source: Caselaw Access Project

author: May, J,

license: Public Domain

text:
    Courtney Desmond ZIELER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4175
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuna, Assistant Attorney General, West Palm Beach, for appellee.
   May, J,

The defendant appeals his conviction and sentence for resisting without violence, burglary of a dwelling, and third degree grand theft. He argues the trial court erred in three ways: (1) failing to rule on his competency; (2) denying his motion for judgment of acquittal; and (3) instructing the jury on recently stolen property. We find merit in his argument that the trial court erred in failing to rule on a pending competency issue, but no merit in the remaining issues. We reverse and remand.

The State charged the defendant with grand theft auto, burglary of a dwelling, and resisting an officer without violence. While the charges were pending, the defendant moved for a competency examination. Defense counsel argued the defendant had a .documented intellectual disability, was unable to describe the role of a judge or jury, was unable to provide pertinent facts, and did not appreciate the nature of the possible penalties. The court granted the motion.

Within the order, the court named an evaluator and requested a report be submitted to the court. At a later status hearing, the court minutes note that the competency issue was addressed, but the record fails to reflect that the competency evaluation had been conducted or a report received.

A new judge presided at the following status hearing, and a new prosecutor appeared for the State. The same defense counsel, who filed the motion for competency evaluation, represented the defendant throughout trial and sentencing.

The record fails to reflect that either judge ruled on the competency issue.

The defendant was convicted. The trial court sentenced the defendant to twenty years in prison. From his conviction and sentence, the defendant appeals.

The defendant argues the trial court erred in failing to determine his competency after having reasonable grounds to do so. While the trial court ordered an evaluation, no report was ever filed and no hearing was conducted. The State responds that the trial court granted the defendant’s request for a competency evaluation. It suggests that the hearing may have taken place, but concedes we should remand for a retroactive determination of competency, if possible.

We have de novo review. Presley v. State, 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

“[O]nce a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.” Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011); Fla. R. Crim. P. 3.210-3.212.

Our recent decision in Silver v. State, 193 So.3d 991 (Fla. 4th. DCA 2016) is instructive. There, the trial court appointed two experts to examine the defendant for competency, but neither did so. Id. at 993. The record contained orders appointing the experts and requiring written evaluations, but no reports, competency hearings, or later orders on the matter. Id. “The fact that the experts’ reports were not filed and the trial court did not adjudicate [the defendant] competent to proceed ... entitled him to a reversal on direct appeal.” Id.

Here, the defendant had a documented intellectual disability. Defense counsel advised that the defendant was unable to communicate adequately with counsel and did not understand the proceedings or penalties. The trial court found these grounds reasonable and ordered a competency evaluation. But, no report was filed, no hearing was conducted, and no order was entered.

We therefore reverse and remand the case to the trial court. If the evidence at the time of trial indicates that the defendant was competent at the time, then the trial court may make that determination nunc pro tunc and reimpose the conviction and sentence. Silver, 193 So.3d at 994. If not, the trial court must adjudicate the defendant’s current competency. Id. Should the trial court determine he is competent, it must conduct a new trial. Id.

Reversed and Remanded.

Klingensmith and Kuntz, JJ., concur.


author: Forst, J.

text:
    Brian KOVALSKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3916
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Brian Kovalsky appeals the denial of his motion for downward departure. He argues the trial court failed to recognize that he had a valid legal basis meriting consideration of his departure motion — a qualifying mental illness. For the reasons explained herein, we reverse the trial court’s denial of Appellant’s motion and remand the case to a different judge for further proceedings.

Background

On September 9, 2014, the State of Florida charged Appellant by information with 187 counts of knowingly possessing child pornography contrary to section 827.071(5), Florida Statutes. The State found a total of 187 files on Appellant’s computer, “comprised of both photographs and videos, all of which showed children ... in sexual conduct or sexually-explicit situations.” Appellant entered an open, no contest plea to the charges. He expressly acknowledged that the maximum possible penalty for his crimes was 935 years, while the mandatory minimum was 56.66 years.

During sentencing, Appellant moved for a downward departure pursuant to section 921.0026(2)(d), Florida Statutes, based on an apparent mental disorder — “Avoidant Personality Disorder.” He presented the testimony of a psychologist who was an expert in forensic and clinical psychology. Following a previous clinical interview with Appellant lasting “a couple of hours,” the doctor diagnosed Appellant.

I diagnosed him with what’s called the “avoidant personality disorder” and this is pretty much as it sounds, as an individual that has a very low self-esteem, very insecure, has limited, if not any interaction with ... people and they are very, uh, self-critical, very shameful of their appearance, very sensitive to being criticized by others and that causes them to avoid social interaction to avoid any kind of interpersonal relationships other than with family.

The doctor continued by noting that Appellant seemed to have the disorder since he was eighteen years old. The doctor concluded the disorder “certainly meets the criteria for a mental health diagnosis.” He also believed Appellant required specialized treatment, and would be amenable to such treatment.

The trial judge questioned whether Avoidant Personality Disorder was a mental disorder. The judge asked: “But is that a mental disorder or is that just a ... personality disorder? ... I mean, I don’t remember him qualifying as a mental or emotional or ... psychological or otherwise, it was just a disorder that he had.” The judge later added, “I listened to Dr. Landrum and I didn’t quite categorize this avoidant personality disorder as one that was mental illness, a mental disease.” In denying Appellant’s motion for downward departure at the sentencing hearing, the trial court stated, “I do not think that there is a — a sufficient basis for me to depart from — from the Criminal Punishment Code Guidelines.” The court sentenced Appellant to the mandatory minimum of 56.66 years in prison, followed by fifty years of sex offender probation.

After the trial court pronounced his sentence, Appellant’s counsel asked the judge, “for the record, just to be clear, you didn’t find according to the testimony from [Appellant’s medical expert witness] on the report that there was any mental illness that allowed you to downward depart from the sentencing guidelines?” The judge responded, saying “[tjhat’s correct.”

I — I didn’t think that — that whatever [the expert] testified to was a sufficient basis for departing from the guidelines pursuant to 921.0026(2)(d).... I also didn’t hear him say that this treatment that he offered is — is in anyway specialized, but although he did seem to think that he may not be able to get the intensity of treatment that he would like at the Department of Corrections, but I don’t think that qualifies as specialized treatment, but, in any event, I determined it would not be appropriate for me to depart from the guidelines.

Subsequently, Appellant filed a Motion to Correct Sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing the trial court wrongly denied his motion for downward departure. Appellant made only one argument in the motion, that the trial court incorrectly determined that Avoidant Personality Disorder was not a mental disorder qualifying him for a departure. Appellant primarily relied on the doctor’s representations at the sentencing hearing, as well as the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, which classifies all personality disorders as mental disorders.

In its response, the State asserted, in relevant part:

The court clearly held that he felt the Defendant failed to present sufficient evidence to warrant a downward departure sentence and explained that although the Defendant suffers from mental or personality disorder that it was not sufficient to warrant the Court departing downward. The .Court further stated that he did not feel the Defendant proved that the treatment necessary was so specialized that it could not be provided in the Department of Corrections.
The Court ultimately agreed with the argument of the State, that based on the seriousness of the crime of child pornography, the age and sexual actions contained on the videos in the Defendant’s possession; the large collection of child ■pornography possessed by the Defendant and the deviant nature of the other pornography possessed by the Defendant that a departure was not warranted. Not everyone that qualifies for a departure sentence should be sentence[d] to a departure.

Adopting the State’s response, the trial court denied Appellant’s motion in a written order.

The Court incorporates the State’s response and adopts the State’s reasoning in finding that the Defendant is not entitled to relief ... ,• Based on the evidence presented, including the large and deviant nature of the Defendant’s child pornography collection, this Court [initially] determined that a downward departure sentence was not warranted. This Court also found that the Defendant had not demonstrated that his necessary treatment was so specialized that it could not be provided in the Department of Corrections. When the Court’s comments are taken as a whole, it is apparent that the Court is stating that the evidence justifying a downward departure was not sufficient, not as a matter of law but as a matter of this Court’s discretion.

Analysis

We apply a mixed, two-part review when analyzing a downward departure sentence. Fogarty v. State, 158 So.3d 669, 670 (Fla. 4th DCA 2014); State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012). “First, the [trial] court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1).” Fogarty, 158 So.3d at 670 (quoting Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999)). The standard of review .for step 1 is whether competent substantial evidence supports the trial court’s ruling. Id. If the defendant’s • motion satisfies the criteria for step 1, the trial court then “must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors.”. Id. (quoting Banks, 732 So.2d at 1068). Our standard of review is abuse of discretion; “[discretion is abused only where no reasonable person would agree with the trial court’s decision.” Id. (quoting Banks, 732 So.2d at 1068).

Section 921.0026, Florida Statutes, addresses the mitigating circumstances in which • a court may. award a downward departure. In the present case, Appellant argues he is entitled to be considered for a downward departure because he met one particular circumstance noted in the statute: “The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d)j Fla. Stat. The Florida Supreme Court has held that this provision requires defendants to prove the following three elements by a preponderance of evidence: “(1) the defendant has, a mental disorder (unrelated to substance abuse or addiction) or a physical. disability; (2) which requires specialized treatment; and (3) the defendant is amenable to such treatment.” State v. Chubbuck, 141 So.3d 1163, 1171 (Fla. 2014) (footnote omitted).

