author: LAGOA, J. PER CURIAM. ROTHENBERG, J. PER CURIAM.

text:
    L.B., Appellant, v. The NAKED TRUTH III, INC., d/b/a Pleasure Emporium North, Appellee.
    No. 3D10-975.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Opinion on Denial of Rehearing Nov. 28, 2012.

      Michele K. Feinzig; Sheftal & Torres and Scott D. Sheftall, for appellant.
    Cole Scott & Kissane and Scott A. Cole and Alejandro Perez, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The Plaintiff/Appellant, L.B., appeals from a final judgment entered in favor of her employer, The Naked Truth III, Inc., on her claim for negligent security. We address two of the five issues L.B. raises on appeal as they are interrelated. However, because we are reversing and remanding for a new trial, we do not address the remaining issues raised on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

L.B. worked as a sales clerk at an adult retail store owned by The Naked Truth, III, Inc. (the “Store”). On December 25, 2007, L.B. worked the overnight shift from midnight to 8:00 a.m. for a coworker. Only one sales clerk was assigned to work this shift. The Store’s security included, among other things, cameras, both inside and outside the Store, which could be viewed on monitors; extensive indoor and outdoor lighting; a locked front door which the sales clerk could open by a buzzer; and a panic alarm which could be activated by pressing a button under the counter.

At about 5:30 a.m., L.B. buzzed in a male customer who then walked to the back of the Store where the movies and viewing booths were located. Suddenly, the male customer appeared at the cashier’s counter brandishing a gun. He ordered L.B. to give him the money from the register and the safe, and then directed L.B. to lie on the floor. He then raped her. After he left, L.B. pressed the panic alarm and called 911 on her cellular phone.

Investigations revealed that four prior armed robberies had occurred at the Store during the overnight shift, the last one only two months before the attack on L.B. None of these incidents involved a sexual assault. Jose McCray (“the assailant”), who lived about twenty-two miles from the Store, was identified as the assailant. L.B. did not know the assailant; however, a coworker, Xavier Powell, stated that about three days prior to the attack, the assailant had come into the Store and asked for L.B. The coworker told the assailant that L.B. no longer worked the overnight shift.

L.B. sued the Store alleging negligent security. Both parties retained experts to testify regarding the Store’s security. Plaintiffs expert, Rosemary Erickson, Ph. D., opined that the Store failed to implement sufficient security measures after the prior armed robberies and that the rape was a crime of opportunity that was foreseeable and preventable. Defendant’s expert, Gregg McCrary, testified that the attack was a “victim-targeted” crime which was unforeseeable and unpreventable by any security measures. He also testified that the security measures in place at the Store were reasonable.

Prior to trial, the judge denied L.B.’s motion to limit the testimony of McCrary, and to exclude Powell’s testimony regarding the assailant’s inquiry about L.B.

Ultimately, the jury returned a verdict finding no negligence. The trial court subsequently denied L.B.’s motion for a new trial, and this appeal followed.

II. ANALYSIS

A. The Trial Court Abused its Discretion in Admitting the Testimony of the Store’s Security Expert that this was a “Victim-Targeted” Crime

L.B. asserts that the trial court erred in admitting the testimony of the Store’s security expert, McCrary, that this was a “victim-targeted” crime. Specifically, L.B. asserts that McCrary’s testimony was speculative because it was based upon hearsay, and constituted inadmissible testimony as to “motive” pursuant to Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988). The Store also cites to Smithson as support for its position that the testimony admitted was proper.

In Smithson, Smithson, a mall theatre manager, was murdered while he attempted to make a night deposit at a mall bank. The surviving wife sued the mall owners alleging inadequate security. The jury returned a defense verdict, and plaintiff appealed. Plaintiff argued that the trial court erred in permitting defendant’s expert to testify regarding the robbers’ motive for choosing to rob Smithson. As in the instant case, the plaintiff contended that the expert relied on inadmissible and prejudicial hearsay testimony. There the expert interviewed the assailants and, in testifying, recited their explanation of the plan and motive for committing the crime.

The Smithson court stated:

The purpose of expert testimony is to “assist the trier of fact in understanding the evidence, or in determining a fact issue ...,” § 90.702, Fla. Stat. (1985), but “expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.” Husky Indus., Inc. v. Black, 434 So.2d 988, 992 (Fla. 4th DCA 1983). The witness was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the robbers’ motives for choosing Mr. Smithson as their target. The reasoning behind the cocon-spirators’ conduct is a matter beyond the scope of his expertise.

Smithson, 536 So.2d at 262 (citations omitted). L.B. points to this portion of the opinion in support of her argument that defendant’s expert testimony was inadmissible. L.B. contends that this Court already has determined that this type of evidence is not admissible in negligent security cases.

The Store distinguishes Smithson based on this Court’s statement that, “Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, ... the witness may not serve merely as a conduit for the presentation of inadmissible evidence.” Id. at 261-62 (citations omitted). The Store argues that here the expert was not merely a conduit for inadmissible evidence because Powell testified that the assailant asked for L.B. a few days before the attack. Therefore, although McCrary relied on this statement to arrive at his opinion, the statement was not introduced solely through the expert’s testimony.

The Store’s reading of Smithson, however, is incorrect. This Court in Smithson further held that “[wjhere the expert’s actual opinion parallels that of the outside witness, then the outside witness should be produced to testify directly.” Id. at 262 (quoting Sikes v. Seaboard Coast Line R.R., 429 So.2d 1216, 1222 (Fla. 1st DCA 1983)). Powell testified at trial that the assailant asked for L.B. a few days prior to the attack. As such, it was unnecessary for the security expert to opine on this matter.

Moreover, as previously noted, admitting McCrary’s testimony on the issue of whether this was a victim targeted crime is contrary to this Court’s ruling in Smithson. As in Smithson, McCrary “was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the [assailant’s] motives for choosing [L.B.] as [his] target. The reasoning behind the [assailant’s] conduct is a matter beyond the scope of his expertise.” Smithson, 536 So.2d at 262. Accordingly, based on the authority of Smithson, we find that the trial court abused its discretion in admitting McCrary’s opinion that this was an unforeseeable victim-targeted crime.

B. The trial court did not abuse its discretion in admitting the coworker’s testimony.

The final issue we address is whether the trial court abused its discretion in admitting Powell’s testimony. L.B. moved in limine to exclude, as hearsay, Powell’s testimony that three days prior to the incident the assailant came into the Store and asked if L.B. was working. The trial court agreed that the statement was hearsay because the Store was relying on the content of the question to prove that the assailant was in the Store specifically looking for L.B. However, the trial court permitted the testimony under section 90.803(3), Florida Statutes (2009), as a “state of mind” hearsay exception for statements offered to prove or explain subsequent conduct. At trial, Powell testified that:

A. Yes. I mentioned a gentleman who actually — he stood out because he did something that normal customers don’t do. He walked into the Store. He stopped in front of the ATM machine. The ATM machine is only three feet from the door. He asked me, was [L.B.] working, and I told him, “She doesn’t work this shift anymore,” and he made a face and turned around and walked out the door.

L.B. argues that the trial court abused its discretion in admitting Powell’s testimony of the assailant’s out-of-court inquiry because there was no statement of the assailant’s state of mind, or any intent, plan or motive, as required by section 90.803(3)(a) (2).

Section 90.803(3), Florida Statutes (2009), states:

(3) Then-existing mental, emotional, or physical condition.—

(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will.
2. A statement made under circumstances that indicate its lack of trustworthiness.

“Testimony concerning out-of-court statements of the declarant’s then existing mental or emotional condition, when offered to prove the truth of the matter asserted, are admissible under section 90.803(3).” Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 803.3a (2011 ed.). The only requirement is that the evidence be relevant to an issue in the case. Id.

The trial court relied upon D.M.L. v. State, 976 So.2d 670 (Fla. 2d DCA 2008), in reaching its conclusion that the testimony was admissible to prove the assailant’s state of mind. In that case, D.M.L. was found guilty of criminal mischief in connection with damage to Cory’s truck. The trial court excluded the testimony of D.M.L.’s girlfriend that she was on the phone with Cory’s girlfriend around the time of the offense, and that she heard Cory state in the background, “There he is.” The Second District reversed, finding not only that the testimony was relevant to D.M.L.’s defense, but that the testimony should have been admitted under section 90.803(3) because it proved Cory’s “state of mind, i.e., that he was looking for D.M.L., or to prove or explain Cory’s subsequent act of swinging the bat at D.M.L.” Id. at 674. We agree with the trial court and affirm on this issue.

Here, as in D.M.L., Powell’s statement that the assailant was in the Store asking for the victim three days before the assault was both relevant and admissible under section 90.803(3). First, the statement was relevant to the issue of foreseeability. Secondly, it was admissible under section 90.808(3) because it tends to prove the assailant’s subsequent action, i.e. in returning to the Store to look for or assault L.B. Consequently, the trial court did not abuse its discretion in admitting this evidence.

III. CONCLUSION

Accordingly, for the reasons stated above, we reverse the final judgment entered in favor of the Store, and remand for a new trial excluding McCrary’s testimony that the sexual assault was a “victim-targeted” crime. We affirm, however, the trial court’s ruling admitting Powell’s testimony.

