text:
    D.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2700.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 2013.
    Rehearing Denied Sept. 30, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney Genderal, Tallahassee, and Donna S. Koch, Assistant Attorney General Tampa, for Appellee.
   PER CURIAM.

Because the record demonstrates that there was sufficient evidence of consent to the search of D.R.’s vehicle, we affirm. Accordingly, we do not address the issue of reasonable suspicion.

Affirmed.

CASANUEVA, MORRIS, and SLEET, JJ., Concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Pamela CICCONE, as Personal Representative of the Estate of George N. Ciccone, deceased, Appellee.
    No. 4D11-3807.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2013.
    Rehearing and Rehearing En Banc Denied Nov. 12, 2013.

      Gordon James III, Eric L. Lundt and Lenore C. Smith of Sedgwick LLP, Fort Lauderdale, Gregory G. Katsas of Jones Day, Washington, D.C., and Charles R.A. Morse of Jones Day, New York, New York, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Mark E. Millard of Engstrom, Lipscomb & Lack, Los Angeles, California, William J. Wichmann of Law Offices of William J. Wichmann, P.A., Fort Lauderdale, J. Michael Fitzgerald of Law Offices of Fitzger-aid And Associates, P.A., Charlottesville, Virginia, for appellee.
   GROSS, J.

In this Engle progeny case, R. J. Reynolds Tobacco Company appeals from a final judgment entered in favor of the plaintiff below, Pamela Ciccone, as personal representative of the Estate of George N. Ciccone. The final judgment upheld the jury’s award of $3,195,222.35 in compensatory damages, reduced by the deceased’s 70% comparative fault, and $50,000 in punitive damages for gross negligence. We affirm in all respects but one — we reverse the award of punitive damages.

Ciccone initiated her suit against R.J. Reynolds in 2004, two years after her husband, a smoker from the age of eight, died of lung cancer. Following the Engle decision, Ciccone amended her complaint to reflect her membership in the Engle class, alleging that, prior to the cut-off date of November 21, 1996, her husband developed peripheral vascular disease (“PVD”), a smoking-related illness that results in the thinning of arteries and lack of circulation in the extremities. In her fourth amended complaint, Ciccone asserted seven counts: (I) strict liability; (II) breach of express warranty; (III) breach of implied warranty; (IV) civil conspiracy to fraudulently conceal; (V) fraudulent concealment; (VI) gross negligence; and (VII) negligence.

Trial Phase I

Much of the trial’s Phase I centered upon Ciccone’s assertion of Engle class membership, most notably whether the onset of the deceased’s PVD “manifested” prior to November 21,1996. Prior to trial, R.J. Reynolds requested the following definition for “manifested,” which imports the term’s legal definition from case law grappling with “creeping diseases” and the accrual of a cause of action that triggers the running of the statute of limitations:

For this purpose, “manifested” means either that there was a diagnosis of “PVD” or that the smoker experienced symptoms sufficient to put a reasonable person on notice that there was a potential connection between his symptoms of “PVD” and cigarette smoking.

Over objection, the trial court declined R.J. Reynolds’ request, choosing instead to define “manifestation” as occurring when the deceased either “experienced symptoms of [PVD] or was diagnosed with [PVD] by a physician.” The trial court emphasized that Ciccone could meet this burden only through expert testimony, and could not rely “just in general [on] any symptomology that some layman could take to” be one ailment or another.

Ciccone’s Case as to “Manifestation

To establish the deceased’s manifestation of PVD caused by smoking, Ciccone called two expert witnesses: Dr. Michael Hirsch, the deceased’s treating physician, and Dr. Allan Feingold, the deceased’s pul-monologist. Dr. Hirsch characterized the deceased as a “very difficult” and “tough” patient, in that it was “difficult to convince [him] to take advice from physicians.” When the deceased first arrived at the doctor’s office in 1988, Dr. Hirsch described him as “relentless” in his chain smoking, routinely smoking three to four packs of cigarettes per day. By April 6, 1990, Dr. Hirsch diagnosed the deceased as having a nicotine addiction and recommended that he use certain medication and nicotine patches.

On June 27, 1991, the deceased returned to Dr. Hirsch’s office complaining of “chronic back pain,” with such pain radiating down his leg and hip. The doctor performed an MRI scan and an x-ray of the deceased’s lumbar spine. The scan showed, among other things, the existence of spondylosis and vascular sclerosis, common signs of early stage PVD. Nevertheless, Dr. Hirsch testified that “nothing was done about it” because the deceased “wasn’t having any symptoms ... at the time” since the disease “takes a long time to develop,” particularly where it attacked the aortic area, as it did in the deceased.

From 1991 through 1998, the deceased managed to avoid doctors and his condition continued to worsen. A co-worker of the deceased from 1994 through 1995 testified that the deceased had trouble using ladders and walked with a noticeable limp, persistently favoring his right side. Due to such problems, when carpooling, the deceased would request the co-worker to drop him off close to their place of employment so he would not have to walk a great distance. Likewise, the deceased’s stepson testified that by the time of the stepson’s 1995 wedding, the deceased’s leg issues had worsened to the point that he had difficulty getting up stairs and could not even dance with the bride.

In 1998, the deceased reported the problems to his doctors, at which point he was sent to a neurosurgeon to address his back problems. From there, he also went to a vascular surgeon to address his “claudication problems,” which Dr. Hirsch described as “pain that occurs ... with exertion that’s due to [PVD,] narrowing of the artery, [and] lack of blood flow to the area.” By 1999, the deceased was finally diagnosed as having PVD; to address the disease, he then had bypass surgery, which cleared up much of the symptoms that had manifested in his leg.

Dr. Feingold corroborated much of Dr. Hirsch’s observations, testifying that the deceased’s first manifestation of PVD was evidenced by the 1991 lumbar spine x-ray, even though this only showed a “soft” condition. Thereafter, Dr. Feingold opined that by 1994 through 1995, the pain the deceased experienced in his right leg while walking, as described by the co-worker and stepson, was consistent with symptoms of intermittent claudication caused by PVD.

Additionally, Dr. Feingold testified that by the time the deceased finally had bypass surgery in 1999, his PVD had reached a “serious” state of late stage development, evidenced by the fact that he was exhibiting no blood flow below the inguinal zone. This level of “seriousness,” in Dr. Fein-gold’s opinion, was extremely important to pinpointing when the “manifestation” of the disease occurred, since such a level of PVD takes “at least more than five years” to develop. Although Dr. Feingold later admitted on cross examination that the deceased never exhibited the classic first signs of PVD, he opined that the deceased’s back injuries made subsequent symptoms appear “misleading.”

The Defense’s Case

R.J. Reynolds called Dr. David Charles Brewster, a vascular surgeon, who opined that the deceased’s PVD symptoms first arose in early 1998. To support his opinion, Dr. Brewster described PVD as “a thickening deposit on the wall of the artery, which, if it progressively worsens, will begin to narrow the artery.” In conjunction with this definition, Dr. Brewster explained that the earliest sign of PVD is a claudication, which takes effect only when one is either walking or exercising. Thereafter, once the PVD gets worse, the patient will lose his pulse along with the hair on his extremity.

As applied to this case, Dr. Brewster stated that the deceased was not suffering from PVD prior to 1998, since, during that time, the pain he felt was present both when he walked and while he was at rest. Dr. Brewster bolstered his opinion by observing that the deceased failed to show many of the telltale signs of PVD, such as loss of hair on his extremity, short or thin appearance of the skin, or loss of pulse in the ankle. As a result, Dr. Brewster opined that the pain the deceased felt in his leg during this time was attributable to his back problems, particularly a ruptured disk and nerve root compression.

Trial Motions and Jury Verdict

After the close of Phase I, R.J. Reynolds moved for a directed verdict on the grounds that Ciccone failed to present sufficient evidence to establish her membership in the Engle class. The trial court decided to submit the fact question of class membership to the jury. Following deliberations, the jury found, among other things, Ciccone to be an Engle class member.

Trial Phase II and Verdict

In Phase II, the jury was tasked with deciding whether R.J. Reynolds was liable under Ciccone’s compensatory damages claims, and whether Ciccone was entitled to punitive damages. The jury found in favor of Ciccone on her claims of negligence, strict liability, and gross negligence; the jury, however, rejected her claims under concealment and conspiracy. As to compensatory damages, the jury awarded Ciccone $195,222.35 in medical and funeral expenses along with $3,000,000 in non-economic compensatory damages, to be reduced by the deceased’s 70% comparative fault. In addition, the jury awarded Cic-cone $50,000 in punitive damages for her claim of gross negligence.

The Trial Court Correctly Charged the Jury Regarding the “Manifestation” of the Deceased’s PVD for the Purpose of Determining Ciccone’s Membership in the Engle Class

R.J. Reynolds contends that the trial court twice erred in handling the issue of Ciccone’s class membership. First, R.J. Reynolds argues that the trial court abused its discretion by erroneously instructing the jury that the deceased’s manifestation of PVD occurred when he had “symptoms” of the disease, instead of when the deceased was on notice of the causal connection between his smoking and his PVD. Second, R.J. Reynolds argues that the trial court erred as a matter of law by failing to grant a directed verdict in the defense’s favor since Ciccone failed to present any competent evidence that the deceased’s PVD manifested prior to November 21,1996.

The correctness of the trial court’s charge to the jury regarding class membership turns on the proper definition of “manifestation.” R.J. Reynolds contends that the term “manifestation” has “a well-established meaning in Florida case law, under which the plaintiff must be on notice of both the condition and the causal connection between the condition and the product at issue.” In response, Ciccone argues that such definition, which developed for the purposes of determining when the statute of limitations should begin to run in “creeping disease” cases, is guided by separate policy that is inapplicable to this case.

