida Whistle-blower’s Act in the circuit court as he had failed to first exhaust his administrative remedies under that statute. The trial court agreed and granted the City’s motion.

Prior to filing suit in circuit court under the Whistle-blower’s Act, a plaintiff must first exhaust all administrative remedies. § 112.3187(8)(b), Fla. Stat. (2009). The Civil Service Board meets the requirement of section 112.3187(8)(b) as the panel before which the administrative hearing must be conducted. Browne v. City of Miami, 948 So.2d 792, 793 (Fla. 3d DCA 2006). Accordingly, pursuant to the Whistle-blower statute, Williams had sixty days from the date the aggrieved act took place to file a complaint with the Miami Civil Service Board. See, e.g., City of Miami v. Del Rio, 723 So.2d 299, 301 (Fla. 3d DCA 1998). Williams states in his deposition testimony that he never filed a complaint with the Miami Civil Service Board. As a result, he did not satisfy the prerequisite to filing suit under the Whistle-blower’s Act, and the City of Miami was entitled to summary judgment on those grounds.,

Affirmed.

      . The allegations in the reprimand and the allegations in the complaint filed in this action by Williams are not relevant to the issue in this appeal and therefore need not be discussed in this opinion.

      . A party is required to exhaust administrative remedies prior to turning to the circuit court for relief. See DeCarlo v. Town of W. Miami, 49 So.2d 596, 596-97 (Fla.1950); State Dep't of Envtl. Prot. v. PZ Constr. Co., 633 So.2d 76, 78-79 (Fla. 3d DCA 1994). This requirement applies to the Whistle-blower's statute. McGregor v. Palm Beach Cty., 674 F.Supp. 858 (S.D.Fla.1987).

      . City of Miami, Code of Ordinances, Sec. 40-128. — Grievances and abuses generally.
      (a) Investigations by the [Civil Service Board]. Whenever the board has reason to believe that this article has been violated by the abuse of power in recommending or making an appointment to any position, or in a layoff, demotion, suspension, or removal without justification, or in any other manner, it shall be the duty of the board to investigate. If, in making this investigation, the board shall find that said violations were contrary to the intent and spirit of this article, it shall make a report thereof to the director of the department involved and to the city manager.
      (b) Complaint by employee. Any employee who is aggrieved by reason of what he/she considers a violation of this article to his/her detriment, or who has a grievance concerning his/her employment under this article, and who desires redress, shall notify the executive secretary in writing, stating the nature of his/ her grievance and requesting a hearing by the board.
      (1) Upon receipt of such notice, the executive secretary shall promptly inform the board, and the board shall schedule the matter for a hearing within 30 days of the date of receipt of the notice by the executive secretary, who shall notify the employee of the time, date, and place of hearing.
      (2) If the board so desires, it may make a preliminary investigation of the matter before the hearing.
      (3) The employee shall appear before the board at the scheduled time and place, and shall present pertinent information to the board concerning his/her grievance.
      (4) The board shall consider the matter, and promptly present its findings and recommendations to the city manager for his/her consideration of a proper remedy, if a remedy is necessary.
      (Ord. No. 8977, § 2 (rule 16 (16.1, 16.2)), 7-24-79; Code 1980, § 40-103)

      .Williams argues that based on Browne v. City of Miami, 948 So.2d 792 (Fla. 3d DCA 2006), he did not have to file first with the Civil Service Panel. Browne is inapplicable to this case as it was based on the particular facts in that case. The facts in this case, however, are not the same or even analogous.


text:
    MIAMI ASSOCIATION OF FIREFIGHTERS LOCAL 587 of the International Association of Firefighters of Miami, Florida, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D11-748.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Phillips, Richard & Rind and Kathleen Phillips; Bruce S. Rogow, Fort Lauder-dale; Richard A. Sicking, for appellant.
    Julie O. Bru, City Attorney, John A. Greco, Assistant City Attorney, and Warren Brittner, Deputy City Attorney, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

The Miami Association of Firefighters Local 587 (“Firefighters’ Union”) appeals an order granting a motion to dismiss in favor of the City of Miami (“the City”). We affirm the trial court’s order.

