author: MAY, J.

text:
    Josephine BRISTOL, Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee for the Holders of the First Franklin Mortgage Loan Trust 2006 FF15, Appellee.
    No. 4D12-4082.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Rehearing Denied May 14, 2014.

      James Jean-Francois of James Jean-Francois, P.A., Hollywood, for appellant.
    Jeffrey S. Lapin and N. Alejandra Ar-royave of Lapin & Leichtling, LLP, Coral Gables, for appellee.
   MAY, J.

A borrower appeals a final judgment of foreclosure. She argues, among other issues, that the trial court erred in entering summary judgment because a genuine issue of material fact existed as to whether the bank had standing. On this single issue, we agree with the borrower and reverse and remand.

The borrower executed a mortgage and note to the lender. The mortgage named MERS as the mortgagee, acting as a nominee for the lender and the lender’s successors and assigns. When the borrower defaulted on the note, she was sent a notice of default, informing her that she could cure the default by paying a certain amount that included two months payments plus late fees and interest. The next day, the borrower’s normal payment posted to her account.

The servicer and borrower entered into a “Forbearance to Modification Agreement.” Under the agreement, the servicer agreed to forbear from pursuing foreclosure proceedings and consider a possible loan modification if the borrower made her May, June, and July payments. The borrower timely paid the first two payments, but her July payment was one day late.

In July, the borrower signed a “Home Affordable Modification Trial Period Plan” (“HAMP trial plan”). The trial period allowed the borrower to make reduced payments for July, August, and September. During that period, the servicer would review the borrower’s eligibility for a loan modification. The HAMP trial plan clearly indicated that the modification was contingent on certain eligibility requirements. If the borrower qualified for a loan modification, she would be sent a fully executed copy of the modification agreement. If she did not qualify, the borrower would be sent a written notice that she did not qualify. The borrower made all three payments late. In January of the following year, the servicer sent the borrower a notice that she did not qualify for the loan modification.

MERS assigned the mortgage to the bank, which filed its verified complaint for foreclosure. The borrower answered the complaint, asserting the bank’s lack of standing and a lack of notice of default, and filed a counterclaim.

The bank moved to dismiss the counterclaim. The trial court granted the motion. The bank then moved for summary judgment and attached copies of: the notice of default, the Forbearance to Modification Agreement, the HAMP trial plan, the letter informing the borrower that she did not qualify for the loan modification, and the borrower’s payment history. The bank also attached an affidavit of a director employed by the servicer, which authenticated the attached documents. The bank filed the original note, which contained a blank indorsement.

The trial court granted the motion for summary judgment and entered a final judgment of foreclosure. The borrower now appeals that judgment.

The borrower argues that the trial court erred in granting summary judgment because the bank failed to refute her affirmative defenses of lack of standing and lack of notice of default. The bank responds that it proved standing through the assignment of mortgage, which was executed before the foreclosure action commenced.

We have de novo review. McLean y. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000)).

Summary judgment is appropriate where the pleadings and evidence show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “When a party raises affirmative defenses, ‘a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted.’ ” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987)).

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean, 79 So.3d at 173. Standing may be established by either an assignment or an equitable transfer of the note and mortgage prior to the filing of the complaint. Id.

Here, the bank filed the original note more than two years after the complaint was filed. The note contained an undated, blank indorsement, which was insufficient to prove standing at the time the complaint was filed. See Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 (Fla. 5th DCA 2013). Therefore, an issue of material fact remained as to when the note was transferred to the bank.

The bank relies on the “Assignment of Mortgage” from MERS to support standing, but the “assignment of mortgage reflects transfer of only the mortgage, not the note.” Vidal v. Liquidation Props., Inc., 104 So.Sd 1274, 1277 (Fla. 4th DCA 2013). The bank argues that the note followed the mortgage when the mortgage was assigned to the bank. This argument is flawed. The mortgage follows assignment of the note. Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1118 (Fla. 2d DCA 2011). But “[a]n assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Vance v. Fields, 172 So.2d 613, 614 (Fla. 1st DCA 1965).

The trial court erred in granting summary judgment because an issue of material fact existed as to when the bank took possession of the note. We And no merit in the other issues raised by the borrower, which include that issues of fact remained concerning the lack of notice of default, waiver, and dismissal of the counterclaim.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and GERBER, JJ., concur.


source: Caselaw Access Project

author:
ROTHENBERG, J.
      SHEPHERD, C.J.,

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Hugo MIRANDA, Appellee.
    Nos. 3D12-269, 3D12-270.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The State of Florida appeals from a non-final order finding Hugo Miranda (“the defendant”) incompetent to proceed and from related orders. Because the State’s request for an evidentiary hearing should have been granted, we reverse the orders under review and remand for an evidentia-ry hearing.

Factual and Procedural Background

The defendant was arrested and charged with the aggravated stalking of two minors in April 2011. Soon thereafter, the trial court ordered pretrial release of the defendant on the condition that the defendant stay away from the victims. Within days of his release, however, the defendant was re-arrested and later charged in two separate cases with the aggravated stalking of the same two minors, and his pretrial release was revoked. While the defendant was incarcerated, he was evaluated by three psychologists, Dr. Gustavo Fonte, Dr. Elsa Marban, and Dr. Marie DeFeo, to determine whether the defendant was competent to proceed. In evaluating the defendant’s competency, each of the psychologists- considered the factors articulated in section 916.12(3)(a)-(f), Florida Statutes (2011), including whether the defendant had the capacity to: appreciate the charges or allegations; appreciate the range and nature of possible penalties; understand the adversarial nature of the legal process and proceedings; communicate with and disclose pertinent information to his attorney; appropriately assist in his defense; manifest appropriate courtroom behavior; and testify relevantly. Based on their independent evaluations, all three psychologists concluded the defendant did not have a mental illness, but was incompetent to proceed due to his intellectual deficits. The psychologists also concluded .that the defendant did not meet the criteria for involuntary commitment under Chapter 916, Florida Statutes (2011), because, in their opinion, the defendant did not pose a danger to himself or others.

Dr. Fonte found that the only identified competency factor the defendant sufficiently demonstrated was his ability to manifest appropriate courtroom behavior. In his report, Dr. Fonte described the defendant as a “primitive individual at the cognitive level,” and opined that the defendant “appears to be cognitively and intel-lectuaUy limited and likely functions at a borderline intellectual level.” Dr. Fonte additionally noted that the defendant had no schooling and cannot read or write.

Dr. Marban noted in her report that she had not performed any formal intellectual testing, but nonetheless suspected that the defendant suffers from mental retardation and/or a developmental disorder. She also opined that the defendant “is not restora-ble to competency due to his concrete thinking style and deficit cognitive abilities.” Dr. DeFeo, who also concluded that the defendant is incompetent to proceed, appeared somewhat more optimistic regarding the defendant’s ability to obtain competency to proceed with treatment or training.

After the psychologists submitted their reports, the trial court conducted several hearings to address the defendant’s competence to proceed. See Fla. R. Crim. P. 3.212(b). At a hearing conducted on December 13, 2011, the State conditionally stipulated to the psychologists’ reports regarding the defendant’s incompetency. At subsequent hearings, however, the State maintained that, despite the defendant’s incompetency to proceed, the defendant was being properly held in custody based on his violation of his pretrial release conditions, and that the trial court should order the defendant to receive his competency treatment in jail pursuant to Graham v. Jenne, 837 So.2d 554, 559 (Fla. 4th DCA 2003), and Florida Rule of Criminal Procedure 3.212(c)(2). Initially agreeing with the State, the trial court orally ordered that the defendant be detained and that he receive the necessary treatment to achieve competency to proceed. The written order subsequently entered by the trial court found the defendant incompetent to proceed, but failed to address any of the factors required by Chapter 916, Graham, or rule 3.212(c)(2).

Shortly after the trial court issued its written order, Dr. Fonte and Dr. DeFeo submitted addenda to their competency evaluations. Both Dr. Fonte and Dr. De-Feo recommended competency training outside of the jail setting based on the defendant’s deficits and specific needs, but did not specify the type of training necessary or where such training was available.

After reviewing these reports, as well as the defendant’s motions for reconsideration and for release, the trial court concluded that, based on Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), it was required to release the defendant. Thereafter, the trial court entered its written order granting the defendant’s motion for reconsideration and for release and also denied the State’s oral motion for an evidentiary hearing regarding the defendant’s competency and to determine whether the defendant should be required to receive his competency treatment and/or training in jail.

In its written order, the trial court specified that the defendant’s incompetency was “not because of retardation or mental incapacity but rather because of being grossly illiterate and being unable to understand abstract concepts such as the judicial system.” The trial court also found that because the defendant does not meet the criteria for forensic commitment under Chapter 916, the trial court had only two options: (1) civil commitment under the Baker Act (Chapter 394, Part I, Florida Statutes (2011)), or (2) conditional release pursuant to Florida Rule of Criminal Procedure 3.212(d). Based on the psychologists’ reports, wherein the psychologists found that the defendant is not a danger to himself or others, the trial court found the defendant did not meet the criteria for. civil commitment and, thus, the only option was to conditionally release the defendant under rule 3.212(d).

Based on the above findings, and over the State’s objection and request for an evidentiary hearing, the trial court released the defendant on his own recognizance and again ordered him to stay away from the victims. Although the trial court noted that the psychologists’ written reports, upon which it heavily relied, did not address what type of treatment was needed to enable the defendant to attain the requisite competency to proceed or how long such treatment would take, the trial court ordered the defendant to enroll in school or a “teaching facility” within thirty days to learn how to read and write in an effort to attain competency to proceed. These non-final appeals followed.

