author: CIKLIN, J.

text:
    Robert ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-616.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Valarie Linnen, Atlantic Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber and Joseph A. Tringali, Assistant Attorney Generals, West Palm Beach, for appellee.
   On Motion For Rehearing

CIKLIN, J.

We deny appellee’s motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

The defendant, Robert Alvarez, and the co-defendant, Darnell Razz, were tried by one jury and each convicted of two counts of first-degree murder with a firearm while masked and one count of robbery with a firearm while masked. Alvarez argues the court committed reversible error when it permitted a detective to testify that — based on the officer’s extensive viewing of a surveillance video — he determined the two people who committed the robbery and murders were a light-skinned male who was white or Hispanic, and a dark-skinned male. We find the court erred and because the error was not harmless, we must reverse and remand for a new trial.

Facts

In 2010, two employees were fatally shot during a robbery at a Circle K convenience store. According to the state’s theory of the case, a handgun-carrying Alvarez entered the store first while Razz guarded the store’s front entry with a rifle. When Alvarez hit the employee who was emptying the cash drawer, his handgun discharged. At that point, under the prosecution’s theory, Razz shot and killed both employees. At trial, the state’s evidence revealed the following.

Sometime shortly after 11:00 p.m. on the night of the crime, a resident of a nearby mobile home park heard two gunshots coming from the direction of the Circle K store. He saw two people dressed in black clothing running from the direction of the store. One of them was carrying a handgun.

At about 11:45 p.m., officers responded to the Circle K store, where they were greeted by the strong odor of gun smoke before discovering the bodies of two store employees. The medical examiner confirmed the employees died from gunshot wounds.

Alvarez’s friend, Marshayla Garland, testified that earlier that night, Alvarez requested she pick him up at 10:00 p.m. at an apartment complex near the Circle K store. She did so and also accommodated his request that they stop to pick up Razz and take them both to the parking lot of a recreation center behind the Circle K store. Alvarez was wearing a black shirt and carrying a book bag. The men exited the vehicle without telling Garland where they were going. It was dark and Garland could not tell where the men went. While they were gone, she was listening to music in her car and did not hear any gunshots. When the men returned a short while later, Razz was carrying a “big gun” and both men were “frantic” and breathing heavily. Garland testified they told her to “[t]ake off,” and “get out of here.”

According to Garland, she picked up Alvarez and Razz after she left a movie theater. When asked what time the movie began, she stated, “I’m not sure. It was early movie, though.” She clarified it was “[a]n early night movie,” and that she picked up the men “later during the night.” Although Garland saw a newscast about the robbery shortly after it occurred, she waited months before telling law enforcement officials about her encounter with Alvarez and Razz. On cross examination, Garland wavered when asked whether she ever told law enforcement something-that differed from her trial testimony. Cell phone records confirmed that Alvarez and Garland communicated by text during the early evening hours on the day of the robbery.

Video footage from the store’s surveillance system showed two people entering the store dressed in black clothing and wearing extensive masks and gloves. The first person entering the store carried a handgun, and the person who followed behind held a rifle. The video did not give a clear or otherwise meaningful view of the skin color of either of the perpetrators. Enlarged still photographs taken from the video were introduced into evidence and likewise these pictures did not reveal the skin color of the robbers with any certainty. Law enforcement officials were not able to recover any fingerprints or other physical evidence placing Alvarez or Razz at the crime scene.

Law enforcement officers testified that a projectile was recovered from the scene of the crime. A firearms examiner testified that the projectile matched a handgun that a witness saw Razz throw into a lake about two weeks after the robbery. A detective testified that someone sent Alvarez a text informing him that the lake was being searched, and Alvarez reportedly texted back the word, “Pray.”

A prisoner serving a lengthy sentence testified that he sold Alvarez a handgun and a rifle. He identified the handgun recovered from the lake as the one he sold Alvarez, although it had changed color from being submerged in the lake. He was sentenced after he gave law enforcement this information, but he denied receiving any benefit for his testimony.

Another prisoner, this one a convicted felon many times over who was facing thirty years in prison at the time of. trial, testified that he and other inmates, including Alvarez, were watching a newscast featuring the Circle K robbery. He testified that he heard Alvarez say that law enforcement did not have a case.

A corrections officer testified that while Alvarez and other inmates were watching a true crime television show which aired the surveillance video, Alvarez stated, “I shot him with that chopper.” The corrections officer also overheard Alvarez make this statement to another inmate during a private conversation.

The primary issue on appeal concerns the testimony of one of the lead homicide detectives in the case. The detective testified that he watched the surveillance video many times during the investigation. The following courtroom exchange occurred:

Prosecutor: And you indicated that you viewed the video to see if you could ID anyone. Were you able to see their faces on the video?
Detective: Yes.
Prosecutor: Okay. Were you able to see them, with clarity to make an identification, meaning like looking at it and saying, oh yeah. That so and so or—
Detective: At the time of the incident, when I viewed it on scene at the Circle K, I did not spend a significant amount of time looking and analyzing this video. But over time, as I reviewed the video, yes I was.
Prosecutor: How many times would you say that you’ve had an opportunity to since view that video, after that night?
Detective: Dozens, endlessly ... Probably fifty to seventy-five, easy.
Prosecutor: And what was the purpose of watching the video so many times?
Detective: To try to gather more information, more evidence. Get a better understanding. Try to identify certain things, the firearms or the people involved, what the victims did, their actions. Just to get a total understanding of everything.

Within seconds of the prosecutor’s direct examination of the detective regarding the detective’s extensive viewing of the surveillance video, attorneys for both defendants approached the bench at which time the following discussion took place:

Attorney for Razz: The video is in evidence. It’s previously been introduced. [The] Detective ... is going to give kind of Monday night football play by play about what he saw, Judge. It’s up to the jury to decide what they saw on the video, not what [the] Detective ... did. We don’t want his opinion on — he hasn’t been qualified as an expert on identification or anything. And we don’t want him to give any opinions about what any of the evidence means. That’s up to the jury-
Attorney for Alvarez: So I would just add — I would just add specifically, he’s listed as Category A witness. He is not delineated as an expert. There has been no providing of any expert opinion. If it is not an expert opinion, it is supposedly opinion for identification purposes. That has not been previously advised of. That is improper opinion and it’s conclusory. So, if it— it sounds like he’s working up to a point where he’s going to say that guy is black or this one is white or any identifiers.
Prosecutor: Judge, I anticipate, where I’m going with it is that he needed to watch the video. They’re going to make a big deal that the projectile wasn’t found the first night. And that they kept going back to look for it. And I want him to explain why they thought a projectile still may be in the store. And that’s because, after watching the video, he’s going to testify that once he was able to sit down and watch it, it appeared as if the gun may have recoiled. Indicating that it may have been shot. So they went back to the store and kept searching for a projectile. And then they find one. It’s to explain why he’s—
The Court: I feel like I’m witnessing two trains passing in the night.
The Court: That’s what he’s worried about.
Prosecutor: He is going to say that he—
The Court: He is.
Prosecutor: — watched the video. And that he put a BOLO out for a white person and a black person.

Despite the objections, the trial court’s admonitions and the state’s assurances at the bench conference, the state immediately resumed its objectionable direct examination of the detective:

Prosecutor: So, I believe we left off that you — after that night, you then had occasion to view the video a few more times?
Detective: Yes.
Prosecutor: Okay. Based on viewing the video a few more times, were you able to make a determination of what color of skin the suspects may or may not have had?
Detective: Yes.
Prosecutor: When you put out the information, regarding the suspects, what gender and color of person were you looking for?
Detective: A light-skinned Hispanic male or a white male, for suspect one. And a dark-skinned male for suspect two.

Although the question was framed in the context of the investigation, the state’s reference to the investigation was gratuitous. The record before us clearly reflects that the detective’s testimony, as it related to the skin color and race of the perpetrators on the surveillance video, was not presented to explain the issuance of a BOLO or detail a sequence of events in the investigation leading to Alvarez and Razz.

Lay Person Testimony

The issue presented on appeal is whether a law enforcement officer, testifying as a lay witness, may offer his opinion of the skin color and race of the perpetrators depicted on a video admitted into evidence. “The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009).

The state relies on Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), where this court recognized that under section 90.701, Florida Statutes, lay witnesses, under certain circumstances, may offer opinion testimony related to what they perceived. “Acceptable lay opinion testimony typically involves matters such as distance, time, size, weight, form and identity.” Id. at 748-49. “Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived.” Id. at 748.

Even non-eyewitnesses may testify as to the identification of persons depicted or heard on a recording so long as it is clear the witness is in a better position than the jurors to make those determinations. See Johnson v. State, 93 So.3d 1066, 1069 (Fla. 4th DCA 2012) (holding no error in admission of detective’s identification of defendant as individual in surveillance video where defendant changed his appearance after the event recorded in the video, and the detective had a personal encounter with the defendant shortly after the event and before he changed his appearance); State v. Cordia, 564 So.2d 601, 601-02 (Fla. 2d DCA 1990) (finding that officers’ identification of defendant’s voice on a recording was admissible where officers had worked with defendant in the past and were familiar with his voice).

However, “[w]hen factual determinations are within the realm of an ordinary juror’s knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury.” Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989) (finding the court erred in allowing three officers to identify defendant as the man in the videotape, where the officers were not eyewitnesses to the crime, did not have familiarity with Ruffin, and were not qualified as experts in identification); see also Proctor v. State, 97 So.3d 313, 315 (Fla. 5th DCA 2012) (finding court erred in allowing officer to identify defendant as the perpetrator in a surveillance video where the officer was in no better position than the jury to make that determination); Charles v. State, 79 So.3d 233, 235 (Fla. 4th DCA 2012) (finding court erred in allowing detective to testify that he could not identify the defendant as the person on the surveillance video the first time he watched it, but “he was later able to piece things together and identify the person in the video” as the defendant).

