author: M.K. THOMAS, J.

text:
    TECO ENERGY, INC. and Teco Services, Inc., Appellants, v. Michael K. WILLIAMS, Appellee.
    CASE NO. 1D17-0233
    District Court of Appeal of Florida, First District.
    Opinion filed December 19, 2017
    Rehearing Denied February 5, 2018

      Gwen G. Jacobs of Bennett, Jacobs, ,& Adams, P.A., Tampa, for Appellants.
    Laurie Thrower Miles of Miles and Parrish, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   M.K. THOMAS, J.

Teco Energy, Inc. and Teco Services, Inc. (“E/C”), appeal a final order awarding compensability of a total knee replacement for Michael Williams (“Claimant”) and related' attorney fees and costs. The E/C argues the Judge of Compensation Claims (“JCC”) erred by, 1) barring, as a matter of law, its defense of major contributing cause (“MCC”); and 2) applying, sua sponte, the “120-Day Rule” pursuant to section 440.20(4), Florida Statutes, as a limitation of available defenses. We agree and reverse.

Factual & Procedural History

On April 25, 2013, Claimant, a journeyman electrician, experienced pain in his left knee after slipping on the step of a pick-up truck at work. The E/C accepted compensability of the left knee injury and authorized medical care with Dr. Morse, an orthopedic surgeon. In February of 2011, Dr. Morse treated Claimant for a non-work related injury to the right knee, which required surgery. During that treatment, the doctor also examined the Claimant’s left knee. Dr. Morse noted Claimant’s left knee symptoms in 2011 included significant medial compartment pain, suggestive of either arthritis or a preexisting tear, but the doctor saw no need for treatment of the left knee at that time.

When Dr. Morse examined Claimant after the April 25, 2013, workplace injury to the left knee, he reported significant preexisting left knee arthritis as confirmed by X-rays and an MRI. When compared to the 2011 examination, Claimant demonstrated more symptoms for grinding and pain behind the left kneecap. However, Claimant’s symptoms were concentrated in the medial joint line which correlated with an acute injury of a medial meniscal tear. Dr. Morse recommended left knee surgical repair, and indicated seventy percent of the need for surgery was related to an aggravation from Claimant’s underlying work injury, and thirty percent was related to preexisting left knee arthritis.

The E/C authorized the left knee surgery. According to Dr. Morse, the surgery revealed minimal arthritis in the medial joint line and moderate arthritis behind the kneecap. Following the surgery, Dr. Morse placed Claimant at maximum medical improvement (“MMI”) effective March 20, 2014, and assigned a three percent permanent impairment rating. As of the MMI date, Claimant’s left knee was asymptomatic regarding the medial joint line with minimal symptoms of mild achiness associated with the arthritis.

At the next office visit, almost a year later, Dr. Morse administered an injection to Claimant’s left knee due to complaints of occasional aches and pain. In the medical record documenting the visit, Dr. Morse detailed the complaints were associated with Claimant’s arthritis and activity level. In the Uniform Medical Treatment/Status Reporting Form (DWC-25) completed on March 12, 2015, Dr. Morse noted that a steroid injection was performed with no other change in status.

Subsequently, Claimant advised of pain and stiffness on the inside of the left knee, which Dr. Morse reported as typically associated with arthritis. In an April 9, 2015 clinical note, Dr. Morse detailed:

Currently, he has signs and symptoms consistent with degenerative arthro-sis... At this period of time, we recommend that the patient proceed with conservative management consisting of viscosupplementation and providing medial unloader brace. The treatment will be for the degenerative arthrosis and is not intended to treat the initial work injury. The patient will maintain his current maximal medical improvement status and does not need any limitation at work.

In the DWC-25 form for that visit, Dr. Morse again documented no change with regard to the prior responses to causation questions, but commented that the complaints for which Claimant sought treatment were not work-related and that Claimant remained at MMI with the same impairment rating. After office visits in May and June, Dr. Morse confirmed no change in status on the DWC-25 forms, and the carrier approved an injection to the left knee.

