author: WARNER, J.

text:
    ATLANTIS ESTATE ACQUISITIONS, INC., Appellant, v. Anthony DePIERRO and Brooks Rose-DePierro, Appellees.
    No. 4D11-295.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Gerald J. Houlihan of Houlihan & Partners, P.A., Miami, for appellees.
   WARNER, J.

A landlord appeals the trial court’s final judgment in which it found that the tenant was entitled to the return of what the court found to be advance rent on a theory of unjust enrichment, because the rent was not held in a segregated account pursuant to section 83.49(1), Florida Statutes. The court also denied the landlord’s claim that it was entitled to enforce the tenant’s obligation to pay utilities through the remainder of the lease term, finding only that the landlord was entitled to a small sum for repairs due to damage caused by the tenant. Because the lease term was one year, with rent payable in one lump sum, we conclude that the rent was not “advance rent” within the meaning of the statute, and unjust enrichment does not apply where an express contract exists. Thus, the court erred in awarding the tenant a return of the remaining rent. Because the court found that the landlord had properly terminated the lease, taking back the property for his own account, the court did not err in refusing to award the landlord the utilities payments made during the remainder of the lease term.

Appellant, Atlantis Estate Acquisitions, the landlord, owned residential rental property which it rented to the DePierros, the appellees and tenants. The tenants negotiated for a year lease term with a decrease in rent from the landlord’s asking rental price of $7,000 per month. Instead, the landlord agreed to accept $66,000 for the rent for the entire year, if the tenants paid it in one lump sum. Paragraph 4 of the lease provided: “Tenant shall pay total rent in the amount of $66,000 (excluding taxes) for the Lease Term. The rent shall be payable by Tenant in advance ... in full on 3/10/08 in the amount of $66,000.” (Emphasis added).

Paragraph 5 of the lease (which was a form lease) provided:

MONEY DUE PRIOR TO OCCUPANCY. Tenant shall ■ pay the sum of $72,000 in accordance with this Paragraph prior to occupying the Premises. Tenant shall not be' entitled to move in or to keys to the Premises until all money due prior to occupancy has been paid. If no date is specified below, then funds shall be due prior to the tenant occupancy....
Fii’st 0 month’s.rent * * * $ 5,500 due 3/10/08
Advance rent for.11 months * * ⅜ $60,500 due 3/10/08
Security deposit $ 5,500 due 3/10/08
Other Pet Deposit $ 500 due 3/10/08

When the tenants signed the lease they paid to the landlord a total of $72,000, which consisted of the $66,000 rental amount plus the security and pet deposits.

After the tenants moved into the property in March with their two teenage sons, the landlord testified that he received complaints. Police were called to the property, and after being informed of a July 4th party, the landlord had his agents inspected the property. They found significant damage to the interior.

The landlord sent the tenants a notice of termination of tenancy, indicating he was terminating the lease immediately. The notice directed the tenants to vacate the premises within seven days for intentionally destroying, damaging and misusing the premises in violation of the lease and section 83.52(6), Florida Statutes. The tenants moved out but claimed that they repaired the property before they left.

When the tenants demanded a return of the rent money, the landlord refused. The tenants then sued the landlord. In their second amended complaint against the landlord, count I sought a return of the security deposit and advance rent under section 83.49. The tenants contended that section 83.49(3) required the landlord to give notice of the landlord’s intent to assert a claim against the security deposit within 15 days of the tenants vacating the premises, or the landlord would forfeit its right to it. Count I also alleged that the landlord had failed to notify the tenant of the manner in which.the security deposit was being held during the term of the lease and did not segregate the monies held either for rent or for security deposits in a separate account, in violation of section 83.49. Count II sought a return of the advance rent alleging that the landlord breached the lease by failing to return the advance rent. The tenant sought $44,000 in the unused portion of the lease together with the $6,000 security deposit. The tenants also sought attorney’s fees.

The landlord filed an answer, affirmative defenses, and a counterclaim for breach of the lease. As to the claim for return of the unused rental monies, it contended that the rent amount of $66,000 was not advance rent but was a single payment of rent due for a single year-long rental period. The landlord contended that it did not violate section 83.49(2) by failing to segregate and hold the monies in an interest bearing account. In its counterclaim, it sought damages for breach of the lease.

After a trial on the matter, the court ruled that the $66,000 rental payment was advance rent, within the meaning of section 83.43(9), which had not been segregated in an account, and that the landlord did not post a bond to secure the advance rent for the tenant in accordance with the provisions of section 83.49(1). The court determined that the landlord would be unjustly enriched if it were permitted to keep the remaining rental monies in the amount of $38,500. It found that the landlord had violated the notice requirements of section 83.49(3) with respect to the security and pet deposits and awarded the tenant the amount of those deposits plus interest thereon. With respect to the landlord’s counterclaim, the court found that the landlord had properly terminated the lease agreement and was not in breach of the lease agreement. The court accepted that the tenants had made repairs to the property, and the landlord suffered relatively little damage as a result of the tenants’ breach of the lease. It awarded the landlord $3,524.15 in damages. It did not award the landlord the utilities payments for the premises after the tenants vacated.

The court entered final judgment awarding the tenants $6,000 for the security deposit and pet fee and $38,500 for the unused portion of the rent, plus interest on these sums. The court found that the landlord prevailed on the claim for breach of the lease and found the value of the damage remaining after the tenant made repairs was $3,524.15. The court awarded the landlord a setoff of that amount against the amount the court awarded the tenants. It reserved jurisdiction over attorney’s fees. The landlord now appeals.

In its first issue on appeal, the landlord argues that it was entitled to the utilities payments as part of its damages. The trial court found, however, that the landlord had terminated the lease. Under the lease, the landlord was entitled to seek remedies pursuant to the Landlord and Tenant Act. Section 83.595, Florida Statutes, provides the choice of remedies available to the landlord upon a breach by the tenant where the tenant has surrendered possession, including options to: 1) treat the lease as terminated and retake possession; 2) retake possession for the account of the tenant, holding the tenant liable for the difference between the rental stipulated to be paid under the lease and the amount the landlord is able to recover from reletting the property; and, 3) stand and do nothing, holding the lessee liable for the rent as it comes due. Termination under the first option also ends any further liability of the tenant under the rental agreement. The trial court found that the landlord properly terminated the lease, thus invoking the first remedy. The court’s conclusion is supported by the evidence and argument. After discovering the damage to the property, the landlord posted a Notice of Termination of Tenancy, pursuant to section 88.56(2), stating that the lease was being terminated immediately and directing the tenants to remove themselves within seven days. Although the landlord claims that it was exercising the second option, it did not make the tenant aware that it would hold the tenant liable for continuing obligations under the lease. It did not make any .demands for payment on the tenant until it filed its counterclaim in this lawsuit. At no point in the trial did the landlord argue that it was retaking possession for the account of the tenant. As the trial court’s determination that the landlord terminated the agreement was supported by competent, substantial evidence, we affirm the trial court’s denial of the utility payments which came due after termination of the lease.

The trial court awarded $38,500 in rent to the tenants as unjust enrichment, because it determined that the rent was advance rent which should have been segregated by the landlord from the landlord’s other monies. We disagree that the $66,000 rental payment constituted advance rent under the Landlord and Tenant Act. Section 83.48(9) defines “advance rent” as “moneys paid to the landlord to be applied to future rent payment periods, but does not include rent paid in advance for a current rent payment period.” Section 83.49(1) requires that the landlord hold advance rent in segregated accounts “[wjhenever money is deposited or advanced by a tenant on a rental agreement ... as advance rent for other than the next immediate rental period .... ” (Emphasis supplied).

