author: POLEN, J.

text:
    Juan ELLIS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, and ADP Total Source Co. XXIII, Inc., Appellees.
    No. 4D10-3189.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Daniel S. Kuczler of Florida Rural Legal Services, Inc., Fort Pierce, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   POLEN, J.

Appellant, Juan Ellis, appeals a final order entered by the Unemployment Appeals Commission (“UAC”), affirming the appeals referee’s decision to dismiss his appeal due to an untimely filing when two separate, contradictory notices of determination were sent to Ellis. We remand this cause for an evidentiary hearing to determine whether Ellis’s late filing was directly attributable to the Agency for Workforce Innovation’s (“AWI”) contradictory notices of determination, one of which denied Ellis of benefits and one of which granted Ellis benefits.

Ellis was employed by ADP Totalsource Co. XXIII Inc. (“ADP”) until he was terminated on January 31, 2010. Ellis filed for unemployment compensation, effective February 14, 2010. On March 10, 2010, a notice of determination was mailed to Ellis, providing that he was not eligible for benefits because he quit his job to attend school and the reason for quitting was not attributable to his employer. Also mailed on March 10, 2010 was a notice of determination stating that Ellis’s “school attendance does not interfere with his[ ] ability to seek and accept full time work.” The second notice further provided that Ellis was eligible for benefits because he “is able and available for work as required by law.” The difference between the two notices of determination was that one provided that ADP was Ellis’s former employer, while the other did not have an employer listed. Ellis included his position at ADP and a position he held just before he was employed by ADP on his application for benefits. However, in its response, AWI did not clearly notify Ellis as to which former position led to the granting of benefits and which led to the denial of benefits.

Ellis was allegedly under the impression that, based on the notices of determination, he was going to receive benefits and that the second notice was sent to correct a mistake in the first notice. On March 31, 2010, when he realized he was not receiving benefits, Ellis called the AWI and was notified he was actually denied and needed to submit a late appeal. Ellis submitted the appeal on the same day, which was the twenty-first day after the notices of determination were mailed. An appeal hearing was held and the referee dismissed the appeal for lack of jurisdiction due to untimely filing. Ellis timely appealed the referee’s decision and the UAC affirmed the decision by final order on June 30, 2010. This appeal followed.

An appeal referee’s findings are to be accorded a presumption of correctness. The UAC’s standard of review of the appeals referee’s decision is whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law.

Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 501-02 (Fla. 4th DCA 2004) (internal citation omitted).

Section 443.151(3)(b), Florida Statutes, provides that monetary determinations on unemployment compensation claims are:

[Fjinal unless within 20 days after the mailing of the notices to the parties’ last known addresses, or in lieu of mailing, within 20 days after the delivery of the notices, an appeal or written request for reconsideration is filed by the claimant or other party entitled to notice.

§ 443.151(3)(b), Fla. Stat. (2010). Florida Administrative Code Rule 60BB-5.007 provides, in relevant part, that:

(1) If it appears that the appeal initiating the proceedings was not filed within the time allowed by law, the appeals referee shall notify the parties that timeliness of the appeal shall be one of the issues to be considered at the hearing.
(2) The appeals referee shall take evidence on and consider the issue of timeliness of the appeal first. If the referee finds that the appeal was not filed within the time allowed by law, it shall be dismissed. The dismissal decision shall be limited to findings of fact and a conclusion of law with respect to the timeliness issue.

Fla. Admin. Code R. 60BB-5.007 (2011).

While there is no “good cause” exception to time limitations for appeals made to the UAC, “there is an exception, based on due process and fairness concerns, when the delay in filing the notice of appeal “was occasioned by the actions of the Commission.’ ” Ortolano v. Unemployment Appeals Comm’n, 33 So.3d 823, 825 (Fla. 5th DCA 2010) (quoting Pollet v. Fla. Unemployment Appeals Comm’n, 928 So.2d 469, 470 (Fla. 1st DCA 2006) (“[a]ppellant is entitled to a hearing to determine whether she received erroneous information, and if she did, what bearing the erroneous information had on the timeliness of her appeal.”))

In Ortolano, the claimant received a notice of determination awarding her benefits. 33 So.3d at 824. Ortolano’s former employer appealed that decision, at which time it was realized a second notice of determination was issued which denied Or-tolano’s benefits. Id. Ortolano filed her own appeal when she realized she was denied, but the referee dismissed her appeal, finding it untimely. Id. The Fifth District Court of Appeal held that it was improper to dismiss the claim for untimeliness without first holding “a hearing to determine whether the mixed signals that [Ortolano] received from the Agency and the UAC had a bearing on the timeliness of her appeal.” Id. at 825.

Here, the AWI mailed two separate and contradictory notices of determination which Ellis alleged caused his confusion and late filing. UAC disagreed that the mailing of two notices caused confusion and instead believed that the confusion Ellis experienced was not attributable to AWI’s notices, but due to his own inability to separate the issues that each document addressed. As the Fifth District held, it would be improper to dismiss a claim as untimely before a determination is made regarding the cause of the late appeal. Therefore, we remand this cause for an evidentiary hearing to determine whether the confusion Ellis alleged was directly attributable to AWTs two separate and contradictory notices of determination.

Reversed, and Remanded.

GROSS and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brad QUILLEN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-4470, 4D09-4580.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Carla P. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant below, Brad Quillen, appeals the trial court’s summary denial of his motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(0. After accepting Quillen’s no contest plea pursuant to a negotiated agreement with the state, the trial court subsequently imposed a sentence far beyond that contemplated in the negotiated plea. We conclude that the trial court was required to allow Quillen an opportunity to withdraw his plea once the judge decided to enhance Quillen’s sentence beyond the terms of the negotiated plea. We further conclude that Quillen’s trial counsel rendered ineffective assistance of counsel in agreeing with the trial court’s suggestion that Quillen had previously entered into an open plea when he had in fact entered into a negotiated plea. Accordingly, we must reverse and remand for the trial court to enter an order granting the motion to withdraw plea.

Quillen was charged with one count of grand theft in excess of $100,000 and entered into a written plea agreement with the state. The plea agreement stated that Quillen would plead no contest in return for a sentence of ten years of probation with a special condition that Quillen pay restitution in the amount of $100,190.27. Quillen agreed to pay the restitution with an initial payment of $30,000 at a subsequent sentencing hearing, followed by an additional $20,000 to be paid thirty days from the date of the plea agreement. Finally, Quillen agreed to pay the balance of the restitution in the form of monthly payments of $1500. The trial court set a sentencing date for approximately thirty days following Quillen’s entry of his plea.

