author: SCALES, J.

text:
    Ariel HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2240
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017
    Ariel Hernandez, in proper person.
    Pamela'Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES and LUCK, JJ...
   SCALES, J.

Appellant Ariel Hernandez is incarcerated, having pled guilty, in 2012, to second degree murder and sexual battery. In 2015, Hernandez filed a petition for writ of habeas corpus. The trial court denied the petition in ah order rendered on July 7, 2016. Upon his recéipt of this order; Hernandez mistakenly believed that he was too late to file an appeal. Instead, Hernandez filed-a motion in the trial court to extend his-appeal period, which the'trial court denied on August 24, 2016. Hernandez timely appealed the trial court’s denial of this motion.

Pursuant to Florida Appellate Procedure Rule 9.315(a), we shmmarily affirm the order of the trial court. We do so without prejudice to Hernandez' filing an appropriate petition for belated appeal of the July 7, 2016 order. Accordingly, we deny as moot the State’s motion to dismiss.

Affirmed.

      . A circuit court is without jurisdiction to extend the time for taking an appeal. Larrimore v. Moore, 813 So.2d 963, 963-64 (Fla. 1st DCA 2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rodney Leon RUSS, DOC #779516, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2009
    District Court of Appeal of Florida, Second District.
    Opinion filed October 6, 2017.
    Rehearing Denied November 28, 2017
    Mark C. De Sisto, Port Charlotte, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Following the entry of a no contest plea to four felonies and two misdemeanors, Rodney Leon Russ now challenges the trial court’s denial of his motion to suppress the evidence. However, because “there was neither a stipulation nor a determination by the .trial court that the denial of the motion to suppress was dispositive,” we affirm without further comment. Ferran v. State, 210 So.3d 97, 97 (Fla. 2d DCA 2016) (per curiam); see also Fla. R. App. P. 9.140(b)(2)(A)(i); Fla Stat. § 924.051(4) (2015); Leonard v. State, 760 So.2d 114, 119 (Fla. 2000) (holding that when the [district] court determines that an appeal does not present ... a legally dispositive issue that was expressly reserved for appellate review,” the district court should summarily affirm); Henderson v. State, 135 So.3d 1092, 1095 (Fla. 2d DCA 2013) (holding that where “there was no finding or agreement that the motion was disposi-tive, [the defendant] may not appeal the denial of the motion”).

Yet, because it appears that Mr. Russ “believed that his plea was conditioned upon the reservation of his right to appeal from the denial of his motion to suppress, oúr affirmance is without prejudice to [his] right to file a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850.” See Ferran, 210 So.3d at 97 (first citing Sears v. State, 920 So.2d 709, 709 (Fla. 4th DCA 2006); and then citing Sloss v. State, 917 So.2d 941, 942 (Fla. 5th DCA 2005)).

Affirmed.

WALLACE, KHOUZAM, and BADALAMENTI, JJ., Concur.


text:
    R.J., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D17-1674
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017

      Albert W. Guffanti, PA and Albert W. Guffanti, for appellant.
    Karla Perkins, for the- Department of Children and Families; Laura J. Lee (Sanford), for the Guardian ad Litem Program, for appellees.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See A.M. v. Department of Children and Families, 223 So.3d 312 (Fla. 4th DCA 2017); S.K. v. Department of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007).


text:
    Jannett A. PUSEY, Appellant, v. WEST HIALEAH GARDENS ELEMENTARY SCHOOL, Appellee.
    No. 3D17-372
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    Jannett A. Pusey, in proper person.
    Walter J. Harvey, School Board Attorney, and Christopher J. La Piano, Assistant School Board Attorney, for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Spiral Tech Elementary Charter Sch. v. Sch. Bd. of Miami-Dade Cty., 994 So.2d 455 (Fla. 3d DCA 2008) (holding where the record establishes that the agency’s factual findings are supported by substantial competent evidence, and the agency did not erroneously interpret the relevant law, we must affirm the agency’s determination) (citing Griffith v. Dep’t of Bus. Regulation, Div. of Pari-Mutuel Wagering, 613 So.2d 930, 932 (Fla. 3d DCA 1993)).


text:
    Raynard JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2394
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

      Before ROTHENBERG, C J., and SUAREZ and SCALES, JJ.
   PER CURIAM.

.Affirmed. See Davis v. State, 223 So.3d 1106 (Fla. 5th DCA 2017).


author: FERNANDEZ, J.

text:
    M.P., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D17-1302
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
    Karla Perkins, for the Department of Children and Families; Wendie Michelle Cooper, Beth Kathryn Roland and Thoma-sina F. Moore (Sanford), for the Guardian ad Litem Program, for appellees.
    Paula Velazquez, Attorney ad Litem for A.D., minor child.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   FERNANDEZ, J.

M.P., ..the mother, appeals the .trial court’s Order Denying the Motion to Set Aside and Vacate the Final Judgment of Termination of Parental Rights, entered after M.P.’s failure to attend the adjudicatory hearing on the petition.'We affirm the trial court’s denial, finding no abuse of discretion.

After M.P.’s failure to attend the adjudicatory hearing, the trial court entered an implied consent to termination, pursuant to section 39.801(3)(d), Fla. Stat. (2016), and proceeded to receive evidence that supported the termination of M.P.’s parental rights, as alleged in the Department of Children and Families’ petition. Thereafter, the trial court entered a final judgment terminating M.P,’s parental rights as to her two minor children. M.P. moved to vacate the default/implied consent judgment, which the trial court denied because M.P. failed to prove a meritorious defense to section 39.806(l)(e)3, Fla. Stat, (2016).

We review the trial court’s order denying M.P.’s Motion to Set Aside and Vacate the Final Judgment of Termination of Parental Rights under an abuse of discretion standard. C.B. v. Dep’t of Children & Family Servs., 990 So.2d 520, 522-523 (Fla. 2d DCA 2008). A motion to set aside a final judgment of termination of parental rights must establish “due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 236 (Fla. 2009), citing to In re A.N.D. 883 So.2d 910, 914 (Fla. 2d DCA 2004) and E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004).

After the hearing on the motion, the trial court found that M.P. failed to establish a meritorious defense as to Paragraph 20 of the Petition for Termination of Parental Rights, which alleged that the children “have been in care for any .12 of the last 22 months and the Mother has not substantially complied with the ease plan so as to permit reunification.” See § 39.806(l)(e)(3), Fla. Stat. (2016). Accordingly, the trial court properly denied the motion. Finding no abuse of discretion in the trial court’s determination of M.P.’s motion, we affirm the order denying M.P.’s Motion to Set Aside and Vacate the Final Judgment of Termination of Parental Rights.

Affirmed.


author: ROTHENBERG, C.J.

text:
    C.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0858
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    C.M., a juvenile, in proper person,
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   ROTHENBERG, C.J.

We affirm the adjudication of delinquency and sentence imposed by the trial court without further elaboration. We, however, reverse for correction of the probation order, which improperly includes in the Memorandum’ of Costs an “Additional Court Cost” of $65.00, as this cost may not be imposed in juvenile cases where adjudication is withheld.

Affirmed; and remanded with instructions.


author: LAGOA, J.

text:
    Audely HERNANDEZ, Appellant, v. Yosviel GUERRA and Department of Revenue, Appellees.
    No. 3D16-265
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017.

      Audely Hernandez, in proper person.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General (Tallahassee), for appellee, Department of Revenue.
    No appearance on behalf of Yosviel Guerra.
    Before ROTHENBERG, C.J., and LAGOA and FERNANDEZ, JJ.
   LAGOA, J.

The mother, Audely Hernandez (the “mother”), appeals from a Final Administrative Support Order determining the support obligations of appellee Yosviel Guerra (the “father”). Specifically, the mother disputes the amount of credit awarded to the father for payments made during the retroactive period. Because the administrative law judge’s finding on this issue is supported by competent substantial evidence, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On behalf of the mother, appellee, the State of Florida Department of.Revenue (the “Department”), served the father with a Notice of Proceeding to Establish Administrative Support Order stating that the Department had started an administrative proceeding to establish amounts in child support or expenses the father may be required to pay for his two children. Enclosed with the Notice was a Parent Information Form which the father was required to fill out and return to the Department. In his Parent Information Form, the father stated that he had provided financial support in the amount of “two hundred dollars—weekly in the form of cash to [mother].” The Parent Information Form contained a written declaration, signed by the father, stating that “[u]nder penalties of perjury, I declare that ... the facts stated in [the Parent Information Form] ... are true and correct.”

In her.Parent Information Form, the mother stated that no financial support had been paid for the benefit of the children, but attached a copy of one money order in the amount of $150, which she labeled as “child support.” As the father had done with his Parent Information Form, the mother signed her Parent Information form under penalties of perjury.

The Department subsequently issued a Proposed Administrative Support Order (“Proposed Order”). The Proposed Order determined that the father’s current child support obligation was $948.90 per month, and that he owed retroactive support in the amount of $8,471.77 to be paid at the rate of $189.78 per month. The Proposed Order included “credit of $150.00 for documented support payments made.”

