author: SILBERMAN, Judge.

text:
    PHILIP MORRIS USA INC. and Liggett Group, LLC, Appellants/Cross-Appellees, v. Richard BOATRIGHT and Deborah Boatright, Appellees/Cross-Appellants.
    Case No. 2D15-622
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2017

      Adriana M. Paris, Terri L. Parker, and Sean T. Becker of Shook, Hardy & Bacon L.L.P., Tampa; Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC; and William P. Geraghty and Rachel A. Can-field of Shook, Hardy & Bacon L.L.P., Miami; for Appellant/Cross-Appellee Philip Morris USA Inc.
    Karen H. Curtis of Clarke Silverglate, P.A., Miami; and Leonard A. Feiwus and Ann M. St. Peter-Griffith of Kasowitz, Benson, Torres & Friedman LLP, Miami, for Appellant/Cross-Appellee Liggett Group LLC.
    Celene H. Humphries, Steven L. Bran-nock, Philip J. Padovano, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; and Scott Schlesinger, Steven Hammer, Jonathan R. Gdan-ski, and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for Appellees/ Cross-Appellants.
   SILBERMAN, Judge.

In this Engle progeny ease, Philip Morris USA Inc. and Liggett Group, LLC (the Defendants) appeal a final judgment in favor of Richard Boatright, who was a heavily addicted smoker, and his wife, Deborah Boatright, in the total amount of $32.75 million for compensatory and punitive damages. The jury found Philip Morris liable on theories of negligence, strict liability, fraudulent concealment, and conspiracy to commit fraud by concealment. The jury found Liggett liable for conspiracy to commit fraud by concealment. Philip Morris raises seven issues on appeal, including issues regarding comments in closing argument, the introduction of evidence, comparative fault, and punitive damages. Liggett raises three issues on appeal regarding the conspiracy verdict, joint and several liability, and punitive damages. We affirm on the main appeal.

The Boatrights cross-appeal regarding two issues related to comparative fault. We reverse on the cross-appeal. The trial court erred when it reduced the compensatory damages award by Mr. Boatright’s comparative fault because the apportionment statute does not apply to an action based on an intentional tort. Therefore, we remand for the trial court to amend the judgment to reflect the full amount of the jury’s verdict. In doing so, we certify conflict with B.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), R.J. Reynolds Tobacco Co. v. Grossman, 211 So.3d 221 (Fla. 4th DCA 2017), and R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753 (Fla. 4th DCA 2016), review denied, No. SC16-1937, 2017 WL 1023712 (Fla. Mar. 16, 2017), to the extent that they hold that the core of these types of actions is grounded in negligence and that the comparative fault statute is applicable to reduce the verdict by the smoker’s comparative fault.

The Boatrights brought this action against the Defendants seeking to recover damages for Mr. Boatright, who was a heavily addicted smoker, and for his wife of thirty years, Deborah Boatright, for loss of consortium. Mr. Boatright’s addiction to these cigarettes ultimately led to his diagnosis of chronic obstructive pulmonary disease (“COPD”) in 1992 and two double-lung transplants. Relevant here are the allegations of the second amended complaint for negligence, strict liability, fraudulent concealment, and conspiracy to fraudulently conceal. The trial court conducted a three-week-long trial.

The evidence presented showed that the Defendants and their co-conspirators in the tobacco industry intentionally designed addictive and deadly cigarettes and conspired for fifty years to hide the dangers of smoking cigarettes from the public. The tobacco industry spent billions of dollars to highly engineer cigarettes to promote addiction to nicotine so that smokers would buy more cigarettes. And the tobacco industry searched for new smokers by investing heavily in marketing that targeted youths. In internal company documents, the industry called these young people “replacement smokers” and “crops” to be harvested.

Mr. Boatright began smoking when he was twelve years old in direct response to youth marketing. He continued to smoke for the next thirty-eight years. From 1966 to 2004, Mr. Boatright smoked over 25,000 packs of cigarettes. The evidence showed that Mr. Boatright was a Marlboro man, smoking primarily Philip Morris cigarettes, and that he smoked a de minimis amount of Liggett cigarettes.

Mr. Boatright was a professional ballroom dancer but had the lungs of an eighty-eight-year-old man when he was diagnosed with COPD at the age of thirty-nine. He tried quitting cold turkey and tried prescription drugs, gum, and hypnosis to quit. After his COPD diagnosis, Mr. Boatright struggled for over eleven years but finally quit. Years later, he had to undergo two double-lung transplants. He was sixty-one at the time of trial and continues to suffer very serious side effects. For example, his colon ruptured within hours of arriving home after the first transplant, and he now has a colostomy bag. In order to be close to the Mayo Clinic for Mr. Boatright’s many medical visits, Mrs. Boatright sold the house her father built and moved from Lakeland to Jacksonville.

The evidence also showed that the tobacco industry, including the Defendants, engaged in a conspiracy to conceal and misrepresent information about the addictiveness of nicotine and the serious health risks caused -by smoking nicotine cigarettes. Industry executives agreed to attack the sources of health warnings and to cast doubt on the connection between smoking and disease. One of the many internal documents from Phillip Morris introduced into evidence stated that “doubt is our product.” But at the same time, the tobacco industry pretended to be on a crusade to confirm the safety of its product and promised the American public that it would report back if it discovered anything. The industry’s intent was not just to hide the truth; it was to create doubt to give addicted smokers an excuse to keep smoking.

The industry’s efforts also included design features, such as filtered cigarettes, that worked to undermine a smoker’s motivation and ability to quit smoking. In the 1950s, the Engle defendants began marketing filtered cigarettes to the public as a safer alternative. Mr. Boatright smoked filtered cigarettes. The tobacco industry concealed from the public that smokers of filtered cigarettes ingest more tar and other carcinogens than those who smoke unfiltered cigarettes. The Engle defendants all concealed the fact that'they intentionally designed their filtered cigarettes to increase the dose of nicotine, thereby enhancing addictiveness to cigarettes and resulting in greater sales. The Defendants did not publicly admit that smoking nicotine cigarettes is addictive and causes COPD and other illnesses until after Mr. Boatright was diagnosed with COPD.

At the close of the Boatrights’ ease, the trial court directed a verdict in favor of Liggett as to the claims for negligence, strict liability, and fraudulent concealment. The case against Liggett went to the jury only on the conspiracy claim. With respect to comparative fault, the verdict form asked the jury to state what percentage of any fault it charged to Philip Morris and Mr. Boatright that was a legal cause of Mr. Boatright’s COPD. The verdict form instructed the jury as follows:

In determining the total amount of damages, you should not make any reduction because of the responsibility of Richard Boatright, The court ivill enter a judgment based on your verdict and, in entering judgment, will make any reduction required by law to reduce the total amount of damages by the percentage of fault which you find is chargeable to Richard Boatright. If you find for the Plaintiffs on either of the intentional torts, then the amount of compensatory damages awarded to Plaintiffs will not be reduced by Richard Boatright’s fault.

The jury found that Mr. Boatright was addicted to Philip Morris cigarettes and that his .addiction caused his COPD. Further, the jury found that-Philip Morris’s concealment or omission of information regarding smoking cigarettes caused Mr. Boatright’s COPD. The jury also found that the participation in an agreement to conceal by each of the Defendants was a legal cause of Mr. Boatright’s COPD and thus found against both .of the Defendants on the conspiracy claim.

The jury allocated 85% fault to Philip Morris and 15% fault to Mr. Boatright. The jury awarded a total of $15 million in compensatory damages. For Mr. Boat-right, the jury awarded $2.5 million in economic damages and $10 million in damages for his past and future pain and suffering. For Mrs. Boatright, the jury awarded $2.5 million for her past and future loss of consortium. In the second phase of the trial, the jury awarded $19.7 million in punitive damages against Philip Morris and $300,000 against Liggett. We note that the jury’s punitive damages award is less than the $20 million that the Boatrights’ counsel requested against Philip Morris and less than the $5 million requested against Liggett.

The trial court denied all of Philip Morris’s posttrial motions, except that it granted the request to reduce the compensatory damages award by Mr. Boatright’s comparative fault but did not explain its reasoning. The trial court entered a final judgment under which the Defendants are jointly and severally liable for $10,625,000 in compensatory damages to Mr. Boatright and $2,125,000 in compensatory damages to Mrs. Boatright. In accordance with the jury’s verdict, the judgment awards punitive damages of $19.7 million against Philip Morris and $800,000 against Liggett. We first address the issue of comparative fault that the Boatrights raised in their cross-appeal.

The Boatrights’ Cross-Appeal

The Boatrights contend that the trial court erred when it reduced the compensatory damages award by Mr. Boatright’s comparative fault. At issue is whether the comparative fault statute, section 768.81, Florida Statutes (Supp. 1992), requires that the Boatrights’ verdict be reduced by-comparative fault. First, we note that the Boatrights’ counsel did not waive the argument that section 768.81 does not apply to the verdict. And we point out that the jury was instructed that if it found for the Boatrights on either of the intentional torts, then the amount of compensatory damages would not be reduced, by Mr. Boatright’s comparative fault. The same information was given to the jury on the verdict form.

Second, we address the merits of the Boatrights’ argument and agree that section 768.81 is inapplicable. Thus, the trial court should not have reduced the compensatory award by Mr. Boatright’s comparative fault.

The case against Philip Morris proceeded on the two product claims and the two fraud claims. On the verdict form, the jury found that the “concealment or omission of material information about the health effects or addictive nature of smoking cigarettes or both” by Philip Morris “was a legal cause of Richard Boatright’s COPD.” The jury also found as to both Philip Morris and Liggett that “the agreement to conceal or omit information about .the health effects or addictive nature of smoking cigarettes or both was a legal cause of Richard Boatright’s COPD.” Even in the negligence count, the Boatrights’ second amended complaint alleges that the “Defendants had actual knowledge of the wrongfulness of their conduct and the high probability that injury or damage to the Smoker would result, and despite that knowledge, -intentionally - pursued, their course of conduct.”