The trial court then warned Quillen, “If you don’t show up with that $30,000 in a certified check, then that will be a violation of your probation.” The trial court thereupon accepted Quillen’s plea and scheduled a sentencing hearing.

Quillen did not appear at the scheduled sentencing hearing. Approximately one hour after Quillen was required to appear, defense counsel informed the trial court that he received a voicemail from Quillen explaining that his vehicle had broken down in Palm Beach County and that he would be at the courthouse by noon with the check. Nonetheless, the trial court, apparently and understandably frustrated, decided to sentence Quillen in absentia. The trial court suggested to defense counsel that Quillen had previously entered into an open plea and defense counsel incorrectly agreed with the trial court that it was an open plea. The trial court adjudicated Quillen guilty and sentenced him to twenty years in prison followed by ten years of probation, and ordered restitution of $100,190.27.

Quillen was arrested two weeks later during a traffic stop and thereafter began his twenty-year prison sentence.

Quillen, through his defense counsel, filed a timely motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(Z). Quillen then obtained new counsel who filed a memorandum in support of the motion to withdraw plea, arguing that the trial court was without authority to go beyond the sentence agreed upon in the negotiated plea agreement because the trial court did not warn Quillen that he would face a substantially harsher sentence for failure to appear at sentencing. Defense counsel also alleged that Quillen’s prior attorney had provided ineffective assistance of counsel by agreeing with the trial court’s suggestion that Quillen had entered into an open plea.

The trial court summarily denied the motion to withdraw plea, which Quillen timely appeals.

We review a trial court’s denial of a motion to withdraw plea for an abuse of discretion. Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006).

In a case similar to the instant matter, the Fifth District provided a useful summary of the relevant law in this area:

Generally, in Florida when a judge determines that he cannot honor the terms of an earlier plea bargain, the defendant must be given the opportunity to withdraw his plea. e.g., Brown v. State, 245 So.2d 41 (Fla.1971). Thus, in cases such as the present one, where a defendant requests he remain free on bond until sentencing, it must be determined whether that request is part of the plea agreement. See Payne v. State, 624 So.2d 815 (Fla. 4th DCA 1993). The supreme court held in Quarterman v. State, 527 So.2d 1380 (Fla.1988) that, where a furlough and an enhanced sentence for failure to appear in court at a later time are part of the plea agreement, a court is justified in imposing the enhanced sentence after the defendant fails to appear in court, without giving him an opportunity to withdraw his plea. In contrast, when an enhanced sentence for failure to appear in court at a later time is not part of the negotiated plea, a court must allow the defendant an opportunity to withdraw the plea before it imposes the more severe sentence. See Henson v. State, 977 So.2d 736 (Fla. 2d DCA 2008)....

Smith v. State, 988 So.2d 1258, 1261 (Fla. 5th DCA 2008); see also Payne, 624 So.2d at 816 (“[W]hen an enhanced sentence for failure to appear in court at a later time is not part of the plea agreement, a court must allow the defendant an opportunity to withdraw the plea, before it imposes the more severe sentence”).

In the instant case, Quillen’s written plea agreement required that he appear at the sentencing hearing with a $30,000 check. The plea agreement did not, however, authorize or otherwise contemplate a harsher sentence if Quillen failed to comply with that term of the plea agreement. In fact, the plea agreement made no reference to the consequences of Quillen’s failure to attend the sentencing hearing or bring a $30,000 check with him. Further, the trial court did not provide a sufficient warning to Quillen at the change of plea hearing to put him on notice that his failure to appear could result in a sentence outside of that contemplated in the plea agreement.

Therefore, when the trial court decided to impose a much harsher sentence that went beyond the terms of the negotiated plea agreement, it was required first to provide Quillen an opportunity to withdraw his plea. The trial court did not do so and instead sentenced Quillen in absen-tia and then denied his timely motion to withdraw plea.

The trial court’s errors are compounded by defense counsel’s error. When the trial court suggested at the sentencing hearing that Quillen had entered into an open plea at the change of plea hearing, defense counsel agreed — and it must be noted that the state said nothing to correct this misapprehension. Even if Quillen had not filed a motion to withdraw plea, defense counsel’s ineffective assistance, which the record reflects on its face, would still have compelled us to reverse to give Quillen an opportunity to withdraw his plea. See Barber v. State, 901 So.2d 364, 366 (Fla. 5th DCA 2005) (“If the record on its face reflects the merit of a claim of ineffective assistance of trial counsel, then we may consider this issue on direct appeal.”); see also Taylor v. State, 919 So.2d 669, 670-71 (Fla. 2d DCA 2006) (holding that trial counsel’s statement to the trial court that the defendant had entered into a “ ‘straight up’ plea” when he had in fact entered into a negotiated plea constituted ineffective assistance of trial counsel).

Thus, we reverse and remand with instructions that the trial court enter an order granting Quillen’s motion to withdraw plea.

Reversed and remanded with instructions.

MAY, C.J., STEVENSON and CIKLIN, JJ., concur.

      . Although the trial court advised Quillen at the change of plea hearing that his failure to appear at the sentencing hearing with a $30,000 check would constitute a "violation of [his] probation,” this statement presented a logical impossibility. Quillen's probation could not exist until imposition by the trial court at the sentencing hearing. Furthermore, even if the trial court had stated that Quillen’s failure to appear at sentencing would constitute a violation of his plea agreement, that statement would also fail to provide a proper warning of the consequences of Quillen’s failure to appear. See Russell v. State, 645 So.2d 1087, 1088 (Fla. 4th DCA 1994) ("Additional conditions may be imposed as a valid modification of the plea agreement, however, only if ratified by defendant’s clear and unequivocal understanding and acceptance of its terms.”).

      . Ordinarily, when a defendant successfully appeals a sentence for improperly exceeding the terms agreed to in a negotiated plea agreement, courts reverse and remand for the defendant to have the opportunity to withdraw his or her plea, should he or she choose to do so. e.g., Smith, 988 So.2d at 1261; Barber, 901 So.2d at 366; Payne, 624 So.2d at 817. This is because the error stems from the trial court’s failure to provide the defendant an opportunity to withdraw his or her plea. However, in the instant case, because Quillen has already filed a motion to withdraw plea, which was denied, it is obvious that he desires to withdraw his plea.


author: WARNER, J.

text:
    AARMADA PROTECTION SYSTEMS 2000, INC. and Jeffrey Steven Duble, Jr., Appellants, v. Lance YANDELL and Maureen Yandell, Appellees.
    Nos. 4D09-3707, 4D09-3921.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Elizabeth K. Russo and Susan S. Lerner of Russo Appellate Firm, P.A., Miami and Flanagan, Maniotis & Berger, P.A., West Palm Beach, for appellants.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, for appellees.
   WARNER, J.

