author: WINDOM, Presiding Judge.

text:
    Jeffery Tyrone RIGGS v. STATE of Alabama.
    CR-09-1349.
    Court of Criminal Appeals of Alabama.
    May 3, 2013.
    Rehearing Denied Aug. 23, 2013.

      Alicia A. D’Addario, Angela Setzer, and Randall S. Susskind, Montgomery; and Mari Morrison, Birmingham, for appellant.
    Luther Strange, atty. gen., and James Clayton Crenshaw, asst. atty. gen., for ap-pellee.
   WINDOM, Presiding Judge.

Jeffery Tyrone Riggs appeals his capital-murder conviction and sentence of death. Riggs was convicted of murder made capital for taking the life of Norber Payne during the course of a burglary. See § 13A-5-40(a)(4), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Riggs be sentenced to life in prison without the possibility of parole. After weighing the aggravating circumstances and the mitigating circumstances, the circuit court rejected the jury’s recommendation and sentenced Riggs to death. On July 26, 2010, Riggs filed a motion for new trial. Following a hearing, the circuit court denied Riggs’s motion.

Facts

Riggs and Norber Payne had been involved in a relationship for several years before her death. In 2005, Riggs bought a house and asked Payne and her daughters to move in with him. Approximately two years later, Payne and her daughters moved out of Riggs’s house and into an apartment in Center Point. Payne was the only individual listed on the apartment lease. In 2007, Riggs moved into the apartment with Payne and her family.

According to Payne’s daughters, Natasha and Tiffany, their mother ended her relationship with Riggs after an argument in October 2007 between Payne, Riggs, and Tiffany. Tiffany testified that she overheard an altercation between Riggs and Payne and walked into her mother’s bedroom to find Riggs choking Payne. Tiffany repeatedly hit Riggs until he let go of Payne, and he then grabbed Tiffany by the neck. Afterwards, Payne told Tiffany to call the police, but Riggs threatened to “shoot [them]” if she picked up the telephone. (R. 618.) Riggs further stated that they were “gonna die tonight.” (R. 618.) Later that night, Payne, Natasha, and Tiffany packed up Riggs’s personal belongings in a plastic bin and took them to his mother’s house. After this incident, Riggs no longer slept at the apartment. Natasha and Tiffany testified that during the three months preceding Payne’s murder, Riggs did not pay rent or utility bills, and did not live with them in the apartment.

Approximately a week before the murder, a break-in occurred at Payne’s apartment, during which the back door and its locking mechanism were damaged. When Payne returned to the apartment and saw the damage, she feared that someone was inside the apartment, and she telephoned Riggs for help. Riggs wedged a chair underneath the door knob as a temporary fix for the damaged lock. (R. 452-54.)

On the evening of January 9, 2008, Payne was working at the Burger King fast-food restaurant in Roebuck, where she was a general manager. Around 10:00 p.m., Payne telephoned Natasha, who worked at another Burger King fast-food restaurant, and asked her to help close the store because they were short-staffed at the Roebuck store. Shortly after Natasha and her boyfriend, Kenny Williams, arrived at the Roebuck Burger King, Riggs pulled into the parking lot to drop off Payne’s granddaughter, Janiah, whom he often looked after while Payne and her daughters were working. Riggs remained at the restaurant until Payne was ready to leave. As Payne, Natasha, and Janiah were getting into their vehicle, Riggs asked Payne to step out of the car so they could talk. Payne and Riggs talked briefly before Payne got back into the vehicle with Natasha. On the ride home, Payne told Natasha that “she didn’t want [Riggs] back in her house.” (R. 437.)

Payne, Natasha, and Janiah arrived at their apartment around 1:30 a.m. on January 10, 2008. Tiffany was already at home and in bed. Natasha overheard Payne on the telephone with Riggs telling him that she was getting ready for bed. Natasha was in her room when she heard Payne calling for her from her bedroom. Several moments later, Tiffany heard a “loud boom” (R. 653) that sounded like the door being kicked open. Shortly thereafter, Natasha saw “[Riggs] running down the hall with a gun in his hand.” (R. 464.) Natasha then saw Riggs go into her mother’s bedroom, and she heard approximately four gunshots. Moments later, Natasha saw Riggs run back down the hall and out the back door.

At 2:18 a.m., Natasha dialed emergency 911 and reported that her mother had been shot. At 2:24 a.m., Riggs telephoned the sheriffs office from his mother’s house and stated that he wanted to turn himself in to law enforcement. Sergeant Clyde Money, along with three other deputies, drove to Riggs’s mother’s house where Riggs was taken into custody and read his Miranda rights. Sergeant Money asked Riggs about his gun, and Riggs described his gun and the location where he placed it. Riggs’s parents gave Sergeant Money consent to search their house for the weapon and indicated that Riggs lived there in the house with them. (R. 738-39.) Based on Riggs’s statement, the gun was recovered and taken into evidence. Afterwards, Riggs was taken to a sheriffs office for questioning.

At the sheriffs office, Riggs was again read his Miranda rights, and he signed a waiver-of-rights form. Riggs then gave Sergeant Mike House his oral statement which was recorded and a written statement, in which he admitted to following Payne back to the apartment, to kicking the back door open after Payne slammed it in his face, to following Payne into her bedroom, and to shooting her with his gun. (R. 857.) The physical evidence collected from Riggs and the crime scene revealed that the tread pattern of a shoe print taken from Payne’s back door matched the tread print of the shoe Riggs was wearing at the time he was taken into custody. Additionally, the blood found on Riggs’s clothing was tested and found to be Payne’s. (R. 863.) Evidence technicians collected four spent shell casings and two live rounds in Payne’s bedroom. It was also determined that Riggs’s gun contained one live round.

During the course of the investigation, Terrance Battle provided investigators with his cellular telephone and several digital voice-mail recordings left by Riggs. According to Battle, he began working with Payne in August 2006. Within a few weeks, Battle learned that Payne was no longer living with her boyfriend and had moved to Center Point. The two began a romantic relationship in October 2007. In December 2007, Battle received a telephone call between 5:00 and 6:30 a.m. from a male, who called himself “Jeff.” The caller asked whether Battle had seen Payne. Battle replied that he had not and the caller hung up. Approximately one month later, in January 2008, Battle received another telephone call from the same number, during which the caller threatened that if “[Payne] came back to Battle’s house, something would happen to her.” (R. 814-15.) In addition to the telephone calls, Battle received two voice mails on January 5, 2008, and a third voice mail on January 7, 2008. After receiving the second voice mail, Battle telephoned Payne to tell her that “Jeff’ had left a threatening message, to which she responded that “he[ was] following [her]” and that “[she would] call [Battle] back later.” (R. 819.) Approximately one week later, Battle received a call from Riggs, during which Riggs asked about Battle’s relationship with Payne. Battle testified that he “blew [Riggs] off’ and had not spoken to him or returned any messages since that day. (R. 821.)

The autopsy revealed that Payne died as a result of a gunshot wound to her chest. The autopsy further revealed that there were four entrance and four exit wounds, consistent with the four spent shell casings found in her bedroom. (R. 1131-82.) Several of the gunshot wounds had signs of stippling, indicating that Payne was shot at close range or with a particularly powerful gun. Additionally, the exit wound on Payne’s back was classified as a “short exit wound” (R. 1141), leading the medical examiner to conclude that Payne was most likely lying in bed or falling into bed when she was shot.

After the State rested, Riggs testified in his own defense. Riggs stated that he bought a house in 2005 and that he asked Payne and her daughters to move into the house with him. Riggs admitted that their relationship was not perfect and that over the years he and Payne had had several arguments during which they threatened to throw one another out of the house. (R. 1289-90.) Riggs also admitted to leaving threatening voice-mail messages on Battle’s cell phone but stated that he intended only to scare Battle.