On October 23, 2009, the Firefighters’ Union and the City entered into an agreement to provide for wages, fringe benefits and other terms of employment. Paragraph 18.18 of the agreement provided that the City knowingly and intelligently “waives its right not to fund any year of the agreement.” The agreement provides:

The city hereby knowingly, intelligently, and unequivocally waives its right not to fund any year of this agreement. The only exception to this waiver is in the case of a “true fiscal emergency,” which is unanticipated at this time.
In order for the City to establish “a true fiscal emergency” so as to lawfully not fund any year or years of this agreement, the City must demonstrate that there is no other reasonable alternative means of appropriating monies to fund the agreement for that year or years.

An exception under the waiver in the agreement exists in the case of a “true fiscal emergency.” On April 30, 2010, the City wrote to the Firefighters’ Union, claiming that a financial emergency required modification of the agreement. On August 31, 2010, the City unilaterally took action to modify downward wages, insurance, pension, and other Firefighters’ benefits. The Firefighters’ Union brought a complaint against the City for declaratory and injunctive relief on constitutional grounds. The Firefighters claim that the City violated the Firefighters’ collective bargaining rights guaranteed by Article I, Section 6 of the Florida Constitution by not following the procedures of sections 447.403, 447.4095, Florida Statutes (2010), and by conducting a shade meeting in violation of section 286.011, Florida Statutes (2010), the Sunshine law. The trial court dismissed the action, ruling that the Public Employees Relation Commission (“PERC”) preempted the circuit court from hearing the issues raised. This appeal by the Firefighters’ Union follows.

The Firefighters’ Union alleges in its Verified Complaint for Declaratory and In-junctive Relief that “despite the provisions of Section 447.4095 and the statutory procedures under Section 447.403 ... the City unilaterally took action to modify downward wages, insurance, pension benefits and other benefits.” In other words, the Firefighters’ Union claims that, by acting unilaterally and not following the statutory requirements of sections 447.4095 and 447.403, the City abridged the Union’s constitutionally guaranteed right of collective bargaining. The Firefighters’ Union bases its allegations on the fact that the City unilaterally adopted a resolution that modified certain wages, healthcare and pension benefits, effective September 30, 2010. This was done in contravention of the statutory requirement that, in the event of a financial urgency, the City was required to hold a meeting between the chief executive officer or representative, and the bargaining agent or representative to negotiate the impact of the financial urgency. The statutes further require that, in the event the dispute was not resolved within fourteen days, an impasse shall have been deemed to have occurred and, after declaration in writing, a mediator appointed to assist in resolution of the impasse. Clearly, this was not done in this situation.

The issue presented on appeal is whether a violation of the requirements and procedures under the Collective Bargaining Agreement and those provided in Florida statutes creates an issue within the jurisdiction of the circuit court prior to being heard by PERC. We agree with the trial court that it does not.

The weight of authority holds that, before resorting to the courts, “one must pursue and exhaust any extra judicial or administrative remedy which may provide the relief sought.” City of Miami v. Fraternal Order of Police, 378 So.2d 20 (Fla. 3d DCA 1979); accord., Kaufman v. Machiedo, 357 So.2d 739 (Fla. 3d DCA 1978); Koenig v. Tyler, 360 So.2d 104 (Fla. 3d DCA 1978); Fredericks v. Sch. Bd. of Monroe Cty., 307 So.2d 463 (Fla. 3d DCA 1975); Jacksonville Roofing & Sheet Metal Contractors Ass’n v. Local Union No. 435, 156 So.2d 416 (Fla. 1st DCA 1963). As held by the Supreme Court in Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), actions for breach of collective bargaining agreements may not be maintained unless the complaining employee or his union first attempts and exhibits the “use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” PERC governs the Collective Bargaining Agreement before us and requires submission of all unresolved issues to an appointed mediator or special magistrate. See § 447.403. Therefore, we hold that affirmance of the trial court’s order is mandated here. Commc’n Workers of Am. v. Indian River Sch. Bd., 888 So.2d 96 (Fla. 4th DCA 2004) (holding that labor union cannot bypass PERC’s jurisdiction where failure to follow collective bargaining process is alleged and school board unilaterally modified health insurance plan due to perceived “financial urgency”); City of Miami, 378 So.2d at 24.