Aarmada Protection Systems 2000, Inc., and Jeffery Dublé, Jr., timely appeal a final judgment entered on a jury verdict awarding the plaintiffs, Lance and Maureen Yandell, damages arising out of an automobile accident. Appellants present three claims of trial court error: (1) that the trial court erred in excluding evidence that the plaintiff’s medical treatment and costs were not reasonably or necessarily caused by the accident; (2) that the court erred in denying a directed verdict as to the medical costs incurred by plaintiff where his doctor referred him to the doctor’s own clinic for tests in violation of the Patient’s Self-Referral Act; and (3) that a new trial should have been ordered because of the cumulative effect of improper closing argument. We affirm, finding that (a) the claim regarding the exclusion of evidence has not been properly preserved; (b) the evidence does not support the claim that plaintiffs doctor violated the Patient’s Self-Referral Act; and (c) although some of the closing argument remarks of plaintiffs counsel were improper, many were not objected to, or where objections were made and sustained, no request for curative instruction was made nor mistrial requested. Appellants have not established that the remarks were harmful, nor have appellants established that they were incurable or that they impaired the public interest in the system of justice.

Lance Yandell sued Aarmada and its driver, Dublé, in April of 2008 for an auto accident which occurred in August 2007 when a vehicle owned by Aarmada and driven by Dublé rear-ended Yandell’s vehicle, forcing it into the back of another vehicle. Yandell began to notice pain in his neck and back within fifteen minutes of the accident. Paramedics transported him by ambulance to the hospital. In the emergency room, he was diagnosed with a neck sprain and lumbar spine strain. The emergency room doctor prescribed anti-inflammatory drugs and a muscle relaxer, and Yandell was released.

Within a few days of the accident, Yan-dell began seeking medical treatment with several doctors. He first went to see Dr. Wexler, an orthopedic surgeon. Dr. Wex-ler diagnosed a sprain/strain and recommended physical therapy.

Six days after the accident, Yandell began treating with a chiropractor, Dr. Philip Scuderi. Dr. Scuderi prescribed physical therapy, massages, and chiropractic care three times a week, and sent him for an MRI in September 2007. According to Dr. Scuderi, Yandell’s MRI revealed disc herniation and bulging, which injuries Dr. Scuderi attributed to the August 2007 automobile accident. In March 2008, Dr. Scuderi determined that, from a chiropractic standpoint, Yandell had reached maximum medical improvement and had suffered a permanent injury. Dr. Scuderi, who had received a letter of protection from plaintiffs counsel, charged approximately $40,000 for his services.

In November 2007, while still treating with Dr. Scuderi, Yandell was referred to Dr. Theofilos, a spinal neurosurgeon. Yandell presented with complaints of neck pain, back pain, tingling in the arms and feet, and pain radiating to his hip and buttock region. Dr. Theofilos noted that the patient had no previous low back or neck symptoms, and had never previously been treated for such. Dr. Theofilos reviewed Yandell’s September 2007 MRIs, concluding that Yandell had a broad-based disc herniation and an annular tear. Dr. Theofilos initially administered epidural injections, but they did not relieve Yandell’s pain.

Dr. Theofilos ordered additional MRIs, which confirmed his diagnosis after the first MRI scan. He performed a disco-gram to help pinpoint which discs were causing Yandell’s pain. Finding that Dr. Wexler’s conservative treatments had not done much for Yandell, Dr. Theofilos presented him with the options of living with the pain, having open surgery, or trying a less-invasive procedure. Yandell opted for a less-invasive procedure called an intrad-iscal decompression. Through the time of trial, Dr. Theofilo’s treatment of Yandell amounted to approximately $55,000.

At trial, Dr. Theofilos opined that Yan-dell’s injuries were caused by the August 2007 accident, not by the fact that he played football, because he had no history of prior back and neck pain before the accident. While acknowledging that Yan-dell had age-related degeneration in his discs, the doctor opined that degeneration was not the cause of the plaintiffs pain. He ascribed a 10% permanent impairment to Yandell’s lumbar spine, and a 7% permanent impairment to his cervical spine.

As to future treatment, Dr. Theofilos opined that Yandell would need fusion surgery at some point in the future, with surgical fees, anesthesia charges, and hospital fees bringing the total cost to between $100,000 and $120,000. This surgery — which Yandell testified that he planned to undergo — would not restore the plaintiff to his pre-accident condition, but would simply decrease his pain and nerve symptoms. Yandell would also need physical therapy, epidurals, and medications in the future.

Yandell testified at trial to the limitations he now experienced. Having been a professional football player in the Arena Football League, his main hobby was working out. Occasionally he would get a stiff neck but this would work itself out. After the accident, however, he explained that he can no longer go to the gym and that he is limited in his activities with his young children. His wife, who had a loss of consortium claim, also testified as to the limitations on his activities after the accident.

Before trial, the plaintiffs filed a motion in limine to preclude the defendants from presenting any argument or evidence that Yandell’s health care providers performed or recommended any inappropriate, improper, or unnecessary treatment. Attached to the motion in limine were reports authored by defense experts.

Dr. Jordan Grabel, a neurosurgeon, was expected to testify “regarding the reasonableness and necessity of the Plaintiffs medical care and the need for future medical care and treatment.” Dr. Grabel’s report stated, in pertinent part: 1) the plaintiffs cervical MRI pattern was consistent with longstanding changes rather than an acute trauma; 2) the accident of August 23, 2007, did not result in the need for any type of lumbar or cervical surgery, and such procedures would “in no way” be considered reasonable or related to the accident; 8) no specific additional treatments to the cervical spine or lumbar spine would be considered reasonable or related to the accident; 4) in the absence of any neurologic deficits, it was not possible to assign a permanent impairment rating; 5) the odds favored that the degenerative changes were “more related” to his professional football activity; and 6) there should be no restrictions on the plaintiffs physical activities.