Here, during direct examination of the detective, the state asked the detective whether he could “ID anyone” and was “able to see their faces” on the video “with clarity to make an identification.” The detective said “yes.” The detective’s testimony notwithstanding, no record evidence exists which indicates that the detective was in a better position than the jurors to view the highly inconclusive and indiscernible surveillance video and enlarged stills and thereby determine the skin color and races of the perpetrators. Accordingly, the trial court erred in permitting the detective’s opinion testimony over Alvarez’s objection.

Harmless Error

The type of error that occurred here is subject to harmless error analysis. See Charles, 79 So.3d at 235. As explained by the Florida Supreme Court:

The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

The focus is not on the strength of the state’s case, but rather on the effect of the error on the jury. Johnson v. State, 53 So.3d 1003, 1007. (Fla.2010) (citing Di-Guilio, 491 So.2d at 1139). The issue of whether an error is harmless does not turn on whether the evidence is sufficient, substantial, clear and convincing, or even overwhelming. DiGuilio, 491 So.2d at 1139. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

Although DiGuilio makes it clear that an error may be harmful even if there is overwhelming evidence of guilt, the Florida Supreme Court has had to revisit this issue many times. See, e.g., Cooper v. State, 43 So.3d 42, 43 (Fla.2010) (quashing and remanding for district court to conduct another harmless error analysis where the district court found that admission of evidence of uncharged acts of sexual abuse was error but affirmed conviction based on “strong evidence of Cooper’s guilt”); Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (holding that the district court erred in finding a detective’s comments on defendant’s silence were “harmless beyond a reasonable doubt given the overwhelming evidence of guilt”).

The evidence presented in this case was, to a large extent, circumstantial. There was direct evidence that Alvarez made a statement which appeared to be a confession: “I shot him with that chopper.” However, that evidence was introduced through a hearsay witness. Aside from the detective’s testimony, there was no evidence clearly reflecting the skin color of both the perpetrators. Even Garland, who had known Alvarez for years, testified that she watched the video and could not identify the perpetrators.

During deliberations, the jurors asked to watch the video, and to “manipulate the video, play it, pause it on our own.” The court indicated that could be done only on a “clean computer.” However, the court later informed the jurors that “we have not found a computer that can — where you can take back into your chambers [sic] with the disk of that video and you can— you would have to watch it on the laptop.” The court provided the jurors with a laptop, the DVD, and instructions on playing the video, but it is unclear whether the jurors were able to pause the video.

We possess a reasonable doubt that if the jury was not able to determine for itself the skin color of the perpetrators, each juror may have relied on the detective’s testimony, which then may have greatly factored into their verdict. We take specific notice that, at the state’s prodding, the detective unequivocally stated that he could see the faces of the perpetrators and “with clarity to make an identification.”

This court has observed that when a police officer gives impermissible identification testimony, “[t]here is the danger that jurors will defer to what they perceive to be an officer’s special training and access to background information not presented during trial.” Charles, 79 So.3d at 235. Even if we assume that the evidence in this case is overwhelming, the state has not established beyond a reasonable doubt that the jury did not rely on certain portions of the detective’s testimony which the trial court erroneously permitted the jury to hear.

Accordingly, we must reverse and remand for a new trial.

Reversed and remanded for new trial.

WARNER and GERBER, JJ., concur.

      . The trial record reflects that Alvarez has light skin, and Razz has dark skin.

        . At sidebar, the court sought assurances from the state that it would not elicit testimony from the detective as to an identification of the perpetrators portrayed on the surveillance tape:
      The Court: He's not going — he’s not going— and I’ll tell you what I was worried about. That he's going to say he knows these people.
      Prosecutor: Oh, no.
      Second Prosecutor: No. He’s not going to say that.

      . The detective referred to the first man who entered the store as “suspect one” and the second man as "suspect two.”

      . A review of the entire set of proceedings below shows no indication that a BOLO was ever issued for anyone based on the detective’s determination that the surveillance video revealed the perpetrators to be Hispanic, light-skinned or dark-skinned.

      . Although the detective testified as a law enforcement officer, his testimony regarding the skin color and race of the perpetrators on the surveillance video did not involve "scientific, technical, or other specialized knowledge,” and was not based on his "knowledge, skill, experience, training, or education” in any particular field. See § 90.702, Fla. Stat. (2010). The state concedes that the detective’s testimony was that of a lay person.

      .Section 90.701, Florida Statutes (2010), provides that a lay witness may offer opinion testimony related to what the witness perceived if:
      (1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
      (2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

      . The jury asked to review transcripts of the testimony of the corrections officer and the inmate who testified regarding Alvarez’s other statements.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Robert GRANICZ, as Personal Representative of the Estate of Jacqueline Granicz, Deceased, Appellant, v. Joseph S. CHIRILLO, Jr., M.D., Joseph S. Chirillo, M.D., P.A., and Millennium Physician Group, LLC, Appellees.
    No. 2D12-5244.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2014.
    Rehearing Denied April 11, 2014.

      James B. Tilghman, Jr., and Gary D. Fox of Stewart, Tilghman, Fox, Bianchi & Cain, P.A., Miami, for Appellant.

      Anne Sullivan Magnelli of Cole, Scott & Kissane, P.A., Miami, and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami (substituted as counsel of record) for Appellees.
   SILBERMAN, Judge.

This case arose from the tragic suicide of Jacqueline Granicz, a fifty-five year-old wife and mother who was being treated for depression by her primary care physician. Jacqueline’s husband, Robert Granicz (“Granicz”), filed a medical malpractice action as personal representative of Jacqueline’s estate in which he asserted that Dr. Joseph S. Chirillo, Jr., breached his duty of care in treating Jacqueline and that her suicide resulted from that breach. Granicz named Dr. Chirillo, Joseph S. Chirillo, M.D., P.A., and Millennium Physician Group, LLC, as defendants (collectively referred to as “Defendants”). The trial court ultimately granted a final summary judgment against Granicz based on its determination that Dr. Chirillo did not have a legal duty to prevent Jacqueline’s suicide.

On appeal, Granicz argues that the court improperly characterized Dr. Chirillo’s duty as a duty to prevent Jacqueline’s suicide. Granicz asserts that, as set forth in his amended complaint, Dr. Chirillo had a duty to exercise reasonable care in his treatment of Jacqueline. Granicz argues that summary judgment was improper because he provided expert testimony setting forth the applicable standard of care, how it was breached, and how the breach proximately caused Jacqueline’s suicide. We agree and reverse.

The evidence Granicz provided to the court established that Jacqueline had a history of depression and was taking Prozac when she began seeing Dr. Chirillo in 2005. Dr. Chirillo switched Jacqueline to an antidepressant known as Effexor. Unbeknownst to Dr. Chirillo, Jacqueline stopped taking the Effexor in June or July of 2008 because of its side effects.

On October 8, 2008, Jacqueline called Dr. Chirillo’s office and spoke to his medical assistant. Jacqueline told the assistant she had not “felt right since late June-July.” Jacqueline reported that she was under mental strain and crying easily, she was not sleeping well and taking more sleeping pills, and she was having gastrointestinal problems. Jacqueline attributed these maladies to the Effexor, and she told the assistant she had stopped taking it. The assistant wrote this information in a note for Dr. Chirillo.

Dr. Chirillo read the assistant’s note shortly thereafter and decided to change Jacqueline’s antidepressant to Lexapro and refer her to a gastroenterologist. Dr. Chirillo’s office called Jacqueline and told her she could pick up samples of Lexapro and a prescription for the drug. But Dr. Chirillo’s office did not request that Jacqueline schedule an appointment with the doctor. Jacqueline picked up the samples and prescription later that day.

The next day, Granicz found Jacqueline’s body hanging in their garage. She had committed suicide but did not leave a note. Granicz was shocked because Jacqueline had never given him any indication she might be thinking of harming herself. Jacqueline’s adult daughter, Renee, was shocked as well. She had spoken to Jacqueline two days before her suicide, and Jacqueline had not shown any signs that she might be suicidal.

In the amended complaint, Granicz alleged that Dr. Chirillo breached his duty to exercise reasonable care in his treatment of Jacqueline by

(a) Failing to recognize that when the patient contacted his office on October 8, 2008 she was experiencing a change in symptoms, was depressed, and was seeking medical intervention and guidance;
(b) Failing to speak with the patient and direct his staff to advise her to immediately come to the office for evaluation;
(c) Failing to refer her to a physician trained in the management of patients suffering from depression; and
(d) Failing to conduct a proper evaluation before prescribing Lexapro, an antidepressant known to cause suicidal idea-tions in some patients.

Granicz alleged that Jacqueline’s suicide was directly and proximately caused by these breaches.

Defendants eventually filed a motion for summary judgment asserting that Dr. du-rillo owed no duty to Jacqueline as a matter of law. Defendants argued that Dr. durillo had no duty to prevent Jacqueline from committing an unforeseeable suicide while not in his control. Defendants alternatively argued that the expert testimony that would be necessary to prove the case would be inadmissible as a violation of the rule against stacking inferences.

In opposition to the motion, Granicz filed the deposition of Dr. durillo and the depositions of two expert witnesses: Tonia Werner, M.D., a board certified psychiatrist and assistant professor, and Michael Yaffe, M.D., a board certified internist and clinical assistant professor. Both experts testified that, given Jacqueline’s history and the information she conveyed in her October 8th phone call, the standard of care required Dr. durillo to see her, assess her condition to determine if she was having thoughts of suicide, and intervene if necessary. According to the experts, Dr. durillo should have been concerned that Jacqueline’s depression was worsening because she stopped taking her prescribed antidepressant, was having difficulty sleeping, and was crying more frequently. The experts described Jacqueline’s call as a cry for help from a person in crisis mode.