Issue

The State contends that the trial court erred by not conducting an eviden-tiary hearing, as requested, to determine: whether the defendant is competent to proceed; if the defendant is incompetent to proceed, whether he meets the criteria for involuntary commitment; what treatment or training, if any, the defendant needs to attain a level of legal competency to proceed; how long the treatment or training would take; and what facilities are available to provide the necessary treatment or training. Because our review of the psychologists’ reports indicates that much of this information, which must be considered under Chapter 916, is absent from the reports, we conclude the trial court erred by not conducting the requested evidentiary hearing.

Analysis

I. Chapter 916, Florida Statutes (2011)

Chapter 916 of the Florida Statutes— the “Forensic Client Services Act” — addresses the treatment and training of mentally ill, mentally retarded, or autistic criminal felony defendants who have been found incompetent to proceed, §§ 916.10, 916.105, Fla. Stat. (2011), including the involuntary commitment of incompetent defendants. At the time of the psychologists’ evaluations, Chapter 916, utilized the word “retardation,” which was defined as having “the same meaning as in s. 398.063.” § 916.106(15), Fla. Stat. (2011). Section 393.063(32), Florida Statutes (2011), defined “retardation” as follows:

[Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior that manifests before the age of 18 and can reasonably be expected to continue indefinitely. “Significantly subaverage general intellectual functioning,” for the purpose of this definition, means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency. “Adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

However, effective July 1, 2013, the term “mental retardation” was replaced with the term “intellectual disability.” Ch. 13-162, sec. 28, Laws of Fla. (2013). There are no material differences between the definitions of “retardation” set forth in section 393.063(32), Florida Statutes (2011), and “intellectual disability” set forth in section 393.063(21), Florida Statutes (2013). Section 393.063(21), however, further provides:

For purposes of the application of the criminal laws and procedural rules of this state to matters relating to pretrial, trial, sentencing, and any matters relating to the imposition and execution of the death penalty, the terms “intellectual disability” or “intellectually disabled” are interchangeable with and have the same meaning as the terms “mental retardation” or “retardation” and “mentally retarded” as defined in this section before July 1, 2013.

Part II of Chapter 916 (sections 916.111 to 916.17) addresses forensic services for mentally ill defendants, whereas Part III of Chapter 916 (sections 916.801 to 916.304) addresses forensic services for defendants who are retarded or autistic.

II. The steps to follow when a defendant’s competency is questioned

A. Step One: Is the defendant competent to proceed?

The first step is to determine whether the defendant is competent to proceed. A defendant is incompetent to proceed if he “does not have sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceeding against [him].” § 916.12(1) (pertaining to mentally ill defendants); § 916.3012(1) (pertaining to a “defendant whose suspected mental condition is retardation or autism”); see also Fla. R. Crim. P. 3.211(a)(1) (providing that the “criteria for competence to proceed” is “whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings”). In addressing competency to proceed, irrespective of whether the experts determine that the defendant is mentally ill, retarded, or autistic, the “expert shall ... consider and specifically include in his or her report the defendant’s capacity to”:

(a) Appreciate the charges or allegations against the defendant.
(b) Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant.
(c) Understand the adversarial nature of the legal process.
(d) Disclose to counsel facts pertinent to the proceedings at issue.
(e) Manifest appropriate courtroom behavior.
(f) Testify relevantly.

§ 916.12(3) (relating to mentally ill defendant); § 916.3012(3) (relating to defendants who are retarded or autistic); see also Fla. R. Crim. P. 3.211(a)(2) (2011) (relying on materially the same factors as set forth in sections 916.12(3) and 916.3012(3)). Further, the expert “shall consider and include in his or her report any other factor deemed relevant by the expert.” § 916.12(3) (relating to mentally ill defendants); § 916.3012(3) (relating to defendants who are retarded or autistic).

In the instant case, all three psychologists who examined the defendant concluded that he was not competent to proceed based on these criteria.

B. Step Two: Does the defendant meet the criteria for involuntary commitment?

If the evaluating expert concludes that the defendant is not competent to proceed, he or she must then determine whether the defendant meets the criteria for involuntary commitment. To meet the criteria for involuntary commitment, Chapter 916 provides that the defendant must suffer from a mental illness, retardation (now referred to as intellectual disability), or autism. See § 916.13(l)(a) (providing for involuntary commitment based on clear and convincing evidence that the defendant has a mental illness); § 916.302(l)(a) (providing for involuntary commitment based on clear and convincing evidence that the defendant suffers from retardation (an intellectual disability), or autism). Thus, if the evaluating expert concludes that the defendant is incompetent to proceed, he or she must determine the basis for the defendant’s incompetency. If the basis for the defendant’s incompetency is mental illness, retardation (an intellectual disability), or autism, then involuntary commitment may be considered if the defendant meets the other criteria for involuntary commitment.

Although the criteria for involuntary commitment differs slightly based on whether the incompetency is due to retardation (an intellectual disability), autism, or a mental illness, the criteria for each requires that the trial court find by clear and convincing evidence that:

There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
All available less restrictive alternatives, including services provided in community residential facilities or other community settings, which would offer an opportunity for improvement of the condition have been judged to be inappropriate; and
There is a substantial probability that the mental illnessf, retardation (intellectual disability), or autism] causing the defendant’s incompetence will respond to treatment [or training] and the defendant will regain competency to proceed in the reasonably foreseeable future.

§ 916.13(1)(a)(2), (b)-(c) (setting forth the criteria for involuntary commitment of a defendant determined to be incompetent to proceed due to mental illness); § 916.302(l)(b)-(d) (setting forth the criteria for involuntary commitment of a defendant determined to be incompetent to proceed due to retardation (an intellectual disability) or autism).

To assist the trial court in determining whether an incompetent defendant meets the criteria for involuntary commitment and deciding what treatment or training is appropriate, Chapter 916 specifies that if the examining expert concludes that the defendant is incompetent to proceed due to a mental illness, retardation (intellectual disability), or autism:

(4).... [T]he examining expert[s] shall specifically report on:
(a) The mental illness[, retardation, or autism] causing the incompetence;
(b) The treatment or treatments appropriate for the mental illness [or the training appropriate for the retardation or autism] of the defendant and an explanation of each of the possible treatment [or training] alternatives in order of choices;
(c) The availability of acceptable treatment [or training] and, if treatment [or training] is available in the community, the expert shall so state in the report; and
(d) The likelihood of the defendant’s attaining competence under the treatment [or training] recommended, an assessment of the probable duration of the treatment [or training] required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future.

§ 916.12(4) (emphasis added); § 916.3012(4) (emphasis added). Thus, Chapter 916 requires accurate and thorough reports before the trial court determines how to handle an incompetent defendant.

III. Applying Chapter 916 to the instant case

All three psychologists who evaluated the defendant properly performed step one and determined that the defendant is incompetent to proceed. They determined that the defendant does not presently have a rational and factual understanding of the proceedings against him. The problem in the instant case is not with the application of step one, but rather with the failure to comply with Chapter 916 at step two of the analysis.

The first evaluation of the defendant was performed by Dr. Fonte at the request of defense counsel. Dr. Fonte concluded that the defendant was not competent to proceed, but that his incompetency was not due to a mental illness. Rather, Dr. Fonte opined that the defendant “likely functions at a borderline intellectual level.” Based on Dr. Fonte’s finding that the defendant was incompetent to proceed, the trial court appointed Drs. Marban and DeFeo, specifically directing them to determine whether the defendant met the criteria of incompetence to proceed under section 916.12, which only relates to mental illness. Thus, Dr. Marban and Dr. DeFeo were directed to determine whether the defendant was incompetent to proceed only due to a mental illness, not whether he was incompetent to proceed for any reason, and if so, what the basis for his incompetence to proceed was— mental illness, retardation (intellectual disability), autism, or for some other reason.

The trial court’s order specifically directed the psychologists to determine whether the defendant was competent to proceed, and if not, whether his incompetence was due to a mental illness. Consequently, when the psychologists concluded that the defendant was incompetent to proceed, but that his incompetence was due to “intellectual deficits” rather than a mental illness, they did not perform any standardized intelligence tests on the defendant to ascertain the nature or extent of his “intellectual deficits” or whether the defendant met the statutory definition of retardation. This was error, as step two requires that if the examining expert concludes that the defendant is incompetent to proceed either due to a mental illness or an intellectual disability, his or her report shall identify the mental illness or intellectual disability that is causing the incompetence; recommend the treatment or training needed; address and opine on the likelihood that, with the recommended treatment or training, the defendant will attain competency in the foreseeable future.

Further testing was especially crucial in this case because Dr. Fonte found that the defendant appeared to be cognitively and intellectually limited and that he likely functions at a borderline intellectual level Although Dr. Marban did not test the defendant, she stated that she believed he likely suffers from mental retardation as well as a developmental disorder. Dr. De-Feo provided a provisional diagnosis of “adjustment disorder” and borderline intellectual functioning. Thus, appropriate testing and an evidentiary hearing were needed to determine if the defendant meets the definition of retardation (an intellectual disability) and potentially qualifies for involuntary commitment.

Although the trial court recognized that the psychologists’ reports did not specify what type of treatment or training was required or how long it would take for the defendant to attain competency to proceed, it declined to hold an evidentiary hearing as the State requested, and instead fashioned its own treatment and training plan for the defendant. Specifically, the trial court ordered that the defendant enroll in reading and writing classes. This was error.

Although the psychologists’ reports note that the defendant does not read or write, there is absolutely no indication in the reports whether the defendant is capable of learning how to read and write, or whether he would be competent to proceed even if he learns to do so. More importantly, a criminal defendant’s inability to read and write does not, standing alone, render him incompetent to proceed. Rather, a defendant is incompetent to proceed only if he does not have the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against him. § 916.12(1); Fla. R. Crim. P. 3.211(a)(1).

Many defendants who are incapable of reading and writing are still able to confer with counsel and understand the proceedings. Therefore, literacy is generally of little relevance to a competency determination. Rather, the relevant question in the instant case is whether the defendant, with his intellectual, cognitive, and educational deficiencies, is likely to attain competency from treatment or training that focuses on explaining the charges against him, the possible penalties that may be imposed, and the adversarial nature of the legal process. Because the psychologists’ reports do not address this issue, the trial court erred by denying the State’s request for an evidentiary hearing.

We also note that the trial court determined, based solely on the psychologists’ reports, that the defendant does not meet the criteria for involuntary commitment because he is not a danger to himself or others. However, because there was never a hearing, the State was unable to challenge the psychologists’ determination that the defendant was not a danger to others although he was charged with the aggravated stalking of minors, and after being granted pretrial release and ordered to stay away from the minor victims, he allegedly committed two additional offenses of aggravated stalking as to the same minor victims on separate days.

Because no evidentiary hearing was conducted and, as the trial court recognized, the psychologists’ reports failed to address issues such as what type of treatment and/or training would enable the defendant to attain competency, the trial court had insufficient information to determine whether the defendant actually is incompetent to proceed; if he is incompetent to proceed, what is the nature or basis for his incompetence; and whether he meets the criteria for involuntary commitment. We, therefore, reverse the orders under review and remand for further evaluations of the defendant and the submission of reports that comply with the current version of Chapter 916 of the Florida Statutes, specifically, sections 916.12(4) and 916.3012(4). The trial court is additionally directed to conduct an evidentiary hearing in conformity with Florida Rule of Criminal Procedure 3.212 as the State requested.

IV. Application of rule 3.212

Although we are reversing and remanding, we address the defendant’s contention, and the trial court’s finding, that the defendant must be released if he is incompetent to proceed but does not meet the criteria for involuntary commitment under Chapter 916 based on the United States Supreme Court’s decision in Jackson. The issue in Jackson was the constitutionality of Indiana’s statutory scheme for pretrial commitment of incompetent defendants, which permitted involuntary commitment until such time as the Department of Mental Health certified there was evidence that Jackson, who was identified as a “mentally defective deaf mute with a mental level of a pre-school child,” was competent. Jackson, 406 U.S. at 717-19, 92 S.Ct. 1845. Under that statutory scheme, Jackson’s involuntary commitment could potentially constitute a life sentence. The Jackson Court found that such an indefinite commitment of a criminal defendant based solely on his incompetence to stand trial violated the Fourteenth Amendment’s guarantee of due process. Thus, the Court held that where a person is charged with a criminal offense and is committed solely due to his incompetency to proceed to trial, he cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain the requisite capacity in the foreseeable future. Id. at 738-39, 92 S.Ct. 1845. If not, the State must either institute civil commitment proceedings or release the defendant under those circumstances. Jackson does not support the blanket proposition that a criminal defendant must be released if he does not meet the criteria for involuntary commitment.

In the instant case, the trial court found the defendant did not meet the criteria for pretrial involuntary commitment. Thus, Chapter 916, which pertains to commitment, does not control. Rather, Florida Rule of Criminal Procedure 3.212 controls. Rule 3.212(c) provides, in pertinent part, that:

If the court finds the defendant is incompetent to proceed, or that the defendant is competent to proceed but that the defendant’s competence depends on the continuation of appropriate treatment for a mental illness or intellectual disability, the court shall consider issues relating to treatment necessary to restore or maintain the defendant’s competence to proceed.
(1) The court may order the defendant to undergo treatment if the court finds that the defendant is mentally ill or intellectually disabled and is in need of treatment and that treatment appropriate for the defendant’s condition is available. If the court finds that the defendant may be treated in the community on bail or other release conditions, the court may make acceptance of reasonable medical treatment a condition of continuing bail or other release conditions.
(2) If the defendant is incarcerated, the court may order treatment to be administered at the custodial facility or may order the defendant transferred to another facility for treatment or may commit the defendant as provided in subdivision (3).

Thus, contrary to the trial court’s finding that it only had two options pursuant to rule 3.212, it had four available options. Specifically, the trial court may have: (1) released the defendant on bail or other release conditions to be treated in the community, see Fla. R. Crim. P. 3.212(c)(1); (2) ordered the defendant to receive treatment at his current custodial facility, as he was incarcerated due to his violation of the initial pre-trial release conditions, see Fla. R. Crim. P. 3.212(c)(2); (3) ordered the defendant to receive treatment at a different custodial facility, as he was already incarcerated, see Fla. R. Crim. P. 3.212(c)(2); or (4) involuntarily committed the defendant if he met the statutory criteria in Chapter 916, see Fla. R. Crim. P. 3.212(c)(3).

The Fourth District Court of Appeal reached the same conclusion in Graham. In Graham, the defendant was a deaf mute with low intellect, but who was neither mentally ill nor retarded under the statutory definitions. Thus, Graham did not meet the statutory requirement for involuntary commitment. The Fourth District Court of Appeal specifically noted that although Graham could not be involuntarily committed, rule 3.212 provides other options.

However, Florida Rule of Criminal Procedure 3.212 provides other options. Rule 3.212(c)(2) states that if an incompetent defendant is incarcerated, “the court may order treatment to be administered at the custodial facility.” This means that an incompetent defendant who satisfies the requirements for pretrial detention may be treated at the facility where he is being held prior to trial. Rule 3.212(d) allows a court to order appropriate release conditions for up to a year, including outpatient treatment at an appropriate local facility and reporting for further evaluation, if a defendant is not mentally competent but does not meet the criteria for commitment.

Graham, 837 So.2d at 559.

Florida’s pretrial treatment of incompetent defendants does not run afoul of Jackson because such defendants, whether or not they are committed, never run the risk of indefinite custodial restraint based solely on their incompetency. A defendant who is involuntarily committed for treatment to enable him to obtain competency to proceed must meet the statutory requirements: there must be a substantial probability that the mental illness or retardation (intellectual disability) that is causing his incompetence will respond to treatment or training and the defendant will become competent to proceed in the reasonably foreseeable future; the appropriate treatment or training must be available; and there must be no less restrictive alternative available. Fla. R. Crim. P. 3.212(c)(3). If a mentally ill defendant charged with a felony does not attain competency in five years and there is not a substantial probability that he will become competent to proceed in the foreseeable future, the charges against him must be dismissed without prejudice to the State to refile should, the defendant be declared competent in the future, and the defendant must either be civilly committed or released. See Fla. R. Crim. P. 3.213(a)(1). On the other hand,

[i]f the incompetency to stand trial or to proceed is due to retardation [intellectual disability] or autism, the court shall dismiss the charges within a reasonable time after such determination, not to exceed 2 years for felony charges ..., unless the court specifies in its order the reasons for believing that the defendant will become competent within the foreseeable future and specifies the time within which the defendant is expected to become competent. The dismissal shall be without prejudice to the state to refile should the defendant be declared competent to proceed in the future.

Fla. R. Crim. P. 3.213(a)(2). Because Florida’s rules concerning incompetent defendants do not allow for indefinite detention and provide the requisite constitutional safeguards, a trial court may exercise any of the options in rule 3.212 under appropriate circumstances.

Conclusion

Because the State requested and should have been granted an evidentiary hearing, we reverse the orders under review and remand for an evidentiary hearing. Prior to the hearing, the trial court must order that the evaluating experts perform the appropriate testing and/or evaluation of the defendant to determine the nature and extent of the defendant’s intellectual and cognitive deficits and, if it is determined that he does not suffer from a mental illness, they must determine whether the defendant meets the definition of “intellectual disability” or autism under section 393.063, Florida Statutes (2013). Additionally, the experts’ reports or their testimony at an evidentiary hearing must address the following:

1) If the defendant meets the definition of intellectual disability, whether he otherwise satisfies the remaining criteria for involuntary pretrial commitment, including whether there is a substantial likelihood that in the near future he will inflict serious bodily harm on himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; the availability of less restrictive appropriate alternatives; and the substantial probability that the defendant will respond to the treatment or training ordered and attain competency to proceed in the reasonably foreseeable future.
2) If the defendant does not meet the criteria for pretrial involuntary commitment, what type of treatment or training is being recommended to enable the defendant to attain competency; how long such treatment or training would take; the availability of the appropriate treatment or training in and out of custody; and whether, with the appropriate treatment, the defendant is likely to attain competency in the reasonably foreseeable future.

Based on the trial court’s findings after reviewing these reports, it may commit the defendant or order that he receive treatment or training. As the defendant has been released by the trial court on pretrial release, albeit under the mistaken impression that it was required to do so pursuant to statute, we do not suggest that his pretrial release be revoked unless the defendant fails to submit himself for any further evaluations ordered by the trial court or if he again violates the conditions of his release.

Reversed and remanded with instructions.

WELLS, J., concurs.

SHEPHERD, C.J.,

concurring partially, and dissenting partially.

I concur in Parts I, II and III of the majority opinion. An evidentiary hearing is required in this case. However, I respectfully dissent as to Part IV concerning remedies that might be available to the trial court depending upon the result of the evidentiary hearing being ordered, and whether such remedy as may be prescribed runs afoul of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 485 (1972). Our power is to correct wrong judgments, not to provide advisory opinions. The parties to this case are represented by well-experienced counsel. It is, in my view, prudentially unsound for a court to speculate about matters that may never come before it.

      . This Court has jurisdiction to review a non-final order finding a criminal defendant incompetent to proceed. See Fla. R. App. P. 9.130(a)(2); Fla. R. App. P. 9.140(c)(1)(H).

      . Section 916.106(13), Florida Statutes (2011), provides:
      "Mental illness” means an impairment of the emotional processes that exercise conscious control of one's actions, or of the ability to perceive or understand reality, which impairment substantially interferes with a defendant’s ability to meet the ordinary demands of living. For the purposes of this chapter, the term does not apply to defendants with only mental retardation or autism and does not include intoxication or conditions manifested only by antisocial behavior or substance abuse impairment.

      . comes from section 916.302 and shows the only differences between the relevant portions of sections 916.13 and 916.302. Section 916.13 discusses "mental illness” and "treatment,” while section 916.302 utilizes the terms "retardation or autism” and "training.” Section 916.13 also allows the trial court to commit a mentally ill defendant, even if he is not an immediate danger to himself or others, if:
      The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being[J
      Section 916.13(l)(a)l.

      . The bracketed language reflects the differences between section 916.12(4) regarding treatment for mental illnesses and section 916.3012 regarding training for retardation (intellectual disability) or autism. All other language is identical between the two statutes, so the substance of the experts' reports should be similar under a finding of mental illness, retardation (intellectual disability), or autism.

      .‘ We specifically address the applicability of rule 3.212 based on the trial court’s finding that it had only two options.

      . Graham was decided prior to the recent 2013 amendment to rule 3.212. As such, the subsection citations in Graham do not match the current rule, but the substance remains the same.

      . The record reflects that after the defendant was released and ordered to have no contact with the minors he allegedly stalked, he allegedly committed two additional incidents of aggravated stalking upon the same minors.


author: ROTHENBERG, J.

text:
    CREATIVE CHOICE HOMES, II, LTD., etc., Appellant, v. KEYSTONE GUARD SERVICES, INC., Appellee.
    No. 3D13-2770.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.

      Clyatt & Richardson, P.A., and Kevin F. Richardson (West Palm Beach), for appellant.
    Carmela D. Jackson Law, P.A., and Carmela D. Jackson, for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   ROTHENBERG, J.

Creative Choice Homes, II, Ltd. (“Creative Choice”), the defendant below, appeals an order finding Creative Choice in contempt and imposing sanctions for its failure to file a fact information sheet (“FIS”) as the court ordered in the final judgment. Based on the facts of the case and the nature of the sanctions, we find that the trial court abused its discretion and accordingly reverse the contempt order and remand with instructions.

Keystone Guard Services, Inc. (“Keystone”), the plaintiff below, was awarded a $312,725.50 final judgment in March 2009. The final judgment required Creative Choice to file a completed FIS, Florida Rules of Civil Procedure Form 1.977(b), which requires the disclosure of various financial information to make the judgment more easily enforceable, within 45 days of the order. Some five months later, Creative Choice had not complied with the requirement to file its FIS. The trial court, upon Keystone’s ex parte motion, entered an order compelling Creative Choice to complete and file the FIS on August 27, 2013. The order compelling the completion of the FIS stated that Creative Choice must complete the FIS and deliver it to Keystone’s attorney within ten days of the order and warned that a failure to comply would result in Creative Choice being held in contempt of court.

Before the ten days had expired, Creative Choice filed a motion to stay execution of the final judgment and for relief from the order compelling production of the FIS, arguing that a pending related case filed by Creative Choice against Keystone would likely result in an offset in the judgment, and executing the judgment and completing the FIS at that juncture would be premature. Shortly thereafter, Keystone filed its motion for an order of contempt and for sanctions because the ten-day period in the order to compel completion of the FIS had expired. The trial court set both motions to be heard on September 17, 2013, but rescheduled the motions to be heard the following week because Creative Choice’s counsel had a conflict. On the morning of the rescheduled hearing, Creative Choice’s counsel got stuck in traffic on the way to the courthouse, and the trial court considered both motions with only Keystone’s counsel present. The trial court denied Creative Choice’s motion to stay and granted Keystone’s motion for sanctions.

The order imposing sanctions found that: (1) Creative Choice was in contempt of court; (2) Creative Choice would be fined $2,500 per day from the date of the order until it delivered the completed FIS to Keystone’s attorney and filed a notice of compliance with the trial court; (3) Creative Choice must pay $450 in attorney’s fees to cover Keystone’s costs on the contempt order; (4) Creative Choice must pay all attorney’s fees and fines imposed, as well as deliver the completed FIS to purge the contempt and stop the fines; and (5) if Creative Choice did not purge the contempt order within 30 days, a writ of bodily attachment would be issued for the principals of the company.

Creative Choice appeals the order granting Keystone’s motion for sanctions, arguing that the sanctions imposed, although civil in name, are criminal in nature and do not comply with the prerequisites necessary to impose criminal sanctions. Creative Choice also contends that even if the sanction is a civil sanction, the terms of this particular sanction fail to meet the requirements of law. Because the coercive civil sanction imposed by the trial court failed to meet the requirements of law, we reverse.

A contempt order imposing sanctions comes to this Court with a presumption of correctness and will only be overturned upon a showing that the trial court abused its discretion or departed from the essential requirements of law. Neiman v. Naseer, 31 So.3d 231, 233 (Fla. 4th DCA 2010). There are three types of sanctions a court may impose: (1) criminal sanctions, (2) compensatory civil sanctions, and (3) coercive civil sanctions. See Parisi v. Broward Cnty., 769 So.2d 359, 363 (Fla.2000). “[Determining whether the contempt proceedings are civil or criminal is critical to the court and to the parties because the nature of the contempt both determines the procedures for adjudication and sets the parameters for the sanctions that can be imposed.” Id. at 364. “The distinction between criminal and civil contempt often turns on the ‘character and purpose’ of the sanctions involved.” Id. (quoting Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). The key distinction between criminal and civil contempt is that criminal contempt is punitive in nature and imposes an unavoidable sanction, whereas civil contempt is remedial or incentive-based and allows the contemnor to purge the contempt and avoid or reduce the sanction by complying with court orders. Id. at 365; see also Berlow v. Berlow, 21 So.3d 81, 83-84 (Fla. 3d DCA 2009).

The sanctions in this order are coercive and civil in nature, as the order is clearly intended to prompt Creative Choice to comply with the earlier order compelling production of the FIS and also contains a purge provision allowing Creative Choice to avoid future fines and incarceration by complying with the delineated terms. In addition to requiring the mandatory purge provision that is the hallmark of all civil sanctions, coercive civil sanctions in the form of a civil fine also require a consideration of the contemnor’s financial resources and ability to pay the fine assessed. Parisi, 769 So.2d at 366. A consideration of the contemnor’s financial situation is especially important where, as here, a failure to pay the assessed fine will result in incarceration.

The trial court, while apparently well-intentioned, abused its discretion by entering this sanction order because it gave Creative Choice no grace period in which to comply with the order before sanctions would be imposed and because it completely failed to consider Creative Choice’s financial resources. Although per diem fines are a perfectly acceptable coercive sanction, Parisi, 769 So.2d at 365, a contemnor must be given a reasonable opportunity to purge the contempt before such fines are imposed. See The Fla. Bar v. Forrester, 916 So.2d 647, 651 (Fla.2005) (“[T]he hallmark of civil contempt is a purge provision allowing the contemnor to avoid the sanction imposed by complying with the court order.”) (emphasis added); Berlow, 21 So.3d at 83 (“[The sanctions] must contain a purge provision that affords the contemnor the opportunity to avoid the sanction.”) (emphasis added) (quoting Lewis v. Nical of Palm Beach, Inc., 959 So.2d 745, 752 (Fla. 4th DCA 2007)). Assessing a fine the very day the contempt order is filed gives the contem-nor no ability to purge the contempt before such fines are levied, and becomes closer in nature to a criminal sanction by imposing the fine punitively for failing to follow court orders, rather than serving a coercive purpose by incentivizing compliant behavior.

In Compagnoni v. Compagnoni, 619 So.2d 450, 451 (Fla. 3d DCA 1993), this Court held that “the order must also contain a reasonable period of time within which the [contemnor] may purge himself of contempt.” While the Compagnoni Court recognized there may be an exceptional case in which the contemnor has the present ability to comply with the purge provision forthwith, there was no such showing in that case. Id. at 451 n. 2. Such a showing has not been made in this case either.

The trial court’s contempt order in the instant case gave Creative Choice no real opportunity to comply with the order before sanctions were imposed. Furthermore, Creative Choice had a pending motion for relief from the order compelling production of the FIS when the contempt order was entered. This was not a situation in which Creative Choice knew that it would be sanctioned if it did not comply; rather, Creative Choice made a good faith effort to explain why the sanction should not be imposed. When the trial court was unpersuaded by Creative Choice’s argument, it gave Creative Choice no reasonable opportunity to comply with the trial court’s order. We therefore find that the coercive civil fine that was assessed was improper.

The trial court also failed to make any findings or consider Creative Choice’s ability to pay the per diem fines, as is required under Florida law. Parisi, 769 So.2d at 366; see also Whitby v. Infinity Radio, Inc., 961 So.2d 349, 352-54 (Fla. 4th DCA 2007) (affirming a $100,000 sanction award because the trial court held an evidentiary hearing to determine whether the contemnor had the present ability to pay). While the trial court need not conduct an evidentiary hearing or make precise calculations in every case, Channel Components, Inc. v. Am. II Elees., Inc., 915 So.2d 1278, 1284 (Fla. 2d DCA 2005) (finding that “there is no requirement that the amount of a fine coincide with some strict element of proof of damages or losses caused by the noncompliance”), there must be some indication in the record that the trial court considered the contemnor’s ability to comply with the sanction, especially when the payment of those assessments is necessary to avoid incarceration. Nothing in this record, however, evidences even the slightest consideration of Creative Choice’s present ability to comply with the per diem assessments. Thus, the sanctions order does not comply with the essential requirements of the law.

Because the trial court did not afford Creative Choice a reasonable time to purge its contempt before imposing sanctions, and because it did not consider Creative Choice’s present ability to pay those coercive sanctions, the trial court abused its discretion and departed from the essential requirements of the law by assessing the immediate per diem fines. The sanctions imposed do not meet the requirements for criminal sanctions, and cannot be supported as proper coercive civil sanctions. Accordingly, we reverse the order imposing sanctions and remand for the trial court to consider whether Creative Choice has fully complied with the order compelling production of the FIS and, if it has not, the trial court may sanction Creative Choice. If the trial court imposes a coercive civil sanction, the trial court’s order must contain a purge provision; the trial court must determine that Creative Choice has the present ability to pay the fine that will be levied if Creative Choice fails to purge its contempt; and the trial court must provide Creative Choice with a reasonable amount of time to purge its contempt before any sanction is imposed.

Reversed and remanded with instructions.


author: SHEPHERD, C.J.

text:
    Shadrick CRUMP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2993.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.

      Shadrick Crump, in proper person.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and FERNANDEZ and LOGUE, JJ.
   SHEPHERD, C.J.

Shadrick Crump appeals from an order denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged the intent of his plea in the case before us was thwarted by a post-plea forfeiture of his gain time in a separate case on which he was at liberty on conditional release at the time he committed the crime in the present case. The trial court denied the motion, reasoning that the challenged gain time forfeiture must be pursued in the first instance through the appropriate administrative process. We agree and affirm the decision of the trial court without prejudice to Crump pursuing his administrative remedies.

On April 15, 1996, Crump pled guilty in Case No. F95-31734A to charges of conspiracies to commit armed robbery, armed burglary, and drug trafficking and was sentenced to fifteen years in state prison. On July 6, 2008, in recognition of the fact he had accumulated 915 days of gain time while in custody, Crump was granted conditional release. Conditional release is a post-prison supervision program where an inmate is placed on community supervision for a period of time equal to the amount of gain time the prisoner earned while in prison. See § 947.1405, Fla. Stat. (2008); Logan v. State, 964 So.2d 209 (Fla. 5th DCA 2007). The Florida Parole Commission oversees the program, and retains jurisdiction over the defendant until his or her conditional release supervision terminates. Gillard v. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002). During that time, upon violation of any of the terms and conditions of release, the Commission may revoke the conditional release. § 947.141(4), Fla. Stat. (2010) (“[T]he [Commission] panel may revoke conditional release ... and thereby return the re-leasee to prison to serve the sentence imposed .... ”).

On September 10, 2010, while he was still on conditional release, the State charged Crump in Case No. F10-24273B with possessing cocaine with the intent to sell. On October 29, 2010, pursuant to a negotiated plea, the trial court entered a judgment of conviction in the new case, sentencing Crump to a term of three years in state prison with fifty-six days of credit for time served. After Crump began to serve his new sentence, the Department of Corrections advised Crump that the entirety of the 915 days of gain time he had been awarded in Case No. F95-31734A had been forfeited.

Crump then filed his motion for postcon-viction relief with the trial court in Case No. F10-24273B, claiming the gain time forfeiture thwarted the intent of his plea agreement for a three-year sentence because it extended his sentence to five years. In support of his argument, Crump cited several cases, including Neel v. State, 988 So.2d 1152 (Fla. 5th DCA 2008), Dellofano v. State, 946 So.2d 127 (Fla. 5th DCA 2007), Barnett v. State, 933 So.2d 1269 (Fla. 5th DCA 2006), and Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002).

In denying Crump’s motion, the trial court concluded the gain time forfeiture resulted from Department action and not that of the court, and “[o]rdinarily that is challenged by proceedings in Tallahassee.” Crump appealed the denial of his motion and we ordered the State to respond. Citing to Wright v. State, 115 So.3d 1098, 1099 (Fla. 1st DCA 2013), and Dellofano, the State agreed with Crump’s argument and recommended this court remand to the trial court for it to determine whether the forfeiture thwarted the intent of Crump’s negotiated plea. We reject the State’s recommendation because the cases cited by Crump and the State are not controlling here.

A careful review of the cited case law leads to the conclusion that the intent of a negotiated plea is thwarted when the gain time is considered in arriving at the sentence. This generally occurs within a single case, and not, as here, when the forfeiture occurs in one case and the plea in another. See Wright, 115 So.3d at 1098 (plea agreement after violation of probation in same case); Neel, 988 So.2d at 1152 (only mentioning one case); Dellofano, 946 So.2d at 127 (probation violation leading to negotiated plea); Barnett, 933 So.2d at 1269 (no mention of second case); Dellahoy, 816 So.2d at 1253 (same); see also, Ramos-Perez v. State, 99 So.3d 515 (Fla. 3d DCA 2011) (plea after violation of probation); Chase v. State, 57 So.3d 898 (Fla. 1st DCA 2011) (same); Etienne v. State, 994 So.2d 450 (Fla. 3d DCA 2008) (same); State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003) (same); Williams v. Dep’t of Corrections, 734 So.2d 1132 (Fla. 3d DCA 1999) (same). As these cases illustrate, when a defendant agrees to plead to charges in exchange for a sentence which takes into consideration gain time the defendant earned during a prior prison term in the case, he or she may justifiably claim his intent in taking the plea is frustrated by a forfeiture of that gain time. Where a longer imprisonment results from a forfeiture of gain time awarded in a separate case not considered by the court sentencing after a plea in a different case, the defendant cannot claim the forfeiture breaches the plea agreement. This is so because, as this court recognized in Jackson, 842 So.2d at 1041, the Department has sole discretion in awarding or revoking an inmate’s gain time, and the courts have no authority to countermand the Department’s forfeiture of gain time. It is only when a forfeiture of gain time frustrates the intent of a plea negotiated on the basis of that gain time that a court must remedy the situation by either resentencing in a manner which effectuates the intent of the plea or allowing the defendant to withdraw his plea. See, e.g., Williams, 734 So.2d at 1132.

In this case, Crump incorrectly claims his three-year sentence in Case No. F10-24273B was extended as a result of the forfeiture of the gain time he earned in Case No. F95-31734A. When the Parole Commission revoked Crump’s conditional release in Case No. F95-31734A, and reinstated his imprisonment in that case, the Department adjusted Crump’s tentative release date to include the forfeited 915 days. Crump’s three-year sentence in Case No. F10-24273B remained unaltered. As the trial court stated, any challenge to the gain time forfeiture in Case No. F95-31734A must be addressed either to the Parole Commission or to the Department, as may be appropriate.

Accordingly, we affirm the order of the trial court, without prejudice to the filing of administrative proceedings.

Affirmed.


author: SALTER, J.

text:
    Daryl L. MERL, Appellant, v. Jeffrey S. WEINER, P.A., etc., et al., Appellees.
    No. 3D13-302.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.

      Marlene S. Reiss, Miami, for appellant.
    Israel Reyes, Hialeah, and Christian Rodriguez, for appellees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Daryl Merl appeals a final order dismissing his complaint with prejudice based on his delays in filing an amended complaint, his “history of sanctions by the Florida Bar and ultimate disbarment,” and conclusions regarding the factors set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (enumerating factors to be assessed when considering dismissal with prejudice as a sanction; ultimately quashing such an order in that particular case). We reverse and remand the case to the trial court for further proceedings.

Mr. Merl’s pro se complaint alleged that two attorneys and their law firm committed legal malpractice and fraud in handling a grievance proceeding against Mr. Merl by The Florida Bar, and in protecting the interests of Mr. Merl and his clients during the period of Mr. Merl’s suspension (and, ultimately, disbarment). After the defendants filed motions to dismiss the complaint and for a more definite statement, Mr. Merl stipulated to an order granting those motions and providing twenty days from entry of the order within which Mr. Merl “shall” file an amended complaint. The order did not specify that the failure to file an amended complaint within that time would result in a dismissal with prejudice.

Three weeks after the twenty-day period for amendment had elapsed, the defendants filed and noticed for hearing a motion to dismiss the action with prejudice. Following a non-evidentiary, motion calendar hearing on that motion, the circuit court dismissed the action with prejudice without specifying any grounds for doing so. Mr. Merl sought rehearing, which was denied, but in denying the motion for rehearing, the trial court also amended the order of dismissal to address the Kozel factors. This appeal followed.

Analysis

We have previously addressed trial court orders which permit but do not require amendment, and which do not specify that dismissal with prejudice will follow if the complaint is not amended within the allowed time. Kruger v. Kruger, 124 So.3d 1033, 1035 (Fla. 3d DCA 2013) (noting “Florida’s long-standing policy in favor of adjudication on the merits, and against procedural default”) (citing Sekot Labs., Inc. v. Gleason, 585 So.2d 286, 289 (Fla. 3d DCA 1990)).

Turning to the Kozel analysis in the order before us, we are concerned that no evidence was taken and there seems to have been no assessment of specific, less drastic, sanctions such as a fine or contempt order. Kozel, 629 So.2d at 818. The record does not reflect, and oral argument did not elicit, any material prejudice to the defendant/appellees as a result of Mr. Merl’s untimeliness. Similarly, Mr. Merl’s prior disbarment was not shown to have resulted from ignoring orders to amend or court deadlines. The complaint itself indicates that Mr. Merl was in a drug and rehabilitation program at the time his Florida Bar grievance proceedings were pending.

For these reasons, we reverse the order dismissing the complaint with prejudice, and we remand the case to the trial court for further proceedings. If Mr. Merl does not promptly amend his complaint within the time the trial court shall designate, those proceedings shall include an eviden-tiary hearing. If the trial court then concludes (but on a more complete record) that Mr. Merl’s lack of diligence warrants monetary sanctions or the ultimate sanction of a dismissal with prejudice, it shall enter an appropriate order. We express no opinion as to the legal sufficiency of any amended complaint or the merits of the parties’ claims and defenses at this stage of the case.

Reversed and remanded.


author: PER CURIAM.

text:
    Frederick M. NERLINGER, Appellant, v. William H. RILEY and WHR Investigations, Inc., Appellees.
    No. 3D13-1099.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.
    Rehearing Denied May 23, 2014.
    Frederick M. Nerlinger, in proper person.
    Diaz, Reus & Targ, LLP, and Michael Diaz, Jr., Chad S. Purdie, and Paola Sanchez Torres, for appellees.
    Before WELLS, SUAREZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Watson v. Peskoe, 407 So.2d 954, 956 (Fla. 3d DCA 1981) (citation omitted) (“Whether to impose the sanction of dismissal is within the sound discretion of the trial court[,]” and will be justified where there is a “deliberate and contumacious disregard of the court’s authority”).


author: EMAS, J.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. The ALDEN HOTEL CONDOMINIUM ASSOCIATION, Appellee.
    No. 3D13-1458.
    District Court of Appeal of Florida, Third District.
    April 2, 2014.
    Levine Kellogg Lehman Schneider & Grossman and Brandon M. Thompson, for appellant.
    Peytonbolin and Michael Mayer, for ap-pellee.

      Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

We affirm the final judgment entered in favor of Appellee Alden Hotel Condominium Association, following a non-jury' trial. The trial court’s findings come to us clothed with a presumption of correctness, and will not be disturbed absent a showing by Appellant that such findings are clearly erroneous. Citibank, N.A. v. Julien J. Studley, Inc., 580 So.2d 784 (Fla. 3d DCA 1991). We reject Appellant’s contention that the trial court, after admitting into-evidence certain-business records, ignored the contents of those records in its findings. The contents of those records were contradicted by other evidence and testimony, thus requiring the trial court, as finder of fact, to consider, weigh and resolve the contradictory evidence, including an assessment of witness credibility. That assessment of witness credibility, like all disputed issues of fact, is one properly left to the trier of fact. Rodriguez v. Reyes, 112 So.3d 671 (Fla. 3d DCA 2013); Ferry v. Abrams, 679 So.2d 80 (Fla. 5th DCA 1996); State v. Cardosa, 609 So.2d 152 (Fla. 5th DCA 1992). Because the record contains competent substantial evidence to support the trial court’s determinations on the conflicting evidence and the credibility of the witnesses, we affirm.

Affirmed.


text:
    ORLANDO/ORANGE COUNTY EXPRESSWAY, etc., Appellant, v. TUSCAN RIDGE, LLC, etc., Appellees.
    No. 5D13-1164.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2014.
    Rehearing and Rehearing En Banc Denied May 9, 2014.

      Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, Richard Milian and Edgar Lopez of Broad and Cassel, Orlando, for Appellant.
    Craig B. Willis and Joe W. Fixel of Fixel & Willis, Tallahassee, and James C. Hau-ser, Maitland, for Appellees.
   PER CURIAM.

This eminent domain case is here for the second time. In Orlando/Orange County Expressway Authority v. Tuscan Ridge, LLC, 84 So.3d 410 (Fla. 5th DCA 2012), we reversed Appellee landowners’ attorney’s fee award, determined under section 73.092(2), Florida Statutes (2006), and remanded with instructions that the trial court recalculate the fee using section 73.092(1), unless it declared section 73.092(1) unconstitutional as applied to the facts of this case. On remand, the trial court did just that — ruling that, because Appellant had been the cause of “excessive litigation,” the utilization of the formula set forth in section 73.092(1) would amount to a denial of full compensation under article X, section 6, Florida Constitution. Having reached that conclusion, the trial court again utilized section 73.092(2) to set the fee, multiplying the number of hours times a reasonable hourly rate. We reverse.

Appellant concedes that entitlement to reasonable attorney’s fees in eminent domain proceedings is a component of “full compensation” under the Florida Constitution. Art. X, § 6, Fla. Const.; JEA v. Williams, 978 So.2d 842, 845 (Fla. 1st DCA 2008) (citing Tosohatchee Game Pres., Inc. v. Cent. & S. Fla. Flood Control Dist., 265 So.2d 681 (Fla.1972)); Seminole Cnty. v. Butler, 676 So.2d 451, 454 (Fla. 5th DCA 1996). Appellees concede as a corollary that, as a “general proposition,” the determination of how that fee is calculated in eminent domain proceedings appears to be within the province of the legislature. See Schick v. Dep’t of Agrie. & Consumer Seros., 599 So.2d 641, 643 (Fla.1992) (“We agree that where the legislature has set forth specific criteria for determining reasonable attorney’s fees to be awarded pursuant to a fee-authorizing statute, the trial judge is bound to use only the enumerated criteria.”). But see Daniels v. State Road Dep’t, 170 So.2d 846, 851 (Fla.1964) (“It is well settled that the determination of what is just compensation for the taking of private property for public use ‘is a judicial function that cannot be performed by the Legislature either directly or by any method of indirection.’ ” (quoting Spafford v. Brevard Cnty., 92 Fla. 617,110 So. 451, 455 (1926))).

In Pierpont v. Lee County, 710 So.2d 958, 960 (Fla.1998), our high court addressed the statutory scheme at issue here. Although it approved the notion that the legislature “may enact reasonable provisions to govern the award of attorney’s fees in condemnation actions,” it posited that there might be circumstances where the present statutory scheme is unconstitutional as applied. Id. at 960, 961. The court offered two such examples, neither of which applies here. Id. at 961 n. 2.

Benefits-based fees are not novel. Plaintiffs lawyers in the personal injury arena routinely use this method for setting fees. When this method is used, there is never a guarantee that the effective hourly compensation will equate to the market rate. Conversely, a benefits-based fee might yield a substantial hourly fee. Here, the statutory, benefits-based formula results in a $227,652.25 fee which amounts to a blended hourly fee for attorney and paralegal time of approximately $87. This fee does not appear patently unconstitutional. See Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 931 (Fla.2002) (fee of $50 per hour for services in capital appeal not unconstitutional).

The trial court identified two specific observations to support its conclusion that Appellant had “excessively litigated.” First, it observed that Appellant’s attorneys spent twice as much time deposing Appellees’ experts as did Appellees’ attorneys when they deposed Appellant’s witnesses. Even assuming that the additional time was unnecessary or abusive, Appel-lees never sought sanctions that would have been available to compensate them over and above the statutory fee. See, e.g., § 57.105(2), Fla. Stat. (2013) (when any action is taken during civil proceeding for purpose of delay, fees shall be awarded as damages); Fla. R. Civ. P. 1.280(c), 1.380(a)(4) (authorizing attorney’s fees as sanctions when seeking protective order against unduly burdensome or annoying discovery).

Second, the court observed that Appellant decided to use an expert witness regarding a new theory late in the litigation. The court identified this as its “primary reason” for concluding that Appellant engaged in “excessive litigation.” The trial court concluded that this decision caused a delay in the trial date and resulted in substantial efforts by Appellees’ attorneys to refute the theory. Apparently, the expert based his opinions on false factual assumptions, ultimately resulting in a successful effort by Appellees to have the testimony excluded before trial. Again, Appellees did not seek sanctions that might have been available. Nor did Ap-pellees avail themselves of the option of promulgating requests for admissions directed to the expert’s opinions, in which case it could have recovered additional fees for proving or disproving matters not admitted. See Fla. R. Civ. P. 1.380(c) (authorizing recovery of suit expenses, including attorney’s fees, for failure to admit matters in response to requests for admissions).

If, in fact, Appellant had engaged in “excessive litigation” tactics that required Appellees’ attorneys to spend additional time litigating this case, statutory and procedural mechanisms were in place to deal with that situation. Appellees’ attorneys did not avail themselves of those mechanisms. Instead, rather than targeting the specific purported misbehavior, quantifying the resulting expenses to Appellees and seeking additional fees for these purportedly abusive tactics, Appellees successfully convinced the trial court to scrap the entire fee formula as unconstitutional in favor of a fee based on reconstructed hours. This approach — and the resulting fee of $816,000 — was error.

Accordingly, we reverse the challenged judgment and remand this cause with instructions that the trial court enter judgment for $227,652.25. We certify to the Florida Supreme Court a question of great public importance, as follows:

IN AN EMINENT DOMAIN PROCEEDING, WHEN THE CONDEMNING AUTHORITY ENGAGES IN LITIGATION TACTICS CAUSING EXCESSIVE LITIGATION AND THE APPLICATION OF THE STATUTORY FEE FORMULA RESULTS IN A FEE THAT COMPENSATES THE LANDOWNER’S ATTORNEYS AT A LOWER-THAN-MARKET FEE, WHEN MEASURED BY THE TIME INVOLVED, IS THE STATUTORY FEE DEEMED UNCONSTITUTIONAL AS APPLIED, ENTITLING THE LANDOWNER TO PURSUE A FEE UNDER SECTION 73.092(2)?

REVERSED AND REMANDED; QUESTION CERTIFIED.

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

      . The legislature apparently reacted to the court’s concern by revising the statute in 1999 with the passage of section 73.015, Florida Statutes (2000). See Sarasota Cnty. v. Curry, 861 So.2d 1239, 1242 n. 3 (Fla. 2d DCA 2003) (noting that statutory revision resolved concerns regarding constitutionality of section 73.092).


author: LAGOA, J.

text:
    ROYAL CARIBBEAN CRUISES, LTD., Appellant, v. Byron COX, Appellee.
    No. 3D09-2712.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.

      Domingo C. Rodriguez; Hicks, Porter, Ebenfeld & Stein and Mark Hicks and Dinah Stein and Erik P. Bartenhagen, Miami, for appellant.
    William F. Fabra; Luis A. Perez; Elizabeth K. Russo, Miami, and Susan S. Lerner, for appellee.
    Before SHEPHERD, C.J., and WELLS, SUAREZ, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, and SCALES, JJ.
   ON MOTION FOR REHEARING EN BANC

LAGOA, J.

Royal Caribbean Cruises, Ltd. (“RCCL”) appeals an order awarding seaman Byron Cox attorney’s fees pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes (1997), following a jury verdict in his favor in an admiralty case. On August 22, 2012, we affirmed the order awarding fees, relying on Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992). RCCL seeks rehearing en banc, requesting that this Court recede from Modesto. We grant RCCL’s motion for rehearing en banc, withdraw our prior opinion and substitute the following in its place.

Cox filed the underlying action against RCCL to recover for injuries he sustained while employed aboard an RCCL vessel. He asserted claims for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness. Cox served an offer of judgment on RCCL pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79. RCCL moved to strike the offer of judgment, arguing that section 768.79 was inapplicable in this case because it conflicted with federal maritime law. In response, Cox cited Modesto, 614 So.2d at 520, which holds that there is no conflict between section 768.79 and federal maritime law. Following trial, the jury found in favor of Cox and he sought attorney’s fees based on the offer of judgment. The trial court agreed with Cox’s position, denied RCCL’s motion to strike, and found that Cox was entitled to attorney’s fees and costs. The trial court awarded Cox $245,856.87 in fees and costs, and this appeal ensued. On appeal, RCCL argues, as it did in the trial court, that the attorney’s fee award is impermissible as such award pursuant to Florida’s offer of judgment statute conflicts with maritime law. Recognizing that Modesto is on point, and that the prior panel was bound to follow it, RCCL requests that this Court recede from Modesto en banc and follow federal maritime law, which holds that attorney’s fees may not be awarded pursuant to state fee-shifting statutes in an admiralty case.

In Modesto, a seaman sought damages under the Jones Act and general maritime law for injuries he sustained aboard a Royal Caribbean ship. He filed a motion for attorney’s fees pursuant to the offer of judgment statute. The trial court denied the motion. On appeal, this Court reversed the trial court’s order, stating that

we find no conflict between Florida’s rules of law regarding offers of judgment and federal maritime law. In federal admiralty actions, an award of attorney’s fees as a component of maintenance and cure is traditionally within the equitable jurisdiction of the courts. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Awards of attorney’s fees made pursuant to Florida law regarding offers of judgment are intended to deter unnecessary litigation and encourage timely settlement of claims .... Because Florida’s rules relating to offers of judgment are an integral part of this state’s management of its courts’ proceedings and do not conflict with federal admiralty law, we reverse the order denying attorney’s fees and remand to the trial court for further proceedings.

Id. at 520 (footnote omitted). See also Juneau Tanker Carp. v. Sims, 627 So.2d 1280, 1232 (Fla. 2d DCA 1993) (citing Modesto without discussion in support of reversal of denial of attorney’s fees to seaman). Thus, the Court held that there was no conflict between our offer of judgment statute and federal maritime law; that attorney’s fees awarded as part of maintenance and cure are within the court’s equity jurisdiction; and that the statute serves to promote case settlement and prevent unnecessary litigation. Because we now hold that the application of the offer of judgment statute conflicts with and interferes with federal maritime law, we recede from Modesto.

Federal substantive maritime law governs in seaman cases brought in state court. See Norwegian Cruise Lines, Ltd. v. Zareno, 712 So.2d 791, 793 (Fla. 3d DCA 1998); Doles v. Koden Int’l, Inc., 779 So.2d 609, 611-12 (Fla. 5th DCA 2001). See also Carnival Corp. v. Carlisle, 953 So.2d 461, 464 (Fla.2007); Hall v. Royal Caribbean Cruises, Ltd., 888 So.2d 654, 654 n. 1 (Fla. 3d DCA 2004); Hopkins v. The Boat Club, Inc., 866 So.2d 108, 110-11 (Fla. 1st DCA 2004).

Federal maritime law follows the American Rule regarding attorney’s fees. See Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 841 (11th Cir.) (holding that the “consistent and continued application of the American Rule to maritime disputes has established the American Rule as a characteristic feature of substantive maritime law”), cert. denied, — U.S. —, 130 S.Ct. 3505, 177 L.Ed.2d 1091 (2010). The American Rule provides that ordinarily each party must pay its own attorney’s fees, absent an exception such as a federal statute, an enforceable contractual provision providing for fees, or a finding that the non-prevailing party engaged in bad-faith conduct. See Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir.1980); Hilton Oil Transp. v. Oil Transp. Co., S.A., 659 So.2d 1141, 1153 (Fla. 3d DCA 1995). None of the exceptions are present in this case. There is no pertinent federal attorney’s fee statute, contractual provision, or finding that RCCL engaged in bad-faith conduct.

Here, the trial court awarded attorney’s fees pursuant to section 768.79, Florida’s offer of judgment statute. This substantive state law mandates an attorney’s fee award to the prevailing party upon that party’s compliance with the statute’s requirements when the non-prevailing party has rejected an offer of judgment. See Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 79-80 (Fla.2012) (holding that section 768.79 is substantive for both constitutional and conflict of law purposes). “[Sjtate courts may entertain maritime causes of action and may apply state law to supplement federal maritime law if the state law does not conflict with federal law or interfere with uniformity.... State law will not apply if: (1) the state law is found to conflict with substantive maritime law, or (2) the state law affects remedies peculiar to maritime law. In other words, states may apply state law to supplement maritime law if that application does not flatly contradict maritime law.” Zareno, 712 So.2d at 793. See also Carlisle, 953 So.2d at 464; Frango v. Royal Caribbean Cruises, Ltd., 891 So.2d 1208,1210 (Fla. 3d DCA 2005).

A review of the pertinent case law reveals that, in addition to Florida’s federal court decisions holding that section 768.79 may not be applied in maritime cases, Garan, Inc. v. M/V Aivik, 907 F.Supp. 397, 400-01 (S.D.Fla.1995) (expressly rejecting Modesto and holding that application of Florida’s offer of judgment statute in an admiralty case would “frustrate the need for uniformity in the admiralty jurisdiction and is preempted by federal maritime common law”); Tai-Pan, Inc. v. Keith Marine, Inc., 1997 WL 714898, at *10 (M.D.Fla. May 13, 1997); see also Tampa Port Auth. v. M/V Duchess, 65 F.Supp.2d 1279,1296-97 (M.D.Fla.1997), amended, 65 F.Supp.2d 1299, affirmed, 184 F.3d 822 (11th Cir.1999) (table), other federal courts have considered whether state fee-shifting statutes may supplement federal maritime law and have consistently concluded that application of state fee-shifting statutes conflicts with maritime law and violates the important maritime principle of uniformity. See Texas A&M Research Found, v. Magna Transp. Inc., 338 F.3d 394, 405-06 (5th Cir.2003); Southworth Mach. Co. v. F/V Corey Pride, 994 F.2d 37, 41 (1st Cir.1993); Sosebee v. Rath, 893 F.2d 54, 56-57 (3d Cir.1990). See also Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 840-41 (11th Cir.) (holding that a Georgia fee-shifting statute conflicts with maritime law, but finding it unnecessary to reach the uniformity issue as “principle that each party bears its own fees is a characteristic of maritime law”), cert. denied, — U.S. —, 130 S.Ct. 3505, 177 L.Ed.2d 1091 (2010). Accordingly, it is clear that the federal courts applying federal maritime law reject the application of state fee-shifting statutes.

Based on the above-cited cases, we agree that Florida’s offer of judgment statute conflicts with the general rule of federal maritime law that parties pay their own fees absent an exception, not applicable here. See Sosebee, 893 F.2d at 56-57; Gar an, Inc., 907 F.Supp. at 401.

Although we recognize that we are not bound by the decisions of lower federal courts, see Carnival Corp. v. Carlisle, 953 So.2d 461, 465 (Fla.2007), we follow the Florida Supreme Court’s admonition that “because this is a maritime case, [the Florida Supreme] Court and the Florida district courts of appeal must adhere to the federal principles of harmony and uniformity when applying federal maritime law.” Id. at 470. See also Frango v. Royal Caribbean Cruises, Ltd., 891 So.2d 1208, 1211 (Fla. 3d DCA 2005) (finding that “one of the aims of maritime law is to promote uniformity in the exercise of admiralty jurisdiction [and that] [t]his aim is best advanced by following the majority rule”).

Accordingly, in the interests of conformity in exercising admiralty jurisdiction, we recede from Modesto’s holding to the extent it is inconsistent with this opinion, and hold that Florida’s offer of judgment statute was erroneously applied in the instant case. We, therefore, reverse the portion of the trial court’s order awarding Cox attorney’s fees and remand for proceedings consistent with this opinion

REVERSED AND REMANDED.

      . RCCL only seeks reversal of the portion of the order awarding attorney’s fees.

      . This Court has affirmed the judgment on the jury verdict in favor of Cox. Royal Caribbean Cruises, Ltd. v. Cox, 60 So.3d 418 (Fla. 3d DCA 2011).

      . As to whether, as Gar an suggests, Modesto misconstrues Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), Modesto does not explain the basis for its reliance on Vaughan. Vaughan permitted the award of attorney’s fees in a maintenance and cure action, but the Court highlighted the fact that the ship owners "were callous in their attitude” and that "[a]s a result of that recalcitrance, [the seaman] was forced to hire a lawyer and go to court to get what was plainly owed to him under laws that are centuries old.” The Vaughan Court further concluded that the ship owners were "willful and persistent” in their failure to pay maintenance. Id. at 530-31. Although the Modesto court appears to suggest that Vaughan supports a fee award absent a finding of bad faith, the case law is to the contrary. See F.D. Rich Co. v. U.S. for Use of Indus. Lumber Co., 417 U.S. 116, 129-30, 129 n. 17, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1127 (11th Cir.1995) (citing Nichols v. Barwick, 792 F.2d 1520, 1524 (11th Cir.1986)); Hilton Oil Transp. v. Oil Transp. Co., S.A., 659 So.2d 1141, 1153 (Fla. 3d DCA 1995).

      . We further note that our sister court in Nicoll v. Magical Cruise Co., 110 So.3d 98, 99 (Fla. 5th DCA 2013), reached the same conclusion and held that "[u]nder federal admiralty law, the prevailing party is not entitled to attorneys' fees absent circumstances not applicable here, even when a state statute establishes an entitlement to fees.”


author: TAYLOR, J.

text:
    Paul POMFRET and PDP Capital, LLC, Appellants, v. John ATKINSON, Appellee.
    No. 4D09-1708.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.

      Alan B. Rose, L. Louis Mrachek, Roy E. Fitzgerald and Stefanie R. Shelley of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellants.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, Bernard A. Lebedeker of Burman, Critton, Luttier & Coleman, West Palm Beach, and Robert S. McIntosh of Adorno & Yoss, LLP, Fort Lauderdale, for appellees.
   ON REMAND FROM THE FLORIDA SUPREME COURT

TAYLOR, J.

This case is before the court on remand from the Florida Supreme Court in Pomfret v. Atkinson, 131 So.3d 719 (Fla.2013). The Florida Supreme Court quashed our court’s original decision, see Pomfret v. Atkinson, 53 So.3d 413 (Fla. 4th DCA 2011), and remanded for further proceedings in light of its decision in DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013). Del- Monico held that an absolute privilege does not extend to alleged defamatory-statements made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness. We conclude that the statements of appellee, who was countersued for defamation in his underlying suit for payment on promissory notes, were not absolutely privileged. However, the statements were protected by a qualified privilege, which the appellants failed to overcome. We therefore affirm the final judgment.

The underlying dispute between Paul Pomfret and John Atkinson arose out of Pomfret’s failure to repay Atkinson a süm of over $2 million owed on two promissory notes. When Atkinson demanded repayment, Pomfret refused and claimed that the money was not due. Atkinson then sued Pomfret and PDP Capital, LLC, for fraud in the inducement, conversion, breach of fiduciary duty, and payment under the two promissory notes. The gravamen of Atkinson’s lawsuit was that Pom-fret defrauded him by falsely representing that the funds he advanced under the notes would be invested and the profits split 50/50. Pomfret and PDP Capital brought counterclaims for defamation and breach of fiduciary duty.

At trial, Atkinson moved for a directed verdict on the defamation counterclaim related to Atkinson’s conversations with Dominic Cannavo, a potential witness whom Pomfret named in discovery. During the litigation, Atkinson allegedly told Cannavo, among other things, that Pomfret was a “crook.”

Atkinson testified that while he did initiate the call with Cannavo, his purpose was to tell Cannavo that he should prepare for the upcoming deposition. Atkinson, who was aware that Cannavo had loaned Pom-fret $100,000, testified that he also wanted to advise Cannavo that if Pomfret “owes you $100,000, you should call him and get it.”

The legal basis for Atkinson’s motion for directed verdict on the defamation claim was that Atkinson’s statements to Cannavo were absolutely privileged under the litigation privilege. The trial court granted Atkinson’s motion for directed verdict on this issue, finding that any statements made after the lawsuit was filed were covered by the litigation privilege.

The jury found in Atkinson’s favor on every issue, and the trial court entered judgment accordingly. Pomfret appealed, raising several issues, including the directed verdict on the absolute privilege defense. We rejected all of Pomfret’s arguments, and, on rehearing, issued a per curiam affirmance with a citation to Del-Monico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010). See Pomfret, 53 So.3d at 413.

In our decision in DelMonico, we held that the rule of absolute immunity, which extends to parties, judges, witnesses, and counsel involved in a judicial proceeding, shields an attorney’s statements during an interview of a potential witness if the statements bear some relation to the proceeding. 50 So.3d at 7.

However, the Florida Supreme Court quashed our DelMonico decision and held that Florida’s absolute privilege does not extend to alleged defamatory statements made by an attorney “during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit.” 116 So.3d at 1209,1218, 1220. The supreme court explained that Florida’s absolute privilege “was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney” in these circumstances. Id. at 1208. Instead, a qualified privilege applies “to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.” Id. To overcome a qualified privilege, the- plaintiff must establish express malice. Id. That is, the plaintiff must ‘establish by a preponderance of the evidence that the defamatory statements were false and uttered with common law express malice — i.e., that the defendant’s primary motive in making the statements was the intent to injure the reputation of the plaintiff.’ ” Id. at 1220 (quoting Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla. 1992)).

“Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege is destroyed.” Nodar v. Galbreath, 462 So.2d 803, 811 (Fla.1984). But if the occasion of the communication is privileged because of a proper interest to be protected, and the speaker is motivated by a desire to protect that interest, the speaker does not forfeit the privilege merely because he or she also in fact feels hostility or ill will toward the plaintiff. Id. at 811— 12. “The incidental gratification of personal feelings of indignation is not sufficient to defeat the privilege where the primary motivation is within the scope of the privilege.” Id. at 812.

Here, Atkinson’s statements bore some relation to or connection with the subject of inquiry in the underlying lawsuit. The statements were therefore protected by a qualified privilege. Furthermore, Pomfret failed to establish by a preponderance of the evidence that the statements were false and uttered with express malice, as required by DelMonico. Pomfret did not show that Atkinson was motivated primarily by a desire to harm Pomfret’s reputation, as opposed to being motivated by the legitimate purpose of warning Cannavo to get his money back from Pomfret. Moreover, any error in entering the directed verdict in favor of Atkinson on the issue of absolute immunity was harmless in light of the jury’s finding that Pomfret committed fraud. See Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011) (“[Hjarmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment.”). The jury’s verdict confirmed that Atkinson’s statements were not false.

In short, Pomfret’s evidence was insufficient as a matter of law to carry the burden of proving that the statements were false and made with express malice. We therefore affirm the final judgment.

Affirmed.

CIKLIN and FORST, JJ., concur.

      . Atkinson testified, however, that he did not tell Cannavo how to go about his preparations.


author: FERNANDEZ, J.

text:
    William SKINNER, Appellant/Petitioner, v. The STATE of Florida, Appellee/Respondent.
    No. 3D13-1799.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.
    Rehearing Denied April 9, 2014.

      Deana K. Marshall, Riverview, for appellant/petitioner.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee/respondent.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING, CERTIFICATION OF CONFLICT AND CLARIFICATION

FERNANDEZ, J.

We deny the motion for rehearing but withdraw the original opinion and substitute this opinion in its place for purposes of clarification. We deny the motion for certification of conflict.

William .Skinner seeks habeas corpus relief on various grounds, one of which warrants reversal. We grant the petition and remand the cause for a new trial on the attempted manslaughter counts only because (1) the attempted manslaughter by act instruction read to the jury was the pre-Williams instruction that the Florida Supreme Court determined to be per se fundamental error for which Skinner’s trial counsel raised no objection below, and because (2) Skinner’s appellate counsel failed to raise the issue on appeal.

A jury convicted Skinner of attempted second-degree murder with a firearm, one step removed from the lesser included offense of attempted manslaughter by act. It also convicted Skinner of burglary while armed with a firearm. Skinner filed a direct appeal, and this Court affirmed Skinner’s conviction and sentence.

To grant habeas relief based on ineffective assistance of appellate counsel grounds, this Court must apply a two-prong analysis. First, the petitioner must show that the alleged omissions are of such magnitude as to constitute serious error or a substantial deficiency falling measurably outside the range of professionally acceptable performance. See Con-nor v. State, 979 So.2d 852, 869 (Fla.2007). Second, the.petitioner must show that the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id.

This Court recognizes .that appellate counsel is not required to anticipate changes in the law, however “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006). See also Dill v. State, 79 So.3d 849, 851 (Fla. 5th DCA 2012); Lopez v. State, 68 So.3d 332, 334 (Fla. 5th DCA 2011). During the pendency of Skinner’s appeal in this Court, the issue of whether the Florida jury instruction on attempted manslaughter by act constituted fundamental error had not yet been decided. The Florida Supreme Court ultimately decided the issue on review of Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) and Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), quashed, 123 So.3d 23 (Fla.2013), both of which were in direct conflict. The Florida Supreme Court approved the First District’s decision in Lamb, and quashed Williams. Williams, 40 So.3d at 72.

Skinner correctly argues that he is entitled to relief on the attempted manslaughter jury instruction issue. The trial court committed fundamental error when it gave the standard jury instruction on attempted manslaughter by act. See Williams v. State, 123 So.3d 23 (Fla.2013). Furthermore, Skinner’s appellate counsel’s performance was deficient because he failed to raise the jury instruction- issue and failed to provide this Court with notice of the conflict between the Florida District Courts of Appeal. Lopez, 68 So.3d at 334; Dill, 79 So.3d at 851. This constituted a serious error and a substantial deficiency that fell outside the range of professionally acceptable performance. Appellate counsel’s failure compromised the appellate process to such extent that it undermined this Court’s confidence in the correctness of this Court’s decision in Skinner’s direct appeal.

Skinner, however, is not entitled to a new trial on the burglary while armed with a firearm count. The law in Florida does not support a new trial on all counts, when reversal is based on ineffective assistance of appellate counsel. See Rangel v. State, 132 So.3d 844 (Fla. 2d DCA 2013); Evans v. State, 985 So.2d 1105 (Fla. 3d DCA 2007); Rogers v. State, 935 So.2d 639 (Fla. 1st DCA 2006). As such, Skinner only gets a new trial on the two attempted manslaughter counts.

We therefore grant Skinner’s petition for writ of habeas corpus on this basis, decline to address all other issues raised in the petition, and remand this case for a new trial with respect to the attempted manslaughter counts only.

Petition granted; case remanded.

      . Williams v. State, 123 So.3d 23 (Fla.2013).

      . Skinner v. State, 100 So.3d 192 (Fla. 3d DCA 2012).