Dr. Lawrence Gorfine, an anesthesiologist and pain management specialist, was listed as a witness who was “expected to testify with respect to Plaintiffs care, treatment and services rendered to the Plaintiff as well as the reasonableness, necessity, cost, causation, permanency, diagnosis and prognosis.” In Dr. Gorfine’s report, he stated: 1) the fees of Dr. Theo-filos were seven times the Medicare allowable charge, four times a local physician’s charge and two times the top 10% of charges in the United States for the same services; 2) there is no documentation of medical necessity for epidurals and epidu-rograms performed in conjunction with the percutaneous discectomy or the diseogram procedures; 3) the charges for medical services performed by Dr. Theofilos were excessive and above community and national standards.

The trial court held a hearing on the motion in limine. Following the hearing, the trial court entered an order granting the motion in limine, stating:

Defense doctors may not question the appropriateness, the need for or manner of any medical treatment of the Plaintiff. Causation is still an issue. Defendants’ experts may testify as to the reasonableness of any medical bills.

During trial, the defense presented redacted depositions of Drs. Grabel and Gorfine for the jury. Notwithstanding the motion in limine, the jury heard Dr. Grabel testify as to all of the points made in the report attached to the motion in limine. Likewise, Dr. Gorfine gave substantial testimony regarding the reasonableness of the charges for the plaintiffs treatment. He testified that Dr. Theofilos’ charges for the diseogram and surgery were not reasonable because they were excessive and not related to the accident, being substantially above local charges as well as the national averages. Moreover, Dr. Gorfine testified that the charges were not reasonable, because Yandell never evidenced symptoms necessitating the treatment Dr. Theofilos performed.

After a heated closing argument where both sides engaged in improper argument but no motions for mistrial were made, the jury returned a verdict awarding Yandell $107,812 for past medical expenses, and future medical expenses, reduced to present money value, of $65,000. The remainder of the award to Yandell consisted of pain and suffering damages and loss of earnings for a total award of $367,937 as well as an award for loss of consortium of $73,710, half of that requested in closing argument. The defendants filed a motion for new trial on the grounds of exclusion of evidence regarding the reasonableness and necessity of the medical treatment by Dr. Theofilos as well as the improper closing argument. The trial court denied the motion and entered judgment, from which this appeal is taken.

In their first issue, appellants argue that they were improperly precluded from presenting testimony that the amount of damages the plaintiff was claiming was not reasonable or necessary for the sprain/strain injuries at issue. The standard of review of a trial court’s ruling on a motion in limine is abuse of discretion. Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4th DCA 2006); Edwards v. State, 39 So.3d 447, 448 (Fla. 4th DCA 2010).

When the trial court excludes evidence, an offer of proof is generally necessary if the claimed evidentiary error is to be preserved for appellate review. Brantley v. Snapper Power Equip., Inc., 665 So.2d 241, 243 (Fla. 3d DCA 1995). Alternatively, if an adequate record of excluded evidence has been made at the hearing on the motion in limine, it is not necessary to make an offer of proof at trial. Id. Thus, one appellate court has stated that “absent a transcript of the hearing on the motion in limine, we must affirm a ruling that is not fundamentally erroneous on its face.” SourceTrack, LLC v. Ariba, Inc., 958 So.2d 523, 526 (Fla. 2d DCA 2007). While there may be times when a transcript is not necessary, because the evidence sought to be excluded is otherwise in the record, it must be clear what specific evidence is being excluded by an order granting the motion.

In this case, there is no transcript of the hearing on the motion in limine in the record. Therefore, in determining what was excluded, we must look to the motion and the attached expert reports. As to those expert reports, we have reviewed the reports and compared them to the testimony of the two experts presented at trial. We can find no appreciable difference between the reports and the testimony. It appears to us that the defendants offered into evidence substantial testimony regarding both the necessity of treatment by Dr. Theofilos and the unreasonableness of its cost. Neither in the record nor in appellants’ brief is it revealed what specific testimony was excluded as a result of the motion in limine. Because of this, the issue has not been preserved, and we affirm.

In their second issue, the appellants claim that the trial court erred in denying their motion for directed verdict as to the charges made by Dr. Theofilos for MRIs performed at a facility he himself owned, as such a referral violated the Patient Self-Referral Act. The defendants maintain that section 456.052, Florida Statutes, prohibits physicians from making self-referrals to facilities in which they have a financial interest absent compliance with the statute’s disclosure requirements, which were not met here. It is unclear from this record, however, whether the statute was violated.

Section 456.052 states that “[a] health care provider shall not refer a patient to an entity in which such provider is an investor unless, prior to the referral, the provider furnishes the patient with a written disclosure form, informing the patient of’ the interest, the identity of the entity in which the provider has an interest, the patient’s rights to alternative services, and the identities of at least two alternative sources of the services. § 456.052(1), Fla. Stat. However, section 456.053(3)(o )3.f., Florida Statutes, contains an exemption for referrals:

f. By a health care provider who is the sole provider or member of a group practice for designated health services or other health care items or services that are prescribed or provided solely for such referring health care provider’s or group practice’s own patients, and that are provided or performed by or under the direct supervision of such referring health care provider or group practice; provided, however, that effective July 1, 1999, a physician licensed pursuant to chapter 458, chapter 4.59, chapter 460, or chapter 461 may refer a patient to a sole provider or group practice for diagnostic imaging services, excluding radiation therapy services, for which the sole provider or group practice billed both the technical and, the professional fee for or on behalf of the patient, if the referring physician has no investment interest in the practice. The diagnostic imaging service referred to a group practice or sole provider must be a diagnostic imaging service normally provided, within the scope of practice to the patients of the group practice or sole provider. The group practice or sole provider may accept no m,ore than 15 percent of their patients receiving diagnostic imaging services from outside referrals, excluding radiation therapy services.

The italicized language was added by the legislature after the decision in Agency for Health Care Admin. v. Wingo, 697 So.2d 1231 (Fla. 1st DCA 1997), where the First District interpreted the “exemption” from the definition of “referral” narrowly, holding that a group practice forfeited the exemption of its provision of MRI services to its own patients from the definition of “referral” where the practice provided MRI services to patients referred by physicians outside the group practice. The amendment permits a limited amount of referral business without losing the exemption.

In this case, Dr. Theofilos testified that the MRI scans were performed in a suite adjoining his office with equipment leased from his o’ther corporation, North Palm Beach MRI Center. From our review of the testimony, it is unclear whether any outside physicians refer patients for MRI scans at this location. Nevertheless, even if he did accept some referrals, no evidence was produced that they did not meet the exception in the statute. Based upon this record, we cannot conclude that the trial court erred in denying the motion for directed verdict as to the cost of the MRIs, as it appears that the arrangement fell within the exemption provided in the statute.