Here, the trial court erred at the initial sentencing hearing when applying step 1 of the two-part test for a downward departure. The trial court did correctly conclude, based on the evidence presented, that Appellant’s condition required specialized treatment and that he would be amenable to such treatment. However, the court wrongly concluded, based on the same evidence, that Avoidant Personality Disorder was not a mental disorder under the statute. As the doctor opined, the condition “certainly meets the criteria for a mental health diagnosis.” The court erred in disregarding the only available evidence on this matter; the State never contradicted the doctor’s testimony, and thus, there was no competent, substantial evidence to support the court’s denial. In. fact, there is precedent from one of our sister courts regarding this exact disorder which supports. Appellant’s argument. See State v. Osborn, 717 So.2d 1110, 1110-11 (Fla. 5th DCA 1998) (holding that a trial court did not err in qualifying Avoidant Personality Disorder as a mental disorder under the downward departure statute).

Perhaps realizing its mistake, but not acknowledging it, the trial court attempted 'to rectify its legal error in its subsequent order denying Appellant’s Motion to Correct Sentence. Piggybacking on the State’s response, the trial court took the position that, regardless of its ruling on step 1 of the two-part test, it ultimately exercised its discretion in step 2 to deny Appellant’s motion because, based on the nature of the offenses, a departure sentence “was not warranted.”

However, the transcript of the sentencing hearing does not support the trial court’s/State’s contention. Although the trial court did make note of 'the “particularly disturbing” nature and volume of Appellant’s possession of child pornography at sentencing, the judge specifically said that he “didn’t quite categorize this avoi-dant personality disorder as one that was a mental illness, a mental disease,” and indicated that he was “confined” and “required to impose” a sentence within the sentencing guidelines in the absence of “some legal reason to depart from that sentence.” As noted above, the judge subsequently clarified that he “didn’t think that — that whatever [the expert] testified to was a sufficient basis for departing from the guidelines pursuant to 921.0026(2)(d).”

It is clear from the record that the trial court’s ultimate determination was that Appellant failed to satisfy step 1 of the downward departure analysis. Although the judge discussed both aggravating and mitigating factors, with respect to a step 2 analysis, it is unclear whether, at the initial sentencing, the trial court had determined that it “should hot” downward depart, as opposed to determining that it was “confined” by the step 1 determination and thus downward departure was not an option. Based on what the judge actually said, it is not “apparent that the Court is stating that the evidence justifying a downward departure was not sufficient, not as a matter of law but as a matter of this Court’s discretion.” Moreover, the judge (and State) erroneously indicated that it is the responsibility of Appellant to “demonstrate[ ] that his necessary treatment was so specialized that it could not be provided in the Department of Corrections.”

Accordingly, the appropriate course of action is to remand this case for a new sentencing hearing before a different trial judge. As set forth above, there is competent substantial evidence that step 1 of the downward departure statutory process has been satisfied. Therefore, the trial court on remand must proceed to step 2 and “weigh the totality of the circumstances in the case, including aggravating and mitigating factors,” in “determining] whether it should depart.” Fogarty, 158 So.3d at 670 (quoting Banks, 732 So.2d at 1068).

Conclusion

As set forth above, we reverse the trial court’s ruling on step 1 of the downward departure issue and remand for a new sentencing hearing, before a different judge, consistent with this opinion.

Reversed and remanded.

Ciklin, C.J., and Levine, J., concur.

      . In denying Appellant’s Motion to Correct Sentence, the trial court wrongly relied, in part, on Appellant’s inability to "demonstrate[] that his necessary treatment was so specialized that it could not be provided in the Department of Corrections.” The State’s response to Appellant's motion, which the court adopted in its order, also wrongly claimed that Appellant had to prove that his treatment "was so specialized that it could not be provided in the Department of Corrections.” The Florida Supreme Court’s opinion in State v. Chubbuck requires no such proof. In fact, it holds the opposite: "the plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC.” Chubbuck, 141 So.3d at 1171.


author: Gerber, J.

text:
    Carla SMART, Petitioner, v. Sharon BOCK, in her official capacity as Clerk and Comptroller of Palm Beach County, Respondent.
    No. 4D16-4123
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for petitioner.
    Jack J. Aiello, Joseph G. Santoro, and Meredith I. Biggs, of Gunster Yoakley & Stewart, P.A., West Palm Beach, for respondent.
   Gerber, J.

The plaintiff in an employment discrimination action petitions for a writ of certiorari to quash two discovery orders. The two orders, respectively, compel the plaintiff to: (1) undergo a four hour mental health examination by a psychiatrist; and (2) produce calendars in which she maintained a record of events occurring in her work place as well as typed notes she prepared from said calendars. On the second order as to the calendars and notes, we deny the petition without further comment. On the first order, we grant the petition in part.

“Certiorari jurisdiction lies to review an order compelling a mental examination.” J.B. v. M.M., 92 So.3d 888, 889 (Fla. 4th DCA 2012). “However, certiorari relief can only be granted if the trial court’s order amounts to a departure from the essential requirements of the law, resulting in a miscarriage of justice.” Manubens v. Manubens, 198 So.3d 1072, 1074 (Fla. 5th DCA 2016) (citation omitted).

The first order grants the “Defendant’s Motion to Compel Plaintiff to Submit to a Rule 1.360 Mental Examination” merely by using the following language:

ORDERED AND ADJUDGED:
Defendant’s Motion to Compel Plaintiff to Submit to IME is hereby GRANTED. The Defendant shall notice Plaintiff of the examination (which is limited to four (4) hours) in accordance with Rule 1.360.

Although we agree with the court’s decision to grant the motion based on its review of the defendant’s motion and the plaintiffs response, the’ form of the court’s order nevertheless fails to comply with Florida Rule of Civil Procedure 1.360(a)(1)(B) (2016), which states, in pertinent part:

The order for examination shall be made only after notice to the person to be examined and to all parties, and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

Fla. R. Civ. P. 1.360(a)(1)(B) (2016) (emphasis added); see also Manubens, 198 So.3d at 1075 (“[Tjhe failure of an order to specify the manner, conditions, and scope of an examination effectively gives the psychologist ‘carte blanche’ to perform any type of psychological inquiry, testing, and analysis and, as such, an open-ended order departs from the essential requirements of the law, resulting in a miscarriage of justice,”) (citation omitted).

The defendant may seek a new order which complies with rule 1.360(a)(1)(B) to replace the first order. We deny the petition' in all other respects as to the first order without further comment.

Petition granted in part, denied in part.

Gross and Levine, JJ., concur,


author: Kuntz, J.

text:
    OIL, LLC and Maximiliano L. Russo, Petitioners, v. STAMAX CORP., Respondent.
    No. 4D17-175
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for petitioners.
    Brady J. Cobb and Dylan M. Fulop, of Cobb Eddy PLLC, Fort Lauderdale, for respondent.
   Kuntz, J.

Petitioners, OIL, LLC and Maximiliano L. Russo, seek certiorari review of an order disqualifying their attorney based upon the court’s conclusion that counsel violated Florida Bar Rule 4-1.9. We grant the petition and quash the order because counsel for the Petitioners did not represent the Respondent and did not participate in confidential communications with the Respondent.

Background

Respondent, Stamax Corp., was the holder of a license from Apple Inc., allowing it to sell and service Apple products as an authorized reseller. Based on its agreement with Apple, Stamax operated a number of stores in South Florida. In 2012, Stamax entered into an agreement with Petitioner, OIL, LLC, that granted OIL the ability to use Stamax’s trade name to sell Apple products in Fort Lauderdale.

A dispute arose between OIL and Sta-max due to OIL’s accumulation of debt from forced purchases of product supplied by Stamax. As a result of this dispute, OIL sued Stamax for breach of contract and fraud related to the 2012 agreement between the parties.

Shortly after the lawsuit was filed, Sta-max filed a verified motion to disqualify counsel for OIL based upon its claim that the attorney had previously represented it through its agent, Fernando Lund. Stamax alleged that Lund had discussed the Sta-max/Apple agreement with the attorney and provided a copy to the attorney. Sta-max also alleged that Lund discussed its “business model, corporate governance issues, ... a shareholder agreement^] and an issue with a store [under construction] in Pembroke Pines.” Stamax asserted that as a result of these discussions, the attorney had offered to represent it and had prepared a draft engagement agreement that Stamax never executed.

In October 2015, an evidentiary hearing was held before Circuit Judge Dale Ross. At the hearing, Lund testified that he could not recall any specific legal advice that the attorney- had given him and “maybe even they were personal, maybe.” Lund also testified that he had a meeting with the attorney at his office during which “the business models” of Stamax were discussed. However, Lund stated that the principal for OIL was present during the entirety of the discussions. In response to a question from the judge, Lund stated that he did have another meeting with the attorney, however, all of the discussions regarding Stamax occurred at the meeting with OIL’S principal. Finally, Lund testified that the only document relevant to the action that was disclosed to the attorney was the Stamax/Apple agreement.

At the request of the new counsel for Stamax, who substituted as counsel after the hearing before Judge Ross, in December 2016, a hearing was held before Circuit Judge Patti Englander Henning. Judge Henning noted that no order had been entered by her predecessor after the October 2015 evidentiary hearing. While noting that she had carefully reviewed the transcript of that hearing, she offered the parties the opportunity to present any additional evidence that they deemed appropriate.

In response, counsel for Stamax stated that with “previous counsel” for his client and OIL “there had been a lot of bickering back and forth on matters that maybe weren’t germane to the ultimate issues in the case.” He stated that he had spoken with counsel for OIL, and “we weren’t going to offer any additional witnesses or testimony.... Ultimately, we were looking for a ruling.”

Judge Henning stated that she had reviewed the transcript and found the testimony of Lund to be credible. She stated at the hearing that counsel for OIL was disqualified and promptly issued a written order. OIL timely sought certiorari review of Judge Henning’s order of disqualification.

Analysis

Disqualification of a party’s chosen counsel is an extraordinary remedy, and one that should be viewed with skepticism and used sparingly. Applied Dig. Sols., Inc. v. Vasa, 941 So.2d 404, 407 (Fla. 4th DCA 2006) (citing Alexander v. Tandem Staffing Sols., Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004)).

Our certiorari jurisdiction is properly invoked to review an order disqualifying a party’s chosen counsel. Manning v. Cooper, 981 So.2d 668, 670 (Fla. 4th DCA 2008). As with a typical certiorari proceeding, the burden is on the petitioner to demonstrate that the trial court departed from the essential requirements of law. Id. However, unlike a typical certiorari proceeding, irreparable harm is presumed as “the denial of the right to choose one’s own lawyer is deemed to cause irreparable harm.” City of Lauderdale Lakes v. Enter. Leasing Co., 654 So.2d 645, 646 (Fla. 4th DCA 1995).

Generally, we review orders disqualifying counsel for an abuse of discretion and this court “will not substitute its judgment for the trial court’s express or implied findings of fact which are supported by competent substantial evidence.” Vasa, 941 So.2d at 408. However, in this unusual circumstance, where a successor judge granted disqualification based upon an evidentiary hearing held by the prior judge, we review the findings de novo. See, e.g., Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) (“[W]here a trial court’s ruling is based entirely on written evidence, the appellate court is in the same position as the trial court in weighing the evidence.”); Walton v. Estate of Walton, 601 So.2d 1266, 1268 (Fla. 3d DCA 1992) (“The rule has long been established that where a trial judge bases his final order on the transcribed testimony of witnesses, the appellate court is in the same position in examining the testimony as is the trial judge.”).

Turning to the transcript of the evidentiary hearing held before Judge Ross, we find the testimony fails to approach the level required to justify the drastic remedy of disqualification of a party’s chosen counsel.

Disqualification was purportedly based upon two facts. First, Lund testified that at the meeting with OIL’s attorney, he discussed general business issues with the attorney. Second, Lund testified that he spoke to OIL’s attorney regarding the Sta-max/Apple agreement and may have even provided a copy of the agreement to the attorney.

The discussions and exchange of information at this meeting regarding both issues could not have resulted in the exchange of confidential information. Based upon Lund’s testimony, and that of the attorney himself, the principal for OIL was present during the entirety of the meeting. A discussion in front of a third-party is not entitled to confidentiality.

It is well established that “[a] communication divulged to ‘strangers’ or outsiders can scarcely be considered a confidential communication between attorney and client.” United States v. Gordon-Nikkar, 518 F.2d 972, 975 (5th Cir. 1975); see also United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971) (“The communications between defendant and [the attorney] were not privileged, since third persons were present at the time the communications were made.”); Atwood v. Burlington Indus. Equity, Inc., 908 F.Supp. 319, 322 (M.D.N.C. 1995); Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App. 1997); People v. Osorio, 75 N.Y.2d 80, 550 N.Y.S.2d 612, 549 N.E.2d 1183, 1185 (1989).

Consistent with this well-established legal rule, section 90.502(l)(c), Florida Statutes (2015), provides that “[a] communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third persons.” Consistent with that statute, we have held that “the grounds of confidentiality ordinarily do not apply if a third party were present while the statements in question were being made.” Olds v. State, 302 So.2d 787, 790 (Fla. 4th DCA 1974). If a statement is made in front of a third-party, or in the presence of the other party to the dispute, the statement is not confidential or protected by the attorney-client privilege. Ogden v. Groves, 241 So.2d 756, 758 (Fla. 1st DCA 1970).

Similarly, the Fifth District has held “the confidentiality of a conversation is dependent upon ‘whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard.’ ” Black v. State, 920 So.2d 668, 670 (Fla. 5th DCA 2006) (citation omitted). In this case, there is no doubt that Lund was aware the conversation was being “overheard,” as the entirety of the conversation was conducted in the presence of a principal for OIL.

The same analysis applies to Stamax’s assertion regarding the disclosure of the Stamax/Apple agreement. We agree with OIL that it is likely this agreement would have been discoverable in the course of litigation. However, we need not decide that issue because the voluntary disclosure by Lund to third parties such as OIL stripped it of any confidentiality that it may have had. As with the oral discussions, the information regarding the Sta-max/Apple agreement was shared at the meeting with counsel for OIL and the principal of OIL.

Therefore, Lund could not have reasonably expected his discussions to be confidential and disqualification is not appropriate when no representation was actually commenced, nor confidential information exchanged. Schultz v. Schultz, 783 So.2d 329, 331 (Fla. 4th DCA 2001); see also Sultan v. Earing-Doud, 852 So.2d 313, 317 (Fla. 4th DCA 2003) (“[T]he issue is whether the firm sought to be disqualified obtained any confidential information as a result”).

Conclusion

Counsel for OIL was not retained by Stamax nor was he ever provided confidential information by Stamax. Therefore, counsel should not have been disqualified.

Order quashed.

Warner and Damoorgian, J.J., concur.

      . We note that in this case we would reach the same result regardless of whether our review was de novo or for an abuse of discretion.


author: Per Curiam.

text:
    Jaime Dum LERNER, Appellant, v. Vicky Levy DUM, Appellee.
    No. 4D16-4264
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Bennett G. Feldman, Coral Gables, for appellant.
    Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellee.
   Per Curiam.

The husband in a pending dissolution action appeals an order granting an ex parte temporary injunction prohibiting him from conducting specified financial transactions without a court order or consent from his wife. The husband contends that the wife’s motion seeking the injunction did not show immediate and irreparable injury, that the trial court’s factual findings were inadequate, and that the trial court erred in failing to set a bond. We affirm in part but reverse to the extent that the injunction fails to set a bond.

Because the injunction in this case “was issued ex parte and the enjoined party did not file a motion to dissolve,” this court “review[s] only the legal sufficiency of the order, the complaint, and any supporting documents.” Bookall v. Sunbelt Rentals, Inc., 995 So.2d 1116, 1117 (Fla. 4th DCA 2008) (quoting Thomas v. Osler Med., Inc., 963 So.2d 896, 900 (Fla. 5th DCA 2007)). As explained below, we reject the husband’s arguments challenging the entry of the injunction because the wife’s motion and the trial court’s order were legally sufficient.

In her verified motion, the wife stated the following: the couple owned property in Florida, Curacao, Panama, and Venezuela; the husband previously had dissipated marital assets in Venezuela and used marital funds to acquire assets that were titled solely in his name; and the husband maintained extensive connections overseas given that he was a Venezuelan citizen. Furthermore, the wife explained that, if her husband had notice of her application for an injunction, she feared he would conceal assets and dissipate additional assets subject to equitable distribution.

On these facts, the trial court did not abuse its discretion in finding that the wife was entitled to an ex parte temporary injunction. See Fla. R. Civ. P. 1.610(a)(1); Gooding v. Gooding, 602 So.2d 615, 616 (Fla. 4th DCA 1992) (recognizing- that injunctions may be used in marital dissolution cases “to prevent the dissipation of property which is or may later be determined to be marital property”); see also Sandstrom v. Sandstrom, 565 So.2d 914, 914 (Fla. 4th DCA 1990) (holding that a court may enter such an injunction “whether a spouse is attempting to dissipate marital assets before or after the final dissolution judgment”).

Here, the trial court made findings that the wife was at risk of “immediate and irreparable injury,” that she would have no adequate remedy at law should the husband dissipate assets in which she was entitled to an equitable share, and that the wife had provided grounds for granting the injunction without notice. Cf. Bieda v. Bieda, 42 So.3d 859, 862 (Fla. 3d DCA 2010) (reversing ex parte injunction where injunction did not “define the injury, state why such injury is irreparable or provide reasons why the order was granted without notice”). Thus, the trial court’s order is legally sufficient. See Fla. R. Civ, P. 1.610(a)(2), (c).

However, with respect to the trial court’s failure to set a bond, the wife appropriately concedes error. See Fla. R. Civ. P. 1.610(b) (“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper .... ”), Therefore, we affirm the portion of the order granting injunctive relief but reverse and remand “for the trial court to impose a bond in accordance with [rule] 1.610(b).” Fla. High Sch. Athletic Ass’n v. Rosenberg ex rel. Rosenberg, 117 So.3d 825, 827 (Fla. 4th DCA 2013) (citing Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 280 (Fla. 2d DCA 2011)).

Affirmed in part, Reversed in part, and Remanded.

Ciklin, C.J., Klingensmith and Kuntz, JJ., concur.


author: May, J.

text:
    Bruce S. ROSENWATER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR the SOUNDVIEW HOME LOAN TRUST 2007-NS1 ASSET-BACKED CERTIFICATES, SERIES 2007-NS1, Appellee.
    No. 4D16-4015
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]
    Bruce S. Rosenwater of Bruce S. Rosen-water & Associates, P.A., West Palm Beach, for appellant.
    Charles P. Gufford of McCalla Raymer Liebert Pierce, LLC, Orlando, for appel-lee.
   May, J.

Florida Rule of Criminal Procedure 3.840(e) dictates a reversal in this case.

An attorney appeals a contempt order that arose during a foreclosure action. He argues the contempt order should be reversed because the trial judge should have disqualified himself from the hearing on the order to show cause, and in any event erred in finding him in contempt. We agree that under the facts of this case, the trial judge was required to disqualify himself. This requires us to reverse and remand the contempt order for a new hearing before another judge, rendering the sufficiency of the evidence and process arguments moot.

■ The bank filed a foreclosure complaint against the borrower. At an initial case management conference, the bank informed the trial judge that it intended to amend its complaint. The trial judge issued an order scheduling a second case management conference. The order stated:

SHOULD YOU FAIL TO PERSONALLY ATTEND THE CASE MANAGEMENT CONFERENCE, YOUR FAILURE TO ATTEND COULD RESULT IN A DISMISSAL, DEFAULT, STRIKING THE ABSENT PARTIES’ PLEADINGS AND/OR OTHER APPROPRIATE SANCTIONS.

The bank amended its complaint, and the borrower moved to dismiss. At the second case management conference, defense counsel failed to appear. The trial judge denied the motion to dismiss and scheduled a third case management conference.

During that conference, the trial judge called defense counsel on speaker phone and was “initially met with some resistance from his office staff.” The receptionist told the judge that defense counsel was on a phone call. The trial judge advised that he needed to speak directly with him.

The judge was put on hold. An associate attorney then came on the line stating that “his office did not feel the need to attend the CMC because Defendant and [the bank’s] counsel had worked out an agreed order on the pending Motion to Dismiss.” The trial judge informed the associate that compliance with court orders is required and that he still needed to discuss the basis for noncompliance with defense counsel. The trial judge was then placed on hold again.

When defense counsel came on the line, he informed the trial judge he did not believe he was required to attend because:

1. He had worked out an agreement on the defendant’s pending Motion to Dismiss with [the bank]’s counsel and that [the bank]’s counsel was presenting the proposed order.
2. That he did not feel the case was in a sufficient “posture” to “warrant” a case management conference.
3. That he did not feel that CMC was worthy of having even coverage counsel attend.
4. That he essentially ignored the CMC order and had no qualms about ignoring the same.

In its order on the second case management conference, the trial judge noted that defense counsel failed to appear because he thought it was unnecessary based on the case’s posture. The trial judge then issued an order to show cause.

Defense counsel responded to the order, “sincerely apologizing]” and taking full responsibility. Based on his prior experience in Palm Beach County, he explained that when outstanding motions have been resolved by the parties, it is normally sufficient for the plaintiff to submit the agreed order, which concludes the case management conference. He further mentioned that he was trying to limit his client’s attorney’s fees and costs due to financial struggles.

At the hearing on the order to show cause, defense counsel pled no contest. He again apologized and testified that he was unaware the trial judge was placed on hold. He stated that he had the utmost respect for judges and has never had a problem with any court proceedings in the 28 years he has been practicing.

The trial judge stated: “It was crystal clear to this judge that his comments were meant to embarrass, hinder, and obstruct the Court in the administration of justice, and at a minimum, to lessen the Court’s authority or dignity.” While the trial judge appreciated the apology, the judge found the attorney

guilty of direct criminal contempt for purposefully and willfully and with contumacious disregard to the court’s authority ignore and willfully disobey a court order requiring him to appear for a properly scheduled and ordered case management conference as well as for his statements that the posture of the case did not warrant the Court having a case management , conference, his willful failure to attend such conference/hearing and for his comments intending to assault the dignity of the courts’ in general as well as the comment that such conference did not even warrant coverage counsel attending.

The trial judge fined him $500. He was committed to St. Lucie County jail for “10 days, suspended, pending compliance with all of the terms of th[e] order,”

Prom the direct criminal contempt order, the attorney now appeals.

The attorney argues the trial judge erred in entering the contempt order because the trial judge was required to disqualify himself from the proceeding. He argues there was insufficient evidence to show that his conduct warranted contempt charges. He further argues the trial judge erred in holding him in criminal contempt without providing proper notice of the charge of direct criminal contempt, and the trial judge followed procedures resembling indirect criminal contempt,

The bank ■ responds that the issues raised do not affect it. It argues that the trial judge had discretion to issue sanctions for failure to appear at a case management conference. But, the bank believes t}ie conduct did not .constitute direct criminal contempt as found by the trial judge.

The attorney argues the trial judge was required to disqualify himself from presiding on the order to show cause hearing because the contempt charge was for disrespectful conduct towards the judge. He suggests that the chief judge of the circuit should have requested the chief justice of the Florida Supreme Court to appoint another judge for the hearing. We agree.

Rule 3.840(e) provides: “If the contempt charged involves disrespect to or criticism of a judge, the judge shall disqualify himself or herself from presiding at the hearing. Another judge shall be designated by the chief justice of the supreme court.” Fla. R. Crim. P. 3.840(e). Strict compliance with rule 3.840 is required. Fiore v. Athineos, 9 So.3d 1291, 1293 (Fla. 4th DCA 2009),

Here, the contempt charge involved the attorney’s disrespect to the trial judge in open court on speaker phone. During the hearing on the order to show cause, the judge stated: “Do you recognize or not that you essentially told me to go soak my head?” He added: “[T]hat is completely an unqualified rejection of showing any respect for a judicial officer or the proceedings of the Court.” Because the attorney’s conduct was directed toward the judge, the judge was required to disqualify himself from the proceeding.

The trial judge failed to comply with rule 3.840(e). This was fundamental error. Blechman v. Dely, 138 So.3d 1110, 1114 (Fla. 4th DCA 2014). We therefore reverse and remand this case for a new hearing on the order to show cause before another judge.

Reversed and Remanded.

Ciklin, C.J., and Taylor, J., concur.

      . Defense counsel then moved to disqualify the trial judge from the entire case; the trial judge denied the motion.


text:
    COUNTY OF CUMBERLAND, NEW JERSEY, Appellant, v. Andrew K. KWAP, Appellee.
    No. 4D16-3250
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Scott L. Mendlestein of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, for appellant.
    Scott J. Edwards, of Scott J. Edwards, P.A., Boca Raton, for appellee.
   Kuntz, J.

The County of Cumberland, New Jersey, appeals the circuit court’s order denying its motion to dismiss for lack of personal jurisdiction. The court determined that the allegations in plaintiff Andrew W. Kwap’s complaint were sufficient to satisfy due process and justify the exercise of personal jurisdiction over the County. We reverse because the court failed to account for the County’s affidavit rebutting the allegations in the complaint.

Background

The County hired PTS America, LLC, an international prisoner extradition company, to transport Kwap from Palm Beach County to New Jersey. During the transport, Kwap was injured in an accident while in a van owned and operated by PTS.

Following the accident, Kwap sued PTS and the County. In his first amended complaint, he alleged that PTS negligently transported him without safety restraints and that the County was vicariously liable for the negligence of its agent, PTS.

The County filed a motion to dismiss for lack of personal jurisdiction. Specifically, the County argued that the court did not have personal jurisdiction under section 48.193(l)(b), Florida Statutes, because it did not commit a tort in Florida, and because the alleged tortfeasor, PTS, was an independent contractor, not its agent.

The County attached an affidavit to its motion from the Sheriff of Cumberland County, The affidavit stated that PTS operated as an independent contractor because PTS used its own equipment and hired its own personnel; and because the .County did not dictate or control any aspect of the transport, such as the route, timing, use of particular equipment, or the personnel employed by PTS.

After allowing limited jurisdictional discovery, the court held a hearing on the County’s motion to dismiss. At the hearing, the court heard argument from counsel, which included discussions regarding deposition testimony of a PTS employee. At the conclusion of the hearing, the court reserved ruling and later entered a written order denying the motion. In its order, the court stated that the first amended complaint contained sufficient allegations to exercise personal jurisdiction over the County.

Analysis

Whether a Florida court has personal jurisdiction over a non-resident defendant involves a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). First, the court must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida’s long-arm statute, section 48.193, Florida Statutes (2016). Id. at 502. Second, the court must determine whether sufficient “minimum contacts” are shown between the non-resident defendant and Florida in order to satisfy due process. Id.

The County argues that this appeal involves the first part of the inquiry: that is, whether sufficient jurisdictional facts were alleged in Kwap’s complaint. Our supreme court has explained that this part of the inquiry “may involve a burden shift.” Kitroser v. Hurt, 85 So.3d 1084, 1087 (Fla. 2012). When the defendant files an affidavit to refute the jurisdictional allegations in the complaint, the burden shifts back to the plaintiff to file an affidavit or other evidence that clearly justifies the exercise of jurisdiction. Venetian Salami, 554 So.2d at 502; see also Small v. Chicola, 929 So.2d 1122, 1124 (Fla. 3d DCA 2006) (citing Elmex Corp. v. Atl. Fed. Savings & Loan Ass’n, 325 So.2d 58, 61 (Fla. 4th DCA 1976)).

Here, the County filed an affidavit that refuted the allegations in Kwap’s complaint. However, the court’s order denying the County’s motion to dismiss did not consider its affidavit and stated that the allegations in the complaint, “if true, provide a basis to invoke Florida’s long-arm jurisdiction over this Defendant on the grounds, inter alia, that there was an agency relationship between” PTS and the County. This was error because the County’s affidavit shifted the burden back to Kwap, and required the court to look beyond the allegations in the complaint.

The court erred when it denied the motion to dismiss and exercised jurisdiction over the County based upon the allegations of the complaint without considering the affidavit. On remand, the court should consider the jurisdictional evidence to determine if the long-arm statute was sufficiently implicated. If the court finds that the affidavits and other evidence cannot be reconciled, a limited evidentiary hearing may be needed. See Venetian Salami 554 So.2d at 503. If the court finds that long-arm jurisdiction is established, then the court must next determine if the exercise of jurisdiction over the County comports with due process.

Conclusion

When a complaint includes sufficient jurisdictional allegations, the burden shifts to the defendant to rebut those allegations through an affidavit or other evidence. In this case, the defendant filed an affidavit sufficient to rebut the jurisdictional allegations in the plaintiffs complaint. The burden then shifted back to the plaintiff to clearly establish a factual basis to justify the exercise of personal jurisdiction. The court’s failure to consider the evidence submitted beyond the four comers of the plaintiffs complaint was error. Therefore, the court’s order denying the motion to dismiss for lack of personal jurisdiction is reversed.

Reversed and remanded for fmiher proceedings.

Warner and Levine, JJ., concur.


author: Gross, J.

text:
    Donna FANALI, as Successor Personal Representative of the Estate of Thomas Cavalier, deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Appellee.
    No. 4D16-67
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Willie E. Gary, Donald Watson and Glenn A. Crickenberger of Gary, Williams, Parenti, Watson & Gary, PLLC, Stuart, Howard M. Acosta of Law Offices of Howard M. Acosta, St. Petersburg, and Christopher M. Chestnut, Jacksonville, for appellant.
    William L. Durham, II, Chad A. Peterson, Jason Keehfus, and Bethany Schneider of King & Spaulding, LLP, Atlanta, Georgia, Stephanie Parker and John Walker of Jones Day, Atlanta, Georgia, and Paul R. Reichert, Jones Day, Washington, D.C., for appellee.
   Gross, J.

Donna Fanali, as Successor Personal Representative of the Estate of Thomas Cavalier, appeals the trial court order granting the defendants’ motion for summary judgment in a wrongful death action brought by a smoker’s survivors. We affirm because the smoker knew of his tobacco related illnesses in 1989, so he was not a member of the class certified in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). Fanali was therefore not a survivor of an Engle class member and her wrongful death suit, brought 15 years after the smoker’s death, was barred by the statute of limitations.

The facts crucial to this appeal are not in dispute. Cavalier was diagnosed with lung cancer and COPD in August or September 1989. At that time, he knew that these médical issues were related to smoking. On July 28, 1993, Cavalier died of COPD and coronary heart disease. Fanali filed the underlying suit in this case on January 10, 2008, seeking damages under the wrongful death act and claiming that Cavalier and his survivors were members of the Engle class.

The 1989 diagnosis of lung cancer and COPD occurred before May 5, 1990, “the earliest date that a plaintiffs tobacco-related disease or condition could have manifested itself without the plaintiffs claims being barred by the applicable four-year statute of limitations.” R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1042 (Fla. 2016) (Polston, J., dissenting). The defendant, R. J. Reynolds Tobacco Company, moved for summary judgment, contending that the plaintiffs claims were time-barred because Cavalier’s smoking-related lung cancer and COPD both manifested before the limitations .cut-off date applicable to class-membership.

The plaintiff responded to the summary judgment motion with the contention that the claim was not time barred because (1) Cavalier’s unasserted personal injury claim had not expired at the time of his death in July 1993, giving his survivors 2 years to bring a wrongful death claim; (2) the original Engle lawsuit was filed within the 2-year period that Cavalier’s survivors could have brought a wrongful death claim, thereby tolling the wrongful death statute of limitations; (3) as a survivor with .a wrongful death claim, plaintiff was a member of the Engle class, which included “[a]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine,” Engle, 945 So.2d at 1256; and (4) plaintiff filed her 2008 action within one year of the Engle mandate, so her action was timely filed.

The circuit Court granted Reynolds’ motion for summary judgment, ruling that the defendant had demonstrated as a matter of law that it was entitled to a statute of limitations defense as to Fanali’s claims arising from lung cancer and COPD.

The determination of membership in the Engle class has always focused on the smoker, not on the survivors. Engle restricted class membership to “[a]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain. nicotine.” Engle, 945 So.2d at 1256.(emphasis added). Cases permitting a smoker’s survivors to bring an Engle progeny case all involve survivors of smokers who qualified for class membership.

In Capone v. Philip Morris USA, Inc., 116 So.3d 363 (Fla. 2013), the Florida Supreme Court addressed whether an Engle smoker’s case must be dismissed when the smoker dies, The court held that the smoker’s survivor was -not required to bring a separate wrongful death action. Id. at 376-77. Instead,

upon the death of a party plaintiff in a personal injury action, the personal representative of the decedent’s estate may be added to the pending action as a party and, thereafter, shall have a reasonable opportunity to file an amended pleading that alleges new or amended claims and causes of action.

Id. at 377-78.

Similarly, in Bishop ex rel. Estate of Ramsay v. R.J. Reynolds Tobacco Co., 96 So.3d 464 (Fla. 5th DCA 2012), a smoker’s survivor was permitted to bring an action on behalf of the smoker’s estate, based on the smoker’s class membership. See also Rearick v. R.J. Reynolds Tobacco Co., 68 So.3d 944 (Fla. 3d DCA 2011) (holding the smoker was not an Engle class member and affirming dismissal of wrongful death action brought by the smoker’s survivors). Notably, Engle affirmed the reversal of a damages award for class representative Amodeo because his claims were barred by the statute of limitations. 945 So.2d at 1276, citing to Liggett Group Inc. v. Engle, 853 So.2d 434, 453 n.23 (Fla. 3d DCA 2003).

Cases discussing class membership turn on when the smoker’s nicotine-related illness manifested. The “ ‘critical event’ in establishing membership in the Engle class ... ‘is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.’” R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d at 1030 (quoting Engle, 945 So.2d at 1276). The supreme court concluded “that ‘manifestation’ for purposes of establishing membership in the Engle class means the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition.” Id.

As appellee asserts in its brief, “nothing in Engle supports the argument that the word ‘survivor’ in the class definition included wrongful death beneficiaries of smokers who were not members of the Engle class.” The original Engle lawsuit did not plead a wrongful death theory of recovery. The term “survivors” in the class definition is best interpreted as including survivors of addicted smokers who were Engle class members. No case establishes that a smoker’s survivor can be a class member even where the smoker could not. It is undisputed that Cavalier was not an Engle class member; therefore his survivors were not class members and could not rely on Engle to toll the statute of limitations for their wrongful death claim. We affirm the order of the circuit court.

We affirm the issues raised on the cross-appeal without discussion.

Conner and Kuntz, JJ., concur.

      . The claims based on coronary artery disease proceeded to trial and resulted in a defense verdict.


author: Ciklin, C.J.

text:
    Edward GOTOWALA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1538
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]

      Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, C.J.

Edward Gotowala appeals the order denying his motion to seal his criminal records. Because the trial court failed to hold an evidentiary hearing, we reverse.

The trial court has denied Goto-wala’s motion three times, each time without holding an evidentiary hearing, and twice in reliance on allegations stated in the probable cause affidavit that led to Gotowala’s arrest. A court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit. Rather, the court must consider the facts actually established in the petitioner’s case. Grey v. State, 199 So.3d 988, 990 (Fla. 4th DCA 2016) (citing Gotowala v. State, 184 So.3d 568, 570 (Fla. 4th DCA 2016)). Where a petitioner seeks to have his criminal record sealed and meets all the requirements of section 943.059, Florida Statutes, the trial court may in its discretion deny relief but only after holding an evidentiary hearing and providing a sound reason based on the facts and circumstances of the petitioner’s case. See J.A.H. v. State, 198 So.3d 884, 886 (Fla. 4th DCA 2016) (“[I]t is clear that before denying a petition to seal or expunge criminal records, the trial court must conduct an evidentiary hearing and state specific reasons for denying the petition based on the facts and circumstances of the individual case.”).

In this matter, no one disputes that the petitioner met the requirements of the statute and that he complied with the pertinent statutory procedure. Thus, he was “presumptively entitled to an order to seal or expunge court records.” Gotowala, 184 So.3d at 569 (citation omitted). In other words, for purposes of our analysis and holding, Gotowala was eligible to have his records sealed and therefore the only issue that was before the trial court — and all trial courts similarly situated — concerns whether a factual basis exists for the trial court to deny the petition. Indeed, because a petitioner who satisfies the statutory prerequisites for sealing of records is presumptively entitled to an order to expunge or seal, a petitioner is likewise entitled to a meaningful review of a denial. And, of course, it is axiomatic that an appellate court is thwarted from performing an objective and meaningful assessment of the underlying order of denial if it is not based on record evidence, proper grounds, and sufficient reasoning. Judicial orders denying petitions for sealing or expungement must evince the trial court’s specific reasoning and must not be based on general--ized considerations such as unproven allegations in a probable cause affidavit. Those considerations have no place in the required analysis.

Gotowala requests that we remand to the trial court and instruct it to grant the requested relief, as the trial court has now-had multiple opportunities to hold an evi-dentiary hearing. We decline to do so, as our remand instructions in our previous two opinions in this case may have-misled the trial court as to the necessity of an evidentiary hearing. On remand, the trial court retains discretion to deny the petition if it can base such a decision on sound reasoning that is based on specific, facts and circumstances of Gotowala’s case, gleaned from an evidentiary hearing.

Reversed and remanded for an eviden-tiary hearing.

Gross and Conner, JJ., concur.


author: MORRIS, Judge.

text:
    Christopher R. BAHL, Appellant, v. Rupa P. BAHL, Appellee.
    Case No. 2D16-2459
    District Court of Appeal of Florida, Second District.
    Opinion filed December 9, 2016.

      Mark F.. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
    Marla Aronson Scherker of Marla Aron-son Scherker, P.A., Lutz, for Appellee.
   MORRIS, Judge.

Christopher R. Bahl, the father, appeals a nonfmal order modifying a temporary timesharing order in the parties’ underlying dissolution of marriage proceedings. Because the father was not provided with notice and an opportunity to be heard, we reverse and remand for further proceedings.

In April 2015, the father filed his petition for dissolution of marriage. In November 2015, the father and the mother, Rupa P. Bahl, entered into a temporary mediated agreement giving the father the majority of timesharing with the parties’ six-year-old son. The trial court adopted the agreement. The parties also agreed to the appointment of a guardian ad litem to investigate allegations of domestic violence between the parties and to evaluate the best interests of the child. The guardian ad litem filed her report on May 6, 2016, prompting the mother to file that same day an emergency motion for change in temporary timesharing based on the findings in the guardian ad litem’s report. Later that day, the trial court granted the mother’s motion on an ex parte basis, granting the mother primary timesharing, limiting the father’s timesharing to one hour of supervised visitation every other weekend, and prohibiting phone contact between the child and the father. The father filed a motion to vacate the emergency order, which the trial court denied,

On appeal, the father raises several challenges to the nonfinal order. Mainly, the father argues that the trial court erred in granting the mother’s motion without giving him an opportunity to be heard because there were no allegations demonstrating that an emergency existed.

Section 61.518(1), Florida Statutes (2015), provides that “[b]efore a child custody determination is made under this part, notice and an opportunity to be heard ... must be given to ... any parent whose parental rights have not been previously terminated.” Section 61.503(3) defines “[c]hild custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.” Id. These statutes required the trial court to give the father notice and an opportunity to be heard before entering an order affecting the custody of the child or the father’s visitation. See Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011) (“When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process.”).

A party’s right to due process may give way when an emergency situation exists, “such as where a child is threatened with physical harm or is about to be improperly removed from the state.” Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006); see Loudermilk v. Loudermilk, 693 So.2d 666, 668 (Fla. 2d DCA 1997). Here, there were no allegations that the child was threatened with physical harm by the father or was about to be removed from the state by the father. Rather, the mother alleged that the guardian ad litem’s report “outline[dj ongoing parental alienation perpetrated” by the father towards the mother. The mother alleged the father’s actions, as observed by the guardian ad litem, were “terribly detrimental to the child’s well-being[ ] and may be causing the child irreparable harm.” While the allegations by the mother and the findings of the guardian ad litem were serious and warranted consideration by the trial court, they did not rise to the level of harm that would excuse the trial court from providing the father with an opportunity to be heard. At the very least, even if the allegations supported an emergency, once the trial court granted the ex parte order, it erred in not scheduling a prompt evidentiary hearing to allow the father to be heard. Smith, 932 So.2d at 398-99; Loudermilk, 693 So.2d at 668.

The father further argues that the trial court erred in granting relief based on the guardian ad litem’s report and without sworn facts or testimony. The mother’s allegations were based on an unsworn guardian ad litem report filed with the court. See Crooks v. Crooks, 657 So.2d 918, 919 (Fla. 4th DCA 1995) (reversing emergency ex parte order changing custody because it was entered “without notice and without verified pleading or sworn evidence” and “was essentially founded on an unsworn report by a guardian ad litem”); see also Smith, 932 So.2d at 399 n.4 (“Both ex parte injunctions and ex parte orders providing for a temporary modification of custody require the requesting party to submit sworn evidence to support the relief requested.” (citing Crooks, 657 So.2d at 919)). In the stipulated order appointing the guardian ad litem, the parties agreed that the court could “consider the information contained” in the guardian ad litem’s report, but they also agreed that the guardian ad litem could “testify before the [cjourt” and that the guardian ad litem’s report would not be excluded by the hearsay rules. Thus, while the parties agreed that the report could be considered by the court and not subject to hearsay objections, they also contemplated that the guardian ad litem herself would testify before the court regarding her findings.

Section 61.403(5) provides that the guardian ad litem “may address the court and make written or oral recommendations to the court” and “shall file a written report.” Section 61.403(5) also contemplates that the report will be presented at a hearing: “The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit.” (Emphasis added.) Thus, the father should have been given an opportunity at a hearing to address the findings in the-guardian ad litem’s report. See Leinenbach v. Leinenbach, 634 So.2d 252, 253 (Fla. 2d DCA 1994) (reversing an ex parte modification of custody because “[t]he father was not afforded an opportunity to rebut the contents of the [guardian’s] report prior to the entry of the final order”); Miller v. Miller, 671 So.2d 849, 851 (Fla. 5th DCA 1996) (“The parent in a change of custody case must be allowed an opportunity to rebut the conclusions of the report and to cross-examine the preparer.” (first citing Leinenbach, 634 So.2d at 253; and then citing Clayman v. Clayman, 536 So.2d 358, 359 (Fla. 3d DCA 1988))).

The father also contends that the trial court erred in granting relief that the mother did not request. See Abbott v. Abbott, 98 So.3d 616, 617-18 (Fla. 2d DCA 2012) (holding that it is an abuse of discretion and reversible error to grant relief that was not requested in child custody modification proceedings). Here, the mother asked only that the father’s visitation be supervised; she did not ask that he be prohibited from having phone contact with the child. In fact, the guardian ad litem recommended in her report that the child have daily, supervised communications with the father. Yet, the trial court restricted the father from such communications. Thus, the order is further flawed in this regard.

Accordingly, we reverse the ex parte order and remand for further proceedings consistent with this opinion. The provisions of the order shall remain in effect until the trial court holds an evidentiary hearing within twenty days, unless both parties agree to a later date. See Smith, 932 So.2d at 400; Crooks, 657 So.2d at 919.

Reversed and remanded.

VILLANTI, C. J., and BLACK, J., Concur.

      . The provisions shall remain in effect until the hearing so as to avoid another sudden change in custody. Prior to the ex parte order, the child lived primarily with the father, had regular visitation with the mother, and had liberal phone communication with the mother. The ex parte order gave sole custody to the mother with extremely limited visitation with the father and no phone communication with the father. Thus, the child has been primarily with the mother for the last five months with only limited visitation with the father.


author: PER CURIAM.

text:
    Paulette Renee COPLEY, Appellant, v. Ricky Dale COPLEY, Appellee.
    Case No. 2D16-564
    District Court of Appeal of Florida, Second District.
    Opinion filed December 9, 2016.

      Paulette Renee Copley, pro se.
    Shelley Harrell Shelton of Hall, Bennett & Shelton, Winter Haven, for' Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, MORRIS, and LUCAS, JJ., Concur.


text:
    Michael J. RIGBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3920
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 20, 2016
    Michael J. Rigby, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

PALMER, TORPY, and LAMBERT, J.J., concur.


text:
    Freeman HUNTER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4129
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 30, 2016
    Robert Wesley, Public Defender, and Jared Adelman, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted, A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 16, 2016 judgment and sentence in Case No. 2015-CF-013862-A-O in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and EVANDER, JJ., concur.


author: PER CURIAM. WETHERELL, J.,

text:
    David M. BARICKO, Appellant, v. BARNETT TRANSPORTATION, INC. and York Risk Services Group, Appellees.
    CASE NO. 1D16-1304
    District Court of Appeal of Florida, First District.
    Opinion filed January 17, 2017
    Michael J. Winer and John F. Sharpless of Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
    Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellees.
   PER CURIAM.

AFFIRMED.

WOLF and LEWIS, JJ., CONCUR; WETHERELL, J., CONCURS WITH OPINION.

WETHERELL, J.,

concurring.

Amongst the six issues raised by the Claimant in this workers’ compensation appeal is a claim that the Judge of Compensation Claims (JCC) erred in applying the Daubert test codified in section 90.702, Florida Statutes, because that test is not applicable unless and until it is adopted by the Florida Supreme Court in In re Amendments to the Florida Evidence Code, Case No. SC16-181. This claim is ■ unpreserved, and it is also frivolous.

.

This court specifically held in Giaimo v. Florida Autosport, Inc., 154 So.3d 385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in workers’ compensation proceedings. See also Booker v. Sumter Cty. Sheriff's Office, 166 So.3d 189 (Fla. 1st DCA 2015). Although not explicated in the opinion, this holding was grounded on the settled principle that “the Florida Evi-. dence Code applies in workers’ compensation proceedings,” United States Sugar Corp. v. G.J. Henson, 823 So.2d 104, 107 (Fla. 2002), and the fact that the Daubert test is now specifically codified in the Florida Evidence Code. See ch. 2013-107, § 1, Laws of Fla. (amending § 90.702, Fla. Stat,); § 90.101, Fla. Stat. (“This chapter shall be known and may be cited as the ‘Florida Evidence Code.’ ”), The JCC was bound by Giaimo — -and the plain language of section 90.702 — and therefore did not err in applying the Daubert test.

Additionally, although the Florida Supreme Court has the authority to adopt procedural rules for judicial proceedings under article V, section 2(a) of the Florida Constitution, it is well established that the Court does hot have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Florida Statutes. See Amendments to the Fla. Rules of Workers’ Comp. Procedure, 891 So.2d 474, 478 (Fla. 2004) (“Given that the [Office of Judges of Compensation Claims] is not an article V court, but rather part of an executive branch department, we find that this Court has no authority under the Florida Constitution ... to promulgate rules of practice and procedure for this executive entity”). Accordingly, even if in In re Amendments to the Florida Evidence Code, supra, the Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers’ compensation proceedings.

Finally, this claim was recently considered — and rejected as meritless — by our sister court in Crane Co. v. DeLisle, 206 So.3d 94 (Fla. 4th DCA 2016):

[The plaintiff] also argues that this court lacks the authority to apply Daubert, as incorporated through section 90.702, Florida Statutes ... because it is a legislative change to the evidence code that has not yet been approved by the Florida Supreme Court. However, statutes are presumed to be constitutional and are to be given effect until declared otherwise. Further, we, and other Florida appellate courts, have applied the statute to the admission of testimony. We therefore find that this argument lacks merit.

Id. at 100 n.7 (citations omitted).

For these reasons (and because the other five issues raised by the Claimant lack merit and do not warrant a written opinion), I concur in the disposition of this appeal by a “PCA.”

      . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),

      . This provision states in relevant part: “The supreme court shall adopt rules for the practice and procedure in all courts .... ” (emphasis added).

      . See, e.g., In re Amendments to Fla. Evidence Code, 782 So.2d 339, 341-42 (Fla. 2000) (recognizing that the Florida Evidence Code contains both substantive law and procedural requirements and adopting all of the amendments to the Code enacted by the Legislature from 1996 to 1999 "to the extent they are procedural,” except for the 1998 amendment to the former testimony hearsay exception in section 90,803(22), Florida Statutes).


author: EDWARDS, J. BERGER, J.,

text:
    FLNC, INC., d/b/a Florida Living Nursing Center, Appellant/Cross-Appellee, v. Joise RAMOS, as Personal Representative of the Estate of Sonia Mercado-Bosque, Appellee/Cross-Appellant.
    Case No. 5D16-1725
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017
    Rehearing Denied June 26, 2017

      Patrick H. Telan, Philip J. Wallace, and Matthew E. Moats, of Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for Appellant/Cross-Appellee.
    Victor Kline, of Greenspoon Marder, PA, Orlando, and Michael J. Carter, of Morgan & Morgan, Orlando, for Appellee/Cross-Appellant.
   EDWARDS, J.

This appeal and cross-appeal are from the trial court’s order granting a partial new trial on the issues of causation and damages, but denying a new trial on liability in a nursing home negligence case. The jury returned a verdict finding that FLNC, Inc. D/B/A Florida Living Nursing Center (“Nursing Home”) negligently caused injury to its patient, Sonia Mercado-Bosque. The jury awarded Joise Ramos, son of Sonia Mercado-Bosque and Personal Representative of Ms. Mercado’s Estate (“the Estate”), stipulated medical expenses, but did not award damages for pain and suffering or other intangible damages. Because liability was hotly contested and there are strong indications that the jury rendered an improper compromised verdict, we conclude that the trial court erred in ordering only a partial new trial. Accordingly, we remand for a new trial on the issues of liability, causation, and damages.

Ms. Mercado had several significant health problems, including multiple sclerosis and diabetes, that progressively impaired her mobility and left her unable to care for herself. Her lack of mobility, permanently contracted legs, and other health problems made her susceptible to developing skin ulcers, which Nursing Home’s staff tried to avoid by frequently repositioning her and by using special footwear. While a resident at Nursing Home, she developed skin ulcers and an infection of her left foot, which resulted in gangrene. Her treating doctors decided that amputation of both legs above the knee was the best way to avoid future skin ulcers on her lower extremities; - they amputated her left leg at the linee level. Ms. Mercado passed away after her surgery due to unrelated causes.

The Estate sued Nursing Home, claiming that the skin ulcers, infection, gangrene, and need for amputation resulted from Nursing Home’s staff negligently caring for Ms. Mercado. At trial, the Estate’s medical expert testified that Nursing Home’s staff did not -regularly and frequently reposition Ms. Mercado and that the resulting constant pressure led to the skin ulcers, infection, and gangrene. The Estate’s expert also testified that Nursing Home’s staff failed to make and keep proper records of the care provided to Ms. Mercado.

Nursing Home’s nursing expert testified that the record keeping was proper and that the records confirmed that Ms. Mercado was frequently repositioned and otherwise -well cared for in terms of preventing and treating "any skin ulcers. Nursing Home’s additional medical expert testified that Ms. Mercado’s diabetes impaired circulation to her feet, which made her extremely susceptible to infection, and, when combined with' her leg contractures, made the knee-level amputation unavoidable. Nursing Home’s medical expert explained that if Nursing Home’s failure to reposition Ms. Mercado caused the left foot ulcer, Ms. Mercado would have had skin ulcers at other locations, but she did not. Those' experts additionally testified that the care and treatment provided to Ms, Mercado met or exceeded the standard of care. In this battle of the experts, liability and causation were hotly contested.

It was clear from the testimony that Ms. Mercado experienced discomfort and pain; however, the cause, nature, extent, and what portion was related to the left foot, the amputation, the leg contractures, or her other health conditions were disputed. The parties stipulated at trial that the relevant past medical expenses totaled $13,309.23. The jury deliberated for approximately four hours, sent out two written damage-related questions to the court, and then returned a verdict finding that Nursing Home negligently caused injury to Ms. Mercado, The jury awarded $13,309.23 for past medical expenses but did not award any amount for pain, suffering, or other intangible damages. Neither party requested the court to poll the jury.

The Estate filed a motion seeking addi-tur or a new trial only on damages, which Nursing Home opposed. The trial court issued a detailed order granting an additur of $9500 after finding the evidence of intangible damages was “sparse’’ and noting that it was difficult to determine which of the pain and suffering was negligence-related. The additur order included a proviso that a trial on damages alone would be held if the additur was rejected. Nursing Home moved the court to reconsider and sought a new trial on liability and damages. The Estate rejected the additur and sought a new trial on damages only. The trial court denied Appellant’s motion for reconsideration, but entered an order for a new trial on causation and damages'but not on liability. Both sides appeal the order.

The trial court found that it was “inconceivable ... that a jury of reasonable persons could find negligence and causation ... but not award at least some damages for the intangible elements.” Our review of the record’ and briefs leads us to conclude that “it is more than merely conceivable that the jury ‘interwove the issues of liability and damages in the jury form in an inconsistent way, suggestive of a compromise on liability, possible confusion on the law of damages, or both.’ ” Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808, 810 (Fla. 4th DCA 1990) (quoting Rivera v. Aldrich, 538 So.2d 1390, 1392 (Fla. 3d DCA 1989)). The hallmarks of. a compromised verdict in a tort claim are a clearly inadequate damage award coupled with a finding of liability in a case where liability was hotly contested. See Watson v. Builders Square, Inc., 563 So.2d 721, 722 (Fla. 4th DCA 1990). An improper compromised verdict on the issue of liability is highly probable when the jury returns a verdict finding that the defendant negligently caused injury to plaintiff, but “awarded [the plaintiff] her [past] medical expenses without considering non-economic damages.” Food Lion v. Jackson, 712 So.2d 800, 802 (Fla. 5th DCA 1998); see also Ochlockonee Banks Rest., Inc. v. Colvin, 700 So.2d 1229, 1231 (Fla. 1st DCA 1997) .(holding that verdict of liability that awarded past medical expenses only and nothing for pain and suffering clearly shows it was result of compromised verdict where negligence was seriously disputed); Bucci v. Auto Builders S. Fla., Inc., 690 So.2d 1387, 1389 (Fla 4th DCA 1997), rev’d on other grounds, 709 So.2d 1381 (Fla. 1998) (holding that jury’s damages-related questions and verdict of liability with clearly inadequate damages of only medical expenses but no non-economic damages in case where liability was. hotly contested strongly suggested compromised verdict).

Because the Estate rejected the additur of $9500 ordered by the trial court, the remedy for a compromised verdict is a new trial. Here, the trial court ordered a new trial only on the issues of causation and damages, which pleased neither side. The Estate argues that the new trial should be limited to determining only damages, while Nursing Home asserts that the new trial should address the issues of liability, causation, and damages.

The Estate’s motion for additur-or new trial was based upon section 768.74, Florida Statutes (201-5), which provides in part:

(1) In any action to which this part applies , wherein the trier of fact , determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the.responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.
(4) If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

§ 768.74(1)&(4), Fla. Stat. (2015) (emphasis added). The Estate argues that because the jury found liability, this case fits squarely within section 768.74, even though the trial court determined that the money damages awarded by the jury were inadequate. The Estate asserts that the statute provides for a new trial on damages only and does not provide for a new trial on causation and damages, as ordered by the trial court. Although the Estate reads the statute correctly, the analysis does not end there.

It has long been the. law in Florida that [t]o grant a new trial on the issue of damages alone, it must appear that on the evidence adduced at the trial, the liability of the defendant was unequivocally established without substantial dispute and the inadequacy of the verdict was induced by a misconception of the law or the failure of the jury to consider all of the elements of damages submitted, and not as a result of a compromise by the jury on the issue of liability.

1661 Corp. v. Snyder, 267 So.2d 362, 364 (Fla. 1st DCA 1972). The instant case clearly does not fall into that category.

In Watson, the jury’s verdict was similar to that in the instant case: a finding of liability, an award of prior medical bills, but no award for pain and suffering. 563 So.2d at 722. The Fourth District found that “only a jury of unreasonable persons would not have compensated Mrs. Watson for her pain and suffering.” Id. The case was remanded for a new trial on both liability and damages because “when a damage award is clearly inadequate and the issue of liability is hotly contested, such circumstances give rise to a suggestion that the jury may have compromised its verdict.” Id.

In Broward County School Board v. Dombrosky, 579 So.2d 748, 749 (Fla. 4th DCA 1991), the injured plaintiff raised the same argument that the Estate offers here, namely that section 768.74 limits any new trial to damages alone. The Fourth District considered, but rejected, that argument. Dombrosky, 579 So.2d 748. Instead it remanded the case for a new trial on the issues of liability and damages because “there [was] some suggestion from the hotly contested evidence of liability that the jury may have compromised on the verdict, especially in light of the jury’s decision to give a small award of damages to [the plaintiff.]” Id. at 750. Likewise, in Food Lion, after finding “a strong indication of compromise on the issue of liability,” this court ordered a new trial on liability and damages. 712 So.2d at 803. In doing so, we recognized that section 768.74 permits the party to choose between “the amount of additur or a new trial on damages only.” Id. We did not, however, “believe that the legislature intended to preclude a court from ordering a new trial on both damages and liability where' the jury compromised the verdict.” Id.

More recently, this court observed in Westminster Community Care Services, Inc. v. Mikesell, 12 So.3d 838, 841-42 (Fla. 5th DCA 2009), that:

A line of decisions rendered by the district courts, including this court, hold that despite the limiting provision in section 768.74(4), when a jury award is inadequate and an additur is necessary to correct the inadequacy, a new trial on the issues of liability and damages is appropriate when the liability issue was hotly contested by the parties,

(emphasis added) (citations omitted); accord REWJB Dairy Plant v. Bombardier Capital, Inc., 152 So.3d 21, 28 (Fla. 3d DCA 2014).

In Calloway, a slip and fall case, the Fourth District found that the jury had likely reached an improper compromised verdict which apportioned liability equally between plaintiff and defendant and awarded less than half of plaintiffs undisputed past medical bills and lost wages. 560 So.2d at 810. The plaintiff in the case testified that she did not know what caused her to trip; thus, the jury was confronted with each side’s expert testimony, which was predictably conflicting. Id. In addition to ordering a new trial on damages, the court stated that it was “convinced that retrial of the liability issue [was] warranted in the light of that aspect of the case having been vigorously contested.” Id. at 809. Whether liability is hotly contested is determined by the evidence and arguments presented by the parties, not by whether one could overhear the jury’s deliberations. Street v. H.R. Mortg. & Realty Co., 949 So.2d 1158, 1161-62 (Fla. 4th DCA 2007).

Courts and aggrieved litigants often state that no rational or reasonable jury, on the evidence presented, could have found liability, yet returned such a paltry award of damages. Watson, 563 So.2d at 722; Calloway, 506 So.2d at 809. Justice is not served by accepting any aspect of a verdict returned by a jury that acted irrationally or unreasonably in reaching a comprised verdict on the issues of liability and damages. “[A] compromised verdict [] does not reflect a true and just decision based on the evidence and the pertinent law.” Westminster, 12 So.3d at 842.

Here, liability and causation were hotly contested. The instant case is not one in which there was a discreet negligent event resulting in a new, well-defined injury, such as one might see in a slip and fall that resulted in a broken hip. The trial court’s order limiting the re-trial to causation and damages may have been appropriate with those facts. However, Ms. Mercado was in Nursing Home’s care for an extended period of time, during which an infection began and progressed. The Estate’s testifying medical expert was well-credentialed, as were the Nursing Home’s medical and nursing experts. The experts gave detailed and well-supported, but conflicting, opinions on whether Appellant complied with the prevailing standard of care, what caused the onset of infection, whether the infection was timely and properly treated, the impact of her other medical conditions, and the medical reason for amputating Ms. Mercado’s left leg.

Given the sanctity and privacy of jury deliberations, a court’s conclusion that the jury’s verdict is the result of an improper compromise must rest on its determination of whether the well-established hallmarks are present. Here we find that liability and causation were hotly contested at trial, and that the damage award was clearly inadequate, leading us to conclude that the jury rendered a compromised verdict. Although we agree with the trial court that the jury’s verdict cannot stand, for the reasons discussed above, we remand for a new trial on liability, causation, and damages.

REVERSED AND REMANDED.

JACOBUS, B.W., Senior Judge, concurs.

BERGER, J., concurs specially with opinion.

BERGER, J.,

concurring specially.

I concur in the opinion based on this court’s prior precedent. See Westminster Cmty. Care Servs., Inc. v. Mikesell, 12 So.3d 838, 841-42 (Fla. 5th DCA 2009). However, were I writing on a clean slate, I would reverse the order under review and remand for a new trial solely on the issue of damages based on the Legislature’s express directive in section 768.74(1) and (4), Florida Statutes.

      . We suggest that courts adopt a' rule that requires a "complete new trial when liability is close and damages clearly inadequate.” Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So.2d 256, 258 n.5 (Fla. 3d DCA 1985). Such a rule would prevent “appellate courts from having to engage in the type of post-hoc mind-reading which would be necessary to decide whether the jury was confused, in which case a new trial on damages alone would be adequate, or compromising, which would require a new trial on liability as well,” Id.


text:
    REGIONS BANK, Appellant, v. Becky BUONCERVELLO, Appellee.
    Case No. 5D16-1474
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017
    Rehearing and Rehearing En Banc Denied June 29, 2017

      Jonathan P. Hempfling, -of Marcadis Singer, P.A., Tampa, for Appellant..
    David M. Chico, of David Chico Law Group, Celebration, for Appellee.
   PER CURIAM.

Regions Bank (“Bank”) appeals the trial court’s order dismissing its deficiency judgmént action against Becky Buoncer-vello for failing to timely serve the complaint. We find that the trial court abused its discretion by dismissing the complaint. Accordingly, we reverse and remand for further proceedings.

In May 2010, Bank obtained a final judgment of foreclosure against Buoncervello for $1,703,296.78. Bank instituted this action in May 2014 to • collect a $1,346,771.48 deficiency judgment, plus interest from the sale date of January 19, 2011. Bank’s initial summons (dated May 7, 2014) and subsequent alias summons (dated September 26, 2014) were both returned as non-served. In October 2015, Buoncervello moved to dismiss Bank’s complaint for failure to serve within 120 days pursuant to Florida Rule of Civil Procedure 1.070(j). Bank filed no response to the motion to dismiss. Moreover, the trial court held a hearing on the motion to dismiss in April 2016, but no transcript of the hearing appears in the record on appeal. After the hearing, the trial court dismissed the complaint without prejudice.

We review a trial court’s order dismissing an action for failure to timely serve the complaint for an abuse of discretion. Wagner v. Strickland, 908 So.2d 549, 550 (Fla. 1st DCA 2005). Generally, the trial court enjoys “broad discretion to extend the time for service even when good cause for failing to meet the 120-day deadline has not been shown.” Roberts v. Stidham, 19 So.3d 1155, 1157 (Fla. 5th DCA 2009) (citing Bacchi v. Manna of Hernando, 743 So.2d 34, 34 (Fla. 5th DCA 1999)). When the statute of limitations has run, preventing refiling of the complaint, trial courts should exercise discretion in favor of extending the service deadline:

[I]f such a dismissal order is entered after the expiration of the statute of limitations, precluding timely refiling of the action, given Florida’s “long-standing policy in favor of resolving civil disputes on the merits,” and the intent that rule 1.070(j) serve as a “case management tool” and not as “a severe sanction,” it ordinarily is an abuse of discretion not to allow additional time for service of the summonses even in the absence of a showing of good cause or excusable neglect.

Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DCA 2004) (quoting Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001)).

Here, the record on appeal contains a return of service affidavit showing that Buoncervello was individually served with the pluries summons and complaint on May 14, 2015, at 1:25 p.m. It remains unclear whether Bank provided this docu-taent to the trial court because it filed no response to Buoncervello’s motion to dismiss and, although its counsel attended the hearing, no transcript of the same appears in our record on appeal. We note, however, that Buoncervello does not challenge the return of service as defective or otherwise dispute that she was served on the date reflected therein. See Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989) (“[A] return of service which is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary.” (citing Magazine v. Bedoya, 475 So.2d 1035 (Fla. 3d DCA 1985))). We cannot reconcile the trial court’s dismissal with the unchallenged return of service demonstrating that Bank served Buoncervello approximately one month before the trial court dismissed the complaint. For these reasons, we reverse the trial court’s order dismissing the case and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

SAWAYA, TORPY, and WALLIS, JJ., concur.


text:
    VENTURES TRUST 2013-I-NH, BY MCM CAPITAL PARTNERS, LLC, its Trustee, Appellant, v. Dana M. JOHNSON and Robin L. Johnson, Appellees.
    Case No. 5D16-1020
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Shawn Taylor, of Deluca Law Group, PLLC., Fort Lauderdale, for Appellant.
    J. Russell Collins and Vincent L. Sullivan, of Rusty Law, LLC, St. Augustine, for Appellees.
   PER CURIAM.

The appellant, Ventures Trust 2013-1-NH (“Ventures”), appeals the trial court’s order granting Appellees’, Dana M. Johnson and Robin L. Johnson, motion to dismiss the mortgage foreclosure complaint with prejudice. The complaint was dismissed on the basis of the statute of limitations in that Ventures’ foreclosure action was instituted on October 27, 2015, alleging a default date of September 1, 2010, which was beyond the five-year statute of limitations as set forth in section 95.11(2)(c), Florida Statutes (2015). In opposing the motion to dismiss, Ventures argued that its cause of action did not accrue until it accelerated the debt, which occurred when it filed the foreclosure complaint on October 27, 2015. We disagree and affirm the judgment.

It is well-settled that the accrual of the cause of action for each missed monthly installment payment accrues the day after each is due to be paid, not on the date of the acceleration of the entire balance. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009 (Fla. 2016); U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007 (Fla. 5th DCA 2014). In this case the default date alleged was, September 1, 2010, which was clearly beyond the five-year statute of limitations. This case is not unlike Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2015), and Ventures is not precluded from filing a new foreclosure action based on different acts or dates of default not previously alleged, provided the new cause of action is instituted within the limitation periods for each default. See § 95.11(2)(c), Fla. Stat. (2015).

AFFIRMED.

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.