Both experts also testified that Dr. Chi-rillo’s failure to see Jacqueline caused her death because Dr. durillo would have been able to discern that she had suicidal ideations and would have intervened. Both experts believed that, based on Dr. Chirillo’s relationship with Jacqueline, she would have been honest with him about her suicidal ideations. Dr. Yaffe explained that suicidal patients who are confronted directly by their healthcare providers are more likely than not to confess those symptoms.

The trial court granted final summary judgment against Granicz based on its finding that, as a matter of law, Dr. durillo did not owe a duty to prevent the unforeseeable suicide of an outpatient. We review this ruling de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Estate of Rotell ex rel. Rotell v. Kuehnle, 38 So.3d 783, 785 (Fla. 2d DCA 2010).

The Florida Supreme Court has discussed the trial court’s role in assessing foreseeability in the context of determining the issue of duty. See McCain v. Fla. Power Corp., 593 So.2d 500, 502-04 (Fla.1992). “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” Id. at 502. This concept is not to be confused with the proximate cause element of negligence which focuses on “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” Id. The duty element is a question of law for the court to resolve; the element of proximate cause presents a fact question for the jury.

By focusing on whether Jacqueline’s suicide was foreseeable, the trial court analyzed Dr. Chirillo’s duty under the standard for proximate cause. The proper inquiry that the court should have made to determine the legal issue of duty “is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain, 593 So.2d at 504.

In Florida, physicians are under “a duty to ‘use the ordinary skills, means and methods that are recognized as necessary and which are customarily followed in the particular type of case according tb the standard of those who are qualified by training and experience to perform similar services.’” Sweet v. Sheehan, 932 So.2d 365, 368 (Fla. 2d DCA 2006) (quoting Brooks v. Serrano, 209 So.2d 279, 280 (Fla. 4th DCA 1968)).

The prevailing standard of care for a physician in Florida is “ ‘that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.’ ” Sweet, 932 So.2d at 368 (quoting § 766.102(1), Fla. Stat. (2004)); see also Perez v. United States, 883 F.Supp.2d 1257, 1284 (S.D.Fla.2012); Estate of Rotell, 38 So.3d at 789. The specific aspects of this duty depend partially on the extent or duration of the provider/patient relationship. Perez, 883 F.Supp.2d at 1296. This issue is generally resolved in medical malpractice cases by expert testimony. Perez, 883 F.Supp.2d at 1285; Sweet, 932 So.2d at 368.

In this case, Granicz provided expert testimony regarding the standard of care for a primary care physician when a patient being treated for depression calls the office and complains of symptoms that suggest worsening depression. According to this testimony, the standard of care requires physicians to personally assess the patient’s condition to determine if she is having thoughts of suicide and to intervene if necessary. This evidence is sufficient to establish that Dr. Chirillo owed a legal duty to Jacqueline that precluded summary judgment.

We recognize that our decision appears to conflict with that of the First District in Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001). Lawlor involved an appeal from a final summary judgment in which the trial court ruled that a psychotherapist did not have a duty toward an outpatient who committed suicide. Id. at 147. As did the trial court in this case, the First District determined that the psychotherapist did not have a legal duty to prevent the patient’s suicide because the suicide was unforeseeable. Id. at 148. And the appellate court rejected the plaintiffs expert testimony setting forth the applicable standard of care, how it was breached, and how the breach proximately caused the patient’s suicide. Id. at 149-50 (in dissent).

For the reasons set forth above, we disagree with the Lawlor court’s description of the psychotherapist’s legal duty as a duty to prevent the patient’s suicide. Instead, we agree with Judge Benton’s observations in the dissent that the psychotherapist had a “duty to provide ‘appropriate psychotherapy' ” and that the plaintiffs expert affidavit precluded summary judgment. See id. at 150. Judge Benton correctly noted that because a legal duty existed, the issue of whether the doctor’s actions proximately caused the plaintiffs suicide was to be resolved by a jury. Id. at 151. Similarly in this case, based on the record evidence, a jury question remains as to the proximate cause issue.

In conclusion, the expert testimony established that Dr. Chirillo had a duty to treat Jacqueline in accordance with the prevailing standard of care for a primary care physician treating a patient for depression, precluding summary judgment on this issue. Accordingly, we reverse the order granting final summary judgment and remand for further proceedings. We also certify conflict with the First District’s decision in Lawlor.

Reversed and remanded; conflict certified.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . The trial court did not rule on this argument, and Defendants raise it as an alternative basis for affirmance on appeal. We reject this argument because the rule against the stacking of inferences does not apply to expert testimony that is based on reasonable inferences that can be drawn from the evidence. See Zack v. Centro Español Hosp., Inc., 319 So.2d 34, 35-36 (Fla. 2d DCA 1975).

      . For example, a provider/patient relationship of only a short duration, or treatment for a medical issue that does not have any psychiatric aspects, might not be sufficient for the provider to have a duty to provide appropriate psychiatric treatment. Perez, 883 F.Supp.2d at 1297.


author: WARNER, J.

text:
    Julian BIVINS, Appellant, v. Curtis ROGERS, as Limited Guardian of the Person and Property of Oliver Bivins, an Incapacitated Person, Appellee.
    No. 4D12-4204.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2014.
    Paul D. Turner, Joshua B. Spector and J. Ronald Denman of Perlman, Bajandas, Yevoli & Albright, P.L., Miami, for appellant.
    Brian M. O’Connell and Ashley N. Cris-pin of Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee.
   WARNER, J.

In a guardianship proceeding, the son of the ward petitioned to change the residence of the ward from Florida to Texas, where the ward’s family lives. The trial court ruled that the son did not have standing to petition for a change of residence, as only the guardian had the power to change the residence. We affirm the trial court’s determination that the son lacked standing to petition to change the residence of the ward.

An elderly ward was placed under a guardianship of his person and property and declared incapable of exercising his right to, among other things, determine his own residence. About a year after the establishment of the guardianship, the ward’s son petitioned to have the ward moved to Texas, which he alleged was the ward’s habitual residence and where all of the ward’s family resided. The guardian moved to dismiss the petition for lack of standing, arguing that only a guardian could petition to change a ward’s residence under section 744.2025, Florida Statutes (2012). The son opposed dismissal by arguing he had standing as an interested party, since he is the ward’s next of kin and heir to the ward’s estate. He relied primarily on Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla.2006) (discussing standing in guardianship proceedings).

The court granted the guardian’s motion to dismiss, concluding that, although Hayes might give the son standing to object to a petition by the guardian to change the ward’s residence, it did not give the son standing to initiate proceedings to change the ward’s residence. The court later entered a final judgment of dismissal, prompting this appeal.

A dismissal based on lack of standing raises a question of law that is reviewed de novo. See Gordon v. Kleinman, 120 So.3d 120, 121 (Fla. 4th DCA 2013) (reviewing whether party had standing to petition for revocation of probate of will); Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008) (same).

The right to determine the ward’s residence was one of the rights delegated to the guardian in the order appointing the guardian of the ward’s person and property. See § 744.3215(3)(e), Fla. Stat. (2012). A guardian must obtain court approval, however, before removing the ward from the state or to another non-adjacent county. See § 744.2025(1), Fla. Stat. (2012). Section 744.2025 does not authorize anyone other than the guardian to apply for court approval to change the residence of the ward.

Nevertheless, the son argues that he should have some right as the ward’s son and an “interested person” to ask the court to change the residence of his father to make him more accessible to his family. He relies primarily on Hayes, in which the supreme court considered who had standing in guardianship proceedings and held “that if the person is entitled to notice or is authorized to file an objection under the Florida Guardianship Law or the Florida Probate Rules, that person has standing to participate in the guardianship proceeding.” 952 So.2d at 506. As “next of kin,” the son is entitled to notice of the petition to determine incapacity and to appoint a guardian. See §§ 744.102(14), 744.331(1), 744.3371(1), Fla. Stat. (2012). As next of kin, he is an “interested person” who is entitled to file objections to guardianship reports. See § 744.367(4), Fla. Stat. (2012). As next of kin, he is also entitled to notice of a petition by the guardian to perform any act requiring a court order, such as a petition to change the ward’s residence to a different state or non-adjacent county. Fla. Prob. R. 5.630(b); § 744.2025, Fla. Stat. (2012). Therefore, pursuant to Hayes and the guardianship statute and rules, he has standing to “participate” in guardianship proceedings, including proceedings to change the ward’s residence.

However, the issue in this appeal is whether the son has standing to “initiate” proceedings to change the residence of the ward. Consistent with Hayes, we must look to the guardianship statutes and rules for the answer. No statute, rule, or Florida case has determined that the next of kin or any other interested person has standing to initiate proceedings to compel the guardian to change the residence of the ward or to act in a certain manner. We agree with the trial court that the son did not have standing to request the affirmative relief of changing the residence of the ward. Instead, the statutory scheme gives any interested person, which would include the son as next of kin, the right to petition for interim judicial review pursuant to section 744.8715(1), Florida Statutes (2012), if the guardian is exceeding his powers under the annual guardianship plan and is not acting in the ward’s best interest, or to petition for removal of the guardian pursuant to section 744.477, Florida Statutes (2012). So that petitions for judicial review pursuant to section 744.3715 are not unnecessarily filed, the statute provides for the assessment of attorney’s fees if the court finds the petition is without merit. See § 744.3715(2), Fla. Stat. (2012).

