author: WARNER, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and The Florida Commissioner of Agriculture, Appellants, v. Toby BOGORFF, et al., Appellees.
    No. 4D12-1550.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 22, 2014.

      Wesley R. Parsons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellant.
    Robert C. Gilbert of Grossman Roth, P.A., Coral Gables and Jamie Alan Cole of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for appel-lees.
   WARNER, J.

The Department of Agriculture appeals an award of attorney’s fees in a class action for inverse condemnation in which the class prevailed. Primarily, it argues that the court erred by not using the “benefits achieved” standard of section 73.091, Florida Statutes (2009), when the Department made a “written offer” to the class members by sending each of them a letter enclosing an application for compensation provided under section 581.1845, Florida Statutes (2001). We hold that the letter was not a written offer as contemplated by the statute. With the exception of fees incurred by the class attorney representing other clients in related litigation, we affirm the award. With respect to costs, we reverse the expert witness fee incurred in providing testimony as to the amount and reasonableness of the fee, as this is not a recoverable cost.

To combat citrus canker disease, a threat to the commercial citrus industry, the Department developed a citrus canker eradication program (CCEP), which was eventually enacted into statute in section 581.1845, Florida Statutes (2001). It provided for the destruction of citrus trees within a 1900-foot radius of any tree infected with the canker virus. Haire v. Department of Agriculture, 870 So.2d 774, 778-80 (Fla.2004), documents the history of eradication efforts in Florida.

The plaintiffs, homeowners who owned trees which the Department destroyed, brought a class action for inverse condemnation of all the residential citrus trees destroyed in Broward County under CCEP. The trial court certified a class, which this court affirmed in Florida Department of Agriculture and Consumer Services v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002).

While class certification was pending, a couple in Miami, the Patchens, brought an action for inverse condemnation of their citrus trees. In that case, the trial court granted summary judgment to the Department, which the Third District affirmed in Patchen v. State Department of Agriculture and Consumer Services, 817 So.2d 854 (Fla. 3d DCA 2002) (Patchen I), holding that the Department was not liable for compensation for destroying uninfected trees within the 1900-foot radius of an infected tree. The court relied on Department of Agriculture and Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), which held that trees, within the radius of an infected tree, for which the Department compelled destruction, had no marketable value. Because the ruling in Patchen I would have eliminated compensation in this suit, class counsel filed an amicus brief on behalf of the class in the Third District court. When that court certified a question to the supreme court, class counsel then represented the Patchens before the supreme court. The supreme court held that the rule of Polk did not apply to homeowners who were entitled to seek compensation pursuant to section 581.1845, Florida Statutes (2004). See Patchen v. Fla. Dep’t of Agric. & Consumer Servs., 906 So.2d 1005, 1008 (Fla.2005) (Patchen II).

The class action in Broward County then proceeded to a non-jury trial in which the trial court determined that a taking had occurred when the Department destroyed the homeowners’ uninfected citrus trees. A jury trial followed to determine just compensation for the taking. The jury awarded $11,531,463 in compensation for the trees, less the $7,196,370 which the Department had already paid out as compensation based upon section 581.1845, Florida Statutes (2001), and the Department’s earlier Shade Tree Program, resulting in a net verdict of $4,335,093. Class counsel then moved for attorney’s fees.

Subsequently, the Department appealed the final judgment in Department of Agriculture and Consumer Services v. Bogorff, 35 So.3d 84 (Fla. 4th DCA 2010). This court affirmed on all issues raised by the Department. We also awarded class counsel attorney’s fees on appeal.

When the case returned to the trial court, the trial court conducted a five day hearing on attorney’s fees, in which the property owners requested an award of fees for the entire ten year period of litigation. The Department argued that fees should be computed under the sliding scale of section 73.092(1), Florida Statutes (2009), rather than under the multi-factor analysis of section 73.092(2), Florida Statutes (2009). Section 73.092(1) requires that an attorney’s fee award be based solely on the benefits received by the property owner, measured from the condemning authority’s last written offer to the property owner prior to the owner hiring an attorney. The Department contended that it made written offers when it sent applications for the statutorily authorized payments and Shade Florida debit cards to all of the affected property owners in Bro-ward County.

The Department sent two different letters to homeowners on whose property the Department destroyed citrus trees during the CCEP. The record is unclear as to when the first letter was sent, but it advised homeowners of the opportunity to obtain a replacement tree through the Shade Florida program authorized by the State of Florida and United States Department of Agriculture. Homeowners could receive plastic cards which would allow them to purchase new trees at Wal-Mart if they would return a completed postcard. This letter never mentioned compensation nor any other rights the homeowner may have for destruction of the trees.

The Department sent the second letter after the Legislature had enacted section 581.1845, Florida Statutes (2001). This letter was sent after the class in this case was certified. The letter advised the homeowner of a cash payment allowed for destroyed trees by virtue of the enactment of section 581.1845. Homeowners could participate in the program by returning a postcard with necessary information in order to receive the payment. In bold, the letter said, “By signing the postcard and receiving the payment, you do not waive your right to participate in litigation that may arise as a result of the Citrus Canker Eradication Program.”

The trial court rejected the Department’s position that the letters were “written offers” within the meaning of section 73.092(1). Not only did it find that the offer of Shade Tree cards was “gratuitous,” it also relied on the testimony of Deputy Commissioner of Agriculture Craig Meyer, who was in charge of the CCEP. Meyer testified that the cash payments and Shade Tree cards were the Legislature’s effort to show “respect” to the homeowners who lost their trees. In other words, he maintained that the payments were not compensation for the destroyed trees.

Alternatively, the Department also argued that class counsel’s compensation should be limited by the rules of professional conduct and the contract between one member of class counsel and one client. The court also dismissed these contentions.

In two orders, one 12 pages long and one 57 pages long, which thoroughly analyzed all of the issues, the trial court ultimately awarded attorney’s fees using the multi-factor analysis of section 73.092(2). The court awarded $4,245,445.75 for 7890.76 hours of work performed by multiple attorneys. The court used the hourly rates to which the plaintiffs’ expert testified, as those rates were close to the hourly rates charged by most of class counsel for non-contingent matters. Based on the Supreme Court’s decision in Perdue v. Kenny A., 559 U.S. 542, 556, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), the court used the class counsels’ current hourly rates, rather than historic rates, to calculate the amount of fees. The Department appeals the final judgment awarding fees.

Rejection of Section 73.092(1) as Basis of Award of Attorney’s Fees

Just as the state must pay for the landowner’s attorney’s fees in cases where it initiates a taking of private property, so too must the state pay attorney’s fees when a property owner proves that the state has taken the landowner’s property in an inverse condemnation case. See Schick v. Dep’t of Agric. & Consumer Servs., 599 So.2d 641, 642 n. 3 (Fla.1992). Because the right to fees in an eminent domain proceeding is statutory, fees awarded in an inverse condemnation also must be determined within the statutory framework of section 73.091 and 73.092. Id.

Section 73.092 contains two different methods of determining attorney’s fees in eminent domain proceedings. Section 73.092(1) provides that attorney’s fees must be calculated based upon benefits achieved:

(1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client.
(a)As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

The statute also provides in 73.092(2) for a multi-factor analysis in cases where section 73.092(1) does not apply:

(2) In assessing attorney’s fees incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for, the court shall consider:
(a) The novelty, difficulty, and importance of the questions involved.
(b) The skill employed by the attorney in conducting the cause.
(c) The amount of money involved.
(d) The responsibility incurred and fulfilled by the attorney.
(e) The attorney’s time and labor reasonably required adequately to represent the client in relation to the benefits resulting to the client.
(f) The fee, or rate of fee, customarily charged for legal services of a comparable or similar nature.
(g)Any attorney’s fee award made under subsection (1).

The Department challenges the trial court’s rejection of section 73.092(1) as the appropriate method for calculating the fee. In order to utilize section 73.092(1), the condemning authority must have submitted a written offer to the property owner. The trial court concluded that the Department’s offer of Shade Tree cards as well as cash payments were not “written offers” within the meaning of the statute. The court viewed the word “offer” as a term of art, and ruled that the Department did not submit a written offer to the class. We agree with the trial court.