Section 768.81 applies to “negligence cases” which include actions based on theories of negligence, strict liability, and product liability. § 768.81(4)(a). The statute provides that “[i]n an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” § 768,81(2). The statute explicitly does not apply to “any action based upon an intentional tort.” § 768.81(4)(b). Further, the statute instructs that “[i]n determining whether a case falls within the term ‘negligence cases,’ the court shall look to the substance of the action and not the conclu-sory terms used by the parties.” § 768.81(4)(a).

As to our standard of review, we agree with the Fourth District in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 496 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), that we review de novo the legal issue of whether the conduct qualifies as negligence or as an intentional tort. To the extent the First District applied an abuse of discretion standard in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849, 852 (Fla. 1st DCA 2013), we disagree with the use of that standard. But we agree with the Sury court’s conclusion that section 768.81 did not require reduction of the compensatory damage award by the smoker’s percentage of fault. See id

In Sury, the First District recognized that “the public policy behind the exclusion in section 768.81 for intentional torts” is based on the fact that intentional wrongs and simple, negligence are different as to the type of fault “ ‘and in the social condemnation attached to it.’” 118 Sq.3d at 852 (quoting Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562 (Fla. 1997)). The Sury court stated that “although the plaintiff pled negligence and strict liability, the additional allegations of the intentional torts and the proof of affirmative, calculated misrepresentations in the tobacco companies’ advertising and other publications supported the conclusion that this action ‘actually had at its core an intentional tort by someone.’ ” Id. (quoting Merrill Crossings Assocs., 705 So.2d at 563); see also R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D491, D492-93, — So.3d -, - (Fla. 1st DCA Feb. 24, 2017) (following Sury and determining that the trial court did not commit error by refusing to apportion fault in a case dealing with the intentional torts of fraudulent concealment and conspiracy to fraudulently conceal); Philip Morris USA Inc. v. Buchanan, 155 So.3d 1156, 1158 (Fla. 1st DCA 2014) (relying upon Sury as to the substance of the action being an intentional tort).

The Fourth District in Schoeff reached a different result in an Engle lawsuit and held that “at its core, Plaintiffs suit is a products liability suit based on conduct grounded in negligence.” 178 So.3d at 496; see also R.J. Reynolds Tobacco Co. v. Grossman, 211 So.3d 221, 224-25 (Fla. 4th DCA Jan. 4, 2017) (relying on Schoeff); R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 767 (Fla. 4th DCA 2016) (same), review denied, No. SC16-1937, 2017 WL 1023712 (Fla. Mar. 16, 2017). The dissent in Schoeff aptly stated that “[t]he gravamen of the charge is that the tobacco company intentionally designed its products in a defective manner and pursued a callous and intentional course of tortious conduct by fraudulent concealment.” 178 So.3d at 497 (Taylor, J., concurring in part and dissenting in part). We agree with the First District in Sury and the dissent in Schoeff that “the ‘core’ of Engle progeny actions is intentional misconduct as a matter of law.” Id.

Therefore, we reverse the final judgment and remand for the trial court to enter an amended judgment to reflect the full amount of the jury’s verdict. In doing so, we certify conflict with Schoeff, Gross-man, and Calloway to the extent that they hold that the core of those actions is grounded in negligence and that section 768.81 is applicable to reduce the verdict by the smoker’s comparative fault.

Philip Morris’s Main Appeal

In issue one, Philip Morris contends that a new trial is necessary because the trial court allowed the Boatrights’ counsel to inflame the jury during closing arguments. It argues that the Boatiights’ counsel disparaged the defense and defense counsel and improperly argued regarding nationwide harm and international harm caused by cigarettes. In reviewing the points raised, we note that many comments were a fair comment on the evidence or even a reading from Philip Morris’s own documents that were admitted into evidence, such as the references to “doubt is our product.” Philip Morris relies in part on Calloway to argue for a new trial, but the references to the defense and defense counsel in the present case were very limited and far less significant than the comments in Calloway.

Regarding arguments concerning harm to others and the number of deaths from smoking, it was made clear to the jury that harm to others was relevant only to show the degree of reprehensibility of the Defendants’ conduct. See R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 313 n.7 (Fla. 1st DCA 2012) (citing Philip Morris USA v. Williams, 549 U.S. 346, 355, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007)). In its closing, the Boatrights’ counsel read the instruction to the jury that it could consider harm to others in assessing the reprehensibility of the Defendants’ acts as proven in this case. And the trial court instructed the jury that that it could not impose punitive damages to punish a defendant for harm caused to others.

We also note that a number of the comments challenged on appeal were made without objection. The trial court denied the motion for new trial regarding the comments by the Boatrights’ counsel, and the trial court is in the best position to judge the effect of the comments. “A trial court’s denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion.” Calloway, 201 So.3d at 759 (quoting Whitney v. Milien, 125 So.3d 817, 818 (Fla. 4th DCA 2013)). We find no abuse of discretion in the trial court’s denial of Philip Morris’s motion for new trial. And to the extent that any error occurred in the closing argument, there is no reasonable possibility that any error contributed to the verdict. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (stating standard for harmless error in civil cases).

In issue two, Philip Morris relies primarily on its argument in issue one to summarily contend that the trial court erred in admitting evidence during the testimony of the Boatrights’ expert witness, Dr. Proctor. Because we reject Philip Morris’s arguments in issue one, we reject them as to issue two as well, and Philip Morris has not otherwise established reversible error as to the admission of the evidence.

In issue three, Philip Morris contends that the trial court erred in failing to ask the jury to determine Liggett’s share of fault based on the comparative fault statute, section 768.81. We find no error because the comparative fault statute does not apply, as discussed above in the Boat-rights’ cross-appeal.

In issue four, Philip Morris contends that the punitive damages award against it must be significantly reduced because it is excessive. The jury awarded $15 million in compensatory damages to Mr. and Mrs. Boatright and awarded $19.7 million in punitive damages against Philip Morris. We note that the Boatrights’ counsel asked for more than the jury awarded, and the evidence fully supports the jury’s award. The trial court did not err in declining to find the punitive damages excessive. See Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 82-83 (Fla. 3d DCA 2013) (upholding punitive damage award of $25 million when the remitted compensatory award was $10 million); R.J. Reynolds Tobacco Co. v. Townsend, 118 So.3d 844, 847 (Fla. 1st DCA 2013) (affirming punitive damages award of $20 million when the ratio of punitive damages to compensatory damages was 1.85 to 1); cf. Schoeff, 178 So.3d at 491 (determining that punitive damages award of $30 million fell “on the excessive side of the spectrum” when the compensatory award was $10.5 million).

In issue five, Philip Morris contends that it is entitled to a credit against the punitive damages award in this case based on the “Guaranteed Sum Stipulation” Philip Morris entered into in the Engle case. We reject this argument and agree with the Boatrights that the Guaranteed Sum Stipulation specifically applied to the judgment in Engle and is not applicable to the judgment in this case. See Callo-way, 201 So.3d at 756 (noting that the issue of a credit against punitive damages based on the stipulation was raised but not reversing on that basis or commenting on the issue for purposes of remand).

In issues six and seven, Philip Morris recognizes that the issues have already been determined by controlling case law but wishes to preserve its position for further review. As to issue six, the acceptance of the Phase I Engle findings as res judicata does not violate the Engle defendants’ right to due process. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 436 (Fla. 2013). As to issue seven, punitive damages may be awarded for strict liability and negligence claims in an Engle progeny case. Soffer v. R.J. Reynolds Tobacco Co, 187 So.3d 1219, 1234 (Fla. 2016) (approving Philip Morris USA, Inc. v. Hallaren, 124 So.3d 350, 358 (Fla. 2d DCA 2013), regarding the issue of punitive damages).

Liggett’s Main Appeal

In issue one, Liggett contends that the trial court should have directed a verdict in Liggett’s favor on the conspiracy claim because Mr. Boatright’s de minimis use of Liggett’s cigarettes did not cause his injury. But the law of civil conspiracy holds co-conspirators liable for harm caused by other members of a conspiracy to commit an intentional tort. Rey v. Philip Morris, Inc., 75 So.3d 378, 383 (Fla. 3d DCA 2011) (stating that the law of civil conspiracy extends “liability to a co-conspirator which may not have caused any direct injury to the claimant” and recognizing “the policy that an entire group of conspirators acting collectively to achieve an unlawful goal—including consumer fraud—should be jointly and severally liable for the acts of all participants in the scheme”); see also Blake v. Lorillard Tobacco Co., 81 So.3d 637, 638 (Fla. 5th DCA 2012) (adopting “the well-reasoned opinion” of the court in Rey regarding civil conspiracy). The jury found that Philip Morris’s fraudulent concealment caused Mr. Boatright’s injuries and that Philip Morris and Liggett’s agreement to conceal was a legal cause of Mr. Boatright’s injuries. Therefore, Liggett was properly held liable as a member of the conspiracy with Philip Morris to fraudulently conceal.

In issue two, Liggett contends that it cannot be held jointly and severally liable for compensatory damages because the jury was not given an opportunity to allocate fault to Liggett. However, based on the resolution of the cross-appeal that the exception for intentional torts in the comparative fault statute, section 768.81(4)(b), applies, Liggett is not entitled to relief on this issue.

In issue three, Liggett requests that the punitive damages award be vacated if this court finds merit in either of its arguments in its first and second issues. Because we have determined that Liggett’s arguments do not have merit, we affirm the $300,000 punitive damage award against Liggett.

Conclusion

We affirm on Philip Morris’s main appeal and on Liggett’s main appeal. Because we have determined on .the Boat-rights’ cross-appeal that the core of this action is grounded in intentional misconduct, the comparative fault statute, section 768.81, does not apply. Therefore, we reverse the final judgment and remand for the trial court to enter an amended judgment to reflect the full amount of the jury’s verdict. In doing so, we certify conflict with Schoeff, Grossman, and Calloway to the extent that they hold that the core of these types of actions are grounded in negligence and that section 768.81 is applicable to reduce the verdict by the smoker’s comparative fault.