We therefore affirm the trial court’s dismissal of the petition to change the residence of the ward. Our affirmance is without prejudice to the son filing a petition for interim judicial review or for removal of the guardian with sufficient allegations to support such relief.

GROSS and CONNER, JJ., concur.

      . We have omitted from the statement of facts the parties’ various contentions as to which side has been taking advantage of the ward. These contentions are supported with refer-enees in the briefs that are not contained in the record on appeal. Therefore, we have disregarded them.

      . Although the son is entitled to participate, if he wishes to receive copies of all pleadings filed in the guardianship, not just those to which he is entitled by statute or rule, he must file a written request for notice of further proceedings. See Fla. Prob. R. 5.060(a).


author: PER CURIAM.

text:
    Miriam GALAPO, Appellant, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D13-2606.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Lawrence R. Metsch, for appellant.
    McGuire Woods LLP, and Sara F. Hol-laday-Tobias, Emily Rottmann, and C.H. Houston, III (Jacksonville), for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.540(b)(3) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ....”) (emphasis added).


author: WALLACE, Judge.

text:
    K.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1900.
    District Court of Appeal of Florida, Second District.
    May 16, 2014.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

K.C., a juvenile, appeals the order adjudicating him to be a delinquent child for the offenses of carrying a concealed firearm, section 790.01(2), Florida Statutes (2012), and being a minor in possession of a firearm, section 790.22(3), (5)(a). We affirm the circuit court’s order.

On appeal, K.C. raises two issues. First, he argues that the circuit court erred in denying his motion for a judgment of dismissal. In support of his first argument, K.C. contends that the prosecution failed to establish the corpus delicti of the two offenses independently of his admissions. This argument is without merit; it does not warrant further discussion.

Second, K.C. argues that his adjudications of delinquency for the two firearms offenses must be reversed because sections 790.01(2) and 790.22(3) and (5) are facially invalid. In support of his second argument, K.C. relies on the First District’s opinion in Weeks v. State, 2013 WL 6818369, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013). The firearm at issue in this case was a modern .38 caliber revolver, not an antique firearm or a replica of one. Accordingly, we reject KC.’s second argument on the authority of this court’s decision in Walker v. State, 137 So.3d 594, 39 Fla. L. Weekly D929 (Fla. 2d DCA May 2, 2014).

Affirmed.

ALTENBERND and MORRIS, JJ., Concur.


author: SALTER, J. SHEPHERD, C.J.,

text:
    Jorge L. FERNANDEZ, Appellant, v. The CITY OF MIAMI, Appellee.
    Nos. 3D11-2735, 3D11-1253, 3D11-1904.
    District Court of Appeal of Florida, Third District.
    June 4, 2014.
    Rehearing Denied Oct. 9, 2014.

      Ross & Girten and Theresa L. Girten, Miami, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitter son, and Gerald E. Green-berg, Robert T. Kofman and Geri Fisch-man Satin, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   SALTER, J.

Former City of Miami City Attorney Jorge L. Fernandez appeals a final judgment and orders on attorney’s fees and costs entered against him after a non-jury trial. Mr. Fernandez, plaintiff below, sought $274,721 in severance, vacation, and sick leave payments from the City in a breach of contract action. Mr. Fernandez’s lawsuit followed his plea of nolo con-tendere and adjudication of guilt on two charges of knowingly making false claims for reimbursement to the City’s Finance Department while serving as City Attorney, and the termination of his employment following the adjudication of guilt.

The City denied liability to Mr. Fernandez, raised numerous affirmative defenses against his claim, and counterclaimed for breach of fiduciary duty, fraud, breach of oath of office, civil theft, and conversion. Following three days of trial, which featured numerous documentary exhibits and the testimony of nine witnesses, the trial court entered a detailed final judgment denying Mr. Fernandez’s claim and awarding damages to the City on its counterclaims. Judgments against Mr. Fernandez for attorney’s fees and costs followed. For the reasons described below, we affirm each of the judgments and orders.

I. The Facts Established at Trial

A. Appointment and Initial Salary/Benefit Summary

The City Commission appointed Mr. Fernandez to serve as City Attorney in July 2004. A complete written employment agreement was not prepared and signed; instead, the City Commission approved the appointment in a resolution with a single page summary listing a salary, leave time allowance, insurance benefits, expense allowance amounts, deferred compensation, retirement, severance, and relocation and household goods moving expenses. The provision regarding severance stated:

At time of separation, the City Commission may consider the payment of six months compensation as severance, at its discretion.

The 2004 summary also provided for expense reimbursement of Mr. Fernandez’s “reasonable expenses not to exceed $5,000 per year.” The single page summary did not include such terms as a description of duties, prohibition of other work and income, status following death or disability, effect of conviction for crimes or incarceration, breach, or dispute resolution, for example. The single page summary was approved in September 2004. In December 2005, the Commission reappointed Mr. Fernandez.

City policy and practice with respect to expense reimbursement for its key officers required an election between two alternatives: the officer could have the monthly amount included in the regular salary checks (in which event it would be subject to federal income taxes), or the officer could provide itemized reimbursement requests for only those expenses allowed by City policies and incurred in connection with the officer’s official business for the City. Under the latter alternative, which Mr. Fernandez elected for the years at issue here, purely personal expenses and certain categories of expenses (alcoholic beverages, for example) were not reimbursable.

B. Expenses Incurred Before the July 2006 Renewal

Mr. Fernandez’s assistant testified that Mr. Fernandez would keep receipts at home and bring them to the office after several months, and his assistant would then organize them chronologically. Mr. Fernandez instructed the assistant to pick out the larger ones and then others to add up to the maximum pro rata amount allowed for the months. The objective was to consume the allowed amount without itemizing the receipts or indicating the relationship to the City’s business.

Mr. Fernandez submitted the bundled receipts with a personal memorandum, which he initialed, stating:

Attached please find expenses incurred by me, which I have determined are necessary in the performance of my duties. I have attached receipts for a client meeting/dinner at which I hosted prospected [sic] applicants, expert witnesses, colleagues, clients and/or individuals with whom I have had the need to confer regarding issues which I am involved as the City Attorney. The total amount due me is $_

In May of 2005, the second sentence of Mr. Fernandez’s cover memo for reimbursements was amended to: “I have attached receipts for meetings, dinners at which I hosted prospective applicants, expert witnesses, colleagues, clients or other individuals with whom I have had the need to confer regarding issues with which I am involved as the City Attorney.” The balance of the memo was not changed. When asked to provide more detail for meeting expenses, such as the identity of the attendees and the subject, Mr. Fernandez said that the meetings were privileged and confidential and that he could not provide those details.

By August 2006, the City finance director asked for an additional term in the reimbursement cover memo: “All expenses incurred and submitted herein for reimbursement were made in accordance with City policy.” The finance director testified that she relied on Mr. Fernandez to be truthful in his reimbursement requests to the City.

C. The July 2006 Modifications and Resolution

In mid-2006, Mr. Fernandez sought an increase in compensation and benefits. He prepared a memorandum evaluating his own performance, but to be sent by a City Commissioner to the other members of the Commission and the Mayor. The memorandum listed a number of perceived accomplishments and included a one-page “side by side” comparison of Mr. Fernandez’s “present” and “proposed” salary and benefits. The single page comparison sheet included 20 categories relating to salary, leave time, insurance, and other benefits. Near the bottom of the list, the provision for severance was to be amended to state, “At time of separation, payment of six months compensation as severance.” As noted previously, that term had been conditional since 2004 — “the City Commission may consider” the payment of a six-month severance.

In July 2006, the City Commission considered and adopted a resolution approving the new terms by a vote of three to two. The resolution did not include the “side by side” comparison, but was instead based on a single-page summary that listed only the proposed new terms. The minutes of the Commission’s discussion and vote on Mr. Fernandez’s new terms, thirteen pages, include a single comment by one Commissioner about the proposed change in the severance term: “I think it’s [the proposed salary increase] around 15 percent, excluding the value of the increased vacation and the guaranteed severance change ....”

Unsurprisingly, there was no discussion regarding whether the severance would or would not be payable in the event Mr. Fernandez was convicted of a crime or theft involving City funds. There was no independent legal review, on behalf of the City, of the proposed changes. There was no suggestion by Mr. Fernandez that such a review would be appropriate. There was no disclosure during the Commission meeting that the memorandum from a Commissioner describing Mr. Fernandez’s job performance had actually been authored by Mr. Fernandez. And importantly, the record includes evidence that only one person at that Commission meeting— Mr. Fernandez — was aware that he had been charging prohibited personal and family expenses for presentation to the City as allowed and reimbursable expenses.

D. The August and September 2006 Reimbursement Requests

Two false reimbursement requests later became the subject of Mr. Fernandez’s criminal charges, plea agreement, and conviction. An August 2006 memorandum sought (and resulted in) reimbursement for a $530.00 dinner at a Manhattan steak house for Mr. Fernandez, his wife, his son, and his son’s girlfriend, on a Saturday night for a family celebration that did not involve any City business. The following month, Mr. Fernandez submitted a memorandum which sought (and resulted in) reimbursement for a 45-person Sunday brunch at a Miami restaurant for another family celebration that did not involve any City business.

The further evidence at trial presented by the City to prove expense account fraud showed that Mr. Fernandez had taken 27 out-of-state trips between September 2004 and September 2007, including conferences in Honolulu, Las Vegas, Washington, D.C. (eight trips), Chicago (five trips), and New Orleans. These trips by Mr. Fernandez resulted in travel and lodging expenses exceeding over $34,400, above and beyond the $10,000 per year expense allowance, and also took him away from the office for some 65 days (which were not charged to vacation or personal leave days).