Whether the trial court has applied the correct law in determining whether a writing constitutes a written offer under section 73.092(1) is a question of law reviewed de novo. See Pompano Beach Cmty. Redev. Agency v. Holland, 82 So.3d 1034, 1036 (Fla. 4th DCA 2011).

Section 73.092(1) does not define what constitutes a “written offer” for purposes of determining the benefits received by the client. “It is an accepted maxim of statutory construction that a law should be construed together with and in harmony with any other statute relating to the same subject matter or having the same purpose, even though the statutes were not enacted at the same time.” Garner v. Ward, 251 So.2d 252, 255 (Fla.1971). Section 73.092(1) refers to 73.015, which provides further context for what constitutes a written offer.

Section 73.015 requires presuit negotiations for any condemnation proceeding. Prior to the institution of condemnation proceedings, the condemning authority must provide the fee owner with a “written offer” and, if requested, a copy of the appraisal. § 73.015(1), Fla. Stat. (2009). In addition, no later than the written offer, the condemning authority must notify the owner of various requirements, including the nature of the project for which the taking is considered necessary and the fee owner’s statutory rights under section 73.091 and 73.092. § 73.015(l)(a), Fla. Stat. (2009). The notice and written offer must be sent by registered mail or personally delivered to the owner. § 73.015(l)(c), Fla. Stat. (2009). Considering the two statutes together, they contemplate that the condemning authority is exercising its power of eminent domain and prior thereto must submit a written offer to acquire the property.

We are skeptical as to how this statute would ever directly apply to an inverse condemnation proceeding, where the state has already taken the property of the owner without compensation and contests the fact that it has engaged in any taking of property for which it owes compensation. Nevertheless, applying case law discussing what constitutes a written offer in eminent domain proceedings, we conclude that the letters sent by the Department to homeowners were not written offers under the statute.

In Pierpont v. Lee County, 710 So.2d 958 (Fla.1998), the court considered whether a good faith estimate of value filed pursuant to section 74.031 constituted a written offer within the meaning of section 73.092. The court held that it did not, because the government was not bound by the good faith estimate. 710 So.2d at 960-61. It defined an offer as “an expression by a party of assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express assent to the same terms.” Id. at 960. A good faith estimate of value did not bind the governmental agency which was free to argue for an amount higher or lower at the jury trial. Id. at 960-61.

An offer which is subject to contingencies and does not obligate the government to purchase the property is not a written offer within the meaning of section 73.092. Pompano Beach, 82 So.3d at 1037 (holding that unexecuted contract to purchase property proposed by redevelopment agency, which was subject to contingencies of commission approval and appropriation of funds, was not a written offer within meaning of section 73.092(1)). In contrast, an offer which is definite and contains no contingencies may be a written offer within the meaning of section 73.092(1). See JEA v. Williams, 978 So.2d 842, 846 (Fla. 1st DCA 2008).

The letters sent by the Department do not constitute written offers within the meaning of the foregoing cases. It is important to understand that the letters were sent after the homeowners’ citrus trees were destroyed and removed. The Department was not offering to compensate the homeowners in exchange for their transfer of property to the state, as would be the case for a presuit offer in an eminent domain case. Because the trees were already destroyed, the only right the homeowners could relinquish as a result of an offer of compensation was their right to claim additional compensation pursuant to an action in inverse condemnation or pursuant to statutes. Nothing in either letter indicates that the Department was offering compensation in exchange for the relinquishment of this right. In fact, the letter offering the cash payments pursuant to section 581.1845, Florida Statute (2001) explained that the homeowners were not giving up their rights to pursue inverse condemnation.

The letters made no mention of the homeowners’ rights to attorney’s fees and the limitations of section 73.092. This would have alerted them that their right to attorney’s fees would be limited to the benefits obtained, as section 73.015 requires the condemning authority to advise the property owner. See § 73.015(l)(a)4., Fla. Stat. (2009). Thus, the letters did not constitute an expression of specific terms to which the other party could agree, because the letters were deficient for failure to explain the homeowners’ rights under section 73.092(1) and (2).

Finally, it is abundantly clear from the histoiy of this case and the evidence presented that the Department never intended these to be “offers” until it sought to use them to reduce attorney’s fees. The Department adamantly, and for two decades, claimed that it had not taken property for which compensation was required. Deputy Commissioner Meyers testified that the compensation was simply a token allowed by the Legislature as a showing of “respect” to homeowners who lost trees. It appears that the letters were carefully worded so that the Department would not imply that it owed compensation for the value of the trees. For all of these reasons, we conclude, as did the trial court, that the letters did not constitute written offers pursuant to section 73.092(1).

Where there are no written offers, as there were none in this inverse condemnation proceeding, attorney’s fees must be based upon the multi-factor analysis of section 73.092(2). See City of N. Miami Beach v. Reed, 863 So.2d 351, 353-54 (Fla. 3d DCA 2003). The trial court properly applied that analysis in setting the award of attorney’s fees.

Application of Rules of Professional Conduct

Alternatively, the Department claims that the award of attorney’s fees exceeds what is allowed in contingent fee cases under Florida Rule of Professional Conduct 4-1.5(f) which should provide a cap on any fee with a contingency factor. It ignores, however, Rule 4-1.5(e), which states that: “The fact that a contract may not be in accord with these rules is an issue between the attorney and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee-shifting litigation is involved.”

What the Department would have us hold is that any fee based upon a fee-shifting statute which exceeds the contingent fee schedule contained in the rules of professional responsibility is per se excessive. We reject this approach. While the contingent fee schedule of the rule may be one factor that the trial court could consider under section 73.092(2)(f) to illustrate comparable fees, it is but one of several factors to establish a reasonable fee. The statute provides no cap, and we will not impose one, particularly in this case where the size of the fee awarded to class counsel was the result of the Department’s litigation strategy and desire to “go to the mats,” as the trial court described. This argument is meritless.

Fee Contract Provision Not Controlling

Also without merit is the Department’s contention that class counsel’s fee must be limited to the percentage stated in a fee contract between one member of the class and his counsel, who participated in the proceedings but was not lead counsel. That fee provision stated: “In the event [Lytal, Reiter] are successful in asserting class action claims, [the firm] will seek a reasonable fee as determined by the court. Fees customarily awarded by Courts in cases such as this are usually in the range of 25% to 30%.” Based upon this provision, the Department argues that the fee award for all class counsel should be limited to 30% of the judgment.

We reject the Department’s reasoning. First, the contract with one plaintiff and one counsel does not bind the rest of the class counsel to its terms. Second, the contractual provision does not limit the attorney to 30%. It is not an agreement to charge that amount but a description of what a customary fee might be. Third, it is abundantly clear through case law that where the fee agreement with a client in a fee-shifting case contains alternative means of calculating a fee — one based on a percentage of the recovery or the other a fee set by the trial court — the agreement permits the trial court to set a reasonable fee higher than the percentage contained in the contract. See Kaufman v. MacDonald, 557 So.2d 572, 573 (Fla.1990). The supreme court has recently reiterated its approval of such alternative fee clauses and the trial court’s ability to exceed the hourly rate or percentage of recovery limit contained in the contract where the fee is reasonable. See First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., 115 So.3d 978, 982 (Fla.2013). The trial court correctly rejected the Department’s erroneous construction of the law.

Amount of Fees and Use of Current Hourly Rate

We review the determination of the amount of attorney’s fees for an abuse of discretion. See Daddono v. Miele, 69 So.3d 320, 324 (Fla. 4th DCA 2011); G.H. Johnson Constr. Co. v. A.P.G. Elec., Inc., 656 So.2d 566, 566 (Fla. 2d DCA 1995). The trial court thoroughly analyzed the evidence and the statutory factors. It determined that it should use class counsel’s current hourly rates, rather than the historic hourly rates over the decade of this litigation, and its reasoning is well supported in the record.