Riggs testified that he encountered financial problems in 2007 and his house went into foreclosure. According to Riggs, Payne leased an apartment in her name after Riggs’s application was denied because of the ongoing foreclosure proceedings. Riggs testified that he moved into the apartment with Payne and that he had helped purchase furniture for the apartment. Riggs stated that he lived in the apartment, paid a portion of the rent and utilities, kept his personal belongings there, and had his own key to the apartment until Payne’s death on January 10, 2008. (R. 1231-32, 1251, 1272-73, 1308.) Additionally, the defense presented several witnesses who testified that Riggs was still living in the apartment with Payne on the morning that Payne was shot and killed.

Riggs testified that on the evening of Payne’s death, he brought Janiah to Burger King fast-food restaurant and waited as Natasha and Payne finished cleaning the store. Riggs left Burger King and drove to his mother’s house. Riggs telephoned Payne and told her that he wanted to work things out and that they needed to talk. Riggs was still on the telephone with Payne when he arrived at the apartment. Riggs told Payne that he was at the back door. Payne, dressed in nothing but her underwear, cracked the door so they could talk. Riggs began questioning her about the status of their relationship. However, when Riggs attempted to ask Payne about her relationship with Battle, Payne slammed the door in his face, striking Riggs in the eye and causing him to fall back and hit his head. (R. 1372-73.)

After Payne struck him with the door, Riggs kicked the door with his left foot, forcing it open and knocking over a chair. Payne stormed off down the hallway toward the bedroom and Riggs followed her. (R. 1374.) The argument continued into the bedroom, where the two began “hollering” and “screaming” at one another. (R. 1390.) Riggs later testified that the room was dark, except for the glare from the television, which was on. (R. 1389.) At some point during the argument, Payne put her knee up on the bed and retrieved an object. When Payne turned around, Riggs “[saw] a handle” and “something shining” (R. 1388-89), which he said he believed was a knife. Riggs asked Payne to put the object down, but she did not. Payne then climbed off the bed and approached Riggs. According to Riggs, he believed that Payne was about to stab him; therefore, he reached for the gun he had in his pants and began shooting. Riggs could not recall how many times he shot, but stated that he stopped firing when he saw Payne lying on her side. (R. 1393.)

Standard of Review

Because Riggs has been sentenced to death, according to Rule 45A, Ala. R.App. P., this Court must search the record for “plain error.” Rule 45A states:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

(Emphasis added.)

In Ex parte Brown, 11 So.3d 933 (Ala.2008), the Alabama Supreme Court explained:

“ ‘ “To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury’s deliberations.” ’ Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
“ ‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [(1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S., at 163, n. 14.’
“See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”

11 So.3d at 938. “The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.” Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). While Riggs’s failure to object will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991).

Discussion

I.

On appeal, Riggs argues that the circuit court committed reversible error by failing to accurately charge the jury on provoked heat of passion as it applied to his capital-murder charge. Specifically, he contends that circuit court’s instruction on capital murder failed to include the critical negative element, which requires the State to prove beyond a reasonable doubt “‘[t]hat the defendant was not lawfully provoked to do the act which caused the death of the deceased by a sudden heat of passion.”’ Ex parte McGriff, 908 So.2d 1024, 1033 (Ala.2004) (quoting Alabama Pattern Jury Instructions — Criminal, pp. 6-8 (3d ed.1994) (emphasis omitted)). Riggs failed to request and failed to object to the circuit court’s failure such an instruction; therefore, this issue will be reviewed for plain error only. Rule 45A, Ala. R.App. P.

At trial, the circuit court gave the following instructions regarding Riggs’s capital-murder charge:

“Now, ladies and gentlemen, this Defendant is charged with the offense of Capital Murder. As I mentioned before, the indictment alleges that Jeffery Tyrone Riggs, did intentionally cause the death of Norber Payne, by shooting her with a pistol. And Jeffery Tyrone Riggs caused said death during the time that he knowingly and unlawfully entered or remained or attempted to unlawfully enter or to remain unlawfully in the dwelling of Norber Payne with the intent to commit the crime of murder, therein.
“And while effecting entry, Jeffrey Tyrone Riggs was armed with a deadly weapon or dangerous instrument to wit a pistol in violation of Section 13A-5-40(a)(4)[, Ala.Code 1975],
“Of course, the Defendant is charged with Capital Murder. And the law states that an intentional murder [committed] during a burglary in the first-degree is Capital Murder.
“So you have two components. You have an intentional murder. And you have a burglary in the first-degree.
“The law says that a person commits the crime of murder if he intentionally causes the death of another person. And in performing the acts which caused that death, he intends to kill that person. I’ll say that again.
“The law says that a person commits an intentional murder, if he causes the death of another person and in performing the act or acts which caused the death of that person[, he] intends to kill that other person.
“A person commits a burglary in the first-degree if he knowingly, and unlawfully enters or remains unlawfully in a dwelling and he does so with the intent to commit a crime therein. And while effecting entry, or while in the dwelling, or in the immediate flight therefrom, he causes physical injury to another person.
“So — and this is what you need to make note of because the State must prove each one of these following] elements beyond a reasonable doubt.
“First, in order to convict the Defendant of Capital Murder, the State must prove beyond a reasonable doubt the following elements:
“First, that Norber Payne is dead.
“Secondly, that the Defendant. Caused her death. By shooting her. With a pistol.
“That the Defendant caused her death by shooting her with a pistol.
“Thirdly, that in committing the acts which caused her death, the Defendant intended to kill her. That’s a fancy way of saying that when he shot her, he must have intended to kill her.
“The law says that a person acts intentionally, when it is his purpose to .cause that result. Or his purpose to engage in that conduct.
“The intent to kill, in this charge, must be real and specific.
“In other words, you must find that the Defendant specifically intended to kill Norber Payne. Do you all follow me?
“(No verbal response.)
“THE COURT: Okay.
“That’s the third element.
“Specific intent.
“To kill Ms. Payne.
“Fourthly, the forth element is that the Defendant must have either knowingly entered. Or remained unlawfully. In the dwelling of Ms. Payne.
“(Pause.)
“THE COURT: Fifth, that in doing so, the Defendant acted with the intent to commit a crime, namely murder.
“(Pause.)
“THE COURT: So the State must convince you that when he either knowingly entered that dwelling, or when he remained unlawfully in that dwelling. That he did so, acting with the intent to commit the crime of murder.
“(Pause.)
“THE COURT: Sixth, that while the Defendant was in the dwelling. The Defendant caused physical injury to Norber Payne.
“That while he was in the dwelling, or in effecting entry thereto, or in the immediate flight therefrom, the Defendant caused physical injury to Norber Payne.
“And lastly, number seven. The seventh element is that the murder took place during a burglary.
“As I’ve previously defined that concept to you.
“That the murder took place during the burglary.
“So if you find from the evidence that the State has proved beyond a reasonable doubt each one of these seven elements. You shall convict the Defendant of Capital Murder.
“If you find that the State has not proved any one of those seven elements, then you shall acquit the Defendant of Capital Murder.
“Okay. That’s clear?
“(No verbal response.)
“THE COURT: Good.”

(R. 1650-57.) After instructing on capital murder and intentional murder, the circuit court went on to instruct the jury that “if [it did] not reach a unanimous verdict on Capital Murder or murder, then [it would] consider the next lesser included offense of manslaughter, of the provocation sort.” (R. 1659.) Although the circuit court instructed the jury on provocation manslaughter, it did not instruct the jury that to find Riggs guilty of capital murder, it must first find that the State proved beyond a reasonable doubt the absence of heat of passion. In other words, the circuit court did not instruct the jury that as an element of capital murder the State must disprove that Riggs was lawfully provoked and thus caused Payne’s death in the heat of passion.