By October 1, 2015, Claimant was complaining of constant aching pain in the left knee with occasional feelings of instability. Dr. Morse diagnosed tri-compartmental primary osteoarthritis of the left knee and left knee medial meniscus tear, post-surgery. Dr. Morse recommended a left total knee replacement. At deposition, he opined that Claimant’s preexisting condition, not the workplace injury, was the MCC of the need forthe recommended surgery.

Claimant filed a Petition for Benefits requesting authorization of the left total knee replacement. The E/C filed a timely response denying' compensability and asserting that the work place accident was not the MCC of the need for the surgery. In the Pre-Trial Stipulations, the E/C stipulated to the compensability of the left knee meniscus tear only “so long as it is and remains MCC,” and denied responsibility for the preexisting arthritis, among other defenses. Claimant nor the E/C asserted any “affirmative claims or defenses” in the Pre-Trial Stipulation.

Claimant obtained an IME with Dr. Fiore, who opined that the MCC of the need for the left total knee replacement was the work accident even though Claimant had pre-existing degenerative arthritis, as the continued pain was the factor necessitating surgery. Due to the conflict in medical experts, the E/C requested, and the JCC appointed, an expert medical ad-visor (“EMA”) pursuant to section 440.13(9), Florida Statutes. The EMA, Dr. Horan, noted Claimant’s similar history of knee problems on the right side and indicated it was “very likely that his left knee and right knee are following the exact same progression of osteoarthritis,” but that the recent exacerbation, which was accepted as an acute meniscal tear, “just accelerated his [left] knee for the total knee arthroplasty [replacement].”. The EMA concluded that he would “place the majority of the causation... on the preexisting osteoarthritis.” In his deposition, Dr. Horan testified that the viscosupple-mentation injection performed by Dr. Morse, as well as the recommended use of a brace, were treatments for degenerative joint disease, not a meniscal tear. Dr. Hor-an predicted .Claimant would also require a right total knee replacement in the future, due to the osteoarthritic condition.

. Prior to the merits' hearing, pre-trial memoranda were filed by .the parties setting out the claims and defenses. Claimant’s memorandum did not raise the “120-Day Rule” under section 440.20(4) or attach case law concerning its application or any mention of waiver. At the merits hearing, Claimant introduced the deposition of the claims adjuster. The adjuster testified that the E/C authorized Dr. Morse to treat Claimant “for his left knee injury.” ,When asked whether there was “any determination made as to what specific condition was compensable,” she responded “[w]e authorized his left knee to get treated.” She stated further that all treatment provided by Dr. Morse had been authorized, and that all submitted bills had been' paid. The adjuster testified that Dr. Morse’s October 1, 2015, report was the first information she received indicating some percentage of Claimant’s left knee problem was related to a preexisting condition. She later confirmed she received the April 9,2015, medical report and that- she subsequently authorized the viscosupplementation injection recommended in that report.

In closing argument at the final hearing, Claimant specifically argued that the E/C accepted his left knee condition, including the preexisting arthritis, as a compensable workplace injury pursuant to section 440.13(1)(b), Florida Statutes. Citing the definition of “compensable” under this subsection, Claimant relied, in part, on the evidence 'that the E/C authorized the treatment expressly recommended by Dr. Morse to treat the degenerative arthritis, not the workplace injury of a medial men-iscal tear. Based on the E/C’s authorization for treatment of the arthritis, Claimant asserted that the E/C had accepted compensability of the arthritis and had the burden of showing a. break in causation, which they failed to do. In the alternative, Claimant argued the arthritis could not be considered a contributing cause in any MCC analysis because the condition did not qualify as a “preexisting condition” under section 440.09(l)(b), Florida Statutes.

