author: POLEN, J.

text:
    James Francis WAGNER, II, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3264.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied June 11, 2012.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

James Francis Wagner appeals the final judgment of the trial court, adjudicating him guilty of trafficking in Oxycodone, possession of Xanax, withholding information from a practitioner, and two counts of obtaining Oxycodone and Xanax by fraud. Wagner makes two arguments on appeal: (1) that the trial court reversibly erred and committed fundamental error when it added the phrase, “for a lawful purpose,” to the section 893.13(6)(a), Florida Statutes (2007), “prescription defense” jury instruction; and (2) that the trial court erroneously denied his motions for judgment of acquittal. We agree with Wagner on the first issue. As to the second issue, we affirm as the question of a valid prescription defense, given a proper jury instruction, would be a question for the jury.

The information alleged that Wagner obtained prescriptions for controlled substances from two different physicians during the period from July 15, 2007, to August 15, 2007. At trial, the State introduced prescriptions from Dr. Terrero dated July 15 and August 15. The State argued that Wagner obtained a prescription from Dr. Doldan on July 31, 2007, which made the August 15 prescription illegal pursuant to section 893.13(6)(a).

Judith Gonzalez-Doldan, the office manager for her late husband, Dr. Eustabio Gonzalez-Doldan, testified that Wagner began seeing Dr. Doldan on July 31, 2007. She created a chart for Wagner, which indicated that he previously treated with a doctor in Delray Beach. The chart did not mention Dr. Terrero. According to Gonzalez-Doldan, on July 31, 2007, Dr. Doldan prescribed Wagner Roxicodone, Xanax, and a bottle of Oxydose. At trial, the office manager for Dr. Terrero identified a prescription signed by Dr. Terrero for Wagner for Oxycodone and Xanax. The prescription was dated August 15, 2007. He also identified forms signed by Wagner, dated August 15, wherein Wagner stated that he did not receive any narcotic medication from another practitioner.

Molly Herrera, Dr. Doldan’s medical assistant, assisted Dr. Doldan with writing prescriptions because of Dr. Doldan’s physical limitations related to his illness. She testified that she wrote and signed duplicate prescriptions for Roxicodone for Wagner which were not authorized by Dr. Doldan, and that Wagner knew the prescriptions were fraudulent. Although she wrote two prescriptions for Wagner, she testified that Wagner filled only one of them.

Using a confidential informant, a pharmaceutical crimes agent of the Palm Beach County Sheriff’s Office placed recorded controlled calls to Wagner to set up a sale between the informant and Wagner. Upon meeting to make the sale, Wagner was arrested. Four prescription pill bottles, containing Oxycodone and Xanax, were found in Wagner’s pocket. Thereafter, the agent met with Molly Herrera who gave a statement, admitting that she had written fraudulent prescriptions for Wagner. The agent testified that all of the pill bottles found on Wagner were prescribed by Dr. Terrero and none of the prescriptions were from Dr. Doldan.

After Wagner’s motions for judgments of acquittal were denied, he requested a special jury instruction for a “valid prescription” affirmative defense to the trafficking and possession charges. The court ruled that Wagner was entitled to the instruction, but omitted the phrase “while acting in the course of his or her professional practice” from the instruction and added the phrase “for a lawful purpose” to the instruction. During closing argument, the State replayed the controlled calls, conceded that Wagner had a prescription, but argued that the prescription was not valid because Wagner possessed the drugs for an “unlawful purpose.” The trial court instructed the jury as follows:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained for a lawful purpose from a practitioner or pursuant to a valid prescription....

In accordance with the jury’s verdict, the trial court adjudicated Wagner guilty on all counts charged. This appeal followed.

To warrant reversal, an incorrect jury instruction must be so prejudicial that a miscarriage of justice would result. Williams v. State, 982 So.2d 1190, 1193 (Fla. 4th DCA 2008) (citing Johnson v. State, 747 So.2d 436, 438 (Fla. 4th DCA 1999)). “[Wjhere ... a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.” Id. at 1194 (quoting Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985)).

Section 893.13(6)(a), Florida Statutes (2007), provides:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter.

Pursuant to section 893.13(7)(a)8., Florida Statutes (2007), it is unlawful for any person:

To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.

“‘[W]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.’ ” Kasischke v. State, 991 So.2d 803, 807 (Fla.2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)). A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on this defense. O’Hara v. State, 964 So.2d 839, 847 (Fla. 2d DCA 2007). In Knipp v. State, 67 So.3d 376 (Fla. 4th DCA 2011), this court rejected the State’s argument that by obtaining prescriptions in violation of section 893.13(7)(a)8., Knipp did not possess a valid prescription as a matter of law:

[NJothing in either sections 499.03(2) or 893.13(7)(a)8., Florida Statutes, eliminates the valid prescription defense to trafficking or possession of a controlled substance if the prescription is obtained in violation of the doctor shopping statute. That may have been the intention of the Legislature, but we are constrained by the rules of statutory interpretation to follow the plain language of the statute.

Id. at 380 (internal citations omitted).