The court relied on Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), and Gray v. Bostic, 613 F.3d 1035 (11th Cir.2010), for the proposition that an enhancement of an attorney’s fee could be appropriate where an attorney’s performance involves an exceptional delay in the payment of fees or where the attorney assumes costs in the face of unanticipated delay, particularly where the delay is unjustifiably caused by the defense. Perdue, 559 U.S. at 556, 130 S.Ct. 1662. The delay could be compensated either by using current rates for the entire fee calculation, or by using the rates in place when the work was performed and adjusting it to present value. Id. The trial court took the former approach and documented the extraordinary delay over ten years, some as a result of judicial delay but much caused by the Department’s litigation tactics and its “win at any cost” strategy, which resulted in multiple unnecessary appeals and proceedings. The trial court acted well within its discretion in determining the hours and hourly rates for class counsel.

Fees for Work on Patchen I and Patchen II

We reverse only one portion of the attorney’s fees award. On behalf of the class, counsel appeared in the Third District as amici in Patchen I to argue for reversal of the trial court’s ruling. A defeat in Patchen I would have doomed a recovery in this case. As part of the fee award in this case, the trial court included time spent in representing the class in Patchen I. The trial court based its inclusion on Appalachian, Inc. v. Ackmann, 507 So.2d 150, 153-54 (Fla. 2d DCA 1987), in which the court affirmed the inclusion of fees for an appearance as amici in a related case where the issue was essential to the prosecution of the action in which fees were being sought. In this case, class counsel’s representation of the class’s interest in Patehen I was essential to the prosecution of the inverse condemnation in this case.

Appalachian, however, does not provide authority for the Department’s liability for fees that counsel incurred in Patehen II, the supreme court proceeding. In the supreme court, counsel represented the Patchens, not the class. Therefore, the fees were not incurred by the class members and should not be imposed upon the Department in this case. Moreover, without authorization from the appellate court, a trial court has no authority to assess attorney’s fees on appeal. See, e.g., Foley v. Fleet, 652 So.2d 962, 968-64 (Fla. 4th DCA 1995). Counsel should have sought fees in Patehen II in the supreme court. We therefore reverse for the trial court to delete from the overall fee the amount attributable to work on Patehen II. At oral argument, class counsel requested that these fees be assessed against the common fund. On remand, the trial court shall consider the propriety of such assessment.

Fee for Expert Witness Testifying as to Reasonableness of Fees

Finally, we reverse the assessment against the Department of the fee of the attorney expert witness who testified as to the reasonableness of the fees. Our supreme court held in State Farm, Fire and Casualty Company v. Palma, 629 So.2d 830, 838-34 (Fla.1993), that an insurer was not hable for attorney’s fees for the time spent litigating the amount of attorney’s fees, where fees were authorized pursuant to section 627.428, Florida Statutes (1983), because such fees inured solely to the benefit of the attorney and not to the insured. Palma has been applied to attorney’s fees awarded in condemnation proceedings under section 73.091, Florida Statutes (1993). In Department of Transportation v. Robbins, 700 So.2d 782, 785 (Fla. 5th DCA 1997), the court held that an attorney was not entitled to fees for litigating the amount of fees, nor for the fee of the expert witness called to testify to the amount of a reasonable fee. Such fees and costs were not compensable because the landowner had no interest in the amount of the fee, the benefit of which inures solely to its attorney. Id.; see also State Dep’t of Transp. v. Patel, 768 So.2d 1173, 1175 (Fla. 2d DCA 2000); Seminole Cnty. v. Boyle Inv. Co., 719 So.2d 1004, 1004 (Fla. 5th DCA 1998) (error to award expert fee for testifying regarding amount of fee).

Section 73.091(1) supports this view, as it allows fees incurred “in defense of the proceeding.” Fees and costs incurred to obtain fees are not fees for defending a condemnation proceeding (or litigating an inverse condemnation proceeding). The statute does not permit the award of fees on fees or the fee of the expert who testifies as to the amount of a reasonable fee. Thus, we reverse the award of the expert fee.

For the foregoing reasons, we affirm the award of attorney’s fees except for those fees incurred in the supreme court in connection with representation in Patehen II. We reverse the award of the expert witness fee. We remand for the trial court to correct the award in accordance with this opinion.

CIKLIN and GERBER, JJ., concur.

      . The Department also moved for attorney’s fees, claiming that it was the prevailing party. The trial court denied its motion, and this court affirmed on appeal. Fla. Dep’t of Agric. & Consumer Servs. v. Cox, 54 So.3d 1026, 1026-27 (Fla. 4th DCA 2011).

      . The Department’s reliance on Solid Waste Authority of Palm Beach County v. Parker, 622 So.2d 1010 (Fla. 4th DCA 1993), is completely inapposite. It does not stand for the proposition that any fee in excess of the fees schedule in the rule of professional responsibility is excessive. Further, that case was decided under a prior version of the statute, markedly different than the version applicable in this case.

      . This would not apply to fees for appearing as amicus, as there is no provision for the award of fees for amicus briefs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barbara QUAMINA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Residential Asset Securitization Trust 2006-A8, Mortgage Pass-Through Certificates, Series 2006-H under the Pooling and Servicing Agreement dated June 1, 2006, Appellee.
    No. 4D13-1517.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Feb. 28, 2014.
    Barbara Quamina, Pembroke Pines, pro se.
    S. Douglas Knox and Lindsay M. Saxe of Quarles & Brady LLP, Tampa, for ap-pellee.
   PER CURIAM.

A property owner appeals an order denying her motion to dismiss a foreclosure complaint. She argues the court erred in denying the motion because the bank failed to timely file a non-resident cost bond, the bank’s attorney impermissibly acted as a surety, and the bank’s attorney committed fraud on the court. The property owner concedes the order is non-final. We treat this appeal as a petition for writ of certiorari because the order is non-final, and not reviewable under Florida Rule of Appellate Procedure 9.130. See Williams v. Oken, 62 So.3d 1129, 1134 (Fla.2011).

We deny the petition for writ of certio-rari. The property owner has neither shown a departure from the essential requirements of law nor an irreparable injury. See Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721-22 (Fla.2012) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)).

Petition denied.

GROSS, MAY and CIKLIN, JJ., concur.


author: PER CURIAM. DAMOORGIAN, C.J.,

text:
    Luanna SHIREY and Michael Shirey, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Carlis R. Sabinson and William Sabinson, Appellees.
    No. 4D10-2489.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach and Todd S. Stewart of the Law Offices of Todd S. Stewart, P.A., Jupiter, for appellant.
    Daniel M. Bachi and Dina M. El-Salhy of Sellars, Marion & Bachi, P.A., West Palm Beach for appellees Carlis R. Sabin-son and William Sabinson.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We reverse the final summary judgment in this case on the authority of Birge v. Charron, 107 So.3d 350 (Fla.2012) and Cevallos v. Rideout, 107 So.3d 348 (Fla.2012), because the record establishes a question of comparative negligence, albeit a tenuous one, of the drivers struck by the rear driver in a rear-end collision.

GROSS and MAY, JJ., concur.

DAMOORGIAN, C.J., dissents with opinion.

DAMOORGIAN, C.J.,

dissenting.

This case came to us on remand from the Supreme Court following its decisions in Birge v. Charron, 107 So.3d 350 (Fla. 2012), and Cevallos v. Rideout, 107 So.3d 348 (Fla.2012). In those decisions, the court reversed precedent from this Court establishing a presumption of negligence on the part of a rear driver in a rear-end collision. Birge, 107 So.3d at 362; Cevallos, 107 So.3d 348. Although this case involved a rear-end collision and we applied the rear driver presumption in our previous opinion, we also noted that we would have affirmed even without the presumption. Shirey v. State Farm Mut. Auto. Ins. Co., 94 So.3d 619, 622 (Fla. 4th DCA 2012). Accordingly, I dissent from majority’s decision to reverse and remand, and would recede from the portion of our previous opinion based on the presumption, but affirm on other grounds.