In this case, the lease provided for a rental period of one year, with the entire $66,000 due at the beginning of the rental period. This was supported by unrebutted testimony that the parties negotiated for a year’s rental with a single payment rental for a reduced amount, not eleven installments. The rental payment period is yearly. See § 83.46(2), Fla. Stat. Therefore, the $66,000 was not being held for a future rental period but was paid for the current year’s rental. It did not constitute advance rent within the meaning of the Landlord and Tenant Act. See § 83.43(9), Fla. Stab Because it was not advance rent, the landlord did not have an obligation under section 83.49(1) to segregate the rental payment or to post a bond to secure the tenants’ rent payment.

In any case, even if this were advance rent, the landlord argues that it still would have been entitled to retain the unused portion of the money which the tenants paid. We agree. In Florida, if a lessee pays rent in advance and the lease is properly terminated by the lessor, then the lessor is not required to return the advance rental payment, citing Wagner v. Rice, 97 So.2d 267 (Fla.1957), which holds:

[Wjhere a lessee pays rent in advance and the lease is properly terminated by the lessor before the advanced rental payment is consumed by occupancy of the tenant the lessor is not obligated to return to the lessee the amount of the advance rental payment that would otherwise have applied beyond the date of the termination.

Id. at 271 (citations omitted). The landlord was entitled to keep the full amount of the rental payments based upon this well settled law.

Further, the court erred in using unjust enrichment to return the money to the tenants. Unjust enrichment cannot apply where an express contract exists which allows the recovery. See Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So.2d 696, 697 (Fla. 1st DCA 2008) (“Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter.”); Moynet v. Courtois, 8 So.3d 377, 379 (Fla. 3d DCA 2009) (same). The failure to hold the rental payment in escrow for the tenant was neither required by statute, nor a ground for claiming unjust enrichment.

Because we conclude that the trial court should not have awarded the return of the rental payment to the tenants as unjust enrichment, we reverse the final judgment for entry of a new judgment in accordance with this opinion by eliminating recovery of the rental amounts by the tenants. The court should also reduce the interest awarded in the final judgment accordingly. Because of our ruling on the appeal issues, we affirm on the tenant’s claims of entitlement to attorney’s fees raised in their cross-appeal as well as the other issues raised by the landlord.

CIKLIN and LEVINE, JJ., concur.

      . Section 83.49(3)(a), Florida Statutes, provides:
      Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:
      This is a notice of my intention to impose a claim for damages in the amount of _ upon your security deposit, due to_It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).

      If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.


source: Caselaw Access Project

author: TAYLOR, J. LEVINE, J.,

license: Public Domain

text:
    Edward HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants, v. INTRACOASTAL CARDIOLOGY CENTER, Mitchell D. Silver, M.D., individually, and Mitchell D. Silver, M.D., P.A., Appellees.
    No. 4D11-1214.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Mark S. Weinstein of Weinstein & Wein-stein, P.A., Weston, and Roy D. Wasson of Wasson & Associates Chartered, Miami, and George A. Vaka of Vaka Law Group, Tampa, for appellants.
    Scott L. Mendlestein and Tiffany A. Hil-ler of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, and Rose Marie Antonaeci-Pollack of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appel-lees.
   TAYLOR, J.

Edward Herman, individually and as personal representative of the Estate of Miriam Herman, his late wife, timely appeals a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. After a careful examination of the record, we conclude that this case fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice and therefore reverse.

The Lawsuit

In November 1999, Miriam Herman filed a medical malpractice lawsuit against her cardiologist, Dr. Mitchell Silver, alleging that Dr. Silver caused her to go into renal failure by negligently failing to obtain a nephrology consult before clearing her for open heart surgery in April 1997. After her death in May 2001, her husband of nearly 50 years, appellant Edward Herman, was appointed as the persona! representative of her estate, and the case converted to a wrongful death suit.

Discovery

In October 2002, then-defendant Bethesda Memorial Hospital propounded requests for production, one of which asked for “any notes or diaries maintained by Edward Herman or Miriam Herman that pertain to the issues raised in this lawsuit.” A few days later, Dr. Silver’s counsel served the exact same request for production, including the same request for diaries. In January 2003, the trial court entered summary judgment in favor of Bethesda, thus removing Bethesda from the case.

Although Mr. Herman did, in fact, keep a diary chronicling his wife’s medical condition from March 1997 (when she was admitted into the hospital) to July 1997, this diary was never disclosed to the defense in discovery. Mr. Herman simply never responded to either Bethesda’s or Dr. Silver’s request for. production. In August 2003, Dr. Silver filed a motion to compel production, but that motion was never set for hearing and the court never ruled on it.

First Trial

In 2006, the case went to trial. The plaintiff presented expert testimony from a cardiologist that Dr. Silver negligently failed to get a nephrology consult in spite of clear signs (based on Mrs. Herman’s BUN/creatinine levels) that, she needed treatment before being cleared for surgery. He also presented expert testimony from a nephrologist that any reasonable nephrologist would have implemented treatment and medication that would have prevented her from going into renal failure, given her medical condition.

At trial, Mr. Herman testified at length about his background, his life with Mrs. Herman, and the medical care she received. Mr. Herman testified that the first time he ever learned anything about Mrs. Herman’s renal insufficiency was when she was in the hospital after the surgery. He also testified that, before the surgery, his wife rode bicycles, went for walks, and danced.

Mrs. Herman’s deposition was taken before her death and the deposition recording was played at trial. Similar to Mr. Herman’s testimony, Mrs. Herman denied that she had problems with her kidneys prior to the surgery. She also testified that she would routinely take walks with her husband for exercise. She was not specifically asked about whether she rode bicycles or went dancing.

The Hermans’ daughter, Susan Wino-grad, testified at trial regarding her- mother’s physical activity, recounting how the family would go bike riding when she was younger. She also testified that her mother was a vibrant woman who loved dancing, but explained that her mother had to give up dancing after the surgery.

The 2006 trial resulted in a hung jury, and the case was eventually scheduled to be retried in 2010.

The Disclosure of the Diary

Shortly after Thanksgiving of 2009, Mr. Herman and Ms. Winograd had a serious argument, which culminated in Mr. Herman threatening to take her out of his will. Ms. Winograd then sent a letter to defense counsel, asserting that her father’s testimony at trial contained “many lies” and informing defense counsel of the existence of her father’s diary regarding Mrs. Herman’s medical condition.

Motion to Dismiss for Fraud

Dr. Silver subsequently filed a motion to dismiss the case for fraud upon the court. The motion alleged, in pertinent part, that Mr. Herman committed perjury in his September 2000 deposition and in his trial testimony, and that Mr. Herman intentionally withheld a diary which contradicted his sworn testimony.

The trial court held an evidentiary hearing on the motion to dismiss. At the hearing, the defense presented testimony from Ms. Winograd, Beatrice Lebow (Mrs. Herman’s sister) and Leonard Lebow (Mrs. Herman’s brother-in-law). Plaintiffs counsel requested that the trial court review Mr. Herman’s 2010 updated deposition, in which he responded to the allegations against him, in lieu of having someone read the deposition in open court.