We hold that Wagner’s alleged violation of section 893.13(7)(a)8. did not invalidate his prescription. Knipp. We further hold that Wagner’s subsequent decision to sell the contents of his prescription did not affect the validity of the prescription. As such, the trial court’s jury instruction misstated the law, misled the jury, and negated Wagner’s only defense. The State emphasized the lawful purpose “requirement” in its case in chief and during closing argument. As the jury could have improperly relied on the erroneous instruction, we hold that the State has not proved beyond a reasonable doubt that the error was harmless and did not contribute to the jury’s verdict. However, the erroneous instruction was not given as to the withholding from a practitioner charge. As such, we hold the error could not have contributed to the jury’s guilty verdict as to this charge, and thus affirm.

Affirmed in part, and Reversed and Remanded, in part, for a New Trial.

CONNER, J., and GILLESPIE, KENNETH L., Associate Judge, concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Jamilette HALLAC, Appellant, v. Jeffrey HALLAC, Appellee.
    No. 4D10-4450.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Rehearing Denied June 5, 2012.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., and Michael P. Walsh of Michael P. Walsh, P.A., West Palm Beach, for appellee.
   WARNER, J.

The wife appeals an attorney’s fees award, denying her a portion of her attorney’s fees and assessing a portion of the husband’s attorney’s fees against her, on the basis that she unreasonably refused a favorable settlement offer. We affirm the trial court’s denial of attorney’s fees to the wife after the date of the settlement offer, because Rosen v. Rosen, 696 So.2d 697 (Fla.1997), permits a trial court to consider results obtained in determining a section 61.16, Florida Statutes (2009), attorney’s fees award. We reverse the award of attorney’s fees to the husband, concluding that the wife’s failure to accept a reasonable settlement offer, without other vexatious conduct, does not justify an award of fees to the husband under Chapter 61.

In August 2009, the wife filed a petition to dissolve the couple’s seven-year marriage. The parties’ financial affidavits revealed that the husband was employed with Weston Capital Management and made in excess of $500,000 per year. The wife had no income. From the affidavits, the parties’ lifestyle matched the husband’s income. The earliest financial affidavits were incomplete as to the parties’ assets. In November 2009, the husband’s attorney sent a settlement offer with an asset valuation schedule attached, which would have left the wife with assets worth $95,000 and the husband with a negative marital net worth because of liabilities. The offer did not include the value of an offshore account or for Weston Capital, maintaining that neither were marital assets. The husband’s attorney also disclosed the husband’s participation in a “tax amnesty program” by reporting the offshore account to the IRS. This resulted in substantial tax and penalties as well as professional fees, for which the wife would be responsible if it were a marital asset. In addition to the property settlement, the husband offered to pay $12,000 per month in alimony for one year. In response, the wife’s attorney objected to several valuations of various assets, including the offshore account, noting that they had to be investigated.

In January 2010, the wife offered to divide the assets in accordance with her schedule, which would leave her with $230,000 in assets and the husband with $360,000 in assets. The offer included a lump sum alimony payment of $150,000, $8,500 per month in alimony for three years, and modest attorney’s fees. The husband counter-offered using the wife’s valuations of assets, but re-allocating the marital and non-marital properties, resulting in the wife receiving $239,000 in assets. Additionally, as to alimony, the husband offered either $200,000 in lump sum or $13,000 per month for two years. Finally, the husband offered $20,000 towards attorney’s fees. The wife rejected the offer, contending that some of the assets the husband classified as non-marital were marital, particularly the offshore account. She asserted that the husband should bear the responsibility of the tax liabilities and fees that resulted from his conduct. She counter-offered, splitting the assets and requesting $200,000 in lump sum alimony and $10,000 per month for two years. The husband rejected this offer and opted for a trial.

Throughout the course of settlement negotiations, the record reveals several motions to compel by the wife, because the husband did not provide discovery necessary to evaluate the assets. Namely, the wife moved to compel financial disclosure in November following the husband’s first settlement offer, which the court granted. The husband did not file a response. In March, after the final settlement offers, the wife again moved to compel discovery, seeking specific financial information on the parties’ various bank accounts, assets, and liabilities, and the court granted the motion less than a month before the April trial. The husband filed two responses with the requested information and filed an amended financial affidavit, depicting substantially less income than the previous affidavit.

The case proceeded to trial in April 2010. After hearing the evidence, the court entered a final judgment awarding the wife only $8,000 in bridge-the-gap alimony for nine months and rejecting the wife’s claim for rehabilitative alimony. Concerning equitable distribution, the court awarded the wife a net of $178,369. As to the offshore account, the court adopted the wife’s position that it was a marital asset but offset from its value a loan payable to the husband’s father. The court also offset from its value all of the tax penalties and legal fees associated with the tax amnesty reporting by the husband, thus rejecting the wife’s position that she should not be charged with these expenses. The court accepted the wife’s position that at least part of the husband’s interest in Weston Capital was marital, but its value was less than that originally advocated by the wife because the business was sold on the eve of trial. The court then discounted the husband’s share for “lack of marketability.” The wife did not appeal the final judgment.