By way of background, this case originated as an appeal of an order granting summary judgment in favor of the defendants in an auto accident case. As we explained in our original opinion:

The Shireys [Appellants] filed an amended complaint for damages resulting from a motor-vehicle collision against State Farm, Carlis R. Sabinson, and William Sabinson. The complaint alleged that the three lead drivers in the vehicle collision were negligent. It further alleged that Luanna Shirey sustained permanent injuries as a result of the car accident. Michael Shirey brought a loss of consortium claim. The accident occurred in the following manner. The first vehicle (vehicle 1) was driven by an unidentified lead-driver, followed by the second vehicle (vehicle 2) driven by Normal Purcell, followed by the third vehicle (vehicle 3) driven by William Sabinson. Vehicle 1 slowed to make a right turn into a local business. Vehicles 2 and 3 slowed in reaction. Luanna Shirey, who was driving the fourth or last vehicle, rear-ended Sabin-son’s vehicle causing his vehicle to rear-end Purcell’s vehicle.

Id. at 620.

Reviewing the trial court’s orders granting summary judgment under the applicable de novo standard of review, we held “even without the presumption recognized in Cevallos, our review of the record leads us to conclude that there was no material evidence of negligence by the lead-drivers.” Id. at 622. I stand by that conclusion on remand. The record is devoid of any evidence of comparative negligence by any of the three lead drivers.

As we summarized the evidence:
The lead drivers’ deposition testimony was consistent in that they slowed in response to the phantom vehicle, did not slam on their brakes, and did not hit one another until the Shireys’ vehicle slammed into the third vehicle, propelling it into the second. The Shireys presented the affidavit of their traffic accident reconstruction expert, James Harris, to establish that the lead drivers stopped abruptly and arbitrarily. Harris opined that Sabinson was ‘utilizing maximum braking immediately prior to [the] collision.’ Furthermore, Harris concluded that the phantom vehicle ‘made a right turn off the highway within 5 seconds of the turn signal coming on’ and thus, it ‘was either at maximum braking power prior to the turn or with the vehicle making that turn at a high rate of speed.’

Id. at 621.

We held that the Shireys’ expert’s affidavit was conclusory and insufficient to create a disputed issue of fact regarding the lead drivers’ negligence, a conclusion which the Shireys’ did not challenge on remand. Id. (citing Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789, 791 (Fla. 3d DCA 2010) (“holding that conclusory affidavits of a party and its expert were insufficient to create a disputed issue of fact”)). However, the Shireys now argue that certain portions of Mr. Purcell’s (the driver of Vehicle 2) deposition created issues of fact regarding the lead drivers’ negligence. Specifically, the Shireys argue that at one point, Mr. Purcell’s testimony suggested that Vehicle 3 hit his vehicle before Mrs. Shirey hit Vehicle 3 and that Mr. Purcell testified that the driver of Vehicle 1 was going about 55-60 miles per hour and brought his car to a stop within two seconds. The Shireys maintain that based on this testimony, a trier of fact could conclude that Mrs. Shi-rey did not bear all of the fault for the accident.

The Shireys’ position is unfounded. Their argument that Mr. Purcell’s testimony created an issue of fact as to whether Vehicle 3 hit Vehicle 2 before Mrs. Shirey hit Vehicle 3 is based on a tortured reading of Mr. Purcell’s deposition. Mr. Purcell unequivocally testified on multiple occasions throughout the course of his deposition that Mrs. Shirey hit Vehicle 3, propelling Vehicle 3 forward and causing it to collide with his vehicle, Vehicle 2. The Shireys’ position that Mr. Purcell testified that Vehicle 1 stopped suddenly before turning is also unsubstantiated. Rather, Mr. Purcell’s testimony establishes that Vehicle 1 slowed and turned off the road in a normal fashion:

Q: All right. Now, this vehicle in front of you from the time they first turned on their turn signal, and you said it was three seconds before they began to apply their brakes, how many seconds was it after that they were off the highway?
A: The vehicle had their blinker on about three seconds and then they applied their brake, and that took, you know, normal turning, you know, when you apply the brakes and you put the blinker on and they made their right-hand turn.
Q: And how long?
A: Around five seconds, I guess. What does that take, about five seconds, you put your blinker on — five seconds or something.

As the record is devoid of any evidence creating an issue of fact regarding the comparative negligence of the lead drivers, the trial' court appropriately granted summary judgment in favor of the lead drivers, and I would affirm.

      . Carlis R. Sabinson was the owner of the vehicle driven by William Sabinson.

      . The Shireys maintained an uninsured/un-derinsured policy with State Farm.

      . As a sample of his testimony, Mr. Purcell testified at different points that:
      • "And he [Vehicle 3] hit me because the vehicle in back of him hit him and the intertia bumped into my vehicle which caused no damage.”
      • "I sure heard him tap into me. He came upon me quite quickly when he got hit in the [expletive] end.”
      • "She hit him and he tapped my bumper”
      • "I am just about ready to proceed forward, bam, [Mrs. Shirey’s] car hits the car in the middle. I keep repeating myself.”
      • “Immediate impact from the white vehicle, Shirey, hitting that vehicle, that vehicle pushed the middle vehicle and one, two seconds later.”


text:
    BARBARA CREATIVE JEWELRY, INC., Appellant, v. UNIVERSAL SECURITY ALARM SYSTEM, INC., Appellee.
    No. 4D11-4814.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2013.
    Roy D. Wasson and Erin E. Pogue of Wasson & Associates, Chartered, and W. Sam Holland, Miami, for appellant.
    Mark R. Boyd and Patrick H. Gonyea of DeMahy, Labrador, Drake, Victor & Cabe-za, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See L. Luria & Son, Inc. for Use and Benefit of Fireman’s Fund Ins. Co. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. 4th DCA 1980).

WARNER, CONNER and FORST, JJ., concur.


text:
    Yileymi SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2812.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2013.
    Leonard S. Feuer (West Palm Beach), for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

We affirm for the reasons expressed in the trial judge’s meticulous, well-reasoned, and well-written order.

Affirmed.


text:
    Eddie WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4934.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Rehearing Denied Feb. 25, 2014.
    Eddie Wilson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Adams v. State, 734 So.2d 1086, 1087 (Fla. 1st DCA 1999).

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    Ramana CHIGURUPATI and Durgasguthi Chigurupati, Appellants, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee.
    No. 4D13-2363.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.

      Frank A. Miller, Carl F. Yeich of Caglia-none, Miller & Lao, P.A., Brooksville, for appellant.
    No appearance for appellee.
   DAMOORGIAN, C.J.

Ramana and Durgasguthi Chigurupati appeal the trial court’s order denying their motion to quash service of process and set aside a clerk’s default entered against them in a subrogation suit brought by Progressive American Insurance Company (“Progressive”). We reverse the trial court’s ruling as it pertains to setting aside the clerk’s default because the court did not have personal jurisdiction over Appellants at the time the clerk entered default. We affirm with respect to the court’s ruling refusing to quash service of process because Progressive eventually corrected the error which originally divested the court of personal jurisdiction over Appellants.

Appellants are Ohio residents who were involved in an auto accident in St. Lucie County. Progressive insured the driver of the other vehicle involved in the auto accident and filed suit against Appellants to recover for amounts paid to its insured. It served Appellants via individual and substitute service at their home in Ohio on August 25, 2012. The process server filled out, signed, and filed with the court a “Verified Return of Service” for each of the Appellants. Although the returns outlined the time, manner, and place of service, they were not notarized. On February 19, 2013, Progressive moved for a clerk’s default against Appellants for failure to serve or file any paper. The clerk entered default three days later.

Appellants then filed a Motion to Quash Service and Vacate Default arguing that the court lacked personal jurisdiction over them at the time the clerk entered default because the returns of service were not notarized and were thus invalid. In response, Progressive filed amended returns of service which were the same as the original returns of service with the addition that they were sworn to and notarized. After hearing argument from both parties, the court denied Appellants’ motion, ruling that requiring a notary seal on the returns put form over substance and that any defect in service was remedied when Progressive filed their amended returns of service.

“A trial court’s ruling on a motion to quash service of process consists of a question of law subject to a de novo standard of review.” Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 698 (Fla. 4th DCA 2010). However, we review an order denying a motion to vacate a default for an abuse of discretion. Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 306 (Fla. 4th DCA 2010).