Affirmed in part; reversed in part and remanded for a new trial.

ON MOTION FOR REHEARING

PER CURIAM.

The appellee’s motion for rehearing is denied.

CORTIÑAS and LAGOA, JJ., concur.

ROTHENBERG, J.

(dissenting).

Although I initially agreed with the majority’s decision to reverse the jury’s verdict in favor of the defendant, The Naked Truth, III, Inc. (“the store”), upon further reflection, I believe we erred. I would, therefore, grant rehearing and affirm the jury’s verdict.

The evidence introduced at trial is as follows. L.B., a sales clerk employed by the store, was working the “graveyard shift” on the night of December 25, 2007, when a man, who was later identified as Jose McCray (“the assailant”), entered the store, robbed L.B. at gunpoint, and raped her. It is undisputed that the establishment is well-lit, with regular and neon lighting throughout the store; there were sixteen cameras in operation at the time of the assault (some of the cameras record continuously, twenty-four hours a day, while others record when triggered by a motion sensor); there were signs inside the store informing patrons that they were being videotaped by cameras on the premises; the store utilized “drop safes” to limit the cash being held in the registers to an amount of less than $200; the sales clerks were able to view twelve of the sixteen cameras simultaneously via a monitor from a slightly elevated platform that also provided greater visibility of the store and its patrons; there was only one door (except for an emergency exit) which was locked; and patrons were only able to enter if the sales clerk “buzzed” them in. The store also contained several alarm systems, including a perimeter alarm, a fire alarm, a burglar alarm, police alarms, and panic alarms that could be triggered by pressing a fixed alarm button or activated remotely. Although L.B. was aware of these measures, and she was trained in how to use them, she testified that she did not have an opportunity to activate any of the alarms during the attack.

L.B. filed a complaint against the store claiming negligent security. In support of her claim, L.B. offered the expert testimony of Rosemary Erickson, Ph.D., who opined that this was a random but foreseeable crime of opportunity that could have been prevented if the store had utilized additional security measures, including employing an armed security guard and constructing a bullet proof barrier between the sales clerk and the store’s patrons. Dr. Erickson testified that because the store did not have these additional security measures in place, the store was negligent.

The store called several witnesses in direct response to these claims: another store employee, Xavier Powell (“Powell”); the lead detective; and an expert, Gregg McCrary. Powell testified as follows. The assailant entered the store three days prior to the assault on L.B. while Powell was working the late night shift. The assailant, who was not a regular customer, stood out because he did not act like a normal customer. The assailant merely walked into the store, asked for L.B. by name, and when he was told that she did not work that shift anymore “he made a face and turned around and walked out the door” and immediately exited the store. Unlike normal customers, the assailant did not “browse” around the store; did not look at any videos or purchase anything; and the entire “process” took twenty to thirty seconds. Further, when asked to describe the look on the assailant’s face when he was told L.B. no longer worked that shift, Powell testified the assailant appeared upset and disappointed.

Although the lead detective provided a detailed account of his investigation, the relevant portion of his testimony for purposes of this appeal is that the assailant lived in Broward County, twenty-two miles from the store.

The store’s security expert, Gregg McCrary, was offered and qualified by the trial court to render expert opinions on law enforcement and security matters. McCrary worked as an FBI agent for twenty-five years. He worked in the FBI’s Behavioral Science Unit for eight years; provided training and operations support; and trained FBI field agents in the investigation of sex crimes and violent crimes. During his tenure with the FBI, McCrary specialized in violent crimes, and based on his research, training, and experience, he became an expert in sex crimes and sex crime investigations. McCrary’s research was focused on the etiology of these crimes — to learn how and why sex crimes are committed in order to prevent them from being committed in the future. His research included interviewing killers, rapists, and child molesters, and studying the crimes they had committed.

McCrary’s expertise in the fields of violent crimes, sexual crimes, and crime prevention are well documented. He has taught at various law enforcement academies, including the National Police Academy of Spain, the National Police Academy of Portugal, the French National Police, and Scotland Yard. Since his retirement from the FBI, he has worked as a consultant, trained approximately 200 of the Fortune 500 companies on the prevention of workplace violence, trained companies on the prevention of robberies and other violent crimes, and presently teaches graduate level courses in forensic psychology and other criminal justice subjects at three national universities.

McCrary disagreed with the opinion rendered by L.B.’s expert — that the robbery and sexual assault of L.B. was a random act that was foreseeable and preventable, and that the store was therefore negligent by failing to provide additional security measures. McCrary testified that the evidence suggests L.B. was specifically targeted by the assailant, and victim-targeted crimes are difficult to prevent. McCrary explained that victim-targeted crimes are “some of the most difficult crimes to prevent” because the offender is more prone to take greater risks to reach the targeted victim.

In support of his conclusion, McCrary noted that the assailant came into the store three days before the assault, specifically asking for L.B. by name, and when he was told that L.B. no longer worked that shift he became upset, looked disappointed, and left the store without looking at or purchasing any items. McCrary also noted that the assailant did not live near the store — he lived in Broward County, twenty-two miles from the store. Importantly, the information McCrary relied on in forming his opinion that this was a victim-targeted crime was based on evidence admitted at trial, which the majority concedes was properly introduced.

McCrary testified that if this was a victim-targeted crime, it would have been difficult to prevent, and he provided as an example the shooting of Ronald Reagan in public by John Hinckley, despite the security measures in place to protect President Reagan. McCrary noted that in the instant case, the assailant had not been deterred by the locked door, bright lighting, cameras, monitors, signs warning patrons that they were being recorded, and the fact that there were other customers in the store at the time. Although the assailant may not have been aware that there were two other customers in the store when he first began the assault, when he later became aware that he and L.B. were not alone, he continued to assault L.B.

MY DISAGREEMENT WITH THE MAJORITY OPINION

The majority bases its reversal of the jury’s verdict on its conclusion that McCrary’s testimony runs afoul of this Court’s ruling in Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988). Although the majority opinion sheds little, if any, light as to how specifically McCrary’s testimony conflicts with Smithson., it appears the majority’s decision is based on its conclusion that, although McCrary was qualified to render an opinion on security matters and whether the store was negligent, he could not opine “on the assailant’s motives for choosing L.B. as his target.” The problem with this conclusion is that Smithson does not hold that a witness may never be qualified to render an opinion regai’ding an assailant’s motive, but more importantly, McCrary did not even attempt to testify as to the assailant’s motive in committing these crimes. In fact, McCrary specifically stated that he was “not a mind reader” and he had no idea what the assailant’s motive was in targeting and attacking L.B.

A. Smithson

In Smithson, this Court found that the trial court erred in permitting the shopping mall owner’s expert to offer testimony regarding the robbers’ motives for committing the robbery and the murder of the victim. This Court’s conclusion was based on two findings: (1) the expert was not qualified to testify as to the perpetrators’ motives for choosing the victim as their target; and (2) the expert’s opinion regarding motive was based on his interview with the perpetrators, who did not testify at the trial, and which was recounted by the expert in his presentation to the jury. In sum, this Court found the expert was not qualified to testify as to motive and that he was being used as a conduit for the introduction of inadmissible hearsay evidence.

Smithson is inapplicable to the instant appeal. McCrary did not opine as to the assailant’s motive for targeting L.B. He stated that he was unqualified to render such an opinion. He also was not used as a conduit for inadmissible hearsay evidence. As already noted, L.B.’s co-worker, Powell, testified that the assailant came into the store three days prior to the assault looking and asking for L.B. by name, and when the assailant was told L.B. no longer worked that shift, he looked upset and disappointed and immediately left the store. Powell’s testimony, coupled with the lead detective’s testimony that the assailant lived twenty-two miles from the store, the evidence that the assailant returned three days after inquiring about L.B., and the fact that the assailant did not simply commit a robbery, but raped the very person he had inquired about, suggested this was a victim-targeted crime— evidence the majority concedes was properly admitted at trial.

Thus, because McCrary did not offer any opinion as to the assailant’s motive in targeting L.B. or in committing the crimes, and McCrary was not used as a conduit for the introduction of inadmissible evidence, the admission of McCrary’s testimony does not conflict with any holding, finding, or ruling in Smithson. McCrary merely relied on the evidence properly admitted at trial in forming his opinions that: (1) these were victim-targeted crimes; (2) victim-targeted crimes are difficult to prevent; and (3) the store was not negligent in failing to provide additional security measures to protect its employees.

B. McCrary was qualified to render the opinions he gave

Although McCrary did not testify as to the assailant’s motive, as the majority incorrectly states, he did testify that in his expert opinion, he believed these were victim-targeted crimes; victim-targeted crimes are difficult to prevent; and the store was not negligent in failing to provide additional security measures to protect its employees. The issue, therefore, is whether McCrary was qualified to render these opinions.

The standard of review for the trial court’s decision concerning the qualification of an expert witness and the scope of his testimony is abuse of discretion. See Cnty. of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000); see also Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003) (“A trial court has wide discretion in areas concerning the admissibility of evidence, and such rulings will not be disturbed absent an abuse of discretion.”). The record demonstrates the trial court did not abuse its discretion.