“In formulating jury instructions, the trial court is accorded broad discretion, and ‘its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the jury instructions were reasonably calculated to confuse or mislead the jury.’ ” Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So.3d 991, 997 (Fla. 4th DCA 2010) (quoting Chevron U.S.A., Inc. v. Forbes, 783 So.2d 1215, 1218 (Fla. 4th DCA 2001)). “The party defending the instructions on appeal must show that the requested instructions accurately stated the applicable law, the facts supported giving the instruction, and that the instruction was necessary in order to allow the jury to properly resolve all the issues in the case.” Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). “If the jury instructions, as a whole, fairly state the applicable law to the jury, the failure to give a particular instruction will not be an error.” Id. (citing CSX Transp., Inc. v. Whittier, 584 So.2d 579 (Fla. 5th DCA 1991)).

The centrality of the term “manifest” in deciding the class membership issue in this appeal derives from the Supreme Court’s use of the term in Engle. 945 So.2d at 1274-76.

On November 21, 1996, the trial court in Engle recertified the class there at issue to include the approximately 700,000 Florida “ ‘citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’” Id. at 1256, 1258, 1275. The Florida Supreme Court vacated the punitive damages award and decertified the class to allow each Engle class member the opportunity to file an individual suit to determine his or her entitlement to compensatory and punitive damages. Id. at 1264-65, 1268, 1276-77. In so doing, however, the Supreme Court did not decertify the class in the traditional sense, but conferred upon the class members two benefits: (1) each class member’s time to file an individual suit would be equitably tolled to allow filing within one year of the court’s decision, and (2) in the individual action, the Engle jury’s “common core findings” in Phase I would be given “res judicata effect.” Id. at 1269.

In shaping the contours of class membership, the Supreme Court was careful to craft a “finite class” in “that the class would be cut off or limited to the date of final certification.” Id. at 1275. The Court observed that the reason a “finite class” was necessary was “to avoid multiple similar lawsuits and to make legal process more effective and expeditious, important goals of a class action suit.” Id. To define the scope of the class, the Court wrote that “the class should include only those people who were affected in the past or who were presently suffering at the time the class was recertified by the trial court” on November 21, 1996. Id. The Court emphasized that diagnosis by a physician prior to this date was not a requirement for class membership; rather, “[t]he critical event is ... when the disease or condition first manifested itself.” Id. at 1276 (emphasis added).

To give meaning to the Supreme Court’s use of the term “manifested itself’ in En-gle, R.J. Reynolds relies upon Castleman v. R.J. Reynolds Tobacco Co., a case which holds that a condition “manifests” itself as a tobacco-related illness for the purpose of Engle class membership only when the potential plaintiff “knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit” against the tobacco company. 97 So.3d 875, 877 (Fla. 1st DCA 2012) (citation and internal quotations omitted). To arrive at this holding, the first district relied upon a line of cases that concern the accrual of a cause of action for statute of limitations purposes. See, e.g., Frazier v. Philip Morris USA Inc., 89 So.3d 937 (Fla. 3d DCA 2012). In the Supreme Court’s use of the term “manifested itself’ in Engle, however, we do not detect an intention to import a definition from the “creeping disease” statute of limitations cases. To paraphrase Justice Cardozo, legal terms of art “are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).

Resolution of this matter involves the interplay between legal terminology and the policy that drives it. For the statute of limitations cases, one aspect of the policy is obvious — a plaintiff should not be required to file a cause of action before he should have realized he had one. That concern is not applicable to the issue of Engle class membership.

In products liability cases, the four-year statute of limitations period begins to run “from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence.” § 95.031(2)(b), Fla. Stat. (2011); § 95.11(3)(a), Fla. Stat. (2011). While this starting point is often easy to pinpoint in some cases, see, e.g., Steiner v. Ciba-Geigy Corp., 364 So.2d 47, 49 (Fla. 3d DCA 1978) (plaintiff developed blindness after ingesting faulty medication), such is not the case with “creeping diseases,” where the connection between a plaintiffs initial' symptoms and a defendant’s conduct can remain unknown until reaching a later stage of worsened development. See, e.g., Barnes v. Clark Sand Co., 721 So.2d 329, 330 (Fla. 1st DCA 1998) (plaintiff did not know that his lung problems were attributable to silica dust exposure until 1992, despite having been exposed to such dust from 1972 to 1974 and having a lung removed in 1984); see also Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936-37 (Fla.2000) (defining a “creeping disease” as “a disease acquired over a period of years as a result of long-term exposure to injurious substances”) (citing Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984), quashed in part by Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985)).

Given the imprecise nature of isolating when the relationship between a “creeping disease” and a deleterious substance becomes evident, and the resulting difficulty this places upon the accrual of a statute of limitations, the Supreme Court, in Carter, imbued the term “manifest” with a notice requirement to a potential plaintiff, such that “the cause of action accrues when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product.” 778 So.2d at 934, 937 (Fla.2000). The policy behind creating such a definition in these situations reflects common sense: since one purpose of a statute of limitations is to spur a plaintiff into acting, it is both illogical and unfair for the statute to begin to run before the plaintiff knows or should have known of the causal connection that is the basis for his suit.

In forming this decision, the Carter court resolved a conflict between Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985), and the first district’s decision in Brown & Williamson Tobacco Corp. v. Carter, 723 So.2d 833 (Fla. 1st DCA 1998), both of which illustrate that the rule in Carter is largely based on concerns of fairness to the plaintiff.

In Celotex Corp., the plaintiff initiated a products liability suit in 1979 against asbestos manufacturers after learning of the connection between his illness and his exposure to asbestos over a thirty-three-year period. 471 So.2d at 534. Although the plaintiff first became aware of the health hazards associated with asbestos in 1958 or 1959, “he did not suffer any physical problems until the later 1960’s.” Id. By 1972, the plaintiff was diagnosed with having pneumonia and emphysema, although neither was attributable to his work. Thereafter, in 1978, he was finally diagnosed with asbestosis. Id. at 534-35; Carter, 778 So.2d at 935.

The trial court in Celotex Corp. found the plaintiffs case to be barred by the statute of limitations since he should have known of the causal connection between his exposure and his ailments in 1972 when he began coughing up blood. Carter, 778 So.2d at 936. The Supreme Court, however, disagreed, finding that the doctors’ disclosure to the plaintiff that his emphysema and pneumonia were “unrelated to the job ... could lead a reasonable person to conclude ... that the condition was not related to the asbestos dust at all.” Id. (quoting Copeland v. Armstrong Cork Co., 447 So.2d 922, 928 (Fla. 3d DCA 1984)).

Concerns about fairness to the plaintiff similarly drove the result in Brown & Williamson. There, the plaintiff, a long-time smoker, began coughing up blood in late January 1991. 723 So.2d at 835. Alarmed, the plaintiff immediately scheduled an appointment with his doctor for February 4, at which point x-rays taken of his chest showed “a spot or abnormality on the lung which could indicate several things, including cancer or tuberculosis.” Id. The next day, the plaintiff met with a pulmonologist who told him that the x-rays were “highly suggestive” of a lung tumor, but stopped short of diagnosing the spot as such since “many different things can mimic other things on the chest x-ray.” Id. A week later, on February 12, the plaintiff was diagnosed as having lung cancer. Id.

On February 10, 1995, over four years after the February 4, 1991 x-rays were taken, but before the statute of limitations ran on the February 12, 1991 diagnosis of lung cancer, the plaintiff filed suit against the tobacco industry to recover for his illness. Id. at 834. The first district found the suit to be barred by the four-year statute of limitations since the plaintiff either “knew or should have known, before February 10, 1991, that his lungs were injured, and he was on notice that the injury was probably caused by smoking.” Id. at 836 (emphasis added). The Supreme Court quashed the first district’s opinion, finding that the running of the statute of limitations was a fact issue for the jury to resolve; since the plaintiffs doctor provided him with “at least two possible explanations for the spot, one of which was tuberculosis ..., a reasonable person could conclude that the spot was not related to smoking or cancer.” Carter, 778 So.2d at 938.

As these cases illustrate, in the context of “creeping diseases,” the requirement of knowledge of the causal connection between the infirmity and the product is grounded in balancing fairness to the plaintiff with the policy driving the statute of limitations. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time “to protect defendants from unfair surprise and stale claims.” Major League Baseball v. Morsani, 790 So.2d 1071, 1074-75 (Fla.2001); see 35 Fla. Jur.2d, Limitations and Laches § 1 (2013). If courts were to find that “creeping diseases” “manifest” at first sign of “symptoms,” such policy would be disserved, as the statute of limitations would bar plaintiffs from pursuing fruitful causes of action before the plaintiff even knows enough “to commence a non-frivolous tort lawsuit.” Frazier, 89 So.3d at 946.

In Castleman, the first district borrowed a definition of “manifestation” from the creeping disease statute of limitations cases to bar a plaintiff from claiming Engle class membership in a near-identical situation to the case at hand. 97 So.3d at 877. There, the plaintiff smoker began experiencing shortness of breath, bouts of coughing, and chest pain from the early 1990’s through 1993. Id. at 876. Despite these symptoms, neither the plaintiff “nor any of his medical care providers attributed his health issues to his prior history of smoking until 1998, when [the plaintiff] underwent heart bypass surgery.” Id. That same year, the plaintiffs “medical care providers advised him for the first time that the symptoms he was experiencing ... were likely smoking-related.” Id.