Section 48.194 governs personal service outside the State of Florida and provides, in pertinent part:

Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

§ 48.194(1), Fla. Stat. (2012) (emphasis added).

The term “affidavit” is not defined in chapter 48, however, at least two of our sister courts have interpreted the word “affidavit” as used in section 48.194 as requiring a verification of service of process to be sworn and notarized. In Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989), the Fifth District considered whether service of process on an out-of-state resident was sufficient under section 48.194 when the process server signed an acknowledgment of service rather than an oath or affidavit before a notary public. Id. at 1162. It held that it was not, reasoning that: “[I]n an affidavit, which is required by section 48.194, the person swearing before the notary must under oath assert that the facts set forth in the document are true” as opposed to “merely declaring] that he executed and signed the document.” Id. Similarly, in Nettles v. White, 439 So.2d 1048 (Fla. 2d DCA 1983), the Second District held that an “affidavit” accompanying a return of service did not meet the requirements of section 48.194 because it was not sworn to. Id. at 1049.

We find Pina and Nettles instructive to this case. It is a fundamental rule of statutory construction that legislatively undefined words are to be given their plain and ordinary meaning. WFTV, Inc. v. Wilken, 675 So.2d 674, 677 (Fla. 4th DCA 1996). “If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” Id. According to Black’s Law Dictionary, “affidavit” means “[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 66 (9th ed. 2009) (emphasis added). Taken in light of the principle that statutes governing service of process should be strictly construed, Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 502 (Fla. 4th DCA 2010), section 48.194 requires that the service of process on a person residing outside the state of Florida should be evidenced by a sworn and notarized document stating the time, place, and manner of service.

Here, the verification of service filed before default was not sworn to or notarized and thus was improper under section 48.194. Although Progressive later filed an amended verification of process which was sworn and notarized as required by section 48.194, this was not until after the clerk entered default against Appellants. “When there is an error or omission in the return of service, personal jurisdiction is suspended and it ‘lies dormant’ until proper proof of valid service is submitted.” Re-Emp’t Servs., Ltd. v. Natl Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007). During the period of dormancy, the trial court and the clerk are without authority to enter default. Tetley v. Lett, 462 So.2d 1126, 1127 (Fla. 4th DCA 1984). Accordingly, the clerk did not have the authority to enter default against Appellants when it did. Therefore, while it was proper for the court to deny Appellants’ motion to quash service because Progressive eventually established proper service of process, the trial court abused its discretion by denying Appellants’ motion to vacate default. Id. (holding that trial court should have granted motion to set aside clerk’s default when the clerk entered default based on a return of service that did not comply with statutory requirements).

Affirmed in Part and Reversed in Part.

GERBER and CONNER, JJ., concur.

      . According to the return of service, the process servicer served Mr. Chigurupati individually and Mrs. Chigurupati through substitute service on Mr. Chigurupati.


text:
    Billy LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2664.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Billy Lynch, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant was properly sentenced under the law in effect at the time he committed the offense. Appellant’s claim that a subsequent amendment in the law should apply retroactively to his case is without merit. See Art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”); Castle v. State, 330 So.2d 10, 11 (Fla.1976). See also State v. Watts, 558 So.2d 994, 998 (Fla.1990).

GROSS, GERBER and FORST, JJ., concur.


text:
    Michael SANTOS, a/k/a Michael Minasian, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3174.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.

      Michael Santos a/k/a Michael Minasian, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Jolly v. State, 106 So.3d 508 (Fla. 4th DCA 2013); Bray v. State, 75 So.3d 1285 (Fla. 4th DCA 2011).

GERBER, LEVINE and FORST, concur.


author: GROSS, J.

text:
    D’Andre BANNISTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5205.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2014.

      Gregg Lerman, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

D’Andre Bannister timely appeals his convictions for second degree murder, aggravated child abuse, and kidnapping a person under thirteen years of age. This ease involves the substantial, and eventually fatal, injuries Bannister’s four-year-old stepson sustained while under Bannister’s exclusive supervision. At trial, Bannister contended that the victim’s injuries were the result of an unfortunate fall from a tall mango tree. To combat this theory, the State presented the testimony of medical and forensic experts, all of whom opined that, given the extent of the victim’s injuries, they were inconsistent with falling from a tree, and more likely the result of repeated exposure to blunt force trauma.

We write primarily to address Bannister’s argument that the trial court erred in denying his motion to suppress the statement he made to detectives. We hold that Bannister was not in “custody” at the time he gave a statement, so the State was not obligated to read him his Miranda warnings. We also reject Bannister’s contentions that the court erred by failing to (1) instruct the jury that it could receive a read-back of certain trial testimony and (2) grant a judgment of acquittal because the State failed to negate every reasonable hypothesis of innocence.

The State’s Case

At trial, the victim’s mother, Pameka McNeal, testified that at the time of the incident, she was married to Bannister and lived with him in a home along with their two biological children and McNeal’s four-year-old son from a previous relationship, the victim. McNeal assumed the role of the “bread-winner,” working full-time to support the family, while Bannister stayed at home to care for the children.

On the morning of August 7, 2002, when McNeal left home to go to work, nothing appeared to be amiss and all three children were acting normally. When McNeal returned home at lunchtime, all three children greeted her before moving to the kitchen table where they customarily ate their meals. At the time, all of the kitchen chairs were intact.

After leaving work in the late afternoon, McNeal arrived home to find Bannister “cleaning or washing dishes” while the couple’s two biological children played in the living room; their youngest son was using his toy broom to sweep the house. McNeal also observed the victim sleeping in his bedroom. Given the child’s age, she did not find that to be unusual.

After perusing the house, McNeal braided her daughter’s hair for a while before again checking on the victim. This time, upon turning on the lights, McNeal noticed the victim had a big “knot” on his héad, a “cut on his eye,” and blood coming from his mouth. Recognizing the apparent severity of the injuries, McNeal tried to wake the victim, but received no response.

McNeal grabbed the home phone and tried to call an ambulance. Bannister stopped her by snatching the phone and unplugging it from the wall. Panicked, McNeal tried to call the hospital from her cell phone. Bannister again blocked her efforts, this time forcibly taking her cell phone and removing its battery. As McNeal wailed over her son’s condition, Bannister turned his radio louder, attempting to drown out McNeal’s cries. He insisted the victim would eventually wake up and that authorities should not get involved, since DCF had interfered with their lives two years before.

Without the ability to seek help, McNeal confronted Bannister about what had happened to her son. To this, Bannister pointed to a cabbage palm tree in the front yard and explained that the victim fell from the tree, came inside to ask for a glass of water, and indicated that he wanted to lie down. McNeal was skeptical of this story, since the cabbage palm tree was only about five-to-six feet tall and her son was the type to cry loudly had he seriously injured himself. At that point, Bannister did not mention the forty-to-fifty foot mango tree with numerous branches located in the backyard.

Desperate, McNeal carried the victim from his bed to the shower, where she hoped the running water would awaken him. When the attempt failed, McNeal removed the victim from the shower, dressed him, and tried to flee with him in her arms. Bannister blocked her path, trapping her with her son in the bedroom.

With the victim beginning to turn blue, Bannister, in a last ditch effort, waved fingernail polish and rubbing alcohol under the victim’s nose, but to no avail. Conceding defeat, Bannister finally decided to change his clothes and drive the family to the hospital.

Upon arriving, Bannister dropped McNeal and the victim at the hospital entrance before driving away with the other children, purportedly to take them to his brother’s house. Recognizing that the victim was in a dire stage of distress and gasping for air, nurses immediately placed him in the intensive care unit. When asked what happened, McNeal explained to the doctors how Bannister told her the victim had fallen from a tree.

The Extent of the Victim’s Injuries

An ER pediatric nurse testified that when she and a team of nurses secured the victim, he was lifeless and unusually limp. The nurse noticed “numerous ... fairly fresh” bruises along his front side, chest, legs and hips, along with “numerous marks all over his back.” Given the number and extent of the injuries, the nurse believed that they “were inconsistent with a fall” from a tree, particularly since some of the “red and deep purple marks” appeared to resemble “impressions that were consistent with a large handprint.”