E. Investigation, Negotiation, Termination

In 2007, the State Attorney’s Office and Internal Affairs Section of the City of Miami Police Department investigated anonymous complaints that Mr. Fernandez was submitting to the City finance department fraudulent claims for reimbursement of purely personal expenses. When the complaints were corroborated, the State, Mr. Fernandez, and his attorney entered into plea negotiations.

On February 14, 2008, the State charged Mr. Fernandez with two counts of making false official statements in expense reports. The same day, Mr. Fernandez signed a plea agreement. Mr. Fernandez agreed that he would be adjudicated guilty on the charges and that he would resign his position as City Attorney. He promptly submitted a letter of resignation, to become effective February 19, 2008. However, on February 28, 2008, the City Commission unanimously rejected the resignation and terminated Mr. Fernandez as City Attorney based on criminal conduct and violation of public trust. When Mr. Fernandez’s request for a payment of severance and allegedly-unused leave days was denied, he commenced the circuit court lawsuit that culminated in this appeal.

II. Analysis

Mr. Fernandez argues here, as he did below, that the one-page summary approved by the City Commission in 2006 is a binding, unambiguous agreement with severance and leave accrual provisions that are operative despite his conceded perpetration of financial crimes against the City while employed to oversee the legal affairs of the City. The City, in its affirmative defenses and counterclaims, has continuously asserted that:

• Mr. Fernandez committed a prior, superseding, material breach of his oath of office and the at-will employment arrangement, excusing any alleged duty of the City to make severance and leave payments;

• The one-page summary sheets were incomplete and did not address criminal acts against the City itself, so that the omission should be construed against the draftsman (Mr. Fernandez);

• Mr. Fernandez breached his fiduciary duty as an attorney to his non-lawyer clients (the Commissioners) by failing to describe the consequences of the revised severance provision and failing to discuss or recommend a review of the terms by independent counsel on behalf of the City; and

• Mr. Fernandez’s fraudulent inducement to the City to approve more favorable terms for his own benefit vitiates any right he might have to enforce those terms.

There is no question that a Florida attorney must use particular care in representing himself or herself and the client in a transaction between them providing enhanced benefits to the attorney. Moreno v. Allen, 692 So.2d 957, 959 (Fla. 3d DCA 1997) (attorneys’ inherent conflicts of interest in persuading client to approve enhanced fees held void for lack of consideration and overreaching); Gerlach v. Donnelly, 98 So.2d 493, 498 (Fla.1957) (“The attorney is under a duty at all times to represent his client and handle his affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity. Business transactions between attorney and client are and always ought to be subject to the closest scrutiny because of this underlying relationship”); Brigham, v. Brigham, 11 So.3d 374, 386 (Fla. 3d DCA 2009) (“Transactions between an attorney and client, where the attorney profits at the client’s expense, will, if not void, be closely scrutinized to determine utmost good faith.”).

In the present case, the Commissioners were not lawyers and were not represented or advised by an independent attorney. The loose, single-page summaries lacked contract language to address the varieties of contract termination scenarios (at the instance of the employer, at the instance of the employee, for cause, or not for cause, for example). The notion that Mr. Fernandez could have resigned one day after the passage of the 2006 resolution and demanded a full six-month severance, or that he could have been imprisoned for the misapplication of City funds, and still demand a full six-month .severance, betrays the lack of meaningful advice provided his client.

These facts distinguish the present case from those relied upon by Mr. Fernandez. In Barakat v. Broward, County Housing Authority, 771 So.2d 1193 (Fla. 4th DCA 2000), the employee seeking the payment of a severance benefit was not an attorney. Any legal review of the employment terms and resolution for the County was performed by someone other than the employee claiming the benefit. The severance provision was unconditional from the outset of his employment (in the present case, severance was discretionary until Mr. Fernandez modified the term without an independent legal review or his own affirmative discussion of the change during the course of the Commission meeting). The basis for the employee’s termination in Barakat was his false federal income tax return — which caused him to be suspended from participation in federal housing programs — not his conviction of crimes against his governmental employer. And finally, the reviewing court determined that unconscionability had not been pled by the employer, and the facts before the court had not shown that the contract was against public policy. Id. at 1194.

Similarly, the case of Sink v. Abitibi-Price Sales Corp., 602 So.2d 1313 (Fla. 4th DCA 1992), involves a non-attorney employee who had negotiated a severance provision at arms’ length with his corporate employer. The negotiation occurred in connection with the sale by Abitibi-Price of the division headed by Mr. Sink. The legal issue was whether a 1990 termination letter represented a novation displacing the terms of a 1989 management agreement. The opinion does not address a chief legal officer’s self-serving recommendation (to his otherwise-unrepresented employer) that his or her contract be changed to assure payment of benefits following the commission of a crime against the employer by the chief legal officer.

Nor does Nabors v. Miami-Dade County, 796 So.2d 634 (Fla. 3d DCA 2001), control the case before us. In Nabors, a non-attorney employee of the county aviation department pled guilty to accepting unlawful compensation. The employee submitted a resignation and then claimed a right to payment for accrued annual and sick leave. The accrued, unpaid sick leave claim was denied because of a preexisting county employment manual provision precluding such a payment unless the employee resigned “in good standing.” A summary judgment on the denial of annual leave benefits, however, was reversed. The employment manual contained no “good standing” requirement as to annual leave. A county ordinance provided that an employee “found by a court of competent jurisdiction to have committed while in county service an offense involving a breach of the public trust shall forfeit all rights to payment for accumulated sick and annual leave,” but the ordinance was enacted after the end of the period during which the employee’s annual leave had accrued. Id. at 635, n. 2. The ordinance contained no provision for retroactivity, and this Court declined to impose the forfeiture retroactively. In that case, the employee did not persuade the county commission to grant him an increased accrued leave benefit while serving as the commission’s chief legal officer.

Finally, Mr. Fernandez argues that section 112.313(5), Florida Statutes (2006), relieved him of any fiduciary duty regarding the negotiation of his own salary and severance provisions. The right to negotiate compensation in that provision, however, is not a license to ghostwrite a memorandum for a Commissioner suggesting material changes that redound exclusively to the benefit of the municipal attorney without proposing or suggesting any independent legal review. The trial court found, after hearing and considering all of the evidence at trial that Mr. Fernandez “breached his fiduciary duty to the City when he failed to explain to the City Commission the view which he expressed at trial that he would be entitled to the severance pay even if he were to be discharged for committing a crime against the City,” and that he submitted false and fraudulent expense reimbursement requests while “failing to explain properly to his client, the City Commission, the consequences of the changes he made to the severance provision of his contract.”

The trial court entered its judgment and orders in favor of the City on alternative grounds: ambiguity in the bare-bones resolution (construed against Mr. Fernandez as the draftsman); prior superseding breach; fraud; and breach of fiduciary duty. On the record before us, we conclude that there was ample competent, substantial evidence before the trial court to support the trial court’s findings on breach of fiduciary duty and fraud, and we do not address the alternative and independent grounds of ambiguity and prior superseding breach. The trial court’s conclusions on breach of fiduciary duty and fraud must be affirmed. Mitchell v. Higgs, 61 So.3d 1152, 1154 (Fla. 3d DCA 2011); CFI Sales & Mktg., Ltd. v. Fla. Marlins Baseball, Ltd., 837 So.2d 423 (Fla. 3d DCA 2002).

III. Conclusion

The trial court heard and considered extensive evidence proving breaches of two separate duties, each of which is imbued with far more than a garden variety, arms’-length employer-employee relationship in the private sector. As a public officer in a local government, Mr. Fernandez was subject to Florida’s statutory declaration of policy that such officers are “agents of the people and hold their positions for the benefit of the public.” As the City Attorney responsible for advising and protecting the City of Miami in legal matters, Mr. Fernandez was required to “represent his client and handle his affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity.” Gerlach, 98 So.2d at 498.

Mr. Fernandez’s attempt to reap the benefit of his own breaches of those duties should not be countenanced, as the trial court found. The final judgment and orders on attorney’s fees and costs are affirmed.

WELLS, J., concurs.

SHEPHERD, C.J.,

dissenting.

I respectfully dissent from the majority’s affirmance of this case.

The majority opinion recounts Mr. Fernandez’s wrongdoings, concluding therefrom that “Mr. Fernandez’ attempt to reap the benefit of his own breaches should not be countenanced.” However, the task at hand is not “what should be countenanced,” but rather what “is countenanced” under the law. Strict application of the law to the facts of this case requires reversal. A brief summary of the facts and procedural background of this case is necessary to explain my dissent.

Facts and Procedural Background

This is an appeal by Jorge L. Fernandez, a former City Attorney for the City of Miami, from a final judgment rendered after a non-jury trial, rejecting his claim that the Miami City Commission breached his agreement of employment with the City by failing to pay him $274,271 in severance pay and pay for unused vacation and sick days after firing him for submitting false expense reports to the City Finance Department.

Fernandez was appointed City Attorney on July 29, 2004, by Resolution No. 04-0533, drafted by the Interim City Attorney. When the City Commission passed the resolution appointing Fernandez, the Commission approved a term sheet (the 2004 term sheet) attached to the resolution, describing Fernandez’s salary and other benefits. Pursuant to the resolution, Fernandez initially received a salary of $198,382.08, as well as such benefits as thirty-one vacation days a year, twelve sick days, car and cell phone allowances, and an annual expense account of $5,000. With respect to vacation and sick leave, the term sheet stated, “At time of separation: payment of all accumulated vacation and sick leave.” As to severance, it stated, “At the time of separation, the City may consider the payment of six months compensation as severance, at its discretion.” (Emphasis added.)