Both the husband and the wife sought attorney’s fees. The wife moved for fees on the traditional grounds of need and ability to pay, noting the husband’s substantial income of greater than $500,000 and her non-existent income. The husband contended that the wife’s fees should be reduced because of the wife’s failure to accept his last offer of settlement, which was significantly better than anything she could have received at trial; the husband also requested that the wife be responsible for the fees he incurred after the date of his last offer.

At the hearing on fees, the court was provided with the various settlement offers. In addition, the wife’s accountant testified that the settlement offers kept changing because the valuations, especially as to the offshore account and jewelry, kept changing. He also noted that there was some difficulty in the case because of lack of discovery from the husband. In concluding the hearing, after listening to the testimony and the argument of both counsel, the judge noted that she didn’t think that the case had been over-litigated on either side, saying “it’s probably one of the more reasonable ones that I’ve seen in this division.”

The court’s order on fees found that the wife’s rejection of the husband’s last offer was unreasonable, because she could not have expected to do better at trial. The court explained that even adopting the wife’s characterization of the offshore accounts and the interest in Weston Capital Management as marital, she still could not have expected to receive as much as she was offered in settlement. In making this conclusion, the court determined that, using the wife’s figures, she could not have expected more than $141,000 in net assets, whereas the husband’s last offer was $439,000 in total. The court concluded that the wife had no rational reason to continue with the litigation after the offer. It therefore denied her attorney’s fees for time spent after the husband’s last offer and awarded the husband his attorney’s fees for time spent thereafter. This amounted to a net award in favor of the husband, which the court ordered paid from the bridge-the-gap alimony award.

The wife appeals the award of attorney’s fees, contending that the court abused its discretion in denying her attorney’s fees incurred after the husband’s January 29th offer of settlement and granting fees to the husband solely on the basis of her refusal to accept the offer. The husband, on the other hand, argues that the offer was so reasonable that the wife could not have done better at trial, making any litigation after the offer useless. Thus, he argues, pursuant to Diaz v. Diaz, 727 So.2d 954 (Fla. 3d DCA 1998) (“Diaz I”), quashed on other grounds, 826 So.2d 229 (Fla.2002) (“Diaz II”), and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), that the court did not abuse its discretion in its decision on attorney’s fees. We review the trial court’s order under an abuse of discretion standard. Glantz and Glantz, P.A. v. Chinchilla, 17 So.3d 711, 713 (Fla. 4th DCA 2009). Our analysis of the issues requires us to separate the denial of the wife’s fees and the award of the husband’s fees.

Denial of a Portion of Attorney’s Fees to Wife

While Florida law holds that a refusal to accept an offer to settle a divorce case is not a ground to deny all attorney’s fees, the refusal to accept settlement offers is a “relevant circumstance” that a court may properly take into consideration in determining Chapter 61 fees under Rosen v. Rosen.

Decided prior to Rosen, Aue v. Aue, 685 So.2d 1388, 1388 (Fla. 1st DCA 1997), involved a trial court’s denial of attorney’s fees to the wife because she was “unreasonable” in refusing to accept an offer of settlement from the husband. In reversing, the First District noted “there is no authority for denying attorney’s fees in dissolution cases solely for the failure to accept an offer of settlement.” Id. The court noted that “[i]n fact, section 45.061(4), Florida Statutes, specifically exempts dissolution proceedings from the offer of settlement statute.” Id.

Just after Aue, our supreme court decided Rosen, approving the Third District’s reversal of an attorney’s fee award to reconsider attorney’s fees in a modification proceeding based upon the “results obtained.” See Rosen v. Rosen, 659 So.2d 368 (Fla. 3d DCA 1995), quashed in part on other grounds, 696 So.2d at 703. The trial court had awarded attorney’s fees in a modification proceeding where the parties had been in litigation over various aspects of their divorce for sixteen years. In its opinion, the Third District reversed many benefits the trial court had awarded the wife and directed the court to reconsider the amount of the wife’s attorney’s fees award in light of the reduction of benefits to her.

The supreme court took jurisdiction of the case based upon a conflict between the districts as to whether a trial court could consider the “results obtained” in determining the amount of attorney’s fees pursuant to Florida Statutes. Rosen, 696 So.2d at 698. Explaining the ambit of section 61.16, the court said:

Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so.
* * *
We further find that a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16. Moreover, in situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, we find that the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.

Id. at 700-01 (emphasis added and footnote omitted).

Rosen did not discuss the refusal to accept a settlement as a ground for reducing fees or awarding fees to the offeror, and it did not consider Aue. The Second District followed Aue in Levy v. Levy, 900 So.2d 737 (Fla. 2d DCA 2005). There, the trial court refused to grant any attorney’s fees to the wife, primarily reasoning that her litigation conduct was “spurious” based on her refusal to accept the husband’s settlement offers, which included two offers that were “more favorable to the Wife than the provisions of the final judgment.” Id. at 747. As here, the wife also proposed counteroffers upon rejecting each of the husband’s offers. Id. Acknowledging that Rosen permitted consideration of all circumstances in determining an award of attorney’s fees, not merely the primary factors of need and ability to pay, the court still relied on Aue to conclude that a complete denial of attorney’s fees because of the wife’s failure to accept an offer of settlement was an abuse of discretion where the wife’s claim for permanent alimony in a short-term marriage under the circumstances of the case were not “spurious.”