In response, the E/C asserted that Claimant failed to satisfy his burden regarding MCC with respect to ongoing medical care. Further, regarding section 440.13(l)(b), a break in the causal chain occurred when the E/C’s liability fell below fifty percent. In the final order, the JCC unequivocally accepted the EMA’s medical opinion that Claimant’s preexisting arthritis — not the accidental compensable injury of a meniscal tear — was the MCC of the need for the requested left total knee replacement. Nevertheless, the JCC ultimately concluded that,- as a matter of law, the E/C was precluded from raising MCC related defenses because: 1) Claimant’s prior arthritic knee condition could not be considered a contributing cause, as it did not qualify as a “preexisting condition” in accordance with case law; and 2) pursuant to “120-Day Rule” of section 440.20(4), the E/C waived the right to deny compensability of the preexisting arthritic condition. This appeal followed.

Legal Analysis

To the extent- an issue turns on resolution of the facts, the standard of review is competent substantial evidence (“CSE”)';' to the extent it involves an interpretation of law, the standard is de novo. Benniefield v. City of Lakeland, 109 So.3d 1288, 1290 (Fla. 1st DCA 2013).

Qualifying Preexisting Conditions

Qnce compensability of a work accident is established, an E/C may no longer contest that the accident is the MCC of the injuries. However, an E/C may thereafter challenge the connection between a claimant’s need for specific treatment or benefits and the industrial accident. Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613, 614 (Fla. 1st DCA 2009); see also City of Pembroke Pines v. Ortagus, 50 So.3d 31 (Fla. 1st DCA 2010) (holding E/C must pay for treatment as long as compensable condition remains MCC of need for treatment). When a work related injury combines with a preexisting disease or condition to cause or prolong disability or the need for treatment, the E/C must pay benefits “only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the [MCC] of the disability or ■need for treatment.” § 440.09(1), Fla. Stat. (emphasis added).

Section 440.09(1) does not enumerate “all other causes” for MCC analysis, but subsections (a) and (b) provide some distinct limitations — to qualify the causes must be (1) subsequent injuries, or (2).preexisting injuries and conditions. See Cespedes v. Yellow Transp., Inc, 130 So.3d 243 (Fla. 1st DCA 2013). As this Court summarized in Cespedes, “under the text of section 440.09(1)(a)-(b), MCC analysis cannot be performed in a vacuum or, particularly, in the absence of competing causes.” Id. Thus, MCC has no application unless there is evidence of a competing cause qualifying under one of the designated categories. Here, no evidence was presented regarding subsequent injury. Accordingly, as the JCC correctly noted, the question remaining was whether evidence existed of a qualifying “preexisting injury or condition.”

The JCC assumed that, for purposes of 440.09(l)(b), a preexisting condition “must have produced the need for medical care before the accident or caused claimant to have some disability or impairment.” The ,JC.C further concluded Claimant’s preexisting knee arthritis, while symptomatic as early as 2011, was not a qualifying preexisting condition, because it required no medical treatment or caused disability or impairment before the 2013 workplace injury.

This Court previously announced the test to determine whether a preexisting condition qualifies for MCC analysis. See Osceola Cty. Sch. Bd. v. Pabellon-Nieves, 152 So.3d 733, 734 (Fla. 1st DCA 2014) (clarifying Bysczynski v. United Parcel Servs., Inc., 53 So.3d 328 (Fla. 1st DCA 2010)). The inquiry is whether .the condition independently , required treatment either before or after the compensable accident. Pabellon-Nieves, 152 So.3d at 734; Certistaff, Inc. v. Owen, 181 So.3d 1218, 1221-22 (Fla. 1st DCA 2015) (finding that JCC erred in focusing on whether claimant received physician-provided treatment for shoulder “to the exclusion of other evidence that Claimant was in fact experiencing shoulder pain before the workplace accident and the objective medical evidence of pre-existing shoulder conditions contributing to, if not causing his symptoms”). The test is not limited to whether a claimant was, or recently had been, undergoing physician-provided medical treatment for the preexisting condition before the compensable accident. “It does not matter whether a preexisting condition is ‘age-appropriate;’ what matters is whether there is medical evidence that it is the major contributing cause of'the need for the requested treatment.” Pabellon-Nieves, 152 So.3d at 734.

