author: Per Curiam.

text:
    Merle J. STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-945
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]
    Diamond R, Litty, Public Defender, and Usha Maharajh, Assistant Public Defender, Stuart, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING/CLARIFICATION

Per Curiam.

We grant defendant’s motion for clarification, withdraw our previous opinion, and issue the following opinion in its place.

We reverse the order denying defendant’s motion for postconviction relief and remand for resentencing pursuant to Atwell v. State, 197 So.3d 1040 (Fla. 2016), and Lawton v. State, 181 So.3d 452 (Fla. 2015), As to the life sentences imposed on the homicide and non-homicide counts, defendant is entitled to be resentenced pursuant to the sentencing provisions enacted in Chapter 2014-220, Laws of Florida. Atwell, 197 So.3d at 1050; Lawton, 181 So.3d at 453.

We disagree with the State’s argument that defendant’s entitlement to relief under Atwell depends on his presumptive parole release date. Michel v. State, 204 So.3d 101 (Fla. 4th DCA 2016) (certifying conflict with Stallings v. State, 198 So.3d 1081 (Fla. 5th DCA 2016), and Williams v. State, 198 So.3d 1084 (Fla. 5th DCA 2016)).

Reversed and remanded for resentenc-ing.

Gross, May and Levine, JJ., concur.

      , As to defendant’s 30-year sentence for aggravated battery on a person over 65 years of age, this decision does not preclude defendant from seeking relief in the trial court pursuant to Kelsey v. State, 206 So.3d 5 (Fla. 2016).


source: Caselaw Access Project

license: Public Domain

text:
    Daniel S. NEWMAN, as Receiver FOR FOUNDING PARTNERS STABLE VALUE FUND, LP, Founding Partners Stable Value Fund, II., LP, Founding Partners Global Fund, Ltd and Founding Partners Hybrid-Value Fund, L.P., Appellant, v. ERNST & YOUNG, LLP, a Delaware Limited Liability Partnership, and Mayer Brown, LLP, an Illinois Limited Liability Partnership, Appellees.
    No. 4D16-2162
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2017]

      Stuart Z. Grossman and Rachel W. Furst of Grossman Roth Yaffa Cohen, P.A., Coral Gables, and Leo R. Beus, Scot C. Stirling and Robert 0. Stirling of Beus Gilbert PLLC, Phoenix, AZ, for appellants.
    Edward A. Marod, Aaron J. Horowitz and Joshua A. Levine of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee Ernst & Young, LLP.
   ON MOTION FOR REHEARING

Per Curiam.

We grant appellant’s motion for clarification and rehearing, vacate our prior opinion, and substitute the following in its place.

Appellant Daniel Newman, the court-appointed receiver for several investment funds collectively known as Founding Partners, appeals a non-final order granting Ernst & Young, LLP’s, (“E & Y”) revised motion to compel arbitration. Newman raises several issues on appeal. We address three of- them. First, we agree with the trial court that a delegation clause contained in the engagement agreement with E & Y controls the determination of whether arbitration covers the issues raised in the complaint. Second, the trial court determined that the claims of the individual investors are subject to arbitration. Because several of the claims are direct, rather than derivative, we disagree in part. Third, we agree with the trial court that the claims of Global Fund, Inc., a Founding Partner, are derivative and thus subject to arbitration, even though Global did not sign an arbitration agreement. Therefore, we affirm in part and reverse in part the order compelling arbitration.

I. Background

In 2009, the Securities and Exchange Commission brought a securities fraud complaint against Founding Partners Capital Management, the general partner and investment manager of Founding Partners, and their president. Newman (“the Receiver”) was appointed successor receiver for the funds. In 2015, the Receiver filed a complaint against E & Y in 1 his capacity as court-appointed Receiver for the funds as well as the assignee of claims assigned by the individual investors in the funds. The complaint alleged claims of professional malpractice, negligent misrepresentation, fraud, breach of fiduciary duty, aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and aiding and abetting breaches of statutory duty'by E&Y.

These claims arose out of E & Ys role as auditor of financial statements of the Founding Partners for the fiscal years of 2000-07. The Receiver alleged that Founding Partners loaned hundreds of millions of dollars to two factoring companies who were supposed to use the loan proceeds to purchase short-term, high-quality receivables payable by the government or by insurance companies. The third amended complaint alleges that, unbeknownst to the investors, the factoring companies began to misuse the loan .proceeds by, among other things, purchasing receivables that were longer-term, less liquid, and much riskier in nature than what was represented to the investors in the financial statements. The Receiver’s basic theory was that E&Y knew, or should have known, that the factoring companies began to misuse Founding Partners’ loan proceeds, but nevertheless issued “clean” audits.

E&Y moved to compel arbitration based on the engagement agreement entered into with Founding Partners, which contained an arbitration clause. E&Y argued that the arbitration agreements contain delegation clauses which command that the arbitrators, not the court, determine the arbitrability of all claims. E&Y asserted that the Receiver was bound by the engagement agreements because he stands in the shoes of the funds. Further, E&Y argued that the assigned claims of the individual investors are derivative of the claims of the funds and are thus subject to arbitration. The trial court agreed and ordered arbitration as to all claims. Newman appeals that order.

II. Analysis

We find that the delegation clause contained in the arbitration provision of the engagement agreement controls the determination of what issues are subject to arbitration. Generally speaking, when a delegation provision is included in an arbitration agreement, the court “only retain[s] jurisdiction to review a challenge to that particular provision. Absent a- direct challenge, we must treat the delegation provision as valid and allow the arbitrator to determine the issue of arbi-trability.” Angels Senior Living at Connerton Ct., LLC v. Gundry, 210 So.3d 257, 258 (Fla. 2d DCA 2017) (quoting Parnell v. CashCall, Inc., 804 F.3d 1142, 1148 (11th Cir. 2015)). The Receiver did not challenge the delegation clause itself. Thus, whether an arbitrable issue exists is a determination that should be delegated to an arbitrator.

As'to the claims of the individual investors, we conclude that the court erred in ordering arbitration of some of the assigned claims of the individual investors which were direct, not derivative, claims of the investors. This Court, some years ago, explained the distinction between derivative and direct claims: “A direct or individual action is a suit by a stockholder to enforce a right of action existing in the stockholder.” Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 388 (Fla. 4th DCA 1999) (citing Fort Pierce Corp. v. Ivey, 671 So.2d 206, 207 (Fla. 4th DCA 1996)).

A derivative suit is an action in which a stockholder seeks to enforce a corporate right or to prevent or remedy a wrong to the corporation, where the corporation, because it is controlled by the wrongdoers or for other reasons, fails and refuses to.take appropriate action for its own protection.

Id.; see also Strazzulla v. Riverside Banking Co., 175 So.3d 879, 882-83 (Fla. 4th DCA 2015). In KPMG, LLP v. Cocchi, 88 So.3d 327 (Fla. 4th DCA 2012), a case factually similar to the. present case, we held that negligent misrepresentation and Florida Deceptive and Unfair Trade Practices .Act (“FDUTPA”) claims were direct claims ,by the investors against the firm that audited the partnerships. Id. at 330. But the claims of professional malpractice and aiding or abetting breach of fiduciary duty were derivative claims. Id. at 331. This Court explained that each claim must be examined to determine whether the claim of an individual investor is direct or derivative:

In Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004), the Delaware Supreme Court established a test when analyzing whether an action by stockholders (or limited partners) was direct or derivative of the corporation/general partnership’s cause of action. The questions which must be asked are: 1) who suffered the harm, the corporation or the stockholders individually, and 2) who received the benefit of the recovery or remedy? Because the claims of negligent misrepresentation and violation of FDUTPA allege individual harm to the plaintiffs and involve torts directed at the individual limited partners, we conclude that the limited partners suffered individual harm.

Id. at 329-30 (quoting KPMG LLP v. Cocchi, 51 So.3d 1165, 1167-68 (Fla. 4th DCA 2010), vacated, 565 U.S. 18, 132 S.Ct. 23, 181 L.Ed.2d 323 (2011)). Similarly, in this case, the individual investors alleged direct harm in their investment decisions because of E & Y’s negligent misrepresentations. In a factually similar case, the court in Askenazy v. Tremont Group Holdings, Inc., 29 Mass.L.Rptr. 340, 2012 WL 440675, at *10 (Mass. Sup. Ct. Jan. 26, 2012), also held that such claims were direct and not derivative, stating:

specifically, the plaintiffs, allege that, as a result of KPMG’s. misstatements and professional incompetence, they were induced to invest in the Rye Funds, to stay invested, and in some cases to make additional investments in the Funds. As such, these claims describe individual ized harm independent of harm to the partnership, and rest on a duty to each plaintiff that is not merely derivative of KPMG’s fiduciary duties as the Rye Funds’auditor.