The Firefighters’ Union’s allegations of constitutional violations under Article I, Section 6 and Article I, Section 9 are unavailing. Even where allegations of unfair labor practices, defined as unilateral changes in a term or condition of employment, see Commc’n Workers of Am., 888 So.2d at 100, present issues of denial of due process of law, PERC has exclusive jurisdiction, and such a complaint is subject to dismissal. Fla. Pub. Employees' Council v. Bush, 860 So.2d 992 (Fla. 1st DCA 2003); see also Commc’n Workers of Am. v. City of Gainesville, 697 So.2d 167 (Fla. 1st DCA 1997) (holding that PERC has jurisdiction to hear allegations of unfair labor practices that violate statutory and constitutional rights); see Manatee Educ. Ass’n v. Sch. Bd. of Manatee Cnty., 62 So.3d 1176 (Fla. 1st DCA 2011) (deferring to PERC interpretation of section 447.4095 after dismissal below; issues of the right to bargain collectively under Art. I, section 6, Fla. Const, raised).

Because the Firefighters’ Union must exhaust its administrative remedies first, and PERC has jurisdiction in the first instance to adjudicate the allegations of constitutional rights and statutory violations as complained of here, we uphold the dismissal of the complaint below.

Affirmed.

      . Section 447.4095, provides:
      In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency. If after a reasonable period of negotiation which shall not exceed 14 days, a dispute exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.

      . Section 447.403, provides:
      (1) If, after a reasonable period of negotiation concerning the terms and condition of employment to be incorporated in a collective bargaining agreement, a dispute exits between a public employer and a bargaining agent, an impasse shall be deemed to have occurred when one of the parties so declares in writing to the other party and to the commission. When an impasse occurs, the public employer or the bargaining agent, or both parties acting jointly, may appoint, or secure the appointment of, a mediator to assist in the resolution of the impasse. If the Governor is the public employer, no mediator shall be appointed.
      (2)(a) If no mediator is appointed, or upon the request of either party, the commission shall appoint, and submit all unresolved issues to, a special magistrate acceptable to both parties. If the parties are unable to agree on the appointment of a special magistrate, the commission shall appoint, in its discretion, a qualified special magistrate. However, if the parties agree in writing to waive the appointment of a special magistrate, the parties may proceed directly to resolution of the impasse by the legislative body pursuant to paragraph (4)(d). Nothing in this section precludes the parties from using the services of a mediator at any time during the conduct of collective bargaining.


author: EMAS, J.

text:
    MV INSURANCE CONSULTANTS, LLC, Dadeland Financial Associates, Inc., Maribel Viego Argomaniz and Alberto Argomaniz, Appellants, v. NAFH NATIONAL BANK and Allstate Insurance Company, Appellees.
    No. 3D11-898.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Genovese Joblove <& Battista and Richard Sarafan, for appellants.
    Perez & Rodriguez and Javier Rodriguez and Johanna Castellon-Vega; Rum-berger Kirk & Caldwell, Lori J. Caldwell and Sally R. Culley, Orlando, for appellees.

      Before RAMIREZ, LAGOA and EMAS, JJ.
   EMAS, J.

MV Insurance Consultants, LLC (“MV”), Dadeland Financial Associates, Inc. (“Dadeland”), Maribel Viego Argo-maniz, and Alberto Argomaniz (collectively “Appellants”) appeal a non-final order denying their motion to compel arbitration. For the reasons that follow, we reverse with directions to the trial court to compel arbitration as to Counts I, II, V and VII of the Complaint.