With this factual setting, the Castleman trial court found the plaintiff’s claim to be barred since the plaintiffs illness “manifested” after November 21, 1996, the date identified in Engle as the “cut-off date for class membership.” Id. at 877; Engle, 945 So.2d at 1275. In affirming, the first district looked to the language of the Engle decision, which states that “[t]he critical event” in determining class membership “is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle, 945 So.2d at 1276 (emphasis added); Castleman, 97 So.3d at 877. Then, applying the definition of “manifestation” from the statute of limitations cases, the court found the plaintiffs class membership was barred since he “did not attribute his illnesses to his history of smoking until 1998, [and] he was not aware of sufficient facts to permit the filing of a non-frivolous tort lawsuit against the tobacco company before 1998.” Castleman, 97 So.3d at 877; see also Rearick v. R.J. Reynolds Tobacco Co., 68 So.3d 944, 945 (Fla. 3d DCA 2011) (“The qualification for membership in the Engle class requires plaintiff to show that the decedent was a resident of the state of Florida at the time of a ‘medical diagnosis’ of a smoking-related disease or at the time evidence of the causal relationship of the cause of action had [otherwise] manifested itself.”).

Castleman fails to take into account the differences in policy between the accrual of a cause of action for the purpose of the statute of limitations and pinpointing a date for class membership by looking back in time from the 2006 Engle decision.

“The purpose of the class action is to provide litigants who share common questions of law and fact with an economically viable means of addressing their needs in court.” Johnson v. Plantation Gen. Hosp. Ltd. P’ship, 641 So.2d 58, 60 (Fla.1994). It “contemplates a single judgment,” Galen of Fla., Inc. v. Arscott, 629 So.2d 856, 857 (Fla. 5th DCA 1993), and serves to consolidate and bind all class members to the judgment of the class. Under Florida Rule of Civil Procedure 1.220(a), plaintiffs seeking to initiate a class action lawsuit must satisfy four prerequisites:

that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Once these prerequisites are met and the class is found to be maintainable, the party asserting the existence of the class must then provide “notice of the pendency of the claim or defense ... to all the members of the class ... who can be identified and located through reasonable effort.” Fla. R. Civ. P. 1.220(d)(2). Following the passing of the opt-out period, the class “judgment, whether favorable or not, will include all members who do not request exclusion.” Fla. R. Civ. P. 1.220(d)(2)(B).

Class actions typically do not require a class member, during a class membership period, to realize that he has a cause of action; “[c]lass actions typically expand the universe of participating class members beyond known individuals after certification has been granted,” since that is when “many putative class members [first] learn about (or decide to pay attention to) the litigation that is proceeding on their behalf.” Kerner v. City & Cnty of Denver, No. 11-cv-00256-MSK-KMT, 2013 WL 1222394, at *2 (D.Colo. Mar.25, 2013).

In conformity with Rule 1.220, our supreme court clarified that the Engle class, as certified, consists of all Florida “‘citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’ ” Engle, 945 So.2d at 1256. To curtail the class from becoming open-ended, the court incorporated a November 21, 1996 cut-off date, such that “the class would be cut off or limited to the date of final certification.” Id. at 1275. This deadline was not, however, tied to the plaintiffs knowledge; rather, all a plaintiff had to show was that he or she was included among “those people who were affected in the past or who were presently suffering at the time the class was recertified by the trial court.” Id.

Thus, as shaped by the Supreme Court under the unique circumstances of Engle, the question of class membership is a fact issue viewed with the benefit of hindsight from the vantage point of 2006, where expert testimony may establish the link between a plaintiffs concrete symptoms and tobacco; class membership is not an inquiry into the abstraction of what a plaintiff knew or should have known over ten years earlier. The unfairness to a plaintiff that informs the knowledge requirement of the statute of limitations cases is absent in this scenario. The term “manifested” as used in Engle has a narrower definition than that given to it in Castleman. As the plaintiff argues in her brief, the Supreme Court’s use of the term “manifested” in Engle signifies an “event that is neither dependent on the skill of the [treating] physician nor the sophistication of the patient — it is enough that the decedent have suffered a medical condition that first” became symptomatic before November 21,1996.

Neither Rule 1.220 nor the language of Engle imposes upon potential class members the limitation that they knew enough to commence a non-frivolous tort lawsuit on or before November 21, 1996. Rather, the requirements for class membership are (1) that the plaintiff was a Florida resident, (2) that he or she either suffered or was suffering from a smoking related illness before November 21, 1996, and (3) that his or her addiction to nicotine caused the disease. See Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 481 (Fla. 1st DCA 2012) (“The [Engle ] class definition requires only that the smoker is/was addicted to cigarettes containing nicotine, and contracted or died from a disease caused by cigarette smoking.”); Bishop ex rel. Estate of Ramsay v. R.J. Reynolds Tobacco Co., 96 So.3d 464, 468 (Fla. 5th DCA 2012) (“[Inclusion in the Engle class requires Florida residence or citizenship when the disease or condition first manifests itself, not at the time of death.”); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1065 (Fla. 1st DCA 2010) (“In order to be a member of the Engle class, the plaintiff must prove that [the deceased] was addicted to R.J. Reynolds cigarettes containing nicotine, and, if so, that his addiction was the legal cause of his death.”); Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1328 n. 3 (11th Cir.2010); Philip Morris USA Inc. v. Allen, 116 So.3d 467, 2013 WL 1923636, at *3 & n. 4 (Fla. 1st DCA 2013) (holding that, to establish class membership, the plaintiff must establish “the fact that the addiction caused the disease”); Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 258 (Fla. 4th DCA 2012) (“To find that [the plaintiff] was a member of the Engle class, the jury was required to find that his addiction to cigarettes containing nicotine was a legal cause of his death.”).

In reaching this conclusion, we are guided by the Supreme Court’s treatment of one of the Engle class representatives, Angie Della Vecchia. Although Della Vecchia remained undiagnosed with lung cancer until 1997, the Engle court found her class membership to be sufficiently proven since, much like the plaintiff in the case at hand, “it was noted by her doctors in early 1997 that she had a past medical history of ‘COPD’ and significant hypertension.” 945 So.2d at 1276. Notably, the court made no remarks as to Della Vecchia’s knowledge of her disease; all that was required was that her “medical records indicatefd] that she had been suffering from a tobacco-related disease prior to the time of certification.” Id.

The Adequacy of the Trial Court’s Instruction

Assuming that the plaintiff’s pre-1996 knowledge of a causal link between symptoms and tobacco is unnecessary for class membership, the next question is whether the trial court erred in instructing the jury that the deceased’s PVD “manifested” when he developed “symptoms.” “Trial courts are generally accorded broad discretion in formulating jury instructions,” Barbour v. Brinker Fla., Inc., 801 So.2d 958, 959 (Fla. 5th DCA 2001), and such decision “should not be disturbed on appeal absent prejudicial error.” Rucker v. Garlock, Inc., 672 So.2d 100, 101 (Fla. 3d DCA 1996). “In order for a jury instruction to result in a miscarriage of justice, it must not only be erroneous or an incomplete statement of the law but also be confusing or misleading.” Costa v. Aberle, 96 So.3d 959, 963 (Fla. 4th DCA 2012) (citing Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998)).

As stated above, the key point in determining Engle class membership is pinpointing when the plaintiff began “suffering” from the smoking-related illness or when the illness “manifested.” Engle 945 So.2d at 1275. Rather than the statute of limitations cases, the preferable definition here for “manifested” is derived from insurance coverage cases. In Preferred Risk Life Insurance Co. v. Sande, 421 So.2d 566 (Fla. 5th DCA 1982), the fifth district faced a situation where symptoms were readily apparent yet remained undiagnosed. Although the court noted that “the Florida courts have never specifically defined what ‘manifested’ means,” it nonetheless found that “the accepted definition seems to center around the symptoms”:

That point in time when the sickness or disease becomes symptomatic and not necessarily when the exact nature of sickness or disease is diagnosed by a physician after extensive testing.

Id. at 568 (quoting McDaniel v. State Farm Mut. Ins. Co., 3 Kan.App.2d 174, 591 P.2d 1094 (1979)); see also Am. Sun Life Ins. Co. v. Remig, 482 So.2d 435, 436 (Fla. 5th DCA 1985) (“A condition, not otherwise diagnosed, is manifest when the insured knew or should have known of the existence of his illness because he was experiencing symptoms that would lead a reasonable person to seek a medical diagnosis.”).

Such reasoning appears to fall in line with the common notion that a disease “manifests” when it becomes diagnosable through evaluation of the patient’s “symptoms.” Cf. Curley v. State, 153 Fla. 773, 16 So.2d 440 (1943) (en banc) (defining diagnose as: “To ascertain by diagnosis [or] to recognize by its symptoms [ ] as a disease”); Black’s Law Dictionary 484 (8th ed. 2004) (defining “diagnosis” as “[t]he determination of a medical condition (such as a disease) by physical examination or by study of its symptoms.” (emphasis added)). Neither party disputes that PVD is caused by smoking. Since exhibiting “symptoms” of PVD creates the implication that the deceased was “suffering” from PVD, it follows that such a showing would be sufficient for the purposes of class membership. The issue was a question of fact for the jury to be decided with the assistance of expert testimony. The trial court’s instruction was neither erroneous nor incomplete.

Directed Verdict

R.J. Reynolds next contends that the trial court committed reversible error in denying its motion for directed verdict since Ciccone “fail[ed] to introduce any reliable medical evidence demonstrating that [the deceased] experienced symptoms of PVD prior to the class membership cutoff date” of November 21, 1996. Since directed verdicts involve a question of law, our review of this matter is de novo. See Aragon v. Issa, 103 So.3d 887, 888 (Fla. 4th DCA 2012).