Id. (emphasis added). In this case, the complaint makes similar allegations that the investors were injured through investing or making additional investments in the funds because of the misrepresentations of E & Y. In addition, in the count for aiding and abetting the breach of statutory duty, thé Receiver alleges the breach of statutory duties which are owed to the individual investors. Therefore, those claims of negligent misrepresentation, fraud, and aiding violation of statutory duties are not derivative, and, thus, are not subject to arbitration, where none of the individual investors agreed to ' arbitrate their claims. On the other hand, we conclude that the breach of fiduciary claims and professional malpractice claims are derivative.- The count alleging professional malpractice against E & Y alleges only that the Founding Partners, and not the investors, were damaged. As to the breach of fiduciary claim, the damages from the improper audits were a failure to reveal that the collateral to secure the Founding Partners’ loans was grossly inadequate. These were- damages to the Founding Partners when the loans defaulted, not direct damages of the investors-Therefore, in this case, the breach of fiduciary claims of the investors are derivative and can be arbitrated.

The receiver also contends that Global Fund, one of the Founding Partners, should not be required to arbitrate its claims, because it did not join in the arbitration agreement. Although it is clear that Global was not named in the arbitration agreement, the complaint alleges that it is a Founding Partner, and its damages are therefore the same damages as the Founding Partners. No separate claim of direct damages for Global is alleged. Therefore, we conclude that all of its claims are derivative of those of the other Founding Partners, and the court did not err in granting arbitration of Global’s claims. -

Consequently, we affirm the trial court’s order compelling arbitration of the claims of the Founding Partners, including Global, and the claims of the investors for breach of fiduciary duty and aiding and abetting breach of fiduciary duty. We reverse the order compelling arbitration of the negligent misrepresentation, fraud, and aiding and abetting the breach of statutory duty counts.

Warner, Ciklin and Taylor, JJ., concur.


author: Forst, J.

text:
    BK MARINE CONSTRUCTION, INC., Appellant, v. SKYLINE STEEL, LLC, and Great American Insurance Company, Appellees.
    No. 4D16-1241
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Robert A. Sweetapple and Berkley S. Vitale of Sweetapple, Broeker & Varkas, PL, Boca Raton, for appellant.
    Patrick G. Brugger and Michael Jay Rune II of Shutts & Bowen, LLP, Miami, for appellee Skyline Steel, LLC.
   Forst, J.

Appellant BK Marine Construction, Inc. (“BKM”) appeals the trial court’s final summary judgment order in favor of ap-pellee Skyline Steel, LLC (“SKY”). The trial court found that under the Rental Contract for Steel Sheet Piling (“Rental Contract”), BKM owed SKY a total sum of $776,853.27 including accrued interest. On appeal, BKM argues the trial court improperly granted summary judgment because the court granted relief greater than that pled in the amended complaint, and because genuine issues of material fact remained as to the amount of damages awarded. Finding the second argument meritorious, we reverse and remand for further proceedings consistent with this opinion.

Background

BKM is a Florida construction company that regularly used steel sheet pilings for its construction projects, including a large endeavor called the Interstate 595 Project (“1-595 Project”). To complete the 1-595 Project, BKM acquired steel sheet pilings from SKY, with which BKM had a business relationship spanning over twenty-five years. In April 2011, BKM began receiving invoices from SKY pertaining to the 1-595 Project. Two months later, on June 2, 2011, BKM and SKY formally entered into the Rental Contract in which SKY agreed to rent steel sheet pilings to BKM in exchange for payments upon receipt of periodic invoices. The Rental Contract specifically referred to project “I-595, 3rd Section” and stated the agreement would become binding upon acceptance and execution of the contract or when shipments began. The Rental Contract also listed the monthly prices and specifications for steel sheet pilings, but it did not state a specific amount that would be owed by BKM to SKY. BKM continued placing orders and receiving invoices from SKY through July 2012.

One year after the creation of the Rental Contract, BKM notified SKY that it was behind on paying several invoices and outlined a plan to pay the outstanding balance of “$500,000 (+ or -).” Nearly one year later, SKY filed a complaint against BKM, alleging, in pertinent part, breach of contract and unjust enrichment. In response, BKM moved to dismiss the complaint on the grounds that “without copies of the exhibits being attached to the pleading,” BKM was unable to respond to the complaint, and SKY failed to appropriately state' a cause .of action. SKY then amended its complaint and attached the Rental Contract, but did not attach any other contracts nor any invoices. BKM subsequently filed .its answer asserting three affirmative defenses: (1) SKY’s complaint failed to state a cause of action; (2) BKM had already paid the outstanding balance owed under the contract; and (3) SKY could not pursue a claim in equity (unjust enrichment), as there was an enforceable contract.

SKY ultimately moved for summary judgment. It explained that no issues of material fact remained because BKM signed the Rental Contract, SKY delivered the ordered materials, and BKM failed to pay the full amount owed under the invoices; therefore, SKY argued, it met all of the requisite elements of the breach of contract claim. SKY attached several documents to its motion. First,' it attached an affidavit of indebtedness by its Chief Financial Officer, who explained that, “[b]e-ginning on May 10, 2011, Skyline delivered invoices to BKM under the Agreement totaling $669,583.93,” and that BKM admitted in a letter that it owed “$500,000 (+ or -).” The CFO attached the letter to her affidavit. Second, SKY' attached a multitude of invoices dating from April 2011 through July 2012 detailing the monthly rental agreements.

In response, BKM argued there remained genuine issues of material fact, and filed a deposition transcript of one of SKY’s corporate representatives, who appeared to be the employee at SKY most familiar with the present lawsuit. The representative testified that he knew the I-595 Project had multiple sections but he did not know which invoices pertained to which section. To figure that out, he mentioned he would have to see the installation records from the general contractors. He also explained how1 he did not know whether SKY was owed more than $15,000 under the Rental Contract (for “1-595, 3rd Section”) attached to the amended complaint.

The trial court granted SKY’s motion for summary judgment,' awarding what it deemed to be the unpaid principal and interest due on the Rental Contract, a total of $776,853.27. BKM timely appealed this final summary judgment order.

Analysis

“The standard of review for an order granting summary judgment is de novo.” Int'l Christian Fellowship, Inc. v. Vinh on Prop., Inc., 954 So.2d 1214, 1215 (Fla. 4th DCA 2007) (quoting 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So.2d 1220, 1221 (Fla. 4th DCA 2004)). “Summary judgment, is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id, (quoting Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)). On this first requirement, “[i]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985); see also Dellatorre v. Buca, Inc., 211 So.3d 272, 273 (Fla. 4th DCA 2017) (similar).

BKM raises two issues on appeal. First, it argues that the trial court erred in its final summary judgment order by granting more damages than what SKY sought in its amended complaint. Next, it argues that myriad genuine issues of material fact remained- as to the amount of damages owed under the contract sued-upon. SKY disagrees. It contends that there were no genuine issues of fact regarding the amount of, damages awarded, per the invoices attached to its summary judgment motion, and that it did not seek greater damages than it pled in its complaint. On this last point, SKY contends that even if thére was error, that error was harmless because BKM was in possession of the invoices almost two years before the filing of the motion for summary judgment, and SKY alleged an alternative unjust enrichment claim.

We find merit in BKM’s second argument on appeal, and hold that the trial court erred in granting summary judgment in favor of SKY. Multiple genuine issues of material fact remained below as’ to 'which of the invoices attached to the motion for summary judgment correspond to the Rental Contract attached to SKY’s amended complaint. Several characteristics-of the invoices ■ suggest to us that they relate to the whole 1-595 Project, and not-merely “the 3rd Section.” First, none of the invoices specify whether they relate to a designated section of the 1-595 Project. Second, many of the invoices predate June 2, 2011, the date the Rental Contract was signed. As BKM rightfully notes, the first invoice was dated April 7, 2011, fifty-six days before the parties signed the Rental Contract. Further, SKY’s CFO stated in an affidavit that “[bjeginning on May 10, 2011, Skyline delivered invoices to BKM under the Agreement totaling $669,583.93.” Third, SKY’s corporate representative testified during a deposition that he knew, there were five sections of the 1-595 Project, but he did not know if the invoices at issue pertained solely to the third section or the entire 1-595 Project. Instead, he testified that the installment records, which were not used as evidence by either party, could further clarify the issue.

This uncertainty regarding which invoices correspond to which section of the 1-595 Project is inextricably tied to the amount of damages SKY could seek under the Rental Contract — another material issue of fact. The SKY corporate representative admitted he did not know if more than $15,000 was due on the Rental Contract attached to the amended complaint. Due to this uncertainty in the amount of damages owed under the Rental Contract, we must reverse the summary judgment.

We also note SKY’s alternative argument that, even if it loses on the breach of contract issue, the invoices still support its unjust enrichment claim and, therefore, the. final summary judgment award. - However, SKY only proceeded under the complaint for damages arising under the third section of the 1-595 Project, whereas the unjust enrichment claim references invoices for work that predated that rental contract. “A court may not go beyond the four corners of the complaint.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla 4th DCA 2001) (citing Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000)). SKY made clear in its general allegations that the Rental Contract, which applied only to the third section of the I-595 Project, was the operative contract at hand. The existence of this express contract necessarily defeated SKY’s unjust enrichment claim. See Real Estate Value Co. v. Carnival Corp., 92 So.3d 255, 263 n.2 (Fla. 3d DCA 2012) (“We acknowledge the well settled principle that ‘the law will not imply a contract where an express contract exists concerning the same subject matter.’ ” (emphasis omitted) (quoting Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984))).