In Pabellon-Nieves, the JCC appropriately considered, “the nature of the preexisting condition-including the level of treatment necessitated by the preexisting condition prior to the date of the accident, as compared to Claimant’s current condition and need for the treatment” after the compensable accident. 152 So.3d at 734. Here, the JCC expressly held that Dr. Morse’s treatment on April 9, 2015, was “necessitated solely by Claimant’s osteoarthritis and [was] not necessary because of Claimant’s accident.” As a-result, the osteoarthritis qualifies as a preexisting condition for purposes of an MCC analysis under paragraph 440.09(1)(b), and per the EMA, independently required the medical treatment at issue.

For the above reasons,, we find that Claimant’s osteoarthritis qualified as a preexisting condition under section 440.09(1)(b), and its consideration in the MCC analysis appropriate.

“The 120-Day Rule”

Section 440.20(4), commonly referred to as the “120-Day Rule,” allows a carrier the option of paying and investigating a claim for up to 120 days. Further, a carrier who fails to deny compensability within that 120 days after the initial provision of benefits waives the right to deny compensability, unless material relevant facts could not have been discovered during the 120 day period. § 440.20(4). Once aware of the need for medical benefits for a particular condition or injury, the carrier has three options: pay, pay and investigate within 120 days, or deny. Bynum Transp., Inc. v. Snyder, 765 So.2d 752 (Fla. 1st DCA 2000); see also Kestel v. City of Cocoa, 840 So.2d 1141, 1142 (Fla. 1st DCA 2003). A condition or injury may be deemed compensable if the carrier begins payment for that condition or injury and fails to investigate within the 120 days, or fails to deny compensability within that time period. Kestel, 840 So.2d at 1142.

The “120-Day Rule” is not necessarily rendered obsolete on the 121st day after the first report of accident and initial installment of benefits. The rule remains viable and is again, triggered when, and if, a new condition or injury arises. Snyder, 765 So.2d at 754; Boyle v. JA Cummings, Inc., 212 So.3d 1060, 1062-63 (Fla. 1st DCA 2017) (holding JCC erred by excluding adjuster’s testimony concerning specific identity of condition accepted as com-pensable as it related to application of subsection 440.20(4) to preexisting condition); McIntosh v. CVS Pharmacy, 135 So.3d at 1157, 1159 (Fla. 1st DCA 2014) (“It was of no consequence that compensa-bility [of the claimant’s PTSD] was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD.”).

Here, the EMA’s uncontroverted opinions established Claimant’s preexisting arthritic condition as the primary — if not the sole — cause of the need for the left knee surgery. Accordingly, Claimant was unable to satisfy his burden of proof regarding the MCC requirements of section 440.09(1). Regardless, the JCC ultimately barred the E/C from raising the MCC defense citing waiver pursuant to the “120-Day Rule.” In the order, the JCC applied the analysis discussed in Sierra v. Metropolitan Protective Services, 188 So.3d 863, 867 (Fla. 1st DCA 2015), to find: (1) the date the E/C first provided the benefits; (2) the specific identity of the injury for which benefits were provided; and (3) whether the E/C timely denied compensability of that injury within the 120 day period immediately following the provision of benefits for that injury. Id. at 867. CSE supports the JCC’s subsequent findings that the E/C provided medical treatment in April of 2015, that the treatment was necessitated solely by the osteoarthritis (not the accident), and that the E/C failed to deny the compensability of the osteoarthritis within the 120 days following the initial provision of treatment for that condition. However, as Claimant never raised the “120-Day Rule” as a “defense,” the JCC’s unilateral initiative to apply analysis under Sierra was flawed.