In their briefs on appeal, both parties agree that “ ‘[t]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide ease[,]’ ” Ex parte McGriff, 908 So.2d at 1033 (quoting Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)); however, they strongly disagree on whether an instruction regarding the State’s burden was warranted in this case. Specifically, the State argues that Riggs was not entitled to a heat-of-passion instruction because he failed to present any evidence of legal provocation; therefore, he could not have been prejudiced by the circuit court’s incomplete instruction. (State’s brief, at 36, 40.) Riggs, on the other hand, contends that not only was he entitled to such an instruction, but also by omitting the critical element from its capital-murder instruction, the circuit court undermined his defense strategy “to persuade the jury that provoked heat of passion mitigated the killing to manslaughter.” Ex parte McGriff, 908 So.2d at 1032; see also Riggs’s brief, at 41-42 (R. 1481-83.)

“ ‘ “[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.”’” Ex parte McGriff, 908 So.2d at 1035 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), quoting in turn Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), emphasis omitted). Consequently, “‘it is the mandatory duty of a trial judge to instruct the jury orally on the different and distinguishing elements of the offense charged and that in the absence of such instructions from the court, the jury could not intelligently comply with their duty as jurors. Miller v. State, Ala. Cr.App., 405 So.2d 41, 48 (1981).’ ” Ex parte McGriff, 908 So.2d at 1035 (quoting Ainsworth v. State, 465 So.2d 467, 471 (Ala.Crim.App.1984)). Further, “ ‘[i]t is a basic tenet of Alabama law that “a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, ... and the [trial] court’s failure to give those instructions is reversible error.” ’ ” Winner Int’l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003)

(quoting Volkswagen of America, Inc. v. Marinelli, 628 So.2d 378, 384-85 (Ala.1993), quoting in turn Alabama Farm Bureau Mut. Ins. Serv., Inc. v. Jericho Plantation, Inc., 481 So.2d 343, 344 (Ala.1985)).

Under the law in this State:

“A person does not commit murder ... [and by extension capital murder] if he was moved to act by a sudden heat of passion caused by a provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This subsection does not apply to. a prosecution for, or preclude a conviction of, manslaughter or other crime.”

Section 13A-6-2(b), Ala.Code 1975. In Ex parte McGriff, 908 So.2d at 1033-34, the Alabama Supreme Court explained that once a defendant on trial for capital murder has “injected the issue of provoked heat of passion,” the circuit court must instruct the jury that “‘[t]o convict, the state must prove beyond a reasonable doubt [that] the defendant was not lawfully provoked to do the act which caused the death of the deceased by a sudden heat of passion.’ ” (quoting Alabama Pattern Jury Instructions-Criminal, pp. 6-8, emphasis omitted).

Further, it is well settled that “ ‘[a] killing in sudden passion excited by sufficient provocation, without malice, is manslaughter.’” Roberson v. State, 217 Ala. 696, 699, 117 So. 412, 415 (1928) (quoting Vaughan v. State, 201 Ala. 472, 474, 78 So. 378, 380 (1918)). Specifically, § 13A-6-3(a)(2), Ala.Code 1975, provides that a person commits the crime of manslaughter if

“[h]e causes the death of another person under circumstances that would constitute [intentional murder]; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to assert itself.”

Although courts have reached different conclusions as to what constitutes adequate legal provocation, in Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001), this Court recognized the following three situations in which murder may be reduced to manslaughter on the basis that there existed legal provocation: “(1) when the accused witnesses his or her spouse in the act of adultery; (2) when the accused is assaulted or faced with an imminent assault on himself; and (8) when the accused witnesses an assault on a family member or close relative.” See also Cox v. State, 500 So.2d 1296, 1298 (Ala.Crim.App.1986) (holding that “the mere appearance of imminent assault may be sufficient to arouse heat of passion”). Thus, once a defendant has injected into the trial the issue of provocation related to one or more of those three situations, the defendant is entitled to have the circuit court instruct the jury that the State bears the burden of disproving that the defendant acted out of the heat of passion brought about by adequate provocation. McGriff, 908 So.2d at 1033-34.

Here, Riggs was charged with the capital offense of murder during the course of a burglary, in violation of § 13A-5-40(a)(4), Ala.Code 1975, but claimed that he was either acting in self-defense at the time of the shooting or guilty of the lesser-included offense of provocation manslaughter. See (R. 1452-53.) At trial, Riggs did not deny that he shot and killed Payne; instead, he “injected the issue of provoked heat of passion,” Ex parte McGriff, 908 So.2d at 1033, by claiming that he shot Payne only after she hit him in the eye with a door and came after him with what he believed to be a knife. Specifically, Riggs presented evidence indicating that Payne met him at the back door to talk. During the conversation, Payne became angry after Riggs asked about her relationship with Battle and slammed the door in Riggs’s face, striking him in the eye and causing him to hit his head. Riggs further stated that after he followed Payne into her bedroom, she picked up what he believed to be a knife and appeared to be getting ready to attack him. Riggs stated that he feared for his safety, and, therefore, reached for the gun he was carrying in his pants and began firing. (R. 1396, 1409.)

By this evidence, Riggs adequately “injected the issue of provoked heat of passion.” Ex parte McGriff, 908 So.2d at 1033. See Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985) (“[T]he fact that the victim was about to cut the appellant before he shot the victim could constitute legal provocation”) (citing Roberson, 217 Ala. 696, 117 So. 412). Therefore, Riggs was entitled to a proper instruction during the capital-murder charge regarding the State’s burden to disprove that he acted by provoked heat of passion. Accordingly, “the failure of the [circuit] court to charge the jury accurately on provoked heat of passion as it applied to the capital murder charge constitutes plain error.” McGriff, 908 So.2d at 1036-37. Cf. Shultz, 480 So.2d at 76 (“[Section] 13A-6-3(a)(2)[, Ala. Code 1975,] is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense.”); Wyllie v. State, 445 So.2d 958 (Ala.Crim.App.1983) (holding that the circuit court erred in failing to give a provocation-manslaughter instruction in a case where the defendant shot her husband after he threatened to cut her throat with a knife and then came at her with his hands in his pocket); Hill v. State, 485 So.2d 808 (Ala.Crim.App.1986) (holding that the defendant was entitled to a manslaughter instruction based on the fact that his wife attacked him with a knife and threatened to kill him). Because it was plain error for the circuit court not to accurately charge the jury on provoked heat of passion as it applied to Riggs’s capital-murder charge, this Court reverses Riggs’s conviction and sentence of death and remands this cause for further proceedings.

II.

Although this Court reverses Riggs’s conviction for the reasons stated in Part I of this opinion, it is compelled to address another issue Riggs raises on appeal because it may arise on retrial.

Riggs argues that the circuit court failed to properly instruct the jury regarding the law of burglary, a critical element of his capital-murder charge. Specifically, Riggs contends that the circuit court erroneously “failed to inform jurors that if they determined that [he] occupied or possessed the apartment at the time the offense was committed, no burglary was committed.” (Riggs’s brief, at 17.) Riggs neither requested nor objected to the circuit court’s failure to instruct the jury that a person cannot burglarize a place the person owns or occupies; therefore, this issue is reviewed for plain error only. Rule 45A, Ala. R.App. P.