Conclusion

Because genuine issues of material fact remain, we reverse the trial court’s entry of final summary judgment. There remains uncertainty regarding which invoices pertained to which section: of the 1-595 Project, and , by way of such uncertainty, the amount of damages SKY could obtain under the Rental Contract.

Reversed.

Conner and Klingensmith, JJ., concur.

      . There is some evidence in the record that BKM began receiving invoices before April 2011.

      . The representative testified that he did not know if there were written contracts for the other four sections of the 1-595 Project.

      . By way of our disposition, we need not address BKM’s first argument on appeal.


author: Klingensmith, J.

text:
    PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Appellants/Cross-Appellees, v. Gertrude MARCHESE, as Personal Representative for the Estate of Salvatore Marchese, Appellee/Cross-Appellant.
    No. 4D16-2003
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]

      Joseph H. Lang, Jr., of Carlton Fields Jorden Burt, P.A., Tampa, and Scott A. Chesin of Mayer Brown LLP, New York, NY, for appellant/cross-appellee Philip Morris USA Inc.
    Gregory G. Katsas of Jones Day, Washington, DC; and Charles R.A. Morse of Jones Day, New York, NY, for appellant/cross-appellee R.J. Reynolds Tobacco Co.
    Lance V. Oliver and Lisa M. Saltzburg of Motley Rice LLC, Mt. Pleasant, SC; Howard M. Acosta of Law Offices of Howard M. Acosta, St. Petersburg; Kent G. Whittemore, Hutch Pinder gnd Erin W. Lohmiller of The Whittemore Law Group, P.A., St. Petersburg; and Bruce H. Den-son of Bruce H. Denson, P.A., St. Peters-l burg, for appellee/cross-appellant.
   Klingensmith, J.

Appellee Gertrude Márchese filed a wrongful 4eath action against appellants, Philip Morris USA, Inc., (“PMUSA”) and R.J. Reynolds Tobacco Company (“Reynolds”). Appellee sought compensatory and punitive damages under the theories of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. After appellee obtained a compensatory and punitive damages award, the trial court reduced the jury’s compensatory damages award by the amount of comparative fault attributed to the decedent.

Appellants raise various arguments on appeal, and we affirm on those arguments without further discussion. On the cross-appeal, appellee argues that the appellants waived their right to reduce the compensatory award by repeatedly stating that the award would not be reduced. We agree, and reverse for entry of judgment in the full amount of the jury’s verdict.

“[A] trial court’s finding of waiver is reviewed for abuse of discretion.” R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 492 (Fla. 4th DCA 2015) (quoting R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473, 479 (Fla. 1st DCA 2014)). “Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right.” Hiott, 129 So.3d at 479 (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n.12 (Fla. 2001)). However, courts apply a de novo standard when considering the apportionment of damages under section 768.81(4), Florida Statutes (2011). See id. at 495. See also Philip Morris USA, Inc. v. Boatright, 217 So.3d 166, 172 (Fla. 2d DCA 2017) (“[W]e review de novo the legal issue of whether the conduct qualifies as negligence or as an intentional tort.”).

At the Phase I charge conference, the parties disputed a proposed jury instruction on damages. Counsel for the appellants stated, “We’ve been very clear in our pleadings and in our arguments that we are seeking apportionment only on the non-intentional torts not on the intentional torts.” In her proposed jury instructions, appellee suggested a damages instruction stating: “Please note that if you find for Plaintiff on either or both of her claims for fraudulent concealment and/or agreement to conceal, the Court -will not reduce the amount of Plaintiffs damages by the percentage of fault you assign.” Her proposed verdict form similarly i’ead: “[Yjou should not make any reduction because of any responsibility you charge to [the decedent]. ... There will be no such reduction if you find for the Plaintiff on his claims for concealment or conspiracy to conceal.” Appellants proposed a damages instruction devoid of such a comparative fault instruction. They averred, “[Appellants] acknowledge that this Court has previously held that comparative fault does not apply to Engle plaintiffs’ intentional tort claims. For preservation purposes, we respectfully maintain our argument that comparative fault should apply even if Plaintiff succeeds on those claims.”

During Phase d closing arguments, ap-pellee’s counsel argued, “[T]here are not going to be any reduction^] for comparative fault if you find for us on the fraud claims.” Counsel for PMUSA added, “If you decide based on the facts 'that [the decedent] is 95 percent responsible, if you answer yes to question 5 or question 6, comparative fault is out the window and [appellee] gets a hundred percent of the damages.”

At the conclusion' of the Phase I-trial, the trial court instructed the jury consistent with the appellants’ arguments, that “in determining the total amount of damages, you should not make any reduction because of the responsibility of [the decedent] .... There will be no such reduction if you find for the Plaintiff on her claims for concealment or conspiracy to conceal.”

The jury ultimately allocated 22.5% fault to Reynolds and PMUSA, respectively, and 55% to the decedent. They also found in favor of appellee on her intentional tort claims.

In Phase II opening statements,- counsel for Reynolds acknowledged that the jury awarded “a significant amount of money, one million dollars.” He reminded the jury that “there will be no reduction of that million dollars.” Further, counsel stated, “[A]t the end of the day, [appellee’s] ... award will not be reduced by that 55 percent[.]”

In that same vein, during Phase II closing arguments, counsel for Reynolds suggested the jury had already “fully compensated. [appellee] with [an] award of $1 million[,]” and implied she would receive all of it by stating that “[the jury] sent a loud and clear message with that reward.” He added, “[One] million dollars ... is a significant amount of money .... To be clear that money is going to [appellee],”

Counsel for PMUSA assured the jury that, because it determined the appellants were liable for the intentional torts, “there will be no reduction in damages.” He stated, “Comparative fault will not apply, and [appellee] will receive 100 percent of the million dollars that you awarded.” Counsel continued, “In. your Phase I verdict you awarded $1 million to [appellee]. No matter what the future holds for [appellee], one thing you can be sure of is that financially' she will never want for anything throughout the rest of her life.” He added, “[I]n this phase of the trial, you will have to determine, based on everything you’ve heard, whether there is a need to award additional money to [appellee] to punish and deter [PMUSA] and other companies.”

PMUSA’s counsel also argued in his closing:

Now, before I talk more about the Court’s instructions, I want to spend just a few minutes talking about the comparative fault.
In your Phase I verdict, you decided that [the decedent] shares some of the' responsibility for his decision to smoke, and you allocated 55 percent fault: to him.
But because you answered yes to Questions 5 and 6, there will be no reduction in damages: Comparative fault will not apply, and [appellee] will receive 100 percent of the million dollars that you awarded.
In [Phase II], if you award punitive damages, they will not be reduced by the amount of [the decedent’s] fault You know, obviously it’s your decision, but I just want to, again, make sure that we all understand exactly the effect of the decisions that you malte.

(Emphasis added). At’ the conclusion of Phase II, the jury awarded appellee punitive damages totaling $500,000, with $250,000 assessed against each company.

After trial, the appellants moved to apply Florida’s comparative fault statute to the compensatory damages award by requesting a reductión in the award consistent with the jury’s allocation of fault. Before ruling on the motion, the trial court entered a final judgment for the entire compensatory amount. However, during the hearing on the appellant’s motion for the reduction, the trial court stated:

Regarding the motion for comparative fault, Counsel, I, you know, ruled consistently throughout that I didn’t think comparative fault was applicable. I was, you know, educated by the Fourth DCA in- their recent decision in Schoejf and it seems to me you’re entitled to it. I don’t believe there’s any waiver, respectfully. This is something that was hotly contested throughout every one — each and every one of the trials.

The trial court considered the decedent’s comparative fault of 55%, and entered an Amended Final Judgment that reduced the compensatory damages award from $1,000,000 to $450,000. This appeal followed.

In Schoejf, the plaintiff cross-appealed the trial court’s order reducing the compensatory damages award based on the plaintiffs comparative fault. 178 So.3d at 492. The plaintiff alleged that fraudulent concealment was an intentional tort, and comparative fault was barred under section 768.81(4). Id. There, Reynolds countered that the trial court correctly applied comparative fault. Id. This court held, “Section 768.81 does not permit the reduction of compensatory damages by plaintiffs comparative fault where the suit is based upon an intentional tort (‘the intentional tort exception’).” Id.