As already detailed earlier, McCrary had over twenty-five years of training and experience working with the FBI in the area of sexual crimes and other violent crimes. He not only served for many years as a field agent in the investigation of these types of crimes, he specialized and became an expert within the department as to these types of crimes. McCrary did extensive research on the etiology of sex crimes and other violent crimes in order to learn how and why they are committed in order to prevent future commission of these traumatic crimes. In addition to these qualifications, McCrary has taught at a number of police academies here and abroad, including Scotland Yard, and he has consulted with and trained hundreds of companies, including 200 of the Fortune 500 companies, on the prevention of workplace violence, including robberies and other violent crimes. McCrary currently teaches graduate level courses in forensic psychology and another criminal justice subject at three national universities.

Based on McCrary’s extensive experience, as already detailed, no one could reasonably conclude that McCrary was unqualified to render an opinion as to whether, based on the evidence introduced at trial, these crimes were likely victim-targeted crimes; victim-targeted crimes are difficult to prevent; and whether the security measures employed by the store were reasonable and adequate. Thus, the trial court did not abuse its discretion in permitting McCrary to testify regarding these issues.

C. If McCrary’s testimony was improper, L.B.’s expert’s testimony was improper

L.B.’s expert testified that the attack upon L.B. was foreseeable, completely pre-veritable, and L.B. was the victim of a random, opportunistic sexual assault. L.B.’s expert, a forensic sociologist, who works with OSHA in developing security guidelines for late-night retail establishments, was no more qualified to render an opinion that this was a random, opportunistic, preventable attack, than McCrary was to render an opinion that this was a victim-targeted, difficult to prevent, attack. They were both also qualified to testify regarding the security measures taken by the store, whether the measures were reasonable and adequate, and whether the store was negligent in failing to take additional precautions to protect its employees.

When considering L.B.’s motion to limit McCrary’s testimony, the trial court specifically inquired as to what L.B. expected her expert to testify to, and determined that the testimony was admissible because McCrary was qualified to render opinions on security matters and procedures; he did not intend to testify as to the assailant’s motives; his testimony was being used to refute the testimony of L.B.’s expert; and McCrary’s testimony was not based on inadmissible hearsay. Thus, the record and the trial court’s ruling reflect that what we have here are two qualified experts who offered conflicting opinions after considering the same admissible evidence, thus presenting a question for resolution by the jury, which resolved the question in the store’s favor.

CONCLUSION

The premise upon which the majority bases its reversal — that the store’s expert, McCrary, improperly testified as to the assailant’s motive for attacking L.B. — is incorrect. The record conclusively refutes this finding. McCrary never testified as to motive, and, in fact, admitted that he was unqualified to opine as to motive. McCrary, however, did, offer testimony to refute L.B.’s expert’s opinion that the attack upon L.B. was a random, opportunistic attack that was preventable, and that the store was negligent in failing to provide additional security measures. McCrary testified that based on the evidence he reviewed, and which was properly admitted at trial through other witnesses, he believed the attack on L.B. was a victim-targeted assault that was difficult to prevent; the security measures in place at the store were reasonable and adequate; and the store was not negligent. No abuse of discretion has been shown because the qualification and scope of an expert lies within the sound discretion of the trial court, McCrary was clearly qualified to render the opinions he offered, and McCrary’s testimony differed from that of L.B.’s expert’s testimony only as to the conclusions he reached. Thus, the jury’s verdict should be honored, and the judgment should be affirmed.

I, therefore, respectfully dissent.

ON MOTION FOR REHEARING EN BANC

Before WELLS, C.J., and SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ and LOGUE, JJ.

PER CURIAM.

The appellee’s motion for rehearing en banc is denied.

      . Generally, admission of evidence is within the discretion of the trial court, and the trial court's ruling will not be disturbed on appeal absence a clear showing of an abuse of discretion. See, e.g., Davis v. Caterpillar, Inc., 787 So.2d 894, 897 (Fla. 3d DCA 2001); Cnty. of Volusia v. Kemp, 764 So.2d 770, 773 (Fla. 5th DCA 2000).

      . Additionally, a review of case law in other jurisdictions reveals that criminal behavior testimony in negligent security cases is generally disfavored. See Birge v. Dollar Gen. Corp., 2006 WL 5175758 (W.D.Tenn. Sept.28, 2006); Eghbalpour v. BP W. Coast Prods., 2007 WL 841264 (Cal.App. 2 Dist.2007); Vittengl v. Fox, 967 S.W.2d 269 (Mo.Ct.App.1998), and cases cited therein. These courts have given various reasons for excluding this evidence, including; lack of expertise, Egh-balpour, at *2 ("Mr. McGoey is a security expert, not an expert in the inner workings of the criminal mind.”); confusing or misleading to jury and speculative, Vittengl, 967 S.W.2d at 279 ("Expert testimony may well confuse or mislead a juiy when the expert is offering conclusions about a matter which is not a proper subject of expert testimony. In such a case, the jury may be swayed by the speculation of the witness.”); and lack of evidence of reliable methodology, Birge, 2006 WL 5175758.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Nelson VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2715.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2012.
    Nelson Viera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Nelson Viera seeks appeal from a September 20, 2011, order that failed to address the issues set forth in an underlying post-conviction petition filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The September 20, 2011, order on appeal denied relief based on a sentencing issue previously raised and determined on appeal. That issue was not raised in the Rule 3.850 petition that was filed by the defendant and docketed on July 7, 2011. In fact, the defendant in his July 7, 2011, petition acknowledges that the sentencing issue was resolved. The order on appeal, however, does not address the seven issues raised in the Rule 3.850 petition filed below.

Because the order on appeal does not address the facially sufficient issues raised in the defendant’s petition filed pursuant to Rule 3.850, and because the record now before us fails to make the required showing that the defendant is not entitled to the relief he seeks, we reverse the order and remand for consideration of the July 7, 2011, petition on the merits of the issues raised, either by an evidentiary hearing or other appropriate relief. If the trial court enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Reversed and remanded for further proceedings.

      . See Viera v. State, 35 So.3d 1005 (Fla. 3d DCA 2010) (remanding for resentencing).

      . The docket indicates that a "motion to vacate judgment and sentence” was filed on August 31, 2010. That motion was continued several times and was apparently carried through the calendar until September 20, 2011, well past October 4, 2010, the date the sentence actually was corrected by resentenc-ing pursuant to this Court's mandate. After a thorough study of the record and docket below, we can only conclude that the trial court ruled on the then-moot August 31, 2010, petition. There is no order in the record responding to the July 7, 2011, petition.


author: PER CURIAM.

text:
    Martha MIRANDA, Appellant, v. Reinerio ORTEGA, Appellee.
    No. 3D11-2770.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Paul A. McKenna, Miami, for appellant.
    John Elias, Miami Lakes, for appellee.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order under review is vacated and the cause remanded for a prompt, full and fair hearing before another judge on the issues presented. Motion for rehearing is dispensed with. This order shall become effective immediately.


author: WELLS, Chief Judge.

text:
    Titus HENLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-253.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2012.
    Carlos J. Martinez, Public Defender, and Kathryn Strobach, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   WELLS, Chief Judge.

Titus Henley appeals from an order revoking his probation. While we affirm the revocation, finding that there is competent, substantial evidence to support it, we reverse portions of the order on review because (1) the State has properly agreed that the order as written, in part, does not conform to the record below or to the lower court’s oral pronouncements and (2) the order is predicated in part on claims abandoned by the State below.

On June 24, 2008, Henley entered a plea of nolo contendere to charges of organized fraud, grand theft in the second degree, fraudulent use of identification, exploitation of the elderly, and forgery by use of a credit card in exchange for a sentence of five years of probation. In November of 2009, the State filed an amended affidavit of violation of probation stemming from new charges in three separate case numbers: F09-0042769 , M09-28211 and F09-16471A. Specifically, in case number F09-0042769, the State charged Henley with attempted burglary. In case number M09-28211, the State charged Henley with trespass of an occupied structure. And, in case number F09-16471A, the State charged Henley with: six counts of grand theft in the third degree (Counts I-VI); one count of fraudulent use or possession of personal identification with intent to fraudulently use (Count VII); one count of exploitation of the elderly/disabled (Count VIII); one count of grand theft in the second degree (Count X); five counts of cashing or depositing an item with intent to defraud (Counts XI-XV); and five counts of uttering a forged instrument (Count XVI-XX).

During the revocation hearing held on June 1, 2010, the State announced that it would not proceed on the attempted burglary and trespass charges in case numbers F09-0042769 and M09-28211. As to the remaining case, F09-16471A, the State announced that it would not proceed on Counts I-VIII, leaving only Counts X-XX as the basis for revocation of Henley’s probation. At the conclusion of the hearing, the trial court orally found that Henley had violated his probation on these remaining counts.

On June 4, 2010, the trial court held a sentencing hearing on the probation violation. At that time, the State asked the court to rescind its oral determination that Henley had violated Count X for grand theft in the second degree. Henley agreed to this request and the trial court orally sentenced Henley on Counts XI-XX in case number F09-16741A to forty-eight months in prison, to be followed by five years of probation. Despite the State’s abandonment of many of its claims against Henley and its request that Henley not be found to have violated Count X of F09-16741A, the written order entered below found that Henley had violated his probation, as specified in the amended affidavit of violation of probation, by having committed all of the offenses described in case numbers F09-0042769, M09-28211 and F09-16471A. This appeal ensued.