In early 2006, Fernandez decided to ask the Commission for an increase in his compensation and benefits, and so prepared a revised term sheet (the 2006 term sheet) for presentation to the Commission. The revised term sheet called for Fernandez’s salary to be raised to $218,220.29, retroactive to September 2005, with an additional ten percent increase in September 2006, and a $10,000 incentive. It also increased Fernandez’s annual vacation to forty-five days and his expense account to $10,000 annually. There was no change in the number of days of sick leave, or the provision relating to the payment of sick leave on separation. However, the revised term sheet deleted the phrases “the City may consider” and “at its discretion,” from the existing severance provision, leaving it to read “At time of separation, payment of six months compensation as severance.” As thus revised, the proposed compensation package, including a verbatim, side-by-side comparison of the existing term sheet and the revised term sheet, was circulated by the Commission’s designated representative, then Commissioner Tomas Regalado, to the entire Commission for comment, along with a glowing performance evaluation.

On July 13, 2006, the Commission passed Resolution No. 06-0434 by a 3-2 vote, approving Fernandez’s proposed term sheet without modification. During its deliberations that day, Commissioner Haskins recognized the severance provision as a “guaranteed” severance provision, but in the context of disagreeing with any increase in compensation for Fernandez rather than conditions or limitations on payment. There was no specific mention of the similar provision relating to payment of vacation and sick leave. Although present at the July 18 meeting of the Commission, Fernandez, made no effort to explain the differences between the initial 2004 term sheet and the one prepared by him and approved on July 13,2006.

One year later, Fernandez pled nolo contendere to two misdemeanor counts of submitting false official statements. Fernandez submitted his resignation to the City, but the Commission, in a public display of indignation and betrayal, rescinded the resignation and terminated him. It also unanimously rejected Fernandez’s request for severance pay and pay for unused leave.

In April 2008, Fernandez sued the City in a one-count complaint for breach of contract. In response, the City filed affirmative defenses, including inter alia, that Fernandez’s fraud, theft, and alleged lack of candor breached his fiduciary duties and other obligations to the City, and that allowing Fernandez to collect the money would run afoul of Florida’s strong public policy against public corruption. The City also counterclaimed for civil theft, breach of fiduciary duty, fraud, conversion, and breach of oath of office.

After a two-day bench trial, the trial court entered Final Judgment in favor of the City on Fernandez’s breach of contract claim. The Court reasoned:

6.With regard to the severance pay that Fernandez seeks, the Court finds that the term sheet that Fernandez prepared and presented to his client, the Commission, in or about July, 2006 was ambiguous in that it never addressed whether the severance would be owed even if Fernandez were discharged for cause after being adjudicated guilty of committing a crime against the City. The Court resolves any ambiguity against the drafter of that provision, Fernandez, and therefore concludes that the severance provision cannot be read to require payment in the event Fernandez was terminated for cause after being adjudicated guilty of committing a crime against the City.
7. The Court further finds that Fernandez breached his fiduciary duty to the City when he failed to explain to the City Commission the view which he expressed at trial that he would be entitled to the severance pay even if he were to be discharged for committing a crime against the City. This breach of fiduciary duty prevents Fernandez from prevailing on his claim for severance.
8. Separately, the Court determines that Fernandez is not entitled to severance, vacation, or sick leave because he materially breached his contract with the City when he falsified expense allowance reimbursement records, thus stealing from the City and perpetrating a fraud on the City. This conduct, as well as Fernandez’s failure to disclose the potential consequences of the change to his severance provision, constituted a material breach of Fernandez’s contract. As a result of this breach, Fernandez is not entitled to collect severance, vacation leave, or sick leave.

At the same time, the court found in favor of the City on its counterclaims in the total amount of $8,093, which, after being trebled as required by Florida’s Civil Theft Statute and then adjusted to account for a $3,093.44 restitution payment made by Fernandez to the City, resulted in the entry of a final judgment in favor of the City in the sum of $6,185.56. Soon thereafter, the trial court • entered a another judgment in favor of the City against Fernandez for $95,528.32 in attorney’s fees pursuant to the Civil Theft Statute and costs in the amount of $17,455.68.

Because I find the severance and leave payment provisions to be unambiguous and enforceable as a matter of law, I would reverse the judgment of the trial court on Fernandez’s one-count complaint and remand for entry of judgment in the sum of $274,271 in favor of Fernandez, subject, ■ of course, to an offset of the amounts owing on the City’s counterclaims.

Analysis

The court below and the City here seek to have us insert a “crime exception” into the two separation clauses in this case. Because the clauses do not expressly address whether the severance and leave payments would be owed if Fernandez was discharged after being adjudicated guilty of committing a crime against the City, the lower court found, and the City continues to assert here, that the provisions are “ambiguous” on the dubious ground that Fernandez was the “drafter” of both. However, there is no uncertainty in the phrase following the allocation of days of vacation and sick leave to Fernandez, “At time of separation: payment of all accumulated vacation and sick leave,” or on the severance line of the revised term sheet, “At the time of separation, payment of six months compensation.” The word “separation” simply means cessation of a contractual relationship, regardless of how or why it occurs. See Black’s Law Dictionary 1487 (9th ed. 2009) (“[Separation ... 3. Cessation of a contractual relationship, esp. in an employment situation.”); see also Webster’s Third, New International Dictionary 2070 (1993) (“[S]eparation ...4b termination of contractual relationship: resignation, discharge C ~ from the serviceD C ~ from employmentD Ca serious breach of accepted standards of department ... may be punished by loss of social privileges, or ~ ... D”).

The plain language of the two phrases covers all conditions under which Fernandez might leave the employ of the City. If the City had so desired, it could have inserted a cause provision, or a more limited “crime provision,” into the agreement. We cannot. See Fernandez v. Homestar at Miller Cove, Inc., 935 So.2d 547, 551 (Fla. 3d DCA 2006) (“[A] court is powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties.” (citing Emergency Assocs. Of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995)); see also Green v. Life & Health of Am., 704 So.2d 1386, 1391 (Fla.1998) (“[C]ourts are powerless to rewrite contracts or interfere with the freedom of contracts or substitute [their] judgments for that of the parties' to the contract in order to relieve one of the parties from apparent hardships of an improvident bargain.” (quoting Quinerly v. Dundee, 159 Fla. 219, 31 So.2d 533, 534 (1947)). In fact, if we were now to go about attaching conditions to the severance and leave provisions of the parties’ agreement, we would be at a loss to know how broad to make the conditions.

The City cites two cases in support of its position that the two phrases are ambiguous, Jenkins v. Eckerd Corp., 913 So.2d 43 (Fla. 1st DCA 2005) and Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA). The City’s reliance upon these two cases is misplaced. Jenkins actually supports Fernandez. In Jenkins, a lessor, in a predicament analogous to that of the City in the case before us, sought to insert a phrase, “its successors and assigns,” into a shopping center lease agreement which stated, “should Delchamps [the anchor tenant] fail or cease to lease and pay rent for its store in the Shopping Center ... Lessee shall have the right and privilege of ... canceling th[e] lease, and terminating all of its obligations hereunder.” Shortly after signing the lease, Del-champs merged with Jitney Jungle, a like grocery chain, which took over the operation of the store. Thereafter, Jitney Jungle filed for bankruptcy protection under Chapter 11, and the lease was assigned to Bruno’s Supermarkets. Although the anchor space was at all times being operated as a grocery chain, albeit under three different names, Jack Eckerd Drugs, Inc., a concededly proper assignee of the lessee’s interest in the lease, invoked the plain language of the lease, i.e. that lessee had the right and privilege to cancel if Del-champs were not present on the property, in an effort to avoid a claim for money damages for breach of lease brought against it by the lessor. ' The trial court found the lease language to be unambigu-oüs and enforced it as written in favor of the lessee. The Court of Appeal affirmed, reasoning:

The contracting parties here had the ability to negotiate and establish ... their respective rights, duties and remedies for the entire term of the lease and to express those rights and duties in writing as accurately as feasible.... Although the remedy of termination provided ... may be harsh, it is the remedy the parties negotiated and expressly set forth in writing.

913 So.2d at 52.

The second case cited by the City demonstrates the flaw in its reasoning in the case before us. In Hunt, an addendum to a 99-year lease provided that a $20,000 annual rent payment was not to commence until such time as lessee completed its “planned construction” of a small shopping center on the premises. Forty-four months into the lease term, lessee had not commenced, let alone completed, the contemplated construction. The lessor sought a declaration of his rights under the lease. Unlike our case, in which the contested phrases by their terms covered all contingencies which might occur, the contested phrase in Hunt posed unanswered questions: (1) what would happen if construction was never completed; (2) what would happen if instead of commencing and completing construction of the shopping center, the lessee was using a portion of the property for another purpose, such as a truck by-way to an adjacent store. On these facts, the District Court of Appeal in Hunt remanded the case for consideration of parol testimony to determine what the parties reasonably intended. The reasoning and holdings of Jenkins and Hunt are consistent with and support the reversal of the trial court decision in this case.

Moreover, I find Barakat v. Broward County Housing Authority, 771 So.2d 1193 (Fla. 4th DCA 2000), to be legally indistinguishable from the case before us. In Barakat, Russell Barakat was employed as the Executive Director of the Broward County Housing Authority (BCHA) when, on May 6,1996, he was convicted of filing a false tax return. As a result of the conviction, the U.S. Department of Housing and Urban Development (HUD) advised BCHA that Barakat was suspended from participating directly or indirectly in HUD programs. As a result of the suspension, Barakat’s employment was terminated by BCHA.

The BCHA resolution pursuant to which Barakat was employed provided in part:

6. Should Barakat be terminated, then he will be given severance pay in the amount due, as if said contract had run its full length.
7. In no case, shall Barakat be considered to have a property right in his office. Barakat is not to be considered an at will employee of the Broward County Housing Authority and may not be terminated without cause by the Bro-ward County Housing Authority.