In School District of Hillsborough County v. Dickson, 67 So.3d 1080 (Fla. 1st DCA 2011), nearly identical issues were addressed. This Court determined that the JCC violated the due process rights of the E/C by sua sponte raising waiver under subsection 440.20(4); specifically, by “mis-characterizing section 440.20(4) as ‘mandatory’ and ‘not in the nature of an affirmative defense,’ the JCC improperly denied the E/C the opportunity to establish material facts that could be used to prove it did timely deny benefits.” Id, at 1083. A claimant’s “defense” of waiver to an E/C’s ability to deny compensability of an accident or specific injury/condition pursuant to the “120-Day Rule,” is an affirmative pleading which must be timely raised and specifically plead.

Waiver and estoppel are affirmative defenses which must be plead carefully or forever waived. McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177, 1180 (Fla. 1st DCA 1982). The party raising affirmative defenses has the burden of pleading and proving them. Id. at 1180. A JCC is not permitted to raise, sua sponte, waiver under the “120-Day Rule.” Dickson, 67 So.3d at 1083; see also Fla. Admin. Code R. 60Q-6.113(2)(a),(h). We find no merit to Claimant’s argument that waiver was tried by consent due to inferences during closing arguments.

Claimant argues the pretrial stipulation contained the “substance” of the waiver defense under section 440.20(4) and, as such, was properly raised. This Court recently rejected an argument that an issue was “implicitly” raised in a pretrial stipulation. See McFarlane v. Miami-Dade Transit Auth., 215 So.3d 658 (Fla. 1st DCA 2017). But, even assuming in light of McFarlane that Florida Administrative Code Rule 60Q-6.113(2)(h) permits an affirmative defense to be raised “in substance,” there is no such evidence in this case. The E/C specified in the pretrial stipulation that the preexisting arthritic condition was denied; yet, Claimant made no reference to the condition. Instead, Claimant plead that he was pursuing the claim “as both a specific accident and injury as well as a repetitive and cumulative trauma to Claimant’s left knee.” The JCC noted that Claimant subsequently abandoned any argument based on repetitive and cumulative trauma. It was not until the trial memorandum that Claimant suggested, for the first time, that he was relying on the compensability of the preexisting condition itself. But, as in McFar-lane, the trial memorandum was filed very shortly before the final hearing. Moreover, in the instant case, Claimant never expressly argued at any point that the preex-feting condition was compensable pursuant to section .440.20(4),

Conclusion

We reverse the JCC’s determination that the E/C was barred, as a matter of law,, from asserting a MCC defense regarding the left total knee replacement. Claimant’s preexisting osteoarthritis is a qualifying preexisting condition under section 440.09(l)(b). As an affirmative defense, the “120-Day Rule” pursuant to section 440.20(4), must be timely and specifically plead by a claimant and may not be raised, sua sponte, by the JCC. Accordingly, based, on the opinions of the EMA that the preexisting osteoarthritis, and not the effects of the work accident, is the MCC of the need for the left total knee replacement, the surgery is not compensa-ble.

The final order on appeal is REVERSED.

B.L., THOMAS, C.J., and WETHERELL, J., CONCUR.

      . The Uniform Pre-Trial Stipulation form provides a specific section for the listing of "Affirmative Claims and Defenses.”

      . If the preexisting condition is due to an industrial accident, it does not qualify under section 440.09(1)(b). See Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007); Pizza Hut v. Proctor, 955 So.2d 637 (Fla. 1st DCA 2007).

      . Fla. Admin. Code R. 60Q-6.113(2)(a), states: In pretrial stipulations and at any pretrial hearing, the parties shall: (a) State the claims, defenses, and the date of filing of each petition for benefits to be adjudicated at the final hearing. Any claims that are ripe, due, and owing, and all available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown...
      Fla. Admin. Code R. 60Q-6.113(2)(h) requires, ”[a]ny defense raised pursuant to Sections 440.09(4)(a) and 440.105, F.S., and any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days. Failure to plead with specificity shall result in the striking of the defense. Any objections/responses to the affirmative defenses must be pled with specificity.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BAY LIFE AIR CONDITIONING, INC., a Florida Corporation, Appellant, v. K&C CORK & BOTTLE, LLC d/b/a Two Henrys Brewing, a Florida Limited Liability Company, Appellee.
    Case No. 2D17-1164
    District Court of Appeal of Florida, Second District.
    Opinion filed December 20, 2017
    Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Appellant.
    Gregory D. Jones and -Jordan L. Behl-man of Rywant Alvarez Jones Russo & Guyton, Tampa, for Appellee.
   PER CURIAM.