As the State properly concedes, because the order under review does not conform to the lower court’s oral pronouncement regarding Count X of F09-16471A, we must reverse that portion of the order and remand with instructions that it be stricken. See Salvatierra v. State, 691 So.2d 32, 32 (Fla. 3d DCA 1997) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.”). We also reverse those portions of the order predicated on the violations alleged in F09-0042769 and M09-28211, and on Counts I-VIII in F09-16471A, as those claims were all abandoned by the State before the revocation hearing commenced.

We do, however, find that competent, substantial evidence was adduced to establish that Henley willfully violated substantial conditions of his probation predicated on counts XI-XX in case number F09-16471A. See Harris v. State, 898 So.2d 1126, 1127 (Fla. 3d DCA 2005) (“[T]here must be evidence in the record to support a finding that any violation was willful and substantial.” (quoting Rubio v. State, 824 So.2d 1020, 1021 (Fla. 5th DCA 2002))); see also Thompson v. State, 994 So.2d 468, 471 (Fla. 3d DCA 2008) (“Hearsay evidence is admissible at probation revocation hearings as long as it is not the only evidence relied upon to revoke probation.”).

We therefore affirm in part and reverse in part and remand this matter with instructions.

      . The State notes in its Initial Brief that case number F09-0042769 is "most likely a scrivener’s error and should actually [have] been a different case number 'F09-13394.' ”

      . The State did not allege a violation of probation for the charge of obtaining a mortgage or promissory note by false representation (Count IX).


author: WELLS, Chief Judge. SCHWARTZ, Senior Judge

text:
    Alden HANSON, Appellant, v. FOWLER, WHITE, BURNETT, P.A., a/k/a Fowler, White Burnett, Hurley, Brannock, Strickroot, P.A., Appellee.
    Nos. 3D11-805, 3D10-1729, 3D10-929.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2012.

      Louis Arslanian, Hollywood, for appellant.
    Gaebe, Mullen, Antonelli & DiMatteo, Michael A. Mullen and Elaine D. Walter, Coral Gables, for appellee.
    Before WELLS, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Alden Hanson appeals from a final summary judgment in favor of his former lawyer and his law firm in this legal malpractice action. Because we agree that no basis exists to support his claim, we affirm the final judgment in their favor.

a. The parties’ claims in federal court:

This action has its genesis in a federal lawsuit brought by Captain Mark Rose for imposition of a maritime lien against a vessel owned by Hanson, for foreclosure of that lien, and for damages against Hanson for fraud and unjust enrichment. According to Rose’s complaint, Hanson promised Rose that if Rose served as captain of a vessel owned by Hanson, and made specified repairs to the vessel, Hanson would convey a controlling interest in the vessel to Rose. Rose further claimed that although he had served as captain and performed repairs to that vessel as agreed, Hanson had refused to reimburse him for the expenditures Rose had made in repairing the vessel and had disavowed his promise to convey a controlling interest in the vessel to Rose. Rose therefore sought an award of damages from Hanson for fraud and unjust enrichment and to impose a maritime lien against the vessel and to foreclose it:

21. The services, materials and repairs pi'ovided to the Vessel by Rose and through his direction give rise to a maritime lien against the Vessel pursuant to 46 U.S.C. s. 31342(a)(l)(1989).
22. Rose is entitled to foreclose that lien for non-payment.
Wherefore, Plaintiff asks this court to issue process in due form of law ... in causes of maritime and admiralty jurisdiction against the [vessel], her engines, tackle, appurtenances, etc., ... and that this Court order and adjudge that the Vessel be condemned and sold- to pay Plaintiffs demand....

Although the parties negotiated six separate agreements, and actually signed five, Rose did not allege a breach of any of these contracts.

Hanson answered the complaint, denying Rose’s allegations and raising sixteen affirmative defenses including a waiver and a set-off defense. More particularly, Hanson claimed that Rose had contractually waived his right to a lien against the vessel and that he (Hanson) was contractually entitled to a set-off against all amounts claimed by virtue of Rose’s breach of the parties’ agreements:

36. The Second Amended.Complaint fails to state a claim upon which relief may be granted and that [Rose] waived his right to a maritime lien against the vessel. By [sic] the execution of various contracts, releases or other documents in which he confirmed that he had no claim against the vessel.
44. The Claimant/Owner [Hanson] is entitled to a set-off for all amounts due and owing to him from [Rose] []as a result of [Rose’s] ... breach of contract. ...

Hanson also filed counterclaims seeking damages for, among other things, Rose’s purported breach of the parties’ Purchase and Sale and Bareboat Charter Agreements. Rose answered, but did not claim by way of affirmative defense or otherwise that Hanson had breached any of the parties’ contracts.

b. Resolution by the United States District Court:

In December 1997, following trial in the United States District Court for the Southern District of Florida, final judgment was entered. That judgment dismissed all claims raised by both parties with the exception of a portion of Count I of Rose’s claim for a maritime lien.

1. Hanson’s breach of contract counterclaims:

In entering this judgment, the District Court first addressed Hanson’s counterclaims for breach of contract. In doing so, the court considered not only the breach of contract claims against Rose actually alleged by Hanson, but also a defense not raised in the pleadings by Rose — that Rose could not be liable for breach because Hanson breached first by improperly removing him as captain of the vessel:

In Count I of his counterclaim, Hanson has alleged that Rose breached the June 1992 Purchase & Sales Agreement.
Rose has argued that he is not liable for any breach of the June 1992 Purchase & Sales Agreement because Hanson breached this agreement by removing Rose from the [vessel] during the Provincetown Whale Watch Venture.
Hanson has responded to this argument by pointing out that he had the right to remove Rose from the [vessel] by a majority vote pursuant to paragraph 10 of the Provincetown Joint Venture Agreement.

(Emphasis added).

Reading all three contracts executed by the parties on June 3, 1992 together, the District Court concluded that while the June 3, 1992 Provincetown Joint Venture Agreement allowed Hanson to remove Rose as captain of his vessel (with the agreement of one other partner in the venture), the June 3, 1992 Purchase and Sale Agreement allowed Rose’s removal only upon a determination of gross negligence. Because no gross negligence was either claimed or demonstrated, and because the Purchase and Sale Agreement stated that its terms governed over those of the other agreements executed that day, the District Court concluded that Hanson could not recover on his breach of contract counterclaims because it was he, not Rose, who had breached those contracts. Counts I and III of Hanson’s counterclaim for damages for breach of contract were therefore dismissed.

2. Rose’s claim for a maritime lien:

Having determined that Rose was not in breach of the parties’ agreements, the District Court next decided Rose’s entitlement to a maritime lien for wages and “necessaries.” While the court rejected Roses’ claim for wages, it decided that because Hanson had breached the June 3, 1992 Purchase and Sale Agreement (by wrongfully terminating Rose for reasons other than gross negligence), Rose was entitled to recover for “necessaries” under the June 3, 1992 Purchase and Sale Agreement. This would, however, be subject to the provisions of paragraph 9 of that agreement, which expressly stated that in the event Hanson breached and the vessel was sold, Hanson would be entitled to the first $375,000 from its sale:

As mentioned above, the Court has found that Hanson breached the June 1992 Purchase & Sales Agreement. Under paragraph 9 of that agreement, Rose was entitled upon a default bg Hanson, to make a claim against the [vessel] for work and or repairs which Rose performed to improve the [vessel]. These payments were to be made to Rose from a sale of the [vessel] after Hanson received the first $375,000 from that sale.

(Emphasis added).

The District Court next determined that Rose was not entitled to recover the full amount of the lien he might otherwise claim under paragraph 9 of the Purchase and Sale Agreement, first because Rose had contractually waived his lien rights prior to May 1993 when he executed the 1993 Arcadian Agreement, and second because under the Arcadian Agreement Rose was entitled to compensation only if profits were recognized and none were:

This claim would have been valid had Rose not subsequently executed the Arcadian Operating Agreement. Under paragraph 4 of that agreement, Rose explicitly waived all claims against the [vessel up to the date that agreement was executed] and Hanson. In addition, in paragraph 3(b) of the Arcadian Agreement Rose agreed that any payments for work performed on the [vessel] would be paid from the profits of the Arcadian Whale Watching Venture.... No payment is due under this paragraph because the Arcadian Whale Watching Venture did not produce any profit.... Having waived all other claims against the [vessel] and Hanson, Rose cannot succeed on Count I of his complaint as to any maritime lien that arose before May 16,1993.

Based on these findings, Rose was awarded a maritime lien in the amount of only $15,955.81 for expenditures made after May 16,1993.

Finding no merit in any of the other claims raised by the parties, they were dismissed, and judgment was entered in the amount of only $15,955.81:

In light of the above, it is

ORDERED AND ADJUDGED as follows:

1. Counts I — III of the Verified Second Amended Complaint are hereby DISMISSED, except with respect to the portion of Count I that represents a lien for necessaries that arose on or after May 17,1993.
Pursuant to this lien, Rose is entitled to a judgment in the amount of $15,955.81.
2. Counts I — IV of the Counterclaim are DISMISSED.