Riggs was charged with the offense of murder made capital because it was committed during the course of a burglary. See § lSA-5-40(a)(4), Ala.Code 1975. At trial, the State presented evidence indicating that Riggs had not lived in the apartment with Payne and her family since the fall of 2007, when Payne ended her relationship with Riggs and returned his belongings. Riggs, however, presented evidence to the contrary. Specifically, he presented testimony indicating that he was still living with Payne in the apartment at the time of her death. Riggs further testified that he helped Payne purchase furniture for the apartment, assisted with the rent and other utilities, kept his personal belongings at the apartment, and had his own key. (R. 1231-32, 1250-51, 1272-73, 1308.) Riggs’s mother, aunt, and son also testified that he was living with Payne in the apartment at the time the offense was committed. (R. 1231, 1250-51, 1273.) Based on this evidence, Riggs argued that he was a legal occupant of the apartment at the time of Payne’s death and, thus, could not have committed the capital offense of burglary-murder as charged in the indictment.

At the close of all the evidence, the circuit court instructed the jury regarding the State’s theory that Riggs was licensed to be at Payne’s apartment but that the license may have been revoked. See Davis v. State, 737 So.2d 480, 486 (Ala.1999). Specifically, the circuit court stated:

“THE COURT: A person’s license or privilege to enter or remain in a dwelling, may be revoked at any time by the lawful possessor of the property. If the person remains after the privilege has been revoked, that person remains unlawfully.
“Breaking is not an essential element of burglary. Only an entry must be proved.
“The unlawful remaining prong of Alabama’s burglary statute covered cases where a person enters with license or privilege, but remains after termination of such license or privilege.”

(R. 1665.) The circuit court did not, however, instruct the jury on Riggs’s theory of defense, i.e., that if the jury found that Riggs was living in the apartment at the time of the offense, he could not be found guilty of burglary and, thus, could not be convicted of capital murder on the basis that the murder was committed during a burglary.

This Court has explained:

“In Alabama, ‘[b]urglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed.’ Hamilton v. State, 283 Ala. 540, 545, 219 So.2d 369, 374, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969) (quoting Fuller v. State, 28 Ala.App. 28, 30, 177 So. 353, 354 (1937)). ‘A person “enters or remains unlawfully” in or upon premises when he is not licensed, invited or privileged to do so.’ Ala.Code 1975, § 13A-7-l(4). Under Alabama law, a person who is licensed or privileged to enter premises cannot commit criminal trespass or burglary. Johnson v. State, 473 So.2d 607, 609 (Ala.Cr.App.1985).”

White v. State, 587 So.2d 1218, 1223 (Ala.Crim.App.1990). Therefore, “[e]harging ownership in a burglary count puts the onus on the State of showing ‘ownership,’ i.e., occupancy — rather than title. The person in possession (either himself or by servant) is the occupant for this purpose.” White v. State, 42 Ala.App. 249, 254, 160 So.2d 496, 500 (1964) (internal citations omitted). Because “the offense [of burglary] is not committed by one who breaks and enters his own dwelling or other building,” Stanley v. State, 57 Ala.App. 83, 84, 326 So.2d 148, 149 (Ala.Crim.App.1976), the Alabama Supreme Court has held that “[a]n essential averment in a charge for an offense against property is the negation of the defendant’s ownership or possessory right, so as to affirmatively show that the property, general or special, against which the crime is laid, is in another.” Wilson v. State, 247 Ala. 84, 85, 22 So.2d 601, 602 (1945) (citing Edmonds v. State, 87 Ala. 12, 6 So. 54 (1889)).

At trial, Riggs presented evidence that he was living in the apartment with Payne at the time of the murder. Based on this evidence, Riggs was entitled to a jury instruction that if the jury found that Riggs was living in the apartment with Payne at the time of the murder, it could not find that he had committed a burglary and, thus, could not find him guilty of capital murder. Because this Court is reversing Riggs’s conviction and sentence of death on Issue I, it need not decide whether plain error resulted from the circuit court’s failure to give this unrequested instruction.

Accordingly, for the reasons stated in Part I of this opinion, Riggs’s conviction and sentence of death are reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

      . There is conflicting evidence regarding the exact date and reason Payne and her daughters moved out of Riggs’s house; for instance, Payne's daughter Natasha testified that they moved out and into their own apartment because some of her mother’s jewelry was missing. (R. 484-85.)

      . Natasha testified that she had a good relationship with Riggs but that he and Tiffany had never gotten along. (R. 477, 479.)

      . There was conflicting evidence regarding the condition of the doorknob as a result of the burglary. Specifically, Natasha testified that the deadbolt was broken but that the doorknob was still attached, while Riggs testified that the door frame was damaged and that the doorknob was completely broken off and lying on the floor when he arrived. (R. 452-54, 1354.) Riggs further testified that he placed a nail in the bottom of the door to hold it closed. (R. 1359.)

      . Natasha testified that she believed she heard four gunshots followed by a “little noise.” (R. 517.) She further stated that it sounded like "[Riggs was] still trying to shoot, but there [were] no bullets coming out.” (R. 517.)

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Riggs's mother, Patricia, and his son, Jeffery Riggs, Jr., and his aunt, Sharon Hill, all testified that Riggs lived in the apartment with Payne from the time he lost his home until the night Payne was killed. (R. 1231, 1250-51, 1273.)

      . Riggs later acknowledged that the object was actually a fork. (R. 1408-09.)


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Connie BUONOMO, as Personal Representative of the Estate of Matthew Buonomo, Appellee.
    No. 4D10-3543.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Cristina Alonso and Benjamin Reid of Carlton Fields, P.A., Miami, Gregory G. Katsas and Charles R.A. Morse of Jones Day, Washington, D.C., and Stephanie E. Parker of Jones Day, Atlanta, GA, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and John Uustal and Todd R. McPharlin of Kelley Uustal PLC, Fort Lauderdale, for appellee.
   On Motion for Rehearing

STEVENSON, J.

Upon consideration of appellant’s motion for rehearing, we deny rehearing, but withdraw our prior opinion and substitute the following in its place.

In this Engle progeny case, R.J. Reynolds Tobacco Company (RJR) appeals a jury verdict in favor of plaintiff, as personal representative of the estate of her late husband, on personal injury and wrongful death claims based on strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment. The jury apportioned 77.5% of the fault to RJR and 22.5% to the smoker, awarding $5,235,000 in compensatory damages and $25 million in punitive damages. Faced with RJR’s motion for remittitur, the trial court reduced the compensatory damages to account for the percentage of fault the jury assigned to the smoker and reduced the punitive damages to $15,705,000, three times the compensatory damages awarded by the jury. RJR has appealed and plaintiff has cross-appealed. While the parties raise a number of issues, we find merit in only two — RJR’s claim that the trial court erred in striking its statute of repose defense and plaintiffs claim that the trial court erroneously believed it was required to reduce the punitive damages award. We affirm the other issues raised and write solely to address the aforementioned matters.

Factual Background

Matthew Buonomo began smoking at age thirteen. In 1995, after fifty-plus years of smoking three packs a day, Buo-nomo began suffering from chronic obstructive pulmonary disease (COPD). Pri- or to his death in 2008, Buonomo filed suit against RJR. Connie Buonomo, Matthew’s widow and the personal representative of his estate, was substituted as the plaintiff and the case was tried in 2010. Plaintiff asserted claims for strict liability, negligence, fraudulent concealment, and conspiracy to commit fraud by concealment.

As an Engle progeny case, the trial proceeded in two phases. In phase I, the jury was asked to determine whether Buonomo was a member of the Engle class, i.e., whether he was addicted to cigarettes, whether his addiction to cigarettes was a legal cause of his COPD, and whether he had COPD prior to November 21, 1996. After resolving these issues in plaintiffs favor, the trial proceeded to phase II, which required the jury to determine whether Buonomo’s COPD was a legal cause of his death and whether RJR’s negligence and intentional misconduct were a legal cause of Buonomo’s death.