“A motion for directed verdict is available during a trial to test the legal sufficiency of the evidence.” Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988) (citing Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977)). Given the severity in granting such relief, see Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1090 (Fla.2010), motions for directed verdict should be cautiously reserved for situations where “the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party, determines that no reasonable jury could render a verdict for the nonmoving party.” Miller v. City of Jacksonville, 603 So.2d 1310, 1311-12 (Fla. 1st DCA 1992) (emphasis added).

In this case, to establish when the deceased began “suffering” from PVD, Ciccone presented the testimony of two expert witnesses who agreed that the first indication of the deceased’s PVD arose in 1991, when his lumbar spine MRI showed aortic sclerosis, a common early sign of PVD. With his back problems still bothering him, the deceased managed to evade doctors until 1998, during which period he sought to “self medicate” through chiropractors. However, a year after he returned in 1998, his examining doctors were finally able to determine that the pain the deceased was experiencing was not solely attributable to his back, but it also stemmed from a severe form of PVD which had manifested in his body for years. Any remaining suspicions as to the “seriousness” of the deceased’s PVD, if they remained, were later verified when bypass surgery immediately cleared up much of the pain he had been experiencing in his leg. In addition to the expert testimony, the deceased’s friends and family were able to paint a picture of the ragged effect the earlier-stage PVD had on his life.

Although witnesses for the defense testified that these symptoms were attributable to the deceased’s back problems, and were not classic first signs of PVD, the jury was not required to accept this testimony, particularly where contrary evidence existed. See Wald v. Grainger, 64 So.3d 1201, 1204 (Fla.2011) (“[A] jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony. ...”). Accordingly, the motion for directed verdict was properly denied.

The Trial Court Erred by Permitting the Jury to Award Punitive Damages on the Non-Intentional Tort Claim of Gross Negligence.

We agree with R.J. Reynolds that the trial court erred in allowing Ciccone to recover punitive damages under the theory of gross negligence since that cause of action was not pled in the original Engle class case and the jury found for the defense on the concealment and conspiracy claims. We concur with the analysis of the first district in Soffer v. R.J. Reynolds Tobacco Co., 106 So.3d 456, 460 (Fla. 1st DCA 2012), which held that Engle progeny plaintiffs may recover punitive damages only on claims for concealment or conspiracy. Sojfer accorded some credence to the exceptional nature of the Engle class, as it is “one of the most uniquely structured and extraordinarily adjudicated cases in the state’s history.” Id. Upon this backing, the first district upheld the disallowance of an Engle plaintiffs claim for punitive damages under negligence and strict liability, reasoning that Engle progeny plaintiffs, by virtue of “wearing] the same shoes ... as the plaintiffs in Englej,] ... must accept the status and procedural posture of the Engle litigation as they find it,” including “the absence of a timely claim for punitive damages under negligence.” Id. The court explained:

As members of the class, Engle progeny plaintiffs are in the same position they would have been in had they filed a complaint identical to the Engle class-action complaint on the same date the original complaint was filed. Here, [the plaintiff] is not merely seeking to take advantage of Engle via the filing of a new and independent claim; rather, she was a party to Engle and, to the extent her claims differ from those in that case, she must meet the requirements for amending her complaint, which she cannot do. There is no indication in Engle that our supreme court intended to extend its decision beyond the claims and remedies that had actually been timely asserted in the first place. Punitive damage claims under negligence and strict liability theories were untimely and not authorized as part of the Engle litigation; they were authorized only for the two intentional tort counts of fraud by concealment and conspiracy to commit fraud. If the supreme court had intended that its decision be so open-ended as to allow claims for punitive damages not otherwise made available in the course of Engle, it would have said so....

Id.; see also Hromyak v. Tyco Int’l Ltd., 942 So.2d 1022, 1023 (Fla. 4th DCA 2006) (holding, in a class action case similar to this one, that equitable tolling of the statute of limitations “requires that the claims in the later action be the same as those alleged in the earlier action” (emphasis added)).

The Soffer reasoning is persuasive. The Engle class pled for punitive damages only on its intentional tort claims. Engle was not a run-of-the-mill case involving the de-certification of a class prior to resolution on the merits; rather, the class was previously certified, and its class members who did not opt out accepted the pleadings of its class representatives before the case proceeded through the rigors of litigation. By virtue of going through the litigation process, unlike other decertification cases, Engle progeny plaintiffs were conferred benefits beyond mere equitable tolling, including the significant “res judicata effect” of the Engle jury’s Phase I findings on liability. If the progeny plaintiffs wish to accept such enormous benefits, it makes sense that they must also take the “bitter with the sweet,” since permitting otherwise would allow the plaintiffs to take advantage where the class representatives, and the class as a whole, otherwise would not.

We have considered the remaining issues raised and hold that the trial court did not abuse its discretion in the matters related to selection of the jury and conclude that the remaining issue was resolved by Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 435 (Fla.2013).

We affirm the final judgment in all respects but one and remand to the trial court for the entry of a final judgment that eliminates the award of punitive damages.

We certify conflict with Castleman v. R.J. Reynolds Tobacco Co., 97 So.3d 875 (Fla. 1st DCA 2012).

MAY, J„ and JOHNSON, LAURA, Associate Judge, concur.

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

      . A “creeping disease” is "a disease acquired over a period of years as a result of long-term exposure to injurious substances.” Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936-37 (Fla.2000) (citing Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984)).


author: MAY, J.

text:
    Connie YANG and Frank Romeo, Appellants, v. SEBASTIAN LAKES CONDOMINIUM ASSOCIATION, INC., Appellee.
    Nos. 4D12-3363, 4D12-3364.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Reconsideration Denied Oct. 29, 2013.

      Frank Romeo and Connie Yang, West Babylon, New York, pro se.
    No brief filed on behalf of appellee.
   MAY, J.

The business record exception to the hearsay rule is at the focus of this appeal. Two condominium owners [condo owners] each appeal a final judgment of foreclosure on the condominium association’s [Association] liens for assessed maintenance fees. They argue the court erred in admitting testimony concerning the amount of fees owed because the Association could not verify the amounts due before the new management company took over. We agree and reverse.

These cases involve the foreclosure of two liens placed on two separate condo units by the Association for unpaid maintenance fees. The condo owners, a husband and wife, each owned one of the units. Section 5 of the Association’s bylaws empowered the Board of Directors with charging and collecting assessments from condo owners to defray costs and expenses of maintaining the condo property. Section 9 of the Declaration of Condominium required each owner to share in the assessments and allowed the Association to place a lien on units for unpaid assessments.

The Association’s attorney sent the husband a letter notifying him that his account was overdue, and that he owed $10,174.42 in assessments and collection fees. A similar letter was sent to the wife informing her of a past-due balance of $10,060.40 on her unit. Attached to each letter was an account ledger showing the dates and amounts of the unpaid assessments. The letters informed the condo owners that the Association would place a lien on their units if the assessments were not paid. The Association’s attorney later sent another letter to the condo owners informing them that the Association had recorded a Claim of Lien on their units and that it might foreclose if the past-due amounts were not paid.

The Association filed separate Complaints against the condo owners to foreclose the liens. After the condo owners answered the Complaints, the Association filed a Motion for Summary Judgment of Foreclosure and Determination of Attorney’s Fees and Costs, and filed affidavits in support in both cases. Each condo owner filed an affidavit in opposition.

The affidavits attested that the Association’s records were incorrect, and the wife’s father had made a large advance payment for both units in August 2008. They attested that the error in the condo’s records occurred when it hired a new management company. That company informed the condo owners that payments may have been misapplied and credited to the wrong account. The condo owners requested the previous accountant’s records from the Association, which refused to provide them. The condo owners claimed that they attempted to pay the incorrect amount owed to avoid litigation while the error was corrected, but the Association would not accept the payment.

The condo owners’ affidavits claimed that the issue with their accounts was retaliatory because they were part of a group investigating $100,000 in missing condo funds, and because they would not accept a bribe from one of the directors to stop the investigation. In the “bribe conversation,” the director threatened to tamper with their accounts to cause them to incur tremendous legal expenses.

The affidavits also attested that the director used numerous “scare-tactics” against the condo owners, including the unauthorized use of their assigned parking spaces, making false calls to the police, having the husband’s car towed, discarding the husband’s custom-made awning, refusing to fix damage from a cracked water pipe, and denying them access to the gated community. Attached to the affidavits were several exhibits, including a complaint letter from other condo owners regarding the actions of the Board of Directors, and evidence of investigations into the actions of the Board of Directors.

While the court initially indicated that the hearing was on the Association’s motion for summary judgment, evidence was admitted at the hearing, which took the form of a bench trial. The Association sought to admit an account ledger for the husband’s condo by laying a foundation through an employee of the Association’s management company. The condo owners’ attorney objected based on the lack of foundation for admission of the ledger as a business record. The trial court overruled the objection and admitted the ledger into evidence under the business records exception. The condo owners’ attorney again objected on authenticity and foundation grounds when the Association sought to introduce the ledger for the wife’s account. The trial court again overruled the objection.

At the close of the Association’s case, the condo owners moved for a directed verdict on the ground that the management company’s employee could not testify to account balances that existed prior to her employer’s takeover in 2008. They maintained that, without competent evidence of the account balances prior to the takeover, the Association failed to factually refute their allegations. The Association responded that it was not seeking any past-due balances from before the takeover. The unit owners clarified that the issue was not whether there were past-due amounts prior to the takeover, but rather whether a credit should have carried over after the takeover. The trial court denied the directed verdict.