The father filed a Notice of Objection to Entry of Final Administrative Order and Request for Hearing. The father stated that the basis for requesting a hearing was to, among other things, “present proof of child support payments made directly to the [mother] which would result in a reduction of the arrears.” As a result, the Department referred the matter to the Division of Administrative Hearings (“DOAH”) for a hearing before an administrative law judge (“ALJ”). The DOAH issued a notice of hearing, which informed the parties that the hearing would be a formal proceeding at which the ALJ would hear sworn testimony and that the final order issued would be based on the evidence presented at the hearing. The notice also stated that, as a result of the hearing, the amounts for support set forth in the Proposed Order may change. ■

The matter proceeded to a hearing before an ALJ on March 24, 2016. Both the mother and'father testified at the hearing. With regard to actual payments made during the proposed retroactive period (February 1, 2015 through March 31, 2016), the father' testified that for eight months (March 2015 through October 2015) he gave the mother between $400 and $500 cash per month. He testified that he also gave her money orders in the total amount of $1,384 and introduced the receipts of those payments as evidence. The father further testified regarding a cell phone and gifts that he gave to the children. The mother testified that the father never provided her cash, and that he Only provided one money order in the amount of $1'50 in October 2015. At the conclusion of the hearing, the ALJ stated that the father would bé awarded credit in the total amount to which hé testified, i,e. $5,759.

In the Final Administrative Support Order, the ALJ found the father’s'current child support obligation to be $475 per month. The ALJ. also found that the amount of the father’s retroactive support for the months of .February, 1, 2.015, through March 31,. 2016, was $3,186. The ALJ reached the retroactive support amount by applying the father’s credited amount of $5,759 to the total retroactive support amount of $8,945. The ALJ further determined that the father was to pay the retroactive amount at the rate of $40 per month, resulting in a total .monthly support obligation by the’ father in the amount of $515. This appeal ensued from the Final Administrative Support Order.

II. STANDARD OF REVIEW

“The administrative law judge’s decision has. the presumption of correctness in appellate proceedings and the burden is on the appellant to demonstrate error.” Macias v. Dep’t of Revenue ex rel. Garcia, 16 So.3d 985, 986 (Fla. 3d DCA 2009). This Court may not reverse the ALJ’s findings of fact if those findings are supported by competent, substantial evidence. See § 20.68 (10), Fla. Stat. (2016); Bagarotti v. Reemployment Assistance Appeals Comm’n, 208 So.3d 1197, 1199 (Fla. 3d DCA 2017) (“An administrative hearing officer’s findings of fact may not be disturbed by a reviewing court if those findings are supported by competent, substantial evidence.”); U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012) (“In an appeal from final administrative action, this Court reviews the agency’s findings of fact to determine whether they are supported by competent, substantial evidence in the record.”).

III. ANALYSIS

Section' 409,2563, Florida Statutes (2016), governs the Department’s administrative establishment of a child support obligation. When a parent from whom support is being sought files a timely request fór a hearing contesting the Department’s proposed administrative support order, as the father did here, the case is transferred to the DOAH in order for it to conduct further proceedings. See §§ 409,2563(5)(c), (6), Fla. Stat. (2016). If a hearing is held, section 409,2563(6) mandates that an ALJ “shall consider all available and admissible information.”

Additionally, any administrative support order must comply with section 61,30, Florida Statutes. See § 409.2563(7)(e), Fla. Stat. (2016). Section 61.30(17)(b) requires that in determining a retroactive child support obligation the ALJ must consider “[a]ll actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.”

Given these statutory obligations, an ALJ is not limited to the amounts set forth in the Department’s proposed administrative support order and instead must establish child support obligations based upon all available and admissible information developed at the administrative hearing. See Dep’t of Revenue v. Reyes; 181 So.3d 1270, 1273-74 (Fla. 1st DCA 2015) (holding that ALJ was required to consider all available and admissible information in determining child support obligation under section 409.2563 and was not limited to amounts set forth in Department’s proposed order); see also Dep’t of Revenue v. Resendiz, 182 So.3d 811, 811 (Fla. 1st DCA 2016) (vacating Final Administrative Support Order where ALJ limited child support obligation to amounts stated in proposed order: the ALJ was' required to establish the father’s child support obligation based on the evidence presented at the hearing”).

On appeal, the mother seeks review of.the amount of credit awarded to the father for payments made during the retroactive period, asserting that the father provided only a cell phoñe, $150, and clothing and gifts for the children. In other words, the mother challenges the ALJ’s finding that the father provided cash and money order payments for the benefit of his children during the retroactive' period. A review of the hearing transcript shows that the mother specifically objected to the ALJ’s determination that the father receive credit for cash payments, claiming instead that he never paid her in cash.

“Factual inferences are to be drawn by the [ALJ] as trier of fact.” Prysi v. Dep’t of Health, 823 So.2d 823, 825 (Fla. 1st DCA 2002) (alteration in original) (quoting Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1283 (Fla. 1st DCA 1985)). As the trier'of fact, the ALJ “was charged with the responsibility of weighing the evidence, and as such, was free to accept or reject all or any portion of any witness’s testimony and to resolve conflicts in the evidence.”. U.S. Blood Bank, 85 So.3d at 1143 (affirming agency’s determination and concluding that trier of fact was free to reject accountant’s testimony and rely on corporate records and filings).

Here, the ALJ heard testimony from both the mother and.father on the issue of payments made by the father for the benefit of his children during .the retroactive period—the. mother testified that the father made one $150 payment by money order, while the father testified he made eight monthly cash payments along with $1,384 in money order payments. The ALJ also considered receipts, for the money. order payments which were, admitted into evidence. After considering all available and admissible information presented at the hearing, the ALJ found the father’s testimony on this issue more credible than the mother’s testimony. Because this Court cannot reweigh the evidence, we affirm and conclude that the ALJ’s finding of fact on this issue is supported by competent, substantial evidence.

Affirmed.

      . Section 120.68 (10), Florida Statutes (2016), provides as follows:
      (10) If an administrative law -judge’s final order depends on any fact found by the administrative law judge, the court shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding .of fact. The court shall, however, set aside the final order of the administrative law judge or remand the case to the administrative law judge, if it finds that the final order depends on any finding of fact that is not supported by competent substantial evidence in the record of the proceeding.

      , The exhibits entered at the hearing have not been made a part of the record on appeal. See generally Macias, 16 So.3d at 986 (where father appealed from Final Administrative Support order but did riot provide hearing transcripts this Court could not 'determine whether ALJ abused his discretion in considering father’s child support and care expenses); see also Applegate v. Barnett Bank of Tallahassee. 377 So.2d 1150, 1152 (Fla. 1979); Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140, 1142 (Fla. 3d DCA 2008); Gleim v. Gleim, 176 So.2d 610, 611 (Fla. 3d DCA 1965).

      . In a hearing involving disputed issues of material fact, an ALJ’s findings of fact must be based on a preponderance of the evidence. See § 120.57(1)©, Fla. Stat. (2016). A preponderance of the evidence is evidence that more likely than not tends to prove a proposition. See Gross v. Lyons, 763 So.2d 276, 280 n.1 (Fla. 2000).

      . We note that at the time the AU entered the Final Administrative Support Order the father was unemployed. The record before this Court shows that the father has since obtained employment. Our decision is therefore without prejudice to the mother filing a petition for modification based on this change of circumstance. Additionally, the father has filed a petition for dissolution in the circuit court. Upon proper application by either party and sufficient evidentiary support, the circuit court has the authority to enter a superseding order prospectively changing support obligations set forth in the ALJ’s Final Administrative Support Order. See § 409.2563(10)(c); Dep’t of Revenue v. Secor, 146 So.3d 1250, 1252 (Fla. 2d DCA 2014) (stating that while it is well established that a circuit court lacks jurisdiction to retroactively affect an administrative support order entered pursuant to section 409.2563, a circuit court has the power to issue a superseding order changing support obligations prospectively under section 409.2563(10)(c)); Sanford v. Davis, 136 So.3d 785 (Fla. 1st DCA 2014) (reversing portion of final judgment of dissolution modifying existing administrative support order where neither party requested modification and trial court failed to make factual findings supporting modification).


text:
    Freddy CASTELLON-LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-424
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   ROTHENBERG, C.J.

Freddy Castellon-Lopez (“the defendant”) appeals his convictions and sentences on the grounds that (1) unobjected-to and allegedly improper prosecutorial remarks constituted fundamental error, and (2) the trial court abused its discretion when it told the jury that it could not have a read-back of trial testimony. After carefully reviewing the record and the law, we affirm.

We find no fundamental error in the allegedly improper prosecutorial remarks because the remarks did not vitiate the fairness of the trial, and we decline to discuss them further. See Chandler v. State, 702 So.2d 186, 191 n.5 (Fla. 1997) (finding no fundamental error and stating that some of the prosecutor’s comments about the defendant and his counsel “were thoughtless and petty ... but not so prejudicial as to vitiate the entire trial”); Rodriguez v. State, 210 So.3d 750, 754 (Fla. 5th DCA 2017) (“Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is, so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.”) (quotation omitted); McPhee v. State, 117 So.3d 1137, 1139 (Fla. 3d DCA 2012).

The defendant next argues that the trial court abused its discretion by denying the jury’s request for a read-back of the defendant’s and the victim’s trial testimony. However, this is not actually what occurred. The jury requested a copy of the transcripts of the two witnesses. The trial court denied the jury’s request for copies, but informed the jury members of the following:

Members the jury of [sic] we have received your note requesting the testimony of the victim and of the defendant. Please understand at this time there are no transcripts of the testimony of the trial [sic] had been prepared and would be extremely burdensome and impractical to watch the court reporter to read a witness’s entire testimony from the reporter’s stenographic notes. If you can identify a very specific portions of the testimony that you wish to have read to you I can ask the court reporter to attempt to do that. Other than as to such very specific portions, however, I ask that you rely on your recollection.

First, we note that the trial court correctly denied the request for copies of the transcripts. See Hazuri v. State, 91 So.3d 836, 841 (Fla. 2012) (stating that “trial judges have absolutely no discretion in permitting a jury to receive physical transcripts”). Second, the trial court’s remarks to the jury were entirely appropriate. Pursuant to Hazuri, if a trial court receives a general request for transcripts, then it must inform the jury that it cannot provide them with transcripts, explain that the court may provide the jury with read-backs of trial testimony, and instruct the jury to specify which portions of the testimony it wishes to review. Id. at 846. (adopting the following two rules: “(1) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and (2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.”).

The trial court complied with these requirements. Rather than misleading the jury into believing that read-backs are prohibited, the trial court specifically informed the jury that a read-back is permitted, and asked the jury to specify what portions of the testimony it would like to hear. Lastly, we note that the trial court’s offer to have whatever portions of the testimony the jury requested read back to them was more than what defense counsel requested. Defense counsel requested that the trial court merely instruct the jury to rely on' its recollection of the evidence. Accordingly, we find that the trial court did not abuse its discretion. Francis v. State, 808 So.2d 110, 130 (Fla. 2001) (stating that “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”). We find that the defendant’s remaining arguments are without merit, and we therefore decline to specifically address them.

Affirmed.


author: LUCK, J.

text:
    ARKO PLUMBING CORP., a Florida Corporation, Appellant, v. Michael P. RUDD, Esq. and Rudd & Diamond, P.A., Appellees.
    No. 3D16-1689
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017.

      Weil Quaranta, P.A., Ronald P. Weil, John M. Quaranta, and Marguerite Snyder, for appellant.
    Rumberger, Kirk, & Caldwell, P.A., M. Stephen Smith, and Michael R. Holt, for appellees.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   LUCK, J.

Under Florida’s absolute litigation privilege, a defendant can slander the plaintiff and lie to her and the court, and still be absolutely immune from a later lawsuit for defamation, tortious interference with a business relationship, and even violations of federal consumer protection statutes, as long as the slander and lies were made in the courtroom or during the formal discovery process and had some relation to the case. The trial court in this case extended the absolute privilege to (1) the defendants accessing the plaintiffs password-protected vehicle tracking system, and (2) their questions to the plaintiffs customers during an examination under oath, and granted summary judgment for the defendants. We agree with the plaintiff that the absolute privilege cannot be stretched that far, reverse summary judgment, and remand to the trial court.

BACKGROUND FACTS AND PROCEDURAL HISTORY

In 2010, plaintiff Arko Plumbing Corporation was providing homeowners with “video colonoscopies” of their cast-iron drain pipes to locate cracks in the damaged pipes. Arko would identify the cracks, assist homeowners in filing claims under their insurance policies, and then replace the damaged cast-iron pipes (an expensive fix which required digging through a home’s flooring into the concrete pad to remove the old, damaged pipes).

Bascuas v. Citizens Property Insurance Corp. Defendants Michael Rudd and his law firm, Rudd & Diamond, P.A., represented insurance companies on claims that they breached homeowner’s insurance policies by not covering Arko’s repairs to the homeowners’ damaged pipes. In 2013, Rudd and his firm were defending Citizens Property Insurance Corporation in the breach of property insurance case brought by the Bascuases. On February 26 and 27, 2013, Rudd and his firm, with the help of a former Arko employee, John Collucci, used Collucci’s still-active password to access Arko’s MotoMon Global Positioning System account. MotoMon is an internet-based computer program which provided historical and real-time access to the location of Arko’s service vans. On the Moto-Mon program, Rudd and his firm, with Collucci’s password, accessed the historical location information for eighteen Arko clients, including the Bascuases. Rudd and his firm then issued subpoenas to Arko for its Motomon information, including information related to location of Arko service vans at the Bascuas residence.

Calejo v. State Farm Florida Insurance Co. In March 2013, Rudd and his firm also defended State Farm Florida Insurance Company in the breach of homeowner’s policy claim filed by the Calejos. The Cale-jos insurance policy with State Farm required that they answer the company’s questions at an examination under oath. The examination was held on March 8, 2013, and included the following exchange:

Rudd: Did you have any kind of—and I think we talked about this, but you never met with anybody at Arko at any time before this loss, right?
Ms. Calejo: No sir, not that I recall. I know I’ve called plumbers before but I don’t think that he was one of the ones that ever came to my house.
Rudd: So, he didn’t come out to y’all about a year in advance and say you need to clean this house up before we can make an insurance claim?
Ms. Calejo: Oh, my God, no.
Rudd: He did not do that?
Ms. Calejo: No ...
Rudd: And you never met with Joe or anybody associated "with Arko at any time in advance of this loss to discuss committing insurance fraud?
Ms. Calejo: Oh, no.

The complaint. Arko filed its fifth amended complaint against Rudd and his firm, and various other defendants, including Citizens, State Farm, Stephen Andris (a State Farm employee), former Arko employee Collucci, and Maria Fonnegra (Collucci’s girlfriend). The complaint alleged that Rudd and his firm engaged in: a civil conspiracy with the other defendants (count one); deceptive and unfair trade practices (counts four and five); theft of trade secrets (counts nine and ten); defamation (counts fifteen and sixteen); and intentional interference with business relationships (counts twenty-two and twenty-three).

Summary judgment. By the time of the summary judgment motion in this case, Arko’s claims against Rudd and his firm were focused on accessing the MotoMon account in the Bascuas case, and the questions during the examination under oath in the Calejo case. Rudd and his firm moved for summary judgment based, in part, on the litigation privilege and because the information on the MotoMon program was not a trade secret under Florida law. The trial court granted the motion for summary judgment, explaining:

Okay. As to both Rudd and Rudd & Diamond I do find that whether it’s the litigation privilege or the qualified privilege, that it absolutely does apply, including under the facts and circumstances in this case and, therefore, I grant summary judgment across the board for Rudd and Rudd & Diamond in this case.

Arko moved for rehearing on the summary judgment for Rudd and his firm. In denying the rehearing motion, the trial court, again, explained:

Under the facts of this case, the way the complaint is framed, [Arko’s] customer list is not a trade secret. Absolute litigation privilege applies; even if it were only qualified privilege, Arko didn’t carry its burden of proving malice as to these defendants.

STANDARD OF REVIEW

“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.” Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). Whether the litigation privilege applies to Rudd and his firm’s conduct is a pure question of law, and is also reviewed de novo. DelMonico v. Traynor, 116 So.3d 1205, 1211 (Fla. 2013).

DISCUSSION

Florida’s litigation privilege affords absolute immunity “to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007)(omission in original) (quoting Levin, Middlebrooks, Mabie, Thomas, Mayes Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994)). The absolute privilege does not apply “where an attorney steps outside- of -both the courtroom and the formal discovery process to investigate a claim.” DelMonico v. Traynor, 116 So.3d 1205, 1218 (Fla. 2013). Instead, a “qualified privilege” applies “to statements made by attorneys as they undertake informal investigation during pending litigation and engage in ex-parte, out-of-court questioning of nonparty witnesses, ‘so long as the statements are relevant to the subject of inquiry’ in the underlying suit.” Id. (quoting Levin, 639 So.2d at 607). If the court determines that the qualified privilege applies, the burden is on the plaintiff to “prove the additional element of express malice.” Id. at 1219.

Arko contends the trial court erred in granting summary judgment for Rudd and his firm because: the litigation 'privilege did not apply to accessing Arko’s MotoMon account and the examination under oath; even if it did, Rudd and the firm acted with express malice, thereby overcoming the qualified privilege; and the information in Arko’s MotoMon account was a trade secret, and thus, subject to Florida’s trade secret act. Arko’s appeal raises three issues: (1) does the litigation privilege extend to Rudd and his firm’s accessing Arko’s MotoMon account (no); (2) does the absolute or qualified privilege apply to Rudd’s questions at the examination under oath (qualified); and (3) was the information on Arko’s MotoMon account "a trade secret (yes).

1. Does the litigation privilege extend to Rudd and his firm’s accessing Arko’s MotoMon account?

While the absolute and qualified .litigation privilege applies to statements and acts that have some relation to a judicial proceeding, a review of the Florida Supreme Court’s litigation privilege decisions shows that the statements and acts must be communicative. Every Florida Supreme Court decision that has.applied the privilege has done so where the statement was made or act was done while communicating during a pending case or as part of an investigation.

In Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907), the Florida decision adopting the litigation privilege, the privilege was applied to a civil complaint alleging the president of a corporation was “a tricky, dishonorable, unscrupulous and conscienceless man.” Id. at 358 (quoting from the complaint). In Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992), the privilege was applied to statements made to law enforcement officers, so the officers would falsely charge a family member with murder. Id. at 66. In Levin, the Court applied the privilege to an insurance company’s attorney who falsely certified that opposing counsel would be a witness in the case. Levin, 639 So.2d at 607. In Echevarria, the Court applied the privilege to -letters sent by a law firm to defendants in foreclosure cases that falsely represented the amount of money the defendants owed for title searching services. Echevarria, 950 So.2d at 381. And in DelMonico, the Court applied the qualified privilege to false statements about one of the parties made during informal interviews with potential witnesses in an ongoing litigation, Del Monico, 116 So.3d at 1209.

■In each of these litigation privilege cases, the privilege was applied to communications made to another (the court, parties, law enforcement officers, and witnesses) during an investigation or as part of judicial proceedings. . Whatever . the cause of action (defamation, consumer protection act violations, tortious interference), the litigation privilege protected communications that had some relationship to a pending case.

While the Florida Supreme Court has not explicitly distinguished between communicative and noncommunicative acts in discussing the litigation privilege, the distinction is reflected in the Court’s stated purpose for the privilege.

[I]t is to the interest of the public that great freedom should be allowed in complaints and allegations with a view to have them inquired into; and that parties and counsel should be indulged with great latitude in the freedom of speech in the conduct of their causes in courts and in asserting their rights, because in this way the purposes of justice will be subserved ....

Id. at 1212 (quoting Myers, 44 So. at 361). The privilege derived in part from “the public interest in allowing litigants and counsel to freely and zealously advocate for fheir causes in court.” Id. at 1217. The litigation privilege’s purpose, that is, is to protect courtroom speech and advocacy— the communicative tools lawyers, litigants, and witnesses use to search for the truth in our adversarial justice system.

Other states have explicitly distinguished between communicative and non-communicative conduct. The California Supreme Court has explained that “the litigation privilege protects only publications and communications,” and the “threshold issue in determining the applicability of the privilege is whether, the defendant’s conduct was communicative or noncommunicative.” Rusheen v. Cohen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 719 (2006) (quotation omitted). Other states also have stressed that the litigation privilege applies only to acts or statements that are “communications.” See, e.g., Greenberg Traurig v. Frias Holding Co., 331 P.3d 901, 902 (Nev. 2014) (“[T]he litigation privilege immunizes from civil liability communicative acts occurring in the course of judicial proceedings, even if those acts would otherwise be tortious.”); Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 602 (Ky. 2011) (as modified on rehearing) (“A communication must fulfill two requirements in order to fall within the ambit of the judicial statements privilege. First, the, communication must have been made preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding. Second, the communication must be material, pertinent, and relevant to the judicial proceeding.” (quotation and citations .omitted)); Hawkins v. Harris, 141 N.J. 207, 661 A.2d 284, 289 (1995) (“The absolute privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants.authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (quotation omitted)); Hopkins v. O’Connor, 282 Conn. 821, 925 A.2d 1030, 1037 (2007) (“[Cjommunications uttered or published in the course of judicial proceedings are absolutely privileged so long as .they are in some way pertinent to the subject of the controversy.” (quotation omitted)); Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942) (“Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for slander or libel.”).

In California, for example, the privilege has not been extended to the unlawful recording of telephone conversations because recording another person without that person’s permission is noncommunica-tive conduct. See Kimmel v. Goland, 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524, 527-30 (1990). For the same reason, the privilege has not been applied to hangup telephone calls and slashed tires because they were not communications. See Martel v. Litchfield, No. C068425, 2013 WL 6260376, at *4-5 (Cal. Ct. App. Dec. 4, 2013).

Here, too, Rudd accessing Arko’s MotoMon account on his law firm computer was a noncommunicative act. Just as sneaking into an old friend’s house to look at the books in his library doesn’t communicate anything to the friend, accessing the account using Collucci’s password did not communicate information to another person, Rudd didn’t write pleadings (Myers and Levin) or letters (Echeverri); and he didn’t make false statements to the police (Fridovich), defendants (Echeverri), or during an interview of potential witnesses (DelMonico). Rudd, according to the summary judgment evidence, was looking for information about Arko to use against homeowners in pending insurance cases. Rudd and his firm were gathering information from the MotoMon system—they were not trying to communicate a thought, idea, or issue to another person.

Without a communicative act, Rudd and his firm’s actions fall outside what the Florida Supreme Court has held as protected by the litigation privilege. We conclude that Rudd’s sitting at his computer and accessing Arko’s MotoMon account was not a communication subject to the privilege.

2. Does the absolute or qualified privilege extend to Rudd’s questions at the examination under oath?

Rudd’s questions to Ms. Calejo during the examination under oath were communications. Rudd contends they should be considered part of the formal discovery process, and therefore, subject to the absolute litigation privilege. Arko responds that the examination under oath is not part of the formal discovery process, and the qualified privilege should apply. The difference matters because under the qualified privilege Arko must show a genuine issue of material fact that Rudd asked the questions with express malice, that is, Rudd’s primary motive in asking the questions was to injure Arko’s reputation. DelMonico, 116 So.3d at 1219. For the absolute privilege, there’s no need to prove malice because “the formalized judicial process ... serve[s] to counteract the occurrence and consequences of defamatory statements or abuse.” Id. at 1217.

Rudd analogizes examinations under oath to witness depositions authorized by the rules of civil procedure. Because the Florida Supreme Court has described civil procedure depositions to be inside 'the formal discovery process, and -examinations under oath are deposition-like, the argument goes, they too should be considered part of the formal discovery process. True, the Florida Supreme Court cited “depositions properly noticed under the Florida Rules of Civil Procedure” as an example of a judicial proceeding having “safeguards in place that served to provide real and immediate checks to abusive and overzealous practice.” Id. at 1217. Civil procedure depositions, the Court explained, have “protections of the formalized judicial process” because:

• they are “adversarial in nature and the opposing side has an opportunity to immediately object to any untrue statements”;
• “if statements are falsely made, the harmed party may seek to impose sanctions against the offending party in an expeditious way, with the transcript of the deposition providing a clear record of proof’; and
• “the trial court can thereafter strike the defamatory matter from the record.”

Id. Also, civil procedure depositions are limited to relevant information as defined by the rules of civil procedure,. and the trial court has discretion to videotape the deposition and appoint a special master to preside over it as protections to the parties. See Fla. R. .Civ.. P. 1.280(b)(1) (“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action ....”); id. R. 1.280(c)(2) (“Upon motion by a party or by the person from whom discovery is sought, - and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including ... that the discovery may be had only on specified terms and conditions .... ”).

To be sure, an examination under oath has some of these protections, including having opposing counsel present at the examination, but even , then “an insured’s counsel plays a different role during examinations under oath than during depositions.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 305 (Fla. 4th DCA 1995). An examination under oath does not have a mechanism for a defamed party to seek to impose sanctions in an expeditious way, and there is no process to strike the defamatory matter from the record. There is no legal limitation on the scope of the examination, and a party concerned about harassment cannot get protection in advance like at a civil procedure deposition. The safeguards that protect a party from harm in a civil deposition are not there for an examination under oath.

The absolute privilege, the Florida Supreme Court has explained, is part of a tradeoff. The absolute privilege was created to encourage zealous representation and the free and full discovery of facts -between the parties and the court. See DelMonico, 116 So.3d at 1216 (“This absolute immunity resulted from the balancing .of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and Ml disclosure of facts in the conduct of judicial proceedings.”). In exchange, the parties subject themselves to the consequences if they cross the line: striking from the record scurrilous accusations; sanctions; and even criminal contempt. The civil procedure deposition fits' snuggly within this balance.

Examinations under oath do not. There is no judge or neutral third-party to strike defamatory statements; there is nowhere to seek sanctions for abusive conduct at the examination; and there is no threat of contempt with the power of the state behind it. There are not the “real and immediate checks to abusive and overzealous practices” that the Florida Supreme Court requires in exchange for the full protections of the absolute privilege. Id. at 1217. We conclude that an examination under oath is outside the formal discovery process, and therefore, does not support an extension of the absolute privilege.

But that doesn’t end the inquiry. While the absolute privilege does not apply, the qualified privilege- does because Rudd’s questions to Ms. Calejo were part of the informal investigation during pending litigation and had some relation to the Calejos lawsuit against the insurance company. See id at 1218 (“Without the aforementioned protective measures, we conclude that only a qualified privilege should apply to statements made by attorneys as they undertake informal investigation during pending litigation and engage in ex-parte, out-of-court questioning of nonparty witnesses, so long as the statements are relevant to the subject of inquiry in the underlying suit.” (quotation omitted)). The Calejos’ breach of insurance policy claim was pending at the same time as the examination under oath, and Arko’s alleged fraud was part of the insurance company’s defense.

The' trial court found that even if the qualified privilege applied to Rudd and his firm’s conduct, Arko presented no summary judgment evidence that Rudd acted with express malice. We disagree.

Rudd’s questions to Ms. Calejo about Arko committing fraud were based on the information provided by Arko’s former employee Collucci, Arko presented summary judgment evidence that public records showed Collucci was a heroin addict and on probation; Rudd knew , that Collucci had been fired for taking illegal public adjuster-commissions- and-wanted revenge against Arko and'its management; Rudd knew that-former employee-Collucci used his password to access Arko’s MotoMon account and gave the password to Rudd to use; Rudd knew that Collucci lied under oath about accessing the MotoMon account; attorneys representing insurance companies paid Collucci for investigating Arko and testifying against them in homeowners insurance cases; and Rudd sued Arko for racketeering..

Rudd argues that this evidence shows he was motivated- to gather information for his firm’s defense of its insurance company clients. That is certainly one inference, and it may be the correct one. But at the summary judgment stage, all reasonable inferences from the evidence are made in favor of the non-moving party—in this case, Arko. A reasonable juror could also infer that Rudd’s- reliance on a former employee with an ax to grind against Arko, who lied under oath, had a knowable.drug problem, and was paid for his testimony, was circumstantial evidence of: express malice.

Express malice “may be established indirectly, i.e., ‘by proving A series of acts which, in their context or in light of the totality of surrounding circumstances, are inconsistent with the premise of a reasonable man pursuing a lawful objective, but rather indicate a plan or course of conduct-motivated by spite, ill-will, or other bad motive.’” McCurdy v. Collis, 508 So.2d 380, 382 (Fla. 1st DCA 1987) (quoting S. Bell Tel. & Tel. Co. v. Roper, 482 So.2d 538, 539 (Fla. 3d DCA 1986)). “Where,” as here, “the circumstances surrounding the statement are in dispute, the question of qualified privilege is a factual determination for resolution by the jury.” Id.; see also id. at 385 (“Since we recognize the difficulties involved in determining whether malice was the [primary] motivating factor in this interference case, we conclude the qualified privilege issue should be resolved by the trier of fact.”).

In McCurdy, the Exxon Corporation relied on the testimony of a doctor to tell an employee’s supervisor that the employee was not safely able to work on Exxon property. Id. at 381-82. Exxon, when sued (as Arko did) for tortious interference with a business relationship, claimed the qualified privilege applied to its statements to the supervisor. The first district concluded that there was evidence of Exxon’s express malice because “the record indicate[d] that Exxon personnel based their decision that [the employee] was a safety risk on the basis of third party reports concerning Dr. Johnson’s trial testimony,” the company “conducted no independent investigation of [the employeé’s] job performance, and in fact his employers advised Exxon that [the employee] was doing a good job.” Id. at 384; see also Corp. Fin., Inc. v. Principal Life Ins. Co., 461 F.Supp.2d 1274, 1294 (S.D. Fla. 2006) (“Plaintiffs have produced sufficient circumstantial evidence ... from which a reasonable jury could find that Castrillon was the source of the altered information, [and] that he was motivated by an intent to injure Plaintiffs .... ”). There was a factual dispute about Exxon’s motive because it had contrary information about the employee’s ability to work and did not investigate.

Here, too, Rudd and his firm based their examination under oath questions on what Collucci shared with them. Rudd, as did Exxon, knew of conflicting information about Collucci’s credibility, including that he left Arko on bad terms, had lied under oath, and had been promised payment for his testimony, and did not investigate Col-lucci’s criminal background, including that he was on probation and had abused heroin. Still, Rudd used Collueci’s information to ask an Arko client about Arko’s fraud. Because the surrounding circumstances of the examination under oath lead to competing inferences about Rudd’s motive, as in McCurdy, the question of express malice was a genuine disputed fact for the jury-

3. Was the information Rudd accessed on the MotoMon account Arko’s ■ trade secrets?

The trial court also granted summary judgment for Rudd and his firm on Arko’s trade secret act claim because the information that was accessed on the Mo-toMon account was not a protected trade secret. A trade secret is

information, including a formula, pat-' tern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to ■maintain its secrecy.

§ 688.002(4), Fla. Stat. (2017). Arko’s summary judgment evidence created a genuine issue of material fact that the information on the MotoMon account was a trade secret.

Customer information has been held to be a trade secret. See, e.g., Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804, 808 (Fla. 3d DCA 2014) (“Examples of trade secrets include confidential business information such as a customer list, when the list is not just a compilation of information readily available to the public, but rather acquired or compiled through the owner’s industry.”); Delucca v. GGL Indus., Inc., 712 So.2d 1186, 1187 (Fla. 4th DCA 1998) (“[W]e find competent substantial evidence that some of the information given out by appellant, which included information about customers which was not available from other sources, constitutes trade secrets under. Chapter 688.”). Here, the summary judgment, evidence showed that Arko had a GPS tracking device .on each of its trucks. The MotoMon program linked up to the GPS tracking devices to capture in real time the customers and potential customers that Arko trucks visited to provide plumbing services and video colonoscopies. Customer addresses, the date Arko trucks visited the customer, and the length of time the truck was at. the customer’s home was available on the Mo-toMon program. .

This information, according to the summary judgment evidence, would have been valuable to Arko competitors because with it they could have solicited Arko customers and offered plumbing services that undercut Arko’s prices. To avoid that from happening, Arko kept this information from its competitors and the public by requiring a password to access the MotoMon program. Only two Arko managers had passwords (one of which was Collucci). And Arko signed an agreement with MotoMon that it would not provide information to third persons about the location of Arko vehicles. These are the sorts of reasonable efforts to maintain secrecy required by the trade secret statute. See Heralds of Gospel Found., Inc. v. Varela, No. 17-22281-CIV, 2017 WL 3868421, at *5 (S.D. Fla. June 23, 2017) (concluding under Florida’s trade secret act that “Plaintiffs have also likely taken more than reasonable measures towards safeguarding the confidentiality of their Trade Secret Information, including but not limited to, requiring the recipients of digital files containing the Videos to execute NDAs, restricting access to these digital files with password encryption, and 'limiting exposure of the Videos to distinct members of the Association and the Heralds.”); Infinite Energy, Inc. v. Chang, No. 1:07-CV-23-SPM/AK, 2008 WL 11344672, at *2 & n.1 (N.D. Fla. Jan. 9, 2008) (finding customer lists protected trade secrets under Florida’s trade secret act in part because “Plaintiff did maintain the lists on password protected computers, maintained a secure computer' network, and contracted with Defendant to maintain confidentially regarding trade secrets”).

CONCLUSION

■ For these reasons, we reverse the summary judgment entered in favor of Rudd and his firm, and remand for further proceedings consistent with this opinion. We express no opinion on other grounds raised in Rudd and his firm’s summary judgment motion .that were not addressed by the trial court in its orders, and the parties in this appeal.

Reversed and remanded.


author: EMAS, J.

text:
    PHILIP MORRIS USA, INC. and R.J. Reynolds Tobacco Company, Appellants, v. Roland LEDOUX, as Personal Representative of the Estate of Patricia Mary Ledoux, Appellee.
    No. 3D16-675
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017

      Arnold & Porter Kaye Scholer, Daphne O’Connor and Geoffrey J, Michael (Washington, DC); Shook, Hardy & Bacon and Frank Cruz-Alvarez; King & Spalding, William L.. Durham, II, and Val Leppert (Atlanta, GA), for appellants.
    Gordon & Doner, Robert E. Gordon and Gary M. Paige (Davie); Trop Law Group and Adam Trop (Tamarac); David J. Sales and.,Daniel R. Hoffman (Jupiter), for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

The defendants below, Philip Morris USA, Inc. (“PM”) and R.J. Reynolds Tobacco Company (“RJR”) (together, “Defendants”), appeal from a final judgment following a jury trial and a verdict in favor of the plaintiff below, Roland Ledoux (“Roland”), as the personal representative of the estate of Patricia Mary Ledoux (“Plaintiff’ or “Patricia”). We affirm.

FACTS

Plaintiff brought an Engle -progeny claim against Defendants, alleging that Patricia died from lung cancer caused by an addiction to smoking’ cigarettes manufactured and marketed by Defendants. Plaintiff alleged causes of action for strict liability, fraud by concealment, conspiracy to commit fraud, and negligence.

The case proceeded in two phases: In Phase I, the jury determined: 1) whether Patricia was addicted to cigarettes containing .nicotine; if so, 2) whether her addiction was the legal cause of her lung cancer and death; if so, 3) the amount of compensatory damages; and 4) whether punitive damages were warranted against Defendants. In Phase II, the jury determined the amount of punitive damages.

Prior to'trial, Defendants filed several motions in limine, two of which are relevant to this appeal. First, Defendants moved to exclude “testimony, other evidence, or argument concerning ... the number of deaths purportedly caused by cigarettes.” The trial court denied this motion. Second, Defendants moved to prohibit several categories of improper arguments. The trial court granted this motion.

1. Deaths Caused by Smoking

a. Opening Statement

During the Phase I opening statement, Plaintiffs counsel told the jury, over Defendants’ objection, that in 2014, there were “500,000 deaths per year from smoking just from lung cancer in that one year in the United States” and that there had been “20 million deaths since 1964 from smoking,” repeating the number “20 million.” Plaintiffs counsel also stated over Defendants’ objection that “50 percent of all regular smokers are going to die from smoking those cigarettes.” In addition, Plaintiffs counsel told the jury, again over Defendants’ objection, that “to this day, smoking is the number one cause of preventable death in the United States ... [sjmoking kills more people than alcohol, cocaine, heroin, homicide, suicide,’ motor vehicle crashes and fires combined.”

b. Plaintiffs Expert

At trial, Plaintiffs expert historian, Dr. Robert Proctor, testified as to the number of deaths caused by smoking. Specifically, Dr. Proctor testified as to the following:

[Dr. Proctor]: Well, in the United States, it is over 500,000 Americans die every year from cigarettes.
[Defendants’ counsel]: Objection, State Farm.
[The trial court]: Overruled.
[Plaintiffs counsel]: By the way, how many people since 1964 have died from lung cancer?
[Doctor Proctor]: Of lung cancer—.
[Plaintiffs counsel]: I mean from smoking.
[Doctor Proctor]: From smoking—from cigarettes altogether, it is over 20 million.
[Plaintiffs counsel]: Okay.
[Defendant’s counsel]: Objection, Williams /State Farm.
[The trial court]: Overruled.
[Plaintiffs counsel]: Well, between 1950 and presently, how many people have died from smoking in America?
[Defendants’ counsel]: Objection, Your Honor, Williams/State Farm.
[The trial court]: Overruled.
[Doctor Proctor]: Over 20 million Americans, closer to 25 million.

2. Closing Argument

During Plaintiffs Phase I closing argument, Plaintiffs counsel made several arguments that Defendants characterize as improper and in violation of the trial court’s in limine ruling prohibiting certain types of arguments. In particular, Defendants contend that Plaintiffs counsel engaged in the following improper arguments:

Comment Number One:
[Plaintiffs counsel]: But I can tell you this, if in 1996 someone had put an ad in the paper that Roland Ledoux had read—he reads the paper every day— and the ad was, we will pay you $10 million, and all you have to do is you have to sit there and you have to watch your wife, the love of your life, choke and struggle and die in front of you—

Defense counsel objected, stating “there’s no evidence of this, Your Honor.” Th.e objection was overruled.

Comment Number Two:
Immediately thereafter, Plaintiffs counsel told the jury:
Then you have to bury her and you have to live alone for the next 19 years and the rest of your life, I submit to you that Roland- Ledoux would have said, thank you, but keep the money.

This comment drew an objection which was sustained by the trial court. The trial court, however, denied Defendants’ motion for mistrial.

Comment Number Three:
In the final complained-of argument, Plaintiffs counsel said:
If there was a way that Roland Ledoux could wave a magic wand and bring his wife back in and she would walk in the door, he would walk right out that courtroom and right there, take her hand and say, come on, honey, let’s go home. He was not given that option. He is here because of what the Defendants did. And he’s going to ask you to hold them accountable.

Defendants did not interpose an objection to this argument, but it was raised in their posttrial motion for new trial.

3. The Verdicts

At the conclusion of Phase I, the jury found that Patricia was addicted to smoking cigarettes containing nicotine manufactured by Defendants - and as a result she died from lung cancer. The jury found for Plaintiff, allocating 47% of the comparative fault to each Defendant and 6% to Patricia. The jury awarded Plaintiff $10 million in compensatory damages for his pain and suffering. The jury also found for Plaintiff on the intentional torts of concealment and conspiracy to conceal. In addition, the jury found by clear and convincing • evidence that Defendants’ conduct warranted punitive damages. In Phase II, the jury awarded $12.5 million in punitive damages against each Defendant. The’ trial court entered final judgment in favor of Plaintiff holding Defendants jointly and severally liable for the $10 million in compensatory damages and each Defendant liable for $12.5 million in punitive damages.

4. Post-trial Motions

Defendants filed several post-trial motions. Defendants moved for a new trial or, in the alternative, remittitur, arguing that the damage awards were excessive. Defendants also requested to reduce the compensatory damages award by the percentage of comparative fault attributed by the verdict to Patricia. Defendants moved the trial court to apply a credit against the jury’s award of punitive damages based on the amounts paid by PM USA and RJR’s predecessor-in-interest, Lorillard Tobacco Company (“Lorillard”), as part of the Guaranteed Sum Stipulation—a stipulation entered into in the original Engle litigation. Finally, Defendants moved for a new trial on the basis of improper arguments. The trial court denied each - of these motions.

ANALYSIS

1. Deaths Caused by Smoking

Defendants argue that the trial court erred in allowing Plaintiff to introduce evidence and present argument regarding the number of deaths caused by-smoking. Defendants contend this evidence was irrelevant and unduly prejudicial, requiring a new trial. Our standard of review on a trial court’s evidentiary rulings is abuse of discretion. Salazar v. State, 991 So.2d 364, 373 (Fla. 2008). We conclude that the trial court did not abuse its discretion in permitting Plaintiff to introduce evidence .and present .argument regarding the number of deaths caused by smoking as it was relevant to the issue of entitlement to punitive damages (an issue determined by the jury during Phase I of the trial), and bears upon the question of “reprehensibility.” „

Further, the trial court properly guided and limited the jury’s consideration of this evidence by giving the following instruction:

In determining whether punitive damages are warranted, you may not punish a Defendant for any harm suffered by any individuals others than Mr. Ledoux or Mrs, Ledoux. You may consider harms suffered by other persons not parties to this lawsuit in deciding whether to punish a Defendant for the reprehensibility or wrongness of its conduct.

See Philip Morris USA v. Williams, 549 U.S. 346, 355, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (agreeing that harm to others is relevant to the issue of reprehensibility but that “[g]iven the risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is asking the right question;” that is, “seeking, not simply to determine reprehensibility, but also to punish for harm caused [to] strangers”).

2. Closing Arguments

Defendants assert that three arguments made by Plaintiffs counsel during closing argument, described above, were improper and therefore require a new trial. On appeal, Defendants assert that these arguments were a violation of the Golden Rule. A Golden Rule argument .asks the jurors “to place themselves in the plaintiffs’ position and urge[s] them to award an amount of money they would desire if they had been the victims.” Coral Gables Hosp., Inc. v. Zabala, 520 So.2d 653, 653 (Fla. 3d DCA 1988). “[A] golden rule argument '... is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence.” Metro. Dade Cty. v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). “Such arguments constitute reversible er-' ror, if a contemporaneous objection is niáde, because they' strike at the very heart of our justice system.” SDG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). “Even when an attorney does not .explicitly ask the jurors how much money they would wish to receive in the plaintiffs position, comments may violate the Golden Rule if they implicitly suggest that the jury place itself in the plaintiffs position.” Id.

We are dubious, of Plaintiffs characterization of these comments as Golden Rule arguments. Defendants' contend that this characterization is supported by the First District’s decision in Bocher v. Glass, 874 So.2d 701 (Fla. 1st DCA 2004). In Bocher, plaintiffs’ counsel told the jury during closing argument that if a “magic button” were placed in front of Mrs. Williams (naming one of the jurors) and $6 million were placed in front Mr, Brooks (naming another juror), the plaintiffs would walk past the money and press the button to bring their son back,. The First District, found this improper, observing:

Although we recognize that the “magic button” argument did not explicitly ask the jurors how much they would want to receive had.their own child died in an accident, we find it was nonetheless improper. The only conceivable purpose behind counsel’s argument was to suggest that jurors imagine themselves in the place of Jeffrey’s parents. Counsel utilized jurors’ actual names, and even set up the jury box as a prop for the “magic button” and the $6 million. “Golden rule” arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self-interest. See Tremblay v. Santa Rosa County, 688 So.2d 985, 987 (Fla. 1st DCA 1997). The “magic button” argument had the same effect. If jurors are to remain fair decision-makers, the trial court must guard against a deliberate act of counsel that serves to put the jury center stage in the drama that should be the trial.

As the above excerpt demonstrates, the circumstances attendant to that argument—including the staging and use of the jury box as a prop, and utilizing individually-named jurors to play roles in a scene created by counsel, more closely approximate a Golden Rule argument, and distinguish B ocher from the instant case.

This does not end the analysis becausé, whether or not these arguments constituted a Golden Rule violation, we find that they nevertheless were ill-conceived and improper. Although it is evident that Plaintiffs counsel was attempting to illustrate the practical limitations of our civil justice system by arguing to the jury that no monetary award—regardless of the amount—would suffice to give Roland what he truly wanted, the argument was presented in an overly-dramatic manner such that it could evoke the jury’s sympathy. We have expressed in prior opinions the impropriety of similar arguments. See e.g., Philip Morris USA, Inc. v. Cuculino, 165 So.3d 36, 38 (Fla. 3d DCA 2015).

But while we conclude that these arguments were improper, we also conclude that the trial court properly denied Defendants’ motion for mistrial and motion for new trial.

We address Comments Number One and Three together, as neither were properly preserved at trial. As to Comment Number One, Defendants are urging, as a basis for reversal, a different objection, than the one they raised at trial. As previously explained, Defendants contend in this' appeal that the argument was a Golden Rule violation; however, the objection actually interposed at trial was “Objection, there’s no evidence of this.” This objection failed to place the trial court on notice of the error that Defendants now assert in this appeal. See Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla. 1987) (holding that “to preserve an issue for appellate reviéw, the specific legal argument or ground upon which it is based must be presented to the trial court”); Connolly v. State, 172 So.3d 893, 902 (Fla. 3d DCA 2015). By failing to properly preserve this objection, Defendants waived the issue for appeal, absent a showing of fundamental error. See McDonald v. State, 743 So.2d 501 (Fla. 1999). In like fashion, Defendants’ failure to make any contemporaneous objection, to Comment Number Three also waived this claim for appellate review absent a showing of fundamental error.

As to .these unpreserved' comments, we conclude that the trial court did not abuse its discretion in denying the motion for new trial. Upon this record, we determine that these comments did not rise to the level of fundamental error, Brooks v. State, 762 So.2d 879, 898-99 (Fla. 2000), and that the trial court could reasonably conclude “that the improper closing argument ... was not harmful, incurable, or of a character to so damage the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1032 (Fla. 2000).

Comment Number Two was properly preserved by an objection. The trial court correctly sustained that objection but no curative instruction was requested or given and a motion for mistrial was thereafter denied. We review the trial court’s denial of a motion for mistrial and motion for new trial for an abuse of discretion. Cuculino, 165 So.3d at 39. “If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’ ” Id. (quoting Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006)). We find no abuse of discretion in the trial court’s denial of the motion for mistrial and subsequent denial of the motion for new trial, and conclude that the argument was not so highly prejudicial as to deny Defendants a fair trial.

Finally, considering the cumulative effect of both the preserved and unpre-served errors in closing argument, we find no abuse of discretion in its denial of Defendants’ motion for new trial, as the improper arguments did not deprive Defendants of a fair trial. See Brooks, 762 So.2d at 899 (the standard applicable to consideration of the cumulative effect of both the objected-to and unobjected-to closing argument is whether the appellant was denied a fair trial).

3. The Verdict

a. Compensatory Damages Award

Defendants argue that the $10 million compensatory damage award is excessive and that the trial court erred in denying Defendants’ motion for remitti-tur. We apply an abuse of discretion standard in reviewing a trial judge’s denial of a motion for remittitur of a compensatory damages award. Glabman v. De La Cruz, 954 So.2d 60 (Fla. 3d DCA 2007). Because damages are inherently difficult to measure, such a decision is generally one to be made by the jury, not by an appellate court. R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 311 (Fla. 1st DCA 2012). Further, “the law has long given considerable deference to the trial court’s decision [on a motion for remittitur] because of the unique vantage point which the trial court has to personally observe the witnesses and jury and to assess the credibility and manifest weight of the evidence—as opposed to the appellate court which has only a cold record to review.” Rety v. Green, 546 So.2d 410, 418 (Fla. 3d DCA 1989). See also Lorillard Tobacco Co. v. Alexander, 123 So.3d 67 (Fla. 3d DCA 2013). This longstanding principle of deference to the trial court’s review of a jury’s damages award is reinforced by section 768.74, Florida Statutes (2016) entitled “Remittitur and additur,” which provides:

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 inade-guate in light of the facts and circumstances which were presented to the trier of fact.
(2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.
(3) It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.
(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.
(5) In determining whether 'an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
(6)It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact in light of a standard of exces-siveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of this state.

(Emphasis added).

An award of damages may not be declared excessive merely because it is above the amount which the trial court itself may believe the jury should have awarded. Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla. 1976); Townsend, 90 So.3d at 311. In assessing whether the award is excessive, the “trial court does not sit as a seventh juror. Neither does the reviewing court reserve the prerogative to overturn a damages verdict with which it merely disagrees.” R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 336 (Fla. 1st DCA 2012) (quoting Dyes v. Spick, 606 So.2d 700, 702 (Fla. 1st DCA 1992)). “The verdict should be disturbed only when ‘it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.’ ” Townsend, 90 So.3d at 311 (quoting Bould v. Touchette, 349 So.2d 1181, 1184 (Fla. 1977)).

Upon our consideration of the record in this case as well as other compensatory damages awards in similar Engle-progeny cases, and giving proper deference to the jury’s award and the trial court’s subsequent review of that award, we cannot conclude that the trial court abused its discretion in denying Defendants’ motion for remittitur,- as we cannot say that the damages award “obviously- exceeds the ‘reasonable range within which .the jury may. properly operate.’ ” Townsend, 90 So.3d at 311-12 (quoting Bould, 349 So.2d at 1185) (affirming trial court’s denial of motion for remittitur of $10,8 million compensatory damages award in Engle-proge-ny case). See also Alexander, 123 So.3d at 79 (affirming trial court’s order remitting compensatory damages award from $20 million to $10 million, and holding it was appropriate to defer to “[tjhe trial court, [which] is in the best position to determine whether the compensatory damage award is excessive”),

b. Reduction of Compensatory Damages Based Upon .Comparative Fault

Defendants next contend that they are entitled to a reduction in compensatory damages based oh the jury’s finding of comparative fault. Conceding'that, in a negligence action, such a reduction would be appropriate, Plaintiff counters that no. reduction of the award is warranted in the instant'Case because, at its core, the case is founded upon an intentional tort. For this proposition, Plaintiff relies upon section 768.81, Florida Statutes (2016), entitled "Comparative fault.” That statute provides in pertinent part: ■

(1) Definitions.—As used in this section, the term:-
(c) “Negligence action” means, without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, .professional malpractice whether couched in terms of contract or tort, or breach of warranty, and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.

Subsection (2) further provides:

(2) Effect of contributory fault.—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury'attributable to the claimant’s contributory fault, but does not bar recovery.

Subsection (4) provides:

(4) Applicability.—This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of,joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895.

(Emphasis added.)

In R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), the trial court denied the defendant’s motion to reduce the plaintiffs compensatory damages award by the smoker’s comparative fault based on its conclusion that the “core” of the plaintiffs suit was founded upon an intentional tort. Id. at 852. The First District found no abuse of discretion in the trial court’s determination that although the plaintiff pleaded negligence and strict liability, the additional allegations of the intentional torts and the proof of affirmative, calculáted misrepresentations in the tobacco companies’ advertising and other publications supported its conclusion that at its 'Core, the action involved an intentional tort. Id.

In R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), the trial court, determined that,- at its core, plaintiffs suit was a product liability suit based on conduct grounded in negligence, and therefore reduced the compensatory damages award based on the plaintiffs comparative fault. The Fourth District, applying a de novo standard of review, affirmed the trial court’s determination. Id. at 496.

Upon our de novo review, we hold that, in the instant case, the trial court properly denied Defendants’ request because at its core this was an “action based . upon an intentional tort.” § 768.81(4). See also Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 563 (Fla. 1997) (acknowledging that “[t]he words chosen ‘based upon an intentional tort,’ imply to us the necessity to inquire whether the entire action against or involving multiple parties is founded or constructed on an intentional tort. In other words, the issue is whether an action comprehending one or more negligent torts actually has at its core an intentional tort by someone”). Therefore, the trial court did not err in denying Defendants’ motion to reduce the compensatory damages award by the per-centagé of comparative fault assigned by the jury to Patricia.

We find that the other arguments advanced by Defendants are without merit and affirm on those points without further discussion.

Affirmed.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006) began as a smokers’ class action lawsuit filed in 1994 against cigarette companies and tobacco industry organizations seeking damages for smoking-related illnesses and deaths. The class included all Florida “citizens and residents, and their survivors, who have suffered, presently suffer or who have . died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." Id. at 1256. In Engle,' the. Florida Supreme Court- decertified the class, but held that certain jury, findings from the class action would have res judicata effect in any subsequent lawsuits by individual class members seeldng damages from the defendants. Philip Morris USA Inc. and R.J. Reynolds Tobacco Company were defendants in Engle.

      . This is an apparent reference to the decision in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).

      . This is an apparent reference to the decision in Philip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). See discussion infra at 535-36.

      . Defendants further argue that if the remitted amount is more than $1 million, Defendants reserve their right to reject the remitti-tur in favor of a new trial on compensatory damages as well as punitive damages.

      . We note that the First District in Sury applied an abuse of discretion standard.to a review of this determination, while the Fourth District in Schoeff applied a de novo standard. The Florida Supreme Court granted review of Schoeff based upon express and direct conflict with Sury. Schoeff v. R.J. Reynolds Tobacco Co., SC15-2233 (oral argument held March 8, 2017). We agree with the Fourth District in this regard, and apply a de novo standard to review of the trial court’s determination. In doing so, we acknowledge conflict with the standard of review applied by the First District in Sury.

      . We note that, among these issues, Defendants have asserted that Plaintiffs use of and reliance upon the Engle findings violates due process, and that Defendants were entitled to a credit against the punitive damages judgment, based on the Guaranteed Sum Stipulation arising out of the original Engle litigation.


author: LOGUE, J.

text:
    TRG COLUMBUS DEVELOPMENT VENTURE, LTD, Appellant, v. Luis SIFONTES, Appellee.
    No. 3D16-2323
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017

      Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samóle, and Katherine M. Clemente, for appellant.
    Vila, Padrón & Diaz, P.A., and Kara D. Phinney, for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   LOGUE, J.

TRG Columbus Development Venture, LTD, appeals a second final judgment awarding appellate attorney’s fees and costs to Luis Sifontes. Because the trial court incorrectly concluded it was bound by the law of the case, we reverse the award of a multiplier. We affirm all remaining portions of the judgment without further comment.

Sifontes previously prevailed in a breach of contract action against TRG. This court affirmed the final judgment. TRG Columbus Dev. Venture, LTD, LLC v. Sifontes, 138 So.3d 458 (Fla. 3d DCA 2014) (table decision). The trial court awarded attorney’s fees to Sifontes based on the underlying breach of contract action and subsequent appeal. TRG then appealed that award of fees, and in a written opinion this court affirmed, concluding that the trial court did not abuse its discretion in determining the reasonable hourly rate and awarding a contingency fee multiplier of 2.0 for trial fees. TRG Columbus Dev. Venture, LTD. v. Sifontes, 163 So.3d 548 (Fla. 3d DCA 2015) (Sifontes II). This court then granted Sifontes’ motion for appellate attorney’s fees based on a prevailing party provision in the underlying contract, and we remanded to the trial court for determination of amount.

Following a September 2016 hearing on fees, the trial court entered the final judgment at issue in this appeal. The trial court awarded Sifontes a total of $234,210.28 in appellate attorney’s fees. It found that 230.5 hours billed were compensable at an hourly rate of $450. Concluding that a multiplier was law of the case based on this court’s prior decision in Sifontes II, the trial court applied a multiplier of 2.0 to the lodestar of $103,725. We reverse the application of the multiplier.

As this court has recognized, “[t]he application of a multiplier is the exception, not the rule” and the “strong presumption” that the lodestar figure is reasonable is overcome only in exceptional and rare circumstances. State Farm Fla. Ins. Co. v. Alvarez, 175 So.3d 352, 357-58 (Fla. 3d DCA 2015). In order for a trial court to award a contingency fee multiplier, it must consider the following three factors:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel;
(2) whether the attorney was able to mitigate the risk of nonpayment in any way; and
(3) whether any of the factors set forth in [Fla. Patient’s Comp. Fund v.] Rowe[, 472 So.2d 1145 (Fla. 1985)] are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990).

Here, the trial court acknowledged that it did not conduct any inquiry as to the Quanstrom factors. Instead, it concluded— based on the reasoning of Stack v. Lewis, 641 So.2d 969 (Fla. 1st DCA 1994) and Board of Trustees of the Jacksonville Police & Fire Fund v. Kicklighter, 122 So.3d 510 (Fla. 1st DCA 2013)—that it was bound by law of the case to apply the multiplier that was previously applied to the litigation on the merits and affirmed by this court in Sifontes II.

In Stack, the First District affirmed a multiplier for both appellate fees and trial fees, concluding that “there is no reason to treat the appellate hours differently from the trial hours.” 641 So.2d at 970. And in Kicklighter, the First District relied on Stack to affirm a multiplier for appellate fees, noting, “when a trial court makes the determination as to the appropriateness of a fee multiplier, that same determination applies to the appellate fees expended by the same counsel in litigating the case on appeal.” 122 So.3d at 511.

But Stack and Kicklighter are inapplicable here. Those cases involved fees earned from direct appeals on the merits where any litigation over fees was only tangential. The fees at issue here do not concern an appeal on the merits. Instead, they largely concern the fees for a separate appeal regarding the extent and amount of appellate fees after an appellate court already determined entitlement to appellate attorney’s fees. At this stage, where fees—not merits—are the only issue, and after the basic entitlement to fees has already been awarded by a prior appellate decision, there is in fact “reason to treat the appellate hours differently from the trial hours.” See Stack, 641 So.2d at 970. Absent evidence of the applicability of the Quanstrom factors, the presumption that the novelty, difficulty, and complexity of a case will be reflected in the number of hours reasonably spent on the litigation returns to govern the dispute. Alvarez, 175 So.3d at 357-58.

Accordingly, because the trial court incorrectly concluded it was bound by the law of the case, we reverse the award of a multiplier without prejudice to the court awarding a multiplier in the event it properly finds the Quanstrom factors are met after the appropriate hearing. We remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded. ' • -


text:
    A.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-220
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017.
    A.C., a juvenile, in proper person. .
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J.j and SUAREZ-and SALTER, JJ.
   PER CURIAM.

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, this Court deferred ruling on a motion of the public defender to withdraw as counsel for the juvenile appellant. The appellant was provided with a copy of the public defender’s memorandum brief, and allowed a reasonable specified time within which to raise any points in support of his appeal. As the appellant has failed to respond, and-after full examination of the proceedings, we conclude that the appeal is wholly frivolous. We thus grant the public defender’s motion to withdraw, and the order adjudicating the appellant delinquent is hereby affirmed.


text:
    The SEMINOLE TRIBE OF FLORIDA and City of Miami, Appellants, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Florida Environmental Regulation Commission, Appellees.
    Nos. 3D16-2440 & 3D16-2129
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017

      Lewis Longman & Walker P.A., and Amy Taylor Petrick, Andrew J. Baumann, Rachael B. Santana, and Christopher D. Johns (West Palm Beach), for appellant The Seminole Tribe of Florida; Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellant City of Miami. _
    Robert A. Williams, Chief Deputy General Counsel, and Francine M, Ffolkes, Deputy General Counsel, Florida Department of Environmental Protection (Tallahassee), for appellees.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   PER CURIAM.

In these consolidated appeals, The Seminole' Tribe of Florida (“the "Seminole Tribe”) and the City of Miami (“the City”) appeal from a corrected order entered by the Division of Administrative Hearings dismissing their petitions for administra-five determination of invalidity of proposed rule revisions (“rule challenge petitions”) as untimely filed pursuant to section 120,56(2)(a), Florida Statutes (2016). We reverse the corrected order dismissing the Seminole Tribe’s and the City’s rule challenge petitions as untimely and remand for further proceedings.

The consolidated order on appeal dismissed the rule challenge petitions filed by four petitioners, the Seminole Tribe, the City, Florida Pulp and Paper Association Environmental Affairs, Inc. (“Florida Pulp and Paper”), and Martin County, based on the administrative law judge’s determination that each petition was untimely filed pursuant t,o section 120.66(2)(a). Following the entry of the corrected order of dismissal, the Seminole Tribe and the City filed their- appeals, which appeals were consolidated by this Court, and Florida Pulp and Paper appealed to the First District Court of Appeal.

In the appeal before the First District Court of Appeal' and in the consolidated appeals before this Court, it was argued that the rule challenge petitions were timely because they were filed, as required by section 120.56(2)(a), “within 20 days after the ... reviéed statement of Estimated regulatory costs, if applicable, has been prepared and made available as provided in s. 120.541(l)(d).” Prior to this Court’s oral argument, the First District issued an opinion reversing the corrected order of dismissal as to Florida Pulp and Paper and remanded for further proceedings. Fla. Pulp & Paper Ass’n Envtl. Affairs, Inc. v. Dep’t of Envtl. Prot., 223 So.3d 417 (Fla. 1st DCA 2017). We agree with and adopt our sister court’s well-reasoned opinion, which is applicable to the consolidated appeals before this Court, and therefore, we reverse the corrected order of dismissal as to the Seminole Tribe and the City and remand for further proceedings.'

Reversed and remanded.

      . The rule challenge petitions were filed on the following dates: , August 8, 2016 by the Seminole Tribe; August 19, 2016 by the City; August 23, 2016 by Florida Pulp and Paper; and August 25, 2016 by Martin County,

      . Martin County did not file an appeal.

      .The factual and procedural background and the analysis are set forth in the First District’s opinion.

      . As in the appeal before the First District, the Seminole Tribe and the City also asserted that their rule challenge petitions were timely filed pursuant to a separate "point of entry” set forth in section 120.56(2)(a), which allows for a petition to be filed "within 20 days after the date of publication of the notice required by s. 120.54(3)(d).” Because we have determined that the Seminole Tribe’s and the City’s rule challenge petitions were timely filed based on the point of entry relating to the revised statement of estimated regulatory costs, we need not and decline to address this additional argument raised on appeal.