During phase II, the jury heard extensive testimony concerning the tobacco industry’s efforts to conceal the harmful effects of smoking. The jury was instructed to accept the following factual findings established as the result of the Engle case: (1) nicotine is addictive; (2) smoking causes COPD; (3) RJR was negligent; (4) RJR placed cigarettes on the market that were defective and unreasonably dangerous; and (5) RJR concealed and/or omitted material information or failed to disclose material facts concerning the health effects or addictive nature of cigarettes and entered into an agreement to conceal or omit the health effects or their addictive nature with the intent that smokers and the public rely on such information to their detriment. The jury also listened to Buo-nomo’s widow, daughters, and granddaughters testify about the debilitating effects of the COPD and the toll Buonomo’s illness took on the family, particularly his wife of nearly sixty years and, in the end, his caregiver.

Having heard the evidence, the jury returned a verdict in favor of the plaintiff, finding that RJR was guilty of negligence, gross negligence, and intentional misconduct; that RJR’s negligence and intentional misconduct were the legal cause of Buonomo’s COPD and death; and that Buonomo had reasonably relied upon RJR’s concealment or omission of material information concerning the health effects and addictive nature of cigarettes. The jury apportioned 77.5% of the fault to RJR and 22.5% to Buonomo, awarding $405,000 for medical and funeral expenses, $4.83 million for plaintiffs past and future pain and suffering and her loss of companionship, and $25 million in punitive damages. As the result of RJR’s post-trial motions for remittitur, the trial court reduced the compensatory damages award by the 22.5% fault the jury attributed to Buonomo and reduced the punitive damages to $15,705,000 — three times the amount of compensatory damages awarded by the jury.

Statute of Repose

RJR sought to avoid liability for the fraudulent concealment and conspiracy to commit fraudulent concealment claims by asserting a statute of repose defense, 1.e., plaintiffs claims were barred as plaintiff could not demonstrate detrimental reliance upon any statements made by defendant on or after May 5, 1982, twelve years prior to the filing of suit by plaintiffs in the Engle case. See § 95.031(2)(a), Fla. Stat. (stating that “in any event an action for fraud ... must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered”). Prior to trial, the trial court struck the defense. RJR insists the striking of the defense was error, maintaining that the statute of repose is an individualized defense that was not foreclosed by Engle and that must be decided on a case-by-case basis — an argument with which we have consistently agreed. See Philip Morris USA Inc. u Putney, 117 So.3d 798, 803-04 (Fla. 4th DCA 2013); Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 947 (Fla. 4th DCA 2012); Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145, 1150-51 (Fla. 4th DCA 2012); Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 260-61 (Fla. 4th DCA 2012), review denied, 117 So.3d 412 (Fla. 2013).

As we have previously held, while the conduct elements of the claims for fraudulent concealment and conspiracy to commit fraudulent concealment were established by virtue of the Engle decision, an Engle progeny plaintiff still must prove detrimental reliance upon the defendant tobacco company’s misinformation. See Kayton, 104 So.3d at 1150-51; Hess, 95 So.3d at 260-61. And, “[bjecause fraud cannot be committed absent detrimental reliance by the plaintiff, see Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985), whether a fraudulent act was committed within twelve years of the filing of an action can only be determined based on the timing of a particular plaintiffs alleged reliance.” Kayton, 104 So.3d at 1151; see also Hess, 95 So.3d at 261 (rejecting plaintiffs claim that date of reliance was irrelevant as “the triggering event set forth in the applicable statute of repose, ‘the date of the commission of the alleged fraud,’ necessarily includes reliance by the plaintiff’) (quoting section 95.031(2)(a), Fla. Stat.); but see Frazier v. Philip Morris USA Inc., 89 So.3d 937, 947-48 (Fla. 3d DCA 2012) (holding that, for conspiracy claim, it is the last act done in furtherance of the conspiracy that fixes the date for commencement of the statute of repose and plaintiff need not show continued reliance upon that last act). While the record contains evidence that could support a finding of reliance on or after May 5, 1982, the trial court’s ruling precluded a jury determination on the issue and deprived RJR of the defense. This was error.

Cross-Appeal: Punitive Damages

The jury awarded $25 million in punitive damages in connection with the fraud claims. In response to RJR’s motion for remittitur, the trial court reduced the punitive damages to $15,705,000. The trial court’s order states that, as the result of section 768.73(l)(a)L, Florida Statutes, the punitive damages “must be reduced to three times the compensatory damages awarded.” Plaintiff argues the trial court erred in finding the statute required the reduction of the punitive damages to three times the compensatory damages. We agree.

We begin by finding that neither the $25 million in punitive damages initially awarded by the jury nor the reduced amount of $15,705,000 is so excessive as to violate due process. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1070-72 (Fla. 1st DCA 2010) (affirming award to smoker’s widow of $5 million in compensatory damages, reduced to $3.3 million based on jury’s apportionment of fault, and $25 million in punitive damages), review denied^ 67 So.3d 1050 (Fla.2011), cert. denied, — U.S. —, 132 S.Ct. 1794, 182 L.Ed.2d 617 (2012); R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 313 (Fla. 1st DCA 2012) (finding $40.8 million in punitive damages was “not ‘out of all reasonable proportion’ to RJR’s conduct,” but nonetheless reversing the award in light of the $10.8 million compensatory damages award; noting that, on remand, punitive damages need not necessarily be capped at $25 million, an amount previously approved in Martin), review denied, 110 So.3d 441 (Fla.), review dismissed, 110 So.3d 442 (Fla.2013). The trial court reduced the $25 million awarded by the jury to $15,705,000 believing that section 768.73 of the Florida Statutes required it to do so. This is not, however, the case.

In its order, the trial court cited section 768.73(l)(a)l. While the court did not include a year, section 768.73 did not have a subsection “(l)(a)l.” until after the 1999 amendments. See Ch. 99-225, § 23, at 1416-18, Laws of Fla. And, under the post-1999 version of the statute (the statute has not been amended since 1999), a punitive damages award cannot exceed the greater of three times the compensatory damages award or $500,000 unless certain findings are made by the “fact finder.” See § 768.73(l)(a)-(c), Fla. Stat. (2012). It is, however, the 1995 version of the statute that governs the instant case — a fact the parties do not dispute. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding substantive amendment to section 768.73 could not be applied to cause of action that accrued prior to effective date of amendment); St. John v. Coisman, 799 So.2d 1110, 1113 (Fla. 5th DCA 2001) (holding that applicable version of section 768.73 was version in effect at the time the cause of action accrued). And, under the 1995 version of the statute, the trial court is free to exceed the three-times-compensatory cap on punitive damages if “the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.” § 768.73(l)(b), Fla. Stat. (1995) (emphasis added). For the foregoing reasons, we must remand the matter to the trial court to exercise the discretion afforded it by the governing 1995 version of section 768.73.

Conclusion

In sum, having considered all arguments raised, we affirm the judgment and damages awarded on the plaintiffs strict liability and negligence claims. We reverse, however, the judgment entered in plaintiffs favor on the claims for fraudulent concealment and conspiracy to commit fraud by concealment due to the erroneous striking of RJR’s statute of repose defense. To remedy the erroneous striking of the defense, we remand the case for a jury determination on the statute of repose issue. In the event the jury should find in favor of the plaintiff on the statute of repose issue, the trial court is free to reinstate the punitive damages award made by the jury, subject to any reduction made by the trial court in the exercise of the discretion afforded it under section 768.73, Florida Statutes (1995).

Affirmed in part, Reversed in part, and Remanded.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . In Hess, the Florida Supreme Court denied Philip Morris’s petition for review by order dated June 3, 2013. That same day, however, in case number SC12-2153, the Florida Supreme Court granted Elaine Hess’s petition for review. Similarly, in Kayton, both parties have filed petitions seeking review from the Florida Supreme Court. On June 13, 2013, in case numbers SC13-171 and SC13-243, the Florida Supreme Court ordered the proceedings in Kayton stayed pending disposition of Hess.