The husband testified that the advance payment of $18,000 was paid by cashier’s check in August 2008. His proof was in his condo unit, but he no longer had access to his unit. The wife did not testify. The trial court entered a Final Judgment of Foreclosure in favor of the Association in both cases, from which the condo owners now appeal.

On appeal, the condo owners argue that the trial court abused its discretion by admitting the management company’s account ledgers for their units as business records. We agree with the condo owners that the Association failed to establish a proper foundation for admission of the account ledgers as business records.

We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. That discretion, however, is limited by the rules of evidence. Hayes v. Wal-Mart Stores, Inc., 933 So.2d 124, 126 (Fla. 4th DCA 2006).

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801, Fla. Stat. (2012). Hearsay is inadmissible unless it falls within a recognized exception. See § 90.802, Fla. Stat. (2012).

“Florida’s business-records exception appears in section 90.803(6)(a), Florida Statutes.” Yisrael v. State, 993 So.2d 952, 956 (Fla.2008). Section 90.803(6)(a) defines “business record:”

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

§ 90.803(6)(a), Fla. Stat. (2012).

The Association’s witness testified that, “[w]hen the accounting records came to us from the prior company, they had listed Frank [Romeo] Senior and Lena as the owners. Until recently, it did not come to light that the actual certificate of title was Frank Romeo [Junior].” When asked whether “[s]ome of the records you received ... were incorrect?” She responded: “But we had no way of knowing that.” The husband testified that the records were incorrect as to the amount of the balance.

Here, the condo owners objected only on the grounds of lack of foundation and authenticity. There was no objection to trustworthiness or accuracy. It is well-settled in Florida that an objection must specify the legal ground upon which a claim is based, and a claim different than that cannot be heard on appeal. Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004). Because the condo owners’ attorney did not object to the ledgers on the ground that they were untrustworthy, this issue is not preserved. The lack of foundation, however, was argued and preserved.

To secure admissibility under this [business records] exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael, 993 So.2d at 956. Here, the Association chose to establish the foundation though a records custodian.

As to the management company’s records, the witness employed all of the “magic words.” She testified that the ledger entries were made at or near the time the charges were incurred, by a person with knowledge of the information, and were kept in the course of business as part of the Association’s business practice. On cross-examination, however, the witness testified that the records prior to the 2008 takeover were maintained by the prior accountant, that she started with an account balance from outside records, that she did not know the prior accountant’s practice and procedure, and that she never worked for that accountant. She could not testify as to the accuracy of the starting balances.

We find this issue similar to the one we encountered in Glarum v. LaSalle Bank National Association, 83 So.3d 780 (Fla. 4th DCA 2011). There, a bank brought a foreclosure action against a borrower. To prove the amount due and owing on the mortgage, the bank offered the affidavit of a “specialist” who worked at the loan ser-vicer. Id. at 782. In opposition to the bank’s motion for summary judgment, the borrower presented the deposition of the same “specialist.” Id. In his deposition, the specialist stated that he determined the amount due and owing from the loan servicer’s computer database. Id. However, the specialist admitted that he “did not know who entered the data into the computer, and he could not verify that the entries were correct at the time they were made.” Id.

We explained that the specialist’s affidavit was inadmissible hearsay because “[h]e relied on data supplied by [the loan servi-cer], with whose procedures he was even less familiar. [He] could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system.” Id. at 783. We therefore held that the bank failed to present competent substantial evidence of the amount owed under the mortgage. Id.

Here, the management company’s employee indicated that she could not testify as to the starting balance. She never worked with the prior accountant, and was unfamiliar with how the records were kept. She could not confirm that the prior accountant used acceptable accounting practices, and she was unable to authenticate the data obtained from the prior accountant as accurate. She could not testify that the condo’s lien was valid and the husband’s claim of having pre-paid the assessments prior to the takeover was untrue.

In short, the Association failed to lay the proper foundation for admitting the ledgers into evidence. And, without the ledgers, the Association failed to prove that the husband and wife owed $29,282.89 and $42,909.45, respectively. We therefore reverse the trial court’s final judgments of foreclosure and remand for entry of a directed verdict in favor of the condo owners.

Reversed and Remanded.

GROSS and CONNER, JJ„ concur.

      . The trial court gave the condo owners only twenty minutes to present their case despite their having flown in from New York for the hearing.


author: KLINGENSMITH, MARK W., Associate Judge.

text:
    Larry WAPNICK, Appellant, v. VETERANS COUNCIL OF INDIAN RIVER COUNTY, INC., Daniel Stanley, John Michael Mathews and Paul Teresi, Appellees.
    No. 4D12-2674.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Oct. 29, 2013.

      Roy D. Wasson and Erin E. Pogue of Wasson & Associates, Chartered, Miami, and Clifford M. Miller of Miller Law Offices, Vero Beach, for appellant.
    Kristopher C. Duer, Vero Beach, for appellee Veterans Council of Indian River County, Inc.
    Carla Matthews, Vero Beach, for appel-lee John Michael Matthews.
    Louis B. Vocelle, Jr., and Michael G. Kissner, Jr., of Vocelle & Berg, LLP, Vero Beach, for appellee Paul Teresi.
   KLINGENSMITH, MARK W., Associate Judge.

The appellant, Larry Wapnick, appeals from an order requiring him to pay attorneys’ fees incurred by the appellees Veterans Council of Indian River County, Inc. (“Veterans Council”), John Michael Matthews, and Paul Teresi as a sanction pursuant to section 57.105, Florida Statutes (2008). The trial court held that all the appellees were entitled to recover their attorney’s fees from the inception of the claim to the date of the order awarding entitlement. For the reasons set forth herein, we reverse the trial court’s order imposing fees against Wapnick.

Wapnick was the president of the Veterans Council in 2006 through September 2007. As president, he was responsible for the budget as well as the overall management of the Veterans Council. During his term, he appointed Matthews to a committee formed for the purpose of performing an internal audit of the financial records of the organization. This audit revealed concerns about various matters, including expense reimbursements given to Wapnick. Two subsequent audits were then conducted (including one headed by Teresi), and both concluded that Wapnick had not stolen any money from the Veterans Council. However, acrimony between Wapnick and various members of the Council continued to the point where Teresi called Wapnick a “crook” during a Council meeting. After Wapnick’s term as president concluded, his successor provided information to the Vero Beach Police Department for the purpose of investigating possible criminal charges against Wapnick. Although no criminal charges were ever filed, the allegations against him were published in a local newspaper.

Subsequently, Wapnick sued Veterans Council, Matthews, and Teresi, claiming defamation and invasion of privacy — false light. Each defendant served and filed motions requesting attorney’s fees under section 57.105. The trial court dismissed the false light claim, and granted leave to amend the defamation count. Wapnick amended the complaint, reasserting the defamation count and adding claims for negligence. He also obtained substitute counsel during the pendency of the litigation, yet continued to pursue his previously filed claims through his new attorney.

Ultimately, the trial court partially granted each defendant’s motions for partial summary judgment, ruling that Wap-nick was a “limited public figure” in his position as president of the Veterans Council. However, the court also ruled that genuine issues of material fact existed on the issue of whether the various statements made to the Vero Beach Police Department and uttered during the course of the Veterans Council meetings were privileged. Thereafter, defendants renewed their motions for attorney’s fees under section 57.105. Wapnick then dropped his negligence claim against the Veterans Council, and eventually filed a voluntary dismissal as to all defendants on all claims.

The trial court granted the claims for attorney’s fees under section 57.105 filed by the Veterans Council, Matthews, and Teresi, finding that both Wapnick and his attorneys knew or should have known that their claims were not supported by material facts necessary to establish any claim for defamation, and that the facts of the case did not support a cause of action under any existing Florida law under any theory of liability advanced by them. This appeal ensued.

Wapnick argues that the defendants failed to meet their burden of proving entitlement to attorney’s fees under the statute based on competent, substantial evidence. In support, he claims that he offered sufficient evidence to show that his claim was not so lacking in merit as to entitle the defendants to attorney’s fees pursuant to section 57.105. We agree.

We review a trial court’s order awarding section 57.105 attorney’s fees for an abuse of discretion. Asinmaz v. Semrau, 42 So.3d 955, 957 (Fla. 4th DCA 2010). “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.” Id. (quoting Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003)); § 57.105, Fla. Stat. (2008). To award fees under the statute, “the trial court must find that the action was ‘frivolous or so devoid of merit both on the facts and the law as to be completely untenable.” ‘Chue v. Lehman, 21 So.3d 890, 891-92 (Fla. 4th DCA 2009) (quoting Murphy v. WISU Props., Ltd., 895 So.2d 1088, 1093-94 (Fla. 3d DCA 2004)). Moreover, that finding “must be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record.” Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006) (quoting Weatherby Assocs., Inc. v. Ballade, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001)). In reviewing this issue, we must determine whether the trial court abused its discretion in finding no justicia-ble issues of fact or law. Id. (citation omitted).

Here, the trial court found that Wapnick was a limited public figure for the purposes of deciding his defamation claims, and granted partial summary judgment on that issue. However, the court also denied portions of defendants’ motions for summary judgment in finding that genuine issues of material fact existed on whether a privilege attached to certain communication with third parties, thereby shielding them from liability for such statements.