This appeal is dismissed as from a nonfi-nal, ndnappealable order. See Fla. R. App. P. 9.130(a)(3); cf. Hayward & Assocs., Inc. v. Hoffman, 793 So.2d 89, 91 (Fla. 2d DCA 2001) (“[l]t is well-established that an order that merely grants a motion to dismiss, as contrasted with an order dismissing a complaint or an action, is not a final order.”); GMI, LLC v. Asociacion del Futbol Argentino, 174 So.3d 500, 501 (Fla. 3d DCA 2015) (“It is the dismissal of the case that is final and appealable, not an order simply granting a motion.”).

LaROSE, C.J., and CASANUEVA and VILLANTI, JJ., Concur.


author: PER CURIAM.'

text:
    21ST CENTURY CENTENNIAL INSURANCE COMPANY, Appellant, v. Elizabeth THYNGE and Howard Thynge, Appellees.
    Case No. 5D16-1575
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017
    Rehearing Denied January 16, 2018

      Rosemary B. rWilder, of Marlow, Adler, Abrams, Newman & Lewis, Coral Gables, Katherine E. Giddings apd Diane G. De-Wolf, of Akerman, LLP, Tallahassee, Irene A. Bassel-Frik and Jason L. Margo-lin, of Akerman, LLP, Tampa, for Appellant.-
    Annabel C. Majewski, and Roy D. Was-son, of Wasson & Associates, Chartered, Miami; .and- Jason Herman and Karen Wasson, of The Law Offices of Dan Newlin <& Partners, Orlando, for Appellees.
   PER CURIAM.'

21st Century Centennial Insurance Company (“21st Century”) appeals the trial court’s order granting' a, new trial and directing a verdict in favor of Elizabeth and Howard Thynge (“Appellees”), Because the trial court incorrectly entered judgment in accordance with the directed verdict and granted a new trial, we reverse and remand for reinstatement of the jury verdict. '

This appeal arises from Appellees’ claim for uninsured/under-insured motorist coverage against 21st Century after a 2013 motor vehicle accident. Before trial, the lower court struck 21st Century’s only three experts related to causation and permanent injury. The case nevertheless went to trial, with only Mrs. Thynge and her neurosurgeon, Jonathan Paine, M.D., testifying as to causation and permanency. At the close of 21st Century’s case, Appel-lees moved for a directed verdict on the issues of causation and permanency, arguing that 21st Century failed to rebut Dr. Paine’s testimony with any medical testimony of its own. The trial court reserved ruling on the motion, and the case went to the jury. The jury returned a verdict finding the accident caused loss, injury, or damage but did not find that Mrs. Thynge sustained a permanent injury. The jury awarded only $7000 for lost wages. After trial, Appellees moved for judgment in accordance with their motion for directed verdict and for a new trial. The trial court granted that motion, and this appeal followed.

“A trial court’s ruling on a motion for judgment in accordance with a prior motion for directed verdict is ... reviewed de novo.” Philip Morris USA, Inc. v. Barbanell, 100 So.3d 152, 157 (Fla. 4th DCA 2012). “A motion for directed verdict should be granted only where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Volusia Cty. v. Joynt, 179 So.3d 448, 450 (Fla. 5th DCA 2015) (quoting Benitez v. Joseph Trucking, Inc., 68 So.3d 428, 430 (Fla. 5th DCA 2011)). Likewise, a directed verdict “is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation.” Cohen v. Philip Morris USA, Inc., 203 So.3d 942, 949 (Fla. 4th DCA 2016) (quoting Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013)).