The Alleged Falsehoods

The defense presented evidence which, according to the defense, contradicted Mr. Herman’s testimony regarding his personal background as well as more substantive issues. The contradictions (or alleged contradictions) relevant to this opinion are as follows:

1) The Decedent’s Activity Level. At trial, Mr. Herman testified that, before the surgery, his wife rode bicycles, walked, and danced. However, at the evidentiary hearing, Ms. Winograd testified that none of this was true; she claimed that her father pressured her before the trial to lie and testify that her mother rode bicycles, danced, and did a lot of walking.
2) Jacket Testimony. At trial, Mr. Herman testified that his deceased wife was “with us today,” telling the jury that he was wearing a jacket that his wife bought for him. However, his daughter testified that he fabricated the story about the jacket, that his new wife, Sally, actually bought him the jacket, and that he later joked with Sally about his testimony regarding the jacket.
3) Kidney Problems Pre-Surgery. At trial, Mr. Herman testified that the first time he ever learned anything about Mrs. Herman having renal insufficiency was when she was in the hospital after the surgery. However, Mr. Herman’s diary contains several references to his wife’s kidney problems during her hospitalization in the weeks leading up to the surgery.
4) Risks of Surgery. At trial, Mr. Herman gave the following testimony regarding whether the doctors explained the risks of stroke and renal failure: “They discussed the risk of the surgery, assuming or on the basis that it was going to go favorably, but they never did discuss with us the eventualities if it didn’t go right, Dr. Silver. And that wasn’t something that was explained to us.” However, in his diary, Mr. Herman mentions that Dr. Silver discussed the risk of stroke and that Mrs. Herman would be placed on a blood thinner to reduce the risk of clotting.
5)Option of Different Hospital. At trial, Mr. Herman testified that he did not recall having a discussion with Dr. Silver in which Dr. Silver told the Hermans to consider going to a university hospital due to the seriousness of the situation. Specifically, Mr. Herman testified: “No. The essence of what you’re saying is that they didn’t have a cardiologist unit in Bethesda. It was as simple as that. They couldn’t perform the procedure there, so they had to find another hospital. And that’s how we ended up in Delray.” However, Mr. Herman’s diary alluded to a possible transfer to a university hospital.

Order of Dismissal

The trial court took the matter under advisement and later entered a written order dismissing the case for fraud on the court. The trial court did not rely upon the alleged falsehoods in Mr. Herman’s testimony regarding his personal background, finding that they were “relatively minor” and could be left as fodder for cross-examination.

The court went on to find, however, that Mr. Herman “also gave false testimony that goes to the very issues presented to the jury in this case.” The court found that he gave false testimony regarding his •wife’s active lifestyle leading up to the surgery, such as her actively biking, dancing, and walking, all of which was offered to establish the alleged damages occasioned by the surgery. The court also found that he “persuaded his daughter to support this fiction” at trial, giving her a list of topics to be covered and stressing the importance of telling the jury that Mrs. Herman was active prior to the subject surgery.

The court also found that Mr. Herman’s diary chronicling his wife’s medical treatment was never produced during discovery even though “multiple discovery requests required the production of the diary.” The court found that the diary directly contradicted Mr. Herman’s sworn testimony at trial in several key respects: “This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of the surgery and the option of having the surgery performed at a hospital in Miami.”

Lastly, the trial court concluded that Mr. Herman had gone so far in his efforts to mislead the jury that he testified at trial that Mrs. Herman was “with us today” because he was wearing a jacket that Mrs. Herman purchased for him. However, according to Ms. Winograd’s testimony, which the trial court found to be credible, the jacket was purchased by Mr. Herman’s second wife, Sally, after Miriam Herman’s death.

The trial court denied Mr. Herman’s motion for rehearing, prompting this appeal.

Analysis

On appeal, Mr. Herman argues that the trial. court’s dismissal of the case was an abuse of discretion because there was no clear and convincing evidence that he perpetrated a fraud on the court. We agree.

The trial court has the inhérent authority, in the exercise of its sound judicial discretion, to dismiss an action when the plaintiff has perpetrated a fraud on the court. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). “Although a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court’s discretion is narrowed where dismissal is imposed for fraudulent conduct- such as that alleged here, in which a more stringent abuse of discretion standard is appropriate.” Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 374 (Fla. 4th DCA 2003).

Although a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction only in extreme circumstances. JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 113 (Fla. 4th DCA 2010). The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Arzuman v. Saud, 843 So.2d 950, 952 (Fla. 4th DCA 2003) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). “Because ‘dismissal sounds the death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.’ ” Arzuman, 843 So.2d at 952 (citations omitted).

When imposing this harshest of sanctions, trial courts should weigh the “policy favoring adjudication on the merits” with the need to “maintain the integrity of the judicial system.” Id. Except in the most extreme cases where it appears that the process of the trial has itself been subverted, simple factual inconsistencies and “even- false statements” are well managed through the use of impeachment and traditional discovery sanctions. Granados v. Zehr, 979 So.2d 1155, 1158 (Fla. 5th DCA 2008); Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003). To support a dismissal, the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002).

The Fifth District’s decision in Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998), is one of the leading decisions on dismissals for fraud. In Cox, the plaintiff in a legal malpractice action, which was based on the defendants’ representation of her in an underlying medical malpractice claim, gave false or inconsistent information regarding her identity, whether she had a driver’s license, her social security number, and whether she had sustained any fractures or other trauma prior to the accident at issue. Id. at 45-46. The trial court dismissed the action with prejudice. Id. at 46. On appeal, the Fifth District reasoned that although some of the alleged fraud was unproven, the plaintiff had been shown “to have given many false or misleading answers in sworn discovery that either appear calculated to evade or stymy discovery on issues central to her case.” Id. at 47. Although the Fifth District expressed some doubt about the trial court’s decision to dismiss, the appellate court nonetheless deferred to the trial court’s judgment because it was a close case: “While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion.” Id.

Case law after Cox has emphasized that “Cox presented an extremely unusual fact pattern, wholly unlike the more conventional impeachment issues that have shown up in some more recent decisions.... ” Ruiz, 859 So.2d at 576. Indeed, the Fifth District acknowledged that in Cox it had “apparently underestimated” the “seductive power” of the remedy of dismissal. Id. at 575. Therefore, subsequent cases “have tried very, very hard to explain, and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved.” Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). “A testimonial discrepancy is usually not enough; there should be clear and convincing evidence of a scheme calculated to evade or stymie discovery of facts central to the case. This will almost always require an evidentiary hearing.” Id. As Judge Griffin pointed out in her specially concurring opinion in Bologna: “We all know that the capacity to remember and the categories of what we remember varies widely among individuals and depends on a number of common factors, such as age, stress, fatigue, emotion. I am skeptical that all of the plaintiffs in the recent profusion of ‘fraud on the court’ cases are thieves and perjurers.” Id. at 530 (Griffin, J., concurring).

Here, we conclude that the trial court abused its discretion in imposing the most severe sanction of dismissal. Having conducted a thorough review of the record below, we find that the record simply fails to demonstrate clearly and convincingly that Mr. Herman sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate the matter.

With respect to the grounds that the trial court relied upon in dismissing the case, the alleged falsehoods or inconsistencies in this case were either: 1) in the nature of disputed issues of credibility which were best left for the jury to decide; 2) not actual inconsistencies at all; or 3) immaterial to the central issues in the case.

Although the trial court found Ms. Winograd’s testimony to be credible, we simply cannot accept that her testimony provided clear and convincing evidence warranting dismissal of the case. Indeed, the only person who has admitted to giving contradictory testimony in this matter is Ms. Winograd, a witness whose bias may have resulted from being cut out of Mr. Herman’s will.

Notably, most of Mr. Herman’s alleged falsehoods were not objectively verifiable lies. Rather, they were actually in the nature of disputed issues of fact which were best left for the jury to decide. For example, although Ms. Winograd testified that Mrs. Herman did not purchase the jacket that her father wore at the. 2006 trial, Mr. Herman again testified in his 2010 deposition that Mrs. Herman in fact purchased the jacket. This is simply a credibility dispute, better left for a jury to resolve.

Likewise, there is no uncontroverted proof that Mr. Herman lied about his wife’s activity levels before the surgery; rather, this was simply a case where his daughter claimed at the evidentiary hearing that he had lied about his wife’s activity levels at the 2006 trial and that he pressured her into supporting' this lie. But Mr. Herman denied this in his 2010 deposition. Moreover, Mr. Herman’s trial testimony was also supported by the deposition of Mrs. Herman herself, which was taken before her death, wherein she claimed that she and her husband would routinely take walks for exercise. Mr. and Mrs. Herman would have been in the best position to know Mrs. Herman’s activity levels before the surgery; Ms. Winograd, by contrast, did not live with her parents. The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter. Furthermore, although the testimony regarding Mrs. Herman’s activity levels had some relevancy to damages, it is questionable that Mr. Herman’s brief testimony on this issue at the original trial was a central issue in the case.