In this case the court did not deny all attorney’s fees to the wife, just those incurred after the last settlement offer. Settlement offers are a “relevant circumstance[]” for a trial court to consider in setting a Chapter 61 attorney’s fee under the Rosen parameters. Rosen, 696 So.2d at 700. Judge Polen suggested as much in his special concurrence in Oldham v. Oldham, 683 So.2d 579, 581 (Fla. 4th DCA 1996), wherein he stated:

[I]n an appropriate dissolution case, ... once the issue of entitlement to attorney’s fees has been determined utilizing the established ‘need and ability to pay’ standard, the trial judge may consider whether litigation was unnecessarily prolonged by a party’s unreasonable refusal to accept an offer of settlement, in setting a reasonable attorney’s fee.

Because need and ability to pay remain the primary considerations for an award of attorney’s fee, a complete denial of attorney’s fees may still be an abuse of discretion, but Rosen allows a diminution of an award based upon the results obtained. We conclude that the trial court did not abuse its discretion in denying the wife a portion of her attorney’s fees.

Award of Fees to Husband

In addition to denying a portion of the wife’s fees, the court awarded fees to the husband on the rationale that the wife’s failure to accept the January 29th settlement offer was so unreasonable that litigation beyond the offer was baseless and without merit. This award cannot be justified under Rosen.

Although the language of Rosen indicates that spurious litigation behavior gives the trial court “discretion to deny ” attorney’s fees to a spouse, the Fifth District has interpreted Rosen as authorizing an award of attorney’s fees against a spouse for such conduct. Elliott v. Elliott, 867 So.2d 1198, 1201 (Fla. 5th DCA 2004) (citing Zanone v. Clause, 848 So.2d 1268 (Fla. 5th DCA 2003)). In Elliott, the trial court found that the husband excessively litigated the case and refused to comply with discovery, causing the trial court to award half of the wife’s attorney’s fees against the husband, even though the assets were evenly divided. The appellate court determined that Rosen permitted an award of fees payable to a spouse for overly litigating a case, but remanded for the trial court to make specific findings to support its conclusion of vexatious litigation. In Zanone, however, the court considered an award of attorney’s fees under the identical fee provision in the paternity statute and held that vexatious litigation practices do not abrogate a determination of ability to pay in order to justify an award of attorney’s fees based upon the statute. 848 So.2d at 1270-71. Thus, where the party against whom an assessment is sought does not have the ability to pay, it is error to assess fees against that party, even though he or she may have engaged in meritless litigation.

We disagree with Elliott to the extent that it suggests that Rosen can be applied to an award of attorney’s fees in favor of the spouse with the greater financial ability to pay. Rosen construed the statutory provision allowing attorney’s fees in family law actions, section 61.16. In examining the statute, the court concluded that a trial court can use results obtained, vexatious litigation, harassment, or other bad faith type conduct to deny attorney’s fees to a spouse otherwise entitled to fees based upon need and ability. Where, however, a spouse who has no “need” of fees seeks them from the spouse who has a lesser “ability” to pay, the primary criteria of the statute are not present. Therefore, as Za-none suggests, an award of fees cannot be supported by the statute.

Instead, fees awarded against a spouse who engages in excessive litigation, harassment, or bad faith are awarded “to avoid an inequitable diminution” of the assets of the other spouse. Mettler v. Mettler, 569 So.2d 496, 498 (Fla. 4th DCA 1990). Our supreme court has held that a trial court has the inherent authority to prevent “inequitable conduct ... [which] permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.” Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998). Such awards are rarely applicable and should be reserved for extreme cases in which a party litigates vexatiously and in bad faith. Using the inherent authority of the court to assess attorney’s fees requires that the court make an express finding of bad faith and include facts justifying the imposition of the award. Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002).

The husband relies primarily on Diaz I to support his claim to attorney’s fees. 727 So.2d 954. In Diaz I, the wife came into the marriage with substantial income and assets from her father in the form of a trust. The husband executed a prenuptial agreement waiving any claim to these assets. The husband was employed throughout the marriage as a career police officer. Because the wife took care of all of the household expenses, including the home which she owned, the husband was able to build up considerable retirement benefits. Ten years into the marriage, and after the birth of a child, the parties separated. Prior to filing for divorce, the wife offered to settle with the husband for child support well below the guidelines and with no equitable distribution of property, thus allowing the husband to keep his retirement benefits. The husband rejected the settlements. When the wife filed for divorce, the husband filed a counter-petition requesting permanent alimony.

After trial of the action, the court denied the husband’s claim for alimony and divided the husband’s retirement benefits between the parties. In a later order, the court ordered the husband to pay a portion of the wife’s attorney’s fees, finding that the husband exercised bad faith in the litigation, wasting the parties’ assets.