      . Plaintiff also asserts error in the reduction of the compensatory damages award to account for the smoker's contributory fault. Any error in the reduction of the compensatory damages was invited and/or waived by plaintiff. Compare Philip Morris USA, Inc. v. Hess, 95 So.3d at 256 n. 2 (finding any error in reduction of compensatory damages by fault attributed to smoker was invited where the jury was told that the court would reduce the damages to account for the assignment of fault), with R.J. Reynolds Tobacco Co. v. Swy, 118 So.3d 849, 851 (Fla. 1st DCA 2013) (refusing to find waiver/invited error where plaintiff sought apportionment on counts "other than those alleging intentional torts” and plaintiff “never argued to the jury or the court that the damages ... should be reduced by his [the smoker's] portion of fault”). Accordingly, we do not reach the merits of plaintiff's argument that reduction of the compensatory damages pursuant to section 768.81, Florida Statutes, was not appropriate as the gist of the suit is an intentional tort.


author: PER CURIAM.

text:
    Rufus L. SMITH, Appellant, v. LEXINGTON ROYAL, INC., A California Corporation as Assignee, SPCP Group, LLC as Assignee of Business Loan Center, LLC, Appellees.
    No. 1D14-0271.
    District Court of Appeal of Florida, First District.
    March 19, 2014.
    Rehearing Denied May 8, 2014.
    Rufus L. Smith, pro se, Appellant.
    Rehan N. Khawaja, Jacksonville; Pamela Jo Bondi, Attorney General, and Enoch J. Whitney, Assistant Attorney General, Tallahassee; Adam P. Hartley, of Baker Donelson Bearman Caldwell, Orlando; and Gregg McClosky, of McClosky, D’Anna & Dieterle, Boca Raton, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(l).

ROWE, MARSTILLER, and RAY, JJ., concur.


text:
    Tyrone Lamont GALLUP, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4830.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Tyrone Lamont Gallup, pro se.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004); Dowdy v. Singletary, 704 So.2d 1052 (Fla.1998); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Rangel v. State, 937 So.2d 1218 (Fla. 3d DCA 2006); White v. State, 935 So.2d 554 (Fla. 3d DCA 2006); Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006); Quintana v. State, 913 So.2d 628 (Fla. 3d DCA 2005); Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Martin v. State, 795 So.2d 143 (Fla. 3d DCA 2001).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


text:
    Carl L. HARVEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4806.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Carl L. Harvey, Jr., pro se.
   PER CURIAM.

Affirmed. See Seagrave v. State, 802 So.2d 281 (Fla.2001); Knarich v. State, 866 So.2d 165 (Fla. 2d DCA 2004); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003).

CRENSHAW, BLACK, and SLEET, JJ., Concur.


author: LEVINE, J.

text:
    Kenneth ADAMS and Karline Jacques, Appellants, v. BELL PARTNERS, INC. and Bobby Seay, Appellees.
    Nos. 4D12-3336, 4D12-3427.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.

      John G. Crabtree, Charles M. Auslan-der, and George R. Baise Jr. of Crabtree & Associates, P.A., Key Biscayne, and John F. Romano and John M. Kops of Romano Law Group, West Palm Beach, for appellants.
    Kathryn L. Smith of Cole, Scott & Kis-sane, P.A., Miami, for appellee Bell Partners, Inc.
   LEVINE, J.

Appellants were injured in a car accident by a rental car paid for by an employer and authorized for an employee but driven by the employee’s husband. Appellants appeal a summary judgment in favor of the employer finding the employer not vicariously liable for the actions of the employee’s husband. We find that the trial court erred in granting summary judgment because there are material issues of fact in dispute that should be properly submitted to a jury for resolution. We also find that the trial court erred in considering new grounds for summary judgment outlined within a supplemental memorandum of law filed by the employer only three days before the hearing, which did not comport with rule 1.510. Thus, we reverse and remand.

Appellants, Kenneth Adams and Karline Jacques, were injured in an automobile collision with a rental vehicle driven by Anthony Watson. The vehicle was paid for by appellee Bell Partners, which authorized its employee, Rosalyn Watson, to rent the vehicle for business purposes. Mr. Watson is the employee’s husband. Appellants sued Bell Partners under the “dangerous instrumentality” doctrine alleging Bell Partners was vicariously liable because it authorized and paid for Mrs. Watson to rent the vehicle. Bell Partners denied liability alleging that it did not consent to the employee’s husband driving the rental car and that company policy prohibited unauthorized drivers and personal or “non-Bell business” use.

The parties filed cross-motions for summary judgment. The record evidence reveals that Bell Partners owned and operated senior living communities in Florida, Georgia, and South Carolina. Mrs. Watson frequently traveled for her work providing support, education, and training to the company’s senior living communities. Bell Partners would either reimburse her for mileage or pay for a rental vehicle for her. Mrs. Watson would typically rent cars from Hertz, because it was a vendor of Bell Partners. Mrs. Watson did not purchase additional insurance from Hertz because she was told not to during orientation at the company’s corporate office.

Mrs. Watson was never told that she could use the rental car for purposes other than transportation to and from work, although she understood the rental car was to be used for work and work-related purposes. Mrs. Watson stated that her supervisor did not object to her husband driving a rental car to Savannah, Georgia, to attend the funeral of an employee at one of Bell Partners’s communities. On another occasion, Mrs. Watson’s supervisor did not object when her husband drove a rental car to Daytona Beach, so she could work in the car on the way.

In the present case, Mrs. Watson rented the vehicle on a Friday, using a company credit card, so that she could drive to Port Charlotte on the following Monday. The document received by Mrs. Watson from Hertz listed her and her husband as authorized drivers of the rental car. On Sunday, her husband drove the rental car and got into an accident. By the next day, Mrs. Watson contacted her supervisor to inform him of the accident. According to Mrs. Watson, the supervisor told her that he let his wife drive his rental car all the time. Mrs. Watson spoke to her supervisor again and asked her supervisor to write a letter to Visa stating that the rental car was for “business purposes.” Bell Partners never reprimanded Mrs. Watson for the fact that her husband was driving the rental car.

The record also includes the employer’s travel policy which was issued in 2009 and revised in 2010. The policy states that rental cars “may be rented for Bell business use under the Bell company rental plan.” Two sections of the policy are relevant to this case:

6.3.2 Personal Use Prohibited
Employees may not use the Bell company rental plan when reserving rental cars for personal use. All vehicles rented under the Bell company rental plan are to be used for Bell business only, at all times. Employees may not make any personal use of a vehicle rented for business purposes, and may not permit any personal or non-Bell business use of such vehicle by any other person or persons.
6.3.3 Unauthorized Drivers Prohibited
Only company employees listed on the rental contract may drive a vehicle rented under the Bell Company rental plan. Under no circumstances shall a Bell employee allow a spouse, family member or non-Bell employee, or any other person, to drive a car rented under the Bell company rental plan. Violation of this policy will subject the employee to discipline, up to and including termination for the first offense.

Three days before the summary judgment hearing, Bell Partners filed a supplemental memorandum in support of the motion for summary judgment. In the memorandum, Bell Partners for the first time argued it did not have an “identifiable property interest in the subject vehicle” under ownership or bailment, and that it did not exercise “control” over the vehicle. Its initial motion for summary judgment had argued only that Mr. Watson did not have prior consent or authorization to drive the rental car, that company policy prohibited such use, and that his actions constituted a species of conversion or theft. The trial court granted Bell Partners’s motion for summary judgment finding that it was “undisputed that Bell did not own nor lease nor rent the vehicle involved in the accident.” The trial court entered final judgment in favor of Bell Partners. This appeal follows.