Finally, appellants claim that the cumulative effect of the plaintiffs attorney’s closing argument constituted reversible error. The complained-of remarks fall into the following categories: 1) remarks which allegedly exploited the court’s ruling on the motion in limine; 2) remarks which alluded to the trial court’s denial of the directed verdict on the MRI charges; 3) improper comments regarding the financial disparity between the plaintiffs and the defendants; 4) improper “Golden Rule” arguments; 5) improper expressions of personal beliefs and experiences; and 6) improper personal attacks on the defendants, defense counsel, and defense witnesses.

Although the appellants failed to object to most of the remarks and did not move for a mistrial as to any, they did move for a new trial based upon improper closing argument, thus preserving the issue for appellate review. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1027 (Fla.2000). Nevertheless, because of the lack of a motion for a mistrial on any of the objected-to remarks, we review even these remarks under the fundamental error analysis of Murphy, as they were not properly preserved for review. See Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010).

Mwrphy teaches that to challenge closing argument comments the appellant must show: (1) that the comments were improper; (2) that the argument was harmful; (3) that the argument was incurable; and (4) that “the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. at 1028-30.

The court expounded on harmfulness by stating:

Harmfulness in this context also carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury. Passing remarks of little consequence in the scope of a lengthy trial should find little sympathy if no contemporaneous objection is voiced. The extensiveness of the objectionable material is a factor to be considered in the harmfulness analysis. In sum, the improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.

Id. at 1029-30. To be incurable, “a complaining party must establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Id. at 1030. The court noted that it will be extremely difficult for a party to meet this standard. Id.

Finally, the court also set the bar exceedingly high to establish that an argument, made without objection, damaged the trial to the extent that it interfered with the public’s interest in the justice system. It noted that only in very rare cases would an argument affect the public interest. It cited as an example of the type of argument that traditionally fits within this narrow category “argument that appeals to racial, ethnic, or religious prejudices”. Id.

The court also noted that the trial judge was in the best position to evaluate improper, unobjected-to errors. An appellate court reviews the trial court’s determination of a motion for new trial based upon improper argument under an abuse of discretion standard. Id. at 1030-31.

We will not detail at length the comments alleged to be improper. Not all of them were so, but we do find that plaintiffs’ counsel made an improper remark exploiting the ruling on the motion in li-mine; made one improper remark about the financial disparity between the parties, which was objected to and the objection was sustained; and made some personal attacks, which may have been improper, although some were in reply to defense counsel’s equally inflammatory argument about the veracity of Yandell’s treating health care professionals.

Nevertheless, we have reviewed the entire closing argument and cannot conclude that the trial court abused its discretion in denying the motion. As Murphy noted, the trial court is able to gauge the harmfulness of the remarks in the context of the entire trial far better than the appellate court. We defer to the trial court’s evaluation, as no abuse of discretion has been shown. Appellants also fail to show at all that the remarks were incurable. They posit that the improper arguments were pervasive and thus not curable, but part of the reason that they were pervasive is because most were not objected to, nor did appellants seek curative instructions for any of the remarks. Clearly, many of the remarks could have been cured by a proper instruction from the court. Moreover, we do not find them as pervasive as appellants suggest, and as we noted before, many were actually fair reply to the argument of appellants. Finally, the public’s interest in the system of justice is not impaired by the argument in this case in the sense that Murphy requires. This simply does not fall into that very rare set of cases where the basic integrity of the judicial system is impacted by the argument.

For the foregoing reasons, we affirm the final judgment.

LEVINE and CONNER, JJ., concur.

      . There seems to be some controversy as to who referred Yandell to Dr. Theofilos. Dr. Scuderi testified that he did, but other testimony shows that Yandell’s lawyer referred him to Dr. Theofilos.


author: CONNER, J.

text:
    SUNRISE LAKES CONDOMINIUM APTS. PHASE III, INC. 5, Appellant, v. Harry FRANK, etc., Janis Fleischman, etc., et al., Appellee.
    No. 4D10-3086.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Marc A. Silverman and Leanne B. Wagner of Frank, Weinberg, & Black, Plantation, for appellant.
    Larry A. Klein of Holland & Knight LLP, West Palm Beach, for appellee Janis Fleischman.
   CONNER, J.

Sunrise Lakes Condominium Apartments, Phase III, Inc. 5 (“Sunrise Lakes”) appéals the entry of final judgment after a non-jury trial denying its complaint for injunctive and other relief. Sunrise Lakes argues the trial court’s decision was not supported by competent, substantial evidence. No transcript of the non-jury trial was provided. Therefore, we are compelled to affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Sunrise Lakes also challenges the trial court’s denial of summary judgment on the same complaint. Since review of an order on summary judgment is a question of law, the rule in Applegate does not apply. Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344, 348 (Fla. 4th DCA 1992). However, we determine that any error in failing to enter summary judgment on behalf of Sunrise Lakes is moot in light of the trial court’s judgment against Sunrise Lakes at trial. We agree with the reasoning in Certain Underwriters at Lloyd’s of London v. Rucker Construction, Inc., 285 Ga.App. 844, 648 S.E.2d 170 (2007):

After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the ease. Stated differently, where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.

Id. at 172 (emphasis in original) (quotations omitted); see also Brannan v. Wyeth Lab., Inc., 516 So.2d 157, 164 (La.App.1987), aff'd and rev’d in part on other grounds, 526 So.2d 1101 (La.1988).

Affirmed.

POLEN and GROSS, JJ„ concur.


author: GERBER, J.

text:
    Monica S. CAPÓ, Appellant/Cross-Appellee, v. Marcos A. CAPÓ, Appellee/Cross-Appellant.
    No. 4D09-4608.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Bruce S. Rosenwater of Bruce S. Rosen-water & Associates, P.A., for appellant.
    Troy W. Klein, West Palm Beach, for appellee.
   GERBER, J.