In its analysis of Reynolds’ claim that the plaintiff waived any argument regarding the intentional tort exception, this court stated:

The case with the most in depth discussion on waiver is Hiott, 129 So.3d at 479-82. There, a tobacco plaintiff argued that the trial court impropei'ly reduced her compensatory damages' based on the smoker’s comparative fault because she prevailed on her intentional tort claims against the tobacco companies. Id. at 479. The First DCA disagreed, holding that under the facts of the case, the trial court did not abuse ⅜3 discretion in finding that the plaintiff, invited the error by misleading the jury. Id. at 481. Specifically, the plaintiff “encouraged the jury, from voir dire through closing argument, that she accepted that her deceased husband was partially at fault for his smoking-related illness and death. Thus, she expected the jury to allocate some fault to her late husband.” Id. Indeed, the jury was instructed that it “should not make any reduction because of the fault you charge to [the smoker]. The Court will enter a judgment based on your verdict and will reduce the total amount of damages by the percentage of fault which you charge to [the smoker].” Id. However,:the plaintiff “failed to inform the jury that she intended to reserve her right to assert the inapplicability of comparative fault to any of her claims.” Id. at 480-81. Under the circumstances, the court concluded that the jury was likely misled to believe that its award would be reduced by its determination of comparative fault. Id- at 481-82. Thus, the jury may have reached -a different verdict on damages had it known that the tobacco company would bear the entire amount. See id.’, see also [R.J. Reynolds Tobacco Co. v.] Buonomo, 138 So.3d [1049,] at 1053 n.3 [(Fla. 4th DCA 2013) ] (holding, without discussion, that any error in the reduction of a tobacco plaintiffs compensatory damages award was invited ‘and/or waived by the plaintiff).
In R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849, 851 (Fla. 1st DCA 2013), the same' court reached the opposite conclusion under slightly different facts. There, 'the First DCA held that the trial court did not abuse its discretion in finding a tobacco plaintiff did not waive application of the intentional tort exception. Id. The court based its conclusion on the facts that: 1) the plaintiffs “complaint 'clearly and specifically sought ‘potential apportionment of fault and damages bn all counts other than those alleging intentional torts;’ ” 2) the plaintiff “never argued to the jury’ or the court that the damages for his father’s terminal illness should be reduced by his portion of fault;” and 3) “the defendants agreed to the verdict form which listed each cause of action, including the intentional torts, and requested the jury to indicate whether the defendants had committed each individual tort or not.” Id.

Schoeff, 178 So.3d at 493.

Also in Schoeff, the plaintiff. coneeded that comparative fault applied to negligence and strict liability claims, but not to ‘intentional tort claims. Id. at 494. Plaintiffs counsel told prospective jurors that his client accepted partial responsibility, and focused his argument on comparative fault. Id. Thereafter, the trial court instructed the jury that if they found Reynolds guilty of negligence and product defect, they would be required to consider comparative fault, but that the jury “should not make any reductions because of the responsibility of James Schoeff.” Id. As a result, this court held “that the trial court did not abuse its discretion when it found that the plaintiff waived her intentional tort exception argument.” Id. at 495. Under such circumstances, this court found that “reversing would unfairly allow the plaintiff to 'have it both ways.’” Id.

This court also discussed the “applicability of the comparative fault intentional tort exception to this suit.” Id. We stated that “section 768.81 cannot be avoided simply because the action includes an intentional tort — rather the ‘entire action’ must be 'founded on an intentional tort.’ ” Id. Therefore, “at its core, Plaintiffs suit is a products liability suit based on conduct grounded in negligence.” Id.

. In this case, the appellants each pled the affirmative defense of comparative fault, and disagreed with a proposed jury instruction that comparative fault would not be applied. Nonetheless, they repeatedly referenced the fact that appellee would receive the entire compensatory damages award. Appellants did not reveal to the jury that they were going to seek comparative fault after the trial. They submitted their motion for comparative fault without knowing that, almost three weeks later, this court would release, the Schoeff opinion.

Based on these facts, it seems clear that appellants always intended to seek a reduction based on comparative fault. But as we have previously stated, they cannot have it both ways. See Schoeff, 178 So.3d at 495 (“It would be inequitable to allow Plaintiff to use ‘the admission that [Mr. Schoeff] was partly at fault as a tactic to secure an advantage with the jury throughout the trial’ and then completely avoid comparative fault after the verdict.”) (quoting Hiott, 129 So.3d at 481). Appellants’ repeated suggestions to the jury that there would be no reduction of the compensatory damages award were made in hopes of minimizing the amount of punitive damages awarded. At no point did appellants’ counsel inform the jury of their intent to seek a reduction of the compensatory damages award based on comparative fault, nor did they remain silent on the issue. Instead, appellants affirmatively represented that appellee would be fully compensated as a “shield” against the potential imposition of a large punitive damages award, all the while intending to use the comparative fault statute as a “sword” to reduce the amount awarded.

Nowhere is this more evident than during Phase II closing arguments ’ when counsel for PMUSA stated, “If you believe that punitive damages are appropriate in this case, what I suggest you do is award an additional $225,000” based on the allocation of 22.5% fault to PMUSA. He emphasized that “if you do that, one thing you can be sure of is that [appellee] mil leave the courtroom with $1,225 million. And if you did that, then the twin goals of compensation and punishment will be served.” (Emphasis added). It appears that this 'strategy was successful■ in influencing the jury’s decision since they awarded appellee $250,000 per appellant in punitive damages, closely approximating the amount suggested by the appellants.

Whether it be in politics or trial strategy, “elections have consequences.” In both Schoeff and Hiott, we held that a party waives his right to object to a reduction when he tells the jury that comparative fault will apply. Schoeff, 178 So.3d at 495; Hiott, 129 So.3d at 481. The reverse is also true. Appellants elected to waive their right to a reduction of the verdict when théy repeatedly and expressly told the jury that comparative fault would not apply. Philip Morris USA, Inc. v. Green, 175 So.3d 312, 314 (Fla. 5th DCA 2015) (“[W]hether labeled ‘estoppel’ or ‘waiver,’ taking two such diametrically opposed positions in the same case is misleading, unfair, and unacceptable.”); Foreline Sec. Co. v. Scott, 871 So.2d 906, 911 (Fla. 5th DCA 2004) (noting that the jury “may have reached a different verdict on damages had it known” how the comparative fault allocation would affect the verdict). Therefore, the trial court erred when it ruled that no waiver occurred.

We reverse the comparative fault reduction applied to the jury’s verdict, and remand to the trial court for entry of a judgment in favor of appellee for $1.5 million and a determination of appellee’s entitlement to attorneys’ fees under section 768.79, Florida Statutes (2015). See Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391, 396 (Fla. 2016).

We affirm without comment as to all other issues raised on the appeal and the cross-appeal.

Affirmed in part, reversed in part, and remanded.

Ciklin, J., and Belanger, Robert E., Associate Judge, concur.

      . This case was filed as an Engle progeny case. The First District succinctly discussed the Engle class action:

        Engle began as a smokers' class action lawsuit filed in 1994 agáinst cigarette companies and tobacco industry organizations seeking damages for smoking-related illnesses and deaths. The class included all Florida "citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” [Engle v. Liggett Group, Inc., 945 So.2d 1246, 1256 (Fla. 2006) ]. The tobacco" company defendants included the appellant in this case, R.J. Reynolds Tobacco Company ("RJR”). In Engle, the supreme court decer-tified the class, but allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants.

        R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1062-63 (Fla. 1st DCA 2010).

      . 178 So.3d at 496.


text:
    John H. FOGARTY, Appellant, v. Christiana TRUST, Appellee.
    No. 4D16-2899
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    John H. Fogarty, South Bay, pro se.
    Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.
   Per Curiam.

We affirm the final judgment of foreclosure in all respects but one. We reverse the award of $6,335.00 in attorney’s fees. Appellant did not waive his right to an evidentiary hearing on the amount of the appellee’s attorney’s fees. On remand, if appellee seeks attorney’s fees, the court shall conduct an evidentiary hearing on that issue.

Affirmed in part, reversed in part, and remanded.

Warner, Gross and Taylor, JJ., concur.


text:
    Darnell RAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4115
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]

      Daniel P. Hyndman, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and'Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee,
   Forst, J.

Appellant Darnell Razz was found guilty of two counts of first-degree murder and one count of robbery with a firearm while masked. He was sentenced to two consecutive terms of life in prison, for the murder convictions concurrent to an additional life sentence for the robbery conviction. On appeal, Appellant raises six arguments. We affirm without discussion five of these arguments, and solely address Appellant’s claim that the trial court erroneously permitted the prosecution to admit' evidence of an unrelated shooting. As set forth below, we affirm on this issue, and we affirm the trial court’s judgment and sentence.

Background

One evening in April 2010, two individuals wearing masks.entered a Circle K convenience store. Within minutes, gun shots were heard, two store employees were dead, and a small amount of cash was stolen. Appellant and Robert Alvarez were eventually arrested and charged with the Circle K murders. .

The State’s primary witness at trial was M.G. She testified that on the evening of the murders, Alvarez texted M.G. that he wanted a ride. M.G. picked up Alvarez from an apartment complex, and at his request, she then drove to another apartment complex and picked up Appellant. At Alvarez’s continued direction, she procéed-ed to drive to a recreation center parking lot behind the Circle K, and then he 'and Appellant got out of the car. When they returned after an uncertain amount' of time (less than thirty minutes) they appeared “energized and uppity.” They urgently instructed M.G. to hurry up and leave. She noticed that Appellant carried a “big, long gun” after he got back in the car, even though she had not seen him exit the car with the' gun.