FACTS AND BACKGROUND

Plaintiff/Appellee NAFH National Bank (“NAFH”), the successor in interest to Metrobank of Dade County, filed a seven-count complaint against Appellants arising from MV’s alleged failure to make principal and interest payments on a commercial loan. Six of the seven counts seek relief arising out of a series of loan documents executed on October 22, 2007: Breach of a Promissory Note (Count I); Foreclosure of a Security Agreement (Count II); Breach of a Collateral Assignment of Agency Agreement (Count III); Breach of a Commission Payment Agreement (Count IV); Breach of a Security Interest and Collateral Assignment of Termination Payments and Economic Interests (Count V); and Breach of a Guaranty (Count VII).

Appellants responded to the Complaint with a Motion to Compel Arbitration, based on the following provision contained in the Collateral Assignment of Termination Payments and Economic Interests Agreement:

ARBITRATION: Any controversy or dispute arising out of or relating to this Agreement or to any portion thereof shall be settled by arbitration in accordance with the Rules of the American Arbitration Association_and judgment upon the award of the Arbitration shall be binding upon parties hereto and may be entered into any court having jurisdiction thereof, all rights to appear and review being hereby waived by all parties.

At the hearing on Appellants’ motion, the trial court denied the Motion to Compel Arbitration. We review the issue de novo. Roth v. Cohen, 941 So.2d 496 (Fla. 3d DCA 2006).

ANALYSIS

Three elements must be considered in ruling on a motion to compel arbitration: “(1) whether a valid arbitration agreement exists; (2) whether an arbitra-ble issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Whether an arbitration clause requires arbitration of a particular dispute depends on the intent of the parties to the contract. Id.

It is well-established that Florida law and public policy strongly favors arbitration, and courts are encouraged to resolve all doubts in favor of arbitration. Boston Bank of Commerce v. Morejon, 786 So.2d 1245 (Fla. 3d DCA 2001). However, in determining whether the parties have agreed to arbitrate a particular dispute, arbitration provisions are to be construed following general principles of contract interpretation, Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So.2d 1159, 1161 (Fla. 3d DCA 2008), and no party may be forced to submit a dispute to arbitration if the parties did not intend and agree to arbitrate that dispute. Pacemaker Corp. v. Aaron T. Euster, 357 So.2d 208, 211 (Fla. 3d DCA 1978). Thus, the determination of whether a particular dispute is subject to an arbitration provision “necessarily ‘rests on the intent of the parties.’ ” Seifert, 750 So.2d at 636 (quoting Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir. 1982)).

Count V: Collateral Assignment of Termination Payments and Economic Interests

In view of the foregoing law and in light of the arbitration provision at issue, there can be no question that the parties expressly intended and agreed to arbitrate “any controversy or dispute arising out of, or relating to” the Collateral Assignment of Termination Payments and Economic Interests. Count V of the complaint alleges a breach of this Agreement and the trial court erred in denying the motion to compel arbitration as to Count V.

Count I (Promissory Note), Count II (Security Agreement) and Count VII (Guaranty)

The remaining question is whether the parties intended and agreed that the arbitration provision in the Collateral Assignment of Termination Payments and Economic Interests would apply to the other loan documents executed on the same day and regarding the same loan transaction, which form the basis for Count I (Promissory Note), Count II (Collateral Assignment of Agency Agreement) and Count VII (Guaranty).

It is first observed:

Documents executed by the same parties, on or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract. Where a writing expressly refers to and sufficiently describes another document, the other document, or so much of it as is referred to, is to be interpreted as part of the writing.

Quix Snaxx, Inc. v. Sorensen, 710 So.2d 152, 153 (Fla. 3d DCA 1998).

It is undisputed that all of the relevant loan documents were executed contemporaneously, are interconnected, and relate to the same transaction — the $750,000 loan by NAFH to MV. Thus, we construe the documents as a single contract. Reviewing all of the relevant loan documents as a single contract, we conclude that the parties evidenced an intent that the arbitration provision contained in the Collateral Assignment of Termination Payments and Economic Interests would apply to the Promissory Note (Count I), Security Agreement (Count II), and Guaranty (Count VII).

