text:
    Bryan WILLIAMS a/k/a "Birdman", Appellant, v. Javier NUNO, Appellee.
    No. 3D17-604
    District Court of Appeal of Florida, Third District.
    Opinion filed February 07, 2018
    Alan R. Soven, P.A., and Alan R. Soven, for appellant.
    Remer & Georges-Pierre, PLLC, and Anthony M. Georges-Pierre, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

Bryan Williams a/k/a "Birdman" ("the defendant") appeals a non-final order denying his supplemental motion to dismiss the complaint based on insufficiency of service of process, asserting that, contrary to the return of service, the person the process server gave the summons and complaint to does not reside at the defendant's usual place of abode as required under section 48.031(1)(a), Florida Statutes (2016). For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Javier Nuno ("the plaintiff") filed suit against the defendant. The return of service reflects, in part, that on June 15, 2016, the process server delivered a copy of the complaint and summons to Cory Jones ("Mr. Jones") at the defendant's usual place of abode in Miami Beach, Florida, and that Mr. Jones is over the age of fifteen and a co-resident at the defendant's Miami Beach residence.

The defendant filed a supplemental motion to dismiss the complaint, along with his sworn affidavit, challenging the sufficiency of the substitute service of process. The motion to dismiss and the defendant's affidavit state that the defendant employs Mr. Jones as a security guard; Mr. Jones has never resided at the defendant's Miami Beach residence; Mr. Jones resides at a specific address in Hollywood Beach, Florida; Mr. Jones is not a member of the defendant's household; and Mr. Jones is not authorized to accept complaints on behalf of the defendant.

At the evidentiary hearing on the defendant's supplemental motion to dismiss, the return of service and the defendant's affidavit were introduced into evidence. In addition, Mr. Jones and the process server testified.

Mr. Jones testified that on June 15, 2016, he went to the front gate of the defendant's Miami Beach residence because he saw someone taking pictures. A process server then handed him a complaint, but the process server never asked Mr. Jones if he resided at the defendant's Miami Beach residence or if he was a member of the defendant's household. Mr. Jones testified that he provides private security services to the defendant; he has never resided at the defendant's Miami Beach residence; he resides at a specific address in Hollywood Beach, Florida; he is not a member of the defendant's household; and he does not have the authority to accept a complaint on behalf of the defendant. Mr. Jones's testimony was not corroborated with any documentation, such as a driver's license, a lease of his alleged Hollywood Beach residence, or utility bills associated with the specific Hollywood Beach address.

In contrast, the process server testified that, prior to identifying himself as a process server, he asked Mr. Jones if he lived at the defendant's Miami Beach residence, and in response, Mr. Jones stated, "Yes, I do live here." Thereafter, he asked Mr. Jones if the defendant was home, and after Mr. Jones responded that the defendant was not, he identified himself as a process server and gave the complaint and summons to Mr. Jones, who is over the age of fifteen and a co-resident at the defendant's Miami Beach residence.

At the conclusion of the evidentiary hearing, the trial court stated that it considered the witnesses' demeanor, frankness, and ability to remember matters relating to their testimony; the interest each witness has in the outcome of the case; and the reasonableness of their testimony. Based on these considerations, the trial court found that the process server was credible and that the service of process was valid, and the trial court denied the defendant's supplemental motion to dismiss the complaint. The defendant's non-final appeal followed.

II. ANALYSIS

To the extent the trial court's ruling on the supplemental motion to dismiss the complaint involves questions of law, our review is de novo. See Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 179 (Fla. 3d DCA 2011). However, a trial court's factual determinations, including credibility determinations, are ordinarily not disturbed on appeal. See Davidian v. JP Morgan Chase Bank, 178 So.3d 45, 48-49 (Fla. 4th DCA 2015).

The party invoking the court's jurisdiction has the burden of proving proper service of process. See Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007). "If the return [of service] is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence ." Id. (emphasis added); see also Koster v. Sullivan, 103 So.3d 882, 884 (Fla. 2d DCA 2012) ; Robles-Martinez, 88 So.3d at 179-80.

In the instant case, the parties do not dispute that the return of service was regular on its face. As such, the service of process was presumed valid, and the defendant, as the party challenging the service of process, had the burden of overcoming this presumption by clear and convincing evidence. By denying the supplemental motion to dismiss and finding that the service of process was valid, the trial court determined that the defendant had not overcome the presumption of validity by clear and convincing evidence. The trial court's ruling was based on a credibility determination after receiving conflicting testimony from the only two witnesses-the process server and Mr. Jones-and a determination that the process server was credible. As we defer to the trial court's credibility determination, we affirm the trial court's order denying the defendant's supplemental motion to dismiss the complaint. See Evans v. Thornton, 898 So.2d 151, 152 (Fla. 4th DCA 2005) ("When the trial court's decision is based on live testimony, the appellate court defers to the trial court's determination as to the credibility of witnesses.");

Sinclair v. Sinclair, 804 So.2d 589, 592 (Fla. 2d DCA 2002) ("The trial court is in the best position to weigh the evidence and to determine the credibility of the witnesses, and it is not for [the reviewing court] to re-weigh the evidence or to substitute its judgment for that of the trial court.").

Affirmed.

      Section 48.031(1)(a) provides:
      Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents....

      As we are affirming the order under review, we need not address the plaintiff's argument that the defendant waived his insufficient service of process defense.


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    Walter Lee WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2478
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018.
    Walter Lee Wright, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Walter Lee Wright files a Motion for Rehearing with respect to the underlying appeal. For the reasons that follow, we deny the motion and order Wright to show cause why this Court should not prohibit him from making further pro se filings related to circuit court case number F01-7689.

Ordinarily, we would deny this motion without further discussion. However, further action is warranted by this Court, as Wright's abuse of the judicial process is apparent on the face of the motion.

Initially, Wright appealed the trial court's summary denial of his motion for post-conviction relief. Following review of this successive appeal, this Court per curiam affirmed on December 21, 2016.

Wright then filed a motion for rehearing with this Court on January 11, 2017. The rehearing was denied on January 20, 2017. On February 28, 2017, Wright filed a motion to clarify and recall this Court's mandate. The motion was denied on March 6, 2017.

Turning to Wright's current filing before this Court, the second "Motion for Rehearing," of this Court's affirmance of the trial court's order, we note there is no request for relief in the Motion for Rehearing. Instead, Wright engages in profane name calling and threatening language.

Including the underlying appeal, Wright has filed at least thirteen unsuccessful appeals with this Court, stemming from his 2006 convictions and sentences for first-degree murder with a firearm, armed robbery with a firearm, armed burglary, and attempted carjacking with a firearm. When Wright has articulated a claim, these claims have all previously been raised on direct and collateral appeal and have been decided on the merits against Wright.

Wright is hereby directed to show cause, within sixty days from the date of this order, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments, and sentences in circuit court case number F01-7689, unless such pleadings are signed by a member of the Florida Bar. See State v. Spencer, 751 So.2d 47 (Fla. 1999) ; Walker v. State, 814 So.2d 516 (Fla. 3d DCA 2002).

Motion denied. Order to show cause issued.

      Wright's motion includes the following paragraph: "MOTHAF--K y'all and all those that's down with y'all corrupted behavior! You MOTHAF--KS are not GOD and you damn sure not right. From this day forward all HELL will come down on y'all until I'm FREE." Wright signs his motion "Lucifer" "Son of David."

      Wright v. State, 2016 WL 7404552 (Fla. 3d DCA 2016) ; Wright v. State, 212 So.3d 370 (Fla. 3d DCA 2016) ; Wright v. State, 208 So.3d 1181 (Fla. 3d DCA 2016) ; Wright v. State, 207 So.3d 887 (Fla. 3d DCA 2015) ; Wright v. State, 151 So.3d 1260 (Fla. 3d DCA 2014) ; Wright v. State, No. 3D13-2081, 2013 WL 12234126 (Fla. 3d DCA August 27, 2013) ; Wright v. State, 119 So.3d 454 (Fla. 3d DCA 2013) ; Wright v. State, 111 So.3d 894 (Fla. 3d DCA 2013) ; Wright v. State, 76 So.3d 308 (Fla. 3d DCA 2011) ; Wright v. State, 57 So.3d 862 (Fla. 3d DCA 2011) ; Wright v. State, 56 So.3d 13 (Fla. 3d DCA 2011) ; Wright v. State, 49 So.3d 1279 (Fla. 3d DCA 2010) ; Wright v. State, 994 So.2d 447 (Fla. 3d DCA 2008).


author: ROTHENBERG, C.J.

text:
    Tracy DOUGLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-759
    District Court of Appeal of Florida, Third District.
    Opinion filed February 07, 2018
    Tracy Douglas, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   ROTHENBERG, C.J.

After a jury trial, the appellant, Tracy Douglas ("the defendant"), was convicted of robbery with a firearm. The judgment and sentence were affirmed on appeal. Douglas v. State, 100 So.3d 702 (Fla. 3d DCA 2012). In 2013, the defendant filed a motion raising eight grounds for postconviction relief based on ineffective assistance of trial counsel. The trial court summarily denied six of the claims, conducted an evidentiary hearing on two of the claims, and following the hearing, entered an order denying the motion. Although the defendant raised eight claims, the eighth claim was a cumulative error claim, and he has only specifically addressed five of the individual seven claims on appeal. We have, however, reviewed all eight claims and affirm.

SUMMARY OF THE EVIDENCE

At approximately 11:00 p.m. on the night in question, the victim exited a bus with another woman, and they began walking, but then parted ways. Thereafter, a man, who the victim later identified as the defendant, approached the victim and robbed her of her cell phone at gunpoint. The victim knocked on the door of a nearby house, where she called the police and reported the robbery.

The victim testified that she got a good look at the robber, whom she recognized from an encounter two or three days prior to the robbery. The victim had actually been in a car with the man who robbed her, along with her friend, Ashley Hunter, two or three days before the robbery. Because the victim wanted to provide the name of the man who had robbed her to the police, she contacted Hunter and asked her for the name of the man in Hunter's car. Hunter told the victim that the man was known as "Bucket." After conducting a search on the internet, the victim identified the defendant as the man who had robbed her. She provided this information to the police and subsequently positively identified the defendant as the man who robbed her at gunpoint in both a pre-trial photo line-up and then again at trial. Records of the stolen cell phone showed calls placed to the defendant's girlfriend and mother the day after the robbery.

At the time of trial, the defendant had five or six pending felony cases, including two first degree murder cases and several robbery cases. The same trial counsel represented the defendant in all of the defendant's cases, and he obtained acquittals in every case that went to trial, including the murder cases, except for the instant case. It appears that the defendant's mother and sisters testified as alibi witnesses in the murder trials.

THE DEFENDANT'S POSTCONVICTION CLAIMS

I. Failure to object to the trial court's response to the jury's request for a transcript of the trial

During jury deliberations, the jury requested "a transcript of the trial." After consultation with counsel for the State and the defendant's counsel, and with the approval of both, the trial court submitted the following response to the jury: "Trial is not transcribed at this time. You must rely upon your recollection, however, read back of certain portion may be available if necessary." We conclude that there was nothing improper or misleading about the trial court's response.

First, we note that the jury asked for a transcript of the trial, not for particular testimony given during the trial. No transcripts had yet been prepared, and therefore, the portion of the response stating that the trial had not been transcribed was accurate and not misleading. Second, the trial court did not mislead the jury into believing that a read-back of the testimony was prohibited or that a request for portions of the testimony to be read back to the jury would not be entertained. In fact, the trial court specifically advised the jury that a read-back of the testimony was available if they needed it. Thus, while the trial court has the discretion to deny a jury's request to have testimony read back to it, see Hazuri v. State, 91 So.3d 836, 841 (Fla. 2012) ("As a general rule, trial courts have wide discretion in determining whether to grant read-back requests. Indeed, 'courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury's request for a read back.' ") (citations omitted), here, the trial court appeared willing to honor such a request if one was made and informed the jury that it could make such a request.

We, therefore, completely reject the defendant's claim of ineffective assistance of trial counsel on this ground.

II. Failure to call the victim's friend, Ashley Hunter as a defense witness

The defendant claims that his trial counsel provided ineffective assistance by failing to call Hunter at trial. The defendant claims that Hunter was biased against the defendant and because Hunter and the victim were "best friends," Hunter's testimony would have established a motive for the victim to falsely accuse the defendant. The record, however, reflects that: (1) at the time of trial, Hunter's whereabouts were unknown and the State had been unable to locate her; (2) Hunter would have provided critical evidence against the defendant because she had seen the defendant in possession of the victim's cell phone after the robbery; and (3) asserting that Hunter's testimony would have somehow benefitted the defendant was rank speculation because she had not been located or deposed, and she was not called as a witness at the postconviction evidentiary hearing conducted by the trial court. Additionally, the defendant's trial counsel explained at the evidentiary hearing that he had expected the State to call Hunter as a State witness because Hunter would have provided a crucial link between the stolen cell phone and the defendant, and if Hunter had testified at trial, defense counsel would have attempted to cast doubt as to her credibility by trying to establish that there was animosity between Hunter and the defendant's sister.

Thus, the record supports the trial court's finding that trial counsel's decision to not call Hunter as a defense witness was a reasonable strategic decision, see Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000) (holding that strategic decisions do not constitute ineffective assistance of counsel). The record also fails to demonstrate prejudice because the defendant has not shown that Hunter was available to testify at trial, see Melton v. State, 949 So.2d 994, 1003 (Fla. 2006) ("If a witness would not have been available to testify at trial, then the defendant will not be able to establish deficient performance or prejudice from counsel's failure to call, interview, or investigate that witness.") (quoting Nelson v. State, 875 So.2d 579, 583 (Fla. 2004) (footnote omitted) ).

Lastly, we note that the jury was made aware of the bad blood between Hunter and the defendant's sister through the testimony of other witnesses. Thus, if Hunter would have admitted to bias against the defendant or his family, her testimony on that issue would merely have been cumulative. However, had Hunter testified, she also would have provided a key link between the stolen cell phone and the defendant, testimony that only she could have provided. At best, Hunter's testimony would have been a double-edged sword or, at worst, it may have served as a dagger to the heart.

III. Failure to present an alibi defense

The defendant asserts that he had told his trial counsel that he was at home at the time the robbery was committed and that his mother and sister would provide him with an alibi to that effect. The defendant's trial counsel, however, disputed that claim at the evidentiary hearing and testified that the first time he had heard that the defendant had a possible alibi or that he wanted to present an alibi defense was when the defendant filed his motion for postconviction relief, approximately two years after the trial. The trial court found defense counsel's testimony credible, noting defense counsel's diligent efforts representing the defendant in several other cases in which he was able to obtain acquittals. Evaluating the credibility of witnesses lies within the sound discretion of the trial court, and because the trial court's finding is supported by competent substantial evidence, we affirm that finding. See Gonzalez v. State, 990 So.2d 1017, 1024 (Fla. 2008).

The record also reflects that neither the defendant's mother nor his sister could have provided the alibi defense hoped for by the defendant. The defendant's mother worked nights (the robbery was at 11:00 p.m.) and the defendant's sister, who was sixteen at the time of the robbery, testified that she was in bed by 9:00 p.m. each night. Although the defendant's mother and sister testified that the defendant would be home by 10:00 or 10:30 on school nights, neither could unequivocally say the defendant was home by 10:00 or 10:30 on the night of the robbery.

IV. Failure to "investigate the crime scene"

This claim is based on trial counsel's failure to investigate the area where the robbery was committed to determine whether there were any witnesses to the robbery. The trial court summarily denied this claim as the defendant failed to identify the existence of a potential witness, that the witness had anything relevant to say, and that the witness was available for trial. Because the defendant has not demonstrated prejudice, we affirm. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010) (holding that, to set forth a facially sufficient claim of ineffective assistance of counsel based on counsel's failure to call a witness, the defendant must provide the identity of the potential witness, the substance of the witness's testimony, and demonstrate prejudice based on the omitted testimony); see also Jones v. McNeil, 776 F.Supp.2d 1323, 1353 (S.D. Fla. 2011) ("Speculation about what witnesses could have said is not enough to establish prejudice.").

V. Failure to request certain permissive lesser-included offenses

The defendant contends that the failure to request that the jury be instructed on attempted robbery, grand theft, and robbery by sudden snatching, as permissive lesser-included offenses of armed robbery, constitutes ineffective assistance of counsel. We attach no merit to this argument. See Colletti v. State, 74 So.3d 497, 499 (Fla. 2d DCA 2011) (holding that to convict the accused of grand theft, the State must prove that the value of the property stolen met the grand theft threshold); Clark v. State, 43 So.3d 814, 817 n.5 (Fla. 1st DCA 2010) ("Instructions on attempt are not to be given where 'the only evidence proves a completed offense.' ") (citing Fla. R. Crim P. 3.150(a) ). In the instant case, there was no evidence from which the jury could have found the defendant guilty of attempted armed robbery because the act was completed and there was no testimony offered as to the value of the cell phone. Thus, counsel did not provide ineffective assistance of counsel for failing to request that the jury be instructed on attempted robbery and/or grand theft, category two permissive lesser-included offenses of armed robbery.

As for the category two permissive lesser-included offense of robbery by sudden snatching, although the evidence may have supported such an instruction, the defendant has failed to demonstrate prejudice under Strickland. The crime of robbery by sudden snatching does not require evidence of any force beyond the effort necessary to obtain possession of the property, see § 812.131(1)(a), Fla. Stat. (2010), or that the victim offered any resistance, see § 812.131(1)(b). Robbery, on the other hand, requires that either force, violence, assault, or putting the victim in fear be used during the course of the taking. See § 812.13(1).

Because the jury concluded that the State proved the additional robbery requirements beyond a reasonable doubt and the defendant has specifically denied that his argument is based on the possibility of a jury pardon, we conclude that no prejudice has been demonstrated. We, therefore, find that defense counsel did not provide ineffective assistance of counsel by not requesting that the jury be instructed on the permissive lesser-included offenses of grand theft, attempted robbery, and robbery by sudden snatching.

CONCLUSION

In conclusion, we find no error and affirm the order denying the defendant's motion for postconviction relief.

Affirmed.

LUCK, J., concurs in result only.

      The defendant had also alleged that trial counsel was ineffective for failing to object to the trial court's written response to the jury's question, rather than bringing the jury back into the courtroom to answer its question. The defendant has not specifically addressed this ground on appeal and because we conclude that this claim is without merit, we too decline to specifically address it here.


author: SCALES, J.

text:
    LINCOLN ENTERPRISE, LLC, etc., Appellant, v. Herbert Z. BOOKSTEIN, Appellee.
    No. 3D18-18
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Shevlin & Atkins, and Andrew S. Atkins, for appellant.
    Berger Singerman LLP, and Mitchell W. Berger and Jeffrey S. Wertman (Fort Lauderdale), for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   SCALES, J.

Appellant Lincoln Enterprise, LLC, the tenant, seeks appellate review of a non-final order that lifted a previously entered stay on eviction proceedings against it. We lack jurisdiction to review the trial court's non-final order and dismiss the appeal.

In July of 2017, Lincoln Enterprise filed a declaratory judgment action seeking court intervention to resolve the parties' dispute over the calculation of annual rent under the parties' lease agreement.

Approximately two weeks after Lincoln Enterprise filed its declaratory judgment action, appellee Herbert Z. Bookstein, the landlord, filed a separate complaint against Lincoln Enterprise for summary eviction and damages. In this eviction action, Bookstein alleges that Lincoln Enterprise is in default under the lease for failure to pay an increased sum of rent. In the eviction action, Lincoln Enterprise filed an answer and affirmative defenses, in which it raises many of the same issues that form the basis of its declaratory judgment action. In the eviction case, Bookstein filed a motion pursuant to section 83.232 of the Florida Statutes to have the court set an evidentiary hearing to determine the amount of rent Lincoln Enterprise should pay into the registry of the court while the dispute is pending. The trial court set a December 8, 2017 hearing date for Bookstein's section 83.232 motion.

Based on the parties' stipulation, the trial court, in October of 2017, consolidated the two cases under the earlier filed declaratory judgment action's case number (2017-017875-CA-09). In its consolidation order, the trial court determined that "the two cases are interrelated and a just, fair and complete resolution of the issues raised in both cases can be accomplished more efficiently and expeditiously by consolidating the cases."

On November 22, 2017, the trial court stayed the eviction proceedings for thirty days and cancelled the December 8, 2017 hearing. A week later, on November 29, 2017, the trial court entered the order on appeal that lifted the previously entered stay and re-set the December 8th hearing on Bookstein's section 83.232 motion. Bookstein has moved to dismiss Lincoln Enterprise's appeal on both jurisdictional and mootness grounds.

In Lincoln Enterprise's response to Bookstein's motion to dismiss the appeal, Lincoln Enterprise states, "the subject matter on appeal is the lower court's error in not staying the Landlord's later filed Eviction Action, pending the disposition of the Tenant's Declaratory Judgment Action because the two cases involve the same parties and the same subject matter."

Irrespective of how Lincoln Enterprise characterizes "the subject matter on appeal," it is axiomatic that this Court's appellate jurisdiction is limited to review of those non-final orders specifically scheduled in Florida Rule of Appellate Procedure

9.130(a)(3). Consequently, we lack subject matter jurisdiction to review the trial court's November 29, 2017 non-final order and dismiss the appeal.

Appeal dismissed.

      For reasons not entirely clear from the record, Bookstein re-set the December 8th hearing to January 26, 2018. We denied Lincoln Enterprise's motion to stay this hearing.

      In opposition to Bookstein's dismissal motion, Lincoln Enterprise cites the certiorari case of REWJB Gas Invs. v. Land O'Sun Realty, Ltd., 645 So.2d 1055 (Fla. 4th DCA 1994). In REWJB, our sister court, citing concerns over "a risk of conflicting decisions," quashed a trial court's order refusing to stay eviction proceedings because related declaratory judgment actions were pending "in various other Florida courts in which the same legal question has been raised by the same parties on the same facts." Id. at 1056. The concern in REWJB-that "another court has already exercised jurisdiction over the parties and issues in the action sought to be stayed" Id. at 1057 -simply does not exist here. Indeed, by consolidating the eviction and declaratory judgment actions, the trial court has eliminated any risk of conflicting decisions, and has ensured that only one court will adjudicate the parties' principal dispute.


author: Per Curiam.

text:
    Raymond STAINES, as Personal Representative of the Estate of Nora Staines, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Philip Morris USA Inc., Lorillard Tobacco Company, and Lorillard, Inc., Appellees.
    No. 1D16-2655
    District Court of Appeal of Florida, First District.
    February 8, 2018 Rehearing Denied April 3, 2018
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, for Appellant.
    Geoffrey J. Michael and Daphne O'Connor of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Appellee Philip Morris USA Inc.; Charles R.A. Morse of Jones Day, New York, for Appellee R.J. Reynolds Tobacco Company.
   Per Curiam.

This is a companion case to In re 73 Engle-Related Cases , 1D-16-2651, 239 So.3d 166, 2018 WL 771176 (Fla. 1st DCA 2018), involving an Engle , personal injury lawsuit filed on behalf of Ms. Nora Staines, who was already deceased when her case was filed. Unbeknownst to her attorneys, Ms. Staines died a couple of months prior to her complaint being filed. Then eight years later, sometime after her attorneys discovered that she had died and the tobacco company defendants had moved to dismiss, counsel sought leave to amend the complaint, substitute Mr. Raymond Staines (the personal representative of Ms. Staines' estate) as the plaintiff, and convert the case into a survival or wrongful death action. The trial court denied plaintiff's motion and dismissed the case with prejudice, along with seventy-three other Engle actions filed on behalf of dead persons that are described in In re 73 Engle-Related Cases . Mr. Staines then appealed on behalf of Ms. Staines' estate.

We affirm for the same basic reasons detailed in our opinion in In re 73 Engle-Related Cases . Shortly stated, we find no legal error in the trial court's decision to dismiss the lawsuit filed by counsel on behalf of Ms. Staines because "deceased persons cannot be parties to a judicial or quasi-judicial proceeding." Xtra Super Food Ctr. v. Carmona , 516 So.2d 300, 301 (Fla. 1st DCA 1987). Plaintiff's counsel had no authority after Ms. Staines' death to file and maintain a personal injury case in her name. Rogers v. Concrete Scis., Inc. , 394 So.2d 212, 213 (Fla. 1st DCA 1981) (noting that "[t]he death of [the] client terminates the relationship between the attorney and client and the attorney's authority to act by virtue thereof is extinguished"). BEC Constr. Corp. v. Gonzalez , 383 So.2d 1093, 1094 (Fla. 1st DCA 1980) (same). And thus, the complaint filed in this case did not confer jurisdiction on the trial court, nor does it provide a basis upon which an amended complaint can now relate back. See BEC Constr. , 383 So.2d at 1094 ("No proper claim ever having been filed, ...

[the court] had no jurisdiction."); DeArmas v. Blonstein , 356 So.2d 1339, 1340 (Fla. 3d DCA 1978) (affirming the dismissal of a personal injury claim where the plaintiff died before the lawsuit was filed).

As in In re 73 Engle-Related Cases , we also affirm because the trial court committed no error in denying the 2016 motion to amend the complaint. The record indicates that plaintiff's counsel delayed informing the court of Ms. Staines' October 2007 death by not moving to amend the complaint and correct its allegations until 2016, more than eight years after the case was first filed. Under these circumstances, we cannot conclude that the trial court abused its discretion by denying the motion. See In re Engle Cases , 767 F.3d 1082, 1119-20 (11th Cir. 2014) (finding no right to amend because of "years of unjustifiable delay and obfuscation").

AFFIRMED.

Roberts, Osterhaus, and M.K. Thomas, JJ., concur.

      We additionally reject Mr. Staines' argument based on Sams v. GA W. Gate, LLC , No. CV415-282, 2016 WL 3339764 (S.D. Ga. June 10, 2016), that the inclusion of two living, unrelated parties with unrelated claims in the initial complaint gave the court jurisdiction over Ms. Staines' claims. Engle -progeny claims are "highly individualized" and were explicitly required by the Florida Supreme Court to be filed as "individual actions." Engle v. Liggett Grp., Inc. , 945 So.2d 1246, 1254, 1270 n.12 (Fla. 2006). The insertion of random, unrelated parties into the deceased named plaintiff's lawsuit here did not impart life to her highly individualized claim.


author: Osterhaus, J.

text:
    IN RE 73 ENGLE-RELATED CASES.
    No. 1D16-2651
    District Court of Appeal of Florida, First District.
    February 8, 2018 Rehearing Denied April 3, 2018
    Norwood S. Wilner and Richard J. Lantinberg of The Wilner Firm, Jacksonville; Charles Farah and Eddie Farah of Farah & Farah, P.A., Jacksonville; and Michael Jaffe of Wolf Haldenstein Adler Freeman & Herz LLP, New York, for Appellants.
    Geoffrey J. Michael and Daphne O'Connor of Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Appellee Philip Morris USA Inc.; Charles R.A. Morse of Jones Day, New York, for Appellee R.J. Reynolds Tobacco Company.
   Osterhaus, J.

Plaintiffs' counsel in this case filed seventy-three Engle , personal injury lawsuits on behalf of dead persons just before the statute of limitations expired in January 2008. Most of the named plaintiffs had been dead for many years, some for only months, but none were alive when counsel filed lawsuits in their names. Once the defendant tobacco companies discovered in 2015 that the plaintiffs had been dead from the start of the cases, they moved to dismiss them. This came on the heels of a federal district court decision dismissing hundreds of similar Engle cases brought by plaintiffs' counsel on behalf of dead persons in federal court. Similarly, here, the trial court dismissed the cases and in doing so denied plaintiffs' counsel's request for leave to amend the complaints and substitute new party plaintiffs into the actions. Plaintiffs' counsel appealed these decisions. We affirm.

I.

Almost ten years ago in Engle , the Florida Supreme Court decertified a class action lawsuit against tobacco companies and required class members to file individual lawsuits within one year in order to receive the benefit of certain Engle findings. Engle v. Liggett Grp., Inc. , 945 So.2d 1246, 1254 (Fla. 2006). The statute of limitations established by the court expired in January 2008. Before that date, attorneys from The Wilner Firm and Farah & Farah, P.A., (hereinafter "plaintiffs' counsel") filed many Engle -derivative lawsuits. These included the seventy-three lawsuits at issue in this case, which were filed in the Circuit Court for Duval County on behalf of persons who were already deceased. These complaints falsely alleged that the plaintiffs were living smokers whose personal injuries were "permanent and continuing, and ... [would] be suffered into the future." The pleadings didn't acknowledge that the named plaintiffs were already dead, nor did they allege alternative wrongful death or survival claims. Apparently, plaintiffs' counsel wasn't aware that their clients were already dead.

Because huge numbers of Engle cases were filed in the trial court before the Engle deadline, the court abated many of them. Nothing much occurred in the seventy-three cases at issue here for many years. But in 2015, after a federal court in Jacksonville dismissed hundreds of Engle cases after discovering that they were filed by plaintiffs' counsel on behalf of dead persons in federal court (and was subsequently affirmed by the Eleventh Circuit), In re Engle Cases , No. 3:09-cv-10000-J-32JBT, 2013 WL 8115442 (M.D. Fla. Jan. 22, 2013), aff'd , 767 F.3d 1082 (11th Cir. 2014), the trial court below issued a questionnaire designed to identify whether plaintiffs' counsel had filed viable Engle actions. Answers submitted to the questionnaires indicated that seventy-three of the cases filed by plaintiffs' counsel weren't viable. Just as in the federal actions, plaintiffs' counsel had filed lawsuits on behalf of persons who were already dead. Most of these "plaintiffs" had been dead for more than a decade, since as far back as 1986. Months passed after plaintiffs' counsel answered the court's questionnaire, during which plaintiffs' counsel did not seek to replead the cases or correct their allegations. In November 2015, the defendants moved to dismiss the cases. In their motion, the defendants argued that the personal injury actions filed in the name of dead individuals were void and legal nullities "that confer[red] no jurisdiction on any court and cannot be 'cured'-especially long after the expiration of the applicable limitations period-by motions to substitute or amend." Plaintiffs' counsel responded to the motion in January 2016 by seeking leave to amend the pleadings to substitute the survivors and estates related to the named plaintiffs, "if any," and to convert the cases to wrongful death actions. But the trial court denied plaintiffs' counsel's request and dismissed the cases with prejudice. Like the federal district court, the trial court considered the plaintiff-less complaints to be legal nullities and providing no basis for new pleadings to "relate back" for purposes of satisfying Engle 's 2008 filing deadline. It also concluded that allowing more time for plaintiffs' counsel to seek out valid plaintiffs and amend the complaints now, some eight years after they were first filed, would be unfairly prejudicial to the defendants.

II.

We review the trial court's decision to dismiss the complaints de novo, see Capone v. Philip Morris USA, Inc. , 116 So.3d 363, 373 (Fla. 2013), and its denial of plaintiffs' counsel's request to amend the seventy-three complaints for abuse of discretion. Intego Software, LLC v. Concept Dev., Inc. , 198 So.3d 887, 892 (Fla. 1st DCA 2016).

We find no error in the trial court's decision to dismiss the personal injury lawsuits filed by plaintiffs' counsel on behalf of dead plaintiffs. The lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit. It is a basic legal truth that "unless an in rem proceeding is before the court, a cause of action must be conducted by or opposed by a 'person' recognized under the laws of this state." Cocoa Acad. for Aerospace Tech. v. Sch. Bd. of Brevard Cty., Fla. , 706 So.2d 397, 398 (Fla. 5th DCA 1998). Dead persons aren't qualified to conduct a suit. Xtra Super Food Ctr. v. Carmona , 516 So.2d 300, 301 (Fla. 1st DCA 1987) ("[D]eceased persons cannot be parties to a judicial or quasi-judicial proceeding."); see also In re Engle Cases , 767 F.3d 1082, 1086-87 (11th Cir. 2014) ("As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim."); DeArmas v. Blonstein , 356 So.2d 1339, 1340 (Fla. 3d DCA 1978) (affirming the dismissal of a personal injury claim where the plaintiff died before the lawsuit was filed).

Corresponding to this legal rule, plaintiffs' counsel had no authority to file and maintain these cases on behalf of the dead plaintiffs. "The death of [the] client terminates the relationship between the attorney and client and the attorney's authority to act by virtue thereof is extinguished." Rogers v. Concrete Scis., Inc. , 394 So.2d 212, 213 (Fla. 1st DCA 1981) ; BEC Constr. Corp. v. Gonzalez , 383 So.2d 1093, 1094 (Fla. 1st DCA 1980) (same); see also Schaeffler v. Deych , 38 So.3d 796, 801 (Fla. 4th DCA 2010) ("The death of a party limits the authority of counsel to proceed in the underlying action."); Brickell v. McCaskill , 90 Fla. 441, 106 So. 470, 472 (1925) (recognizing that the attorney-client relationship "terminated at [the client's] death"). Thus, the complaints filed by plaintiffs' counsel in these cases failed to confer jurisdiction on the trial court and were legal nullities from the start. BEC Constr. , 383 So.2d at 1094 ("No proper claim ever having been filed, ... [the court] had no jurisdiction.").

It would be a different case if plaintiffs' counsel, instead of naming dead persons as plaintiffs to personal injury actions, had merely misnamed personal representatives within a wrongful death complaint. That's what happened in Estate of Eisen v. Philip Morris USA, Inc. , 126 So.3d 323 (Fla. 3d DCA 2013). The Third District in Eisen allowed amendment of a wrongful death complaint that named an invalid personal representative of an estate as the plaintiff. Id. at 336. Eisen concluded that the estate "remained at all times the real party in interest," and that the personal representative was simply a "nominal plaintiff[ ]." Id. at 329-30. The court permitted the substitution of a proper nominal plaintiff in place of a nominal plaintiff who lacked a proper capacity to sue. Id. at 336 ; accord Esposito v. United States , 368 F.3d 1271 (10th Cir. 2004) (allowing amendment where the complaint erroneously named the decedent, instead of his heirs, in the caption of a wrongful death action). In contrast, the seventy-three cases here do not involve misidentifying or replacing nominal plaintiffs, or other simple party-identification errors within a wrongful death complaint. Indeed, the complaints here featured no estates, survivors, personal representatives, or other nominal plaintiffs. Rather, the complaints stated personal injury claims supposedly filed by the living plaintiffs themselves and claiming ongoing harms at the hands of the tobacco company defendants. Eisen 's approval of amending wrongful death complaints in certain situations doesn't control the outcome here.

A different outcome below might also have been required if the plaintiffs had died after the complaints were filed. See Caponev. Philip Morris USA, Inc. , 116 So.3d 363 (Fla. 2013) ; Roden v. R.J. Reynolds Tobacco Co. , 145 So.3d 183 (Fla. 4th DCA 2014). In Capone , the original plaintiff filed a personal injury action in 2005, but then died in 2006. 116 So.3d at 365. The original plaintiff's personal representative moved to amend the complaint, substitute herself as party plaintiff, and convert the action into a wrongful death claim. The trial and appeals courts did not permit the substitution and conversion of the case. But the Florida Supreme Court held that the personal representative could substitute herself as a party to the case and convert it into a wrongful death action. Id. at 377. The opinion said:

[U]pon 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 ; accord Roden , 145 So.3d at 185 (allowing a personal representative a reasonable opportunity to amend complaint to add a wrongful death claim when the original plaintiff died after filing the lawsuit). We recognize that when personal injury plaintiffs die, the personal representatives of their estates should receive "a reasonable opportunity to amend the complaint to state the damages sought under a wrongful death claim." 116 So.3d at 377. The rules of civil procedure reflect this same policy presumption. See Torrey v. Leesburg Reg'l Med. Ctr. , 769 So.2d 1040, 1045-46 (Fla. 2000) (recognizing Florida's "liberal rules regarding the amendment of pleadings" and long-standing policy of allowing "cases to be decided on the merits whenever possible"). Florida Rule of Civil Procedure 1.190(a) allows "a party" to amend a pleading upon leave of court and Florida Rule of Civil Procedure 1.260(a)(1) allows courts to order substitution of parties if "a party dies and the claim is not thereby extinguished." Further, "[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any ... pleading ... to be amended." Fla. R. Civ. P. 1.190(e). The rules also provide for amended pleading to relate back to the date of the original pleading for statute of limitations purposes "[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fla. R. Civ. P. 1.190(c).

But this case differs from Capone and Roden because no valid, living plaintiffs were ever parties to the actions here. Underlying Florida's preference for deciding "cases" on the merits whenever possible is the existence of a valid case. Here, the cases weren't ever valid. Plaintiffs' counsel filed unconfirmed claims in 2007 and 2008 on behalf of dead persons, then waited eight years to backfill the case with legitimate plaintiffs and claims for the very first time. Florida's preference for deciding cases on the merits says nothing of requiring courts to perpetuate hollow, uninvestigated lawsuits filed by counsel on behalf of dead people. The trial court wasn't required to grant leave to amend complaints under these circumstances where the trial court lacked jurisdiction from the start. See BEC Constr. , 383 So.2d at 1094.

Nor does justice demand a different result. See Fla. R. Civ. P. 1.190(e). Before filing suit, plaintiffs' counsel had ethical obligations to confirm the allegations it made and to receive authorization from clients to file the cases. The Florida Supreme Court gave plaintiffs' counsel the same time and opportunity as other counsel to investigate their clients' claims, to find survivors if necessary, and to join relevant estates and personal representatives to lawsuits as needed during the year allotted to file Engle -progeny lawsuits. But plaintiffs' counsel didn't verify their claims before filing them. Instead, they alleged patently false things, such as that the plaintiffs' injuries and losses were "continuing [and would] be suffered into the future." Then, once the cases were filed, they let the cases sit on the court's docket for almost eight years, still without checking with their "clients" or their estates to verify the allegations and amend them if necessary. Plaintiffs' counsel ultimately left it to the court to flush out the truth about their supposed clients and their non-viable claims. And even then, once plaintiffs' counsel had disclosed to the court that the "plaintiffs" had been dead since before the case was filed, plaintiffs' counsel did not proactively correct their allegations. They waited instead for the defendants to seek dismissal. Under these circumstances, it is easy to conclude that allowing plaintiffs' counsel to amend their pleadings would be an abuse of the privilege to amend and prejudicial to the defendants. See Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank , 592 So.2d 302, 305 (Fla. 1st DCA 1991) (describing circumstances where the privilege to amend should be denied). State legal policy didn't require the court to breathe first-life into these cases in 2016. And dismissal under these circumstances actually "further[ed] justice." Fla. R. Civ. P. 1.190(e). We therefore cannot conclude that the trial court abused its discretion by dismissing these never-valid complaints with prejudice some eight years after the expiration of the statute of limitations.

III.

For these reasons, we find no error in the court's decision dismissing the seventy-three personal injury cases filed by plaintiffs' counsel on behalf of deceased plaintiffs and denying leave for plaintiffs' counsel to amend the complaints and substitute new party plaintiffs.

AFFIRMED .

Roberts and M.K. Thomas, JJ., concur.

      There isn't record evidence here of survivors, estates, or personal representatives coming forward to plaintiffs' counsel to disclose the deaths of party plaintiffs, or to press the lawsuits forward themselves.

      Four federal district judges recently signed a 148-page order penalizing plaintiffs' counsel for similar Engle litigation conduct to the tune of a $9 million sanction. See In re Engle Cases , 3:09-cv-10000-J-WGY-JBT, 283 F.Supp.3d 1174, 1183-84, 2017 WL 4675652, at *2 (M.D. Fla. Oct. 18, 2017) (sanctioning counsel "to account for the immense waste of judicial resources and contempt shown for the judicial process occasioned by maintaining over a thousand non-viable claims").


author: ORFINGER, J.

text:
    Phillip BROWNE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3791
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018 Rehearing and Rehearing En Banc Denied April 5, 2018
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Phillip Browne appeals his conviction and sentence for robbery with a weapon. He argues that the trial court erred by denying his motion for judgment of acquittal because he did not use a weapon during the robbery. We agree and reverse in part.

The victim was standing by his car in a parking lot when a car driven by Browne approached and waved him over. When the victim came near the driver's window, Browne pointed what appeared to be a double-barreled shotgun at the victim and ordered him to hand over his wallet. The victim complied and Browne drove away, resulting in a police chase and Browne's arrest. When the police searched the car, they found the double-barrel of a shotgun that had been detached from the receiver, stock, and firing mechanism. Browne later admitted he robbed the victim, but claimed he had not used a real gun.

The State charged Browne with robbery with a weapon in violation of section 812.13(2)(b), Florida Statutes (2015). At trial, Browne moved for judgment of acquittal, arguing that the State failed to prove the object used in the robbery was a weapon as defined by section 790.001(13), Florida Statutes (2015). The State disagreed, arguing that the standard jury instruction on robbery, which defines a "weapon" as "any object that could be used to cause death or inflict serious bodily harm," was controlling and that, because the shotgun barrel could have been used as a club, that element of the crime was satisfied. The trial court denied the motion and the jury found Browne guilty of robbery with a specific finding that he carried a weapon during the course of the robbery. Browne renewed his motion for judgment of acquittal after trial but before sentencing, and the court denied it again. This appeal follows.

Appellate courts review de novo orders on motions for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). A conviction must be supported by competent, substantial evidence. Id.; see Dale v. State, 703 So.2d 1045, 1047 (Fla. 1997) (holding that question of whether BB gun can be deadly weapon is question of law, but question of whether BB gun was used in way "likely to produce death or great bodily injury" is question of fact for jury); Brown v. State, 86 So.3d 569, 572 (Fla. 5th DCA 2012) (holding courts may "reverse convictions [of aggravated battery] when the State fails to present competent substantial evidence that the object used is a deadly weapon").

Section 812.13(2) prohibits three types of robbery: simple robbery, robbery with a weapon, and robbery with a deadly weapon. Robbery with a weapon is a first-degree felony under section 812.13(2)(b). However, robbery with a firearm or a "deadly weapon" is a first-degree felony punishable by life in prison under section 812.13(2)(a). The robbery statute does not define "weapon" or "deadly weapon." See Mitchell v. State, 698 So.2d 555, 559 (Fla. 2d DCA 1997). Consequently, Florida courts apply the definition of "weapon" found in section 790.001(13) to violations of the robbery statute. Stanley v. State, 757 So.2d 1275, 1276 (Fla. 4th DCA 2000). Section 790.001(13) defines a "weapon" as "any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife." (Emphasis added). Florida Standard Jury Instruction Criminal 15.1-the instruction applicable to robbery-defines a "weapon" as "any object that could be used to cause death or inflict serious bodily harm." More importantly, the jury instruction defines a "deadly weapon" as an object "used or threatened to be used in a way likely to produce death or great bodily harm." Id.

When, as here, a defendant is charged with robbery with a weapon, the state must prove either that the object was one of the enumerated weapons in section 790.001(13) or that it was a "deadly weapon." When the object used is not one of the enumerated objects in the definition of "weapon" found in section 790.001(13), we apply an objective test focusing on the nature and actual use of the object, not on the subjective belief of the victim or intent of the defendant, to determine whether it constituted a "weapon." Hamilton v. State, 71 So.3d 247, 248 (Fla. 4th DCA 2011) ; Tribbitt v. State, 984 So.2d 624, 625-26 (Fla. 2d DCA 2008) ; Blanco v. State, 679 So.2d 792, 793-94 (Fla. 3d DCA 1996). In other words, the state must prove that, in the way it was used, the instrument was likely to cause death or great bodily harm. Blanco, 679 So.2d at 794. Needless to say, the shotgun barrel used by Browne was not any of the specifically delineated weapons found in section 790.001(13). So, the issue is whether the State proved that the barrel was a deadly weapon based on how it was used. We conclude it did not.

"[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1150 (Fla. 2000) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ). Moreover, courts cannot construe an unambiguous statute to "extend, modify, or limit, its express terms or its reasonable and obvious implications." Id. at 1151 (quoting Holly, 450 So.2d at 219 ). This would be "an abrogation of legislative power." Id. Thus, the statutory definitions guide us.

A deadly weapon has been defined in the case law and standard jury instruction on robbery in two ways. First, as an object "used or threatened to be used in a way likely to produce death or great bodily harm." Fla. Std. Jury Instruct. (Crim.) 15.1; accord Holley v. State, 877 So.2d 893, 896 (Fla. 1st DCA 2004) (defining "other deadly weapon" as "object which is used ... in such a way that it would be likely to cause death or great bodily harm"); Stanley, 757 So.2d at 1277 (holding that inoperable gun was not weapon because it "was not used in a manner which would or could cause death or serious bodily injury, such as using it as a club"). Or, as an object likely to cause death or great bodily harm "when used in the ordinary and usual manner contemplated by its design and construction." Holley, 877 So.2d at 896 (quoting Robinson v. State, 547 So.2d 321, 323 (Fla. 5th DCA 1989) ).

Here, the shotgun barrel that Browne used was detached from the stock and firing mechanism of the shotgun, making it impossible to use as a gun. He pointed the barrel at the victim, but did not swing it or otherwise use it as a club or bludgeon. There was no evidence that the "ordinary and usual" use of the shotgun barrel itself is to cause death or great bodily harm. See id. Nor was there any evidence that Browne actually used the shotgun barrel to strike the victim, and the way Browne did use it was not likely to produce death or great bodily harm. See Hamilton, 71 So.3d at 248 (holding that toy gun was not "weapon" under standard jury instruction 15.1 because there was no evidence defendant used it to strike victim); Gaines v. State, 869 So.2d 603, 604 (Fla. 1st DCA 2004) (holding that drill covered in bandana was not "weapon" because there was no evidence defendant threatened to shoot or harm victim with it); Stanley, 757 So.2d at 1275 (holding that gun without firing pin was not "weapon" under standard jury instruction because state had not proved it could cause serious injury or death and it was not "used in a manner which would or could cause death or serious bodily injury").

As a result, we conclude the trial court erred in denying Browne's motion for judgment of acquittal because the State failed to present competent, substantial evidence that Browne actually used the barrel in a way that was likely to cause death or great bodily harm. For these reasons, we reverse Browne's judgment and sentence for robbery with a weapon and remand for the trial court to enter a judgment and resentence Browne on the lesser included offense of simple robbery under section 812.13(c). We affirm his judgment and sentence for fleeing or eluding at high speed.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and TORPY, JJ. concur.

      Browne was also convicted of fleeing or eluding at high speed but does not challenge that conviction or sentence on appeal.

      Oddly, the definition of weapon itself includes a "deadly weapon," but the statute does not define a "deadly weapon."

      In Dale v. State, 703 So.2d 1045, 1046 (Fla. 1997), the supreme court stated that "[a]lthough section 812.13 fails to define the terms 'firearm' and 'weapon,' the definitions for these terms contained in the Florida Standard Jury Instructions are a correct statement of the law." While Dale may cast doubt on the use of chapter 790 to define a "weapon" under section 812.13(2), we conclude that under either definition, Browne's conviction must be reduced because the State failed to prove the shotgun barrel could cause serious injury or death in the way it was used.

      Our holding renders moot Browne's second issue on appeal, the denial of his request for a special jury instruction that would have defined "weapon" similarly to the definition of "deadly weapon" under standard instruction 15.1.


author: Wetherell, J.

text:
    Marilyn Roseanne HUNT, Petitioner, v. James LIGHTFOOT, Respondent.
    No. 1D17-3938
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Dennis P. Dore and Nikki E. Hawkins of Quintairos, Prieto, Wood & Boyer, P.A., Jacksonville, for Petitioner.
    Bryan S. Gowdy and Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville; Joseph V. Camerlengo of Camerlengo & Anderson, P.L., Jacksonville, for Respondent.
   Wetherell, J.

Marilyn Roseanne Hunt, the defendant below, petitions for a writ of certiorari to review an order compelling production of a surveillance video of Respondent that Hunt does not intend to use at trial. We grant the petition and quash the order for the reasons that follow.

I

Respondent, the plaintiff below, served discovery requests on Hunt for copies of "all videos, photographs, reports, invoices, documents and any other item(s) and/or documents pertaining to any and all surveillance performed o[n] Plaintiff." Hunt objected on grounds of attorney work product, but she agreed to produce copies of anything that she intended to use at trial in accordance with the court-mandated exhibit exchange.

The trial court held a hearing on the objection. At the hearing, Hunt's counsel told the trial court that (1) Respondent had been provided a copy of the 2014 surveillance video that Hunt intended to use at trial, and (2) additional surveillance was conducted in 2016 but Hunt did not intend to use video of that surveillance at trial. Respondent's counsel referred the trial court to Dodson v. Persell , 390 So.2d 704 (Fla. 1980), and argued that although Hunt was not required to disclose the contents of the surveillance that she did not intend to use at trial, she was required to disclose the existence of all surveillance.

The trial court overruled Hunt's objection and ordered her to provide the following information about the 2016 surveillance: "the person who took the film, when it was taken, and where it was taken."

After Hunt provided this information, Respondent filed a motion to compel production of the 2016 surveillance video. In direct contradiction to the position taken by his counsel at the hearing, Respondent argued in the motion to compel that the contents of all of the surveillance must be disclosed because Hunt intended to use a portion of the surveillance at trial. The trial court granted the motion without further hearing and ordered Hunt to produce the 2016 video.

Hunt timely filed a petition for writ certiorari in this court to review the trial court's order. We expedited consideration of the petition on Respondent's motion, and based on the impending trial date, we issued an unpublished order granting the petition and quashing the challenged order. We now issue this opinion explaining our ruling.

II

Certiorari relief is appropriate when an order departs from the essential requirements of the law and causes material injury to the petitioner that cannot be remedied on appeal. See Martin-Johnson v. Savage , 509 So.2d 1097, 1100 (Fla. 1987). Although "not every erroneous discovery order creates certiorari jurisdiction in an appellate court," id. (emphasis in original), it is appropriate for the appellate court to exercise its certiorari jurisdiction to review an order permitting discovery of material protected by the attorney work-product privilege because the resulting harm cannot be remedied on appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (explaining that "certain kinds of information 'may reasonably cause material injury of an irreparable nature,' " including "cat out of the bag" information such as that "protected by privilege, trade secrets, work product, or involving a confidential informant") (quoting Martin-Johnson, 509 So.2d at 1100 ).

It is well-established that surveillance videos and other materials prepared by a party's investigator in anticipation of or in connection with litigation are attorney work product. See Dodson , 390 So.2d at 707. It is also well-established that although the existence of the surveillance must be disclosed upon request whether or not it will be used at trial, the content of the surveillance is discoverable only if it will be used at trial. Id. ; see also Huet v. Tromp , 912 So.2d 336, 338 (Fla. 5th DCA 2005) (explaining that "a party may waive the work product privilege with respect to matters covered by an investigator's anticipated testimony when a party elects to present the investigator as a witness").

Here, it is undisputed that Hunt does not intend to use the 2016 surveillance video at trial. Thus, the content of the video is not discoverable absent a showing of extraordinary circumstances. See Huet , 912 So.2d at 340-41 (quoting Dodson , 390 So.2d at 707-08, and Florida Rule of Civil Procedure 1.280(b)(4)(B) ). Respondent made no such showing, nor did he even attempt to do so below. Accordingly, the trial court departed from the essential requirements of law in ordering production of the 2016 video.

We have not overlooked Respondent's argument that because Hunt intends to use the 2014 surveillance video at trial, the 2016 video must also be produced in discovery. However, under the circumstances of this case, we do not find this argument-or the federal cases on which it is based-persuasive because the videos at issue in this case do not depict a continuous period of surveillance such that principles of fairness and completeness require the production of the later video in conjunction with the earlier video. Rather, the videos involve entirely separate periods of surveillance that were two years apart and were conducted by different companies.

Moreover, taken to its logical end, Respondent's argument is tantamount to saying that all attorney work product on a particular subject is discoverable if any evidence on that subject is presented at trial. If that were correct, then if an attorney consulted with an expert on a particular issue in preparing for trial but elected to use a different expert on the issue at trial, then the opposing party would have right to discover the facts known to both experts. However, that proposition is inconsistent with the distinction in the Florida Rules of Civil Procedure between testifying experts and consulting experts, see Fla. R. Civ. P. 1.280(b)(5)(A)-(B), and it also finds no support in Dodson , wherein the Court emphasized that "one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures." 390 So.2d at 708.

That said, we recognize that in Northup v. Acken , 865 So.2d 1267 (Fla. 2004), the Court held that a defendant whose attorney had gathered depositions previously given by one of the plaintiff's experts in unrelated cases was required to produce all of the depositions in discovery where he intended to use certain unspecified portions of the depositions to impeach the witness at trial. However, Respondent's reliance on that case is misplaced because in Northup , the defendant refused to produce any of the depositions that he might use for impeachment whereas, in this case, Hunt produced the only video that he intends to use at trial. Thus, while Northup stands for the proposition that a party must disclose materials-including attorney work product-that the party may use at trial, id., at 1272, it does not require disclosure of attorney work product (such as the 2016 surveillance video in this case) that the party unequivocally does not intend to use at trial.

III

In sum, because the trial court departed from the essential requirements of law in ordering Hunt to produce the 2016 surveillance video that is protected by the attorney work-product privilege thereby causing material injury that cannot be remedied on appeal, we grant Hunt's petition for writ of certiorari and quash the order compelling production of the 2016 video and the financial information related to that video.

PETITION GRANTED; ORDER QUASHED .

Ray and M.K. Thomas, JJ., concur.

      Specifically, counsel for Respondent told the trial court:
      So what we're talking about is not the contents of surveillance, and that's the big difference here .... We want to know whether there is [surveillance], what there is [surveillance] of, and the dates. And that is all. We don't need to get into the observations or any of that.
      And that's where [Dodson ] becomes relevant, because it specifically held that the existence of surveillance and photographs is discoverable in every instance. The contents are only discoverable if the material will be used in evidence, but we don't want the contents. We want to know about the existence.
      And, in this case, especially where they plan on using some of it, it has definitely become relevant. ....
      THE COURT: I'm sorry. The one that they said they're not going to use-
      [RESPONDENT'S COUNSEL]: We still get to know about the existence. We don't get the contents of it, but certainly the existence of it.

      The order also required Hunt to disclose the amounts paid to the company that performed the 2016 surveillance, but Respondent represented in his response to the petition for writ of certiorari that he is no longer seeking this financial information.

      Respondent contends that he was only required to show that he "has a need of the materials in the preparation of his case" and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." But, even if that standard applied, Respondent failed to meet it because his claimed need for the 2016 video was to show that the 2014 video represented only a snapshot in time and that it did not necessarily represent his condition at other times not depicted on the video. This self-evident point can be made through cross-examination of the witness through which the 2014 video is offered and the testimony of Respondent or other witnesses who have first-hand knowledge of his condition at points not depicted in the video.

      See , e.g. , Hairston v. ED Nelson Transport , 2015 WL 12843869 (M.D. Fla. 2015) ; Roa v. Tetrick , 2014 WL 695961 (S.D. Ohio 2014) ; Papadakis v. CSX Transp., Inc. , 233 F.R.D. 227 (D Mass. 2006) ; Smith v. Diamond Offshore Drilling, Inc. , 168 F.R.D. 582 (S.D. Tex. 1996). All of the cases appear to involve a single, continuous period of surveillance, not multiple periods of surveillance as in this case. Indeed, the Hairston case on which Respondent most heavily relies for the proposition that all surveillance evidence must be produced even when only a portion will be used at trial distinguishes Angelucci v. Gov't Employees Ins. Co. , 2011 WL 4809146 (M.D. Fla. 2011), in which the court denied a motion to compel production of a 2011 surveillance video that the defendant did not intend to use at the retrial in the case even though a 2009 surveillance video had been produced and used at the initial trial. See Hairston , 2015 WL 12843869, at *2 (distinguishing Angelucci because "in that case there was a two-year gap and an intervening trial between the first and second surveillance"). This case is more like Angelucci than Hairston and the other federal cases cited by Respondent.


author: MORRIS, Judge.

text:
    Rose Marie WELLS, as Personal Representative of the Estate of John Scott Wells, Appellant/Cross-Appellee, v. Sandra WELLS, Appellee/Cross-Appellant.
    Case No. 2D17-721
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Jane H. Grossman, St. Petersburg, for Appellant/Cross-Appellee.
    Gregory T. Elliott of Elliott-Berger, P.A., Largo, for Appellee/Cross-Appellant.
   MORRIS, Judge.

Rose Marie Wells-as the personal representative (PR) of the estate of her deceased husband, John Scott Wells-appeals an order on her amended motion to enforce the final judgment of dissolution of marriage between her deceased husband and his former wife. The former wife cross-appeals. We reverse the order because the trial court erred in its interpretation of the marital settlement agreement that was incorporated into the final judgment of dissolution.

John Scott Wells, the former husband, and Sandra Wells, the former wife, divorced in 2001. The final judgment of dissolution incorporated a marital settlement agreement that contained a provision giving the former wife sole possession of a piece of marital property until the parties' daughter finished four years of college:

REAL PROPERTY: The parties own the home located at 306 22nd Avenue N.E., St. Petersburg, FL, a marital asset titled in the Wife's name. There is no mortgage on this property. The Wife shall have exclusive use and possession of the home through the daughter's minority and college years (4 years post high school). The Husband shall contribute 50% to taxes, insurance, and necessary repairs greater than $500. Upon sale of the home by the Wife, the Husband shall be entitled to 50% of the net proceeds.

The former husband died in 2014. After his death, the PR sought to enforce the final judgment of dissolution, claiming that the former wife was required to sell the property and give the former husband's estate fifty percent of the proceeds since the former wife and former husband's daughter had finished college. The former wife responded that the provision did not require her to sell the home. She also argued that the agreement was not enforceable because the former husband had breached the marital settlement agreement by failing to abide by its terms since 2007 and/or that the parties had abandoned the agreement.

After a hearing, the trial court denied the PR's motion in part, concluding that the agreement did not require the former wife to sell the property. The trial court stated the following:

Parties are free to contract as they choose. By the unambiguous and clear terms of the contract[,] the [former wife] was granted exclusive use and possession of the marital home while the child was in college. Thereafter, if the home was sold by [the former wife] , the [former husband] was entitled to half of the proceeds. To date, the home has not been sold by the [former wife]. There is no legal basis for the court to deem the express timing of the [the former wife's] contract to be illusory. The [c]ontract will be enforced pursuant to its plain language.

However, the trial court determined that when the former wife does sell the property, the former husband's estate has a remedy:

The [PR] shall be entitled to seek payment of the Final Judgment if the subject residence is sold by the [former wife] at a time when the [PR] still time [sic] to make such a claim. [The PR] is further granted as to the property that is the subject of this [m]otion in the amount equal to "fifty percent of the net proceeds" if [the former wife] ever sells the property.

On appeal, the PR argues that the provision clearly requires the sale of the property after the daughter has graduated college and that the trial court's interpretation of the provision is unreasonable because it ignores the obvious intent of the parties and essentially grants the former wife a life estate in the home.

This court reviews de novo the trial court's interpretation of the contract. See Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001). "A marital settlement agreement entered into and ratified by a trial court is subject to interpretation as a matter of law like any other contract." Hobus v. Crandall, 972 So.2d 867, 869 (Fla. 2d DCA 2007). "[T]he actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls." Ebanks v. Ebanks, 198 So.3d 712, 715 (Fla. 2d DCA 2016) (quoting Gibney v. Pillifant, 32 So.3d 784, 785 (Fla. 2d DCA 2010) ). However, courts "will not interpret a contract in such a way as to render provisions meaningless when there is a reasonable interpretation that does not do so." Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005).

This court's decision in Salyers v. Good, 443 So.2d 152, 153 (Fla. 2d DCA 1983), provides guidance in this case. In Salyers, the parties' settlement agreement, which was adopted into the dissolution judgment, provided that the husband "shall have the exclusive use and possession of the property ... until such time as the same is sold" and that "[u]pon the sale of the property, the [w]ife shall be entitled to" a certain amount from the proceeds. Id. This court recognized that "[w]here one spouse has been awarded possession of the marital home as an incident of the other spouse's obligation to support, the nonpossessing spouse cannot obtain partition until the other's right to possession has terminated." Id. (first citing Black v. Miller, 219 So.2d 106 (Fla. 3d DCA 1969) ; then citing Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947) ). The question was "whether the settlement agreement as incorporated into the dissolution judgment gave the husband a continuing right of possession for as long as he wished." Id.

This court interpreted the "settlement agreement as contemplating that following the dissolution[,] the parties would endeavor to sell the home at a mutually advantageous price and that during the interim the husband was entitled to possession." Id. at 153-54 (relying on Hoemke v. Hoemke, 342 So.2d 127 (Fla. 2d DCA 1977) ). The court did "not read the agreement as giving the husband the right to live in the home for the balance of his life by unilaterally refusing to sell." Id. at 154. But see Turner v. Turner, 599 So.2d 765, 766 (Fla. 5th DCA 1992) (holding that a similar provision was "unclear as to whether the parties intended for the wife to have temporary possession of the marital home until it is sold").

In this case, under the language of the parties' settlement agreement, the former wife was entitled to "exclusive use and possession of the home through the daughter's minority and college years (4 years post high school)." The provision also contemplates that the property will be sold. The provision is reasonably read to require the sale of the property after the daughter has completed college. As in Salyers, the provision should not be read as giving the former wife the right to live in the property indefinitely. To interpret the agreement as urged by the former wife would render meaningless the provision regarding the former wife's use and possession of the property during the daughter's minority and college years. The language "through the daughter's minority and college years (4 years post high school)" places a limitation on the former wife's exclusive use and possession of the home. In other words, the former wife's exclusive use and possession of the home terminates after "the daughter's minority and college years (4 years post high school)."

In conclusion, the trial court erred in its interpretation of the marital settlement agreement because the agreement requires, now that the daughter has graduated college, that the former wife sell the property "at a mutually advantageous price." Salyers, 443 So.2d at 153-54.

Having determined that the trial court erred on that issue, we must now address the former wife's arguments on cross-appeal. The former wife first argues that the trial court erred in determining that the PR is entitled to proceeds from the sale of the property because the former husband repudiated the agreement in 2007 by failing to make payments required under the agreement. She contends that she framed the issues of breach and rescission/abandonment and that she presented evidence to support such defenses. She points to her testimony that the former husband did not pay his obligations for the property as required by the marital settlement agreement.

At the conclusion of the hearing, the trial court did not make any findings regarding the former wife's claims of breach or rescission/abandonment. And in its order, the trial court did not make an explicit ruling on the issues of breach or rescission/abandonment. Because there is no explicit finding or determination on these issues, we remand for the trial court to consider them in the first instance. See Lynn v. Feldmeth, 849 So.2d 481, 483 (Fla. 2d DCA 2003) ("We leave it to the trial court to decide this issue on remand because to do otherwise would require us to rule on the [issue] in the first instance, which is contrary to our function as a reviewing court."); Akers v. City of Miami Beach, 745 So.2d 532, 532 (Fla. 3d DCA 1999) ("[T]his court should not ordinarily decide issues not ruled on by the trial court in the first instance.").

The former wife also argues on cross-appeal that the trial court erred in rendering a declaratory judgment or advisory opinion when it ruled that the PR would be entitled to proceeds in the future when the former wife sells the property. This issue is rendered moot by our reversal on the issue raised by the PR.

Reversed and remanded.

LaROSE, C.J., and SILBERMAN, J., Concur.


text:
    Ernest ARCHIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5348
    District Court of Appeal of Florida, First District.
    February 9, 2018 Rehearing Denied April 6, 2018
    Ernest Archie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    MOUNT VERNON FIRE INSURANCE COMPANY, Appellant, v. NEW MOON MANAGEMENT, INC., a/k/a New Moon Management Company, Appellee.
    No. 3D16-2243
    District Court of Appeal of Florida, Third District.
    Opinion filed February 14, 2018
    Fowler White Burnett, P.A., and Esther E. Galicia, for appellant.
    Garcia Law Firm, Trial Attorneys, and Nathalia A. Mellies, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

The defendant below, Mount Vernon Fire Insurance Company ("Mount Vernon"), appeals the denial of its amended motion for entitlement to attorney's fees and costs ("amended motion for entitlement") filed pursuant to section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.442, which was based on the trial court's finding that Mount Vernon's nominal proposal for settlement to its insured, New Moon Management, Inc., etc. ("New Moon"), was not made in good faith. Because we conclude that the trial court abused its discretion by finding that Mount Vernon's proposal for settlement was not made in good faith, see State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314, 315 (Fla. 3d DCA 2013) ("The abuse of discretion standard of review governs this Court's review of a trial court's determination that a proposal for settlement was not made in good faith."), we reverse the order under review and remand for the entry of an order granting Mount Vernon's amended motion for entitlement.

Mount Vernon issued a commercial property and general liability policy to New Moon. Following heavy rains in August 2008, New Moon filed a claim under the policy for water damage. Later that year, after obtaining a roof damage report from a structural engineer, Mount Vernon denied the claim based on exclusions and limitations in the insurance policy.

In August 2013, New Moon filed a complaint against Mount Vernon, asserting claims for breach of the insurance contract and bad faith. After nearly two years of extensive discovery, on July 2, 2015, Mount Vernon served a nominal proposal for settlement ($1,000) on New Moon pursuant to rule 1.442 and section 768.79.

Within a week of serving its proposal for settlement, Mount Vernon filed a motion for final summary judgment, asserting that the damage was not covered under the terms of the policy. Following a hearing, the trial court granted Mount Vernon's motion for summary judgment. Thereafter, the trial court entered final summary judgment in favor of Mount Vernon and denied New Moon's motion for rehearing and motion for relief from judgment.

Pursuant to rule 1.442 and section 768.79, Mount Vernon filed its amended motion for entitlement based on New Moon's failure to accept Mount Vernon's proposal for settlement. In response, New Moon argued that the nominal proposal for settlement was not made in good faith because Mount Vernon did not have a reasonable basis to offer the nominal amount.

At the hearing on the amended motion for entitlement, Mount Vernon argued that it submitted its proposal for settlement following extensive discovery and the taking of several depositions and, at the time it submitted its proposal for settlement, the record reflected that there were no issues of material fact and that Mount Vernon had a reasonable basis to conclude that it had "no exposure, let alone nominal exposure." The trial court reserved ruling. Thereafter, the trial court entered an order denying Mount Vernon's amended motion for entitlement, finding that Mount Vernon's nominal proposal for settlement was not made in good faith. See § 768.79(7)(a), Fla. Stat. (2015) ("If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees."). Mount Vernon's appeal followed.

Mount Vernon contends that the trial court abused its discretion by determining that the nominal proposal for settlement was not made in good faith. We agree.

In addressing whether the trial court abused its discretion by finding that Mount Vernon's nominal proposal for settlement was not was made in good faith, we must consider whether Mount Vernon "had a reasonable basis at the time of the offer to conclude that [its] exposure was nominal." Fox v. McCaw Cellular Commc'ns of Fla., Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998) ; see also Dep't of Highway Safety & Motor Vehicles, Fla. Highway Patrol v. Weinstein, 747 So.2d 1019, 1021 (Fla. 3d DCA 1999) (reversing the trial court's denial of attorney's fees, which were sought under section 768.79, where the record conclusively demonstrates that, at the time the nominal proposal for settlement was made, the offeror had a reasonable basis to conclude that its exposure was nominal). Further, we recognize that good faith is "determined by the subjective motivations and beliefs of the pertinent actor." Weinstein, 747 So.2d at 1021.

In the instant case, the record reflects that Mount Vernon made its proposal for settlement following almost two years of litigation and extensive discovery. Further, less than a week after making its proposal for settlement, Mount Vernon moved for summary judgment, and in doing so, relied heavily on the investigation report issued by its claim administrator in October 2008, the roof damage report issued by structural engineers in November 2008, and the exclusions and limitations contained in the policy. Thus, the record conclusively demonstrates that Mount Vernon "had a reasonable basis at the time of the offer to conclude that [its] exposure was nominal." Fox, 745 So.2d at 333. Accordingly, we conclude that the trial court abused its discretion by denying Mount Vernon's amended motion for entitlement based on the determination that the nominal proposal for settlement was not made in good faith. We, therefore, reverse the order under review and remand for the entry of an order granting Mount Vernon's amended motion for entitlement.

Reversed and remanded.

      New Moon appealed these orders, and this Court affirmed. See New Moon Mgmt., Inc. v. Mount Vernon Fire Ins. Co., 3D16-2242, 2017 WL 6598973 (Fla. 3d DCA Dec. 27, 2017).

      In its answer brief, New Moon also argued that the trial court's order denying Mount Vernon's amended motion for entitlement should be affirmed because there was an ambiguity in the proposal for settlement, thereby defeating its enforcement. As New Moon did not raise this argument in the lower tribunal, the argument was not properly preserved for appellate review. We have, therefore, not addressed this argument on appeal.