The fact that Wapnick was ultimately unable to sustain his claims under the burden of proof required for a limited public figure does not mean these claims were totally devoid of merit. The assertion that Teresi called Wapnick a “crook” during a Veterans Council meeting was undisputed. Under certain circumstances, accusations imputing upon someone criminal conduct or other conduct incompatible with the proper exercise of that person’s lawful business can be defamatory. See Wolfson v. Kirk, 273 So.2d 774, 777-78 (Fla. 4th DCA 1973); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50, 52 (Fla. 4th DCA 1976); Cape Publ’ns, Inc. v. Adams, 336 So.2d 1197, 1200 (Fla. 4th DCA 1976). There is no evidence in the record that Wapnick knew or should have known that he was a limited public figure at any time prior to the trial court’s ruling. Additionally, the fact that certain alleged defamatory statements were made with the actual knowledge that the audits concluded no thefts had occurred presented at least a colorable claim of malice which, if supported by the evidence, may have been sufficient to overcome any limited privilege that applied. Thus, a justiciable issue existed and the trial court abused its discretion in finding that the standard of section 57.105 was met.

For these reasons, we reverse the trial court’s sanctions entered against appellant Wapnick awarding fees and costs in favor of the appellees under section 57.105.

Reversed and Remanded.

TAYLOR and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    Gary LEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1030.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Gary Lee, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to the appellant filing a postconviction motion which includes predicate facts on which he seeks to avoid the time bars of Florida Rule of Criminal Procedure 3.850. See Wilson v. State, 105 So.3d 667, 668 (Fla. 4th DCA 2013); Piggott v. State, 14 So.3d 298, 299 (Fla. 4th DCA 2009).

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: BENTON, J.

text:
    Joann GRAHAM, Appellant, v. Nathaniel GRAHAM, Appellee.
    No. 1D12-4416.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2013.
    Rehearing Denied Oct. 30, 2013.

      N. Albert Bacharach, Jr. of N. Albert Bacharach, Jr., P.A., Gainesville, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   BENTON, J.

JoAnn Graham appeals an order granting post-judgment relief on grounds it fails to effectuate the marital settlement agreement she and Nathaniel Graham entered into in September of 1994 in anticipation of the dissolution of their marriage later that year. She maintains the trial court erred both in calculating her share of the former husband’s 401(k) account and in calculating her share of his Army pension. Persuaded she is right in both instances, we reverse and remand.

The parties’ twenty-year marriage ended with a final judgment of dissolution of marriage, entered on December 22, 1994, which did not specifically address either Mr. Graham’s Army pension or his 401 (k) account. The judgment ordered instead that the “Agreement entered into by the parties at mediation is hereby confirmed and made a part of this Final Judgment of Dissolution of Marriage, and the parties shall comply with its terms and conditions in their entirety.” In September of 1994, the parties had signed a typewritten marital settlement agreement that gave Ms. Graham “10/23 of the Husband’s Army retirement as of the date of this agreement ... and 1/2 of the Husband’s 401K retirement as of July 24, 1993.” Although the marital settlement agreement called for entry of qualified domestic relations orders (QDROs) both for Ms. Graham’s share of the 401 (k) account and for her share of Mr. Graham’s military retirement benefits, no QDROs were entered at that time.

The parties communicated sporadically about the QDROs for the next sixteen years, but Ms. Graham did not formally petition for entry of the QDROs until 2010. The trial court took evidence and ultimately awarded Ms. Graham $18,111.49 as her portion of Mr. Graham’s 401 (k) account. The trial court also awarded her $18,922.42 as her share of Army retirement benefits Mr. Graham had already received, and $401.39 per month as her share of his future Army retirement benefits. Ms. Graham appeals both the $18,111.49 valuation and award of her share of the 401(k) account and the $401.39 monthly award based on Mr. Graham’s Army pension.

The 401 (k) Account

Below, Ms. Graham introduced expert testimony that her portion of the 401 (k) account was worth approximately $103,000. (When Mr. Graham closed this 401 (k) account in 2008, the whole account was worth $705,027.12.) Mr. Graham, on the other hand, maintained Ms. Graham was entitled only to the value of her half share as of July 24, 1993, namely $18,111.49. He also introduced evidence that, if Ms. Graham was entitled to the present value of the account, her portion of the 401 (k) account should be valued at only around $37,000. The trial court agreed with Mr. Graham’s primary contention, and awarded Ms. Graham $18,111.49. It refused to award interest or otherwise adjust for the present value of the account.

Interpretation of marital settlement agreements is subject to de novo review, just as any other contract interpretation is, at least in the absence of parol evidence. See, e.g., McIlmoil v. McIlmoil, 784 So.2d 557, 561-62 (Fla. 1st DCA 2001). As with any contract, the starting point is the language of the agreement. See Duval Motors Co. v. Rogers, 73 So.3d 261, 265 (Fla. 1st DCA 2011). That the agreement is incorporated into a court decree does not alter the rule. Here, rather than granting Ms. Graham half the value of the 401(k) account as of July 24, 1993, the marital settlement agreement granted her half ownership in the 401(k) account (and its contents) as of that date. This ownership entitles her to gains (and puts her at risk of losses) on her share. See Hoffman v. Hoffman, 841 So.2d 695, 696 (Fla. 4th DCA 2003) (holding wife’s entitlement to a specific share of her husband’s IRA account carried with it an entitlement to an equal proportion of the gains and losses until distribution).

The phrase “1/2 of the Husband’s 401K” describes a one-half ownership interest in the 401 (k) account itself. Half ownership of any asset, real or tangible personal property, say — for example, a house— plainly means something other than entitlement to a fixed sum of money. The same is true of intangible personal property, the value of which may also fluctuate. If the parties wanted to agree to a specific dollar amount, they could have done so easily enough by specifying a sum certain. In the present case, the marital settlement agreement lacks not only a sum certain, but also any reference to the dollar value of the 401 (k) account. If the parties had wanted Ms. Graham to receive a fixed number of dollars, they should not have written the marital settlement agreement to give her one-half of the portfolio of investments then in the account. The agreement does not contain a dollar amount or speak in terms of the account’s value, as opposed to the account itself. Cf. Rivero v. Rivero, 963 So.2d 934, 935-36 (Fla. 3d DCA 2007) (determining provision that husband and wife “shall be entitled to 1/2 of the present value of the Husband’s profit sharing plan” awarded a monetary interest in the plan rather than an ownership interest, and that the former wife was therefore “not entitled to receive any dividends or appreciation in value of the stock” in the former husband’s plan).

Mr. Graham argues that the language “as of July 24, 1993” limits Ms. Graham’s interest to one-half the dollar value of the 401(k) account on that date. But the language “as of July 24, 1993” simply serves to identify what was in the account as of that date. Thereafter, Mr. Graham was free to add and did add to the 401(k) account from time to time until his retirement. Anticipating this, the parties separated the post-dissolution portion of the 401 (k) account from that portion which constituted a marital asset. The phrase “as of July 24,1993” no more suggests that the parties intended to fix a specific monetary value than the “1/2 of the Husband’s 401K” language. By analogy, an agreement referencing Thistle Dew Farm as of a date certain serves to fix the acreage referred to, but the value of the acreage may fluctuate over time, and any additional acreage that may be annexed after the date certain is excluded.

The present case resembles In re Marriage of Gardner, 973 S.W.2d 116, 118 (1998), where a dissolution of marriage decree entered September 21, 1993, gave the former wife “ ‘[a] fifty percent interest in [the former husband’s pension fund] as of December 31, 1991 ... [$]216,252.50.’ ” The QDRO effecting distribution to the former wife was not signed until June 24, 1997, and included a proportionate adjustment for the increased value of the pension plan. Id. at 126. The former husband appealed, arguing the trial court erred by awarding the former wife earnings on her share of the plan retroactive to December 31,1991, because the dissolution decree, he argued, did not purport to award the former wife earnings, having awarded her only a fifty percent interest in the plan “which, as of December 31, 1991, the trial court valued at $216,252.50.” Id. The court noted that, although the dissolution decree was silent regarding the earnings on the former wife’s share of the plan, “the decree was entered September 21, 1993, twenty-one months after the date used by the trial court to value [her] share (December 31,1991).” Id.

The appeals court ruled: “Obviously, at the time the decree was entered, earnings (or losses) on [her] share would have accrued since the valuation date.... Obviously, if the earnings on [her] share since December 31, 1991, were not credited to her, [the former husband’s] share would be credited with them.” Id. The former husband’s theory appeared to be that “because the [decree] did not specifically provide that [the former wife] was to receive the earnings (or losses) generated by her share in the Plan after December 31, 1991, the decree implicitly awarded such earnings (or losses) to him.” Id. at 127. The Missouri Court of Appeals rejected this argument: “That is nonsense. The effect of such a construction would be to award one party the earnings (or losses) generated by an adverse party’s assets.” Id.

Here, too, limiting Ms. Graham’s portion of the 401(k) account to half of its 1993 value would effectively award Mr. Graham money his wife’s assets generated. Had the 401 (k) account lost all of its value, Mr. Graham would now owe Ms. Graham nothing. By the same token, the 401(k) account’s growth did not entitle Mr. Graham to the increase in value of assets that were not his. Ms. Graham held a property interest in her half of the 401(k) account, necessarily including gains (or losses) attributable to those assets. See, e.g., Hoffman, 841 So.2d at 696 (“A former spouse may not have an interest in the other spouse’s assets or earnings after the final judgment of dissolution.... The final judgment awarded the Wife a portion of a fluctuating asset.... She is entitled to the gains or losses that accrue on her portion of the asset due to market fluctuations.”). We therefore reverse and remand with instructions that the trial court determine the present value of Ms. Graham’s half of what the 401 (k) account held as of July 24, 1993.