On appeal, the Third District upheld the trial court’s order on attorney’s fees. The court noted that the wife had made a very generous pretrial offer, which

under any reasonable analysis at the start of the case, it should have been clear that the husband could not do better, and most likely would do much worse, by litigating the case. Despite overwhelming odds of a litigation disaster, the husband rejected settlement, made no counterproposal, and embarked on an expensive and wasteful litigation strategy.

Id. at 956-57.

The court acknowledged the holding of Aue that the fact that the husband obtained a bad result in litigation did not in and of itself warrant an assessment of attorney’s fees against him, but “the award in this ease is not based simply on the poor result. Instead, the trial court analyzed the issues in the ease as they should have reasonably appeared at the outset.” Id. at 957.

In its order, the trial court also assessed some of the fees against the husband’s counsel, which the Third District also affirmed. Based upon conflict jurisdiction, the supreme court took jurisdiction to address the assessment of attorney’s fees against the attorney. Diaz II, 826 So.2d 229. The court determined that the trial court did not make a specific finding of bad faith sufficient to permit an award against the attorney based upon the inherent authority doctrine. “Pursuit of ‘long shot’ claims cannot form the basis for assessing attorneys’ fees against an attorney under the inherent authority doctrine.” Id. at 232. In doing so, the court specifically noted that it would not address the merits of the award of attorney’s fees against the husband, as it was not the basis of conflict jurisdiction. Id. at 233 n. 3. Nevertheless, the court allowed the trial court to reconsider the award against the husband, because of its ruling denying assessment against the husband’s lawyer.

This case, however, is distinguishable from Diaz I. First, unlike Diaz I, there was no presuit offer of settlement in this case. Second, the wife’s claims were not untenable. In this short-term marriage, she sought rehabilitative or bridge-the-gap alimony and an equitable division of the marital assets. Like Levy, on both issues her requests were not spurious, or even “long shots,” unlike the husband’s request for permanent alimony in Diaz. In fact, she recovered both rehabilitative and bridge-the-gap alimony in the final judgment, just not the amount she requested. Third, unlike the husband in Diaz the wife sought discovery of financial information which the husband was recalcitrant in supplying until several weeks before the trial. Fourth, the wife made several counterpro-posals, including one after the husband’s last offer, and the husband refused to negotiate further.

In short, from the evidence it does not appear, as it did in Diaz I, that the wife’s positions were unreasonable from the start. And it was the husband, not the wife, who refused to engage in further settlement negotiations, thus compelling both parties to prepare for trial.

The record does not reveal excessive litigation. In fact, the trial court commented that the lawyers in this case conducted themselves reasonably. The court did not find any other reason for the award of fees other than its conclusion that any litigation after the refusal of the offer was baseless. However, as the supreme court noted in Diaz II, merely pursuing a “long shot” claim should not be the basis of an award of attorney’s fees under the inherent authority of the court.

Here, the court has assessed attorney’s fees against a wife who at the time of the assessment had as her only income the bridge-the-gap alimony awarded, while the husband commanded an income in excess of $500,000. Because the primary factors under section 61.16 require need and ability to pay, the award of attorney’s fees against the wife and in favor of the husband cannot be justified pursuant to the statutory authority. Instead, the award must be authorized under the court’s inherent authority to prevent vexatious litigation. This case, however, does not provide the type of inequitable conduct present in either Diaz or the very rare cases where vexatious litigation is present.

In sum, the trial court abused its discretion in awarding fees to the husband to be assessed against the wife, because the refusal to settle the case in and of itself cannot be the basis for an award of attorney’s fees against the refusing party. There must be vexatious conduct or bad faith litigation, which was not present in this case.

For the foregoing reasons, we affirm the trial court’s award of reduced fees to the wife because of her failure to accept a favorable settlement. We reverse the award of attorney’s fees to the husband where no vexatious litigation has been shown.

DAMOORGIAN and CONNER, JJ., concur.

      . Notably, the trial court's order here failed to include the statutory finding under Rosen of the parties' respective needs and abilities to pay. Id. See also Von Baillou v. Von Baillou, 959 So.2d 821, 823 (Fla. 4th DCA 2007) (holding that "[t]he central inquiry under section 61.16 is whether one spouse has a need for fees and the other spouse has the ability to pay them”).


text:
    Dilcia OSORTO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Natixis 2007-HE2, Appellee.
    No. 4D10-3631.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Rehearing Denied June 5, 2012.
    Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.

      Heidi J. Weinzetl of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   POLEN, J.

Appellant, Dilcia Osorto, appeals the trial court’s final order granting summary final judgment through a final judgment of foreclosure. We find in favor of Osorto and hold that the trial court granted summary judgment prematurely where there were outstanding discovery requests. As such, we reverse and remand for discovery to be completed.