Eight days after the Circle K murders; on May 8, 2010, Appellant and another individual committed a robbeiy and attempted homicide on a different victim. The victim survived and identified Appellant as the individual who shot at him. Moreover, bullets from the shooting matched bullet fragments found at the Circle K. There was also testimony from additional witnesses pertaining to a separate incident that occurred twelve days after the Circle K murders. The witness, a police officer, identified Appellant as the driver of a vehicle parked in an apartment complex. Upon seeing the police officer, Appellant ran from the vehicle and was later detained. During the chase to apprehend Appellant, another witness saw an individual matching Appellant’s physical features throw a gun into the neighborhood lake. One month later, law enforcément retrieved a handgun from the same lake and ballistics -linked the handgun to the- Circle K murders. A bullet found lodged in the ceiling of the Circle K was determined to come from the same handgun retrieved from the lake. The other gun used in the commission of‘the Circle K murders was never found. Further linking Appellant and Alvarez to the guns was an acquaintance of Alvarez who testified that he sold Alvarez a handgun and a long gun prior to the murders.

Appellant and Alvarez were tried by jury and each were convicted of two counts of first degree murder and one count of robbery with a firearm while masked. The trial court denied Appellant’s motion for judgment of acquittal and entered final judgment consistent with the jury’s verdict.

Analysis

Among the issues raised in Appellant’s appeal is his assertion that the trial court .erred in admitting evidence of the May 8 shooting. The admission of collateral crime evidence.is reviewed for an abuse of discretion. McCray v. State, 71 So.3d 848, 876 (Fla. 2011). A trial court possesses wide discretion in determining the admissibility of evidence. Jones v. State, 963 So.2d 180, 185 (Fla. 2007). “Discretion is abused only where no reasonable person would take the view adopted by the trial court.” Id. The State may introduce evidence of a collateral crime “when it is relevant to prove a material fact in issue like identity, preparation,' motive, intent, opportunity, plan, absence of mistake or accident, or knowledge.” Sims v. State, 839 So.2d 807, 810 (Fla. 4th 2003); see also § 90.404(2)(a), Fla. Stat. (2016). However, even if the evidence is relevant, it is admissible only if its probative value is hot siib-stantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. (2016)1

The State presented evidence of the bullet fragments and the victim’s identification of Appellant as the perpetrator in the second shooting to link Appellant and the gun. to the Circle K murder weapon. Appellant contends that the evidence was cumulative and unnecessary because the State also presented evidence that Appellant tossed the same gun linked to the original shooting in a lake.' Furthermore, Appellant argues that the improper admission of collateral crime evidence creates a presumption of harmful error. The State counters and argues the trial court properly admitted evidence of the second shooting because the evidence pertaining to the bullet fragments was relevant to proving the elements of the original crime. The State relies on Barnett v. State, 151 So.3d 61 (Fla. 4th DCA 2014), where the defendant was similarly charged with first degree murder with a firearm and robbery with a firearm. Id. at 62. In that case, we affirmed the trial court’s admission of evidence of a subsequent shooting which linked the gun to the murder weapon used in the original crime. Id. at 63-64. The State notes how in Barnett, the evidence of the shooting was determined to be relevant because it'linked the defendant to the commission of the homicide and established his motive.

We agree with the trial court that the evidence of the second shooting was admissible. Although Appellant argues that evidence of the May 8 shooting was not necessary because there was additional evidence connecting his possession of the handgun to the Circle K'murders, this argument does not have merit. The victim in the second shooting identified Appellant as the perpetrator who robbed and shot him, and the State used the bullet fragments found during the second shooting to connect the gun used, by Appellant to the Circle K murders. The State used the evidence to help prove Appellant’s participation in the Circle K murders because he possessed the murder weapon during the similar, second shooting that occurred only eight days later. This strong circumstantial evidence was relevant, in identifying Appellant as one of the perpetrators who committed the Circle K murders.

Additionally, although Appellant attempts to distinguish Barnett, his arguments are misplaced. As in Barnett, the evidence of the collateral crime demonstrated the defendant’s possession of the murder weapon after the homicide — “[i]t linked the defendant to the commission of the homicide and established his motive.” Id. at 64. In both cases, the bullet casings from the second shooting matched the bullets from the scene of the murder(s) at issue at trial.

“So long as evidence of other crimes is relevant for any purpose the .fact that it is prejudicial does not make it inadmissible. All evidence that points to a defendant’s commission of a crime is prejudicial. The true test is relevancy.” Ashley v. State, 265 So.2d 685, 694 (Fla. 1972). Although Appellant contends that the evidence of the second shooting only speaks to his bad character, this evidence, clearly has probative value in showing his possession of the murder weapon only eight days after the original crime, and was a significant piece of the puzzle linking Appellant to the weapons used in the Circle K murders. The fact that the State had other relevant evidence, such as eyewitnesses who saw someone with Appellant’s physical attributes throw a gun into the lake where one of the murder weapons was later found, as well as M.G.’s testimony, does not diminish the relevance and probative value of the May 8 shooting.

“ ‘Collateral crime evidence becomes an impermissible ‘feature’ where collateral act evidence ‘overwhelms’ evidence of the charged crime and becomes ‘an impermissible attack on the defendant’s character or propensity to commit crimes.’ ” Barnett, 151 So.3d at 63 (quoting Grier v. State, 27 So.3d 97, 101 (Fla. 4th DCA 2009)). Here, as in Barnett, “[t]he trial court carefully instructed the jury on the proper consideration of the evidence.” Id. at 64. The jury was advised to only consider the second shooting as pertaining to the issues of “possession of a firearm in this case and identity of the defendant.”

Conclusion

In April 2010, a convenience store was robbed and two employees were murdered by two masked men. The two murderers and their victims were the only individuals who were present during this terribly tragic event. The State relied upon witness evidence placing Appellant at the scene of the murders, as well as other evidence identifying Appellant as being in possession of one of the murder weapons twice in the two weeks following these murders. This evidence was relevant for the State to properly make its case, without crossing the line and being utilized to establish Appellant’s bad character. Appellant’s conviction and sentence are affirmed.

Affirmed.

Conner and Klingensmith, JJ., concur.

      . Appellant wás convicted of attempted second degree murder with a firearm and robbery with a firearm for the May 8 incident. His conviction and sixty-year prison sentence were affirmed on appeal. Razz v. State, 197 So.3d 54 (Fla. 4th DCA 2016).

      . Section 90.404(2)(a), " Florida- Statutes (2016), states in its entirety:

        Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
      § 90.404(2)(a), Fla. Stat. (2016).


text:
    Susan Faith WERB, Appellant, v. GREEN TREE SERVICING LLC, as Servicing Agent for GMAC Mortgage, LLC (successor by merger to GMAC Mortgage Corporation), East Coast Recovery, Inc., and Capital Asset Management, LLC., Appellees.
    No. 4D15-4809
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      Brian Korte and Scott J. Wortman of Korte & Wortman, P.A., West Palm Beach, for appellant.
    Brandon S, Vesely of Albertelli Law, Tampa, for appellee Green Tree Servicing, LLC.
   Per Curiam.

• In this appeal of a mortgage foreclosure final judgment, the appellant claims appel-lee lacked standing to foreclose the mortgage and introduced no legally sufficient evidence to sustain the damages sought. We affirm as to standing but reverse on the calculation of damages.

'As to the standing issue, we affirm on the authority of Federal National Mortgage Association v. Rafaeli, 225 So.3d 264 (Fla. 4th DCA 2017), which holds that possession of the note is the primary criteria to determine standing, even when the servicing rights have been transferred pri- or to the filing of the complaint. Here, the appellee possessed the note when the complaint was filed.

We reverse the final judgment as to the amount of damages, which was not proved by legally sufficient evidence. The bank’s witness identified the payment history and then was shown the final judgment, which was' not admitted into evidence and , thus, cannot support the final judgment. See Wolkoff v. Am. Home Mortgage Servicing, Inc., 153 So.3d 280, 281-82 (Fla. 2d DCA 2014) (“A document that was identified but never admitted into evidence as an exhibit.is not competent evidence to support a judgment.”). She testified that the contents of the proposed final judgment comported'with the business records and then testified that the final judgment contained the total amount sought. She did not testify as to the individual amounts. While the payment history was admitted into evidence, it did not show the calculation of interest on the loan, nor did it show all the other charges sought in the final judgment, including title searches, insurance costs, court costs, and attorney’s fees. Thus, the amounts were not proved. In Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1200-01, 1203-04 (Fla. 4th DCA 2015), where the payment history was admitted into evidence but no evidence was introduced to show the calculation of interest, we reversed and 'renianded for further proceedings to establish the amounts due. We approve the same result in this case and remand for further proceedings to establish the amount of damages.

Affirmed in part; reversed in part and remanded for further proceedings.

Warner, Taylor and Damoorgian, JJ., concur. ■


author: Damoorgian, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Bettye RYAN, as personal representative of the Estate of Thomas Ryan, and Bettye Ryan, individually, Appellees.
    No. 4D16-1845
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      William L. Durham II, Scott Michael Edson and Jeffrey S. Bucholtz of King.& Spalding LLP, Atlanta, GA, and Washington, DC, and Robert C. Weill of Sedgwick LLP, Miami, for appellant.
    Maegen Peek Luka, Celene H, Hum-phries and Thomas j. Seider of Brannock & " Humphries, Tampa, Alex Alvarez of The Alvarez Law Firm, Coral Gables, and Gary Paige of Gordon & Doner, P.A., Davie, for appellees. ■
   Damoorgian, J.