After hooking the victim up to a heart monitor, EKG, and ventilator, the nurses noted abrasions all over the victim’s abdomen and legs, the majority of which appeared fresh. In addition, a catheter revealed that blood was pooling in the victim’s bladder, indicating that he was suffering from an internal injury.

Dr. Roman Pena, a “pediatric intensivist,” testified that when he saw the victim, he immediately noticed “multiple bruises” along the victim’s body “consistent with getting hit with a fist” or “a hard object.” Upon seeing inaction in the victim’s pupils after shining a light in his eyes, it became clear that the victim was suffering from intense swelling of the brain and/or a lack of brain stem activity, potentially exacerbated by “acidosis” caused by a later-discovered pancreas injury.

Based on his evaluation, Dr. Pena opined that the victim’s injuries were not “consistent with a fall from a tree,” and were instead more likely the result of violent child abuse. While Dr. Pena conceded that falling from a forty-foot mango tree and hitting numerous branches “could have caused trauma anywhere,” he did not see how a four-year-old could have climbed such a large tree. Furthermore, had the child fallen from the mango tree, Dr. Pena opined that he would have sustained far more abrasions and broken bones than were present, such that he would not have been able to stand, let alone walk inside to ask for a glass of water.

Similarly, Dr. Reinerd Motte, an associate medical examiner, concluded that the victim’s injuries were representative of “a homicide and not an accident,” such as “falling from [a] tree.” In so finding, Dr. Motte described how the bruises and abrasions on the victim’s body were at different stages of healing, showing that the injuries occurred over a period of time. Dr. Motte opined that had the victim fallen from a tree and hit several branches, he would have had far more injuries to his hands, feet, arms, or legs. In Dr. Motte’s view, the fact that there were “multiple forces of blunt trauma hitting [the victim’s] body in multiple areas from multiple directions” showed that “the patterns on his body [we]re inconsistent with falling from a tree.” Upon observing the large mango tree, Dr. Motte posited that there was “[n]o way [he] c[ould] take [the victim’s] injury patterns and explain those with a fall from any tree,” let alone that tree. Rather, Dr. Motte believed the injuries to be far more consistent with being struck by something resembling the dimensions of the children’s small toy broom.

Dr. Phillip Colaizzo agreed with Dr. Motte that the victim’s numerous injuries were “suggestive of multiple points of impact with blunt force trauma” that were likely “the result of being beaten.” Furthermore, Dr. Colaizzo found the injuries to be inconsistent with a fall from a tree, since the victim’s injuries, by and large, did not extend to his hands, arms or legs.

The Investigation

Recognizing the extensive nature of the victim’s injuries, ER officials called law enforcement to initiate an investigation. A detective arrived at the hospital and met with McNeal, who appeared “very distraught.” McNeal signed a consent form to permit the sheriffs office to search her home. At the time, crime scene investigators took photographs of the victim, noting the “[sjevere bruising through the child’s entire torso, arms, legs, face, [and] head.”

Acting upon the consent form, Detective William Buffey visited McNeal’s home that night and investigated the nearby trees for clues of the fall. Following a search of the area, however, the detective found the cabbage palm tree devoid of “any evidentiary value,” since there were no broken limbs, tree branches, shoe impressions, or any other indication that the ground under the tree had been disturbed. The detective conceded that he neither took measurements of the mango tree nor collected any forensic evidence from it, since his investigation at that time was focused on the little cabbage palm, based on what Bannister had told McNeal.

Several days later, when McNeal was moving out of her house, she called the police after finding one of the victim’s shirts at the “bottom of the dirty clothes basket” with rips and straw broom strewn throughout it. In addition, McNeal recovered her son’s toy broom and noticed that it was missing more bristles than she remembered, suggesting that it had been used by Bannister as a weapon. Furthermore, McNeal observed that the victim’s shorts had blood in their inner mesh lining. A forensic test revealed that the blood in the shorts matched the victim. Dr. Motte testified that such blood was consistent with a slight rectal tear found on the victim, possibly resulting from a jab with the broom. McNeal also described that much of the furniture, including the chairs around the kitchen table, had been broken.

The Interview at the Red Roof Inn

Bannister’s friend, Brandon Ingraham, testified that prior to the victim’s death, Bannister called and asked Ingraham to reserve a hotel room for him and his two children. Ingraham rented a room at the Red Roof Inn in his own name and turned the keys over to Bannister. Later that night, a detective observed Bannister’s car in the Red Roof Inn parking lot. Based on the critical condition of the victim, the detective believed Bannister to be a threat to his biological children and decided to take action. Attempts to contact Bannister by telephone and by knocking on the motel room door failed. At about 5:00 a.m., a SWAT team broke down Bannister’s motel room door, handcuffed him, and removed his two children.

Once the room was secured and the SWAT team had left, Bannister’s handcuffs were removed and two detectives, dressed in plain clothes, with weapons holstered, approached him for questioning. The detectives informed Bannister that “he was free to go” and that he was not under arrest; in fact, following the interview, Bannister was allowed to drive home in his own vehicle. Bannister informed the detectives of his desire to speak.

Before commencing with the interview, a detective read Bannister an abbreviated version of the Miranda warnings. Although Bannister never provided oral responses to the Miranda warnings, the detectives testified that Bannister nodded throughout and said “uh-huh” as his rights were read to him. To establish his familiarity with both interrogations and Miranda warnings, two other officers testified about earlier contacts with Bannister where he had been read his Miranda rights.

During the interview, Bannister was not “restrained in any way” and was otherwise “free to move about the room.” The detectives described the interview as relatively low-key, with no one yelling, threatening, or raising their voice. The detectives remarked that Bannister appeared competent and alert at all times, evidenced by his correcting them about the facts of the case. During the lengthy interview, in spite of the officers’ use of various interrogation techniques, Bannister did not waver from his story that the victim had fallen from a tree. At some point during the questioning, Bannister asked the officers to stop questioning him, but they continued.

The primary evidentiary value of the interview came from Bannister’s identification of the palm tree as the site of the victim’s fall, while at trial he contended that the victim fell from the much taller mango tree.

The Trial Court’s Ruling

The trial court entered a detailed written order granting Bannister’s motion to suppress as it pertained to the statements he made after his request to stop, but otherwise denying his motion as it involved the initial statements obtained during the interview. In finding Bannister not to have been in custody at the inception of the interview, the trial court cited to Ramirez v. State, 739 So.2d 568 (Fla.1999), and found in pertinent part that: (1) Bannister was not handcuffed during the interview, (2) he was “not asked to accompany the officers back to [the] station or even placed in the back of a patrol vehicle,” (3) there was no evidence presented giving indicia of coercion or intimidating language, (4) the atmosphere of the interview was “conversational,” (5) he was informed that he was not under arrest and was free to leave at any time, and (6) he was permitted to leave on his own accord. The trial court concluded that because Bannister’s statement “was not custodial, the detectives were not obligated to inform the defendant of his Miranda warnings,” so that the sufficiency of the warnings was of no legal importance.

Because Bannister was not in custody at the time of his interview, the detectives were not required to comply with Miranda v. Arizona

Bannister contends that the trial court erred in denying his motion to suppress, since he was in custody at the time of his interview and he did not receive adequate Miranda warnings.

“A trial court’s ruling on a motion to suppress is a mixed question of fact and law.” State v. R.R., 90 So.3d 919, 921 (Fla. 4th DCA 2012) (citing Shingles v. State, 872 So.2d 434, 437 (Fla. 4th DCA 2004)). “When reviewing a ruling on a motion to suppress an incriminating statement, an appellate court accords a presumption of correctness to the trial court’s factual findings, but independently reviews mixed questions of law and fact that ultimately determine constitutional issues.” State v. Jackson, 120 So.3d 88, 90 (Fla. 4th DCA 2013) (citing Connor v. State, 803 So.2d 598, 608 (Fla.2001)). “In other words, we review the trial court’s legal conclusions de novo.” Navamuel v. State, 12 So.3d 1283, 1285 (Fla. 4th DCA 2009) (citing State v. Christman, 838 So.2d 1189, 1191 (Fla. 2d DCA 2003)).