Deutsche Bank National Trust Company (“Deutsche Bank”) filed a foreclosure suit against Dilcia Osorto after she defaulted on a note and mortgage. Osorto responded by filing a motion to dismiss, alleging that Deutsche Bank lacked standing to bring the foreclosure action because it was not a party to the mortgage which was attached to the complaint. Osorto also alleged that Deutsche Bank did not prove Osorto would be protected against loss that may be incurred through “a claim by another person to enforce the instrument.” Finally, Osorto claimed that the note was a non-negotiable instrument and, therefore, could not be transferred by endorsement. Osorto also filed an answer and affirmative defenses. Her first affirmative defense provided that Deutsche Bank was not in possession of the original promissory note, thus, the action was barred. The second affirmative defense provided that a chain of ownership was not established and that Deutsche Bank never accounted for the missing original note, resulting in a lack of standing for Deutsche Bank to bring the action.

Deutsche Bank filed a motion for summary judgment arguing that, as mortgagee, it had the right to accelerate upon Osorto’s default and that enforcing the note would not affect the rights of other bona fide lenders or purchasers. A summary judgment hearing was held and, at the hearing, Deutsche Bank presented to the court the original note bearing a blank endorsement, along with the mortgage. The trial court entered final judgment of foreclosure, requiring full payment of the principal amount plus interest and costs. In the alternative, if the amounts were not paid, public sale would take place on March 22, 2011. After filing a motion for rehearing, but before a trial court ruling on the motion, Osorto filed this appeal.

“The standard of review of an order granting summary judgment is de novo.” Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). To be entitled to summary judgment of foreclosure, a “ ‘plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.’ ” Id.

Osorto argues that the parties were in the middle of discovery at the time the order granting summary judgment was entered. Specifically, Osorto contends that there were outstanding discovery responses as to the original note, mortgage and assignments of the subject note, and the mortgage. Specifically, Osorto argues that the court ordered Deutsche Bank to provide better responses to production of documents and, specifically, to provide the pooling and servicing agreement pinpoint cite. Because a better response was ordered, Osorto concludes that there was outstanding discovery when the motion for summary judgment was granted.

The trial court “should not ... entertain[ ] a motion for summary judgment until ... discovery [is] concluded.” Collazo v. Hupert, 693 So.2d 631, 631 (Fla. 3d DCA 1997). An order granting summary judgment while there is an outstanding request for production of documents is premature and the appellate court should reverse and remand for discovery to be completed. Henderson v. Reyes, 702 So.2d 616, 616 (Fla. 3d DCA 1997). However, if the incomplete discovery will not raise future disputed issues of material fact, summary judgment may be properly granted. Estate of Herrera v. Berlo Indus., Inc., 840 So.2d 272, 272 (Fla. 3d DCA 2003) (holding that summary judgment is proper where “future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling”).

Here, a motion to compel, which was granted by the trial court, required Deutsche Bank to provide answers for requests seven, nine, ten, and thirteen of Osorto’s requests for production, and to provide pinpoint cites for the pooling and servicing agreement. If the additional discovery would not yield new information, summary judgment would be proper. The motion to compel required Deutsche Bank to actually answer seven, nine, ten, and thirteen, and to provide Osorto with: any agreement containing any obligation to repurchase the loan; originals or best copies of exhibits attached to the pooling and servicing agreement which affect this loan; originals or best copies of all documents concerning the repurchase or reassignment of the loan from the buyer or assign-ee back to the original seller or assignor or to any predecessor of the buyer or assign-ee; and originals or best copies of records concerning the transfer or assignment of the loan.

While Deutsche Bank already provided the pooling and servicing agreement, the information that may be included in the answers to requests for production seven, nine, ten, and thirteen could potentially be material. Where the information contained in outstanding discovery could create genuine issues of material fact, summary judgment would not be proper. Therefore, the trial court erred in its entry of its order because summary judgment is considered premature until all discovery which may yield genuine issues of material fact is complete. As such, we reverse and remand this matter for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR and HAZOURI, JJ„ concur.


author: DAVIS, Judge.

text:
    Lee Whitcomb SOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1267.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.
    Rehearing Denied May 21, 2012.

      James Marion Moorman, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Lee Whitcomb Sowell challenges his convictions and sentences for two counts of capital sexual battery on a child under twelve and two counts of lewd and lascivious molestation on that same child, his daughter. He was sentenced to consecutive life terms on the capital counts and to a concurrent term of thirty years’ imprisonment on each count of lewd and lascivious molestation. We affirm Sowell’s convictions and sentences for the two counts of capital sexual battery but reverse his judgments and sentences for both counts of lewd and lascivious molestation because these counts were orally nolle prossed pri- or to trial.

Sowell claims, and the State concedes, that the two lewd and lascivious counts were orally nolle prossed at a pretrial hearing and should be vacated. See Bearden v. State, 481 So.2d 542 (Fla. 2d DCA 1986); see also Wilkins v. State, 90 So.3d 305, 2012 WL 178379 (Fla. 1st DCA 2012). The record supports this assertion, and there is nothing in the record to suggest that the charges were refiled.