In this Engle progeny case, R.J. Reynolds Tobacco Company (“RJR”) appeals the final judgment entered in favor of Thomas Ryan and his wife Bettye Ryan (“Plaintiffs”) after- the jury found RJR liable for Mr. Ryan’s chronic obstructive pulmonary disease. Both parties raise several issues on appeal and cross-appeal, however we write only to address: (1) RJR’s argument that the Surgeon General’s Reports (“the Reports”) were erroneously admitted into evidence and improperly used to establish addiction-causation and to bolster expert opinions; and (2) Plaintiffs’ argument that, in the event of reversal, they should be permitted to amend the complaint to seek punitive damages on their negligence and strict liability claims.

In Philip Morris USA, Inc. v. Pollari, 228 So.3d 115, 120-30 (Fla. 4th DCA 2017), we recently held that the very same Reports constitute hearsay, are inadmissible as either public records or adoptive admissions, and may not be used to impermissi-bly bolster the opinions of testifying experts. Because the Reports were relied on at every major stage of the trial and used “to unfairly buttress [the plaintiffs] factual contentions ... using the imprimatur of the Surgeon General of the United States,” we also held that the plaintiff could not meet her burden of showing that the error was harmless. Id. at 130-31.

The admission of, and extensive reliance on the Reports in the present case was equally erroneous. Just as is Pollari, Plaintiffs “relied on these Reports at every major stage of the trial for numerous propositions, and read various portions during opening statements, the presentation of expert witness testimony, and closing arguments.” Id. at 119. Plaintiffs also projected key statements from the Reports on slides for the jury to review and used those slides to bolster the opinions of one of their experts. Overall, the Reports were presented as authoritative and conclusive evidence that nicotine exposure essentially rewires the brain and removes an individual’s choice to continue smoking and that nicotine addiction is the fundamental reason why individuals persist in using tobacco products. In other, words, the Reports were used to unfairly buttress Plaintiffs’ factual contentions concerning two key contested issues at trial: addiction and addiction-causation. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 431-32 (Fla. 2013) (noting that “proving class membership often hinges on the contested issue of whether the plaintiff smoked cigarettes because of addiction or for some other reason”). Considering the extensive use of the Reports at trial, Plaintiffs cannot meet their burden of showing that the error was harmless. See Pollari, 228 So.3d at 130-31; see also R.J. Reynolds Tobacco Co. v. McCoy, 229 So.3d 847, 848, 2017 WL 5171351 (Fla. 4th DCA Nov. 8, 2017). Accordingly, we reverse and remand for a pew trial.

In light of our disposition, Plaintiffs argue that this Court should remand with instructions that the trial court grant their previously denied request to seek punitive damages on their negligence and strict liability claims pursuant to Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219 (Fla. 2016). RJR concedes that Plaintiffs are free to seek the trial court’s leave to add a request for punitive damages on the non-intentional tort claims, but argues that it is inappropriate for this Court to grant such a request because the trial court must first find that Plaintiffs have proffered a reasonable evidentiary basis to seek punitive damages on those claims. We agree with RJR and hold that, on remand, Plaintiffs may seek leave from the trial court to add claims for punitive damages on their negligence and strict liability counts. See McCoy, 229 So.3d at 848 (“On remand, the plaintiff is free to seek leave from the trial court to add claims for punitive damages on his negligence and strict liability counts.”).

Reversed and remanded for a new trial.

Warner and Taylor, JJ., concur.

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


text:
    Melanie DUFOUR, Appellant, v. Ernest DAMIANI, Appellee.
    No. 4D17-656
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      John F. Schütz and Ralph TV White of Schütz & White, LLP, West Palm Beach, for appellant.
    No appearance for appellee.
   Klingensmith, J.

Melanie Dufour (the Wife) appeals the trial court’s denial of her motion for contempt filed in response to Ernest Damia-ni’s (the Husband) failure -to pay one-half of the mortgage on their marital home pursuant to a marital settlement agreement incorporated into a final judgment of dissolution. The Wife argues on * appeal that her exclusive use and possession of the home and the Husband’s obligation to pay one-half of the mortgage was an aspect of child support, enforceable by the trial court’s contempt powers. The Husband asserts that his obligation to pay one-half of the mortgage ended when the Wife filed a tax return and claimed her mother as a dependent. Rased on the facts presented here, we' agree' with the Wife and reverse the order denying the motion for contempt.

“A contempt order is reviewed for an abuse of discretion or fundamental error.” Ford v. Ford, 153 So.3d 315, 317 (Fla. 4th DCA 2014). However, “[a]s with any contract, a marital settlement agreement is construed as a matter of law.” Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997). “As such, this court is on equal footing with the trial court as interpreter of the written document.” Id. Therefore, if a trial court’s rilling is based on the interpretation of a settlement agreement, then it is a decision of law renewable de novo. See Schwartz v. Greico, 901 So.2d 297, 299 (Fla. 2d DCA 2005). Similarly, conclusions of law by lower tribunals are reviewed by this court on a de novo basis. Van v. Schmidt, 122 So.3d 243, 259 (Fla. 2013) (holding, that “an appellate court reviews the trial court’s conclusions of law de novo”); see also Bluth v. Blake, 128 So.3d 242, 245 (Fla. 4th DCA 2013) (“[T]o. the extent the trial court’s orders were based on conclusions of law, we apply de novo review.”).

The parties’ marital settlement agreement stated, in relevant part:

The Husband and Wife agrée to jointly retain ownership of the marital home and be responsible until such time that the house is sold or the Wife refinances. The Wife shall have exclusive use and possession of the home and reside in the home with the two children only, In the event that anyone other than the Wife and the two children are residing in the home, the Husband’s responsibility to pay half the mortgage will be suspended without interfering with the Husband’s equitable interest in the property at the time of the sale or refinance as described beloiv.
The Husband and the Wife will equally share the mortgage on the marital property and reasonable maintenance costs, as agreed to by the parties, from time to time, until such time as they mutually agree.to sell the property at a price mutually agreed upon.

(Emphasis added).

The Wife testified before the general magistrate that she paid her mother $6,800 to “help her live.” However, testimony from a third party revealed that the mother had lived with that third party since March of 2013,. and not with the Wife. The third party also testified that she did not charge the mother rent, and that the mother paid for nothing other than groceries, despite the' Wife’s assertion to the contrary. The Husband argued that his obligation to pay one-half of the mortgage on the marital home ended once the Wife filed her 2014 tax return and claimed her mother as a dependent. The Husband referred to an I.R.S. Publication in his testimony and the magistrate interpreted his argument as follows:

[A] parent can be claimed as a dependent and you , as the Child can file as ‘Head of Household’ even if you[r] parent doesn’t live with you. However, you must be able must provide more than half the eost of keeping up a home that was the main home for the entire year for your dependent parent.

(Emphasis added).

The magistrate made various findings of fact, including that the Wife and the chil-. dren were the only occupants of the home dating -back to March 2013, approximately-six months before the marital settlement agreement was both signed and ratified by the trial court. The Wife failed to prove that she provided more than half the cost of the mother’s living expenses for an entire year, and was not entitled to claim the dependency exemption. In essence, the magistrate found that the Wife had perpetrated a fraud on the, I.R.S. But, because the Wife claimed the exemption, the Husband’s obligation to pay one-half of the mortgage on the marital home ended as of January 1, 2014.

The magistrate also concluded that even if the Husband’s obligation to pay one-half of the mortgage had remained in effect, the Wife could not seek civil contempt for non-payment of the mortgage. See Burke v. Burke, 336 So.2d 1237, 1238 (Fla. 4th DCA 1976) (“[T]he contempt process may not be utilized to enforce payments required under a property settlement agreement, such payments being enforceable only as ordinary claims between a creditor and a debtor.”); Filan v. Filan, 549 So.2d 1105, 1105 (Fla. 4th DCA 1989) (“If an obligation is in the nature of settlement of property rights as opposed to alimony, support or maintenance of one to whom the duty is owed,- the contempt power , of the court cannot be invoked,”). Therefore, the magistrate found that , the Wife could, at best, only receive a money judgment against the Husband for his unpaid portion of the mortgage. •

After the Wife filed exceptions to the magistrate’s recommendations, the trial court entered an order denying the- motion, for contempt. This appeal followed;

It is well settled that the enforcement of debts not involving support through a motion for contempt-violates the Florida Constitution’s provision prohibiting imprisonment for debt. See Whelan v. Whelan, 736 So.2d 732, 733-34 (Fla. 4th DCA 1999), However, there may be times where a former spouse’s payment of certain debts may be deemed support, which allows for enforcement through contempt. See id. “Exclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind and sometimes also constitutes an aspect of alimony. The requirement that the husband make the house related payments similarly relates to child support and, perhaps, spousal support.” Sency v. Sency, 478 So.2d 432, 432 (Fla. 5th DCA 1985).

Particularly instructive on this- issue is the Fifth District’s decision in Douglas v. Douglas, 616 So.2d 574, 575 (Fla. 5th DCA 1993).. There, the parties entered into a marital settlement agreement containing a provision that no unrelated male would reside in the house while the wife maintained exclusive possession. Id. The court stated, “Although the agreement is extremely poorly drafted-, construction of the document as a whole shows appellee’s mortgage obligations are in the nature of support, most likely, child support.” Id. The court held that the husband could not ignore his financial obligations based on the breach of such a provision, and found that the trial court erred in discharging the obligation upon the wife’s motion for contempt because the husband “filed no response to the motion nor any other pleading seeking relief from the mortgage payment obligation.” Id.

“Exclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind[.]” Sency, 478 So.2d at 432; see also Arze v. Sadough-Arze, 789 So.2d 1141, 1145 (Fla. 4th DCA 2001) (recognizing that an award of exclusive use and possession of the marital home must serve a special purpose). In this case, the agreement was unambiguous in its provision detailing the exclusive possession of the marital home. It clearly stated that the Wife would reside in the home with the children, and no one else. If another person resided in the home after the ratification of the property settlement agreement, then the Husband’s obligation to pay one-half of the mortgage would be suspended. Therefore, the Husband’s obligation to pay one-half of the mortgage on the marital home was an aspect of support. See Sency, 478 So.2d at 432. When a party fails to fulfill a support obligation, a motion for contempt is a proper remedy. See Whelan, 736 So.2d at 732. Although the magistrate concluded that the Wife falsely claimed her mother as a dependent, nothing in the agreement provided that “perpetrating a fraud on the I.R.S.” would allow the Husband to suspend his obligation to pay one-half of the Mortgage.

We reverse the denial of the Wife’s motion for contempt and remand for further proceedings in accordance with this opinion.

Reversed and remanded.

Ciklin and Conner, JJ., concur.

      . The wording of this' éxceipt from the record is similar to 26 U.S.C. §' 152(d) (2008), which defines "dependent” and lists the requirements for an individual to be classified as a “qualifying relative.”


author: Taylor, J.

text:
    James HOUSEHOLDER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-2225, 4D16-2226, 4D16-2227 & 4D16-2228
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Appellant, James Householder, challenges his sentences for arson, burglary, and criminal mischief. We find merit in appellant’s claim that the trial court erred in failing to order a presentence investigation report (PSI) before sentencing him. Appellant was a first-time felony offender, and thus, Florida Rule of Criminal Procedure 3.710(a) required the trial court to order a PSI before imposing a sentence other than probation. See Albarracin v. State, 112 So.3d 574 (Fla. 4th DCA 2013). Moreover, appellant did not waive the PSI. We therefore reverse appellant’s sentences and remand with instructions for the trial court to order a PSI before re-sentencing appellant.

Reversed and Remanded.

Warner and Gross, JJ., concur.


text:
    Arslan ASLAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4339
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

Per Curiam.

Affirmed. State of Florida v. Bom-Su-niaga, 219 So.3d 74 (Fla. 4th DCA), review granted, SC17-1014, 2017 WL 4617741 (Fla. Oct. 16,2017).

Gross, May and Klingensmith, JJ., concur,


author: PER CURIAM.

text:
    Paige Christine ELKASLASY, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Trustee FOR The PRIMESTAR-H FUND I TRUST, Appellee.
    No. 4D17-417
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017]
    Kendrick Almaguer and Samuel Aaron Korab of The Ticktin Law Group, PLLC, Deerfield Beach, for appellant.
    Brandon S. Vesely of Albertelli Law, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

'' Gerber, C.J., Ciklin and Levine, JJ., concur.


text:
    COLLINS ASSET GROUP, LLC, Appellant, v. PROPERTY ASSET MANAGEMENT, INC., and Delvert Campfield, Appellees.
    CASE NO. 1D16-5529
    District Court of Appeal of Florida, First District.
    Opinion filed 12/27/2017
    Alvaro Orozco, Pollack & Rosen, P.A., Coral Gables, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

The trial court erred in failing to consider the factors articulated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), prior to dismissing Appellant’s cause of action as a sanction for its failure to abide by the court’s “Order Requiring Answer Regarding Deficiency and Setting Case Management Hearing.” BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290, 1291 (Fla. 1st DCA 2014) (Mem.) (citing Ham v. Dunmire, 891 So.2d 492, 500 (Fla. 2004) (“[Fjailure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.”)); see also Fed. Nat’l Mortg. Ass'n v. Wild, 164 So.3d 94, 95 (Fla. 3d DCA 2015) (reversing order dismissing foreclosure complaint without prejudice due to non-compliance with an order setting trial because findings of fact were not entered as required by Kozel); BAC Home Loans Servicing L.P. v. Parrish, 146 So.3d 526, 527 (Fla. 1st DCA 2014) (“Just as in [BAC Home Loans Servicing, L.P. v. ]Ellison, before dismissing Appellant’s case, the trial should have conducted an evidentiary hearing to determine [under Kozel ] whether counsel’s failure to appear was a willful violation of the court’s order"). For this reason, we must reverse and remand for the trial court to reconsider its order of dismissal after properly applying the Kozel factors.

REVERSED and REMANDED.

WOLF, WINOKUR, and JAY, JJ., CONCUR.


text:
    Luis CARDONA, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3737
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017]

      Carey Haughwout, Public. Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General;- West Palm Beach, for appellee.
   Per Curiam.

Appellant, Luis Cardona, challenge's his conviction and sentence on one of five counts of sexual -battery on a child Jess than 12 years old. Appellant contends that the trial court erred in denying his motion for judgment of acquittal on Count I-because there was no evidence of a crime Committed on the dates in question. Because the evidence was insufficient to establish that the incident- that formed the basis for Count I occurred during the time period specified in the information, we reverse appellant’s conviction and sentence on Count I and remand with instructions to grant the motion for judgment of acquittal as to Count I only. See McLean v. State, 165 So.3d 737 (Fla. 4th DCA 2015); Ramos v. State, 75 So.3d 1277 (Fla. 4th DCA 2011).

Reversed and Remanded.

Warner, Taylor and Damoorgian, JJ., concur.


text:
    TIMES PUBLISHING COMPANY, et al, Appellant/Petitioner(s), v. Terry Gene BOLLEA, et al, Appellee/Respondent(s).
    No. 2D15-5044.
    District Court of Appeal of Florida, Second District.
    March 17, 2016.
   BY ORDER OF THE COURT.

The respondent Terry Gene Bollea’s motion for clarification is granted to the extent that we substitute the following order in place of our order of March 16, 2016:

The petitioners’ petition filed under Florida Rule of Appellate Procedure 9.100(d) is granted. The orders of October 28, 2015, as amended by the nine-page November 18, 2015, order, as well as the two-page November 18, 2015, order are quashed, and the trial court is directed to unseal the records. By 4 p.m. Friday, March 18, 2016, in compliance with Florida Rule of'Judicial Administration 2.425, Respondent Terry Gene Bollea shall file a redacted version of the appendices, which will then be released to the public docket.

Upon review of record items sealed by the trial court in the aforementioned orders, this court has determined that the record items consist of motions, responses to motions, and other documents filed in support of the motions and responses, as well as transcripts of hearings on motions and we have concluded that confidentiality of the items at issue is not .necessary to avoid substantial injury to innocent third parties, that the information sought to be kept confidential is inherent in the proceeding pending in the trial court,, and that confidentiality is not required to. comply ■with established public policy. See Fla. R. Jud. Admin. 2.420(c)(9)(A)(v), (vi), and (vii). Litigants do not have a reasonable expectation of privacy in matters inherent to a civil proceeding. See Carnegie v. Tedder, 698 So.2d 1310, 1312 (Fla. 2d DCA 1997) (“Historically, litigants have had no reasonable expectation of privacy with regard to trial proceedings and court files.”); see also Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988) (“[A] strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.”).

No further opinion will follow.

KELLY, SLEET, and BADALAMENTI, JJ., Concur.


text:
    SILVER BEACH TOWERS PROPERTY OWNERS ASSOCIATION, INC., Silver Beach Towers East Condominium Association, Inc., and Silver Beach Towers West Condominium Association, Inc., Appellants/Cross-Appellees, v. SILVER BEACH INVESTMENTS OF DESTIN, LC, and The Club at Silver Shells, Inc., Appellees/Cross-Appellants.
    CASE NO. 1D16-4555
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Daniel M. Schwarz, Audrey M. Fisher, and Ron M. Campbell of Cole, Scott & Kissane, P.A., Bonita Springs, for Appellants/Cross-Appellees.
    Philip J. Padovano and Joseph T. Eagle-ton of Brannock & Humphries, Tallahassee; Bruce P. Anderson of Bruce P. Anderson Law, Destín, for Appel-lees/Cross-Appellants.
   PER CURIAM.

In this appeal of a judgment awarding appellees $1,827,372.18 plus pre-judgment interest of $292,497.34, appellees filed a cross-appeal and motion for review pursuant to Florida Rule of Appellate Procedure 9.310(f) seeking review of the lower tribunal’s order staying that judgment. They argue that the lower tribunal’s order was legally insufficient in that it conditioned the stay pending appeal on appellants’ posting of a $175,000 bond but failed to apply the automatic bond procedure outlined in Florida Rule of Appellate Procedure 9.310(b)(1), which appellees contend is the sole method of obtaining a stay of a money judgment. We disagree with this contention, and we affirm the trial court’s order.