Id. at 1194. The Court of Appeal enforced the contract as written, stating:

It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain. Dickerson Florida Inc. v. McPeek, 651 So.2d 186, 187 (Fla. 4th DCA 1995). A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain. Green v. Life & Health of Am., 704 So.2d 1386, 1391 (Fla.1998). Had the BCHA wanted to provide for severance pay only when Barakat was terminated without cause, it could have made that a requirement in the Resolution.

Id. at 1195.

Sink v. Abitibi-Price Sales Corp., 602 So.2d 1313 (Fla. 4th DCA 1992) also is instructive. Sink was president of Jaffe’s Office Products, a division of Abitibi-Price Sales Corporation. Sink was in negotiations with Abitibi-Price for the purchase of the Jafife Division. To this end, the parties entered into a management agreement which provided Sink would receive as severance, lump sum salary and benefits for twelve or fifteen months should the agreement be terminated. It also stated the agreement would be void if Sink was terminated for cause.

Thereafter, Sink decided not to purchase the Jaffe division and the parties entered into a new termination agreement, including therein a provision for a lump-sum severance of twelve months salary totaling $208,129.32. As in our case, the agreement contained no conditions or limitations on its payment.

Sink was given his severance check. Several days later the comptroller of the company discovered Sink had stolen rebate checks payable to the company, and put a stop payment on the severance check. Sink filed a breach of contract action against Abitibi-Price, who counterclaimed for breach of fiduciary duty. After a bench trial, the trial court entered final judgment for Abitibi-Price on Sink’s breach of contract claim and final judgment for Sink on the counterclaim.

Sink appealed. The Fourth District determined that, as a matter of law, a novation occurred and the parties entered into a completely new agreement, which unambiguously entitled Sink to $208,129.42 in severance pay. The case was reversed and remanded to the trial court to enter judgment for Sink.

The City seeks to distinguish these cases on the ground that neither of the plaintiffs in those cases was an attorney. I find the distinction immaterial. During negotiations on the employment contract, the relationship between Fernandez and the Commission was employer/employee and not attorney/client. Pride Int’l, Inc. v. Bragg, 259 S.W.3d 839, 850 (Tex.App.2008) (“[A] corporate officer acts in his individual capacity, as is evident that the company and employee are adverse to each other in the context of negotiating that employee’s compensation.”); In re Walt Disney Co. Derivative Litigation, 906 A.2d 27, 49-51 (Del.2006) (determining president did not breach his fiduciary duty when he negotiated and accepted severance provisions of employment agreement or when he accepted full payout upon termination). Fernandez had a statutorily recognized right to negotiate his salary and benefit package with the Commission. See § 112.313(5), Fla. Stat. (2005) (“No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses or other compensation as the local government attorney, as provided by law.”); Hillsborough Cnty. v. Sutton, 150 Fla. 601, 8 So.2d 401 (1942) (enforcing agreement entered by County Commission to hire attorney and pay him an annual salary). It defies credulity to think the five-member City Commission, all of whom were successful businessmen and businesswomen, did not appreciate the context of the moment.

Nor can it be said that this is a case where a more powerful party was seeking to impose his will on a weaker party. See Samuel Issacharoff, Contracting for Employment: The Limited Return of the Common Law, 74 Tex. L.Rev. 1783, 1788 (1996) (“[C]haracteristic indicators of impediments to full and equal bargaining [are]: significant disparities in bargaining power between offeror and offeree; contracts of adhesion drafted by the offeror; asymmetries in the ability to breach the contractual guarantee of security; and the inability to seek a market remedy in the event of a breach.”). The contracting parties here had the ability to negotiate and establish their respective rights, duties and remedies in such fashion as they wished.

Finally, the City urges us to affirm the judgment in this case on the basis of the state’s strong public interest against public corruption. At first glance, the City’s suggestion seems appealing. Precluding Fernandez from collecting his severance, unused vacation pay, and pay for unused sick days appears to mete out a kind of “rough justice” to him for his transgressions. Upon closer examination, the City’s suggestion is more problematic. The City does not seek to rescind Fernandez’s employment agreement. In fact, it has affirmed the agreement and obtained a judgment for sums unlawfully received. By all accounts, Fernandez’s service to the Commission was impeccable while he enjoyed the office of City Attorney. He was as contractually entitled to this additional compensation upon termination as he was to every paycheck he received. I can appreciate that the City now finds itself in a spot not to its liking; however, although the law provides for punishment of illegal acts, the forfeiture of earned income under the terms of the contract in. this case is not one of them.

I would reverse the final judgment in this case for entry of judgment in favor of Fernandez in the amount of $274,271, subject to an offset of the amounts owing on the City’s counterclaims.

      . Although these two reimbursement requests were the only specific offenses charged by the State Attorney's Office, Mr. Fernandez admitted at trial that many more of his expenses reimbursed in 2004, 2005, and 2006 were not related to his duties or the business of the City.

      . § 837.06, Fla. Stat. (2008): "False official statements. — Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

      . Section 112.313 provides: (5) SALARY AND EXPENSES. — No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law.”

      . § 112.311(6), Fla. Stat. (2006).

      . Fernandez previously had served as Miami’s City Attorney from 1988 to 1991, when he accepted a position as County Attorney in Sarasota, Florida. His tenure there lasted thirteen years when, in 2004, he once again was hired as City Attorney for the City of Miami. Unlike other executives with the City, the City Attorney officially reports to the City Commission.

      . A copy of the side-by-side comparison included in the proposed compensation package circulated by Commissioner Regalado is annexed to this opinion as Exhibit "A.” The package was provided to each Commissioner approximately one week before the date of the Commission meeting where the package was scheduled for consideration.

      . The City does not dispute this calculation. It is composed of $120,876.65 in unused vacation, $25,228.50 in unused sick leave and $128,615.86 in severance pay.

      . In fact, he was the drafter of only one of the two clauses, and, as described earlier, the one he drafted merely modified some of the terms of an earlier agreement drafted by a member of the then City Attorney’s staff. See Exhibit "A.”

      . For example, the provision might be an absolute cause restriction, a discretionary for cause restriction, a broad illegal acts restriction, or one where only the City was the victim.


text:
    Arlene DONOVAN, Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee.
    No. 4D11-4648.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.

      Russel Lazega and Yasmin Gilinsky of Florida Insurance Advocates, Dania Beach, for appellant.
    Robert S. Horwitz of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, and Diane H. Tutt of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   CIKLIN, J.

Arlene Donovan appeals the order dismissing with prejudice her cause of action for breach of a property insurance contract. The trial court dismissed the suit based on two grounds: the statute of limitations and a finding that Donovan failed to comply with the insurance contract’s notice of loss provision. We agree with Donovan that the judicial act of dismissal was not warranted on either ground, and we reverse and remand for further proceedings.

Donovan brought a complaint against the appellee, Florida Peninsula Insurance Company (Florida Peninsula), for breach of property insurance contract. Donovan alleged that she purchased homeowner’s insurance from Florida Peninsula, and that the policy included hurricane coverage. After her home was damaged by Hurricane Wilma in October 2005, an appraisal award was entered by an umpire. However, Donovan’s application for a local government permit to repair her roof was denied because the roofing material envisioned in the appraisal was no longer being manufactured. Thereupon Donovan requested from Florida Peninsula the remaining insurance benefits to complete the repairs in compliance with applicable code. In January 2010, Florida Peninsula refused and Donovan filed the underlying lawsuit in July of 2011.

Florida Peninsula moved to dismiss the suit, arguing that it was brought more than five years after the 2005 loss and was time-barred by section 95.11(2)(e), Florida Statutes (2011), and that Donovan provided late notice of loss. The court entered an extremely brief order granting the motion based on the grounds argued by Florida Peninsula, “to wit: Statute of Limitations and Late Notice.”

The parties do not dispute that the statute of limitations period for Donovan’s contract action is five years. Instead, they dispute whether the limitations period began running when the cause of action accrued (when Florida Peninsula denied coverage) or on the date of loss (October, 2005).

Section 95.11(2)(e) became effective on May 17, 2011 after Donovan’s cause of action accrued. This statutory enactment provided that the limitations period in an action for breach of property insurance contract began running from the date of loss. Prior to the effective date of section 95.11(2)(e), a suit for breach of a property insurance contract began running from the date the cause of action accrued — that is, when coverage was alleged to have been erroneously denied. See § 95.11(2)(b), Fla. Stat. (2010) (providing for a five-year limitations period for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument”); § 95.031(1), Fla. Stat. (2010) (providing that, unless otherwise specified, the limitations period begins running when the cause of action accrues, which is “when the last element constituting the cause of action occurs”); J-J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1050 (Fla. 4th DCA 2003) (“In regard to insurance contracts, a specific refusal to pay a claim is the breach which triggers the cause of action and begins the statute of limitations running”) (citation omitted).

The parties are in agreement that the application of section 95.11(2)(e) to Donovan’s action would be retroactive. To the extent section 95.11(2)(e) is properly regarded as a statute of limitations, as the parties believe, it could not be applied retroactively unless it was clear the legislature intended it to be given such application. See Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735, 736 (Fla.1987) (“It is well settled that before a statute of limitations can be applied retroactively, there must be a clear manifestation of legislative intent that the statute be given retroactive effect.”); Homemakers, Inc. v. Gonzales, 400 So.2d 965, 967 (Fla.1981) (“[A] statute of limitations will be prospectively applied unless the legislative intent to provide retroactive effect is express, clear and manifest.”); Garofalo v. Cmty. Hosp. of S. Broward, 382 So.2d 722, 724 (Fla. 4th DCA 1980) (“We start with the basic proposition that a shortening of any statute of limitations will be given retroactive application only upon the showing of clear intent by the Legislature”) (citations omitted). Section 95.11(2)(e) does not contain evidence of the legislature’s intent for retroactive application, on its face or in its legislative history. Nor does it contain a savings clause, which would allow for a period of time to file suit for those with existing causes of action-such clauses indicate the legislature’s intent for retroactive application. Carpenter v. Fla. Cent. Credit Union, 369 So.2d 935, 937 (Fla.1979).