Rose appealed and Hanson cross appealed from this judgment.

c. “Re”-resolution by the 11th Circuit Court of Appeals:

On appeal, the United States Court of Appeals for the Eleventh Circuit addressed three issues, which it stated as follows:

(1) whether the district court erred in finding that Rose waived his maritime liens that accrued prior to May 16, 1993 (“waiver issue”);
(2) whether Hanson is entitled to the first $375,000.00 from the sale of the [vessel] pursuant to the June 3, 1992 purchase agreement (“sale issue”); and
(3) whether the district court erred in awarding $15,955.81 for a maritime lien that arose after May 16,1993 (“damages issue”).

Rose v. M/V “Gulf Stream Falcon,” 186 F.3d 1345, 1348 (11th Cir.1999).

The Eleventh Circuit resolved only the first of these issues. With regard to that issue, the court concluded that the 1993 Arcadian Agreement did not waive Rose’s right to secure a lien for services predating that agreement as the District Court concluded. Rose, 186 F.3d at 1351 (“In sum, we see nothing in the language of [the Arcadian Agreement] which suggests that Rose waived his maritime lien on the [vessel]. Accordingly, we conclude that the district court erred in finding waiver.”). The Circuit Court refused to consider Rose’s second argument that Hanson was not entitled to the first $375,000 from the sale of the vessel, leaving that determination intact. And, in light of its ruling on these first two issues, the Circuit Court saw no need to address the third issue on damages and remanded the matter to the District Court to recalculate the amount of the maritime lien due.

d. “Re-re” resolution by the United States District Court on remand:

On remand .the District Court did, in part, precisely what the Eleventh Circuit mandated. It recalculated the amount of the maritime lien absent consideration of any waiver on Rose’s part. It failed, however, to accord the $375,000 offset due to Hanson as adjudicated in the original judgment and left untouched by the appellate court.

This order was summarily affirmed on appeal.

e. Hanson’s claims here:

Following the final appeal in the federal courts, Hanson brought this action against the attoimey and the law firm that represented him in the federal action. As pertinent here, he claimed that they were negligent in failing to raise a set-off defense to Count I of Rose’s complaint for a maritime lien that would entitle him to the first $375,000 in proceeds from the sale of the vessel as provided by paragraph 9 of the June 3, 1992 Purchase and Sale Agreement. The parties ultimately agreed that this claim could be resolved as a matter of law on summary judgment upon resolution of three issues:

1. Whether Hanson’s entitlement to the first $375,000 from the sale of the vessel was an affirmative defense;
2. Whether Hanson’s lawyer raised, argued, and/or pled Hanson’s entitlement to the first $375,000 from the sale of the vessel as an affirmative defense in the federal proceedings; and
3. Whether, assuming that the lawyer failed to raise, plead, and/or argue Hanson’s entitlement to the first $375,000, such failure was a good faith tactical decision protected by the doctrine of judicial immunity.

With regal'd to the first issue, the court below found that Hanson’s entitlement to the first $375,000 from the sale of the vessel was a valid affirmative defense to Rose’s claim of maritime lien under a federal statute, 46 U.S.C. § 31305, providing for subordination of lien rights. As to the second issue, the court below determined that while the lawyer had not specifically raised Hanson’s entitlement to such sum as an affirmative defense, there was “no doubt” that the issue of such entitlement was ultimately raised, argued, and actually determined in Hanson’s favor by the federal District Court. Therefore, as to the third issue, the court below found that when the Eleventh Circuit remanded the matter for recalculation of Rose’s maritime lien “no one could have expected that Judge Graham would in effect recede from his original ruling ... and not recalculate the maritime lien under the findings ... which said that Rose had a lien subject to Mr. Hanson receiving the first $375,000 from the sale.” And, based on the totality of the circumstances — including the claims and counterclaims actually pled, as well as the matters actually tried in the federal court — the court below found that Hanson’s lawyer and his firm were entitled to judgmental immunity under Crosby v. Jones, 705 So.2d 1356 (Fla.1998).

As an initial matter, we find that the doctrine of judgmental immunity has no application in this case. This doctrine applies in instances where the attorney makes “[gjood faith tactical decisions or decisions made on a fairly debatable point of law.” Id. at 1358. In the instant matter, Hanson lost in federal court on remand not because of any tactical decisions on his lawyer’s part, but because the District Court inexplicably refused to rely upon a prior ruling on an issue that had been raised by the parties, tried by consent at a bench trial, and left untouched by the appellate court. Thus, in this case, no tactical decision and therefore no judgmental immunity are involved. That being said, we nonetheless find that the lawyer and his firm are entitled to a judgment in their favor as a matter of law. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999) (finding that “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record”).

As the court below in this case confirmed, examination of the record in the federal proceeding demonstrates that the issue of Hanson’s entitlement to the first $375,000 from the sale of the vessel under paragraph 9 of the June 3, 1992 Purchase and Sale Agreement was raised, argued, and actually ruled upon in Hanson’s favor by the District Court in its original order. The Eleventh Circuit left that ruling undisturbed, refusing to address it. On remand, the District Court should therefore have enforced its earlier ruling that, while “Rose was entitled ... to make a claim against the [vessel] for work and or repairs which Rose performed to improve the [vessel] ... [tjhese payments were to be made to Rose from a sale of the [vessel] after Hanson received the first $375,000 from that sale." (Emphasis added). It did not.

On this record, we are constrained to agree with the assessment of the court below that no one could have anticipated what the District Court ultimately did. More to the point, it was the District Court’s declination on remand to apply its prior determination — which had become final after the Circuit Court left it intact and remanded only for recalculation of the lien amount — and not any failure or negligence on Hanson’s lawyers’ part that was the cause of Hanson’s loss. See Law Office of David J. Stern, P.A. v. Sec. Nat'l Serv. Corp., 969 So.2d 962, 966 (Fla.2007) (”A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 8) the attorney’s negligence as the proximate cause of loss to the client.” (quoting Sec. Nat’l Serv. Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934, 936-37 (Fla. 4th DCA 2005))); see also Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984) (finding that the District Court erred by reexamining an issue that went beyond the limited scope of the Circuit Court’s instructions on remand). We are, therefore, unable to determine that “but for” these lawyers’ alleged negligent conduct, Hanson would have obtained some other favorable result in the federal proceeding. See KJB Vill. Prop., LLC v. Craig M. Dorne, P.A, 77 So.3d 727, 730 (Fla. 3d DCA 2011) (“If the client cannot show that it would not have suffered harm ‘but for’ the attorney’s negligence, the client will not prevail.”); Tarleton v. Arnstein & Lehr, 719 So.2d 325, 328 (Fla. 4th DCA 1998) (“To prevail on the malpractice claim, the client has to prove that she would have prevailed on the underlying action but for the attorney’s negligence.”). Under the circumstances, no legal malpractice was or could be demonstrated.

Accordingly, and because we find no merit in the issues raised in these consolidated appeals, we affirm the orders on appeal in all respects.

Affirmed.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

In this case, it is established beyond reasonable dispute that (a) that the appel-lee law firm’s client lost a claim for $375,000 to which he was entitled if the issue had been pled below, solely because his lawyer did not do so and that (b) the failure specifically to raise the issue by pleading it in any form, as to which no legal excuse, avoidance or explanation is even suggested, fell below the accepted standards of professional conduct in the prosecution and defense of litigation. See Aramarine Brokerage, Inc. v. Hall, Estill, Hardwick, Gable, Golden & Nelson, 95 A.D.3d 464, 944 N.Y.S.2d 499, 500 (N.Y.App.Div.2012) (holding that client stated cause of action for legal malpractice alleging that counsel’s failure to address ruling in first appeal resulted in client’s inability to defend against counterclaim). To my mind, these facts demonstrate the existence of each element of a legal malpractice claim — professional negligence, causation and damages — see Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36, 39 (Fla.2009), with the result that liability appears as a matter of law.

The majority’s conclusion to the contrary is, I believe, based upon the idea that the law firm is insulated from liability by what it apparently deems “intervening causes” contained in the particular history of the litigation in the federal district court and court of appeals. Thus, it concludes after a meticulous (if unnecessary) dissection of that litigation that no proximate causation can be demonstrated because “no one could have anticipated what the District Court ultimately did[.]” slip op. at 14. I believe this reasoning is flawed. This is so primarily because the court overlooks or fails to consider basic principles of legal causation which, when properly applied, require a different result. This is established that (a) “a tortfeasor need not be able to foresee — as it is necessarily impossible to foresee — the exact concatenation of events which has in fact ended in damage to another[,]” K-Mart Enters. of Fla., Inc. v. Keller, 439 So.2d 283, 286 (Fla. 3d DCA 1983), review denied, 450 So.2d 487 (Fla.1984), so long as the harmful result falls within the so-called zone of risk created by the defendant’s negligence. See McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992); Vazquez v. Lago Grande Homeowners Ass’n, 900 So.2d 587 (Fla. 3d DCA 2004); Keller, 439 So.2d at 286, and that (b) when the failure to avoid an “intervening event” is the very basis of tort liability, the fact that the act actually takes place cannot constitute an “intervening” cause which protects the tortfeasor from liability. See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, 101 (Fla. 3d DCA 1980). These rules should have been controlling in this case.