Retirement Benefits

Ms. Graham also appeals the recurring amount awarded to her from future monthly installments of Mr. Graham’s Army retirement benefits. Again we start with the language of the parties’ marital settlement agreement, which gave Ms. Graham “10/23 of the Husband’s Army retirement.” Although the rule was once otherwise, see Mansell v. Mansell, 490 U.S. 581, 588-89, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), state courts may divide a former service member’s “disposable retired pay” between spouses in accordance with 10 U.S.C. § 1408(c)(1) (2011). In order to arrive at the amount of Mr. Graham’s retirement benefits to which Ms. Graham is entitled, the trial court had first to calculate his disposable retired pay.

In defining disposable retired pay, section 1408(a)(4) enumerates certain deductions from gross retired pay, including amounts which

are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section.

10 U.S.C. § 1408(a)(4)(D) (2011). The trial court ruled section 1408(a)(4)(D) required it to deduct from disposable retired pay the amount Mr. Graham was voluntarily paying towards a survivor benefit plan (SBP) for his current spouse.

At issue is whether this ruling was error, because, as Ms. Graham contends, the statute allows SBP premium payments to be deducted only if they are “being made pursuant to a court order under this section.” Mr. Graham argues that there would rarely be a need for a court order to require a spouse to pay for an SBP for a current spouse, and that the requirement of a court order pertains only to former spouses. But section 1408(a)(2) defines “court order” as:

[A] final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree ... which—
(C) in the case of a division of property, specifically provides for the payment of an amount ... from the disposable retired pay of a member to the spouse or former spouse of that member.

(Emphasis supplied.) The inclusion of “legal separation” in this language, along with the specific reference to a current spouse in section 1408(a)(2)(C), shows that Congress contemplated court orders requiring payments for current spouses and former spouses alike, and that court orders are required if SBP payments are to be deducted from a retiree’s disposable retired pay.

If the statute did not require a court order, moreover, a retired service member could reduce her or his disposable retired pay simply by choosing to provide an SBP for her or his current spouse. Effectively, as happened here, the retiree could unilaterally reduce the former spouse’s portion of the service member’s retirement benefits by voluntarily providing an annuity for a current spouse. It seems unlikely that Congress intended to confer such latitude. Discretion like this could, after all, be used to undermine the effect of state court decrees. In short, when calculating disposable retired pay, SBP premiums should be deducted from gross retirement pay only if they are being made pursuant to court order. The trial court erred by deducting Mr. Graham’s voluntary SBP premium payments when calculating his disposable retired pay.

In calculating Ms. Graham’s accumulated portion of Army retirement benefits Mr. Graham had previously received, the trial court correctly included cost of living adjustments. See Pullo v. Pullo, 926 So.2d 448, 451 (Fla. 1st DCA 2006). Since the award of future pension benefits must be revisited on remand, we need not address any issue of cost of living adjustments in that context now.

Reversed and remanded.

THOMAS and CLARK, JJ., concur.

      . As of July 24, 1993, Mr. Graham's 401(k) account was worth $36,222.98. (Therefore, the value of Ms. Graham's share on that date was $18,111.49.) Mr. Graham had not yet begun to collect military retirement.

      . In the order on appeal, the trial court used the "10/23” fraction to determine Ms. Graham's portion of the Army retirement benefits. Mr. Graham did not file a cross-appeal or otherwise contest this fraction.

        . Mr. Graham and his employer made contributions to the plan after dissolution of the marriage, and the value of the initial investment grew.

      . Counsel for Ms. Graham objected to the admissibility of this evidence, which was based on what Mr. Graham said were online print-outs from Yahoo Finance.

      . In Rivero v. Rivero, 963 So.2d 934, 935-36 (Fla. 3d DCA 2007), the marital settlement agreement, dated October 30, 2002, provided that the "Husband and Wife shall be entitled to 1/2 of the present value of the Husband’s profit sharing plan [(ESOP)]. The total approximate value is $300,000.00. The Wife shall not be entitled to receive her 1/2 interest until the Husband retires or otherwise leaves his employment.”
      On October 3, 2005, the former husband filed a motion seeking clarification of the former wife’s entitlement. On appeal, the court agreed with the trial court that the marital settlement agreement unambiguously provided the former wife’s interest should be determined in dollars, not in shares, and that she was entitled to receive one-half of the total value of the plan at the time the parties executed the agreement. Id. at 936.


text:
    Jay KUCHERA, Appellant, v. Claire Rice KUCHERA, Appellee.
    Nos. 4D11-2573, 4D11-2950.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Andrew A. Harris and Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, and Christopher Jette of Goldstein & Jette, P.A., West Palm Beach, for appellant.
    Christopher Chopin of Christopher Chopin, PLC, West Palm Beach, for appellee.
   PER CURIAM.

The former husband appeals, and the former wife cross-appeals, the trial court’s Third Amended Final Judgment of Dissolution of Marriage. We reverse the trial court’s decision declining to characterize the payments to the former wife in the parties’ post-reconciliation marital settlement agreement (“MSA”) for federal tax purposes, and we remand for the trial court to make a ruling on that issue and amend the final judgment. In all other respects, we affirm the Third Amended Final Judgment.

The parties’ MSA, under a provision titled “Lump Sum Alimony and Equitable Distribution,” requires the former husband to pay the former wife one-half of his salary after payment of child support for ten years, to be followed by yearly payments of $10,000. The former husband and the former wife agreed that the provision would be non-modifíable. The MSA is silent as to whether these payments would be deductible by the former husband, or includible in the income of the former wife.

“The usual treatment of alimony is to make the alimony taxable to the recipient and deductible by the payer.” Rykiel v. Rykiel, 838 So.2d 508, 510 (Fla.2003) (citation omitted). However, payments are not deductible by the payer as alimony if they are “part of a property settlement agreement.” Hyotlaine v. Hyotlaine, 356 So.2d 1319, 1321 (Fla. 4th DCA 1978). Lump sum alimony “is a fixed and certain amount, the right to which is vested in the recipient and which is not therefore subject to increase, reduction, or termination in the event of any contingency, specifically including those of death or remarriage.” Boyd v. Boyd, 478 So.2d 356, 357 (Fla. 3d DCA 1985). If the payments qualify as lump sum alimony, they remain payable to the former wife’s estate in the event of her death, and consequently, generally will not be deductible by the former husband under the relevant Internal Revenue Code provisions. Rood v. Comm’r, T.C. Memo. 2012-122, 2012 WL 1435009 (U.S.Tax Ct. Apr.25, 2012); Sharp v. Comm’r, T.C. Summ. Op.2004-27, 2004 WL 440429 (U.S.Tax Ct. Mar.11, 2004).

In the present case, the opinions of the parties’ accountants conflicted as to whether the former husband could deduct the payments. The trial court stated that “the better part of discretion [was] to do nothing” and expressly “decline[d] to characterize the payments for federal tax purposes, subject to any future ruling by the Internal Revenue Service or the Tax Courts.” We find that this was error, and we direct the trial court to amend its final judgment to indicate whether or not the payments shall be deductible by the former husband and taxable to the former wife, after analyzing the pertinent provisions of the MSA.

Affirmed in part; reversed in part; and remanded.

TAYLOR, LEVINE, and KLINGENSMITH, JJ„ concur.

      . We note that in Kuchera v. Kuchera, 983 So.2d 776, 781 (Fla. 4th DCA 2008), this court read the provision as requiring the former husband, for the first ten years, to pay "half of his net after child support” and described the arrangement as "an equal sharing of income.”

      . We recognize that the non-modifiability of the payments generally suggests that they are not deductible by the former husband for income tax purposes. See, e.g., Kidd v. Kidd, 695 So.2d 439 (Fla. 4th DCA 1997). However, because the trial court did not rule on this issue, we decline to determine whether the payments are deductible by the former husband.


author: KLINGENSMITH, J.

text:
    Michael WILKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-296.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Rehearing En Banc Denied Nov. 12, 2013.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   KLINGENSMITH, J.

Appellant Michael Wilkes’s convictions arose from his involvement in the attempted burglary of a mobile phone store. In the aftermath, he attempted to run over a police officer while fleeing .the scene to avoid arrest. He was subsequently tried and convicted of attempted second degree murder, attempted felony murder, attempted burglary of a structure while masked, and possession of burglary tools. Wilkes was sentenced on all but the attempted second degree murder charge because of the trial court’s concerns that double jeopardy prevented sentencing on both that charge and the charge of attempted felony murder. Wilkes appeals his convictions and sentences, arguing several points on appeal. However, we find merit in only two of those points: 1) that double jeopardy and/or merger principles require vacating his conviction for attempted second degree murder, and 2) that his Prison Releasee Reoffender (“PRR”) sentence for attempted burglary of a structure while masked is an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) because this offense does not qualify him for an enhanced sentence under section 775.082(9)(a), Florida Statutes (2012) (the “PRR statute”). We agree with Wilkes’s claim that one of the attempted murder convictions must be vacated, and that his PRR sentence for attempted burglary while masked was improper. We affirm on all other issues.

Wilkes argues that to cure the double jeopardy issue, one of his murder convictions must be vacated — the remedy traditionally resorted to by Florida’s courts. See Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006); Jackson v. State, 868 So.2d 1290, 1290 (Fla. 4th DCA 2004); Deangelo v. State, 863 So.2d 374, 375 (Fla. 1st DCA 2003); Tucker v. State, 857 So.2d 978, 980 (Fla. 4th DCA 2003). Here, the trial court sought to avoid the double jeopardy problem by entering judgment for both convictions yet withholding the imposition of sentence for one of the charges, specifically the attempted second degree murder conviction.