Rule 9.310(b)(1) provides:

(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

Fla. R. App. P. 9.310(b)(1). This provision allows a party in an appeal of a money judgment to obtain a stay from the lower tribunal without following the procedure outlined in rule 9.310(a), which requires the filing of a motion to stay with the lower tribunal. The rule does not, however, eliminate the ability of a party to obtain a stay under rule 9.310(a) if it so chooses.

There exists a split among the District Courts of Appeal of this state on the question of whether rule 9.310(b)(1) is the only method of obtaining a stay of a judgment solely for the payment of money. The Third District has answered this question in the affirmative. See Mellon United Nat’l Bank v. Cochran, 776 So.2d 964, 964 (Fla. 3d DCA 2000). The Second District has reached the opposite conclusion. See Platt v. Russek, 921 So.2d 5, 7-8 (Fla. 2d DCA 2004); Waller v. DSA Group, Inc., 606 So.2d 1234, 1235 (Fla. 2d DCA 1992). This court has not yet weighed in on the issue, but we now hold, along with the Second District, that rule 9.310(b)(1) is not the only avenue for obtaining a stay of a money judgment. A trial court has the authority, upon the motion of a, party pursuant to rule 9.310(a), to enter a stay upon conditions other than a bond, so long as the conditions are adequate to ensure payment. Platt, 921 So.2d at 7-8; Waller, 606 So.2d at 1235.

Appellees cite several cases that they assert stand for the proposition that a trial judge has no discretion to determine the bond amount in an appeal from a money judgment. See QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So.3d 541 (Fla. 2012); Mellon, 776 So.2d 964; Taplin v. Salamone, 422 So.2d 92 (Fla. 4th DCA 1982); Proprietors Ins. Co. v. Valsecchi, 385 So.2d 749 (Fla. 3d DCA 1980), However, we read these cases as standing not for the proposition that the only means of staying a money judgment is to utilize the automatic stay procedure of rule 9.310(b)(1), but rather that when a party opts to utilize this automatic stay provision, the trial court has no authority to alter the bond amount required by the rule. In QBE Ins. Corp., the court wrote:

The Florida counterpart of this federal rule provides that if an order “is a judgment solely for the payment of money, á party may obtain an automatic stay of execution pending review, 'without the necessity of a motion or order, by posting a good and sufficient bond,” Fla.’ R. App. P. 9.310(b)(1) (emphasis added) The purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds. If no bond is posted, the judgment creditor may execute on the judgment during the appeal. Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So.2d 1170, 1171 (Fla. 3d DCA 1980).... Under Florida law, the posting of a “good and sufficient bond” as provided in rule 9.310(b) results in an automatic stay pending appeal of an adverse money judgment. Palm Beach Heights, 385 So.2d at 1171; Proprietors Ins. Co. v. Valsecchi, 385 So.2d 749, 750 (Fla. 3d DCA 1980). The trial court has no discretion to change this amount or deny a stay when the bond requirements have been met.

94 So.3d at 555. The question the court was considering in QBE Ins. Corp. was whether “language in an insurance policy mandating payment of benefits upon ‘entry of a final judgment’ require[s] an insurer to pay its insured upon entry of judgment at the trial level.” Id. at 545. In answering this question, the court “conclude[d] that a contractual provision mandating payment of benefits upon ‘entry of final judgment’ does not waive the insurer’s procedural right to post a bond pursuant to rule 9.310(b) to stay execution of a money judgment pending resolution of the appeal.” Id. at 555-56. Thus, despite the court’s citation to Palm Beach Heights and Proprietors Ins. Co., we do not read the holding in QBE Corp. so broadly as to suggest that rule 9.310(b)(1) is the only authorized means of .staying a money judgment; rather, we interpret the ruling as applying to a party’s rights and obligations when the automatic stay provision of rule 9.310(b)(1) is utilized.

The phrase “[ejxcept as provided by general law and in subdivision (b) of this, rule” at the beginning of rale '9.310(a) does not alter the analysis. This phrase simply carves out the alternative procedure created in rule 9.310(b)(1). For the reasons expressed heréin, we 'certify conflict with the Third District Court of Appeal’s decision in Mellon United National Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000). Accordingly, appellees’ motion for review filed November 14/2016, is denied, and the trial court’s order on the motion to stay is affirmed.

MOTION DENIED; ORDER AFFIRMED.

WOLF, RAY, and MAKAR, JJ., CONCUR.

       Here, appellees do not argue that the conditions imposed by the court are insufficient. Instead, their argument is limited to whether the court has the authority to enter a stay of a money judgment pursuant to rule 9.310(a) upon conditions other than a bond. -


text:
    Christopher FINLAYSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-305
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017

      Christopher Carver, Bushnell (withdrew) for Appellant.
    Howard L. Dimmig II, Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ORDER FOLLOWING SHOW-CAUSE PROCEEDING

PER CURIAM.

Attorney John Christopher Carver, Florida Bar number 854409, represented Appellant Christopher Finlayson in the trial court in the criminal case underlying the present appeal.and, when Mr. Finlayson was convicted and sentenced, filed a notice of appeal. As no appellate filing fee accompanied the notice of appeal, this court responded to the filing of the notice with its standard fee order. The order required the appellant, as represented by Attorney Carver, to submit to this court the filing fee or indigency documentation from the circuit court within twenty days of the date of the order, failing which the appeal would be subject to dismissal and counsel subject to sanctions. Attorney Carver did not respond to this order. The court later followed up with an order directing Attorney Carver to respond to the fee order within ten days. When Attorney Carver failed to timely respond, the court by order reminded him of the two previous orders, giving him fifteen days to respond by either satisfying the initial fee order or filling a status report on his efforts to do so. The order also reminded Attorney Carver of the risk of dismissal and sanctions. Once again, Attorney Carver failed to respond. Finally, the court directed Attorney Carver to appear at the court’s November 28, 2016, oral argument session to show cause why he should not be sanctioned for his failure to respond to the three orders just described. '■ '• •

Attorney Carver appeared as scheduled. In.response to the court’s inquiries, his attempts to articulate why .he failed to respond to this court’s orders were many and varied, but none adequately explained why it took four court orders, the last triggering a time-wasting show-cause appearance, to finally get his attention.

Because Attorney Carver was unable to adequately explain his failure to respond to three successive orders issued by this court, the court will be referring him to The Florida Bar upon the issuance of this order.

KELLY, CRENSHAW, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . The process involved in arranging a show-cause appearance for a recalcitrant attorney, informally dubbed a "visit” in this court, is labor- and time-intensive. Of course, so are many processes undertaken by the court’s legal and clerical staff, but "visits” are particularly unproductive in the sense that much time and labor are spent on a matter collateral to the substance of the appeal and even to the preliminary procedural matters involved in an appeal. Of greater significance, time passes as an appellant — who may ultimately win a reversal — waits in prison for a process to be completed that should not have been necessary in the first place.

      . Following his show-cause appearance, Attorney Carver obtained and submitted to this court a clerk's certificate of indigency appointing the public defender, By separate, unpublished order this court granted Attorney Carver’s motion to withdraw as counsel and discharged its order to show cause.


author: BLACK, Judge.

text:
    Toni L. SEXTON, Appellant, v. Oscar Dennis HERNANDEZ, Jr., Appellee.
    Case No. 2D16-1275
    District Court of Appeal of Florida, Second District.
    Opinion filed March 24, 2017
    Rory B. Weiner of Rory B. Weiner P.A., Brandon, for Appellant.
    Dennis Hernandez and Luis Figueroa of Dennis Hernandez & Associates, P.A., Tampa, for Appellee.
   BLACK, Judge.

Toni Sexton’s appeal from the order granting Oscar Hernandez, Jr.’s expedited motion requesting equal timesharing of the parties’ children during their 2016 spring break is dismissed for lack of jurisdiction.

Mr. Hernandez’s motion required the trial court to interpret the 2013 Final Parenting Plan as the result of a change in the children’s School and school calendar. On February 11, 2016, following a hearing, the court entered an order clarifying the Parenting Plan with respect to the parties’ timesharing arrangement for spring break 2016. The court’s ruling was limited to the period of March 11 through March 18, 2016, and the court ordered jhe parties to mediate the terms of the Parenting Plan to eliminate future issues.

Ms. Sexton filed a motion for rehearing, which was denied, and she ultimately filed her notice of appeal on March 22, 2016.

The court’s February 11, 2016, order is an appealable nonfinal order determining the rights of a party regarding timeshar-ing under a parenting plan. See Fla. R. App. P. 9.130(a)(3)(C)(iii)(b). However, we lack jurisdiction to review the order because Ms. Sexton’s motion for rehearing did not toll rendition of the order and her notice of appeal was untimely filed. See Fla. R. App. P. 9.020(i); 9.130(b); Bodkin v. Sweeney, 805 So.2d 847, 847 (Fla. 2d DCA 2001).

Accordingly, this appeal is dismissed.

KELLY and CRENSHAW, JJ., Concur.


text:
    Tito MORELL, DOC #529143, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1889
    District Court of Appeal of Florida, Second District.
    May 17, 2017
   BY ORDER OF THE COURT:

Upon the court’s own motion, the court vacates the per curiam affirmance filed on May 5, 2017, which was erroneously entered due to clerical error. This case was affirmed on January 25, 2017, and reconsideration was denied on April 28, 2017.