It is obvious that the reason that a lawyer should plead an existing claim is to avoid the possibility that the claim will otherwise be deemed unsuccessful on that ground alone, as waived or abandoned. And since that unhappy result may occur only by a court ruling to that effect, the ruling itself cannot be a cognizable “intervening cause.” This is true regardless of the precise manner in which that ruling came about. When the majority apparently believes that the eventual and controlling adverse order of the district court, Rose v. M/V “Gulf Stream Falcon,” No. 96-13-Civ (S.D.Fla. Apr. 21, 2000), which followed an initial reversal by the court of appeals, Rose v. M/V “Gulf Stream Falcon,” 186 F.3d 1345 (11th Cir.1999), and was itself affirmed by the Eleventh Circuit, Rose v. M/V “Gulf Stream Falcon,” 250 F.3d 749 (11th Cir.2001) (table), could not reasonably have been anticipated. I think that it is basically wrong for us to third-guess the federal courts by holding, in effect, that what must be deemed a correct resolution of the case. But even if, on some theoretical level of analysis, the majority is right in finding that the federal decision was wrong, the court is still wrong about the effect of the underlying decision. This is so because a lawyer’s skillfulness in pleading or in the draftspersonship of documents in order to avoid even the possibility of a lack of clarity which may be resolved only by expensive and unnecessary litigation, or even worse the complete loss of the client’s case even by “actual” judicial error, which, as shown by the existence of appellate courts, is not unknown. See Lombardo v. Huysentruyt, 91 Cal.App.4th 656, 110 Cal.Rptr.2d 691, 701 (2001) (“As an abstract principle, it is always foreseeable that a trial court will err, as evidenced by the existence of appellate courts.”). But this must be the first case in which the majority view that it is unforeseeable that an appellate court charged with correcting errors has instead approved an adverse result. In other words, since the underlying decision, “right” or “wrong,” was, by operation of law legally caused by the defendant’s negligence, his malpractice must result in the imposition of liability.

Several cases similarly apply these rules to malpractice cases such as this. See Skinner v. Stone, Raskin & Israel, 724 F.2d 264, 266 (2d Cir.1983) (holding that “unless the trial court’s mistake was a superseding, rather than a contributing cause of the defective default judgment, [defendant attorneys] may be held liable if their negligence was a proximate contributing cause”); Lombardo, 110 Cal.Rptr.2d at 702 (holding, inter alia, that attorneys would not be liable for malpractice “only if probate court’s mistake could be viewed as a superseding cause ... [and concluding] that it could not, because there was evidence that the probate court’s order was foreseeable”).

As the decisions have held, legal malpractice cases arise from faulty or nonexistent pleading or imprecise drafting, even when the position in question is ultimately upheld by the courts when this occurs only after burdensome proceedings which the lawyer was hired to obviate. See First Interstate Bank of Denver v. Berenbaum, 872 P.2d 1297, 1300 (Colo.Ct.App.1993) (stating that an attorney has a duty to his client to anticipate reasonably foreseeable risks such as litigation caused by the inclusion of a provision in an agreement and that “the question remains whether reasonably prudent attorneys should have foreseen that the likely result of its inclusion would be litigation”); accord Temple Hoyne Buell Found, v. Holland & Hart, 851 P.2d 192, 199 (Colo.Ct.App.1992) (same). This case, in which, depending on how one likes to put it, the ultimate catastrophe has occurred or the worst case scenario has played itself out in the loss of an otherwise meritorious and valuable position, presents an a fortiori situation. For these reasons, I believe that the wrong party won this case.

      . This appeal has been consolidated with the appeal of a final judgment on the law firm’s proposal for settlement, and with the appeal of a final judgment on the law firm's counterclaim.

      . The six contracts identified in the first final judgment entered in the United States District Court are: (1) March 10, 1992 Purchase and Sale Agreement — unsigned; (2) June 3, 1992 Purchase and Sale Agreement — signed; (3) June 3, 1992 Provincetown Whale Watching Joint Venture Agreement — signed; (4) June 3, 1992 Bareboat Charter Agreement — signed; (5) August 21, 1992 Bareboat Charter Termination Agreement — signed; and (6) May 16, 1993 Arcadian Agreement — signed.

      . In doing so, the court stated:

        Initially, the Court finds that the three agreements dated June 3, 1992, must be read together as part of the single, overall Provincetown Whale Watching Joint Venture. The Court is convinced that these three agreements should be read together because (1) they were executed on the same day; (2) they are functionally intertwined; (3) they all dealt with the same transaction, i.e., The Provincetown Whale Watching Joint Venture; and (4) The June 1992 Purchase & Sales Agreement made direct reference to the Bareboat Charter and The Prov-incetown Whale Watching Joint Venture Agreement.

      . According to the District Court's decision, "necessaries” includes costs for "repairs, supplies, towage, and the use of a dry dock or marine railway.”

      . Paragraph 9 of the June 1992 Purchase and Sales Agreement provided:
      In the event of default by Hanson, Rose shall have the right to assert a claim against the Vessel for any work and/or repairs which Rose has performed to improve the vessel. Payment of said claims shall be made from the sale of the Vessel, such sale to occur as soon as possible after default, with Hanson guaranteed the first Three Hundred Seventy-Five Thousand Dollars ($375,000), and the balance above that amount applied toward Rose’s verified expenses incurred in modifying the vessel, excluding Mark Rose’s time. These expenses to be verified by receipts approved by Alden Hanson, which approval shall not be unreasonably withheld. Any amount remaining after payment to Hanson, and reimbursement to Rose, shall be divided equally between Hanson and Rose.

      . This included Rose's claims for fraud (Count II) and unjust enrichment (Count III), and Hanson’s claims for conversion and wrongful arrest (Counts II and IV of the counterclaim).

      . This decision was, as best we can discern, premised on three determinations. First, as the Circuit Court noted, Hanson’s breach of contract claims were not adjudicated, but were dismissed. Second, because the judgment below turned on the issue of waiver under the 1993 Arcadian Agreement and not on breach of the 1992 Purchase and Sale Agreement, the District Court had made no findings as to the parties' rights and obligations upon a breach:
      Because the district court primarily based its ruling on the waiver issue, the district court did not make a finding as to whether Hanson was entitled to the sales proceeds. Further, we note that the district court dismissed Hanson’s counterclaim for breach of contract and never reached the issue of the parties’ rights under the June 3, 1992 purchase agreement. Accordingly, we need not address this argument.

        Id. (footnote omitted).
      Third, and most significantly, the Circuit Court expressly stated that it was refusing to address the issue because “Rose failed to raise it in the district court.” Id. (emphasis added).

      . In the final summary judgment order, the trial court considered the second question before the first. We have reordered the issues in this opinion for sake of clarity.

      . In their renewed motion for summary judgment, the lawyer and his firm extensively argued that the issue of Hanson’s entitlement to the first $375,000 upon sale of the vessel had been raised, argued and tried by consent before the District Court. See Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So.2d 1311, 1315 n. 3 (Fla. 3d DCA 1985) (recognizing that the "right for the wrong reason” appellate maxim applies to summary judgment proceedings where the issue was raised in the motion for summary judgment); see also Heath v. Bear Island Homeowners Ass’n, Inc., 76 So.3d 39, 40 (Fla. 4th DCA 2011) (affirming summary judgment in favor of the appellee/defendant upon concluding that the trial court was correct "albeit for the wrong reasons,” citing Dade County School Board v. Radio Station WQBA, 731 So.2d 638 (Fla.1999)).

      . Indeed, in the District Court’s original order, the court accepted Rose's evidence and argument that Hanson had breached the January 3, 1992 Purchase and Sale agreement by terminating Rose as captain of the vessel for reasons other than gross negligence. The court used Hanson's breach as the basis not only for dismissing Hanson’s counterclaims, but also, upon specific reference to paragraph 9 of the agreement, as the basis for determining that Rose had a valid lien claim for necessaries. But for the court's further determination (later reversed on appeal) that Rose had waived his claim of lien under the 1993 Arcadian Agreement, the court's finding as to paragraph 9 would have carried the day and the lien amount would have been calculated with respect to that finding.

      . The appellees have referred to the necessity of raising the claim in an "affirmative defense.” Actually, the proper method was by asserting a separate, distinct claim to the $375,000 in the appellant’s counterclaim. Since the appellees did not mention the claim in any place at all, the distinction makes no difference.

      . Like all appellate courts, the Eleventh Circuit is right because it is last.


author: FERNANDEZ, J.

text:
    Erich NOLTING, Appellant, v. Christopher M. SWARTZ, Appellee.
    No. 3D11-3263.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2012.
    Hershoff, Lupino & Yagel, Tavernier, and Russell A. Yagel and Jessica L. Roth-enberg, for appellant.
    Wayne Kruer, Key West, for appellee.
    Before SUAREZ, CORTIÑAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

We reverse the order on appeal because the trial court had no jurisdiction to enter it during the time in which the subject of that order was under review before this Court.