“ ‘Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.’” Murdock v. State, 115 So.3d 1050, 1055 (Fla. 4th DCA 2013) (quoting Ross v. State, 45 So.3d 403, 412 (Fla.2010)). “This right against self-incrimination is given effect through a person’s right to remain silent.” Joe v. State, 66 So.3d 423, 425 (Fla. 4th DCA 2011) (citing Miranda v. Arizona, 384 U.S. 436, 467-69, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

“To protect suspects’ constitutional right against self-incrimination, law enforcement officers are required to inform them of their right to remain silent and to have counsel present at any custodial interrogation.” Black v. State, 59 So.3d 340, 344-45 (Fla. 4th DCA 2011) (citing Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602) (footnote omitted). Such “Miranda warnings apply whenever a person is in the custody of the police and the police subject him or her to express questioning, or its functional equivalent, to a degree that the police should reasonably expect to elicit an incriminating response.” Deviney v. State, 112 So.3d 57, 73 (Fla.2013) (emphasis added). “Where ... the custody ... prong is absent,” however, “Miranda does not require warnings.” Timmons v. State, 961 So.2d 378, 379 (Fla. 4th DCA 2007) (citing Lewis v. State, 754 So.2d 897, 900 (Fla. 1st DCA 2000)).

“In the Miranda line of decisions, ‘custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.’ ” MacKendrick v. State, 112 So.3d 131, 136 (Fla. 1st DCA 2013) (quoting Howes v. Fields, _ U.S. _, _, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012)) (internal quotations omitted). “[C]ustodial interrogation means ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Ross, 45 So.3d at 415 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). Within this realm, “custody” is determined by an objective, reasonable person standard— whether a reasonable person placed in the same position would believe that his or her freedom of action was curtailed “ ‘so that the suspect would not feel free to leave or to terminate the encounter with the police.’” Id. (quoting Connor, 803 So.2d at 605). The United States Supreme Court has explained this analysis as follows:

Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

To analyze the facts of a case to determine whether a person is in “custody” for Miranda purposes, Florida courts consider the following four factors:

(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his [or her] guilt; and (4) whether the suspect is informed that he or she is free to leave.

State v. C.F., 798 So.2d 751, 754 (Fla. 4th DCA 2001) (quoting Mansfield v. State, 758 So.2d 636, 644 (Fla.2000)). In making the evaluation, no single factor may “be considered in isolation”; rather, “[t]he whole context must be considered.” State v. Pitts, 936 So.2d 1111, 1124 (Fla. 2d DCA 2006).

1. The Manner in Which the Police Summon the Suspect for Questioning

“Although not dispositive, the location of the interview is a factor that supports a trial court’s conclusion that the defendant is not in custody.” Snead v. State, 913 So.2d 724, 726 (Fla. 5th DCA 2005). Typically, “[a]n interview with a suspect in his own home is not ordinarily regarded as a custodial interrogation,” since the suspect “is not likely to have a sense that he is being detained, as might be the case if the suspect had been stopped on a highway or taken to an interrogation room at the police station.” Evans v. State, 911 So.2d 796, 800 (Fla. 1st DCA 2005). However, “just because an interrogation occurs in a suspect’s home does not mean the interrogation could never be regarded as ‘custodial.’ ” Lee v. State, 988 So.2d 52, 54 (Fla. 1st DCA 2008).

In those instances where an in-home interrogation was found to have escalated past the level of “custodial,” the interviewing officers typically either exhibited an overwhelming show of authority or confronted the defendant with contraband so indicative of guilt that a suspect would feel there is enough evidence to be arrested. See, e.g., Wolliston v. State, 961 So.2d 1141, 1142 (Fla. 4th DCA 2007) (finding defendant to be “in custody,” despite still being in his home, where he “had already been confronted with the presence of cocaine and had not been informed that he was free to leave”); Killian v. State, 761 So.2d 1210, 1214 (Fla. 2d DCA 2000) (finding in favor of being “in custody” where “[ajlthough the questioning of Killian by Detective Curry occurred in Killian’s home, that home was being searched pursuant to a warrant by four other law enforcement officers”); Garcia v. State, 88 So.3d 394, 401-02 (Fla. 4th DCA 2012) (“Although Detective Torres had Garcia removed from the patrol car and his handcuffs removed before asking Garcia to come to the public safety building with the officers, a reasonable person in Garcia’s position would likely interpret the previous show of authority as an indication that he had no choice but to comply with Detective Torres’s request.”).

However, even where there is a significant show of authority, that coerciveness may be dissipated if the defendant has reason to believe that such a period of detainment has ended. See, e.g., Anthony v. State, 108 So.3d 1111, 1117-18 (Fla. 5th DCA 2013) (finding the defendant not to be in custody where a police officer removed her handcuffs and took her out of the police car, the interview occurred in the defendant’s spare bedroom, the defendant was considered a witness rather than a suspect, the door to the spare room was left open, and the defendant was permitted to freely walk about the residence); Parks v. State, 644 So.2d 106, 107 (Fla. 4th DCA 1994) (causal link between arrest and incriminating statements to police broken where the defendant was released from custody on an unrelated charge but voluntarily remained to answer questions).

In this case, the initial show of authority was explicit. At 5:00 a.m., a SWAT team breached the motel room door with a battering ram, handcuffed Bannister, and forcibly removed his two children. By the time the interview with the detectives began, Bannister had been at the center of a turbulent whirlwind of accusatory activity.

The trial court concluded that the detectives’ subsequent conduct operated to dissipate the earlier accusatory conduct. Furthermore, the trial court found it significant that Bannister’s statements were taken in a motel room, rather than the police station. The manner in which the detectives began to question Bannister— the removal of the handcuffs, the non-station house setting, and the detectives’ conversational manner — militates against a finding that Bannister was in custody.

2. The Purpose, Place, and Manner of the Interrogation

Generally, “ ‘in the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into a custodial interrogation.’ ” State v. Scott, 786 So.2d 606, 609 (Fla. 5th DCA 2001) (quoting Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999)). Thus, even where a defendant is questioned regarding criminal activity, custody will not be shown where the defendant is neither accused of the crime, nor addressed in a threatening manner. See, e.g., Peterson v. State, 94 So.3d 514, 528 (Fla.2012) (“While Jackson asked numerous questions concerning how Peterson committed the murder, the manner of their conversation does not show any type of pressure at all.”); State v. Perez, 58 So.3d 309, 312 (Fla. 5th DCA 2011) (“The testimony also indicated the interview was conducted in a non-threatening manner and the tone was conversational, not confrontational.”).

In this case, the evidence supports the trial court’s finding that neither detective attempted to intimidate Bannister through physical threat, as neither ever removed their guns from their holsters, Bannister was permitted free rein to walk around the room, and the detectives allowed him to sit in the area closest to the open door. See State v. Alioto, 588 So.2d 17, 18-19 (Fla. 5th DCA 1991) (stating “three situations in which a reasonable person might believe he or she was not free to leave: if an officer (1) brandished a weapon, (2) touched the suspect, or (3) used language or a tone indicating compliance could be compelled” (citing United States v. Long, 866 F.2d 402 (11th Cir.1989))).

3. The Extent to Which the Suspect Is Confronted With Evidence of His or Her Guilt

While not necessarily the decisive factor, “the extent to which the suspect is confronted with evidence of his or her guilt can be a circumstance that weighs heavily in the balances.” Pitts, 936 So.2d at 1127 (internal quotations omitted). “The awareness of the person being questioned by an officer that he has become the ‘focal point’ of the investigation, or that the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom .... ” United States v. Bengi- venga, 845 F.2d 593, 597 n. 16 (5th Cir. 1988) (emphasis in original) (citation omitted). As the second district has explained:

A reasonable person understands that the police ordinarily will not set free a suspect when there is evidence “strongly suggesting” that the person is guilty of a serious crime. That does not mean that whenever a suspect is confronted with some incriminating evidence, the suspect is in custody for purposes of Miranda. The significance of this factor turns on the strength of the evidence as understood by a reasonable person in the suspect’s position as well as the nature of the offense. If a reasonable person in the suspect’s position would understand that the police have probable cause to arrest the suspect for a serious crime such as murder or kidnapping, that circumstance militates strongly toward the conclusion that the suspect is in custody.