Florida law is clear that where, as here, there is a single attempt to cause death to a victim, dual convictions for both attempted murder and attempted felony murder cannot stand. See Gordon v. State, 780 So.2d 17, 25 (Fla.2001), overruled on other grounds by Valdes v. State, 3 So.3d 1067 (Fla.2009); Jackson, 868 So.2d at 1290; Tucker, 857 So.2d at 979-80. Therefore, allowing both convictions to stand, yet withholding the imposition of sentence for one of the offenses, does not cure the double jeopardy violation as it is “the record of appellant’s conviction [that] constitutes the violation of double jeopardy.” Florida v. State, 855 So.2d 109, 111 (Fla. 4th DCA 2003) (rejecting claim that any double jeopardy concerns were rendered harmless where defendant was not sentenced for one of convictions), overruled on other grounds, 894 So.2d 941 (Fla.2005); see also Coughlin, 932 So.2d at 1226 (stating that correcting an alleged double jeopardy violation would require vacation of the underlying conviction, not just the sentence).

For similar reasons, the merger doctrine also prohibits Wilkes’s convictions for both attempted second degree murder and attempted felony murder in this case. See Mobley v. State, 97 So.3d 344, 345 (Fla. 1st DCA 2012) (reversing a conviction for attempted felony murder when the defendant was also convicted of attempted second degree murder); see also Williams v. State, 90 So.3d 931, 935 (Fla. 1st DCA 2012) (reversing attempted felony murder conviction under the merger doctrine where the defendant was also convicted of attempted premeditated first degree murder). Here, as in those cases, there was not a separate criminal episode or distinct acts on which to base each attempted murder conviction. See Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (“[0]nly one homicide conviction and sentence may be imposed for a single death.”). This principle also extends to convictions for attempted murder and attempted felony murder from the same attempted killing. See Smith v. State, 973 So.2d 1209, 1210-11 (Fla. 2d DCA 2008); Jackson, 868 So.2d at 1291; Deangelo, 863 So.2d at 374-75.

Because the trial court sentenced Wilkes only on the attempted felony murder conviction, thereby evidencing its clear intent that he be adjudicated on that charge, we remand this issue back to the trial court to vacate Wilkes’s conviction on the charge of attempted second degree murder.

At Wilkes’s sentencing, the State followed the procedure required to have him declared a PRR and thus eligible for an enhanced sentence under the PRR statute. Following the sentencing hearing, the trial court found that Wilkes qualified as a PRR. On the charge of attempted burglary while masked, the court imposed a thirty-year sentence on him as a habitual felony offender, with an additional fifteen-year sentence under the PRR statute.

Section 775.082(9)(a) establishes enhanced and mandatory sentences under certain defined circumstances and for certain enumerated felonies. The statute also defines “prison releasee reoffender” as follows:

1. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied structure; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5);
within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

§ 775.082(9)(a), Fla. Stat. (2012) (emphasis supplied).

The crime of attempted felony murder for which Wilkes was also convicted falls within the statute, and this court finds no error in imposing the enhanced PRR sentence for this charge. However, the crime of attempted burglary of a structure is not a specifically enumerated offense under section 775.082(9)(a). The PRR statute may apply to that charge if it is deemed a qualifying offense under the statute’s so-called “catch-all” provision. See § 775.082(9)(a)l.o, Fla. Stat. (2012) (“Any felony that involves the use or threat of physical force or violence against an individual.”).

The Florida Supreme Court has held that, in determining whether an offense qualifies as one involving the use or threat of physical force or violence, the courts must look to the essential elements of the offense charged, rather than the proof presented at trial. Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991). The offense of attempted burglary requires the specific intent to commit the crime of burglary and an overt act towards its commission. Jones v. State, 608 So.2d 797, 798 (Fla.1992); Ellis v. State, 425 So.2d 201, 202 (Fla. 5th DCA 1983). The essential elements of burglary are: “(1) entering or remaining in, (2) a structure or conveyance, [and] (3) with intent to commit an offense therein.” State v. Waters, 436 So.2d 66, 69 (Fla.1983).

Wilkes was convicted of attempted burglary of a structure, without a finding that the structure was occupied at the time of the offense. The statutory elements of this crime do not require proof of the use or threat of use of physical force or violence. Therefore, the offense cannot qualify as a predicate offense under the “catchall” provision of section 775.082(9)(a)l.o. Consequently, the PRR sentence imposed by the court related to the attempted burglary conviction was error. See Gorham v. State, 988 So.2d 152 (Fla. 4th DCA 2008); Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007).

Accordingly, we reverse Wilkes’s conviction for attempted second degree murder and remand with directions to strike the conviction. We affirm Wilkes’s other convictions for attempted felony murder, attempted burglary of a structure while masked, and possession of burglary tools. We also remand this ease to the trial court with instructions that Wilkes’s PRR sentence imposed on the charge of attempted burglary of a structure while masked be vacated consistent with this opinion.

Affirmed in part, Reversed in part and Remanded.

TAYLOR and LEVINE, JJ., concur.

      . Wilkes’s conviction for attempted second degree murder and attempted felony murder arose out of the same single incident perpetrated against the same victim.

      . The trial court also sentenced Wilkes to life imprisonment as a PRR for attempted felony murder of the law enforcement officer, and sentenced him to ten years as a habitual felony offender for the charge of possession of burglary tools. All sentences, including those for attempted burglary of a structure while masked, were imposed concurrently.


text:
    TAISHAN GYPSUM CO. LTD., Appellant, v. LENNAR HOMES, LLC, Appellee.
    No. 3D12-2591.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Rehearing Denied Nov. 8, 2013.
    Hogan Lovells and Alvin F. Lindsay, Joe Cyr, Frank Spano, Joanna F. Wasick and Courtney Colligan, Miami, for appellant.
    Greenberg Taurig and Hilarie Bass, Elliot H. Scherker, Mark A. Salky, Adam M. Foslid, Brigid F. Cech Samóle and Jay A. Yagoda, Miami, for appellee.
    Colson Hicks Eidson and Ervin A. Gonzalez, Patrick S. Montoya and Natalie M. Rico, Coral Gables, for Lennar Homes, LLC and U.S. Home Corporation as ami-cus curiae.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See In re Chinese Manufactured Drywall Prods. Liab. Litig., 894 F.Supp.2d 819, 865-90 (E.D.La.2012); see also Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357 (11th Cir.2006); Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir.2002); PFM Air, Inc. v. Dr. Ing. hc. F. Porsche A.G., 751 F.Supp.2d 1264 (M.D.Fla.2010); Sehringer v. Big Lots, Inc., 532 F.Supp.2d 1335 (M.D.Fla.2007); Shyam Ahuja Private, Ltd. v. Garden Islands Int’l., LLC, 118 So.3d 268 (Fla. 3d DCA 2013); Wetzel v. Fisherman’s Wharf of Pompano Beach, Inc., 771 So.2d 1195 (Fla. 4th DCA 2000); Deere & Co. v. Watts, 148 So.2d 529 (Fla. 3d DCA 1963).


author: COHEN, J.

text:
    Darryl MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1952.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.
    Rehearing Denied Oct. 22, 2013.

      Paula C. Coffman and Jeffrey D. Deen, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Darryl Montgomery appeals from the judgment and sentence entered after a jury found him guilty of the sale of cocaine and accessory after the fact to robbery with a firearm. Montgomery argues that the trial court committed fundamental error by conducting a colloquy, in the jury’s presence, regarding his right to testify and by asking defense counsel to advise Montgomery to refrain from disruptive behavior during the State’s closing argument. We disagree and affirm, but we write to address the colloquy issue.

After the defense rested, the following exchange took place before the jury:

THE COURT: I do need [defense counsel] to confirm with your client that it’s his decision not to testify.
Mr. Montgomery, as I’m sure you know, you have the right to testify. You also have the right to remain silent and not testify, but I need to know that it’s your decision not to testify in the trial. [MONTGOMERY]: No, sir, I would not like to testify.
THE COURT: Okay. For the record then he’s indicated it’s his decision not to testify.

The jury was later instructed as follows: “The defendant has exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by his decision.” Montgomery was convicted, and this appeal ensued.

A trial court is not required to make a record inquiry concerning a defendant’s waiver of the right to testify. Torres-Arboledo v. State, 524 So.2d 403, 411 n. 2 (Fla.1988). If the court chooses to make such an inquiry, however, it should do so outside the presence of the jury. See Gill v. State, 632 So.2d 660, 663 (Fla. 2d DCA 1994) (Parker, J., concurring) (encouraging trial courts to conduct colloquy regarding right to testify and stating “[t]his address to a defendant, of course, must be out of the hearing of the jury”), rev’d, on other grounds, Oisorio v. State, 676 So.2d 1863 (Fla.1996).

We conclude that although the trial court’s failure to remove the jury before conducting the colloquy was in error, it did not rise to the level of fundamental error in this case. The jury instructions reminded the jurors that Montgomery had chosen not to testify and instructed them not to view his exercise of that right as an admission of guilt. Moreover, the evidence of Montgomery’s guilt was overwhelming. Thus, it cannot be said that the guilty verdict could not have been obtained without the assistance of the error. Cf. Robards v. State, 112 So.3d 1256, 1271 (Fla.2013) (holding prosecutor’s improper comments during closing argument did not constitute fundamental error where evidence of defendant’s guilt was overwhelming). We trust that in future cases the trial court will conduct the colloquy outside the presence of the jury.

AFFIRMED.

SAWAYA and BERGER, JJ., concur.