The trial court also focused on three' alleged inconsistencies between Mr. Herman’s diary and his trial testimony: “This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of the surgery and the option of having the surgery performed at a hospital in Miami.” However, contrary to the trial court’s findings, much of Mr; Herman’s testimony as to these matters either did not go to the heart of the claim or was not materially inconsistent with his diary.

To be sure, there was an inconsistency on the issue of when Mr. Herman remembered his wife developing kidney problems. Mr. Herman did testify at trial that the first time he learned of any renal insufficiency in his wife was after the surgery, but in his diary (which he started keeping a few weeks before the surgery) he made several references to his wife experiencing kidney problems during her hospitalization before the surgery. This discrepancy, however, is not particularly pertinent to the medical malpractice claim. The entire theory of the plaintiffs case was that Dr. Silver negligently failed to get a nephrology consult in spite of clear signs that Mrs. Herman was having kidney problems before the surgery. Indeed, the second amended complaint specifically alleged that Mrs. Herman had a “known history of renal insufficiency” and that Dr. Silver failed to take proper precautions before the surgery in light of this renal insufficiency. Therefore, any inconsistency between Mr. Herman’s testimony at trial that the first time he learned of his wife’s renal insufficiency was after the surgery, and his notes in his diary mentioning the renal insufficiency a little over two weeks before the surgery, is the type of simple factual inconsistency best left for cross-examination. This inconsistency was not particularly material to the claim and cannot be deemed to have been a calculated scheme to interfere with the judicial system’s ability to adjudicate the matter impartially.

Second, Mr. Herman’s testimony regarding the doctors informing him and his wife of the risks of surgery was not actually inconsistent with his diary. Mr. Herman’s diary did mention some of the risks explained to the Hermans before the surgery. However, when Mr. Herman’s testimony at trial is read fully and in context, it was not inconsistent with his diary. His testimony at trial acknowledged that he and his wife consented to the ordinary risks attendant to the surgery, which included renal failure. He was merely suggesting in his testimony that he and his wife were not warned of, and did not consent to, the risks of surgery occurring as a result of the doctors doing something wrong. In any event, even if there were a discrepancy on this issue, it is hardly relevant given that the plaintiffs never asserted a claim that the surgery was performed without the decedent’s informed consent.

Finally, the alleged inconsistency regarding whether the surgery could have been performed at a , university hospital in Miami does not go to the heart of the case. Any inconsistency on this issue is immaterial, as it would not unfairly hamper Dr. Silver’s defense. Indeed, the fact that Mrs. Herman could have gone to another hospital is not a defense at all to the medical malpractice claim. The entire basis for the lawsuit is that Dr. Silver negligently cleared her for surgery. The hospital where the surgery ultimately occurred was irrelevant.

Conclusion

The casés where appellate courts have affirmed dismissals for fraud invariably involved situations where the fraud was blatant and uncontroverted. See, e.g., Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011-12 (Fla. 4th DCA 2008) (noting that the plaintiff “intentionally omitted significant information” on multiple answers and that “there was no excuse given for these blatant omissions”). This case does not fall into that category. The evidence of fraud in this case was hardly uncontrovert-ed. The case at bar presented conventional impeachment issues and was unlike the “extremely unusual fact pattern” in Cox, where “there was a significant amount of evidence suggesting that the court could not even be confident of who the plaintiff was, much less what had happened to her.” Ruiz, 859 So.2d at 576.

The dissent maintains that we are intruding too much into the trial court’s discretion, suggesting that the trial court did not abuse its discretion because “reasonable minds could differ as to the propriety of the trial court’s decision.” However, our standard of review is less deferential than an ordinary abuse of discretion standard. The reasonableness of the trial court’s decision must be judged in light of the narrowed discretion afforded to trial judges when imposing the extreme sanction of dismissal.

The dissent also portrays the trial court’s ruling as a simple credibility determination that the court resolved against the plaintiff. But the dissent’s view, if taken to its logical conclusion, could seriously jeopardize the invaluable right to trial by jury. In our view, no reasonable trial judge would have dismissed the case for fraud where many of the alleged inconsistencies did not pertain to central issues in the case, and where the remaining evidence regarding the alleged fraud was so hotly disputed. “The power to resolve disputes over the truth or falsity of claims belongs to a jury.” Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003). As the Jacob court explained:

Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B’s claim fraudulent and subject to dismissal?

Id. at 1169. Here, the trial judge was substituting its judgment for that of the jury on issues of credibility that were fundamentally jury questions.

We conclude that the nature and substance of any inconsistencies and contradictions in this case required the trial court to consider a lesser sanction, reflecting the proper balance between the policy favoring adjudication on the merits and the need to maintain the integrity of the judicial system. See Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349, 353 (Fla. 3d DCA 2012) (“Even if the record in this case could give rise to some inference of willful or intentional conduct, the nature and substance of the inconsistencies and contradictions required the trial court to consider some lesser sanction, reflecting the proper balance of competing interests and appropriately tailored to address the party’s conduct and the resulting prejudice.”). This case simply fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice. We therefore reverse the order of dismissal.

Reversed.

CIKLIN, J., concurs.

LEVINE, J., dissents with opinion.

LEVINE, J.,

dissenting.

I respectfully dissent from the majority opinion. I do not believe that the trial court abused its discretion by dismissing the case after determining that appellant had presented false testimony to the jury and the trial court. .

To illustrate that the trial court did not abuse its discretion in the present case, I quote the following from the trial court’s well-reasoned order:

However, Mr. Herman also gave false testimony that goes to the very issues presented to the jury in this case. He falsely testified that his wife led an active life leading up to the subject surgery. He described her as actively biking, dancing and walking. All of this testimony was offered to establish the alleged damages occasioned by the surgery. All of this testimony was false.
More disturbingly, Mr. Herman persuaded his daughter to support this fiction. Prior to trial, Ms. Winograd was given a list of “topics” that would be covered at trial. Mr. Herman continued to stress to Ms. Winograd the importance of telling the jury that Miriam Herman was active prior to the subject surgery. Ms. Winograd testified she went along with her father at the time of trial, but this testimony was false.
Perhaps of more significance, the Plaintiff maintained a diary which chronicled his wife’s medical treatment, including her interaction with Dr. Silver, the defendant in this case. This diary was never produced during discovery in this case and its existence was not revealed until December of 2009 when Ms. Winograd contacted defense counsel.... While the Plaintiff asserts that the diary was not requested, the Court concludes that multiple discovery requests required the production of the diary.
The diary directly contradicts Mr. Herman’s sworn testimony at trial in several key respects. ■ This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of surgery and the option of having the surgery performed at a hospital in Miami.
This is not a case where Mr. Herman “fudged” a few facts to make himself look better in the eyes of the jury. The Court concludes that Mr. Herman consciously set out to mislead the Court and the jury with the only possible motivation being pecuniary gain.

The trial court heard testimony at an evidentiary hearing on appellee’s motion to dismiss, and determined that appellant’s daughter and appellant’s sister-in-law were credible witnesses. The trial court then determined, based on testimony the trial court expressly found credible, that appellant gave false testimony that went “to the very issues presented to the jury in this case.” Significantly, the trial court relied in great part on the diary kept by appellant, which the trial court determined “directly contradicts Mr. Herman’s sworn testimony at trial in several key respects.” As this court has stated,

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”

JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 113 (Fla. 4th DCA 2010) (citation omitted).