The Collateral Assignment of Termination Payments and Economic Interests Agreement (the document containing the arbitration provision) makes specific reference to the $720,000 loan and the Promissory Note, and provides that the Security Interest and Collateral Assignment of Termination Payments and Economic Interests agreement is entered into “in consideration of the loan and Note.” It further provides:

Upon [MV]’s breach or default of any of it’s (sic) duties and obligations under the [Promissory] Note or any other loan document executed by MV in connection with loan transaction referred to above, Bank shall have all of the rights and remedies available to it under this Assignment or under law....

The Promissory Note provides:

This Note, with interest, is secured by all collateral more particularly set forth in that certain Security Agreement of even date herewith executed and delivered by [MV] in favor of [NAFH]. This Note is subject to the terms and conditions contained therein, as well as in that certain Letter Agreement dated October 11, 2007, as amended, and is further subject to the terms and conditions of any other loan documentation executed in connection therewith, and a default under any of the foregoing shall constitute a default hereunder, and shall entitle [NAFH] to exercise any and all of its rights and remedies as provided for herein.

The Security Agreement provides:

[NAFH] has agreed to make certain loans and extensions of credit (the “Loan”) in favor of MV, to be evidenced by a promissory note of even date herewith, executed and delivered by [MV] in favor of [NAFH] in the original principal amount of $720,000 (the “Note”).
All of the rights, powers, remedies and privileges of [NAFH] in the event of default by [MV], as provided under this Agreement and under applicable law ... shall be cumulative and in addition one to the other, and in addition to those rights, powers, remedies and privileges afforded [NAFH] under the provisions of any promissory note or other document contemplated with this Agreement, or in connection with any other Agreement by and between [MV] and [NAFH],
The provisions of this Agreement are cumulative to the provisions of any indebtedness and any note or other writing evidencing any liability secured hereby, and NAFH shall have all the benefits, rights, and remedies of and under any indebtedness and any note or other writing evidencing any indebtedness secured hereby.

The Collateral Assignment of Agency Agreement provides:

[I]n the event of any default in the due observance or performance of any covenant, agreement or other provision hereof, or in any other documentation executed in connection herewith (collectively the “Loan Documentation”) ... [NAFH] may ... exercise any or all rights and remedies available to it under any other Loan Documentation.

The Guaranty provides:

In consideration of, and to induce METRO BANK OF DADE COUNTY ... to make or maintain loans, advances of money and extensions of credit in favor of MV ... [MARIBEL] ... and with full knowledge that BANK intends to rely hereon, hereby jointly and severally, unconditionally guarantees to the BANK and its successors and/or assigns, [MV’s] full and prompt payment when due ...

Appellee refers to the Collateral Assignment of Termination Payments and Economic Interests as a “collateral” loan document and cites to a number of cases for the proposition that a “collateral agreement” should not be construed as a part of the main contract if it has not been incorporated into those writings. See, e.g., LBC Design & Constr. v. Serruya, 57 So.3d 994 (Fla. 3d DCA 2011); Gen. Impact Glass & Windows Corp. v. Rollac Shutter of Tex., Inc., 8 So.3d 1165 (Fla. 3d DCA 2009); Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Indus., Inc. 705 So.2d 983 (Fla. 4th DCA 1998). However, a closer review of these cases reveals that they all share one thing in common: the collateral document or agreement to which they refer is deemed “collateral” not because of its relative importance in the underlying transaction, but because it is a document that was not signed by both parties or attached to the agreement. General Impact, 8 So.3d at 1167; LBC Design, 57 So.Sd at 995; Temple Emanu-El, 705 So.2d at 984.

Here, by contrast, the Collateral Assignment of Termination Payments and Economic Interests is not “collateral” in that sense. It was one of several loan documents executed by the parties on the same day and all directly relating to, and in consideration of, the $750,000 loan. Thus, although this document may not be as “primary” an agreement as, for example, the Promissory Note, it cannot reasonably be argued that it is a collateral document in the same manner as the collateral documents in General Impact, LBC Design, and Temple Emanu-El.

CONCLUSION

Because the parties evidenced an intent that the arbitration provision contained in the Collateral Assignment of Termination Payments and Economic Interests would apply to the Promissory Note (Count I), Security Agreement (Count II), and Guaranty (Count VII), we reverse with directions to the trial court to compel arbitration as to Counts I, II, V and VII of the Complaint.