Sowell also argues that because the evidence of the two lewd and lascivious charges was presented along with the evidence of the capital sexual battery charges, these capital convictions also must be overturned. We do not agree. Sowell did not object at trial to the introduction of this evidence, and the admission of evidence of related but nolle prossed counts is not necessarily even reversible error, let alone fundamental error. See Holland v. State, 432 So.2d 60, 61 (Fla. 1st DCA 1983) (“A nolle pros is ... unlike an acquittal and does not preclude the admissibility ... of evidence as to the accused’s involvement in the offense alleged in the nolle prossed information. In the present case the trial court therefore did not err by admitting evidence of appellant’s involvement in [the crime for which charges were nolle prossed].” (emphasis omitted)).

Affirmed in part and reversed in part.

ALTENBERND and VILLANTI, JJ., Concur.


author: LEWIS, J.

text:
    R.J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2820.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Rehearing Denied May 18, 2012.

      Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

R.J.R., a juvenile, appeals from an order finding guilt, withholding adjudication of delinquency, and sentencing her to probation on the charges of resisting an officer with violence and resisting an officer without violence. R.J.R. argues and we agree that under the facts of this case the trial court’s order finding guilt and sentencing her to probation on both charges violates the constitutional prohibition against double jeopardy. Accordingly, we reverse the trial court’s finding of guilt and sentence of probation on the charge of resisting an officer without violence. We affirm the finding of guilt and sentence of probation on the charge of resisting an officer with violence.

FACTS

At trial, the evidence established that Jacksonville Sheriffs deputies were conducting an investigation involving a shooting that occurred in the street, but that the victim of the shooting wandered into a residence on Potomac Avenue. At the request of Sergeant Apelgren, Officer Hold-erfield first made contact with R.J.R. when she was leaving the residence on Potomac Avenue. The officer was told to obtain R.J.R.’s contact information and to ask her to remain at the residence. This was because the officers believed R.J.R. had information regarding the identity of the shooter. R.J.R. did not want to provide her contact information, nor did she want to stay at the residence. However, she ultimately provided the officer with the name of “Jasmine Jones” and returned to the porch. The officer ran the name “Jasmine Jones” through the E-warrant system and received a positive hit for an African-American female, twenty years of age. The officer next informed the sergeant about the outstanding warrant for “Jasmine Jones.” The officer believed that when he made this statement to the sergeant, another person overheard him and went back to the porch to inform R.J.R. about the warrant.

At that time, R.J.R. stood up and went inside the residence. The sergeant told R.J.R. to stop and followed her to the front door. The officer went around the house, and the sergeant entered the residence through the front door. In the living room, the sergeant asked the occupants sitting on the couch where R.J.R. went. When one occupant called R.J.R. by a different name than the name she had given to the officer, R.J.R. entered the living room carrying a baby, and the sergeant told her that she needed to step outside. At that time, he intended to detain her to determine if there was an outstanding warrant for her arrest and to determine if she had provided false identification to law enforcement. While the sergeant was walking R.J.R. outside, she turned, looked at him, and elbowed him in his chest. The sergeant grabbed her and pushed her against the door, and another female approached R.J.R. to take the baby away. The officer returned to the front of the residence within forty-five seconds to a minute and observed the sergeant escorting R.J.R. down the stairs. R.J.R. tried to pull away from the sergeant when he attempted to handcuff her. The officer approached the sergeant and assisted him with detaining R.J.R. and with placing her in the patrol car. R.J.R. continued resisting while she was escorted to the patrol car.

Subsequently, R.J.R. was charged by petition with resisting an officer with violence pursuant to section 843.01, Florida Statutes (2010), and resisting an officer without violence pursuant to section 843.02, Florida Statutes (2010). The trial court found R.J.R. guilty as to both counts, withheld adjudication of delinquency, and sentenced her to probation on both counts. She now appeals.

ANALYSIS

The issue we must determine is whether R.J.R.’s adjudications and sentences for both offenses constitute a double jeopardy violation. We review a double jeopardy claim based upon undisputed facts de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). “The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense” arising from the same act or acts committed within the same criminal transaction. McKinney v. State, 51 So.3d 645, 647 (Fla. 1st DCA 2011) (internal quotations omitted). The governing law on whether a defendant should be punished for two crimes within a single criminal episode is section 775.021(4), Florida Statutes (2010), which provides as follows:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3.Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

In Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010), we explained that section 775.021 requires a three step inquiry to determine whether the defendant’s convictions violate the prohibition against double jeopardy. The first step is to determine if the charges at issue were based on acts which occurred within the same criminal transaction and/or episode. Id. If the charges arise from the same criminal transaction or episode, the second step is to determine if the charges were predicated on distinct acts. Id. Lastly, if the charges were not predicated on distinct acts and have occurred within the same criminal transaction, the third step is to determine if the charged offenses survive a same element test as defined by section 775.021, commonly referred to as the Blockburger test. Id.

Regarding the first step of the Partch analysis, the parties do not dispute that there was one single criminal transaction. We agree. Turning to the second step of the Partch analysis, we must ascertain whether the charges are predicated on distinct acts that occurred within a single criminal transaction. “[T]he relevant inquiry into whether acts are ‘distinct’ rests on factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts[,] and/or (4) a new criminal intent formed.” Partch, 43 So.3d at 761. The State asserts that R.J.R.’s charges are predicated on two distinct criminal acts. We disagree. Florida courts have consistently held that a continuous resistance to an ongoing attempt to effectuate a person’s arrest or detainment constitutes only one single instance of resisting an officer. See Wallace v. State, 724 So.2d 1176, 1180-81 (Fla.1998) (holding that a defendant could only be convicted of one offense of resisting an officer, regardless of whether more than one officer was involved, because the defendant’s actions were a “continuous resistance to the ongoing attempt to effect his arrest.”); Andrew v. State, 861 So.2d 528, 528 (Fla. 1st DCA 2003) (vacating the defendant’s conviction and sentence for resisting arrest without violence as the charges of resisting with violence and without violence “may only be seen as continuous resistance to [an officer’s] ongoing attempt to remove [the defendant] from his car and arrest him.”); Fogle v. State, 754 So.2d 878, 878-79 (Fla. 1st DCA 2000) (holding that a defendant could not be convicted of two counts of resisting an officer without violence “where his altercation with a number of officers was in the course of his continuous resistance to an ongoing attempt to effect his arrest.”); D.A.R. v. State, 22 So.3d 850, 852 (Fla. 4th DCA 2009) (holding that a juvenile could not be adjudicated delinquent without a violation of double jeopardy for both resisting arrest with violence and resisting arrest without violence arising out of a continuous episode); Goodman v. State, 801 So.2d 1012, 1014 (Fla. 4th DCA 2001) (holding that a defendant could not be convicted of both resisting arrest with violence and resisting arrest without violence arising out of a continuous single episode); Madison v. State, 777 So.2d 1175, 1176 (Fla. 5th DCA 2001) (“[A] continuous resistance to the ongoing attempt to effect a defendant’s arrest constitutes a single instance of resisting an officer.... ”).

Here, the State failed to establish that the acts occurred in different locations, that there was any temporal break between the two acts that would have enabled R.J.R. to reflect and form a new criminal intent for the second act, or that there were any intervening acts interrupting R.J.R.’s resisting arrest. Accordingly, even though more than one officer was involved in effectuating R.J.R.’s arrest, her conduct constituted one continuous act of resisting in a single episode.

Lastly, in regard to the third step of the Partch analysis, since the charges were not predicated on distinct acts that occurred within the same criminal transaction, we must determine whether resisting an officer with violence and resisting an officer without violence survive the Block-burger test. The Blockburger test is defined by section 775.021(4)(a), and provides that if each charged offense has an element that the other does not, then there is no double jeopardy violation. However, section 775.021(4)(b) sets forth three exceptions to this general rule: (1) offenses which require identical elements of proof; (2) offenses which are degrees of the same offense as provided by statute; and (3) offenses which are lesser offenses, the statutory elements of which are subsumed by the greater offense. Multiple convictions for offenses that fall within the statutory exceptions violate the constitutional provisions that protect against double jeopardy.

In Jones v. State, 764 So.2d 659, 660 (Fla. 1st DCA 2000), an analogous case, we applied the second statutory exception of section 775.021(4)(b) to find a double jeopardy violation. We held, in pertinent part, as follows:

In Sirmons v. State, 634 So.2d 153 (Fla.1994), and State v. Anderson, 695 So.2d 309 (Fla.1997), the supreme court held that a defendant cannot be convicted of two offenses which are merely degree variants of the same underlying core offense. In Anderson, the court noted that two offenses can be degree variants of the same offense if they share a common core offense, notwithstanding the fact that they may not be specifically identified as degrees of the same offense within the statutes. See Anderson, 695 So.2d at 311. Both offenses for which appellant was convicted share the same common core criminal conduct, resisting an officer. Appellant’s actions also constituted one continuous criminal act without any break. Under these circumstances, appellant could not be convicted of both resisting an officer with violence and resisting an officer without violence.

Jones, 764 So.2d at 660. The Fifth District, in another similar case, applied the third statutory exception of section 775.021(4)(b) to find a double jeopardy violation. Swilley v. State, 845 So.2d 930, 933 (Fla. 5th DCA 2003). The Fifth District held that “[sjeparate convictions are prohibited because the lesser offense of resisting without violence has elements which are subsumed by the greater offense of resisting with violence. Since both of the defendant’s convictions were based upon his ongoing attempts to avoid arrest they violate the defendant’s double jeopardy rights.” Id. Therefore, consistent with Jones and Swilley, under either exception, R.J.R. could not be found guilty and sentenced for both resisting an officer with violence and resisting an officer without violence. “When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.” Pizzo, 945 So.2d at 1206.

CONCLUSION

For the foregoing reasons, the trial court’s finding of guilt and sentence on the misdemeanor charge of resisting an officer without violence must be reversed. The trial court’s order is otherwise affirmed.

AFFIRMED in part, and REVERSED in part.

PADOVANO and WETHERELL, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . U.S. Const, amend. V; art. I, § 9, Fla. Const.