We review orders on summary judgment de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). “[T]he burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” GrayRobinson, P.A. v. Fireline Restoration, Inc., 46 So.3d 170, 172 (Fla. 4th DCA 2010) (quoting Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). Thus, “[i]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

In this case, appellants asserted that the dangerous instrumentality doctrine and principle of bailment make Bell Partners vicariously liable for Mr. Watson’s operation of the rental car. “Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). “Although the term ‘bailment’ is difficult to define concisely, it is generally a contractual relationship among parties in which the subject matter of the relationship is delivered temporarily to and accepted by one other than the owner.” S & W Air Vac Sys., Inc. v. Dep’t of Revenue, 697 So.2d 1313, 1315 (Fla. 5th DCA 1997). “[A] person for whose benefit a vehicle is rented and who pays the expense thereof can be found to be a bailee of the vehicle.” Brown v. Goldberg, Rubenstein & Buckley, P.A., 455 So.2d 487, 488 (Fla. 2d DCA 1984). In response, Bell Partners alleged that Mr. Watson’s driving of the rental vehicle without the prior consent of Mrs. Watson or prior authorization of Bell Partners constituted “a species of conversion or theft” which would relieve Bell Partners from vicarious liability. See Tribbitt v. Crown Contractors, Inc., 513 So.2d 1084, 1085 (Fla. 1st DCA 1987) (‘When control of a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse.”).

In Brown, the trial court granted a summary judgment finding that the law firm that rented and paid for a car for a client lacked liability. The Second District reversed, finding “authority for the proposition that a person for whose benefit a vehicle is rented and who pays the expense thereof can be found to be a bailee of the vehicle.” 455 So.2d at 488 (citing Hertz Corp. v. Ralph M. Parsons Co., 419 F.2d 783 (5th Cir.1969)). Thus, the court held that summary judgment was inappropriate because “the evidence concerning the arrangement between [the rental company] and the law firm gives rise to conflicting inferences which require that a jury resolve the issue whether the law firm was in fact a bailee of the automobile and thus liable for damages inflicted by the negligent operation of that automobile by one permitted by the firm to use it.” Id

The Florida Supreme Court has likewise expressed that an entity’s status as a “bail-ee” is a question of fact for a jury to resolve. Aurbach, 753 So.2d at 63 (“[W]hether an entity or individual is vicariously responsible as a bailee for the negligent operation of a motor vehicle may be a fact-based inquiry.”). See also Fla. Std. Jury Instr. (Civ.) 401.14(a) (vicarious liability) ; 5 Fla. Jur. 2d Bailments § 27 (“The question of whether a bailment has been established is a question of fact for the trier of fact. The question of due care or negligence by the bailee, and the degree of negligence required to impose liability on the bailee, are also questions of fact.”).

Similarly, “conflicting inferences” are raised when an entity denying vicarious liability raises conversion or theft of the subject vehicle. In Tribbitt, the employer assigned the vehicle to its employee, whose fiancée used the vehicle and subsequently got into an accident. In response to a complaint for damages resulting from the fiancée’s use of the vehicle, the employer claimed that the fiancée used the vehicle without its permission or consent thereby relieving it of responsibility for its use or misuse. The First District reversed the summary judgment for the employer finding that there was a “genuine issue ... as to whether [the fiancée's] operation of the vehicle constituted a species of conversion or theft.” 513 So.2d at 1087. The court recognized that where an owner “consented to the use of his vehicle beyond his own immediate control, he is responsible for its use or misuse unless there has been a breach of custody amounting to a species of conversion or theft.” Id. at 1086.

In the present case, whether Bell Partners is vicariously liable for Mr. Watson’s driving of the rental vehicle requires a “fact-based inquiry” of its status as a “bail-ee.” Aurbach, 753 So.2d at 63; see also 5 Fla. Jur. 2d Bailments § 27; Fla. Std. Jury Instr. (Civ.) 401.14(a). Here, there is evidence that gives “rise to conflicting inferences” which requires a jury to make a determination of facts. See Brown, 455 So.2d at 488. For example, the jury may accept the written policy of Bell Partners as to non-work related usage of rental cars, or conversely the jury could accept the testimony of the prior instances where Mrs. Watson’s supervisor acquiesced to Mrs. Watson’s husband driving rental cars paid for by Bell Partners. Furthermore, like in Tribbitt, Bell Partners could be liable for the use or misuse of the rental car depending on how the jury weighs the remaining issue of Mr. Watson’s alleged conversion. 513 So.2d at 1085-87; see also Thomas v. Atl. Assocs., Inc., 226 So.2d 100 (Fla.1969) (holding that where an employer provided an employee with a company-owned vehicle, a genuine issue of fact existed as to whether the employee’s thirteen-year-old daughter was guilty of conversion or theft when she took the keys and drove the ear without her father’s consent).

Lastly, appellants claim error in the trial court’s consideration of new grounds in support of summary judgment included in Bell Partners’s supplemental memorandum filed three days before the summary judgment hearing that were not previously raised in its motion.

Florida Rule of Civil Procedure 1.510(c) requires that a summary judgment motion “state with particularity the grounds upon which it is based and the substantial matters of law to be argued ... [and be served] at least 20 days before the time fixed for the hearing.” A court errs when it enters summary judgment upon a ground not previously raised in the initial summary judgment motion. See Orange Lake Country Club, Inc. v. Levin, 645 So.2d 60, 62 (Fla. 5th DCA 1994) (reversing summary judgment because the plaintiff did not request such relief and holding that reversal would have been warranted even if summary judgment had been requested because the plaintiffs filing of an “amendment of the statement [of particulars] three days before the hearing, [introducing] a new issue which was relied upon by [him] at the evidentiary hearing and which was held dispositive by the court, does not comply with the 20 day service provision of rule 1.510(c)”); Nelson v. Balkany, 620 So.2d 1138, 1139 (Fla. 3d DCA 1993) (“Procedurally, the hearing on the motion for summary judgment, which rested on a theory different from that which was pleaded, was held less than twenty-five days after the filing and mailing of the motion, in violation of rules 1.090(e) and 1.510(c), Florida Rules of Civil Procedure.”).

In the present case, Bell Partners’s motion for summary judgment asserted only that it could not be liable for Mr. Watson’s operation of the vehicle because it did not grant him consent, that Mr. Watson’s unauthorized use constituted conversion, and that the vehicle was not used for business purposes. In its supplemental memorandum, filed only three days before the summary judgment hearing, Bell Partners raised two new grounds: (1) it “did not have an identifiable property interest in the subject vehicle” because it was not the title owner, lessor, bailor, lessee, or bailee; and (2) it did not have possession of nor exercise dominion or control over the car. The trial court apparently relied upon these new grounds in granting summary judgment in favor of Bell Partners when it found it “undisputed that Bell did not own nor lease nor rent the vehicle involved in the accident.” Because Bell Partners’s memorandum did not comport with rule 1.510(c), the trial court erred in granting summary judgment on the new ground raised in the memorandum. See Orange Lake, 645 So.2d at 62; Nelson, 620 So.2d at 1139.

In summary, we find that the trial court erred in granting summary judgment for the employer, because the employer’s status as a “bailee” and its allegation of Mr. Watson’s conversion create genuine issues of material fact for a jury to resolve. Further, we find the trial court erred when utilizing arguments incorporated in a memorandum filed by Bell Partners in violation of rule 1.510(c). We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAMOORGIAN, C.J., and TAYLOR, JJ., concur.