      . Dadeland Financial Associates, Inc. is the Managing Member of MV.

      . The issues on appeal do not involve Count VI of the Complaint.

      .Appellants also moved to dismiss the complaint and the trial court granted the motion as to Counts III and IV, with leave to amend. We therefore address the arbitration issue as it relates to the remaining counts, I, II, V and VII.


text:
    Anthony BANMAH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1361.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

Anthony Banmah was found guilty of two counts of first-degree murder and one count of armed robbery, pursuant to jury verdict. He was sentenced to three concurrent life terms. He appeals from the judgments of conviction and sentences. We affirm.

Banmah and two others in ski masks robbed an Opa Locka flea market jewelry store and in the process, the proprietor and his wife, Jonada and Angela Campos, were shot to death. The son, Marlon Campos, was also injured during the robbery, but he was unable to identify the perpetrators because they wore ski masks, and because he was knocked to the ground by one of the assailants prior to the shootings. Witnesses at a nearby tire shop saw two men entering, then fleeing, the flea market holding what appeared to be ski masks. A driver picked up the two fleeing men and sped away. One of the fleeing men dropped his ski mask as well as a bag of jewelry. The victims’ son identified the mask and the jewelry; the DNA extracted from the mask statistically matched a sample taken from Banmah. Based on the DNA match, police placed a photo of Ban-mah in a photo lineup. The tire shop witnesses positively identified Banmah as most resembling one of the men they saw fleeing the market. Once the witnesses identified Banmah from photo lineup, police arrested and interrogated him. Ban-mah gave an oral statement relating the details of the crime, but denied being the one who held or shot the gun.

Mr. Perez, one of the tire store witnesses, gave a pre-trial deposition in which he stated that he had difficulty making an identification from the photos because black people looked so similar to each other. At trial, on cross-examination, defense counsel questioned Perez about this statement; Perez did not deny making the statement, but testified that he did not remember making that statement. The trial court then refused to allow defense counsel to introduce the deposition statements into evidence relating to Perez’ difficulty identifying black people by them facial features.

Over defense counsel’s renewed objection, Medical Examiner Dr. Hyma was allowed to testify concerning the findings contained in the autopsy report prepared by Dr. Emma Lew, M.E., who was unavailable for trial. Dr. Hyma testified that he reviewed all of the documents prepared by Dr. Lew, and concluded that the cause of death for both victims was gunshot.

On appeal, Banmah claims that the trial court erred by admitting the findings contained in the autopsy reports through the testimony of Dr. Hyma, rather than the unavailable Dr. Lew. He argues that this is a violation of his constitutional right to confront witnesses against him because the autopsy report is a testimonial statement prepared in anticipation of trial and designed to establish cause of death, one of the elements of the first-degree murder charge against him. We disagree.

Florida cases explicitly hold that it is proper to permit a substitute medical expert to testify as to cause of death despite the fact that the expert did not perform the autopsy, when the substitute medical expert relies on the autopsy report. See Schoenwetter v. State, 931 So.2d 857 (Fla.2006) (holding that trial court did not abuse its discretion to allow substitute medical examiner to testify, where original M.E. was unavailable; medical examiner who did not perform autopsy could rely on medical files, chart and conversations with physician who conducted autopsy in forming opinion on cause of death); accord Linn v. Fossum, 946 So.2d 1032 (Fla.2006); Conahan v. State, 844 So.2d 629, 634 (Fla.2003) (allowing the substitute medical examiner to testify regarding the autopsy report prepared by original medical examiner, who was unavailable to testify); Brennan v. State, 754 So.2d 1 (Fla.1999) (finding that, because the substitute medical examiner made independent conclusions using objective evidence, the trial court did not abuse its discretion in permitting her to testify); Geralds v. State, 674 So.2d 96 (Fla.1996) (holding it proper to permit am M.E. to testify as to cause of death, despite that the M.E. did not perform the autopsy); Capehart v. State, 583 So.2d 1009 (Fla.1991) (finding admission of M.E.’s testimony proper even in absence of admitted autopsy report, where M.E. relied on the autopsy and toxicology reports, evidence receipts and photos, and all other proper documentation in the case). Capehart relied on section 90.704, Florida Statutes (1987), which provided that an expert may, in forming an opinion, rely on facts and data not in evidence if those facts are of a type reasonably relied on by experts in the subject to support the opinion expressed. Capehart, 583 So.2d at 1012; Bender v. State, 472 So.2d 1370, 1371 (Fla. 3d DCA 1985) (finding the hearsay rule poses no obstacle to expert testimony premised upon tests, records, data, or opinions of another, where such information is of a type reasonably relied upon by experts in the field); accord § 90.704, Fla. Stat. (2010). In Capehart, the autopsy report was not introduced into evidence, but the autopsy photographs were admitted without objection.