Reversed.


text:
    Derrick McPHEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1697.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2012.

      Joseph W. Gibson, Miami, for appellant. Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER and EMAS, JJ.
   SUAREZ, J.

Derrick McPhee appeals from his conviction and sentence, following a jury trial, for two counts of sexual activity with a child by a person in custodial authority, and two counts of unlawful sexual activity with a minor. We affirm.

McPhee was charged with having sexual contact with a 17-year-old girl at a school for mentally challenged children while employed as a teachers’ aide at the school. McPhee admitted to police during a post-Miranda interview that he had sexual contact with the victim. He later recanted his confession, alleging that it was coerced. On appeal, the defendant raises four issues, none of which have merit.

McPhee first claims that the trial court committed fundamental error by not striking the entire jury panel, after one potential juror commented during the trial court’s voir dire that she thought the defendant looked like someone who had molested her younger sibling years earlier. McPhee attempts to characterize the one venire member’s passing comment as so thoroughly poisonous that the entire panel should have been stricken by the trial court. The defense, however, never objected at the time of the comment, and never moved to strike the panel once jury selection was complete. Having reviewed the transcript, and reading the comment in context, it is clear that the defendant was never implicated as the person who had committed the offense years earlier. Jury selection was uneventful, proceeded without any argument, and the jury was chosen and sworn without objection. We find this issue to be without merit. See Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (holding that preservation of a challenge to a potential juror requires more than one objection, and the objecting party must renew and preserve the objection before the jury is sworn); see also Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (noting that these requirements exist so that “[t]he defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial”); Martinez v. State, 655 So.2d 166 (Fla. 3d DCA 1995) (finding no prejudice where counsel failed to object to perceived juror bias, where record revealed no bias).

The defendant next accuses the prosecutor of misconduct when, in closing argument, he once referred to the defendant as a pedophile. The defense did not object, and thus McPhee attempts to characterize the comment as fundamental error. Spencer v. State, 842 So.2d 52 (Fla.2008) (holding that in order for an error to be fundamental and justify reversal in the absence of a timely objection, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error). The prosecutor made the comment following a review of the facts, which set forth the defendant’s sexual encounter with the young mentally-handicapped girl. The prosecutor only used the word once. The defendant has not shown that the one, isolated comment resulted in prejudice sufficient to undermine the outcome of the case. We conclude that it is not fundamental error.

McPhee next asserts that the trial court erred by disallowing evidence of the victim’s prior false accusations of sexual abuse. The defense sought to introduce this evidence to show the victim’s prior sexual knowledge. The trial court properly disallowed the evidence. Section 90.405(2), Florida Statutes (2008), provides that, “[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.” Here, the victim’s character was not an essential element of the defense or charge. See Pantoja v. State, 59 So.3d 1092, 1097 (Fla.2011) (holding that statute governing use of criminal convictions for impeachment does not permit impeachment of a witness with evidence of a prior accusation that did not result in a criminal conviction). Because a trial judge’s ruling on the admissibility of evidence will not be disturbed absent abuse of discretion, we affirm the trial court’s decision. See id. at 1092.

Finally, the defendant claims that the trial court erred by failing to suppress his confession made on February 14, 2007. He alleges that his confession was coerced. The transcript of the interview belies that allegation. After hearing testimony from the interviewing detective and from the defendant, the trial court expressed its reasons for denying the motion to suppress, including that the defendant repeatedly acknowledged that he committed the offense, that he understood his rights, and that the statements he gave were freely and voluntarily made. The record conclusively supports the trial court’s decision to deny the defendant’s motion to suppress, and we find no abuse of discretion.

Affirmed.

      . At the conclusion of the voir dire, this veni-reperson was excused and did not serve as a juror in the case.

      . In fact, during his voir dire, defense counsel followed up with additional questions of this prospective juror. Through his questioning, defense counsel dispelled any notion that the juror believed McPhee and this other individual were the same person.

      . The quotation begins: "Today is the day that this defendant is held accountable for his pedophilia, ...”

      . Although this comment was clearly improper. See Hudson v. State, 820 So.2d 1070 (Fla. 5th DCA 2002).


author: LOGUE, J.

text:
    Caridad VASQUEZ, a/k/a Caridad H. Vazquez, et al., Appellants, v. FIRST HORIZON HOME LOANS, a Division of First Tennessee Bank National Association, Appellee.
    No. 3D11-2972.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2012.

      Mario A. Lamar, Coral Gables, for appellants.
    Gilbert Garcia Group, P.A., and Lisa N. Wysong, Tampa, for appellee.
    Before WELLS, C.J., and CORTIñAS and LOGUE, JJ.
   LOGUE, J.

This is an appeal from an order denying appellants’ motion for attorney’s fees. Because appellants did not plead entitlement to the contractual fees asserted, they waived any such claim. See Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991). We decline appellants’ suggestion that we extend the holding of Ganz v. HZJ, Inc., 605 So.2d 871 (Fla.1992). The order on appeal is, therefore, affirmed.


text:
    Walter LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-628.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2012.
    Fisher and Lawrence and Peter Butelin, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Washington v. State, 773 So.2d 1202 (Fla. 3d DCA 2000); Melendez v. State, 787 So.2d 918, 920 (Fla. 3d DCA 2001) (“[I]n evaluating the ‘genuineness’ of an explanation for striking a juror, a trial court must analyze a subjective issue, which incorporates credibility — ‘a matter solely within the purview of a finder of fact.’ ” (quoting Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999))).


author: ROTHENBERG, J.

text:
    Mark NOEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2778.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, and Jacob Addicott, Certified Legal Intern, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

ROTHENBERG, J.

The defendant, Mark Noel, appeals the denial of his motion for a judgment of acquittal as to his conviction for first-degree criminal mischief. Noel contends that to sustain a conviction for first-degree criminal mischief, the State was required to prove that the damage to the subject property, which in this case was the victim’s vehicle, was greater than $200. He further submits that the State failed to prove by competent substantial evidence that the damage exceeded $200, and thus this Court should reverse his conviction for first-degree criminal mischief and remand for the entry of judgment for the reduced crime of second-degree criminal mischief. We agree. Based on our independent review, and the State’s proper confession of error, we conclude there was insufficient evidence to establish that the damage exceeded $200. We, therefore, reverse Noel’s conviction for first-degree criminal mischief and remand with instructions to enter judgment for the reduced crime of second-degree criminal mischief. Noel’s remaining convictions and sentences should not be disturbed.

Reversed and remanded with instructions.


author: SCHWARTZ, Senior Judge.

text:
    Radrrick LAVRRICK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2507.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.
    Rehearing Denied Jan. 25, 2013.
    Radrrick Lavrrick, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In Lavrrick v. State, 45 So.3d 893 (Fla. 3d DCA 2010), we vacated Lavrrick’s life sentence without parole for robbery with a deadly weapon and armed carjacking committed when he was 16 years old and

remanded for re-sentencing in light of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). After a full hearing, Lavrriek was then re-sentenced to 25 years in prison followed by 10 years probation. Lavrriek appeals from his new sentence, but we found no error.

Affirmed.


text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Anthony L. DAVIDE, Appellee.
    No. 3D10-3080.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Rehearing Denied April 5, 2013.

      Steven G. Schwartz, Boca Raton, for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg; Mintz Truppman and Mark J. Mintz, for appellee.
    Before SHEPHERD, SUAREZ and  LOGUE, JJ.

       Judge Logue did not participate in oral argument.

   SUAREZ, J.

Sunshine State Insurance Company (“Sunshine”) appeals from a final judgment awarding attorney’s fees and costs. We affirm.

This matter arises out of claims filed by Anthony L. Davide (“Davide”) pursuant to his insurance policy with Sunshine, for wind damage caused to his Miami home by Hurricane Katrina on August 25, 2005. Following Sunshine’s investigation and payment, dispute arose as to reasonable estimated costs of repair, depreciation, etc. The matter went to appraisal pursuant to the insurance policy, and on November 2, 2006, an appraisal award was rendered by the insured’s appraiser and the neutral Umpire selected by both parties. The subsequent appraisal award issued, but because of the wording of the appraisal award, Sunshine claimed it was unsure whether the amount awarded had already taken into account deductions for depreciation, or whether Sunshine was to deduct the depreciation from the amount awarded. Sunshine made numerous inquires to the Umpire in an attempt to clarify the issue, but never received a response. On November 28, 2006, within the sixty days required by the insurance policy, Sunshine sent a check to the insured for the appraisal award but deducted from the appraisal award the amount it unilaterally concluded would be the amount of depreciation.

On March 2, 2007, Davide, now represented by counsel, filed a complaint against Sunshine for breach of contract, bad faith, and to confirm the appraisal award. On March 8, 2007, Davide’s counsel sent Sunshine a letter that he had received from the neutral Umpire approximately one week prior to filing suit, stating that depreciation had already been deducted from the final appraisal award. Davide’s attorneys sent this letter along with a motion to add punitive damages to the bad faith claim of the complaint.