In sum, the court erred in applying section 95.11(2)(e) retroactively in the absence of evidence of the legislature’s intent for such application.

The court also dismissed Donovan’s suit based on her alleged failure to comply with a notice of loss provision in the contract. “The trial court cannot go beyond the four corners of the complaint in deciding the merits of a motion to dismiss. When confronted with a motion to dismiss, the court is required to take the allegations of the complaint as true and to decide only questions of law.” Rohatynsky v. Kalogiannis, 763 So.2d 1270, 1272 (Fla. 4th DCA 2000) (citations omitted). However, “[a] trial court is not bound by the four corners of the complaint where the facts are undisputed and the motion to dismiss raises only a pure question of law.” Metro. Cas. Ins. Co. v. Tepper, 969 So.2d 403, 405 (Fla. 5th DCA 2007) (citation omitted).

Here, the record contains Donovan’s complaint and Florida Peninsula’s motion to dismiss, with their respective exhibits. The record before us does not establish whether the contract contained a notice of loss provision and whether Donovan failed to comply with such a provision. Accordingly, the trial court erred in ordering a dismissal on this ground.

It is not apparent from the record before us that Florida Peninsula was entitled to a dismissal with prejudice. We therefore reverse the order dismissing Donovan’s complaint and reinstate her cause of action for further proceedings.

Reversed and remanded for further proceedings.

MAY and KLINGENSMITH, JJ., concur.

      . The record is unclear as to the exact date coverage was denied, but it appears the denial occurred sometime on or after January 5, 2010, when Donovan’s claims adjuster requested additional coverage.

      . Although the parties do not raise the possibility, it appears that section 95.11(2)(e) is actually a statute of repose, as it provides for a particular event that starts the limitations period running. See Carr v. Broward Cnty., 505 So.2d 568, 570 (Fla. 4th DCA 1987) ("The period of time established by a statute of repose commences to run from the date of an event specified in the statute.... At the end of the time period the cause of action ceases to exist."). Statutes of repose have been held to be substantive in nature. See Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 260 (Fla. 4th DCA 2012). As such, in order to apply retroactively, the statute must reflect a clear legislative intent for retroactive application. Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 425 (Fla. 4th DCA 2014) (citation omitted).


text:
    Harry HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3146.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2014.
    Rehearing Denied Sept. 30, 2014.
    Harry Henderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, ROBERTS, and ROWE, JJ., concur.


author: SCALES, J.

text:
    Deborah PHILLIPS, Appellant/cross-appellee, v. Angelo GARCIA, et al., Appellees/cross-appellants, et al.
    No. 3D13-262.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.
    Rehearing Denied Oct. 9, 2014.

      Max R. Price, P.A., and Max R. Price, Miami, for appellant/cross-appellee.
    Billbrough & Marks, P.A., and G. Bart Billbrough and Erin Hantman, for appel-lee/cross-appellant Robert N. Pelier.
    Before SUAREZ, ROTHENBERG and SCALES, JJ.
   SCALES, J.

The defendant below, Deborah Phillips, appeals an order denying her motion for fees made pursuant to section 57.105, Florida Statutes (2009). The plaintiff below, Angelo Garcia, and his counsel, Robert Pelier, cross-appeal from the same order with regard to the denial of their motion for attorney fees pursuant to section 57.105. Because we conclude the trial court did not abuse its discretion in denying either motion, we affirm.

I. Background

On April 20, 2006, Garcia, represented by Pelier, commenced a civil action against Miami-Dade County, seeking damages on claims of false arrest and malicious prosecution. Garcia alleged that a number of Miami-Dade police officers caused Garcia to be wrongfully criminally charged as the result of the filing of a false police report. Garcia’s second amended complaint, filed on January 16, 2007, added Phillips, a Miami-Dade police officer involved in the arrest and investigation of Phillips, as a defendant.

In March 2007, Phillips served Garcia and Pelier with a document captioned, “Request for Dismissal of Action Pursuant to F.S. § 57.105(4)” (Request for Dismissal). In the Request for Dismissal, Phillips demanded that the lawsuit against her be dismissed. Phillips asserted that the lawsuit was frivolous because there was no material evidence to support the claim of malicious prosecution. The Request for Dismissal was filed with the trial court on February 5, 2009.

Prior to Phillips filing her 57.105 motion with the court, Phillips moved for summary judgment in June 2008, arguing there was no proof of any of the elements for a malicious prosecution claim. Additionally, Phillips argued that she was entitled to qualified immunity.

On January 12, 2009, the trial court heard, and subsequently granted, Phillips’s motion for summary judgment, holding Phillips was entitled to qualified immunity from Garcia’s lawsuit.

On January 6, 2012, Garcia and Pelier filed their motion for section 57.105 sanctions, which had previously been served upon Phillips and her counsel in August 2011. In their motion, Garcia and Pelier argued that Phillips’s pursuit of her section 57.105 fees motion was frivolous and, therefore, that they were entitled to fees under the statute.

After a hearing, the trial court entered an order denying both section 57.105 motions. This timely appeal and cross-appeal followed.

II. Standard of Review

The appellate court reviews orders denying motions for attorney fees and costs for an abuse of discretion. State, Dep’t of Transp. v. Kisinger Campo & Assocs. Corp., 661 So.2d 58, 59 (Fla. 2d DCA 1995). “The [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Asinmaz v. Semrau, 42 So.3d 955, 957 (Fla. 4th DCA 2010) (alteration in original) (quoting Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 528 (Fla. 1st DCA 2003)).

We recognize the superior vantage point of the trial judge, and will reverse only if the record reflects that no reasonable trial judge could have denied the subject motions for 57.105 sanctions. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

III. Analysis

The fact that the trial court determined, via summary judgment, that Phillips was entitled to qualified immunity, does not necessarily mean that Garcia’s malicious prosecution claim lacked factual support — and was therefore sanctionable— under section 57.105. See Freeman v. Valdez, 393 So.2d 1173 (Fla. 3d DCA 1981) (affirming denial of a motion for section 57.105 fees where case was dismissed on basis that sheriff was immune from defamation claims); see also Bowen v. Brewer, 936 So.2d 757, 762 (Fla. 2d DCA 2006) (“Winning a motion for summary judgment does not conclusively prove a section 57.105 claim. If that were the standard, then every award of summary judgment would be followed by a section 57.105 motion.”) (citation omitted).

The record supports the trial court’s conclusion that Phillips did not establish that Garcia’s malicious prosecution claim was meritless; Phillips simply proved that, in this instance, she was able to avoid Garcia’s claim by successfully advancing her immunity defense. See Cullen v. Marsh, 34 So.3d 235, 243 (Fla. 3d DCA 2010) (“While [the defendant] ultimately established entitlement to an exemption so as to have [the writ of garnishment] dissolved, the fact that he prevailed on the merits entitles him to no sanction award .... Simply put, [the defendant] did not establish that [the plaintiffs] ‘claim[s]’ had no merit; rather, he proved that in this instance he was entitled to avoid them.”) (citations omitted). Thus we conclude the trial court did not abuse its discretion in denying Phillips’s motion for section 57.105 fees.

Additionally, we affirm the trial court’s denial of Garcia and Pelier’s motion for section 57.105 attorney fees without further discussion.

Affirmed.

      .Section 57.105(1) reads:
      Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or any at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.

      . A judgment of acquittal ultimately was entered in favor of Garcia in the underlying criminal case.

      . The operative complaint for purposes of this appeal is the corrected fourth amended complaint.

      . We disagree with the trial court’s finding that Phillips’s Request for Dismissal was not properly filed because it was appended, as an exhibit, to Phillips's February 5, 2009, filing. The "safe harbor” provision of section 57.105 requires that a motion seeking sanctions be served on the opposing party, putting him or her on notice that the claim is not supported by facts or law, and then filed with the court at least twenty-one days after it is served. § 57.105(4). Phillips’s 57.105 motion was served on Garcia and Pelier in 2007, and subsequently filed, albeit as an exhibit to a more comprehensive fees motion, on February 5, 2009. Clearly, Phillips's 57.105 motion was filed with the court more than twenty-one days after it was served upon Garcia and Pelier, and we are unaware of any authority invalidating a 57.105 motion simply because it is filed with the court as part of a more comprehensive filing.

      . We also find it significant that Phillips’s motion for 57.105 fees did not allege qualified immunity as a grounds for entitlement to an award of fees. Cf. Lago v. Kame By Design, LLC, 120 So.3d 73 (Fla. 4th DCA 2013) (concluding the trial court could only consider grounds raised in the statutorily-compliant motion for section 57.105 fees and could not consider additional grounds raised in the subsequent statutorily-deficient motion for section 57.105 fees because the subsequent motion raised new arguments for sanctions without giving the party fair notice to withdraw offending claims); cf. Demby v. English, 667 So.2d 350 (Fla. 1st DCA 1995) (reversing an order that denied a motion for section 57.105 fees where summary judgment was granted in favor of the defendant on the basis that the defendant’s statements were absolutely privileged and the defendant’s motion for fees claimed that the plaintiff failed to state a cause of action because the statements were absolutely privileged).