In Bass v. City of Pembroke Pines, 991 So.2d 1008 (Fla. 4th DCA 2008), this court “tested” “[t]he standard of review applicable to orders imposing sanctions for fraud upon the court.” Id. at 1009. In Bass, the plaintiff, in answering interrogatories and in deposition testimony, omitted information regarding her medical history. The plaintiff primarily failed to disclose her history of migraine headaches and the names of several physicians who had treated her for these headaches. On appeal of the trial court’s decision to dismiss for fraud on the court, this court first noted that “the limited scope of our review ... dictates the outcome of this appeal.” Id. at 1011. We ultimately deferred to the “specific findings by the trial court” that the plaintiffs discovery responses were “absolute, intentional, and untruthful,” and affirmed the sanction of dismissal because “reasonable minds could differ on the imposition of this sanction.” Id. at 1012.

In this case, even under a narrowed abuse of discretion standard, a reasonable judge could find that the evidence of false testimony justified dismissal. Even if one were to find the analysis a “close call,” that would not justify overturning the trial court’s factual findings and final determination. This court found, regarding a trial court’s decision concerning a motion to dismiss for fraud on the court, that “[t]he ultimate question is ‘whether reasonable minds could differ as to the propriety of that decision.’ ” JVA Enters., 48 So.3d at 113 (quoting Bass, 991 So.2d at 1011). We found “that reasonable minds could differ under the facts of th[at] case.” Id. Similarly, under the facts of the present case, reasonable minds could differ as to the propriety of the trial court’s decision. See id. (noting “the issue is not whether any member of this panel would make the same decision as the trial judge”).

Although one conceivably may find a lesser sanction to be a more appropriate sanction, that is not our standard. “While this court might have imposed a lesser sanction, the question in this ease is close enough that we cannot declare the lower court to have abused its discretion.” Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998). Clearly, the trial court’s determination that appellant’s daughter and sister-in-law were credible witnesses, in conjunction with the trial court’s reliance • on a diary written by the appellant himself would, at the least, constitute the type of evidence that is “close enough” for our court not to find the trial court to have abused its discretion. The majority goes into detail reviewing the evidence presented to the trial court at the evidentiary hearing on the motion to dismiss. The majority, for example, determines that “[ajlthough the trial court found Ms. Wino-grad’s testimony to be credible, we simply cannot accept that her testimony provided clear and convincing evidence warranting dismissal of the case.” Aside from the clear deference we must accord the trial court’s determination of credibility, this determination also fails to account for the cumulative evidence heard by the trial court on the several issues determined to be key by that judge. See, e.g., McKnight v. Evancheck, 907 So.2d 699, 701 (Fla. 4th DCA 2005) (“the trial court was within its discretion to determine that the misrepresentations made by [plaintiff] permeated the case”). Here, the trial court acted within its discretion in finding that appellant’s falsehoods at trial about the timing of Mrs. Herman’s kidney problems, about what appellant and Mrs. Herman had been told regarding the risks of surgery, and about Mrs. Herman’s activity levels were sufficiently “central” to the case to justify dismissal. Put another way, I respectfully disagree that the evidentiary conflicts in this case presented “classic jury question[s],” because the trial court could have properly found, in contrast, that appellant’s falsehoods in their totality rose to the level where “the process of trial has itself been subverted.” Cross v. Pumpco, Inc., 910 So.2d 324, 328 (Fla. 4th DCA 2005).

The majority quotes with approval from Jacob v. Henderson, 840 So.2d 1167, 1169 (Fla. 2d DCA 2003), that “every intersection claim” with “ten eyewitnesses” could be subject to dismissal as a fraudulent claim. I believe the facts in this case are quite different from the Jacob court’s hypothetical scenario with the differing perceptions and memories of “driver A” and “driver B.” Every time individuals testify at odds with each other does not mean that there is fraud being perpetrated on the court. Witnesses can view the same incident and in good faith perceive different results.

What makes this case different from the Jacob court’s scenario is the differing testimony from the same witness: the testimony of appellant at the first trial, and the contradictory evidence emanating out of the extrinsic evidence of appellant’s diary. My view that the trial court’s ruling on the motion to dismiss should be sustained is limited to the unusual facts of this case. After all, as a practical matter, how many times would one expect to see the appearance of a litigant’s diary, whose authorship is undisputed by both sides, contradict the previous trial testimony of the very author of the diary?

The inevitable result of our overturning the trial court’s dismissal for fraudulent conduct, on the unique facts of this case, is that one will be hard pressed in the future to find other factual scenarios in which dismissals for fraudulent conduct will be sustained on appellate review.

In summary, I find that the trial court did not abuse its discretion in imposing the sanction of dismissal, and I would affirm the trial court.

      . With respect to Mr. Herman's tendencies to self-aggrandize his personal background, the trial court expressly declined to rely upon this testimony as the basis for the dismissal. Therefore, these alleged falsehoods are not relevant to this appeal.

      . It appears that the trial court was merely noting that the diary should have been produced in discovery (a point which Mr. Herman concedes). We do not interpret the court’s order as dismissing the case for a simple failure to respond to a request for production. Instead, the court dismissed the case because the court believed the diary demonstrated that Mr. Herman gave false testimony. However, if the trial court in fact meant to rely upon the failure to produce the diary as a ground for dismissal, this would have been error, as the trial court never issued an order compelling Mr. Herman to respond to the discovery. See Garvin v. Tidwell, 126 So.3d 1224, 2012 WL 5232224 (Fla. 4th DCA Oct. 24, 2012) (sanctions for a discovery violation are not an appropriate remedy where the opposing party did not file a motion to compel and the trial court did not issue an order compelling discovery).

      . Particularly, the majority suggests that the testimony of Ms. Winograd regarding Mrs. Herman’s activity levels was not "uncontro-verted proof,” because it conflicted with testimony of appellant and Mrs. Herman, and Ms. Winograd did not live with her parents. The majority also states that Ms. Winograd’s testimony is not "clear and convincing evidence” because she, as opposed to appellant or Mrs. Herman, "has admitted to giving contradictory testimony in this matter,” and her "bias may have resulted from being cut out of Mr. Herman’s will.” Again, however, the trial court stated that it expressly found the testimony of Ms. Winograd to be credible. Under our standard in cases involving dismissals for fraud upon the court, ”[t]o justify reversal, .it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination.” Baker v. Myers Tractor Servs., Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000) (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)).


text:
    John McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1253.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction for armed sexual battery on the grounds that the trial court erred in denying his motion to suppress incriminating statements that he made to police during questioning. He claims that when he made a request for an attorney, questioning should have stopped. In addition, he claims that he was entitled to know the charges against him, and the officers did not provide that information during questioning. We conclude that the investigating officers did not violate appellant’s Miranda rights. We affirm his conviction.

Officers investigating a “cold case” of sexual battery from 1989, where the victim was raped by an assailant brandishing a knife, received information in 2010 which matched appellant to DNA evidence obtained from the crime scene. Detectives obtained an arrest warrant and a search warrant for the defendant/appellant, John McKenzie.

The detectives arrived at McKenzie’s place of business and asked that he accompany them to the police station, which he did voluntarily. When the officers approached him, they did not arrest him, and they did not put him in handcuffs or take his wallet or cell phone from him. At the station, the lead detective told him they wanted to ask him some questions. McKenzie said he thought he was under arrest for something. The officers stated that they wanted to ask him some questions, so they read him his Miranda rights. When they read him his right to have an attorney present, the following exchange occurred:

[Detective 1]: You have the right to the presence and representation of a lawyer of your choice before you make any statements or answer any questions. Do you understand that?
Mr. McKenzie: I think I’d like a lawyer. [Detective 1]: Okay.
Mr. McKenzie: Just go ahead and tell me what I’m here for.
[Detective 2]: We’re going to explain everything to you. But if you want to speak to an attorney then that is your decision. If you want to speak to an attorney then we are not allowed to talk to you anymore.
Mr. McKenzie: Can you at least tell me what you want? I mean I have no problem cooperating.