On March 19, 2007, Sunshine filed its motion to dismiss Davide’s complaint, which was denied on April 3, 2007. On April 4, 2007, Sunshine paid to Davide the depreciation amount it had previously withheld from the appraisal award. At this point, as Sunshine states in its brief and as evident from a review of the record, a flurry of motions and other pleadings ensued, which multiplied over the next ten months. Some of these motions and pleadings were directed to the bad faith count, some to the breach of contract count and some, to the motion to confirm the appraisal award. On February 11, 2008, the trial court heard arguments and ruled upon numerous pending motions. These included a motion to retroactively confirm the appraisal award, the issue of the insurer’s confession of judgment for the depreciation payment, summary judgment as to the breach of contract claims on counts I and II of the complaint for alleged late payment of the depreciation check, and the insured’s counsel’s motion for entitlement to attorney’s fees and costs for having recovered the depreciation payment. At this hearing, the trial court granted Davide’s motions for entitlement to attorney’s fees and costs for having recovered the depreciation payment.

An evidentiary hearing to determine the amount of the fees and costs claimed by Davide’s attorney generated three days of testimony, on November 25, 2009, February 26, 2010, and July 21, 2010. The seven volumes of transcripts forwarded to this Court for the three days of the evidentiary hearing contained testimony by Davide’s attorney, an expert for Davide’s attorney as to attorney’s fees and costs, the expert for Sunshine’s attorney on attorney’s fees, testimony as to costs, closing arguments and 200 pages of exhibits. The suit resulted in recovery for Davide of the wrongfully withheld appraisal award amount of $49,000.00. Davide’s attorney requested fees for 225 hours of time expended at $650.00 per hour. The trial court, in a very detailed order, awarded 150 hours at $450.00 per hour plus a multiplier of 2.0 with costs and expert fees. This calculation resulted in an attorney’s fee award of $138,000.00, close to three times the amount of the recovered depreciation amount. Sunshine appealed.

In determining the amount of attorney’s fees to be awarded, a trial court is required to use the lodestar approach and the eight factors required to be used in an attorney’s fees hearing, pursuant to Rule 4-l,5(a), Rules of Professional Conduct, and following Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), as modified by Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). The trial court must determine the time spent, as well as a reasonable hourly rate for such representation. The trial court then may order a contingent risk multiplier depending upon the trial court’s determination of the attorney’s likelihood of success at the onset of the case. The trial court is then required to issue a detailed order with findings of fact and conclusions of law to explain the trial court’s award. See Rowe, 472 So.2d at 1151-52.

We review the trial court’s award under an abuse of discretion standard. Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005). When a cause is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous. Federated Dep’t Stores, Inc. v. Planes, 305 So.2d 248, 248-^9 (Fla. 3d DCA 1974); Hill v. Coplan Pipe & Supply Co., 296 So.2d 567 (Fla. 3d DCA 1974). In this case, the trial court issued a very detailed order specifically listing the facts upon which it relied as well as detailed conclusions of law to support the award.

Sunshine raises two main issues on appeal. Sunshine first alleges that Davide’s attorney’s claim for hours expended from April 7, 2010, through February 11, 2011, was unnecessary and without merit. Sunshine further alleges that the insured’s attorney claimed, and was awarded, fees for time that was directed not to the first two counts of the complaint, but to count three, the alleged bad faith claim, which is still pending and therefore cannot be awarded.

Based upon a review of the record and the detailed court order, we do not find that the trial court abused its discretion in awarding the attorney’s fees for 150 hours, which the trial court reduced from the requested 225 hours, based, as the trial court said, on expert testimony. The trial court in its detailed order specifically found that, as to the breach of contract action and subsequent payment of the amount requested during litigation, the hours were necessary and crucial to reaching the results that were obtained. Additionally, the trial court specifically stated that it reduced the number of hours requested from 225 to 150, based upon the plaintiffs own expert testimony concerning duplication and unnecessary time. It is not within our purview, nor is it part of our standard of review, for this court to reweigh the credibility of the witnesses or to evaluate the facts de novo. Those are issues for the trial court. Our review of the record shows that there is competent substantial evidence to support the trial court’s findings, and we conclude that the trial court did not abuse its discretion when it made its findings of fact and conclusions of law.

Sunshine next alleges that the trial court awarded fees for attorney time spent concerning the not-yet-resolved count III, alleged bad faith, which, it argues, cannot be awarded at this juncture. In the transcript, the trial court reasoned that the insured’s attorney would be allowed time for work on the bad faith claim at this point because that action was, somehow, necessary to reach a resolution of the breach of contract claim. But the trial court also specifically states in its written order that hours claimed that relate solely to the unresolved count III were not com-pensable, and those hours were deducted by the trial court from the total number of hours ultimately awarded.

Sunshine next disputes the multiplier applied to the fees claim in this action. We can understand Sunshine’s position but, once again, there is evidence in the record presented by the experts to support the trial court’s conclusion. The Florida Supreme Court in Rowe expressly authorized multipliers and prescribed the permissible range. 472 So.2d at 1151. No abuse regarding application of a multiplier has been shown on this record.

As with other discretionary decisions, we must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In its order setting the attorney’s fees, the trial court fully analyzed the factors to be considered in determining reasonable costs and fees pursuant to the Florida Bar’s Rule of Professional Conduct 4-1.5(a), as well as the required elements of Rowe and Quanstrom, in making the award, and made detailed findings of fact that are supported by competent substantial evidence. We affirm on all remaining issues.

Affirmed.

      . We note that, and wonder why, the record before this Court is devoid of any explanation from the insurer’s appraiser as to this question.

      . In granting entitlement to attorney’s fees up to February 11, 2008, the trial court stated that the efforts spent by the insured’s attorney up to that date for sorting out this issue would not have been necessary had the insurer, rather than having taken a unilateral deduction from the award, used other avenues open to it, such as the courts, to determine exactly what the appraisal award meant.

      . The trial court’s ruling as to the date from which the interest accrued was taken as an interlocutory appeal to this court and was reversed in favor of the insurer. Sunshine State Ins. Co. v. Davide, 15 So.3d 749 (Fla. 3d DCA 2009).

      . We do not address the issue of whether or not the insurer's post-suit payment of additional policy proceeds even entitles the insured to attorney’s fees pursuant to section 627.428, Florida Statutes (2010). The first issue in such an award is whether or not the insurer wrongfully caused its insured to have to resort to litigation in order to resolve a conflict with the insurer, when it is within the insurer’s power to resolve it. Beverly v. State Farm Fla. Ins. Co., 50 So.3d 628 (Fla. 2d DCA 2010). This is the first question that needs to be addressed in any section 627.428 issue. This factual issue was not presented below and was not presented here on appeal.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Janice SANTIAGO and Rafael Segarra, Appellees.
    No. 3D11-2805.
    District Court of Appeal of Florida, Third District.
    March 13, 2013.
    Rehearing Denied April 11, 2013.
    Robertson, Anschutz & Schneid, P.L., and Areeb Naseer, Boca Raton, for appellant.
    Robert Flavell, P.A., and Robert Flavell, Miami Lakes, for appellees.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

During the presentation of the first witness in this foreclosure action, the trial judge dismissed the case on her own initiative, based apparently on her conclusion that the bank would be unable to prove all of the facts necessary to support its claim. We find that this dismissal was premature in the facts of this case. Accordingly, we reverse.

Deutsche Bank National Trust Company, as trustee, brought a foreclosure suit against Janice Santiago and Rafael Segar-ra. The case proceeded to a bench trial. The bank’s first witness was Minerva Flowers, an employee of American Home Mortgage Servicing, Inc., which serviced the loan. Through Flowers’s testimony, the bank introduced the mortgage and note into evidence. As Flowers began to testify about the acceleration letter, however, the case took an unusual turn. Over the borrowers’ objection, the trial court provisionally admitted the acceleration letter into evidence. But before the bank finished its direct examination of Flowers, the trial court permitted the borrowers to “voir-dire” or cross-examine Flowers about the letter. After the borrowers’ counsel asked some questions, the trial court also interrogated Flowers. The trial court then excluded the acceleration letter from evidence. Without a motion being made by the defendant, the trial court immediately dismissed the case. A written order of dismissal with prejudice was entered the same day. The bank timely appealed.

In these facts, the trial court erred when it ordered an involuntary dismissal of the foreclosure action before the bank had rested its case. The governing rule of civil procedure provides for an involuntary dismissal for lack of evidence only “[ajfter a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence.” Fla. R. Civ. P. 1.420(b) (2012). Simply put, “it is error to direct a verdict before a plaintiff has completed presentation of his evidence.” Sheldon Greene & Assocs. v. Williams Island Assocs., 550 So.2d 1142, 1143 (Fla. 3d DCA 1989). This Court has held that “[t]he same concept applies to an involuntary dismissal.” A.N. v. M.F.-A, 946 So.2d 58, 60 (Fla. 3d DCA 2006) (“By denying appellants the opportunity to complete their case-in-chief, the trial court denied appellants their due process.”); see also SJS Enters. v. Cates, 547 So.2d 226, 227 (Fla. 4th DCA 1989) (holding that the trial court could not “jump the gun” by granting a motion for an involuntary dismissal while the plaintiff was on its first witness).

Reversed and remanded for a new trial.