The former wife appeals, and the former husband cross-appeals, the circuit court’s amended order granting the former husband’s petition for modification of child support. We conclude the only argument of merit is the former wife’s argument that the amended order is facially erroneous because it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed. See Aguirre v. Aguirre, 985 So.2d 1203, 1207 (Fla. 4th DCA 2008) (“A final judgment is facially erroneous, requiring remand, where it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed.”). We remand for the circuit court to make its findings as to the net income of each party and, based on those findings, to explain why the child support calculations should remain the same or, if necessary, to modify the child support calculations accordingly. On all of the other arguments which the parties raise in the appeal and cross-appeal, we affirm without further discussion.

Affimied in part, reversed in part, and remanded.

WARNER and DAMOORGIAN, JJ., concur.


text:
    Steven Thomas PADGETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-966.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Steven Padgett, was charged by amended information with (I) grand theft from a person 65 years of age or older in the amount of $50,000 or more and (II) exploitation of an elderly or disabled adult who lacked the capacity to consent in the amount of $20,000 or more but less than $100,000. When Padgett moved for judgment of acquittal after the state rested its case, the trial court granted his motion with respect to count II by reducing the charge to exploitation of an elderly adult who lacked the capacity to consent in an amount less than $20,000. The jury found Padgett guilty of count I as charged and count II as reduced by the trial court.

At trial, the state presented evidence that Padgett had stolen or attempted to steal certain monies from his elderly mother and that he had exploited her by using her credit cards when she did not have the capacity to consent. Before the mother and the other witnesses testified, the detective who investigated the case testified, over Padgett’s hearsay objection, to what the mother told him, including a list of the items and monies he allegedly stole, how he stole them, and Padgett’s use of her checking accounts. He also testified to amounts the mother said were taken from her bank accounts and that Padgett attempted to withdraw all the money from her investment account.

Padgett raises three issues on appeal. We find the first two to be without merit. In the third issue, Padgett argues that the trial court erred in admitting the detective’s hearsay testimony. The state responded that the testimony was admissible because it provided background information and explained the detective’s investigation.

“The standard of review for admissibility of evidence is abuse of discretion.” Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (citation omitted). “However, a trial court’s discretion is limited by the rules of evidence.” Id. “Whether or not the statement is hearsay is a legal question subject to de novo review.” K.V. v. State, 832 So.2d 264, 265-66 (Fla. 4th DCA 2002). “When a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions.” Neeley v. State, 883 So.2d 861, 864 (Fla. 1st DCA 2004) (citation omitted).

The testimony given by the detective was hearsay and is inadmissible unless ■within an exception. §§ 90.802, 90.803, Fla. Stat. (2009). The state argues that the hearsay testimony provides background information on the detective’s investigation, citing Cartwright v. State, 885 So.2d 1010 (Fla. 4th DCA 2004). A review of Cartwright indicates that the court’s holding that “the state should be allowed considerable leeway to show facts which “ ‘fill in the background of the narrative’ ” is wholly inapplicable to this case. Id. at 1013 (citation omitted). The detective’s testimony was not background information but an item by item statement of the mother’s accusations against Padgett.

In Caruso v. State, 645 So.2d 389 (Fla.1994), the supreme court held “that the prejudice of out-of-court statements used to relate accusatory information but offered simply to establish the logical sequence of events outweighs the probative value of such evidence, rendering it inadmissible.” Id. at 395. After testifying to the allegations of Padgett’s mother, the detective testified that this information led to his speaking with the mother’s banks and her investment company. The information obtained then led to the detective obtaining the arrest warrant for Padgett. The detective could have testified that he had received information from the mother which led to his investigation. “Generally, police witnesses are permitted to testify that they were acting on a tip, but are not permitted to provide details of the tip unless some exception to the hearsay rule exists.” Metelus v. State, 762 So.2d 940, 943 (Fla. 4th DCA 2000). The detective’s testimony as to what the mother told him was inadmissible hearsay.

The state asserts that any error in the admission of the detective’s testimony was harmless because the mother testified on the same matter. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

The mother’s testimony as to the circumstances of Padgett’s alleged thefts and exploitation included instances of her not remembering the actions she took pri- or to Padgett cashing checks from her accounts or using her credit card. The inadmissible hearsay may have bolstered the mother’s credibility and gave less weight to Padgett’s testimony. Under these circumstances, we find that the error was not harmless beyond a reasonable doubt. We therefore reverse and remand for a new trial.

Reversed and Remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    Gregory M. BLAKE, Appellant, v. The CITY OF PORT SAINT LUCIE, a Florida municipal corporation and a political subdivision of the State of Florida, and Tamara Williamson, Jodi Pradere, Jessica Saville, Rita Woolley, and Nancy Woolley, Appellees.
    No. 4D11-74.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Thomas J. Ali of Jupiter Legal Advocates, Jupiter, for appellant.
    Jeffrey A. Blaker of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., West Palm Beach and Hinda Klein of Conroy, Simberg, Ganon, Kre-vans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for appellees City of Port Saint Lucie and Tamara Williamson.
   GERBER, J.

The issue in this appeal is whether section 768.095, Florida Statutes (2009), abrogates the absolute immunity which the common law provides to public officials who make statements within the scope of their duties. See Bates v. St. Lucie Cnty. Sheriff's Office, 31 So.3d 210, 213 (Fla. 4th DCA 2010) (“In Florida, [p]ublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation.”) (citations and internal quotations omitted). We hold that section 768.095 does not abrogate such absolute immunity. Therefore, we affirm the circuit court’s order granting the public officials’ motion to dismiss the plaintiffs amended complaint for defamation and libel or slander per se with prejudice.

Section 768.095 states:

An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

§ 768.095, Fla. Stat. (2009) (emphasis added). Nothing in the emphasized language suggests that the legislature intended to abrogate or limit the absolute immunity which the common law provides to public officials who make statements within the scope of them duties. See Bates, 31 So.3d at 213 (“[T]o abrogate or limit immunity, a statute must be clear.”). Thus, section 768.095 applies to only employers which are not public officials.

Our decision today is consistent with our recent decision in Bates. In Bates, a former employee sued a public official for defamation, arguing that the provisions of section 943.149(4), Florida Statutes (2008), qualified the absolute immunity otherwise afforded to a public official. Section 943.149(4) states:

An administrator of an employing agency who discloses information pursuant to this section is immune from civil liability in accordance with the provisions of s. 768.095.

§ 943.139(4), Fla. Stat. (2008) (emphasis added). The public official raised the affirmative defense of absolute immunity and moved for a judgment on the pleadings. The circuit court deferred ruling on the motion, and the case proceeded to trial. At trial, the official raised the absolute immunity defense in motions for directed verdict. The circuit court deferred ruling on those motions as well. After an adverse verdict, the official moved to set aside the verdict. The circuit court granted the motion, indicating that the common law provided the official with absolute immunity for statements made in the course of the official’s duties. We affirmed, reasoning that “[sjection 943.139(4) fails to clearly abrogate, limit, or qualify the absolute immunity provided the [official] under common law.” Bates, 31 So.3d at 213. In this case, we hold that the same reasoning applies to section 768.095 standing alone.

The plaintiff appropriately concedes Bates’ existence. The plaintiff, however, argues that Bates was unclear as to whether it applied only to section 943.139(4) or also to section 768.095, which is incorporated in section 943.139(4). As stated above, we make clear in this opinion that the same reasoning applies to section 768.095 standing alone. The plaintiff also argues that Bates is distinguishable because that case involved a motion to set aside a verdict, whereas this case involves a motion to dismiss with prejudice at the pleading stage. We conclude that dismissal with prejudice can occur at the pleading stage where, as here, the plaintiff alleges that the public official made the statements within the scope of the official’s duties. In Bates, the circuit court could have granted the public official’s motion for judgment on the pleadings and its ruling would have been correct.

Affirmed.

WARNER and DAMOORGIAN, JJ., concur.


author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    Ellis J. BOURQUE, Sr., et al. v. PETER KEWIT SON’S COMPANY, et al.
    No. 11-CA-11.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Scott R. Bickford, Lawrence J. Centola, III, Neil F. Nazareth, Roshawn H. Donahue, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Erin F. Parkinson, Margaret Diamond, Jose L. Barro, III, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

[¿This is an appeal by Marianne Judice and Ellis Bourque, Jr., plaintiffs-appellants, from a judgment granting a motion to enforce a settlement agreement urged by American Cyanamid Co., defendant-ap-pellee. Because the facts here do not establish that any settlement agreement was ever perfected, we vacate the judgment and remand the matter to the district court for further proceedings consistent with this opinion.

The underlying facts of this litigation are as follows. Ellis Bourque, Sr. worked for a number of employers over the course of his life. He was diagnosed with asbestosis later in life. In 1995 he and his wife, Opal Grace Bourque, sued a number of his prior employers alleging that exposure to asbestos while in their employ had caused his.condition. Upon his death in 1997, his wife Opal and Marianne Judice and Ellis Bourque, Jr., his two natural children with another woman, asserted wrongful death and survival action claims by way of an amended petition.

IsOpal died in 2008. On July 23, 2010, American Cyanamid Co., one of the defendants, filed a motion to continue a September 20, 2010, trial date on grounds that Michael Fisher and Wesley Swisher, two children of Opal from another union, had to be notified of the pending trial and given an opportunity to respond. Counsel for plaintiffs represents that at an August 19, 2010, hearing on this motion, the trial judge ordered one of the defendants to notify Fisher and Swisher of their potential claims. Fisher and Swisher substituted themselves as plaintiffs for their mother, Opal, on August 30, 2010. It is also represented in brief by plaintiffs’ counsel that on July 26, 2010, prior to Fisher and Swisher joining the suit, a mediation was held amongst counsel for the plaintiffs and only some of the numerous defendants. They further represent that a settlement figure of $300,000 was agreed to by plaintiffs and five of the defendants, but that no writing was produced or signed at that time. No evidence as to any other details of this agreement appears in the record.

The documentary evidence presented at the hearing on the motion to enforce the settlement shows that although a settlement document reciting a settlement figure of $200,000 was confected and sent to the plaintiffs, it was never signed by them. Neither was it signed by any of the defendants. It was also shown that a $50,000 check from one of the defendants, Peter Kiewit & Sons, was received and deposited in plaintiffs’ counsels’ trust account. It is further represented by plaintiffs’ counsel that the funds were returned to the defendant that had sent the check. Other evidence, consisting of e-mails whose authenticity is not contested by any party, shows that plaintiffs were concerned about an indemnification clause |4in the settlement document which would render them liable for any judgment which Fisher and Swisher might obtain against any of the settling defendants. When plaintiffs refused to sign the agreement, American Cyanamid urged the present motion to enforce the settlement. After a hearing, the trial judge issued a judgment granting the motion. This appeal followed.

As an initial matter, American Cyanamid asserts that this is not an ap-pealable judgment. We disagree. Article 3080 of the La. Civil Code provides that “[a] compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” The comments to this article note that an attempt to re-litigate these matters would be properly met by the peremptory exception of res judicata. A compromise is thus equivalent to a final judgment, and the order that the settlement be enforced is thus appealable as a final judgment. See Dozier v. Rhodus, 2008 CA 1813 (La.App. 1 Cir. 5/5/09), 17 So.3d 402.

The parties to the alleged settlement agreement are Judice and Bourque, Jr., plaintiffs, and five of the defendants, namely American Cyanamid Co., Peter Kiewit & Sons, Entergy Louisiana, Enter-gy New Orleans and Gulf Engineering, LLC, the settling defendants.

The evidence presented at the hearing in the matter consisted of the alleged settlement agreement, a letter sent via fax, several e-mails, and a copy of the check for $50,000.

The following are the pertinent documents. The first exhibit (A), the faxed letter, is by Roshawn H. Donahue, one of plaintiffs’ counsel, dated August 9, 2010. It is addressed to numerous opposing counsel and notes that a deposition has been cancelled. It further recites that “plaintiffs have reached a resolution of this matter with American Cyanamid, Peter Kiewit & Sons, Union Carbide Corporation, Entergy Louisiana and Gulf Engineering. ...”

|sThe next exhibit (B) is an e-mail from McGready Richeson, counsel for Union Carbide, to plaintiffs’ attorneys as well as numerous other defense counsel, dated August 12, 2010. It states: “Attached for review and signature please find the Compromise Agreement and Receipt and Release on behalf of the remaining premises defendants, excluding Union Carbide. After you have had the opportunity to review, please have your clients execute same and return the original to me.” The attached agreement (C) recites that the settlement is for $200,000, and it contains the indemnification clause which would render plaintiffs liable to reimburse the settling defendants for any amounts which any other potential claimants might recover from them up to the $200,000 limit. This clause obviously is directed to the potential claims of Fisher and Swisher.

The next exhibit (D) is an August 12, 2010, e-mail from Larry Centola, plaintiffs’ counsel, to Richeson, which says “The release for [redacted] is going to the clients. Where do we stand on the [redacted] from U[nion] C[arbide].” This is followed by another e-mail (E) of August 26, also from Centola to Richeson which says “Release from the other defendants for the [redacted] will be sent to you tomorrow. What else do we have to do to get the U[nion] C[arbide] money?”

The next document (F) is a copy of the August 24, 2010, check for $50,000. The front shows that it is made to Martzell and Bickford (plaintiffs’ counsel’s law firm), and Marianne Judice and Ellis Bourque, Jr. The reverse shows an endorsement for deposit only by a Martzell and Bickford stamp, and the hand written names of Marianne Judice and Ellis Bourque Jr.

The next e-mail (G) of September 9, 2010, from Centola to various opposing counsel states:

McGready [Richeson] did a great job of putting a deal together. Unfortunately, because the Frilot firm insisted on contacting Mssrs. Fisher and Swisher, our deal at $300,000 is in jeopardy.
| (¡Perry Roussel last week indicated that his clients will not recognize the $300,000 settlement, will not participate in the settlement, will not share in the settlement, and believes his clients still have a claim against your clients. Thus we cannot sign the settlement documents as drafted. If you wish to settle with my clients (Bourque, Jr. and Judi-ce) for the same amounts, we are willing to do so, although I am sure that your clients expected finality to the case with the sums agreed upon. Frankly, we assumed finality too until Frilot took the position that was adverse to his clients, adverse to our clients, and adverse to your clients.
Please let me know how you wish to proceed. It is unlikely that Bourque, Jr. and Judice’s settlement number will go down from the $300,000 mark with your clients after Mssrs. Fisher and Swisher begin discovery, but we are always willing to settle with your clients for the same $300,000.

The next relevant e-mail (H), dated September 9, 2010, from Erin Parkinson, counsel for American Cyanamid, to Cento-la and other counsel states pertinently that “we can at least agree on two things: the amount of the settlement $300,000 and focusing on the Saints for the rest of the day.”

On the above evidence the trial judge granted American Cyanamid’s motion to enforce the settlement agreement. In his reasons for judgment he found that “once the settling plaintiffs negotiated the settlement check, there was a perfected settlement agreement, as contained in the Release Documents, between those plaintiffs and the settling defendants.” Plaintiffs now appeal that judgment.

Because the existence or not of a compromise agreement is dependent on factual determinations of the parties intent, the standard of appellate review is manifest error. Klebanoff v. Haberle, 43,-102 (La.App. 2 Cir. 3/19/08), 978 So.2d 598.

The law as to the formalities of a compromise agreement is found in La.C.C. Art. 3072, which states:

A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.

17This article was enacted in 2007, and replaced the prior Art. 3071 (1870), but it was not intended to change the law. The jurisprudence interpreting the prior article is thus still applicable. In the leading case of Sullivan v. Sullivan, 95-2122 (La.4/8/96), 671 So.2d 315, the court discussed at length the requirements for a valid compromise. It first noted that the policy underlying the requirement that there be a writing is to insure that there be proof in these extra-judicial agreements of the obligations to which the parties have bound themselves. In that regard, the court stated that such agreements must be signed by the parties to serve as written proof that they had acquiesced in the agreement. It held that without a signed agreement, there was no valid compromise.

In an earlier case, Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981), the court had held that although a signed writing was needed, that writing could be in more than one document so long as the documents when read together evince the parties’ agreement as to the terms contained therein.

In the present case, we have reviewed the evidence of record and do not find any factual basis to conclude that a valid compromise had been reached. There is no question that the compromise agreement was not signed by any party, either plaintiffs or defendants. Second, all of the e-mails refer to a settlement figure of $300,000, yet the proposed agreement recites that the settlement figure is $200,000. No explanation for this discrepancy appears anywhere in the record. Third, the letter sent via fax by Donahue to all other counsel on August 9, recites that a resolution of the matter has been reached and included among the settling defendants Union Carbide. Subsequent emails between Richeson, counsel for Union Carbide, and Centola make clear that Union Carbide did not agree to a settlement. Further, although the settlement agreement was sent to Centola by Richeson, and presumably prepared by him, that agreement does not name his | Rclient as being a party to the agreement. In its brief here, American Cyanamid points to other correspondence between Centola and Richeson, namely the e-mails of August 17 and August 26, as proof that an agreement had been confected, but we again note that Richeson was not representing any of the settling defendants, and therefore could not have been acting on their behalf.

The final issue concerns the $50,000 check. The check recites that it is in “settlement of Ellis Bourque,” but no other terms are indicated, nor is there any reference to the settlement agreement. Moreover, the settlement agreement nowhere mentions any particular amount to be paid by the individual settling defendants, and there is no other evidence to tie the check to the purported compromise agreement other than the fact that Peter Kiewit & Sons is a defendant named in that document. The evidence presented by American Cyanamid, and especially the September 9 e-mail from its attorney Parkinson to Centola, all indicate a settlement figure of $300,000, the agreement states $200,000, and the check is only for $50,000. Thus the check cannot be construed as proof that plaintiffs accepted the compromise. We also note that there is no evidence that the funds were dispersed to the plaintiffs, but only that they were placed in their attorney’s trust account, and it is admitted that they were subsequently returned to Peter Kiewit & Sons.

As held in Sullivan v. Sullivan, supra, a compromise agreement must be in writing and signed by the parties. Although the agreement may appear in different documents, those documents must nonetheless clearly evince that the parties acquiesced in the agreement because they are legally bound to abide by its terms. Felder v. Georgia Pacific Corp., supra. Here, no party signed the written compromise agreement. We must therefore look to other writings for evidence of an agreement. This we simply do not find. The emails between Richeson and [ flCentola might indicate that an agreement had been reached, but as noted above, Richeson was not representing any of the settling defendants and was thus a stranger to the negotiations. All of the writings refer to a settlement of $300,000, yet the agreement gives a figure of $200,000, and the check is for yet another amount. In these circumstances, it was manifest error for the trial judge to find that a binding compromise had been confected, and we so hold.

For the foregoing reasons, the judgment sustaining American Cyanamid Co.’s motion to enforce the settlement agreement is vacated, and the matter is remanded to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . The record before us does not contain a transcript or minutes of the August 19, 2010, hearing on the motion to continue trial. Neither is there any evidence or testimony as to what transpired at the mediation of July 26, 2010. However, the above recitation of facts is not contested by counsel for any party.

      . There is no evidence of record regarding return of the $50,000. However, this fact is also not contested by counsel for any party.