Pitts, 936 So.2d at 1128 (footnotes omitted).

In this case, the outset of the interview began conversationally and innocuously, with the detectives allowing Bannister to fully explain his side of the story. However, as the implausibility of many of Bannister’s contentions became apparent, the detectives shifted gears from passively listening to actively confronting him. Nonetheless, this switch did not shake Bannister’s story; he was consistent in ascribing the victim’s injuries to the fall from the palm tree.

Under these circumstances, Bannister’s interview must be dichotomized. At the early portion of the interview, during which Bannister recounted his story without interruption, any indicia of coercion was completely absent, favoring non-custody. However, when the officers accused Bannister of lying, informed him that the victim was in critical condition, and stated that the injuries were inconsistent with a fall, a reasonable person in Bannister’s position may have believed that he or she was a “suspect” in an extremely serious crime, although perhaps without the understanding “that the police [had] probable cause to arrest.” Id. at 1128. On balance, this factor weighs in favor of a finding of custody.

4. Whether the Suspect Is Informed That He or She Is Free To Leave

As both detectives testified, and as found by the trial court, Bannister “was repeatedly informed by the detectives that he was free to leave at any time.” In fact, when the interview ended, Bannister was not arrested, but was instead permitted to drive home by himself. Release of an interviewee at the end of questioning is relevant to the “custody” inquiry. See Howes, 132 S.Ct. at 1189. This factor favors heavily against a finding of custody.

Considering the totality of the circumstances, we find that the greater weight of the trial judge’s factual findings supports his legal conclusion that the interrogation was non-custodial. We do not therefore reach the issue of the legal sufficiency of the Miranda warnings.

The trial court did not err by failing to instruct the jury that it could request a read-back of the trial testimony

In his second issue on appeal, Bannister contends that the successor judge who presided at the trial abused his discretion by failing to instruct the jury in two instances that it could request a read-back of trial testimony. We hold that no instruction on a read-back was necessary because the jury did not pose a question about hearing any of the in-court testimony again.

While “[t]here is no rule of criminal procedure providing that a jury may view a transcript of the proceedings,” Florida Rule of Criminal Procedure 8.410 “provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request.” Adams v. State, 122 So.3d 976, 979 (Fla. 2d DCA 2013). Rule 3.410 imparts upon trial courts “wide latitude in the area of the reading of testimony to the jury.” Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). However, where a jury requests transcripts or a “read-back” of trial testimony, the trial court “may not, over objection, simply instruct the jurors to rely on their own collective recollection of the evidence so as to possibly mislead the jurors into believing that read-backs are prohibited.” Delestre v. State, 103 So.3d 1026, 1027-28 (Fla. 5th DCA 2012) (citation omitted). Rather, the trial court must abide by two rules:

(1) [the] trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and
(2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.

Hazuri v. State, 91 So.3d 836, 846 (Fla.2012) (emphasis added).

The Jury’s Request for Deposition Testimony

In this case, during deliberations, the jury submitted the following question to the trial judge: “Can we get any of the deposition^] Can we get the pictures[?]” In response, the trial judge engaged in the following dialogue with one of the jurors:

Juror: Judge, the question was based on a question in the room pertaining to witness testimony. In the process of the questioning, they read from the transcript.
The Court: Correct, but that transcript is not in evidence, okay.
Juror: Got you.
The Court: To the extent that it was referred to, there may have been some language that was quoted. The evidence that you have before you is the oral recitation of the portions of the depositions, okay.

As can be seen from the juror’s specific question, the jury was not requesting a read-back of the witness’s testimony, but rather hard copies of the depositions read by the attorneys and witnesses on the stand during trial. Such witness depositions are never permitted to travel into the jury room for use during deliberations. See Young v. State, 645 So.2d 965, 967 (Fla.1994) (recognizing the “prejudicial effect” of “submitting depositions to the jury during deliberations”).

In those cases holding that a read-back instruction was warranted, the jury either requested trial transcripts or identified specific witness testimony they desired to have recounted. See, e.g., State v. Barrow, 91 So.3d 826, 831 (Fla.2012) (read-back required where ten minutes into deliberations, the jury submitted a request for “all the transcripts of the witnesses’ testimonies”); Avila, 781 So.2d at 414 (jury requested to “review the timing of specific events set forth by the testimonies of four named alibi witnesses”); Roper v. State, 608 So.2d 533, 533-34 (Fla. 5th DCA 1992) (jury requested to “see” the victim’s cross examination). Here, by contrast, the jurors requested not to hear specific testimony, but to review the actual depositions read by the witnesses on the stand. Since such request did not concern trial testimony, the trial court did not err by failing to provide the jury with the option of a read-back.

Date of the Mango Tree Video

In the second instance, one of the jurors, after watching the defense’s video of the mango tree, asked the trial judge if it would be “ok to ask the day that [the video] was taken.” In turn, the trial judge responded that it “was part of the testimony.” When the court went into recess, defense counsel engaged the court on the matter as follows:

[Defense counsel]: Judge, on that question that [the juror] just asked, I mean, I know no judge likes to say they could have a read back, but if there’s a question, they have a read back on that, or they can rely on their own memory, but, or we can stipulate to what the testimony was, but they have a right to an answer. I mean, the testimony was October 25 of 2002.
[The prosecutor]: They typically ask for a read back so—
[Defense counsel]: He asked, could he ask.
[The prosecutor]: They could go back and deliberate, and if they want to ask, they can come and do it like they do everything else.
The Court: I am not going to bring them back out to tell them the date; that they should rely on what they heard.

This matter is analogous to the issue presented in Frasilus v. State, 46 So.3d 1028 (Fla. 5th DCA 2010), rev. denied, 69 So.3d 277 (Fla.2011). There, after entering deliberations, the jury submitted the following question: “When was the picture taken on the Department of Highway and Safety? What date, the issue date or duplicate?” Id. at 1029. In response, the trial judge instructed the jury that it would “have to use [its] best recollection of the evidence.” Id. In affirming the trial court’s instruction, the fifth district distinguished those cases where the jury either “ask[ed] to review a transcript or examine testimony,” since the trial judge at issue was merely “asked for an answer to a fact question.” Id. at 1031 (emphasis added). Thus, the court held that a jury’s fact question does not “give[ ] rise to a duty to inform the jury that it may request a read-back of any relevant testimony.” Id.; see also Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992) (holding that a trial court need not answer questions of fact from a jury).

In this case, much like Frasilus, the jury requested the court to answer a specific fact question regarding the date of the defense’s mango tree video. Since the jury neither requested trial transcripts nor a “read-back” of the trial testimony, the trial court was not obligated to provide a “read-back” instruction.

Judgment of Acquittal

Finally, Bannister challenges the denial of his motion for judgment of acquittal because the State failed to exclude his reasonable hypothesis of innocence— that the victim fell out of the mango tree. The reasonableness of this hypothesis was compromised by Bannister’s statement at the taped interview that the victim fell out of the cabbage palm tree, and was significantly challenged by the expert testimony that the victim’s injuries were consistent with abuse and not a fall from a tree. Accordingly, there was no error in the denial of the motion.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . See, e.g., Eugene v. State, 53 So.3d 1104, 1110 (Fla. 4th DCA 2011) (giving examples of interrogation techniques).

      . The trial court ruled on the pretrial motion and the successor judge presided at the trial.

      . The State conceded that statements after his request to stop should be suppressed.

      . For example, when asked why he took his two children to a motel room rather than their home, Bannister explained that he was "scared” to be alone in the house at night since there was “a ghost in there or something” and "spooky stuff going on in there.”

      . See Fla. R. Crim. P. 3.400.

      . Rule 3.410 provides:
      After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read or played back to them they may be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant....