author: LAMBERT, J.

text:
    Kendall YOUNG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1610
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Kendall Young, a juvenile offender, challenges the constitutionality of the ten-year mandatory minimum provision of a ten-year prison sentence that he received for committing the crime of robbery with a firearm, a first-degree felony punishable by up to life imprisonment. Young does not contend that a ten-year prison sentence by itself is unconstitutional, but asserts that pursuant to the United States Supreme Court opinions in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the imposition of any mandatory minimum sentence upon a juvenile offender violates the Eighth Amendment’s prohibition against cruel and unusual punishment because such a sentence precludes the trial court from making any individualized sentencing considerations and fails to recognize that juveniles have diminished culpability and greater prospects for reform. Young also raises a second argument, not presented to the trial court, that Florida’s juvenile sentencing statutes, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014), “supersede” the provisions of section 775.087(2), that require the imposition of the ten-year mandatory minimum prison sentence in this ease. We disagree with Young’s arguments and, therefore, affirm his sentence.

In Graham, the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids a sentence of life in prison without parole for a juvenile offender who did not commit a homicide. 560 U.S. at 74, 130 S.Ct. 2011. Two years later, in Miller, the Court held that a mandatory life sentence without the possibility of parole for juvenile offenders who commit homicides violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 132 S.Ct. at 2465. In response to both Graham and Miller, the Florida Legislature enacted the aforementioned juvenile sentencing statutes to comply with both cases. Notably, while section 921,1401 requires that the trial court consider certain designated factors relevant to the offense and to the defendant’s youth and attendant circumstances in determining whether to impose a sentence of life imprisonment or a term of years equal to life imprisonment, the statutes do not prohibit juvenile offenders from receiving lengthy prison sen-fences. See Peterson v. State, 193 So.3d 1034, 1036 (Fla. 5th DCA 2016). What “they do require [is] that the juvenile receives a review hearing after a designated number of years based on the crime -for which the juvenile was convicted to allow the sentencing court the discretion to modify the sentence if the juvenile offender has demonstrated sufficient maturity and reform.” Id. Depending upon the crime committed, the earliest that the Legislature has provided for a judicial review hearing for a juvenile offender serving a lengthy sentence is fifteen years. See § 921.1402(2)(c), Fla. Stat. (2014).

Our review of the constitutionality of a sentence is de novo. Abrams v. State, 971 So.2d 1033, 1035 (Fla. 4th DCA 2008) (citing Russ v. State, 832 So.2d 901, 906 (Fla. 1st DCA 2002)). We reject the argument that the ten-year mandatory minimum sentence imposed in this case violates the Eighth Amendment as being inconsistent with Miller’s' direction that a judge must have the flexibility to fashion the appropriate sentence for a juvenile offender, allowing for the consideration of the juvenile’s age. 132 S.Ct. at 2460, 2466-67. Young was adjudicated guilty of a crime for which he faced a maximum sentence of up to life imprisonment. Because Young was a juvenile offender, he was entitled to a separate sentencing hearing pursuant to section 921.1401(1) to determine if a “term of life imprisonment” is an appropriate sentence. Young, in fact, received this individualized sentencing hearing. He presented testimony from his two grandmothers and from an aunt, with each providing the trial court with evidence as to Young’s background, intellectual capacity, family and- home environment, maturity, and his ability for rehabilitation. Young’s counsel argued for-- leniency, reminding the court -that, for sentencing purposes, juveniles should be treated differently’than adults.

We find no constitutional error in the trial. court’s sentence. The court clearly allowed for the consideration of Young’s age in fashioning its sentence, as evidenced by Young receiving the lowest permissible sentence for his crime. Although we acknowledge that the- ten-year mandatory minimum sentence required here does limit, to some extent, the discretion of a trial court in sentencing a juvenile offender, we do not view this modest limitation, as a constitutional infirmity.

“Reviewing courts ... should grant substantial deference to the broad authority that legislators necessarily possess in determining the types and limits of punishments for crimes .... ” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). “[Tjhe length of a sentence actually imposed for violation of the criminal law is generally a matter of legislative prerogative.” Morrow v. State, 856 So.2d 1043, 1044 (Fla. 5th DCA 2003) (citing Hale v. State, 630 So.2d 521 (Fla. 1993)). In sentencing juvenile offenders, the Florida Supreme Court ruled that the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile’s sentence lacks a review mechanism that does not afford him a meaningful opportunity to obtain early release during his or her natural life based on demonstrated maturity and rehabilitation. Henry v. State, 175 So.3d 675, 679-80 (Fla. 2015). By its juvenile sentencing statutes, the Florida Legislature determined that, depending on'the crime .committed and the length of the prison sentence, juvenile offenders are entitled to a review hearing and an opportunity for early release after serving twenty-five, twenty, or fifteen years, but that a juvenile offender serving any lesser sentence 'is not entitled to a review hearing. The Legislature also determined that a ten-year minimum mandatory sentence is the lowest sentence that a trial judge in Florida may impose for the crime of robbery if' the defendant was in actual possession of a firearm in the commission of the crime. We see no reason to question or second-guess the legislators’ judgment that a ten-year prison sentence imposed upon a juvenile offender does not warrant a review hearing and that the type of crime Young committed and the manner in which he committed it, even as a juvenile, mandates the punishment imposed here. Unlike the juvenile offenders in Graham and Miller, who were each serving life sentences with no possibility for early release, Young will be released from prison and will re-enter society when he is- twenty-seven years old. The trial court, by its sentence, has provided Young with a “meaningful opportunity” for early release at a young age.

As to Young’s second argument, we agree with the' State that the issue of whether the 2014 enactment of the juvenile sentencing statutes impliedly repealed the mandatory minimum sentencing requirements in this case under section 775.087(2) has not been preserved for review. It is generally inappropriate for a party to raise an issue for the first time on appeal without first presenting it to the trial court. Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2006) (citing Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999)). “In order to -be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Id. (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985)).

Moreover, we find that even if this issue had been preserved for 'review, it lacks merit. First, the repeal of a statute by .implication is not favored. Newell v. Fla. Dep’t of Corr., 42 Fla. L. Weekly D538, 214 So.3d 721, 2017 WL 838818 (Fla 1st DCA Mar. 3, 2017) (citing Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980)). Second, “[t]here is a general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than having the former repealed by implication.” Id. (quoting Oldham v. Rooks, 361 So.2d 140, 143 (Fla. 1978)). Finally, although an earlier statute can be impliedly repealed by a later statute, the enactment of the later statute does not operate to repeal a prior statute by implication unless such is clearly the legislative intent. Am. Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524, 529 (1938).

Here, there is no clear indication that when it enacted the juvenile sentencing laws in 2014, the Florida Legislature intended to affect the ten-year mandatory minimum provision of section 775.087(2) applicable in this case. A more plausible interpretation is that the Legislature, by requiring that a juvenile offender’s prison sentence be at least fifteen years before the offender is entitled to a judicial review hearing and possible early release, did not intend to repeal or otherwise implicate the ten-year mandatory minimum provisions of section 775.087(2) applicable in this case.

AFFIRMED.

TORPY, J., and JACOBUS, B.W., Senior Judge, concur.

      . § 812.13(2)(a), Fla. Stat. (2014).

      . Young has not challenged a separate, concurrent ten-year prison sentence that he received in this case for committing the crime of possession of a firearm by a person found to have committed a delinquent act.

      . Graham specifically recognized that juvenile offenders could remain imprisoned for life, but held that the Eighth Amendment prohibited states from determining'at the outset that these offenders will never be fit to re-enter society. 560 U.S. at 75, 130 S.Ct. 2011.

      . And as further evidenced by the fact that, at the time Young committed this crime, he was on probation on a separate charge of robbery with a firearm.

      . § 921.1402(2)(a)-(b), Fla. Stat. (2014).

      . § 921.1402(2)(d), Fla. Stat. (2014).

      . § 921.1402(2)(c), Fla. Stat. (2014).

      . § 775.087(2)(a), Fla. Stat. (2014).


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    U.S. BANK, N.A., as Trustee FOR RFMSI 2006-S10, Appellant, v. Robert A. ADAMS, Sheilah C. Adams and Gulf and Bay Club Condominium Association, Inc., Appellees.
    Case No. 2D15-4202
    District Court of Appeal of Florida, Second District.
    Opinion filed May 12, 2017

      Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, and Nicholas A Brown of Carlton Fields Jorden Burt, P.A., Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm of Tampa, for Appellees Robert A. Adams and Sheilah C. Adams.
    No appearance for Appellee Gulf and Bay Club Condominium Association, Inc.
   SILBERMAN, Judge.

In this residential foreclosure action, U.S. Bank seeks review of a final summary judgment in favor of the defendants, Robert and Sheilah Adams. The summary judgment was based on the Adamses’ argument that U.S. Bank failed to comply with the condition precedent of giving notice pursuant to section 559.715, Florida Statutes (2013), of the Florida Consumer Collection Practices Act. We reverse because section 559.715 does not create a condition precedent. In so doing, we reject two alternate bases for affirmance presents ed by the Adamses regarding U.S. Bank’s alleged failure to comply with a condition precedent in paragraph 22 of the mortgage.

In the operative complaint, U.S. Bank alleged that all conditions precedent had been fulfilled or had occurred. In their answer, the Adamses alleged that U.S. Bank failed to give notice that the debt had been assigned to U.S. Bank as required by section 559.715 and failed to give notice of default as required by paragraph 22 of the mortgage. The Adamses eventually moved for summary judgment on these bases.

In support of these arguments, the Adamses attached affidavits in which each of them asserted as follows:

The mortgage in this case required that the bank give me 30 days’ notice of any alleged default and an opportunity to cure such default prior to accelerating the balance alleged to be due and prior to initiating any foreclosure lawsuit. The notice was supposed to include specific terms outlined in paragraph 22 of the mortgage. I have never received any such notice from Plaintiff (or anyone purporting to act [on] Plaintiffs behalf). I have never been given any default or given any notice of any alleged default on my mortgage or an opportunity to cure said default.
I never signed a Note or Mortgage with Plaintiff, and it did not give me written notice that this debt was allegedly assigned to it, nor did it even provide me with the required notice of assignment 30 days prior to filing this lawsuit....

(Footnote omitted.)

U.S. Bank filed a memorandum in opposition to the motion for summary judgment in which it argued that section 559.715 does not create a condition precedent to filing a mortgage foreclosure action. As to paragraph 22, U.S. Bank asserted it had complied with the mortgage’s notice requirement by mailing a notice of default to the Adamses, and it filed a copy of the notice with its memorandum. U.S. Bank alternatively argued that the Adamses’ affidavits were insufficient to establish the absence of an issue of material fact regarding whether U.S. Bank gave notice of default. U.S. Bank asserted that the notice of default was subject to a “mailbox rule” in paragraph 15 which deems notice to be given when mailed. According to U.S. Bank, the Adamses’ affidavits did not refute its assertion in the complaint that it complied with all conditions precedent because the affidavits failed to establish that the requisite notice had not been mailed.

The hearing on the Adamses’ summary-judgment motion was brief. The Adamses argued that section 559.715 created a condition precedent and that U.S. Bank had not given the required notice. In response, U.S. Bank argued that the Adamses’ affidavits were legally insufficient to establish their entitlement to summary judgment because they had not established that U.S. Bank failed to send any required notice; rather, they simply established that they had not received such notice. At the conclusion of the hearing, the trial court granted the motion for summary judgment and dismissed the case. U.S. Bank filed a motion for rehearing reiterating the arguments made in its memorandum and at the hearing. The court, denied the motion.

On appeal, U.S. Bank correctly observes that this court has recently determined that the notice provision in section 559.715 does not create a condition precedent to foreclosure. See Brindise v. U.S. Bank N.A., 183 So.3d 1215, 1221 (Fla. 2d DCA), review denied, No. SC16-300, 2016 WL 1122325 (Fla. Mar. 22, 2016). Consistent with Brindise, the Adamses’ defense of lack of notice under section 559.715 was legally insufficient to support a summary judgment. See Wells Fargo Bank, N.A. v. Guess, 213 So.3d 1014, 1015, 2017 WL 421933 (Fla. 2d DCA Feb. 1, 2017); see also Young v. Nationstar Mortg., LLC, 205 So.3d 790, 791 (Fla. 2d DCA 2016).

The Adamses assert that U.S. Bank failed to preserve this argument for review by not adequately addressing it at the summary judgment hearing. We disagree. Although U.S. Bank focused its argument at the hearing on the sufficiency of the Adamses’ affidavits and made limited mention of section 559.715, it specifically argued that section 559.715 does not create a condition precedent in its memorandum in opposition to the Adamses’ motion for summary judgment and in its motion for rehearing. At the summary judgment hearing, the Adamses addressed this issue and attempted to rebut it. Thus, U.S. Bank’s argument against the application of section 559.715 was before the court, and we reject the Adamses’ contention that U.S. Bank failed to preserve the issue.

The Adamses raise two alternate bases for affirmance under the "tipsy coachman” doctrine which “allows an appellate court to affirm a trial court decision that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’” City of Clearwater v. Sch. Bd. of Pinellas Cty., 905 So.2d 1051, 1057 (Fla. 2d DCA 2005) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999)). First, the Adamses argue that they were entitled to summary judgment based on U.S. Bank’s failure to give notice of default as required by paragraph 22 of the mortgage. However, this court has recently held that affidavits materially indistinguishable from the Adamses’ were insufficient to establish entitlement to summary, judgment based on the failure to give notice under paragraph 22. See JPMorgan Chase Bank, N.A. v. Ostrander, 201 So.3d 1281, 1283 (Fla. 2d DCA 2016),

Second, on appeal the Adamses argue .for the first time that the notice of default did not substantially comply with paragraph 22’s requirement that it apprise the borrowers a “sale” may result from the failure to cure the default. Paragraph 22 of the mortgage provides, in pertinent part, as follows:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by .judicial proceeding and sale of the Property.

(Emphasis added.) The pertinent part of the. notice provides, “Once acceleration has occurred, we may take steps to terminate your ownership in the property by a foreclosure proceeding, which could result, in Lender or another person acquiring ownership. of the property.” <

We conclude that this 'notice was sufficient to inform the Adamses that their failure to cure the default could result in foreclosure despite its failure to state that the property might be sold. See Deutsche Bank Nat’l Trust Co. v. Fairbanks,212 So.3d 490, 491 (Fla. 2d DCA 2017) (“The failure to specify that foreclosure could result in a sale was a minor variation from the language in paragraph twénty-two that did not ‘go[ ] to thé essence of the parties’ bargain.’ ” (alteration in original) (quoting Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 15 (Fla. 2d DCA 2015))); Guess, 213 So.3d at 1015, 42 Fla. L. Weekly at D285 (“Although the default letter does not explicitly state that the property might be sold, the letter unambiguously complies with all other requirements of paragraph 22.”).

In summary, the Adamses failed to establish entitlement to summary judgment based on U.S. Bank’s alleged failure to give notice under- section 559.715 because giving notice under that section is not. a condition precedent to foreclosure. We are not persuaded that affirmance is nonetheless required based on the Adamses’ paragraph 22 arguments. We therefore reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Nicholas Denole MARSH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3566
    District Court of Appeal of Florida, Second District.
    Opinion filed May 12, 2017

      Howard L. Dimmig, II, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Nicholas Denole Marsh appeals his judgment and sentences for one count of felony battery and one count of battery on a licensed security officer. He argues that his dual convictions for these two offenses violate the double jeopardy clauses of the United States and Florida Constitutions, that the evidence was insufficient to sustain a conviction for battery on a licensed security officer, and that the trial court erred in denying his motion for judgment of acquittal on the count for battery on a licensed security officer.

The State concedes both that the evidence was insufficient to sustain the conviction for battery-on a licensed security officer because the evidence did not establish that the victim was wearing a -uniform as described in section 784,07(2)(b), Florida Statutes (2014), and that Mr. Marsh’s resultant dual convictions violate double jeopardy, We accept the State’s concession as to both issues. Were we concerned solely with the sufficiency of the evidence as to the uniform element of the charge for battery on a licensed security officer, we would reverse and remand with instructions to conyict Mr. Marsh of simple battery instead of battery on a licensed security officer. See § 924.34, Fla. Stat. (2016); Rodriguez v. State, 964 So.2d 833, 838 (Fla. 2d DCA 2007) (holding that although the evidence did establish the lesser included offense of simple battery, the evidence “did not prove that there was( an unlawful battery on a law enforcement officer under section 784.07” and remanding with instructions for the trial court to adjudicate the defendant guilty of simple battery). Because convicting Mr. Marsh of both felony battery and simple battery for the same act would violate double jeopardy—as the State correctly concedes—we can affirm only the felony battery conviction. See Harris v. State, 111 So.3d 922, 925 (Fla. 1st DCA 2013) (reversing a conviction for simple battery because the defendant’s felony battery and simple battery convictions arose from the same acts and because felony battery “wholly subsumes battery”); see also § 775.021(4), Fla. Stat. (2014). Accordingly, we affirm Mr. Marsh’s judgment and sentence for felony battery, reverse his judgment and sentence for battery on a licensed security officer, and remand the case to the trial court with instructions to vacate the judgment and" sentence for battery on a licensed security officer.

Affirmed in part; reversed in part; remanded.

CASANUEVA, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    Jacqueline SMIT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5057
    District Court of Appeal of Florida, Second District.
    Opinion filed May 12, 2017
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and SLEET, JJ., Concur.


text:
    Nicholas S. HILL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-211
    District Court of Appeal of Florida, Second District.
    Opinion filed May 12, 2017
   PER CURIAM.

Affirmed.

NORTHCUTT, CRENSHAW, and BLACK, JJ., Concur.


text:
    Michael AGUADO, Appellant, v. Allen MILLER, Appellee.
    CASE NO. 1D16-4589
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017.
    Rehearing Denied May 31, 2017

      Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, and Adrian R. Bridges of Michles & Booth, P.A., Pensacola, for Appellant.
    Elizabeth A. Parsons and Megan Marie Hall of Wilson, Harrell, Farrington, Ford, Wilson, Spain & Parsons, P.A., Pensacola, for Appellee.
   PER CURIAM.

Appellant, the plaintiff below, seeks review of an order denying his motion for attorney’s fees based on an unaccepted proposal for settlement. The trial court denied the motion based on its determination that the proposal was invalid because' it did not strictly, comply with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 in two respects: (1) it did not state whether attorney’s fees were part of the claim to be settled, and (2) it did not state the amount offered to settle a claim for punitive damages. We reverse based on Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So.3d 391 (Fla. 2016).

In Kuhajda, the Court held that “if attorney’s fees are not sought in the pleadings an offer of settlement is not invalid for failing to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim.” Id. at 393. This holding squarely rejects the first reason that the trial court found Appellant’s proposal for settlement to be invalid. It likewise undermines the second reason because, to paraphrase the district court decision approved by the Court in Kuhajda, it would make no sense to require the offeror to state in its proposal for settlement that the offer does not include punitive damages when the plaintiff did not claim an entitlement to them and could not recover them because of the failure to plead. See id. at 396 (quoting Bennett v. Am. Learning Sys. of Boca Delray, Inc., 867 So.2d 986, 988-89 (Fla. 4th DCA 2003)).

Here, .Appellant did not seek punitive damages in his complaint. Accordingly, although there would have been no harm in Appellant including a statement in his proposal for settlement indicating that no portion of the amount offered was for punitive damages, the absence of such a statement does not render the otherwise unambiguous proposal invalid. See Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002) (“We conclude that the ‘if any’ language of subsection (E) requires a proposal for settlement to include terms for settlement of a punitive damage claim only when the pleadings contain a pending claim for punitive damages. In the absence of such a claim, the rule does not require a party to include needless ‘not applicable’ language in the proposal.”).

Based on Kuhajda (and because we find no merit in Appellee’s “tipsy coachman” arguments for affirmance), we reverse the order denying Appellant’s motion for attorney’s fees and remand for the trial court to determine the amount of the fee award.

REVERSED and REMANDED with directions.

WETHERELL, OSTERHAUS, and MX THOMAS, JJ„ CONCUR.

      . The trial court did not have the benefit of Kuhajda when it ruled on Appellant’s fee motion, and its ruling was compelled by then-controlling precedent from this court that was quashed in Kuhajda.

      2. Fla. R. Civ. P. 1.442(c)(2)(E) ("A proposal [for settlement] shall ... state with particularity the amount proposed to settle a claim for punitive damages, if any.”) (emphasis added); see also § 768.79(2)(c), Fla. Stat. (“An offer [of settlement] must ... [s]tate with particularity the amount offered to settle a claim for punitive damages, if any.'') (emphasis added).


author: BILBREY, J.

text:
    LANDMARK AT CRESCENT RIDGE LP, Petitioner, v. EVEREST FINANCIAL, INC., a California corporation, Respondent.
    CASE NO. 1D16-4532
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017

      Susan E. Trench of Arnstein & Lehr LLP, Miami; for Petitioner.
    Beverly A. Pohl, Peter M. Goldman, and Joseph H. Picone of Broad and Cassel LLP, Fort Lauderdale, for Respondent.
   BILBREY, J.

Landmark at Crescent Ridge, L.P.', one of six defendants in an action seeking specific performance and, alternatively, monetary damages for an alleged breach of a contract, petitions this Court for cer-tiorari review of the trial court’s order denying the motion to dissolve lis pendens filed upon Landmark’s real property. Because the petition fails to show that the trial court’s order causes irreparable harm, we dismiss the petition.

As stated by the Florida Supreme Court, “before certiorari can be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that'cannot be corrected on appeal, otherwise temed ;as irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 351 (Fla. 2012); see also AVCO Corp. v. Neff, 30 So.3d 597, 604 (Fla. 1st DCA 2010) (denying certiorari review of trial court’s ruling on affirmative defense of statute of repose and statute of limitations because such erroneous rulings “can be corrected on appeal from a final order.”). “Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the. essential requirements of law.” Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 405 (Fla. 2013) (citing Williams v. Oken, 62 So.3d 1129, 1132-33 (Fla. 2011)).

Landmark at Crescent Ridge LP fails to establish the requisite “irreparable harm” for this Court’s certiorari jurisdiction in this case. There is no showing that the order denying the motion to dissolve the lis pendens at issue cannot be remedied on appeal of the final judgment. Although the petition states generally that the property cannot be sold while encumbered by the lis pendens, that Petitioner is in danger of defaulting on mortgages conhected with the property if it cannot sell, and that the lawsuit might persist for a substantial time period, the petition fails “to clearly reflect how the potential ‘ham is incurable’ by a final appeal.” Agency for Health Care Admin. v. S. Broward Hosp. Dist., 206 So.3d 826, 828 (Fla. 1st DCA 2016) (quoting Bared & Co., Inc. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (emphasis in original). Other than possible financial harm to Petitioner, the petition does not explain why appellate review of the final judgment would not provide an adequate remedy.

Financial harm via loss of a particular sale could conceivably constitute irreparable harm under circumstances not evident here. However, where the harm alleged is based on monetary damages, establishing irreparable harm will require specific facts to support the non-remediable nature of the injury. While there are differences between the law applicable to actions for certiorari review and for injunctive relief, the causes are related in light of section 48.23, Florida Statutes. That statute provides that where, as here, the notice of lis pendens is not founded on a recorded instrument or lien claimed, the trial court “shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.” § 48.23(3), Fla. Stat.

Accordingly, the law governing the irreparable harm required for injunc-tive relief is instructive; “[tjhere is no irreparable harm for the purpose of a temporary injunction where the harm can be adequately compensated for by a monetary award.” City of Miami Springs v. Steffen, 423 So.2d 930, 931 (Fla. 3d DCA 1982). As explained in B.G.H. Insurance Syndicate, Inc. v. Presidential Fire & Casualty Co., 549 So.2d 197, 198 (Fla. 3d DCA 1989), “[firreparable harm and lack of an adequate remedy at law are both prerequisites to injunctive relief.” In such cases, “irreparable harm is not established where the potential loss can be adequately compensated for by a monetary award.” Id.

It is entirely possible that the reduction in value of real property resulting from the wrongful filing of a lis pendens, loss of a sale at a particular time to a particular buyer, and financial harm due to the passage of time during litigation may all be remedied by a monetary award upon sufficient proof. In Haisfield v. ACP Florida Holdings, Inc., 629 So.2d 963, 966 (Fla. 4th DCA 1993), the court held that “the proper method of measuring damages for the wrongful filing of a lis pendens” is a comparison of the market value of the property on the date the lis pendens was filed to the fair market value at the time the lis pendens is terminated. Haisfield established this measure of damages upon the appeal of a final judgment in a breach of contract case. Without holding that the harm from the wrongful filing of a notice of lis pendens could never be “irreparable” for purposes of a petition for writ of certio-rari, the petition in this case fails to present facts and argument establishing that the harm caused by the lis pendens, even if erroneous, will be irreparable by a financial award or otherwise after a final judgment is entered.

In addition to protecting the plaintiffs claim during the pendency of the lawsuit, “a lis pendens exists as much to warn third parties” of a pending lawsuit with a “fair nexus between the apparent legal or equitable ownership of the property.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993). The potential financial harm to Petitioner from the lis pendens is not only not irreparable, but it does not diminish the important public purpose of warning third parties of the lawsuit and its potential effect on the ownership of the property.

Finally, the possibility that Petitioner might prevail on the merits of the lawsuit pending below—based on the affirmative defense that the contract is no longer in force—is not fatal to the lis pendens or require its immediate dissolution. The uncertainty about the outcome on the merits of the case at this preliminary stage of the litigation does not preclude a showing of the required “good faith, viable claim” with a fair nexus to the property subject to the lis pendens. In Regents Park Investments, LLC, v. Bankers Lending Services, Inc., 197 So.3d 617 (Fla. 3d DCA 2016), the court held that the plaintiff in the underlying action need not “fully prove each element of its claim” in order to sustain a lis pendens, but merely make “a minimal showing that there is at least some basis for the underlying claim.” 197 So.3d at 621 (quoting Nu-Vision, LLC v. Corp. Convenience, Inc., 966 So.2d 232, 236 (Fla. 6th DCA 2007). Petitioner’s assertion that the Agreement upon which the lawsuit is based is no longer in effect due to an alleged breach by Respondent is an affirmative defense to the action, not a bar to the notice of lis pendens giving fan- warning to third parties of the pending litigation.

Because the petition fails to show the requisite irreparable harm imposed by the trial court’s denial of the motion to dissolve the lis pendens, the petition for writ of certiorari is DISMISSED.

WETHERELL and JAY, JJ., CONCUR.

      . The other defendants, who are not involved in this proceeding for the extraordinary writ, are: ELCO LR CRESCENT RIDGE 'LP, a Delaware limited partnership; ELCO GP CRESCENT RIDGE, LLC, a Delaware limited liability company; ELCO LR CRESCENT RIDGE REIT, LP, a Delaware limited partnership; ELCO LR CRESCENT RIDGE REIT GP, LLC, a Delaware limited liability company; and LANDMARK AT CRESCENT RIDGE GP, LLC, a Delaware limited liability company.

      . For instance in Tetrault v. Calkins, 79 So.3d 213 (Fla. 2d DCA 2012), irreparable harm was found when a trial court denied a motion to dissolve a lis pendens placed by plaintiff who did not claim and was not seeking an ownership interest in the subject property. The lis pendens in Tetrault interfered with an agreement for sale of the property between two other parties. Id. at 215.


text:
    Joe Wayne BELL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3324
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017.

      Joe Wayne Bell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of grounds one, two, four, and five without comment. We also affirm the denial of ground three insofar as it pertained to the sentence imposed for the appellant’s kidnapping conviction. With regard to the arguments in ground three that pertain to the appellant’s sexual battery sentences, we reverse and remand.

In ground three of his motion, the appellant argued in part that the trial court improperly imposed habitual violent felony offender (HVFO) sentences as to counts II through IV for his convictions of sexual battery with the use of physical force likely to cause serious personal injury. He alleged that this offense is a life felony and the offenses in this ease were alleged to have been committed on February 9,1996, during a time when it was not permissible to impose an HVFO sentence for a life felony. The trial court denied this claim, concluding that these offenses were committed after the effective date of an amendment to the habitual offender statute that permitted the habitualization of life felonies.

Sexual battery with the use of physical force likely to cause serious personal injury is a life felony. See § 794.011(3), Fla. Stat. (1995). While it is true that the habitual offender statute was amended to apply to life felonies by chapter 95-182, Laws of Florida, effective October 1, 1995, that amendment was subsequently held to be unconstitutional. See Sims v. State, 997 So.2d 1166, 1167 (Fla. 3d DCA 2008). The -window period for its unconstitutionality ran from October 1, 1995, through May 24, 1997. Id. (citing State v. Thompson, 750 So.2d 643, 649 (Fla. 1999)). The appellant’s offenses were committed within that window period. .Given this authority, the HVFO designation was not properly imposed as to the sexual battery convictions.

In response to this Court’s Toler order, the state conceded that the HWO designation should be stricken as to these offenses, but argued that the appellant is not entitled to a resentencing hearing because the striking of the designation is a ministerial act under the circumstances of this case. However, the striking of the HVFO designation in this case is not a ministerial act because the trial court will have discretion in imposing new sentences for these, counts. See Jordan v. State, 143 So.3d 335, 339-40 (Fla. 2014). (concluding that a correction to the defendant’s sentence is not a ministerial act where the trial court has discretion in imposing a new sentence); Thompson v. State, 987 So.2d 727, 729 (Fla. 4th DCA 2008) (concluding that while a' defendant’s presence was not normally required for the striking of an HFO designation, in this case, “when the trial court deleted the HFO designation, there was no justification for a sentence above the guidelines”). Therefore, the appellant is entitled to be present and represented by counsel at a resentencing hearing. See Jones v. State, 61 So.3d 1204, 1205 (Fla. 1st DCA 2011).

Accordingly, on remand, the trial court. should strike the HVFO designation and fifteen-year mandatory minimum sentences as to the sexual battery counts and conduct a resentencing hearing as to these counts only. The appellant should be re-sentenced pursuant to the 1994 sentencing guidelines, as his offenses were committed during the time that the 1995 sentencing guidelines were deemed unconstitutional. See Hawkins v. State, 195 So.3d 1196, 1197 (Fla. 1st DCA 2016) (citing Heggs v. State, 759 So.2d 620 (Fla. 2000), and Trapp v. State, 760 So.2d 924 (Fla. 2008)). The trial court will have discretion to impose upward departure sentences for these offenses if it provides written reasons. Id. See also Wheeler v. State, 129 So.3d 469, 469 (Fla. 2d DCA 2014).

AFFIRMED in part, REVERSED, and REMANDED in part for further proceedings consistent with this opinion.

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    Elsa DOMINGUEZ, Appellant, v. COMPASS GROUP and Gallagher Bassett Services, Inc., Appellees.
    CASE NO. 1D16-2195
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Mark L. Zientz of Mark L. Zientz, P.A., Miami, for Appellant.
    .. Mary Frances Nelson of Eraclides, Gel-man, Hall, Indek,. Goodman & Waters, Ft. Myers, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying her claim for a one-time change of physician under section 440.13(2)(f), Florida Statutes (2011). We reverse pursuant to Providence Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008), because a claimant’s right to a one-time change of treating physician is absolute if the request is made during the course of treatment.

Claimant sustained a compensable crush injury to her right hand on April 1, 2012. The Employer/Carrier (E/C) subsequently authorized medical treatment with Dr. Ar-ango, an orthopedic hand specialist. Dr. Arango provided treatment for the workplace hand injury, placed Claimant at maximum medical improvement on October 13, 2013, and assigned a 3% permanent impairment rating along with restrictions on the use of the right hand. In May 2014, Claimant filed a petition for benefits (PFB) seeking authorization of medical care from a primary care provider. The E/C denied the claim and raised various defenses including major contributing cause with regard to the need for any further medical care.

In a subsequent order entered in May 2015, the JCC found nothing in the records from the authorized physicians indicating a need for additional medical treatment. Almost a year later, in February 2016, Claimant filed a PFB seeking authorization of a one-time change of physician. In response, the E/C asserted, among other things, that res judicata barred the request for the one-time change. Both Claimant and the E/C subsequently filed motions for summary final order. On April 21, 2016, the JCC entered an order granting the E/C’s motion and denying the claim for a one-time change of physician based on her conclusion that the May 2015 final order was res judicata as to the need for future medical care. This appeal followed the final order denying claimant’s request for a one-time change of physician.

Section 440.13(2)(f) provides that “[u]pon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident.” In Wilson, we said that the “course of treatment” requirement is met so long as the claimant has been treated with an authorized physician, even if a claimant was subsequently discharged from medical care. 990 So.2d at 1225. Because Claimant was previously treated by an authorized physician, she qualifies to seek a one-time change of physician. The doctrine of res judicata does not properly apply. Thus, we REVERSE the order below and REMAND for further proceedings consistent with this opinion.

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.


author: WOLF, J.

text:
    Sencoa Damair CRAWFORD, Appellant, v. DEPARTMENT OF REVENUE and Tanisha Charmia Watson, Appellees.
    CASE NO. 1D16-2059
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017

      Neil L. Weinreb, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellees.
   WOLF, J.

Appellant challenges an order, entered by the circuit court that adopted a hearing officer’s recommended order finding appellant in contempt for failure to pay child support and ordering his immediate incarceration until he paid a $500 purge. Appellant raises several arguments, two of which merit discussion. He argues (1) there was not competent, substantial evidence to support the finding that appellant had the present ability to pay the $500 purge; and (2) the hearing officer erred when she ordered appellant’s immediate arrest without the authority to do so. The Department of Revenue (the Department) correctly concedes error. Thus, we reverse."

Facts

In September 2014, the. circuit court entered, an order finding that appellant was the legal parent of two minor children. The court ordered appellant to pay $511 a month in child support, plus $8,066 in retroactive child support.

In January 2016, the Department filed a motion for contempt for failure to pay child support and a notice of hearing. Hearing officer Athiel Jones conducted a hearing on March 30, 2016, during which the Department alleged that appellant had not . paid much in child support since the original support order was entered, except for several $500 payments as a purge in prior contempt proceedings. Appellant’s last payment was a partial purge payment on July 14, 2015, and he still owed $10,964 in child support.

Appellant testified that he did not have a job, but he wished to pay his child support. Appellant was unable to find employment and had applied to 30 different jobs with no success. He did not have, a driver’s license at the time of the hearing, and that had impaired his ability to find employment. However, appellant had gotten three or four days’ work through a temporary agency at $9.30 an hour, and he was expecting to continue getting some work from the agency over the next couple of months. He requested that an income deduction order be sent to the temporary agency. He stated he had not turned down any work; A financial affidavit showed appellant had no assets or money other than $15 cash, and appellant further testified that he survived by receiving shelter and food from his girlfriend.

After stating that she had reviewed appellant’s payment history, the hearing officer found appellant in contempt and ordered that he be immediately incarcerated with a $500 purge. Counsel for. appellant objected and asked what competent, substantial" evidence the hearing officer thought established that appellant had the present ability to pay the purge amount. The Department’s counsel argued that “it’s the payment history.” The hearing officer explained that “I do find he has an ability to pay. He has an ability to earn income.” Appellant’s counsel objected that was not the correct legal standard. Counsel also objected that the hearing officer lacked the legal authority to order that someone be incarcerated. The hearing officer responded, “Thank you for bringing that to my attention,” but did not rescind her order that appellant be incarcerated. Appellant was arrested. ,

On April 5, 2016, a hearing officer reduced the purge amount, and appellant paid the reduced purge and was released on that date.

On April 6, 2016, the hearing officer issued a written order on the March 30, 2016, hearing recommending that the circuit court find appellant in contempt. Specifically, the hearing officer noted that appellant testified that he had no physical disabilities that prevented him from working, that he had- done some work for a temporary agency, and that he had previously paid two purges of $500 but had never made a regular child support payment. A circuit court judge adopted the recommended order on April 11, 2016. After appellant filed his notice of appeal, the Clerk of Court determined that appellant was indigent based on his financial affidavit.

I. Present Ability to Pay

Appellant argues that the hearing officer’s finding that appellant had the present ability to pay the $500 purge, which was later adopted by the circuit court, was not supported by competent, substantial evidence. The Department correctly concedes error. '

Although a judgment of contempt is presumed correct on appeal, it will not be upheld if there is insufficient evidence in the record to support it. Williams v. Williams, 152 So.3d 702, 704 (Fla. 1st DCA 2014).

The Florida Supreme Court has held that the initial order or judgment directing a party to pay support must be predicated on-an affirmative finding that the party has the present ability to pay. Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla. 1985). The burden of proof then shifts to the defaulting party, who must show.he is no longer able to meet his support obligations. Id. at 1278-79. .The court must then evaluate the evidence to determine whether the party has willfully violated the support order. Id. If the court finds the party in contempt for failure to pay, that order must contain a specific finding that the party had the present ability to pay support but willfully failed to do so. Fla. Fam. L.R.P. 12.615(d)(1). The court may impose a variety of sanctions for contempt, including incarceration, but an order imposing incarceration must set conditions for purge of the contempt based on the contemnor’s ability to pay and must include a separate, affirmative finding that the contemnor possesses the present ability to comply with.the purge conditions. Fla. Fam. L.R.P. 12.615(e); Bowen, 471 So.2d at 1279.

“The purpose of a civil contempt proceeding is- to obtain compliance on the part of a person subject to an order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply.'This ability to comply is the contemnor’s ‘key to his cell.’ ” Bowen, 471 So.2d at 1277 (quoting Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977)).

In appellant’s case, the hearing officer found appellant had the present ability to pay his regular child support obligation and the $500 purge based on his history of paying prior purges and his ability to gain employment. However, neither his payment history nor his ability to obtain a job was competent, substantial evidence that he had the present ability to pay. Appellant testified that he had no assets and no income. The lower court determined appellant was indigent, establishing that he lacked a present ability to pay. See Bowen, 471 So.2d at 1279 (“The finding of the trial judge that the respondent was indigent for purposes of the appeal affirmatively establishes that the respondent was indigent and had no present ability to pay the purge amount.”). Thus, there is no competent, substantial evidence supporting the finding of contempt and subsequent incarceration. As such, we reverse the contempt order.

II. Hearing Officer’s Authority to Incarcerate

Appellant argues the hearing officer erred by ordering appellant’s arrest without any authority to do so, thus making the incarceration per se illegal. The Department concedes error.

The Florida Family Law Rules of Procedure grant a hearing officer general powers and duties to conduct proceedings and to enter recommended orders to be reviewed by the circuit court. Fl. Fam. L.R.P. 12.491(e)-(f). These enumerated powers do not include the power to order an arrest. In contrast, the Family Law Rules of Procedure state that a circuit court judge may impose incarceration as a sanction for civil contempt. Fl. Fam. L.R.P. 12.615. The circuit court also has the inherent power to punish contempt, including by incarceration, under the Florida Constitution. See Ex parte Earman, 85 Fla. 297, 95 So. 755, 760 (1923).

The hearing officer, unlike the circuit court judge, is neither a constitutional officer nor a member of the judiciary. Thus, a hearing officer lacks the authority either to enter an order of contempt or to order incarceration. See Gray v. State, 489 So.2d 86 (Fla. 5th DCA 1986) (finding a special master lacked the authority to order a former husband’s arrest for failure to pay support, and thus the former husband’s conviction for resisting that arrest without violence could not stand).

Here, the hearing officer found appellant in contempt and ordered his immediate incarceration without any authority to do so, which was error.

We note that the Department suggests this issue may be moot because appellant has already been released from incarceration. However, appellant argues that the issue is not moot because it is an issue that is capable of repetition but would evade review. We agree. See State v. S.M., 131 So.3d 780, 783 (Fla. 2013) (stating a challenge to the legality of a juvenile’s pre-hearing detention was not moot and would continue to evade review because a juvenile is detained for only a short period of time before the adjudicatory hearing).

In summation, we find there was no competent, substantial evidence that appellant had the present ability to pay his child support obligation or the purge amount, and that the hearing officer lacked the authority to order appellant’s incarceration. As such, we REVERSE the contempt order.

LEWIS and WETHERELL, JJ., CONCUR.

       The circuit court has means other than incarceration available to seek compliance with a court order, such as requiring an unemployed party to seek proper employment and to report weekly until the employment is secured. Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla. 1985). See also Herrera v. Sanchez, 885 So.2d 480, 482 (Fla. 5th DCA 2004) (holding the circuit court erred in holding an indigent party in contempt for failure to pay child support básed on the court’s finding that the party was capable of earning minimum wage because “the appropriate action was to order him to seek proper employment”); Lawrence v. State, Dept. of Revenue ex rel. Walker, 755 So.2d 139, 140 (Fla. 2d DCA 1999) (finding where a party presented evidence that he lacked the present ability to pay child support but it appeared he was voluntarily underemployed, the circuit court erred in finding him in contempt and instead should have ordered him to find proper employment).


author: EMAS, J.

text:
    Jerry WEAVER, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    Nos. 3D16-537 & 3D15-2389
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant/cross-appel-lee.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver and Joanne Diez, Assistant Attorneys General, for appellee/cross-ap-pellant.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

The defendant, Jerry Weaver, was charged with three first-degree felonies of aggravated child abuse by malicious punishment (in violation of section 827.03(l)(a)2, Florida Statutes (2014)), committed upon his daughter, Y.M., all acts allegedly occurring on May 18, 2014.

Following a jury trial, Weaver was found guilty as charged in Counts One and Three. As to Count Two, Weaver was found guilty of the lesser-included offense of child abuse, a third-degree felony (section 827.03(2)(c), Florida Statutes (2014)). The trial court entered judgments of conviction for each of these offenses. Thereafter, the trial court granted Weaver’s motion to vacate the judgments on Counts Two and Three, and dismissed those counts on double jeopardy grounds, concluding that the actions by Weaver upon Y.M. (as set forth in the three counts of the Information) constituted a single criminal episode, occurring in a continuous, uninterrupted sequence, without any significant temporal or spatial break.

Weaver appeals from his judgment and sentence on Count One for the crime of aggravated child abuse, contending that the State’s improper-,closing arguments and the trial court’s erroneous evidentiary rulings require a new, trial.' The State cross-appeals the trial court’s vacatur of the judgments and dismissal of Counts Two arid Three of the Information.

We, affirm the judgment and sentence on Count One. Upon our review of the record, we hold that the trial court did not error in denying the defense motion in limine seeking to restrict the testimony of the State’s expert, Dr. Lambert. See Gutierrez v. State, 739 So.2d 1175 (Fla. 3d DCA 1999). We also hold that the State’s closing arguments, read in context, were not improper, and even if they could be construed as improper,'were harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

We also affirm the State’s cross-appeal. We find no error in the trial court’s determination that the acts alleged in Counts Two and Three arose out of the same, single criminal episode as Count One, involving a continuous series of evénts occurring over a matter of a few minutes with no temporal or spatial break.' The trial court therefore properly dismissed Counts Two and Three on double jeopardy grounds. See Zapata v. State, 905 So.2d 944 (Fla. 3d DCA 2005) (holding double jeopardy barred convictions for two counts of battery, where defendant’s acts constituted a single criminal episode upon a single victim, in a continuous series of events: defendant grabbed the victim by her legs and neck, dragged her -to the sidewalk, proceeded to beat the victim’s head against a wall, and then beat her head against a car); Harris v. State, 111 So.3d 922 (Fla. 1st DCA 2013) (holding double jeopardy barred .convictions for both felony battery and domestic violence by strangulation, where defendant’s acts constituted a single criminal episode Upon a single victim, in a continuous series of events: the altercation between the defendant and his girlfriend began on the patio of their home, at which time defendant grabbed her, pushed her, and put his fingers in her nose and mouth, and the altercation continued until the pair landed in the yard on the ground, with defendant sitting on his girlfriend and choking her); Olivard v. State, 831 So.2d 823 (Fla. 4th DCA 2002) (holding double jeopardy barred convictions for both battery and aggravated battery, where defendant’s acts constituted a single criminal episode upon a single victim, in a continuous series of events: defendant struck victim with a bicycle pump, wrestled him to the ground, and then bit his ear off).

Affirmed.

      . Count One alleged Weaver maliciously punished Y.M. by whipping Y.M. repeatedly with a cable cord; Count Two alleged Weaver maliciously punished Y.M. by punching Y.M. in the stomach; Count Three alleged Weaver maliciously punished Y.M. by stepping on Y.M.’s neck.

      . We find the other claims raised by Weaver are without merit and warrant no further discussion.


text:
    Travis WHITE, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D17-963
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for respondent The State of Florida.
    Before SUAREZ,' C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

Travis White files this petition for .writ of habeas corpus, following the trial court’s entry of a judgment of direct criminal contempt, sentencing White to seven days in jail. We grant the petition..

The cause pending below is a dependen¿y proceeding involving White’s Son, T’D. White is seeking custody of his son and, during ¿ ' hearing on April 25, 2017, the trial court ordered White to submit to a drug test and then to return to court. White left' the courtroom and the courts bailiff instructed White where to go for the court-ordered drug test. White did not return to the courtroom, and it was later discovered that White did not submit to the drug test. The trial court issued an order directing White to appear in court two days later (on April 27, 2017) and show cause why he should not be held in direct criminal contempt for failing to submit to the court-ordered drug test and for failing to return to court.

At the April 27’final hearing,-the trial court appointed counsel for White. Counsel requested additional time to investigate and prepare a defense for his newly-appointed client. The trial court denied this request and proceeded to a final hearing, after which the trial court adjudged White guilty of direct criminal contempt, took him into custody, and sentenced him to seven days in the Miami-Dade County jail.

White contends that the contempt proceedings below were improperly prosecuted as a direct criminal contempt rather than an indirect criminal contempt. This is a significant distinction, as a defendant subject to indirect criminal contempt proceedings is accorded a panoply of procedural and substantive due process safeguards not afforded to a direct criminal contemnor. See Fla. R. Crim. P. 3.840(a)-(g) (providing, inter alia, that an indirect criminal contempt proceeding requires: the issuance of a written order to show cause stating the essential facts constituting the criminal contempt; the right to be represented by counsel; a reasonable time for preparation of a defense after service of the show cause order; an arraignment on the charge; an opportunity to seek a statement of particulars or file motions and an answer to the show cause order; a formal final hearing on the charge; the right to. compulsory process for the attendance of witnesses at that hearing; and the right to testify in his or her own defense). By contrast, a direct criminal contempt, which involves conduct occurring “in the actual presence of the court,” see Fla. R. Crim. P. 3.830, “may be punished summarily.” Id.

The instant case manifestly required that any contempt proceedings be prosecuted as an indirect, rather than a direct, criminal contempt, The Florida Supreme Court, in Plank v. State, 190 So.3d 594, 606 (Fla. 2016), recently reaffirmed the principle established by the United States Supreme Court in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948):

In order to be considered direct criminal contempt, all of the acts underlying the contemptuous conduct must be committed in open court in the presence of the judge, “where all of the essential elements of the misconduct are under the eye of the court [and] are actually observed by the court.” Oliver, 333 U.S. at 275, 68 S.Ct. 499. If the judge needs to rely on statements and testimony from others regarding their knowledge about the contemptuous acts, the misconduct is no longer considered direct criminal contempt because additional testimony or explanation is necessary. Id. at 275-76, 68 S.Ct. 499. As the Supreme Court has stressed, “the judge must have personal knowledge of [the misconduct] acquired by his own observation of the contemptuous conduct.” Id. at 275, 68 S.Ct. 499. “[K]nowledge acquired from the testimony of others, or even from the confession of the accused, would not justify conviction without a trial in which there was an opportunity for defense.” Id.

Commendably, the State concedes that the trial court erred in prosecuting this matter as a direct, rather than an indirect, criminal contempt. We agree, and accordingly grant the petition, vacate the judgment of direct criminal contempt, and vacate the sentence imposed upon that judgment. We remand this cause to the trial court for further proceedings, if appropriate, as an indirect criminal contempt.

      . See Fla. R. Juv. P. 8.250(b) (providing trial court with authority, under certain circumstances, to order drug testing of a person requesting custody of a child).

      . White filed a motion requesting the trial court stay the judgment and sentence to permit White the opportunity to seek appellate review. The trial court denied that motion, and White filed the instant petition as well as a motion for review of the order denying stay. We issued a temporary stay of the judgment and sentence, and ordered White's immediate release from custody, pending disposition of the instant petition.

      . Direct criminal contempt is restricted to conduct that occurs in the presence of the court, constitutes an affront to the court's authority, disrupts an ongoing proceeding, and requires immediate action by the trial court to vindicate its authority. State v. Diaz de la Portilla, 177 So.3d 965, 973 (Fla. 2015). Treating the conduct alleged in the instant case as a direct criminal contempt "does not fulfill the purpose of this narrow form of contempt.” Id.

      . The State nevertheless contends that the trial court’s error was harmless, positing that the trial court afforded White all of the protections mandated for an indirect criminal contempt. We reject this contention, as White’s counsel was appointed just minutes before commencement of the final hearing (and the final hearing was held just two days after the show cause order was issued). White's newly-appointed counsel, who was not present at the earlier hearing when the alleged conduct occurred, requested additional time to investigate and prepare a defense, including an opportunity to review the audio recording of that earlier hearing and speak with potential witnesses; and to investigate White's mental health status and gather any potential mitigating evidence. The trial court denied this request. We conclude that White was not afforded ‘‘a reasonable time... for preparation of the defense after service of the order on the defendant.” Fla. R. Crim. P. 3.840(a), See Gratz v. State, 84 So.3d 1219 (Fla. 3d DCA 2012); Goral v. State, 553 So.2d 1282 (Fla. 3d DCA 1989); Korn v. Korn, 180 So.3d 1122 (Fla. 4th DCA 2015); Russ v. State, 622 So.2d 501 (Fla. 5th DCA 1993).

      . We note that, by the time this court issued its temporary stay and ordered White’s immediate release, he had already spent two days in jail.


text:
    Troy SINGLETON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-620
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017
    Troy Singleton, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SCALES and LUCK, JJ.
   PER CURIAM.

Troy Singleton appeals the trial court’s denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Singleton contends here, as he did before the trial court, that his thirty year habitual felony offender sentence for burglary was illegal because the trial court believed it did not have discretion to sentence him below the statutory maximum. Because Singleton qualified as a habitual felony offender, the thirty year sentence cannot technically be illegal for Rule 3.800(a) purposes as it is not the kind of punishment no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. See Johnson v. State, 9 So.3d 640, 640-41 & n.3 (Fla. 4th DCA 2009) (“Technically the sentence is not an illegal sentence. ... [A] sentence is illegal if it imposes the kind of punishment no judge under entire body of sentencing statutes could possibly inflict under any set of factual circumstances.”) (citing Carter v. State, 786 So.2d 1173, 1180-81 (Fla. 2001)). We, therefore, treat Singleton’s appeal as a petition for writ of habeas corpus, and deny it. See id. at 641 (“[W]e treat this appeal as a petition for a writ of habeas corpus and grant the petition to prevent a manifest injustice.”); see also Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought .... ”). As the trial court explained in its thorough order, “there is nothing in the record to support [Singleton’s] contention that the sentencing court believed it had no option other than to sentence the Defendant to thirty years in prison.” We, too, have reviewed' the sentencing transcript and agree that the trial court understood it had discretion and considered (and rejected) Singleton’s plea for a lower sentence. For these reasons, Singleton’s petition is denied.

Petition denied.


author: ROTHENBERG, J.

text:
    James Louis FRITZ, Appellant, v. John Calvin FRITZ, et al., Appellees.
    Nos. 3D16-479 and 3D16-2229
    District Court of Appeal of Florida, Third District.
    Opinion filed May 17, 2017

      Joel S. Perwin, P.A., and Joel S. Perwin; Trembly Law Firm, and Fred Viera, for appellant.
    Homer Bonner Jacobs, and Peter W. Homer and Christopher J. King, for appel-lees.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

These consolidated appeals stem from a dispute between five siblings—James Louis Fritz, Jennifer Floyd, John Calvin Fritz, Jeffrey Errol Fritz, and Jack Steven Fritz. In case number 3D16-479, James appeals from, the trial court’s order granting summary judgment in favor of his three brothers, John, Jeffrey, and Jack (collectively, “the Brothers”), in which the trial court found that James lacked standing to bring a direct action against the Brothers for breach of fiduciary duty because the claims “are derivative in nature and not direct as [James] contends,” and from' the subsequently entered final summary judgment (lower tribunal case number 1.3-33823). In case number 3D16-2229, James appeals from the trial court’s order granting the. Brothers’ motion to stay the arbitration proceeding initiated by James on behalf of JW Fritz Partners Limited Partnership and JW Fritz Partners, Inc., against the Brothers, JW Fritz Partners Limited Partnership, and JW Fritz Partners, Inc. For the reasons that follow, we affirm.

The Fritz family owns several entities, including Melrose Nursery, Inc. (“Melrose Nursery”); two limited" partnerships, JW Fritz Partners Limited Partnership and Five Fritz Partners Limited Partnership (collectively, “the limited partnerships”); and JW Fritz Partners, Inc., the sole general partner of JW Fritz Partners Limited Partnership. The five siblings are shareholders of Melrose Nursery and JW Fritz Partners, Inc. and limited partners of the limited partnerships.

Melrose Nursery operated on five parcels of land, which were acquired by the limited partnerships in 2003. In 2005, the limited partnerships sold the five parcels to a third party, Newsouth, LLC (“New-south”), and Newsouth executed mortgages and promissory notes in favor of the limited partnerships. Although Newsouth made all of the payments due under the promissory notes and mortgages, in 2008 Newsouth notified the limited partnerships that it could no longer make payments. Prior to the filing of a foreclosure action, Newsouth and the limited partnerships entered' into a settlement agreement which allowed Newsouth to retain two of the five parcels transferred to Newsouth in 2005 in exchange for Newsouth’s agreement to convey the three remaining parcels to the limited partnerships or an entity designated by the limited partnerships. Based on tax advice from the attorney who handled the Fritz family estate matters, the limited partnerships instructed Newsouth to transfer a ten acre lot, which was previously owned by JW Fritz Partners Limited Partnership, to Biloxi 3, LLC (“Biloxi”), which is owned by the Brothers.

Appellate Case Number 3D16-479

In the third amended complaint, James asserted direct claims against the Brothers, alleging that they breached their fiduciary duty to him regarding two matters— (1) allegedly unearned excessive bonuses and management fees paid by Melrose Nursery to the Brothers, and (2) the limited partnerships’ 2008 settlement with Newsouth.

The Brothers moved for summary judgment arguing, in part, that James, who is a partner of the limited partnerships and a shareholder of Melrose Nursery, lacks standing in his individual capacity to bring a direct action against the Brothers, and instead, he should have brought the suit derivatively on behalf of Melrose Nursery and the limited partnerships. Following a hearing, the trial court entered an order granting the Brothers’ motion for summary judgment, relying on this Court’s opinion in Dinuro Investments, LLC v. Camacho, 141 So.3d 731 (Fla. 3d DCA 2014), and section 620.2001(2), Florida Statutes (2015).

In applying Dinuro and section 620.2001(2), the trial court concluded that based on the allegations of the third amended complaint, the claims asserted are derivative in nature, not direct. Specifically, as to the claims stemming from the alleged unearned excessive bonuses and management fees paid by Melrose Nursery to the Brothers, the trial court concluded that James “failed to show a direct harm and special injury separate and distinct from that sustained by the other shareholders.” Similarly, as to the limited partnerships’ settlement with Newsouth, the trial court concluded that James “failed to show a direct harm and a special injury separate and distinct from that sustained by the other partners.” The trial court also concluded that James cannot benefit from the exception to the test set forth in Dinuro because the third amended complaint “fails to plead a special contractual or statutory duty owed to [James], much less fraud.” Thereafter, the trial court entered final summary judgment in favor of the Brothers.

James contends that the trial court erred by granting summary judgment in favor of the Brothers on the ground that he lacked standing to bring an action directly against the Brothers for breach of fiduciary duty. Because our review of the third amended complaint supports the trial court’s determination that the claims brought by James are derivative in nature, not direct, we affirm.

After reviewing the three tests routinely used to determine whether a shareholder can bring a direct action, this Court explained in Dinuro as follows:
[A]n action [by a shareholder or a member of a limited liability company] may be brought directly only if (1) there is a direct harm to the shareholder or member such that the alleged injury does not flow subsequently from an initial harm to the company and (2) there is a special injury to the shareholder or member that is separate and distinct from those sustained by the other shareholders or members.
We also find that there is an exception to this rule under Florida law. A shareholder or member need not satisfy this two-prong test when there is a separate duty owed by the defendant(s) to the individual plaintiff under contractual or statutory mandates. Thus if the plaintiff has not satisfied the two-prong test (direct harm and special injury) or demonstrated a contractual or statutory exception, the action must be maintained derivatively on behalf of the corporation or company. Such a rule comports with general standards of corporate and LLC law by protecting individuals from the obligations arising out of their relationship to the company, while also allowing the parties greater freedom to contractually set their respective obligations.

Dinuro, 141 So.3d at 739-40 (emphasis in original) (citations omitted); see also § 607.07401, Fla. Stat. (2015). As to partnerships, the trial court also relied on section 620.2001(2), Florida Statutes (2015), which provides: “A partner commencing a direct action under this section is required to plead and prove an actual or threatened injury that is not solely the result of any injury suffered or threatened to be suffered by the limited partnership.”

In the instant case, the trial court correctly concluded that James failed to show a direct harm and special injury separate and distinct from that sustained by the other shareholders based on the alleged unearned excessive bonuses and management fees paid by Melrose Nursery to the Brothers. In Karten v. Woltin, 23 So.3d 839 (Fla. 4th DCA 2009), a minority shareholder filed a direct action against the majority shareholders of a closely held corporation. Id at 839-40. The complaint alleged that the majority shareholders breached their fiduciary duty to the minority shareholder by voting to pay an excessive salary to one of the majority shareholders, thereby depriving the minority shareholder of profits. Jd, at 840. The lower tribunal granted the majority. shareholders’ motion for summary judgment, finding that, because the minority shareholder’s allegations did not set forth any unique facts of a direct loss to him as the minority shareholder, the allegations could only be brought as a derivative claim under section 607.07401. Id In reviewing the lower tribunal’s decision, the Fourth District explained: “Generally, a shareholder cannot sue in the shareholder’s name for injuries to a corporation unless there is a special duty between the wrongdoer and the shareholder, and the shareholder has suffered an injury separate and distinct from that suffered by other shareholders.” Id. (quoting Braun v. Buyers Choice Mtg. Corp., 851 So.2d 199, 203 (Fla. 4th DCA 2003)). In affirming the grant of summary judgment, the Fourth District held that the minority shareholder’s allegations of excessive payment and other examples of mismanagement and waste did not constitute the type of individualized harm necessary to allow the filing of a direct action and the avoidance of the strictures of a derivative cause of action under section 607.07401, even though the alleged excessive payment, mismanagement, and waste could affect the relative value of the shares owned by all the shareholders. Id at 841; see also Orlinsky v. Patraka, 971 So.2d 796, 801-02 (Fla. 3d DCA 2007) (“A shareholder must file a derivative action for breach of fiduciary duty, claiming that the payment of excessive compensation constitutes corporate waste.”).

We also agree with the trial court’s determination that James’s breach of fiduciary duty claim, which was. based on the limited partnerships’ 2008 settlement with Newsouth, must be brought in a derivative action. As the trial court correctly determined, if any injury was suffered as a result of the limited partnerships’ handling of the default, which included transferring ten acres to Biloxi rather than reverting the ownership back to the former owner, JW Fritz Partners Limited Partnership, such damage was sustained by the limited partnership, not directly by the partners, and James failed to show a direct harm and a special injury separate and distinct from that sustained by the other partners. See Dinuro, 141 So.3d at 740 (holding that Dinuro,. a member of the LLC, lacked standing to bring a direct action against two other members of the LLC based on Dinuro’s claim that the LLC was devalued due to the actipns of the two other members, thereby leaving Dinuro “with nothing to show for its investments”; noting that Dinuro’s action against the other two members of the LLC should have been brought derivatively). Thus, we affirm the trial court’s order granting summary judgment in favor of the Brothers and the subsequently entered final summary judgement.

Appellate Case Number 3D16-2229

James also appeals from the trial court’s order granting the Brothers’ motion to stay the arbitration proceeding initiated by James on behalf of JW Fritz Partners Limited Partnership and JW Fritz Partners, Inc., against the Brothers, JW Fritz Partners Limited Partnership, and JW Fritz -Partners, Inc. Because James waived his right to arbitration, we affirm.

In May 2016, approximately three months after the trial court entered the final summary judgment in favor of the Brothers based on James’s lack of standing, James filed an arbitration action against the Brothers, JW Fritz Partners Limited Partnership, and JW Fritz Partners, Inc., on behalf of JW Fritz Partners Limited Partnership and its corporate general partner, JW Fritz Partners, Inc. The arbitration action relates to the settlement with Newsouth.

The Brothers, JW Fritz Partners Limited-Partnership, and JW Fritz Partners, -Inc. filed-a petition to enjoin the arbitration action, arguing that James had waived any right to arbitration because the causes of action asserted in the arbitration complaint relate to the same matter unsuccessfully litigated by James for three years in lower tribunal case number 13-33823—the 2008 settlement with Newsouth. Following a hearing, the trial court granted the motion to stay the arbitration pending this Court’s resolution of the appeal in case number 3D16-479, finding that James waived his right to invoke arbitration because he spent three years litigating the same matter in lower tribunal case number 13-38823, and therefore, he has clearly “acted inconsistently with the right to arbitrate and [is] now forum shopping.” Cassedy v. Hofmann, 153 So.3d 938, 942 (Fla. 1st DCA 2014). Finding no error in the trial court’s decision, we affirm the trial court’s order staying arbitration without further discussion. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (recognizing that a party’s right to arbitrate “may be waived by actually participating in a lawsuit or taking action inconsistent with that right”; holding that “an arbitration right must be safeguarded by a' party who seeks to rely upon that right and the party must not act inconsistently”); Cassedy v. Hofmann, 153 So.3d 938, 942 (Fla. 1st DCA 2014) (holding “a claim of waiver of the right to arbitrate based on prior litigation conduct is presumptively one for the court”).

Any other arguments or issues raised by James do not merit discussion. Accordingly, we affirm the orders and/or judgments under review in these consolidated appeals.

Affirmed.

      . Jennifer Floyd, who was a plaintiff ¿long with James, entered into a mediated settlement agreement with the Brothers prior to the entry of any of the orders under review in Case No. 3D16-479.

      . A few days after the summary judgment hearing, but.before the trial court issued its order granting summary judgment, James moved for leave to file a fourth amended complaint, which the trial court denied. Thereafter, James moved for reconsideration of the order denying the motion for leave, to file a fourth amended complaint, which the trial court also denied. Finding no abuse of discretion in the denial of either motion, we affirm those orders without any further discussion. See Rodriguez v. Recovery Performance & Marine, LLC, 38 So.3d 178, 181 (Fla. 3d DCA 2010) (holding that "a trial court’s decision whether to grant a motion to amend a complaint is reviewed for abuse of discretion"); Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) ("While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.”).

      . The JW Fritz Partners Limited Partnership Agreement contained an arbitration provision.


text:
    Terry FRAZIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4467
    District Court of Appeal of Florida, Second District.
    Opinion filed May 19, 2017.
   PER CURIAM.

Dismissed. See Swor v. Swor, 11 So.3d 953, 953 (Fla. 2d DCA 2009) (“An order denying a motion for rehearing is not independently reviewable.”); Mobley v. McNeil, 989 So.2d 1215, 1216 (Fla. 1st DCA 2008) (same); Grant v. Jones, 933 So.2d 32, 33 (Fla. 1st DCA 2006) (same); see also Fla. R. App. P. 9.130(a)(4) (“Orders disposing of motions that suspend rendition are' not reviewable separately from á review of the final order.”).

VILLANTI, C.J., and SILBERMAN and LUCAS, JJ., Concur.


text:
    Thomas PETRUZZELLA and Judy Petruzzella, Appellants, v. CHURCH ON THE ROCK OF PALM COAST, INC., Appellee.
    Case No. 5D16-2877
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Frederick C. Morello, of Frederick C. Morello, P.A., Daytona Beach, for Appellants.
    Paul M. Eza and Michael L. Glass, of Stone, Glass & Connolly, LLP, Jacksonville, for Appellee.
   PER CURIAM.

Thomas and Judy Petruzzella, husband and wife plaintiffs below, timely appeal a final summary judgment in favor of Church on the Rock of Palm Coast, Inc., defendant below. The Petruzzellas contend that the trial court improperly applied the express assumption of the risk doctrine in granting a summary judgment to the property owner in this trip and fall negligence case. We agree and reverse.

Thomas Petruzzella was a volunteer musician drummer and member of the Church on the Rock of Palm Coast, Inc. In May of 2011, he tripped on the bass player’s unsecured cord and fell off the stage during a rehearsal. As a result of the fall, he sustained substantial injuries. The Pe-truzzellas filed suit against the property owner alleging that the Defendant was negligent for failing to maintain the premises in a reasonably safe condition; that the Defendant failed to correct a dangerous condition which the Defendant either knew or should have known of by using reasonable care, and his wife Judy Petruzzella’s claim for loss of consortium. The Defendant answered the complaint by generally denying the allegations of negligence and raised the affirmative defense of contributory negligence on the part of Mr. Petruz-zella. Discovery in the case revealed that Mr. Petruzzella had been a member of the church since 2008 and, beginning in 2009, served as a member of the Church’s Praise Group. He performed on the Church’s stage, either in rehearsal or during a service at least three to four times a week and, as a result, he was familiar with the various cords attached to the instruments that would be unsecured. Discovery further revealed that no person other than Mr. Petruzzella had ever been involved in any accident causing injury due to the cords being unsecured.

The Defendant moved for summary judgment, arguing that “[sjummary judgment must be granted in favor of Defendant because Plaintiff Thomas Petruzzella knew of the alleged dangerous condition and willfully accepted the risk”, asserting “[t]he condition itself was not concealed, but was open and obvious”, that “Defendant breached no duty to Plaintiffs because Plaintiff Thomas Petruzzella’s injuries were not in fact caused by any flaw in the facility, as the facility had been previously used for years without any similar or related injuries”, citing to various cases on negligence and the open and obvious doctrine, but no cases on the affirmative defense of assumption of the risk.

The Petruzzellas filed a response, alleging that their case was not pled as a failure to warn case, but as a failure to maintain the premises in a reasonable safe condition and that the open and obvious danger doctrine may discharge a landowner’s duty to warn but does not discharge the landowner’s duty to maintain the premises in a reasonably safe condition.

The Defendant filed a reply to the Pe-truzzellas’ response, expressly asserting a new ground for summary judgment—express assumption of the risk.

Following a hearing on the matter, the trial court found that there were no material fact issues and that the Defendant was entitled to summary judgment based upon the express assumption of the risk, that Mr. Petruzzella was aware of the condition of the stage and either knew or should have known of the risk of tripping over the unsecured cords on the stage, yet continually, repeatedly, and expressly assumed the risk of performing on that stage over a two-year period up until and including the date of the accident.

The trial court’s finding that Mr. Petruz-zella expressly assumed the risk of performing on that stage is contrary to the law of Florida regarding express assumption of risk, implied assumption of risk, and principles of comparative negligence. In the case of Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), and more recently, in Mazzeo v. City of Sebastian, 550 So.2d 1113 (Fla. 1989), the Florida Supreme Court specifically discussed the continuing viability of the doctrine of assumption of risk following the rule of comparative'negligence and whether the doctrine should be expanded beyond express contracts not to sue and injuries resulting from contact sports. The Court specifically found that the doctrine of express assumption of the risk should not be expanded beyond express contracts not to sue and injuries resulting from contact sports, that conduct characterized as implied secondary assumption of risk, which is unreasonable in nature, should be evaluated by the jury under the principles of comparative negligence. Mazzeo, 550 So.2d at 1114-17. Here, given that no express contract or contact sport is involved, Mr. Petruzzella’s conduct of repeatedly walking across a stage with unsecured electrical cords on it is properly characterized as an implied assumption of risk that must be evaluated by the jury under principles of comparative negligence. Accordingly, the summary judgment in favor of the Defendant, Church on the Rocks of Palm Coast, Inc., is reversed, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

EVANDER and LAMBERT, JJ„ and JACOBUS, B.W., Senior Judge, concur.

      . We note that the Defendant’s reply is not the same thing as asserting an affirmative defense in a pleading; and that assumption of risk is an affirmative defense that must be properly pled in the answer pursuant to Florida Rule of Civil Procedure 1.110 (d), which was not done in this case.


author: WALLIS, J.

text:
    Vishnu D. PERSAUD, Appellant, v. Barbara CORTES, as Personal Representative of the Estate of Joshua Batista, and on Behalf of his Survivors, Andrew T. Santiago and Nicholas Gajraj, Appellees.
    Case No. 5D16-863
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellant.
    Victor Kline, of Greenspoon Marder, P.A., and Alexander M. Clem, of Morgan & Morgan, P.A., Orlando, for Appellees, Barbara Cortes as Personal Representative of the Estate of Joshua Batista and on behalf of- his survivors, and Andrew T. Santiago.
    No Appearance for Appellee, Nicholas Gajraj.
   WALLIS, J.

Appellant, Vishnu D. Persaud, appeals the trial court’s final'judgment awarding $1.25 million in punitive damages in favor of Barbara Cortes, as personal representative of the estate of Joshua Batista, and Andrew T. Santiago (collectively, “Appel-lees”). Because the trial court abused its discretion by failing to provide a requested jury instruction, we reverse and remand for a new trial on punitive damages.

In May 2009, Appellees filed a complaint against Persaud for wrongful death and negligence. The claims stemmed from a November 2008 accident in which Per-saud’s vehicle rear-ended a vehicle operated by Santiago and occupied by Joshua Batista, Cortes’s son, causing it to strike a third vehjcle before flipping into an adjacent median. The accident resulted in Batista’s death, significant injury to Santiago, and ultimately two convictions for DUI manslaughter, ■ for which the court sentenced Persaud to two life sentences. Ap-pellees later amended their complaint to include a claim for punitive damages, alleging that, at the time of the accident, Per-saud had consumed a significant amount of alcohol—resulting in a .302 percent blood alcohol reading.

After the compensatory phase of Per-saud’s bifurcated trial, the jury awarded a verdict of $244,419 for Cortes and $75,144.35 for Santiago. The trial court then proceeded to the punitive phase of the bifurcated trial, during which Per-saud’s counsel notified the trial court about the parties’ competing requested jury instructions regarding punitive damages. Appellees’ counsel explained the dispute as follows:

The difference is, Judge, the ■ Defense would like to introduce the idea of the lack of financial resources so that the jury can’t award an amount that would financially bankrupt or destroy Persaud. However, that’s the purpose for what this language is allowed in.-...
The Defense has offered nothing, to show the net worth, or lack thereof, of Mr. Persaud. So they don’t get the benefit of the bargain by arguing he’s in jail, he doesn’t have to pay.

The trial court stated that it would read the portion instructing the jury that it should consider Persaud’s “financial resources,” then bmit the portion reading, “However, you may not award an amount that would financially destroy the defendant.” Fla. Std. Jury Instr. (Civ.) 503.1(c)(2). After-the discussion concluded, Appellees’ counsel responded, “Your Hon- or, just for the record, we renew our objection to the implication of Persaud’s financial resources and instruction. But I understand the Court’s ruling.”

Persaud’s mother later testified during the punitive damages phase of the trial, with the expressly agreed-to purpose of discussing the state of Persaud’s financial resources. She testified that she sees Per-saud once a month and that he has no money, no bank account, no property of any kind, and, as of 2008, no employment, with no expectation of future employment. In a 2010 deposition, read into evidence, Persaud testifiéd that, from 2008 until the time of the deposition, he lived in his mother’s home. Despite this testimony, the jury ultimately awarded punitive damages of $750,000 (Cortes) and $500,000 (Santiago).

Persaud specifically argues the trial court abused its discretion by, refusing to read the following instruction about the award of punitive damages: “[However, you may not award an amount that would financially destroy .(defendants)).]” Fla. Std. Jury Instr. (Civ.) 503.1(c)(2). Below, Appellees -challenged the reading of both this instruction and the instruction requiring the jury to consider Persaud’s financial resources on the basis that Persaud had no intention of establishing his financial circumstances during, trial—as evidenced , by the lack of relevant exhibits- noticed pretrial. Much of the discussion that followed during the charge conference pertained only to the question of whether sufficient evidence would warrant the first instruction about Persaud’s financial resources.

The usage note for the instruction regarding financial destruction states, in part:

7. This instruction is to be given when requested by the defendant. See Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA 2001). It appeal’s, that this instruction can only be used when evidence of the defendant’s net worth has been introduced. See Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Rinaldi v. Aaron, 314 So.2d 762 (Fla. 1975).

Fla. Std, Jury Instr. (Civ.) 503.1(c) n.7. Here, Persaud satisfied both requirements. Appellees themselves recognized during the charge conference that Persaud requested the instruction: “[T]he Defense would like to introduce the idea of the lack of financial resources so that the jury can’t award an amount that would financially bankrupt or destroy Persaud.” Later, Per-saud supplemented the record with., the written version of his proposed jury instructions, which included the financial destruction language, explaining that it “was presented to and reviewed by the Court prior to the punitive damages phase of the trial in this case but ... was inadvertently not made part of the Court’s record at that time.” Importantly, Florida Rule of Civil Procedure 1.470(b) provides that “[n]o party may assign as error ... the failure to give any instruction unless that party requested the same.” (emphasis added). “Concerning instructions a party has requested in writing which are rejected by the court, ’there is no requirement for [an] additional objection to preserve that issue for appeal.’” Feliciano v. Sch. Bd. of Palm Beach Cty., 776 So.2d 306, 308 (Fla. 4th DCA 2000) (alteration in original) (quoting Luthi v. Owens-Corning Fiberglass Corp., 672 So.2d 650, 652 (Fla. 4th DCA 1996)). Thus, the law required no further objection for Persaud to preserve the trial court’s failure to give the requested jury instruction.

Persaud satisfied the second requirement regarding evidence of net worth by introducing the testimony of his mother, who discussed his lack of assets and employment without any objection or challenge from Appellees. See Wransky, 801 So.2d at 243 (“The only evidence of Wrap-sky’s net worth was his salary of $9 per hour and $1,000 in assets. An award of $7.5 million is clearly excessive in light of such meager assets.”). Notably, the usage note for the instruction regarding financial resources also requires the introduction of evidence of a defendant’s financial worth. See Fla. Std. Jury Instr. (Civ.) 503.2(c) n.4. Because the trial court elected to provide this instruction, which required evidence of net worth, it also should have provided the requested instruction about financial destruction, which required the same. Per-saud persuasively argues the provision of this jury instruction, in light of his financial circumstances, would have resulted in a punitive damages award of less than $1.25 million, an amount that he reasonably contends will financially destroy him. Accordingly, we reverse and remand for a new trial limited to the issue of punitive damages.

REVERSED and REMANDED with Instructions,

ORFINGER, J„ and JACOBUS, B.W., Senior Judge, concur.

      . Persaud also appeals the trial court's exclusion of evidence pertaining to his convictions and sentences in the punitive phase of his trial. We affirm without discussion.

      . Persaud argues the trial court committed additional errors by refusing to grant a partial mistrial of only the punitive damages phase and by denying his motion for remittitur. Because remand for a new trial on punitive damages eliminates the need for relief on these grounds, we do not address them.