The detective again instructed McKenzie regarding his Miranda right to an attorney, to which he replied, “I think I’d like a lawyer, because you won’t tell me what you want.” The detectives continued reading him the remainder of his rights, asking him if he understood all of them, which he responded that he did. At the end, the detectives said:

[Detective 1]: Do you understand these rights as I’ve read them to you and agree to speak with us?
Mr. McKenzie: I’ve got doubts until you tell me why I’m here.
[Detective 2]: So are you willing to talk to us or not, that’s not what you’re saying.
Mr. McKenzie: I agree, sir.

The detectives then started inquiring about his activities in 1989, and McKenzie again tried to find out why he was being interrogated. The officers then mentioned a burglary, and after continuing to be vague about the incident, he again said he thought he wanted a lawyer because he didn’t know what the officers wanted.

[Detective 2]: I’m going to eventually tell you, but you’re bringing up the lawyer issue again and I don’t want to — I don’t want to force you to—
Mr. McKenzie: I’m willing to talk to you—
[Detective 2]: (Unintelligible)
Mr. McKenzie: You guys come in in full SWAT and you took me out of my — and I think I’m under arrest. Am I under arrest?
[Detective 2]: Well, I’m not going to lie to you. I mean, I have probable cause to arrest you.
Mr. McKenzie: Okay.
[Detective 2]: I’m asking you, do you want to continue this conversation with you, what is it that you want to do? Mr. McKenzie: I would like to request an attorney. I don’t know why you’re holding me here.

Prior to this last request for an attorney, McKenzie admitted to the detectives that he worked for a company that managed properties in the area of the condominium where the crime occurred; that he did not have any relatives or friends who lived in the area of the crime; and, that he had never been in the condominium in which the victim was assaulted.

The state stipulated that the statements made after the last point that McKenzie said he would like a lawyer were inadmissible. After the state charged appellant with the crime, he moved to suppress his statements made prior to that time. He claimed that the detectives were required to cease questioning upon his first request for a lawyer. In addition, he asked the detectives what he was being questioned for, and they refused to answer. In denying the motion, the trial court- determined that the request for a lawyer was actually equivocal:

I think what you’re watching is a cat and mouse game on both sides....
The police clearly were in the process of arresting Mr. McKenzie.... I’ll find that the conduct and the answers to the question of the police would leave a reasonable person in question as to whether or not he was being arrested. And so, Mr. McKenzie, it appears to me, and I find was participating in this dialogue to try to figure out what the police knew or didn’t know, and he wanted to hear some more from the police.
It was certainly reasonable for him to ask am I under arrest? But I agree with the State’s characterization of that as that’s not a question about the invocation of rights as viewed by Anderson or Almeida ....
And I’ll find that Mr. McKenzie’s response or comments about well, maybe I should get an attorney were equivocal. And even if not equivocal, he would rein-itiate a dialogue once it seemed that the stop would happen. There’s a couple of times on the tape where he said something about a lawyer. Everybody stops, and then McKenzie, himself, is the one that is not reinitiating dialogue between them.
So throughout that process, I don’t think that there was an unequivocal invocation of a right to an attorney. And even if so, it was McKenzie that reiniti-ated dialogue.

At trial the detectives testified to the statement given by McKenzie, over renewed objection based upon violation of Miranda. A forensic expert testified that McKenzie’s DNA matched the DNA from the semen taken from the victim. The jury convicted McKenzie of sexual battery while armed with a deadly weapon, and the court sentenced him to life in prison. He appeals, claiming that the court erred in denying his motion to suppress.

On appeal, the trial court’s findings of fact are given deference, but its application of the law to those facts is reviewed de novo. See State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001).

Under the well-settled principles of Miranda, once a suspect unequivocally invokes the right to counsel, all interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28. Where, however, the invocation is equivocal, police do not have a duty to stop custodial questioning. See State v. Owen, 696 So.2d 715, 717-18 (Fla.1997). Owen adopted the reasoning of Davis v. United States, 512 U.S. 452, 462, 114 S.Ct. 2350, 2357, 129 L.Ed.2d 362 (1994), in which the Court found the statement, “Maybe I should talk to a lawyer,” to be an equivocal request for counsel which did not require the police to cease questioning the suspect.

After making an unequivocal request for counsel, the police may not reini-tiate interrogation until the suspect has counsel, “although the suspect is free to volunteer a statement to police on his or her own initiative at any time on any subject in the absence of counsel” and thus waive the invocation of his right. Traylor v. State, 596 So.2d 957, 966 (Fla.1992). Reinitiating contact may be in the form of a question to the interrogating detectives. In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Court dealt with what constituted reinitiation of contact after a suspect invoked his right to counsel and officers ceased interrogation. In that case the suspect reiniti-ated contact by asking the officers, “Well, what is going to happen to me now?” Id. at 1045, 103 S.Ct. 2830. In determining that the suspect had waived his Miranda right, the Court explained:

There can be no doubt in this case that in asking, “Well, what is going to happen to me now?”, respondent “initiated” further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ].
Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officers as relating generally to the investigation. That the police officer so understood it is apparent from the fact that he immediately reminded the accused that “you do not have to talk to me,” and only after the accused told him that he “understood” did they have a generalized investigation.

Id. at 1045-46, 103 S.Ct. 2830 (plurality opinion) (citations omitted). See also Francis v. State, 808 So.2d 110 (Fla.2001).

In this case, the trial court found that McKenzie’s requests for counsel were equivocal. Each time McKenzie said he thought he would like to talk to a lawyer, the officers attempted to determine whether McKenzie wanted to talk or await the arrival of an attorney. The detectives stopped questioning after each request, but each time McKenzie then asked a question directed to the substance of the interrogation, trying to find out the reason he was there. The trial court found that both the detectives and McKenzie were playing a “cat and mouse game.” The fact that McKenzie asked questions about why he was there forms part of the totality of the circumstances which make the request for counsel equivocal.

This case is similar to Bradshaw, where the suspect was trying to obtain generalized information when, after invoking his right to an attorney, he asked the question, “Well, what is going to happen to me now?” 462 U.S. at 1045, 103 S.Ct. 2830. Consistent with Bradshaw’s treatment of the question as a waiver of his right to an attorney, we also agree that the officers in this case could interpret McKenzie’s asking about the charges against him as reini-tiating the conversation. Based upon our deference to the trial court’s factual determinations, the court did not err in denying the motion to suppress on this ground.

McKenzie also contends that the court should have suppressed his statement because the detectives would not answer his repeated questions as to what he was being arrested for or why they were interrogating him. He claims that this was a violation of Almeida v. State, 737 So.2d 520 (Fla.1999). In Almeida, the police began to give Almeida his Miranda warnings, asking him whether he would speak to them without an attorney present. He responded, “Well, what good is'an attorney going to do?” 737 So.2d at 522. Instead of answering that question, the officer continued questioning. Our supreme court concluded that if a defendant asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to givé a simple and straightforward answer. Id. at 525.

Almeida involved a suspect’s question regarding his Miranda rights. In requiring officers to answer questions regarding a defendant’s Miranda rights, the court acted in order to confirm the voluntariness of any statements by assuring that a defendant was properly informed of his rights. Miranda does not include a requirement that the police immediately instruct the defendant that they have a warrant for his arrest or that they inform a suspect of the charges upon which they intend to interrogate him. As the trial court noted in ruling on this issue, the question McKenzie kept asking was not a question about the invocation of rights to which Almeida applied.