      . The Florida Standard Jury Instruction for "Vicarious Liability" states:
      On the (claimant’s) claim there is a preliminary issue for you to decide. That issue is:

        a. Owner, lessee, or bailee of vehicle driven by another:

      whether (defendant) was the [owner] [lessee] [or] [bailee] of the vehicle driven by (driver) [or] whether (driver) was operating the vehicle with the express or implied consent of (defendant). A person who [owns] [is the lessee of] [or] [is the bailee of] a vehicle and who expressly or impliedly consents to another's use of it is responsible for its operation.
      [An owner of a vehicle is one who has legal title to the vehicle and who has the right of control and authority over its use.]
      [A lessee of a vehicle is one who has leased or rented the vehicle from its owner.]
      [A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by [its owner] [a person with authority over its use] for a particular purpose, with the understanding that it will be returned.]
      NOTES ON USE FOR 401.14a
      1. The general rules stated above will be appropriate in most cases in which there is an issue concerning the status of a defendant under Florida’s "dangerous instrumentality” doctrine. See generally Aurbach v. Gallina, 753 So.2d 60 (Fla.2000)....


author: KLINGENSMITH, J.

text:
    STATE of Florida, Appellant, v. Francisco BROCK, Appellee.
    No. 4D13-962.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Certification to S.Ct. Denied June 6, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    V.J. (Jimmy) Benincasa, Vero Beach, for appellee.
   KLINGENSMITH, J.

Defendant, Francisco Brock, was charged with one count of fraud under section 440.105(4)(b)9, Florida Statutes (2012). This charge arose after a wage query to the Florida Department of Revenue, Division of Unemployment Compensation database revealed that the social security number Defendant used when he was hired by Waste Pro USA was not issued to him. An investigation also revealed that Defendant was an illegal alien who had completed a “Homeland Security, 1-9, Employment Eligibility Verification form” that improperly listed this same social security number. For the reasons stated herein, we reverse the trial court’s pretrial order dismissing this charge.

Section 440.105 delineates the prohibited activities, reports, penalties, and limitations of the Workers’ Compensation Law. The portion of the section under which Defendant was charged states that it is unlawful for any person:

To knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits.

§ 440.105(4)(b)9, Fla. Stat. (2006) (emphasis added).

In his motion to dismiss, Defendant argued that: 1) Waste Pro hired Defendant knowing that the identity documents he used were either fake or false, and therefore they were not defrauded or misled by the use of the documents; and 2) Defendant had not filed a workers’ compensation claim or presented any statement in support of such a claim. Under Defendant’s theory, merely presenting false documents to gain employment, without more, does not trigger a violation under the statute.

The trial court granted the motion to dismiss, stating that it appeared the purpose of the statute related to insurance coverage and insurance claims, and that section 440.105(4)(b)9 required that the obtaining of employment or filing or supporting a claim had to be connected to workers’ compensation benefits. The court ruled that to sustain a violation under section 440.105(4)(b)9, the State was required to plead and prove not only that Defendant obtained employment by a false, fraudulent, or misleading oral or written statement as evidence of identity, but that he did so with the intent to secure worker compensation benefits. This was error.

The interpretation of a statute is a purely legal matter and subject to review de novo. Kasischke v. State, 991 So.2d 803, 807 (Fla.2008). Courts strive to construe statutes to effectuate the Legislature’s intent. See, e.g., id. at 807. In order to determine the intent, this court must first look to the statute’s plain language. Id. “Florida case law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). However, “when the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)). A departure from the letter of the statute, however, “is sanctioned by the courts only when there are cogent reasons for believing that the letter [of the law] does not accurately disclose the [legislative] intent.” State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 735, 124 So. 279, 281 (Fla.1929).

Here, the statute is clear and unambiguous. Section 440.105(4)(b)9 makes it a crime to “present ... any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment .... ” The fact that this clause is followed by the word “or” is important as it indicates the statute may be violated in more than one way: by presenting false or fraudulent documents for the purpose of obtaining employment or providing the false or fraudulent documents to file or support a workers’ compensation claim.

Although reference to legislative intent was unnecessary to reach this interpretation of the statute, our analysis confirms the legislature intended to prohibit illegal aliens from using false identification information to obtain employment, and by doing so, specifically intended to close their gateway into the Florida worker’s compensation system. After considering the newly-enacted section 440.105(4)(b)9, the Florida Senate Interim Project Report 2004-110 (December 2003) stated:

As amended by Senate Bill 50-A, the law now provides that it is a felony and insurance fraud for a person to knowingly present any false or misleading oral or written statement as evidence of identity for the purpose of obtaining employment. Therefore, if an illegal alien obtained his employment by misrepresenting his identity in order to get a job, then that person could be found to have committed insurance fraud and thus denied benefits if injured on the job.

Id. at 6. Further, the Report noted:

Representatives with the Division of Insurance Fraud within the Department of Financial Services state that the purpose of this amendment was to facilitate the arrest and prosecution of illegal aliens who have lied about their identity in order to obtain employment and then falsified their on-the-job injury. These officials state that it is often easier to prove that the illegal alien lied about his identity in order to obtain work than it is to prove the job related injury was fabricated. Many times illegal aliens are in league with unethical doctors and lawyers who bilk the workers’ compensation system, these officials claim. Proponents of the amendment also argue that undocumented workers should not be entitled to benefits because they are not legally working and are, therefore, not lawful employees.

Id. at 6-7. Therefore, it seems clear that the legislature specifically intended to make it a felony for a person to knowingly present any false or misleading identification for the purpose of obtaining employment, irrespective of the existence of any worker’s compensation claim.

Both Defendant and the State cite to Matrix Employee Leasing & FCIC/First Commercial Claim Services v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008), in support of their respective positions. In that case, the parties did not dispute the supposed violation but did argue whether this violation was cause for forfeiture of compensation benefits. The First District analyzed section 440.105(4)(b)9 only as it applied to the denial of coverage under section 440.09(4)(a). To the extent that Matrix has any application to this case, it shows that a violation under 440.105(4)(b)9 should be considered distinctly separate from whether the violation was done for the purpose of obtaining benefits.

We reverse the dismissal of the information and remand the cause to the trial court for further proceedings.

Reversed and Remanded.

DAMOORGIAN, C.J., and GROSS, J., concur.

      . The State had agreed that there was no evidence that the Defendant specifically aimed for, nor did he claim or file for, workers' compensation benefits.

      . In 2003, section 440.105(4)(b) was amended to add subparagraph nine. Workers' Compensation, 2003 Fla. Sess. Law Serv. Ch. 2003-412 (S.B.50-A) (WEST).


text:
    STATE of Florida, Appellant, v. Jordan HECTOR, Appellee.
    No. 4D13-961.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Certification to S.Ct. Denied June 9, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    V.J. (Jimmy) Benincasa, Vero Beach, for appellee.
   PER CURIAM.

Defendant Jordan Hector and co-defendant Francisco Brock were charged with one count of fraud under section 440.105(4)(b)9., Florida Statutes (2012). The trial court granted the defendants’ motion to dismiss, finding that, as the State was unable to prove that the defendants obtained employment for the purpose of workers’ compensation benefits, and that they had neither claimed, filed for, nor received workers’ compensation benefits, the defendants’ motion to dismiss was “well taken and appropriáte for granting.”

For the reasons set forth in this court’s opinion in State v. Brock, No. 4D13-962, 2014 WL 1686448 (Fla. 4th DCA 2014), we reverse the trial court’s order dismissing the fraud charge and remand the cause to the trial court for further proceedings.

Reversed and remanded for further proceedings. '

GROSS, GERBER and FORST, JJ., concur.


text:
    Jon Craig BRENDLE, Appellant, v. Martha L. JENNINGS f/k/a Martha L.J. Brendle, Appellee.
    No. 5D13-3910.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2014.
    Frank J. Bankowitz, Orlando, for Appellant.
    Lisa R. Patten and Jennifer R. Lawson, of Patten & Associates, Orlando, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Dickinson v. Dickinson, 746 So.2d 1253 (Fla. 5th DCA 1999).

TORPY, C.J., EVANDER and COHEN, JJ., concur.