Affirmed in part, reversed in part, and remanded.

LaROSE and BADALAMENTI, JJ., Concur.

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

      . The applicable version of section 768,81 is the one that was in effect when the cause of action arose. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 n. 9 (Fla. 2003), superseded by statute on other grounds as stated in Port Charlotte HMA, LLC v. Suarez, 210 So.3d 187, 189 (Fla. 2d DCA Oct. 26, 2016).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Manuel WALTERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1518
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.

       Judge Logue did not participate in oral arguments.

   ROTHENBERG, J.

On March 17, 2010, this Court affirmed Manuel Walters’ (“the defendant”) conviction for second degree murder. Walters v. State, 30 So.3d 656 (Fla. 3d DCA 2010). Subsequent to this Court’s mandate, the Florida Supreme Court issued its opinion in State v. Montgomery, 39 So.3d 252 (Fla. 2010), wherein the Florida Supreme Court held that it constitutes fundamental error when a defendant has been convicted of second degree murder and the jury was given an erroneous manslaughter by act instruction. Three years after Montgomery, the Florida Supreme Court issued its opinion in Haygood v. State, 109 So.3d 735, 741 (Fla. 2013). In Haygood, the Florida Supreme Court held that:

[Gjiving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of second-degree murder and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.

Id, (emphasis added).

The defendant in the instant case was convicted of second degree murder, the jury received the erroneous manslaughter by act instruction, and the jury was also instructed as to culpable negligence as a lesser included offense of second degree murder. Thus, the Florida Supreme Court remanded Walters v. State back to this Court for reconsideration based on its decision in Haygood. Because defense counsel in the instant case clearly and repeatedly argued a theory upon which the jury could have found the defendant guilty of manslaughter by culpable negligence, and the evidence reasonably could have supported a finding of culpable negligence, affirmance is mandated in this case based on both Haygood and this Court’s opinion in Dawkins v. State, 170 So.3d 81 (Fla. 3d DCA 2015). Accordingly, we affirm the defendant’s conviction and sentence.

ANALYSIS

In Dawkins, this Court, on rehearing and/or clarification, re-evaluated Dawkins’ petition for writ of habeas corpus based on the Florida Supreme Court’s holding in Haygood. After citing to the Florida Supreme Court’s holding, this Court held:

Upon review of the record in Dawkins’ case, there was conflicting testimony regarding intent, and although Dawkins did not rely on a culpable negligence defense, the record shows there existed, in all of the disputed evidence below, some evidence from which the jury reasonably could have found Dawkins guilty of manslaughter by culpable negligence, in contrast to the facts in Haygood. With that in mind, where the jury was also instructed [on] manslaughter by culpable negligence and the evidence could reasonably support so finding, the error in giving the flawed Montgomery manslaughter by act instructions was not per se fundamental error.

Dawkins, 170 So.3d at 82 (citations omitted) (emphasis in the original).

Thus, based on Haygood and Dawkins, this Court must examine the entire record to determine if: (1) there was conflicting evidence as to the defendant’s intent; and (2) if there was conflicting evidence as to the defendant’s intent, whether there was some evidence from which the jury reasonably could have found the defendant guilty of manslaughter by culpable negligence. As will be documented below, there is more than ample evidence from which a jury could have concluded that the victim was shot and killed due to the culpable negligence of the defendant.

A. Culpable negligence

The culpable negligence instruction states as follows:

Each of us has a duty to act reasonably towards others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

Fla. Std. Jury Instr. (Crim.) 7.7.

B. The defendant’s intent was a disputed issue at trial

As the defendant candidly admits in his reply brief filed with this Court on May 28, 2015, the defendant’s intent was a disputed issue of fact at trial.

Mr. Walters never so much as suggested that he intended to kill the victim, and the State agreed that it needed to prove that element. Defense counsel only proposed that the evidence raised a reasonable doubt because it was consistent with an unintentional killing during a struggle.

Reply Brief of Appellant, page 1 (record citations omitted).

A complete review of the trial transcript reveals that throughout the trial, including cross-examination of the witnesses and his arguments to the jury, defense counsel confronted and disputed the State’s theory of the case. The State’s theory of the case was that the defendant accidentally discharged his own firearm inside of a car he was in with his co-defendant, Joseph Long (“Long”), and because the defendant was intoxicated, he mistakenly believed someone had shot at them. The defendant then exited the car, confronted the victim, who was seated in a car with the door closed and the windows up, struck the driver’s side window of the victim’s car with his firearm at least two times, and then shot the victim through one of the holes he had created in the window.

The State argued that although no one actually saw the defendant shoot the victim, the evidence established beyond a reasonable doubt that when the defendant exited the vehicle, he banged on the victim’s window with a firearm and then shot the victim through a hole in the window, and that he did so with evil intent and a depraved mind, constituting the crime of second degree murder. In contrast, defense counsel argued that they did not know what happened that night and the State’s case was built upon conjecture and speculation. For example, defense counsel argued:

We have no idea why it happened, none. You can speculate from here to eternity and on the evidence here in this small little room in which the [fate] of another human being will be determined, no evidence of why it happened has been brought before you.
The problem with this case is [that] we don’t know what happened because you cannot solve the lack of evidence in this case with basically speculating about what may have happened.

Defense counsel argued that the evidence was also consistent with someone shooting at the defendant while he was seated in a vehicle; the defendant exiting his vehicle; the defendant struggling with the victim, who was armed with a firearm; and while the defendant was attempting to disarm the victim, the gun. discharging, fatally wounding the victim. Because no one actually saw the shooting, defense counsel argued that, not only was the evidence consistent, with an accidental discharge of the firearm during a struggle between the defendant and the victim, but such a view of the evidence was more plausible than the State’s theory of the case—that the defendant banged on the victim’s car window with a firearm and then shot the victim with evil intent and a depraved mind.

C. The disputed evidence of the defendant’s intent

The State’s theory of the case was that the events that resulted in the victim’s death began when the defendant accidentally discharged his firearm in his car. Because the defendant mistakenly believed someone had fired at him and Long, the defendant exited the car, found the victim sitting in the victim’s car, banged on the victim’s car window with his firearm, and shot the victim through one of the holes he had made in the window. The defendant and Long then drove to a gas station while being pursued by the police, ran inside the store where the defendant hid the firearm, and he and Long were ultimately arrested. Long was taken into custody without incident at the gas station, and the defendant, who fled, was found hiding in a shed and had to be tased in order to be taken into custody.

In support of its theory of the case, the State presented various witnesses including police officers, Long, and several technical witnesses including a crime technician specializing' in gunshot residue, a firearm tool mark examiner, a ballistics expert, a DNA analyst, and a medical examiner. The first witness, Jennifer Wing, a K-9 officer for the Miami-Dade Police Department, testified that she was seated in her vehicle approximately one block away from the shooting, which occurred after 10:00 p.m. She testified that she heard a gunshot, looked towards the direction of the gunshot, and ■ saw a dark colored car parked in the roadway. Right next to the passenger door, which was closed, she saw a silhouette “kind of bobbing and weaving like a boxer would do and then [she] saw an arm extend up” and then she heard another gunshot. After the second gunshot, Officer Wing saw an individual open' the passenger door and get into what was later determined to be a green Honda, and the green Honda proceeded in her direction. She described the driver of the green Honda as a black male (later identified as the co-defendant Long) and the passenger of the green Honda as a white Latin male (later determined to be the defendant). Officer Wing noted the tag number, called it in, asked for police assistance, and followed the Honda to a gas station, where she saw the occupants bail out of the car and run into the convenience store. When the defendant exited the store, Officer Wing confronted him. The defendant fled and he was eventually apprehended by other officers, who found him hiding in a shed.

Through the testimony of the lead detective, crime scene technician, criminalists, a forensic biologist, a firearm tool mark examiner, and the medical examiner, the jury learned that the lead detective arrived within nine minutes of Officer Wing’s call for assistance. The victim’s vehicle, a white Ford, was found on the swale at 1115 N.W. 38th Street, the scene of the shooting. The victim was found behind a house, unresponsive and bleeding from a gunshot wound that had entered his chest and exited his back. He also had cuts on his left hand. The victim’s white Ford’s bumper was dented, the front driver’s side headlight was missing, and glass from the broken headlight was found on the sidewalk. The victim’s blood was found on the driver’s side doorjamb of his vehicle and on his wallet, which was also found in his vehicle. No blood was found on the street, sidewalk, or swale. The only blood found at the shooting scene outside of the victim’s vehicle was the blood found behind the house where the victim had collapsed. The driver’s side window of the victim’s vehicle was broken in two distinct places and a projectile was found lodged inside the passenger seat of the victim’s vehicle.

An examination of the green Honda the defendant was in revealed a bullet hole in the lower portion of the front passenger window. The crime scene technician testified that the bullet hole was caused by a bullet shot ■ from inside the vehicle and exiting outside of the vehicle. A “copius” amount of gunshot primer particles was found in the green Honda, consistent with the firearm having been discharged in the vehicle.

Surveillance footage from inside the convenience store showed the defendant pulling something out of his waistband. The murder weapon, a .357 Magnum, was recovered from the convenience store the defendant and Long had fled into after the shooting. The firearm was loaded with four live rounds and two spent casings. The projectile that entered the victim’s chest and exited his back was recovered from the passenger seat of the victim’s vehicle. The testimony presented at trial reflects that the recovered projectile was fired by the .357 Magnum. The barrel of the firearm also had scratches consistent with the barrel having struck an object, which the State argiied was made when the defendant struck the victim’s car window with the firearm. When the defendant was taken into custody, he had cuts on his hand. DNA testing revealed that the drops of blood found outside and inside the convenience store were the defendant’s blood. A shard of glass, which was found stuck between the grip and the trigger guard of the gun, was determined to :h'ave come from the broken driver’s side window of the victim’s vehicle. From the two different DNA findings on the murder weapon, the crime lab forensic biologist was able to conclusively rule out the victim and Long as possible contributors, but she was not able to either rule out the defendant as a contributor or testify that, within a reasonable degree of scientific probability, the defendant’s DNA was on the weapon. She could only testify that the defendant was a possible contributor of the DNA found on the murder weapon.

Lastly, the State called the co-defendant, Long, as a witness. Long testified that the defendant picked him up that evening in the green Honda and that they drove to a music studio. Thereafter, the defendant asked Long to drive because the defendant told Long “he was kind of messed up” and he did not have a valid driver’s license. Long began driving. While they were stopped at a stop sign, Long saw someone walking on a sidewalk towards them, saw the. defendant swinging his arm towards the rear window, and heard a loud bang. Long hit the brakes, and while Long was looking around the car to see if anything had been broken, the defendant jumped out of the car. When he next saw the defendant, the defendant was standing outside of a white car. He saw the defendant strike the window of the white car -with something in his hand, and while the defendant was about to strike the window again, he heard' another “bang go off.” The defendant jumped back into the green Honda with Long driving. Long stopped at a gas station and surrendered to the police.

The record reflects that throughout the trial, defense counsel attempted to discredit both the State’s theory and the evidence that the defendant intentionally, and with malice, ill-will, or evil intent shot and killed the ■ victim.'Instead, defense counsel attempted to convince the jury that either the victim had shot at the defendant or the defendant mistakenly believed that the victim shot at him, the defendant exited his vehicle and confronted the victim, and the gun accidentally discharged while the defendant was toying to defend himself as he was struggling with the victim over the gun.

Thus, defense counsel focused on the defendant’s lack of malice, ill-will, or intent. Beginning with his opening statement, defense counsel , told the jury that the evidence that would be presented during the trial would be more consistent with the defense’s theory that the defendant was attacked by the victim first when the victim shot at him, and then the defendant confronted the victim and the firearm discharged while the defendant and victim were struggling over the firearm, rather than the State’s theory of the case that the defendant had intentionally and with malice, ill-will, or evil intent shot and killed the victim. For example, defense counsel stated the following;

There are two holes in the window [of the victim’s car]. And the evidence will show that those two holes may very well have been caused by being hit with a gun or by fists. And the evidence will also show that it is consistent with two people struggling for a gun, slamming against the window and breaking it. And the fact that those knuckles and the knuckles that are cut are Mr. Walters, the evidence is consistent and will show that Mr. Walters had his hands over the hands of the individual who was trying to shoot him, who is the deceased in this case. And that’s why his knuckles are the ones that are cut and not the victim’s.

Defense counsel actively pursued this defense through the cross-examination of the State’s witnesses. For example, when defense counsel cross-examined Officer Wing, he established that she was approximately one block away from where the shooting occurred, she did not see a muzzle flash or how the shooting occurred. Gunshot residue was found: (1) inside the green Honda the defendant was in; (2) on the palm and back of the victim’s left hand but not on the victim’s right hand (the victim was right-handed); (3) on the palm of the defendant’s right hand; and (4) on the palm and back of the defendant’s left hand. When defense counsel cross-examined Alan Kline, the criminalist who testified about the gunshot residue, he asked Kline whether, based on his examination of the gunshot residue, it was possible that the defendant and the victim had struggled over the gun and the gun had discharged during the struggle. Kline agreed that it was possible. Defense counsel was also able to establish that gunshot residue may be rubbed off or transferred during contact and that fire rescue and medical personnel may have disturbed gunshot residue on the victim’s hands while trying to save the victim’s life.

Through the medical examiner, defense counsel was able to obtain expert testimony that the evidence, including the trajectory of the projectile that entered and exited the victim’s body and was found lodged in the passenger seat of the victim’s vehicle, was consistent with a struggle outside of the car, the gun discharging during the struggle, and the bullet traveling through the victim’s chest through the open car door, and into the passenger seat of the victim’s vehicle. Additionally, in support of the defendant’s defense that the defendant was not armed that evening and that the victim was the initial aggressor who fired a shot at the defendant, followed by a struggle over the gun in the defendant’s attempt to disarm the victim, and the gun discharging during that struggle, defense counsel elicited testimony from the co-defendant, Long, that he never saw the defendant in possession of a firearm that night and that he could not tell whether the first shot was due to the discharge of a firearm inside the car that he and the defendant were in or due to someone shooting at them.

Lastly, during closing arguments, defense counsel argued that the State had failed to prove how the shooting occurred. He argued that the evidence was inconsistent with the State’s theory of the case, and he attacked the credibility of and the conclusions reached by some of the State’s witnesses. He then highlighted the testimony by the medical examiner, who admitted that the victim could have been shot during a struggle, and argued that it was more plausible that the victim was shot while the defendant was attempting to disarm the victim, who was trying to shoot the defendant.

Well, as plausible, as, much more plausible than one of the theories of the prosecution is that Mr. Walters was trying to disarm[ ] the individual [who] was trying to shoot him. And that he puts his right hand over the hand of the man who had the gun. And as they struggled for the gun, of course, the man who had the gun has the gun, has his hand under the hand ... that covers him. And that during that bobbing and weaving!,] that ... struggle that gun crashes two or three times against the window breaking it, then, of course, Mr. Walters!’] hand would be cut. But the hand of the individual who’s holding the gun is shielded by the man’s hand....
Contrary to what the State stated during its first part of closing summation there were injuries that were very much indicated during my question that there might have been a struggle or that could have been a struggle. The doctor described that there was a cut [on] [the victim’s] nose which the State theorizes could have been from a piece of glass, that’s a theory. It is consistent with a piece of glass, consistent means it could have happened, that what it means. But there’s also contusions!,] he had abrasions [on] one of his knees and he had another contusion on his body.
So therefore that is also consistent with injuries in a struggle absolutely....

Thus, it is clear that defense counsel actively pursued a theory that when the defendant shot the victim it was without malice or evil intent.

C. The record contains evidence upon which the jury could have found the defendant guilty of culpable negligence

The undisputed evidence was that the defendant was “messed up” that evening. The jury could have found the defendant guilty of manslaughter by culpable negligence if the jury concluded that (1) the defendant, in his intoxicated state, accidentally discharged his own firearm in the green Honda, (2) in his stupor, the defendant believed someone had fired at him while he was seated in the Honda, (3) the defendant exited the Honda to confront the victim, who he believed may have shot at him, banged on the window of the vehicle the victim was in with a firearm, and (4) the firearm either discharged while the defendant was banging on the window, or while he and the victim were struggling over the gun.

Culpable negligence is the failure to act reasonably towards others without any conscious intention to harm. It is reckless conduct—a negligent act or acts committed with an utter disregard for the safety of others. There was evidence upon which the jury could have found that the defendant’s acts were gross and flagrant, demonstrating a disregard for human life or the safety of persons exposed to his acts— that he consciously committed an act or acts or followed a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily harm.

If the jury did not believe that the State had proved beyond a reasonable doubt that when the defendant shot the victim he did so intentionally and with ill-will, hatred, spite or evil intent, then it could have found that the defendant did so while acting with gross and flagrant recklessness. Carrying a loaded firearm on his person while in such an intoxicated state that he was unable to discern whether he had accidentally discharged his own firearm while seated in a car with another individual or he was being fired upon by someone outside of the car was certainly gross, flagrant, and reckless behavior, demonstrating a total disregard for the safety of the other occupant (Long who was driving the car) and the general public. But neither Long nor members of the general public were killed as a result of the negligent discharge of the defendant’s firearm in the green Honda. It was the defendant’s subsequent acts that resulted in the death of the victim. The jury could have concluded that because of his mistaken belief that someone had fired a gun at him, the defendant confronted an innocent and unarmed man with his firearm. In his stupor and rage, the defendant banged on the window of the vehicle the victim was in with that firearm, and the firearm discharged, killing the victim. Thus, if the jury was not convinced that the defendant was guilty of second degree murder, it could have found the defendant guilty of manslaughter by culpable negligence.

Because there was evidence from which the jury could have found the defendant guilty of manslaughter by culpable negligence, this Court must affirm the defendant’s conviction based on this Court’s decision in Dawkins and the Florida Supreme Court’s decision in Haygood. In Dawkins, this Court specifically relied on Haygood in denying Dawkins’ petition for writ of habeas corpus based on the erroneous manslaughter by act instruction given to the jury. In finding that no fundamental error had occurred, this Court held that, although Dawkins did not rely on a culpable negligence defense, there was evidence upon which the jury could have found Dawkins guilty of manslaughter by culpable negligence. The same is true in this case.

CONCLUSION

The issue before this Court on remand is whether the unobjected-to erroneous manslaughter by act jury instruction is fundamental error where the defendant was convicted of second degree murder and the jury was also instructed on manslaughter by culpable negligence as a lesser included offense of second degree murder. Because the record clearly reflects that the defendant’s intent was a disputed issue at trial and there was evidence upon which the jury could have found that the firearm accidentally discharged and killed the victim due to the culpable negligence of the defendant, the giving of the flawed manslaughter by act instruction does not constitute fundamental error in this case. Accordingly, we affirm.

Affirmed.


author: Per Curiam.

text:
    Jaquan Ricardo SAEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1405
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Jaquan Ricardo Saez appeals multiple sentences imposed after pleading nolo con-tendere to five felonies and two misdemeanors. We find merit in only one of his arguments: the written sentencing order on Count III conflicts with the trial court’s oral pronouncement at sentencing. Therefore, we reverse in part.

“[A] court's oral pronouncement of a sentence controls over the written sentencing document.” Williams v. State, 957 So.2d 600, 603 (Fla. 2007). At the sentencing hearing, the trial court informed Saez, “You get credit for nine hundred eighty days that you have in already.” The sentencing orders- on all counts except Count III properly reflect credit for the time served.

Consequently, we reverse and remand with directions to the trial court to correct the written sentencing document for Count III to reflect the oral pronouncement.

Affirmed, in part, reversed in part, and remanded with instructions.

Ciklin, G. J., Levine and Forst, JJ., concur.


author: THOMAS, M.K., J.

text:
    CITY OF JACKSONVILLE/City of Jacksonville Risk Management, Appellants, v. Robert RATLIFF, Appellee.
    CASE NO. 1D15-5844
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017

      Thomas G. Portuallo of Eraclides, Gel-man, Hall, Indek, Goodman & Waters, Jacksonville, for Appellants.
    John J. Schickel of Coker, Schickel, Sor-enson, Posgay, Camerlengo & Iracki, Jacksonville, and Bryan S. Gowdy and Meredith A. Ross of Creed & Gowdy, P.A., Jacksonville, for Appellee.
   THOMAS, M.K., J.

In this workers’ compensation appeal, the Employer/Carrier (E/C) challenges an order awarding the Claimant, a firefighter, entitlement to compensability of his heart condition and related medical treatment under the “heart-lung” statute, section 112.18, Florida Statutes (2014). The Claimant did not appeal the JCC’s denial of compensability of an alleged hypertension condition. We affirm in result because we find the E/C failed to sustain its burden of proof in one respect, but write to clarify application of section 112.18(1) regarding the shifting burdens of proof and required quantum of evidence. As the Claimant asserted a presumption-only claim, the E/C’s burden on rebuttal is competent evidence. Major contributing cause (MCC) is not a component of the E/C’s rebuttal threshold. However, under these facts, the E/C must also rebut, by competent evidence, the presumption of the “triggering event.” We find the E/C failed to rebut this second aspect of the presumption.

I. Facts

The Claimant, a firefighter for twenty-six years, suffered an anterior wall myocardial infarction while at work on November 17, 2014. On that day, he attended a meeting in which a disagreement arose as to building code requirements. The Claimant characterized the atmosphere as “back and forth” and extremely stressful, but noted he did not consider the discussion a heated argument. During the meeting, the Claimant began to experience discomfort and chest pain. After the meeting, he sought medical care and was admitted to the hospital. The Claimant was ultimately diagnosed with coronary artery disease (CAD) and acute anterior wall myocardial infarction. The E/C accepted compensability under the “120 day rule” and authorized continued medical care with Dr. Dietzius upon Claimant’s release from the hospital. See § 440.20(4), Fla. Stat. However, the E/C later denied compensability of the “accident” and cardiac conditions.

The Claimant qualified for the “heart-lung” presumption under section 112.18(1), having no evidence of heart disease on his pre-employment physical, among other prerequisites. The Claimant asserted com-pensability of the heart condition on a “presumption only” basis; or in other words, the Claimant had no medical evidence of occupational causation and relied solely on the presumption of the “heart-lung” statute.

The Claimant’s IME cardiologist, Dr. Schimmel, and the E/C’s expert cardiologist, Dr. Dietzius, both testified via deposition. The record supports that Drs. Dietzi-us and Schimmel noted the Claimant’s preexisting history of diabetes, high cholesterol, prior history of smoking, and a family history of early onset CAD, among other pre-existing factors. Dr. Dietzius testified the Claimant suffered from multiple risk factors for development of CAD. In his opinion, these factors had risen, within a reasonable degree of medical certainty, to the level of causative factors for the Claimant’s CAD and were not related to work. He testified, “... given his risk factors of hyperlipidemia and diabetes, which I do not believe are related to his work, I believe that his risk factors contribute to his coronary artery disease over his work.”

Medical testimony established the Claimant suffered from blocked arteries (CAD) caused by the build-up of plaque. The myocardial infarction resulted from the rupture of the plaque. Dr. Dietzius admitted there was no medical test to determine the “trigger” or cause of the plaque rupture. He identified possible “triggers” of the plaque rupture to be high blood pressure, stress, or non-work-related factors, among others.

Dr. Schimmel, the Claimant’s IME expert, also testified the Claimant suffered from underlying blockage. He also recognized the list of multiple pre-existing risk factors. He opined that he could not identify, within any degree of medical certainty, which risk factors caused the CAD. Further, he advised that stress or increase in blood pressure from the business meeting could have “triggered” the plaque rupture on the day of this alleged “accident.” However,'he also agreed the cause or “trigger” of the rupture/thrombosis is unknown.

II. Firefighter’s Presumption

Section 112.18(1), also known as the “firefighter’s presumption” or the “heart-lung” statute, creates a rebuttable presumption of occupational causation for disabling heart disease suffered by firefighters, among other protected classes, who meet certain prerequisites. At the time of the enactment of the “heart-lung” bill in 1965, workers’ compensation law provided for an occupational diseases cause of action pursuant to section 440.151, Florida Statutes. Under section 440.151, a claimant was under the obligation to produce medical testimony to support the ultimate conclusion that the disease was related to employment, and could not prevail on an argument based '■ on facts or inference alone. The enactment of section 112.18 offered a claim option that allowed qualifying employees to bridge this causation gap.

Prior to enactment of the “heart-lung” statute, an occupational disease claim under section 440.151 enjoyed no presumption in favor of the claimant, and the statute was silent with respect to an evidentiary burden of persuasion. However, in the late 1960s, Chapter 440, Florida Statutes, established a presumption in favor- of a claimant in “any proceeding for the enforcement of a claim for compensation.” See § 440.26, Fla. Stat. (1965); Deahl v. Uni-Pak Corp., 550 So.2d 122 (Fla. 1st DCA 1989); Hacker v. St. Petersburg Kennel Club, 396 So.2d 161 (Fla. 1981). Section 440.26 provided that, in the “absence of substantial evidence to the contrary,” claims filed would be presumed to have occurred within the course and scope of employment. - (Emphasis added.) Thus, section 440.26 provided an evidentia-ry standard equivalent to that of “clear and convincing evidence” to rebut its presumption. Of interest, section 440.151 specifically excluded the presumption of section 440.26 from application in occupational disease cases. The evidentiary standard set by the Legislature for the presumption of section 440.26 was likely influential in later assignment of the quantum of proof required under section 112.18.

In 1979, the Florida Supreme Court in Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438 (Fla. 1979), addressed for the first time the presumption of sections 112.18 (firefighters) and 185.34 (police officers) and application of the presumptions in “disability in-line-of-duty benefit” claims. Two issues were addressed: 1) whether the State Retirement Commission erred in refusing to apply the “heart-lung presumption” of section 112.18(1) in evaluating firefighter Caldwell’s claim for disability inline-of-duty benefits; and 2) if the presumption of section 112.18(1) applied, whether the E/C met the burden of proof with respect to its rebuttal threshold. Caldwell, 372 So.2d at 439. The Florida Supreme Court interpreted the burdens of proof and quantum of evidence required of the section 112.18 presumption. Id. at 440-42.'

Caldwell argued that the presumption of section 112.18 required a high rebuttal standard, typically required of social policy presumptions, to maintain the legislative intent of the statute. Id. at 439. Furthermore, he asserted that a high burden should be placed on those litigants who claim no work-relatedness when a prima facia case of causal relationship has been made. Id. Caldwell proclaimed that the “heart-lung” statute was one of critical social policy affecting the burden of proof or persuasion and was not a “vanishing presumption.” Id. at 440-41. In accepting Caldwell’s arguments, the court explained, “the [section 112.18] presumption would be meaningless if the only evidence necessary to overcome it is evidence that there has been no specific occupational-related event that caused the disease.” Id. at 440.

The Florida Supreme Court further detailed how the presumption may be rebutted:

When evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. This may be by a preponderance of the evidence or by clear and convincing evidence, as the case may be...
The statutory presumption is the expression of a strong public policy which does not vanish when the opposing party submits evidence. Where the evidence is conflicting the quantum of proof is balanced and the presumption should prevail. This does not foreclose the employer from overcoming the presumption. However, if there is .evidence supporting the presumption the employer can overcome the presumption only by clear and convincing evidence.

Id. at 440-41 (emphasis added).

Section 112.18 did not explicitly recognize that it was a public policy measure and did not articulate the burden of persuasion applied to all possible levels of rebuttal. Where the Legislature does not articulate the rebuttal thresholds within a presumption statute, the courts are tasked with analyzing the substantive law of the case to determine whether the presumption was one of burden of proof or a “vanishing” or “bursting bubble” presumption. Universal Ins. Co. of N.A. v. Warfel, 82 So.3d 47, 58 (Fla. 2012). After determination that section 112.18 embodied strong public policy, the court assigned to the E/C the higher burden of persuasion of clear and convincing evidence, where a claimant introduced evidence of work-relatedness. Caldwell, 372 So.2d at 440. The etiology of the clear and convincing evidence burden of persuasion for section 112.18 presumption rebuttal, has been a matter of speculation and debate. See Punsky v. Clay Cty. Sheriff's Office, 18 So.3d 577 (Fla. 1st DCA) (on rehearing en banc), review denied, 22 So.3d 539 (Fla. 2009). However, the Florida Supreme Court’s application of a higher quantum of proof on rebuttal where evidence is submitted by the claimant in support of causation is logically supported by the court’s recognition of the “heart-lung” statute as a matter of strong public policy, and section 112.18 as a presumption of “burden of proof.”

III. Analysis

The standard of review on appeal of workers’ compensation orders is “whether there is substantial competent evidence in accordance with logic and reason to sustain the finding of the [JCC].” Id. at 583 (quoting Andrews v. C.B.S. Div., Maule Indus., 118 So.2d 206, 208 (Fla. 1960)). This Court has noted the importance of competent substantial evidence review rather than a “reweighing of the evidence.” Id Contrary to the E/C’s arguments, the standard is not de novo merely based on the fact that expert testimony was submitted via deposition, so the JCC was in no better place than this Court to rule on credibility. Frederick v. United Airlines, 688 So.2d 412, 413 (Fla. 1st DCA 1997).

Burdens of Proof/Quantum of Evidence

The Claimant asserted a “presumption only” claim pursuant to section 112.18. Accordingly, in this context, to rebut the presumption, the E/C must produce competent evidence that the disease is not work related. With respect to the CAD, the Claimant’s expert testified he was unable to provide an opinion, within a reasonable degree of medical certainty, as to causation. The E/C’s medical expert, Dr. Dietzius, testified, also within a reasonable degree of medical certainty, that all causative factors of Claimant’s CAD were non-work-related. The JCC summarized Dr. Dietzius’ testimony as follows:

Ultimately, Dr. Dietzius testified that the Claimant’s risk factors for the development of coronary heart disease, including hyperlipidemia and diabetes, had risen to the level of actual causative factors within a reasonable degree of medical certainty. It is noted that the doctor did not specifically opine as to major contributing cause. The doctor relied upon supporting literature of epidemiological studies indicating that diabetes and hyperlipidemia were risk factors that could cause plaque formation which in turn causes coronary artery disease.

The JCC ultimately rejected the opinion of Dr. Deitzius regarding the causation of the CAD, explaining as follows:

... Dr. Dietzius rendered his ultimate opinion on causation based on his training, experience and a review of medical studies that were epidemiological by nature. However, the undersigned did not find the testimony to be persuasive or sufficient as competent evidence or clear and convincing evidence by which to establish a rebuttal of the Legal Presumption. The evidence further did not meet the standard set to constitute major contributing cause.

(Emphasis added.)

Here, the JCC used a “catch all” approach by holding that he did not find the testimony to meet the standard of “competent evidence or clear and convincing evidence” sufficient to establish a rebuttal of the presumption. Use of this general “catch-all” standard was error. In Johns Eastern Company v. Bellamy, 137 So.3d 1058 (Fla. 1st DCA 2014), this Court held a JCC must determine what rebuttal standard the E/C must satisfy and identify it in the final order. Use of a “catch all” reference to both burdens of evidentiary persuasion is not sufficient and does not adequately identify the JCC’s reasoning. Id. at 1059. Defending a presumption-only claim, the E/C faced only the threshold rebuttal burden of providing competent evidence that the factor, or multiple factors, wholly combined, causing the CAD were non-industrial in nature. Punsky, 18 So.3d at 583; Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).

We conclude that the E/C satisfied its burden of rebutting this aspect of the statutory presumption but did not, as we explain later, satisfy its burden as to the second-tier of the analysis. Dr. Dietzius testified, within a reasonable degree of medical certainty and based on medical evidence, the CAD was caused by non-work-related factors. Competent substantial evidence does not support the JCC’s finding that the E/C failed to meet its threshold rebuttal standard. Improperly, the JCC imposed upon the E/C the burden of rebuttal by clear and convincing evidence and that MCC be addressed by its medical expert.

Major Contributing Cause

A claimant’s burden of proving MCC by medical evidence is fully met where the presumption contained in section 112.18(1) is applied. Fuller, 22 So.3d at 806. In the Final Order, the JCC held, “It is noted that [Dr. Dietzius] did not specifically opine as to major contributing cause.” He further noted, regarding the E/C’s failure to satisfy its rebuttal standard, “The evidence further did not meet the standard set to constitute major contributing cause.” The JCC erred in interpreting the E/C’s rebuttal threshold to include satisfaction of the MCC standard.

MCC is defined as, “the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.” § 440.09(1), Fla. Stat. Section 440.09(1) must be read in conjunction with section 440.02(1), which provides as follows:

... if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensa-ble....

By definition, MCC is inapplicable to satisfaction of the E/C’s rebuttal threshold under section 112.18 (whether requiring competent evidence or clear and convincing evidence). MCC contemplates comparison of two or more qualifying causation factors, with at least one requiring non-work relationship and one of work-relatedness. MCC analysis is necessary only when the claimant’s injury or need for treatment is caused by the impact of the employment accident combining with a preexisting injury or condition that is non-work-related. Pizza Hut v. Proctor, 955 So.2d 637 (Fla. 1st DCA 2007); Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007). If, in order to satisfy its rebuttal burden under a section 112.18 claim, the E/C must submit medical evidence that “the” or “all” causation factors are non-industrial in order, MCC is extraneous. See Walker v. Broadview Assisted Living, 95 So.3d 942 (Fla. 1st DCA 2012); Caputo v. ABC Fine Wine & Spirits, 93 So.3d 1097 (Fla. 1st DCA 2012); Proctor. It matters not the percentage of responsibility assigned to one or more of the non-industrial causation factors. For example, assume a medical expert testifies that there are several risk factors of a claimant’s heart disease—preexisting genetic factors, smoking, and work-related stress, among others. The E/C’s rebuttal threshold cannot be satisfied by eliciting testimony from a doctor that all are causative factors (work and non-work related), to some degree, including stress from work, but the MCC of the heart disease is the pre-existing, genetic factor.

In practical application, section 112.18 requires the E/C, on rebuttal of the presumption, to satisfy a more stringent burden of proof than MCC. Pursuant to legal precedent, the E/C’s rebuttal burden does not encompass an obligation to demonstrate a single, non-industrial cause. City of Tarpon Springs v. Vaporis, 953 So.2d 597, 599 (Fla. 1st DCA 2007). Nonindustrial causation may be shown through demonstration of a combination of wholly non-industrial causes. Fuller, 22 So.3d at 806. As this Court noted in Punsky, “It is the evidence of non-industrial causation that may be found to rebut the presumption, not the mere existence of risk factors or conditions.” 18 So.3d at 583. Satisfaction of the prerequisites for MCC application, causative factors that are both work-related and non-work-related, is mutually exclusive to the viability of an E/C’s rebuttal under section 112.18. Accordingly, the absence of medical testimony regarding MCC from the E/C’s medical expert testimony did not result in the E/C’s failure to meet its burden of proof.

In Fuller, this Court announced, “Because a claimant’s burden of proving major contributing cause (MCC) by medical evidence, is fully met where the presumption contained in section 112.18(1) is applied, the Employer, in rebutting the presumption must likewise disprove occupational causation by medical evidence.” 22 So.3d at 806. To the extent that Fuller, or any language in Punsky, has been interpreted as requiring the E/C to also satisfy MCC as a part of the burden of proof shifting under section 112.18, we clarify to the contrary. Fuller held the E/C must satisfy its burdens of proof “by medical evidence,” as is required of the claimant. Id. This Court did not declare that MCC is a component of the E/C’s rebuttal threshold, but only that the specific evidence required to satisfy the shifting burdens of proof must be medically based.

Following qualification for the presumption, the claimant’s burden of proving MCC under section 440.09(1), is satisfied. MCC is not revived as a required standard of proof for the claimant under sections 440.09(1) and 440.161, Florida Statutes, unless and until the E/C successfully satisfies its rebuttal threshold.

Two-Tiered Analysis Required

This Court has recognized the necessity of application of a two-tiered rebuttal analysis when the subject heart disease results from a combination of an underlying condition with a “triggering event.” See Mitchell v. Miami Dade Cty., 186 So.3d 65 (Fla. 1st DCA 2016) (Mitchell II) (concluding even if Claimant’s condition was congenital and non-work related, if medical testimony establishes that the combination of the congenital or underlying condition and a “trigger” cause the heart disease, the E/C must also establish through the required quantum of evidence that the “trigger” was also non-occupational). Of note, this Court in Mitchell II emphasized its earlier declaration that, “much like a pre-existing condition, this court has recognized a congenital condition can be aggravated.” Id at 68 (citing City of Temple Terrace v. Bailey, 481 So.2d 49 (Fla. 1st DCA 1986)); Walters v. State of Fl.-DOC, 100 So.3d 1173 (Fla. 1st DCA 2012).

In Gonzalez v. St. Lucie County-Fire District, 186 So.3d 1106 (Fla 1st DCA 2016), the Claimant, a firefighter, responded to the scene of a fire. He walked the scene of the fire wearing heavy equipment weighing sixty to seventy pounds. At the scene, he became lightheaded and required immediate medical treatment. The Claimant was later diagnosed with a congenital abnormality (AVNRT), “characterized by an extra electrical pathway which causes tachycardia when there is a triggering event.” Id. at 1107. The JCC found that the E/C had successfully rebutted the presumption of section 112.18 as it relates to the congenital condition. However, this Court remanded the case to the JCC to address the second-tier analysis, required by the facts, as to whether the E/C overcame the presumption relating to the “trigger,” which the Claimant argued was the exertion from his work activities.

Here, the Claimant suffered from an underlying condition, CAD. On the date of accident, the underlying CAD resulted in a plaque rupture (triggering event) and the Claimant suffered a myocardial infarction, the heart disease requiring treatment. Dr. Dietzius testified there is no test that can directly determine a cause for the “trigger,” the plaque rupture. In fact, both medical experts agreed that the etiology for the plaque rupture was unknown. One expert agreed that the stress of the heated work meeting could have caused high blood pressure, which resulted in the plaque rupture (manifesting as chest pain during the meeting). However, this was speculation. As explained above, the E/C satisfied its rebuttal standard by introducing competent evidence that the causative factors of the Claimant’s CAD were non-work-related. However, under these facts, the E/C was also required to overcome the presumption of the “trigger.” Once a claimant gives rise to the presumption by satisfying the pre-requisites of section 112.18, occupational causation is established; therefore, there is no requirement on the part of the claimant to put on further proof meeting the requirements of section 440.151, Florida Statutes, as it relates to a “trigger.” See Walters v. State of Fl., 100 So.3d 1173, 1176 (Fla. 1st DCA 2012). The E/C failed to satisfy its rebuttal burden with respect to this second-tier. Both medical experts testified that it was not possible, within a reasonable degree of medical certainty, to determine the cause of the “trigger,” but the stress from the meeting could have been a possible cause. Because the E/C could not, by competent evidence, show that “the” or “all” possible factors causing the “trigger event” were non-work related, the presumption prevails. LeBlanc v. City of W. Palm Beach, 72 So.3d 181 (Fla. 1st DCA 2011).

This matter does not require remand to the JCC, as the Final Order documents the JCC’s findings with regard to the unknown causation of the “triggering” event. The JCC specifically found, “[Dr. Dietzius] agreed that the cause for the plaque rupture was unknown .... ” Dr. Schimmel also opined that there was no method to determine causation of the plaque rupture. Both experts agreed the stress from the argument in the business meeting may have been one of many possible causes. Accordingly, the E/C failed to satisfy both tiers of its rebuttal burden.

AFFIRMED.

BILBREY and KELSEY, JJ., CONCUR.

      . Possible risk factors may not necessarily be considered by a medical expert to rise to the level of causative factors. See Punsky v. Clay Cty. Sheriff's Office, 18 So.3d 577, 583 (Fla. 1st DCA) (on rehearing en banc), review denied, 22 So.3d 539 (Fla. 2009),

      . Neither party raised a' Daubert objection to the expert medical testimony, or requested an EMA pursuant to section 44Q.13(9)(c), Florida Statute. The JCC did not, sua sponte, appoint an EMA.

      .Section 112.18 claims are considered de facto occupational disease claims and are, thus, governed by legal standards of section 440.151, Florida Statutes; e.g. statute of limitations. See City of Pembroke Pines v. Ortagus, 50 So.3d 31 (Fla. 1st DCA 2010); Sledge v. City of Fort Lauderdale, 497 So.2d 1231 (Fla. 1st DCA 1986).

      . Although section 112.18, Florida Statutes, provides minimal instruction on required burdens of proof and burden of evidentiary persuasion (i.e. competent evidence), case law has provided further guidance, as will be discussed later in this opinion.

      . Section 440.26 was repealed in 1990, al- - though the section continued to be referenced in section 440.151(l)(e) until the 2003 amendments to Chapter 440.

      . [Clear and convincing evidence] is that which “produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,” evidence "so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Aiello v. Knoll Golf Club, 64 N.J.Super. 156, 162, 165 A.2d 531 (App. Div. 1960).
      Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983) (quoting In re Boardwalk Regency Corp, for a Casino License, 180 N.J.Super. 324, 434 A.2d 1111, 1118 (N.J. Super. App. Div. 1981)).

      .A "burden of proof” presumption was later codified in the Florida Evidence Code, as section 90,304, Florida Statutes.

      . If a claimant has evidence of work-relatedness, the E/C’s rebuttal standard is by clear and convincing evidence. Here, the Claimant had no evidence of causation other than the presumption of section 112.18.

      . In Punsky, although the doctor was questioned regarding MCC, he had previously identified the risk factors, all of which were non-work-related. 18 So.3d at 579-80.

      . In Mitchell I, the Claimant (an off-duty police officer) was at home when she experienced chest pain after taking her daughter for medical care. Brief of Appellant at 3, Miami-Dade Cty. v. Mitchell, 159 So.3d 172 (Fla. 1st DCA 2015) (Mitchell I) (No. 14-1446). The Claimant was ultimately diagnosed with the congenital condition of slow accessory pathway which was "triggered” by "something” that resulted in heart disease. Mitchell II, 186 So.3d at 68. This Court remanded the case back to the JCC to determine if the E/C also overcame the presumption as it relates to the "trigger” component. Id. at 69.

      .The E/C’s second-tier rebuttal analysis of a “triggering event,” if the facts require it, logically contemplates whether the "trigger” occurred while the claimant was within the course and scope of employment, E.g., did "trigger” occur when claimant was sleeping at home, while in a stressful work meeting, or while under exertion at work? Although the specific cause(s) of the trigger may not be identifiable, work-relation may be excluded if the claimant cannot causally connect the "trigger event” to work activities.

      . Of note, if the underlying condition is congenital, the E/C does not have to prove the "trigger” is also congenital but only that the cause(s) of the trigger is "non-occupational.” See Mitchell II, 186 So.3d at 68.


author: EDWARDS, J.

text:
    DEPARTMENT OF REVENUE O/B/O Willette TISDALE, Appellant, v. Otha L. JACKSON, Appellee.
    Case No. 5D16-2750
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No Appearance for Appellee.
   EDWARDS, J.

The Department of Revenue (“DOR”), on behalf of Willette Tisdale (“Tisdale”), appeals the trial court’s order dismissing its petition that sought to extend child support payments being made by Otha Jackson (“Jackson”) beyond the dependent child’s eighteenth birthday. The hearing officer determined that DOR lacked standing to seek this relief because the petition was not filed until after the child’s eighteenth birthday; the trial court adopted the reasoning and dismissed the petition for lack of subject matter jurisdiction. We reverse and remand for further proceedings for the reasons set forth below.

In 1999, the trial court adjudicated Jackson to be the legal father of the child born to Tisdale and ordered Jackson to pay child support. The undisputed evidence presented to the hearing officer and trial court was that: (i) the child turned eighteen on December 17, 2015; (ii) he was still living with Tisdale; (iii) he was financially dependent on his parents; (iv) he was still enrolled in high school; (v) he was a successful student; and (vi) he was on track to graduate in June 2016, before his nineteenth birthday. DOR filed its petition for modification on January 6, 2016, seeking to extend the previously ordered child support until the child graduated from high school. Jackson objected at the hearing on the petition, arguing that his obligation for child support ended on December 17, 2015.

Section 61.13(l)(a)l.a., Florida Statutes (2016), provides that child support terminates “on a child’s [eighteenth] birthday unless the court finds or previously found that [section] 743.07(2) applies, or is otherwise agreed to by the parties.” § 61.13(l)(a)l.a., Fla. Stat. (2015); see also § 61.14(9), Fla. Stat. (2016) (“Unless otherwise ordered by the court or agreed to by the parties, the obligation to pay the current child support for that child is terminated when the child reaches 18 years of age or the disability of nonage is removed”). Section 743.07(2), Florida Statutes (2016), provides:

This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of [eighteen] years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of [eighteen] and [nineteen], and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of [nineteen],

§ 743.07(2), Fla. Stat. (2016).

A parent, or, as in this case DOR, has standing to file for modification of the child support obligation to extend it beyond the child’s eighteenth birthday, based on the high school provision of section 743.07(2), even though the dependent child turned eighteen before the petition for modification was filed. See Fla. Dep’t of Rev. ex rel. Hobbs v. Lockmiller, 791 So.2d 652, 553 (Fla. 2d DCA 2001) (finding that DOR had standing to file petition for continuing support for a dependent child pursuant to the high school provision section 743.07(2) although petition filed four months after the child turned eighteen); see also Bloom v. Panchyshyn, 200 So.3d 272, 273 (Fla. 1st DCA 2016) (describing the argument that parent lacked standing to seek extended child support under high school provision because petition was filed two weeks after child turned eighteen as “meritless”); Campagna v. Cope, 971 So.2d 243, 249 (Fla. 2d DCA 2008) (permitting parent to seek retroactive child support by petition filed after the dependent child turned eighteen pursuant to the high school provision of section 743.07(2)); Henderson v. Henderson, 882 So.2d 499, 499-500 (Fla. 1st DCA 2004) (same).

The hearing officer’s and trial court’s reliance upon Larwa v. Department of Revenue ex rel. Roush, 169 So.3d 1285, 1285 (Fla. 5th DCA 2015), is misplaced because the extension of child support in that case was “based not on the son’s [high] school attendance, but on his mental incapacity,” On rehearing, this court held that under those circumstances, an independent action must be brought by the emancipated, but dependent, child rather than by a parent seeking modification of child support. Roush, 169 So.3d at 1285.

For the reasons discussed above, it is clear that DOR had standing and the circuit court had subject matter jurisdiction regarding DOR’s petition to extend Jackson’s child support obligations based upon the undisputed facts that the child was eighteen, in high school, performing in good faith, with reasonable expectation of graduation before the age of nineteen. See § 743.07(2), Fla. Stat. (2016). Accordingly, we reverse and remand for the trial court to reconsider DOR’s petition to extend Jackson’s obligation for child support for the period of time between the child’s eighteenth birthday and his graduation from high school, which according to the record before this court, occurred in May 2016. On remand, the circuit court shall also entertain any appropriate petitions DOR has filed or may file for child support arrearages.

REVERSED and REMANDED.

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

      . DOR serves as Florida’s child support enforcement agency pursuant to Title IV-D of the Social Security Act.


author: WINOKUR, J.

text:
    Aaron L. STRONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 1d16-2275
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017
    Aaron L. Strong, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Aaron L. Strong appeals the final order of the circuit court imposing sanctions upon him for filing multiple frivolous post-conviction motions. We affirm this order and also write to address Appellant’s numerous frivolous appeals.

Appellant was convicted of two counts of sale of a controlled substance within 1000 feet of a church, and sentenced to consecutive terms of ten years’ incarceration as to each count. His judgment and sentence were affirmed by this Court in Strong v. State, 847 So.2d 462 (Fla. 1st DCA 2003). Since then, Appellant has filed in this Court fourteen separate appeals, including this instant one, of the lower court’s orders denying various postconviction motions and petitions challenging his 2002 convictions. Appellant has not obtained relief in any of these cases.

An order prohibiting additional pro se filings by a prisoner is reviewed “for an abuse of discretion.” Ashe v. State, 106 So.3d 956, 957 (Fla. 4th DCA 2013). Florida Rule of Criminal Procedure 3.850 allows defendants to seek relief by filing motions .to vacate, set aside, or correct sentences, but also imposes time limitations of two years on most motions. Fla. R. Crim. P. 3.850(b). Prior to the imposition of a sanction, the circuit court must “first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence.” State v. Spencer, 751 So.2d 47, 48 (Fla. 1999).

In this case, the circuit court dismissed Appellant’s three postconviction motions as successive and untimely, and included a directive to show cause why sanctions should not be imposed against him. The circuit court noted that the motions were filed more than two years after Appellant’s convictions and sentences became final in 2003, referencing the two-year limitation period for filing motions under rule 3.850. The circuit court also noted Appellant s several motions for postconviction relief, including three previous motions under rule 3.850, which have all been denied. The circuit court’s order referenced a previous order dismissing a previous postconviction motion in the same case, in which Appellant was warned that further frivolous claims could result in sanctions. Appellant responded to the circuit court’s order, and the circuit court found that Appellant failed to show good cause why the court should not prohibit future filings. The circuit court relied upon Ferris v. State, 100 So.3d 142, 144 (Fla. 1st DCA 2012) (Wetherell, J., concurring); Cassady v. State, 683 So.2d 1194, 1194 (Fla. 5th DCA 1996); and Isley v. State, 652 So.2d 409, 410 (Fla 5th DCA 1995), to find that Appellant had exhausted his postconviction remedies. The circuit court prohibited Appellant from filing any additional pro se motions, pleadings, or petitions relating to his conviction and sentence.

The instant appeal stems from the circuit court’s order barring Appellant from future pro se filings. Upon this Court’s own motion, Appellant was ordered to show cause why his filing of fourteen previous appeals and petitions relating to his 2002 convictions should not subject him to sanctions by this Court. See Spencer, 751 So.2d at 48. Appellant’s response to the show cause order reargued the frivolous points made in his initial brief and failed to provide any jurisdiction for his continued abuse of the appellate process.

Thus, the order on appeal was within the discretion of the circuit court and is affirmed. Additionally, we conclude that sanctions against Appellant are warranted. Appellant is prohibited from filing any future appeals or petitions in this Court related to case number 2001 CF 13451, Fourth Judicial Circuit in and for Duval County, unless the documents are signed by a member in good standmg of The Florida Bar. The Clerk of this Court is directed not to accept any future pro se filings by Appellant relating to case number 2001 CF 13451, Fourth Judicial Circuit in and for Duval County.

We also direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for potential disciplinary action under section 944.279, Florida Statutes.

AFFIRMED.

LEWIS and BILBREY, JJ., CONCUR.

       Strong v. State, 847 So.2d 462 (Fla. 1st DCA 2003); Strong v. State, Case No. 1D04-0996; Strong v. State, Case No. 1D05-0989; Strong v. State, Case No. 1D06-2298; Strong v. State, 957 So. 2d 1174 (Fla. 1st DCA 2007); Strong v. State, Case No. 1D08-2666; Strong v. State, 13 So.3d 60 (Fla. 1st DCA 2009); Strong v. State, 6 So.3d 60 (Fla. 1st DCA 2009); Strong v. State, Case No. 1D11-3576; Strong v. State, 83 So.3d 716 (Fla. 1st DCA 2012); Strong v. State, 133 So.3d 934 (Fla. 1st DCA 2013); Strong v. State, Case No. 1D15-3188; Strong v. State, 197 So.3d 559 (Fla. 1st DCA 2016).


author: BILBREY, J.

text:
    Bradley W. NOE, Appellant, v. Brady Marchant NOE, Appellee.
    CASE NO. 1D15-5455
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Rehearing Denied May 23, 2017

      Bradley W. Noe, pro se, Appellant.
    Thomas L. Powell, Tallahassee, for Ap-pellee.
   BILBREY, J.

Bradley Noe, Appellant, challenges the order denying his motion to dissolve the injunction for protection against domestic violence entered against him approximately fifteen years prior to his motion. Appellant asserts that the trial court applied an incorrect standard in denying his motion and that his intervening incarceration was a sufficient change of the circumstances upon which the injunction was based to require dissolution of the injunction. Finding no abuse of the trial court’s discretion, we affirm the order on appeal.

The injunction at issue was entered on February 22, 2000, based on an incident of domestic violence while the parties were married and Appellee was pregnant. Shortly after the injunction was issued, the parties were divorced, the child was born, and the parties complied with the injunction for several months. However, after the child was born, Appellant sought contact with the child and began visiting the child in Appellee’s home with Appellee’s consent, despite the injunction. Appellee became pregnant with twins and the complications from the pregnancy prompted her to resume residing with Appellant. The pregnancy ended in one twin’s death and severe medical issues for the other twin, requiring extensive hospitalization followed by the need for constant care at home.

Appellee testified at the hearing on the motion to dissolve the injunction, and Appellant did not deny, that their relationship was troubled but the medical needs of the surviving twin baby prevented Appellee from supporting herself and removing herself from Appellant’s residence. Appellee did eventually leave Appellant’s home with the children after an incident where Appellant disconnected the baby’s heart monitor during the night, resulting in a life-threatening situation, requiring emergency medical transport, which the baby miraculously survived. Appellee described events even after she left Appellant’s residence demonstrating his history of controlling or attempting to control Appellee with threats, false statements to officials and the court, withholding child support as a means to prevent Appellee from reporting illegal acts, and one instance of battery while Appellee was collecting a check for child support. Appellant denied that battery occurred.

The parties’ testimony was consistent that Appellant’s parental rights were terminated in 2004 or 2005, and that he has not been in Appellee’s physical presence since his incarceration began in 2010. However, Appellant’s sentences will expire in less than five years, and Appellee testified that she feared for her safety due to his “vindictive” feelings towards her and his history of re-appearing just when she believed he was gone from her life. Appellant offered no testimony to contradict Ap-pellee’s expressions of fear that upon his release Appellee would once again be in imminent danger of becoming a victim of domestic violence, as that term is statutorily defined. The trial court decided that the evidence presented on the record supported Appellee’s reasonable fear of continuing domestic violence, as defined in section 741.28(2),- Florida Statutes, such that Appellant’s motion to dissolve the injunction should be denied. This appeal followed.

Undoubtedly, many circumstances have changed since the entry of the injunction in February of 2000. Appellant asserts that his incarceration and the resulting years of non-contact with Appel-lee are a sufficient change to entitle him to dissolution of the injunction. However, he relies on only part of the proof required. A party seeking to dissolve an injunction must “demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011). The party opposing dissolution must demonstrate that he or she “reasonably maintain[s] a fear of becoming a victim of domestic violence.” Id. While this record shows that the initial scenario underlying the injunction no longer exists, the trial court exercised its discretion in concluding that the injunction still serves a valid purpose.

After considering the testimony of the witnesses, the trial court determined that Appellant’s current incarceration was insufficient to support dissolution of the injunction. Unlike Bush v. Henney, 175 So.3d 930 (Fla. 4th DCA 2015), where no violations of the injunction had occurred over the fourteen years it was in effect, Appellee here testified extensively about the history of violations of this injunction and about her continuing fear of becoming a victim of domestic violence upon Appellant’s release from custody.

As stated in Simonik v. Patterson, 752 So.2d 692, 692 (Fla. 3d DCA 2000), “[t]he trial court has broad discretion in granting, denying, dissolving, or modifying injunctions, and, unless a clear abuse of discretion is demonstrated, appellate courts will not disturb the trial court’s decision.” See also Shierling v. Hall, 67 So.3d 251 (Fla. 2d DCA 2010) (holding that record did not support finding that denial of motion to modify injunction was an abuse of discretion). “ ‘This is particularly true where the order relies on live testimony or other evidence that the trial court is singularly well-suited to evaluate.’ ” Carricarte v. Carricarte, 961 So.2d 1019, 1020 (Fla. 3d DCA 2007) (quoting Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla. 2002)). The record in this case demonstrates that the trial court’s decision was based on the live testimony presented at the hearing and the trial court’s evaluation of the parties as they appeared in the proceedings.

Judicial discretion is defined as the “power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.” Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980) (quoting 1 Bouvier’s Law Dictionary & Concise Encyclopedia 804 (8th ed. 1914)). An “appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his [or her] discretion.” Canakaris, 382 So.2d at 1203. The often-cited “reasonableness” test, as restated in Canakaris, is that “discretion is abused only where no reasonable [person] would take the view adopted by the trial court. If reasonable [people] could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Id. (quoting Delno v. Market Street Railway Co., 124 F.2d 965, 967 (9th Cir. 1942)).

While the injunction at issue was issued many years ago under circumstances which have certainly changed, Appellant’s reliance on Spaulding v. Shane, 150 So.3d 852 (Fla. 2d DCA 2014), and Baker v. Baker, 112 So.3d 734 (Fla. 2d DCA 2013), is unavailing. In both of those cases, there had been no violations of the injunctions and the movants’ releases from prison were “decades away.” Spaulding, 150 So.3d at B54. While in those cases the movants’ lengthy incarcerations and uniform compliance with the injunctions justified dissolution, the evidence presented to the trial court in this case supported a different determination and therefore denial of the motion.

We decline to substitute our judgment for that of the trial court based on the evidence presented at the hearing on the motion. The court applied the correct standard of proof, and Appellant fails to show that the court abused its discretion in denying his motion to dissolve the injunction in this case. The order on appeal is AFFIRMED.

WETHERELL and JAY, JJ., CONCUR.

      . See §§ 741.28, 741.30, Fla. Stat.

      . While not raised at the hearing, it is possible that someone incarcerated could commit domestic violence as defined by section 741.28, Florida Statutes, by assault, stalking, or aggravated stalking. It is also not unheard of for a prisoner to procure or attempt to procure someone to commit physical violence on an intended victim not in prison. See United States v. Spiker, 649 Fed.Appx. 770 (11th Cir. 2016); Saunders v. State, 208 So.3d 99 (Fla. 4th DCA 2017); Jones v. State, 908 So.2d 61S (Fla. 4th DCA 2005).

      . Appellant did not assert that the voluntary contact Appellee had with him post-injunction provided grounds to dissolve the injunction. While evidence of current voluntary contact by a petitioner might show a current lack of fear, here the voluntary contact by Appellee was over a decade ago. Additionally, the injunction states, "[t]he terms of this injunction may not be changed by either party alone or by both parties together. Only the Court may modify the terms of this injunction,”