Although defense counsel objected to the substitute M.E.’s testimony at Ban-mah’s trial, the determination of whether the witness was qualified to express an expert opinion was a matter within the discretion of the trial judge, and finding no clear showing of error, this ruling will not be reversed. See Brennan v. State, 754 So.2d at 4 (citing Ramirez v. State, 542 So.2d 352 (Fla.1989)). Dr. Hyma’s expert testimony was not used as a conduit for the introduction of otherwise inadmissible evidence. See Linn, 946 So.2d at 1038; cf., Gonzalez v. State, 777 So.2d 1068, 1070 (Fla. 3d DCA 2001) (finding reversible error where, without any prior warning or notice to the defense, the state’s M.E. expert was permitted to testify to new matters outside of the autopsy report that were key to the State’s case). Further, autopsy reports are non-testimonial because they are prepared pursuant to a statutory duty, and not solely for use in prosecution. Finally, and most obviously, the victims died because they were shot; this is the basis of the charges against the defendant and there is no evidence to contradict this. The autopsy photos were admitted without objection, and show gunshot wounds. Dr. Hyma’s testimony was subject to cross-examination, and based on the record and case precedent, we find no error in the trial court’s admission of Dr. Hyma’s testimony concerning the cause of death.

Banmah next argues that the trial court erred by refusing to allow the defendant to introduce witness Perez’s prior deposition statement-that he had trouble identifying black people because they look so similar to one another-n order to impeach that witness’s photo identification of the defendant. At trial, defense counsel asked the witness, “[W]hen you picked his [defendant’s] picture out it was based not on the person’s face, but just his ... build and shape, is that correct?” Perez answered, “[Y]es, exactly.” Defense counsel then asked Perez if he remembered that he told attorneys at deposition that he had “a problem picking out the [defendant’s] face because black people are so similar to each other, and that he could not say [whether the photo he picked out was of the defendant].” Perez answered that he did not remember saying that. When defense counsel then asked him if he denied saying that, Perez answered “I don’t deny it, I don’t remember saying it.” The witness specifically admitted that he did not base his identification of Banmah’s photo on facial features, but on the general build and shape of the defendant.

We have considered the entire testimony in context and conclude that witness Perez’s statement at trial did not conflict with his earlier deposition statement, such that there was really nothing to impeach. Counsel’s line of questioning essentially paraphrased Perez’s deposition and got the point across to the jury that Perez’s photo identification of the defendant was weak. Introducing the deposition statement would have been cumulative, and denying it did not prevent the defendant from fairly presenting his case. Because the scope and limitation of cross-examination are within the trial court’s discretion, we find no error in the trial court’s decision to deny defense counsel’s request on cross-examination to read the witness’s deposition statement into the record. See McCoy v. State, 853 So.2d 396, 406 (Fla. 2003) (reviewing trial court decisions as to the scope of cross-examination on an abuse of discretion standard).

We affirm the defendant’s convictions and sentences.


text:
    STATE of Louisiana v. Jermaine Peayre CARTER.
    No. 2012-KO-0092.
    Supreme Court of Louisiana.
    April 27, 2012.
   In re Carter, Jermaine Peayre; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, Nos. 171375, 171377; to the Court of Appeal, Second Circuit, Nos. 46,710-KA, 46,711-KA.

Denied.

KNOLL, J., would grant.