That McKenzie did not know the crime for which he was' being interrogated does not show that his statements were coerced and thus involuntarily. In Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987), the Supreme Court addressed whether a waiver of a suspect’s Fifth Amendment right to counsel was voluntary when the police did not tell him of the crimes about which they intended to conduct the interrogation. The Court held that the failure did not amount to a violation of Miranda:

His allegation that the police .failed to supply him with certain information does not relate to any of the traditional indicia of coercion: “the duration and conditions of detention ..., the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control.” ... Absent evidence that Spring’s “will [was] overborne and his capacity for self-determination critically impaired” because of coercive police conduct, ... his waiver of his Fifth Amendment privilege was voluntary under this Court’s decision in Miranda.

Id. at 574 (citations omitted).

Barger v. State, 923 So.2d 597 (Fla. 5th DCA 2006), applied Colorado v. Spring in similar circumstances to this case. The suspect was arrested in connection with a sexual battery and robbery. When he was brought in for interrogation and read his Miranda rights, he told the officers, “I want to know what I’m being charged with.” 923 So.2d at 599. The officers then asked him whether he would speak without an attorney present, and he agreed to speak. The trial court denied a motion to suppress his incriminating statements. On appeal, he contended that his question to the officers required a response pursuant to the dictates of Almei-da. The court disagreed, concluding that the question “was not a prefatory question concerning Barger’s constitutional rights. Therefore, the officers were not required to answer the question before continuing the interview.” 923 So.2d at 602.

We therefore hold, consistent with Colorado v. Spring and Barger; that Al-meida does not require the interrogating officer to answer a question relating to the substance of the interrogation. It only requires the officers to answer questions related to the suspect’s constitutional rights so that the suspect can make a fully informed decision as to whether to waive those rights, thus making any confession voluntary. In this case, the officers did not fail to inform McKenzie of his rights or refuse to answer any question regarding them. We affirm the trial court’s denial of the motion to suppress.

In any event, even if any of the statements should have been suppressed as a violation of appellant’s right to counsel, the only statements McKenzie made consisted of his admission that he worked for a property management company in Boca Raton and managed properties in the general area during the years around when the crime occurred, but that he had never entered any of the properties and was not involved with any properties around the victim’s condominium. These were not in-culpatory, although they did place him the area around the time of the offense. However, this same information regarding his location and employment twenty years ago also came in through the testimony of the stepfather of McKenzie. Thus, the information was cumulative. In addition, the DNA evidence match to McKenzie was one in 10.8 quintillion. We conclude that the admission of McKenzie’s statements was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

CIKLIN and LEVINE, JJ., concur.

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


author: PER CURIAM.

text:
    Loren BANNER, Appellant, v. WELLS FARGO BANK, N.A. and Law Offices of David J. Stern, P.A., Appellees.
    No. 4D11-4388.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., Sil-ber & Davis, LLC, West Palm Beach, and Kirk Freidland, West Palm Beach, for appellant.
    Jeffrey Tew and James Malphurs of Tew Cardenas, LLP, Miami, for appellees.
   PER CURIAM.

Dismissed. See Mendez v. W. Flagler Family Ass’n, Inc., 303 So.2d 1 (Fla.1974).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Willie L. HINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4894.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.

      Willie L. Hines, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

We previously affirmed the summary denial of appellant’s untimely and successive attempt at post-conviction relief. The “Emergency Petition for Writ of Habeas Corpus” that appellant filed below again attempted to challenge his 1981 conviction for armed robbery with a firearm in the underlying case. The trial court correctly treated the petition as a motion for post-conviction relief under rule 3.850 and determined that the motion was untimely and procedurally barred. Fla. R. Crim. P. 3.850(0; Baker v. State, 878 So.2d 1236, 1241 (Fla.2004). Appellant’s attempt at raising alleged defects in the information is frivolous. Fla. R. Crim. P. 3.140(o). The law is well settled that an information need not charge aider/abettor liability. State v. Roby, 246 So.2d 566, 571 (Fla.1971). The rambling petition and brief on appeal raise many other confused arguments that are equally devoid of merit and unworthy of discussion.

This appeal constitutes appellant’s fourteenth proceeding in this court. In case number 4D07-4621, this court admonished appellant that his continued filing of frivolous, repetitive, and abusive documents in this court would result in sanctions. Appellant has filed four more postconviction challenges and appeals since that warning.

Pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), we issued an order directing appellant to show cause why this court should not impose the sanction of no longer accepting his pro se filings. In his response to this court, appellant repeats his frivolous arguments and suggests that this court is engaged in a conspiracy with the “Illuminati” and serving “Satan.” Appellant’s response convinces this court of the need to impose sanctions to prevent his abuse of post-conviction relief procedures. McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

Accordingly, the Clerk of this court is directed to no longer accept any paper filed by Willie Lee Hines unless the document has been reviewed and signed by a member in good standing of the Florida Bar. The Clerk is directed to forward a certified copy of this order to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. § 944.279(1), Fla. Stat. (2012).

Sanctions imposed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Gerald Andre SHIFLET, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2310.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Gerald Andre Shiflet, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR CORRECTION, REHEARING OR CLARIFICATION OF OPINION

PER CURIAM.

On consideration of appellant’s motion for correction, rehearing or clarification of opinion, we grant only the motion for correction, withdrawing the previous opinion and substituting the following to indicate that the appeal is of an order denying a Rule 3.800 motion, instead of a Rule 3.850.

Affirmed.

POLEN, TAYLOR and Conner, JJ., concur.


author: CIKLIN, J.

text:
    Jeremiah ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1839.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Jeremiah Rolle appeals his ten-year prison sentence followed by five years of probation upon his plea of no contest to three felonies. He argues that the trial court erred by failing to enforce the terms of a purported agreement between Rolle and the state as to a sentencing recommendation from the state. Because we find that such an enforceable agreement did not exist in this case, we affirm.

The state charged Rolle and two co-defendants with carjacking with a firearm (count I) and robbery with a firearm (count II). The state also charged Rolle with fleeing or attempting to elude a law enforcement officer at high speed (count III). Rolle entered an open plea of no contest to all three charges. Before entering his plea, Rolle was advised that the minimum penalty was ten years in prison and the maximum penalty was life in prison. The court ordered a presentence investigation report and .scheduled a sentencing hearing approximately one month later.'

• At the beginning of the sentencing hearing, the state informed the court that the state was extending an offer to Rolle in which the state would recommend a (shorter than the minimum) adult sentence of four years in prison followed by six years of probation. The state indicated it would make the recommendation in exchange for Rolle’s “cooperation and truthful testimony” in the case against one of Rolle’s co-defendants. The state then asked the court for a brief recess to give the state “an opportunity to take a sworn statement” from Rolle. The state further noted, “Of course, one of the special conditions would be he’d have to testify truthfully in the [co-defendant’s case] ... I’d like to hear the statement in terms of what [Rolle] is going to say before [the state] negotiate^] anything.”

Rolle’s attorney objected to the state’s proposed offer and argued that the state could not extend an offer only to revoke it if the state “[doesn’t] like what [Rolle] says.” After hearing argument on the issue, the court instructed Rolle’s counsel that his client would have to “decide whether to proceed [with sentencing] or accept the state’s offer.” Rolle chose to proceed with the proffer, and the court then recessed to allow the parties to elicit Rolle’s testimony.

When the sentencing hearing resumed, the state informed the court that it was not satisfied with Rolle’s testimony. Rolle’s lawyer argued that Rolle had “testified truthfully” and the state was bound to the bargain offered to the defendant.

The court found that the state was not obligated to recommend the shorter sentence. The court noted that the state’s proposed agreement was contingent on hearing Rolle’s proffered testimony. The court also found that there was no “meeting of the minds” between the parties regarding the terms of the proposed agreement and that the parties had not unconditionally agreed to a reduced sentence recommendation.

Thereupon, the state sought a sentence of twenty years imprisonment followed by ten years of probation. Rolle’s attorney argued that Rolle should be sentenced as a youthful offender. The court sentenced Rolle to the minimum sentence of ten years in prison, followed by five years of probation.

On appeal, Rolle argues that the state was obligated to recommend the reduced sentence of four years in prison followed by six years of probation. “The standard of review for the legality of a criminal sentence is de novo.” State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011) (citation omitted). The rules of contract law are applicable to agreements between the state and a defendant. See Batista v. State, 951 So.2d 1008, 1010 (Fla. 4th DCA 2007) (citing Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998)).

We first note that even assuming that the parties had reached a binding agreement, the court would not have been obligated to impose the lesser sentence in that — even under the most favorable interpretation of the purported agreement — the state was simply required to make a sentencing recommendation.

Nevertheless, the parties never reached a point where the state became contractually obligated to recommend a sentence. Here, the state explicitly informed the court, on the record, that the state “[would] like to hear the statement in terms of what [Rolle] is going to say before [the state] negotiate^] anything.” In this case, there was not a binding agreement because the state conditioned its assent on the proffered testimony.

We approve of the trial court’s ruling and the sentence imposed. There was no binding agreement between the state and Rolle. Even if there had been such an agreement, the court would not have been obligated to follow it because the state-in the best case scenario for Rolle-was only required to recommend a sentence.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.

      . The parties did not agree to a specific sentence at the time Rolle entered his plea of no contest. Rolle’s attorney indicated to the court that he was going to move for sentencing as a youthful offender, which, if the court chose to sentence Rolle as a youthful offender,. would limit the sentence to six years. See § 958.04, Fla. Stat. (2011). The court cautioned Rolle: "I can’t guarantee I’m going to agree with a [youthful offender sentence]. If everyone is on the same page then it will be fine. That’s what you have to do. Do you understand? Do you want to take the plea and have a presentence investigation?” Rolle indicated that he understood (that the trial judge was not bound by any predetermined sentence) and he entered a plea of no contest.

      . The presentence investigation report ("PSI report”) is not included in the record before us. However, the court stated at the sentencing hearing that it was following the recommendation of the PSI report which we therefore must assume was ten years in prison.


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    Joseph DUCKETT a/k/a Joseph Desilva Duckett a/k/a Joseph Jacobs, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4110.
    District Court of Appeal of Florida, Fourth District.
    May 1, 2013.
    Joseph Duckett, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Lormeus v. State, 957 So.2d 117 (Fla. 4th DCA 2007).

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Carlton Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2410.
    District Court of Appeal of Florida, Fourth District.
    May 8, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Carlton Lee Jones appeals his sentence, imposed after he pleaded no contest to fleeing or eluding a police officer, resisting an officer without violence, and driving with a suspended license. He argues that the trial court erred in refusing to continue his sentencing hearing after his witnesses failed to attend the hearing. Because Jones did not satisfy the “four-part test” to determine if the trial court palpably abused its discretion in denying a continuance based on witnesses’ absence, we affirm.

On February 20, 2012, Jones entered an open plea of no contest to the three charges. The court accepted this plea but did not sentence Jones at that time. On February 21, 2012, the state filed a notice of intent to seek enhanced penalties vis-a-vis a habitual felony offender designation. Jones then filed a motion to discharge his appointed counsel and withdraw his plea, arguing that his public defender had misled or coerced him into entering his plea. The trial court issued a written order discharging the public defender and appointing an attorney from the Office of Criminal Conflict and Civil Regional Counsel.

On May 21, 2012, the trial court held a sentencing hearing at which time the court intended to hear Jones’s motion to withdraw his plea. At the start of the hearing, however, Jones acknowledged that he was withdrawing the motion to withdraw his plea. Defense counsel informed the court that “[w]e have a couple witnesses who I was hoping were going to be here today, but I don’t see them and I don’t think that they’re going to arrive.” The three witnesses were to be Jones’s girlfriend, Jones’s pastor, and the foster parent of Jones’s children. Defense counsel requested a continuance of the sentencing hearing to be able to procure these witnesses. When asked about Jones’s girlfriend, defense counsel said, “She said she would be here. I wouldn’t characterize her as cooperative.” Defense counsel acknowledged he had not spoken with Jones’s pastor and did not indicate whether he had spoken to the foster parent.

The trial court denied the continuance, stating that it was not necessary “for people who were contacted and told and who don’t show up.” Jones told the court that he was not prepared to proceed with sentencing because he believed that he was going to seek to withdraw his plea at the hearing but changed his mind at the urging of his attorney. The trial court asked defense counsel if he had prepared for sentencing in the event that the motion to withdraw plea “didn’t go through.” Defense counsel responded, “I would prefer to have the witnesses here. I don’t know if they were in a state of confusion as to what was going to happen today or not.” The court declined to continue the matter and sentenced Jones to five years in prison for the fleeing or eluding a police officer felony conviction, and time served for the two remaining misdemeanors.

Claiming that the trial court erred in denying his request to continue the sentencing hearing, Jones appeals.

We review a trial court’s ruling on a motion for continuance for a “palpable abuse of ... judicial discretion that clearly and affirmatively appears in the record.” Ramos v. State, 75 So.3d 1277, 1280 (Fla. 4th DCA 2011) (citation and quotation marks omitted). The Florida Supreme Court has enunciated a four-part test:

To prevail on a motion for continuance based on the absence of a witness, the defendant must show: (1) prior due diligence to obtain the witness’s presence; (2) substantially favorable testimony would have been forthcoming; (3) the witness was available and willing to testify; and (4) the denial of the continuance caused material prejudice.

Mosley v. State, 46 So.3d 510, 525 (Fla.2009) (citations omitted).

The record simply does not indicate that Jones showed due diligence in obtaining the witnesses’ presence. We have warned that “a party should subpoena the witnesses the party intends to rely on.” Watson v. State, 989 So.2d 699, 700 (Fla. 4th DCA 2008) (citations omitted). The record does not indicate that any of the defense witnesses were subpoenaed.

No attempt was made to indicate or proffer the nature of the anticipated testimony of any of the three defense witnesses. To this point, the only statement defense counsel made was that he would not characterize Jones’s girlfriend as “cooperative.” This does not support a finding that her forthcoming testimony would have been “substantially favorable.” Further, we cannot glean from the record whether any of the defense witnesses were “available and willing to testify.”

Our conclusion is unaffected by Florida Rule of Criminal Procedure 3.720(b), which states that at a sentencing hearing the trial court “shall entertain submissions and evidence by the parties that are relevant to the sentence.” Fla. R. Crim. P. 3.720(b). This rule requires only that “a defendant be given an opportunity to present matters in mitigation.” Miller v. State, 435 So.2d 258, 261 (Fla. 3d DCA 1983) (citing Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977)). The trial court provided Jones an opportunity to present matters in mitigation at his sentencing hearing. That Jones did not capitalize on that opportunity does not mean that rule 3.720(b) was violated.

Affirmed.

WARNER and GROSS, JJ., concur.

      . After Jones entered his plea, the state submitted a Notice of Intent to Seek Enhanced Penalties as a habitual felony offender, which was untimely. See Akers v. State, 890 So.2d 1257, 1259 (Fla. 5th DCA 2005) ("In order to impose a sentence as a habitual felony offender ... the defendant must be served with the notice a sufficient time prior to the plea, and the trial court must confirm that the defendant is personally aware of the consequences of such a sentence when the plea is actually entered.” (citations omitted)). Defense counsel thus advised Jones not to withdraw his plea and explained his reasoning to the trial court:
      The reason is if he continues in his present status set for sentencing, he cannot be sentenced as a habitual offender. If he withdraws his plea, he can be sentenced as a habitual offender, so I don’t really want to bring that into play. I don’t know what Mr. Jones's feeling is on that, but I’m never going to advise him to withdraw his plea.