Here, the jury initially determined that Mrs. Thynge did not sustain a permanent injury because of the accident. Although “determinations about the permanency of an injury are generally made by juries,” a court may direct a verdict on permanency for the plaintiff “where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant.” Wald v. Grainger, 64 So.3d 1201, 1204 (Fla. 2011). Specifically, Wald “allows for a directed verdict on permanency based on expert testimony except when (1) it is rebutted by another expert, (2) the testimony is impeached, or (3) other conflicting evidence is presented.” Brown v. Lunskis, 128 So.3d 77, 80 (Fla. 2d DCA 2013) (citing Wald, 64 So.3d at 1204).

Dr. Paine performed a two-level cervical fusion on Mrs. Thynge and, through a published deposition at trial, opined that the accident led to aggravation of Mrs. Thynge’s preexisting neck problems caused by degenerative disc disease. He also rendered the far-from-conclusive opinion regarding permanency that it was “possible” Mrs. Thynge would require future surgery and that she “probably has an approximately 15 to 20 percent added risk of a degenerative change accelerated by the presence of the fusion.” Because the trial court struck its experts, 21st Century could not presént contradictory expert testimony on causation and permanency. 21st Century argues, however, that the motion for directed verdict should not have been granted because Mrs. Thynge gave an incomplete medical history to Dr. Paine and provided conflicting testimony regarding the accident and her injuries.

In support,’ 21st Century points out that Dr. Paine testified' that he saw Mrs. Thynge only three times and recommended surgery due to compression of the nervous system to her neck. However, he had no idea how long the compression was actually there or how long Mrs. Thynge had degenerative disc disease. He testified that Mrs. Thynge wanted her neck fixed, so he treated her with that objective in mind. After healing from surgery, he gave Mrs. Thynge no restrictions and assigned a fifteen percent disability rating. Dr. Paine further testified that he had no knowledge of whether Mrs. Thynge had ever complained of or received treatment for neck pain prior to the June 2013 accident or whether Mrs. Thynge had any prior accidents. He also was not provided, nor did he review, any prior medical records or diagnostic studies. Mrs. Thynge acknowledged, however, that she had a work-related injury in 1999, which required lower-back surgery. She also testified that she had- a prior automobile accident in Delaware, in 2000 or 2001, and an emergency C-section in 2010, requiring an epidural into the prior lower-back surgery site, which caused her symptoms to reoccur.

21st Century also offered the testimony of Ara Deukmedjian, M.D., a neurosurgeon who saw Mrs. Thynge after the accident. Contrary to the testimony of Dr. Paine, Dr. Deukmedjian testified that Mrs. Thynge was not suffering from nerve compression in the neck. Although Mrs. Thynge had muscle spasms on both sides of her neck, Dr. Deukmedjian saw no indication of a pinched nerve'. Dr. Deukmedji-an also testified that Mrs. Thynge had degenerative disc disease and facet syndrome, which he described as the most common cause of neck pain in- the United States.

Mrs. Thynge also provided conflicting testimony about what happened at the scene of the accident. For example, Mrs. Thynge initially stated that she did not remember anything about the accident. She did not remember getting out of her car or receiving an EMT examination. She claimed she could remember only being in the emergency room with one of her eo-workers after the accident and having a bad headache. She later stated, “No, I remember someone banging on the window and I remember asking my sister if someone hit us,” and she also testified that she remembered being on the stretcher. Additionally, the EMT who tended to Mrs. Thynge at the accident scene contradicted Mrs. Thynge’s testimony by stating that she “was up and walking around the scene itself’ and “denied any neck or back pain.”

Because Dr. Paine was not given complete information regarding Mrs. Thynge’s prior medical history, his opinions regarding causation and permanency were called into question, and the jury could properly reject them. See Wald, 64 So.3d at 1204. In addition, Mrs. Thynge’s inconsistent testimony about what occurred at the accident scene provides sufficient conflicting evidence upon which a jury could have based its decision. See id. at 1206. Thus, the trial court erred by entering a directed verdict on causation and permanency, and we reverse and remand for reinstatement of the jury’s verdict.'

21st Century also challenges the trial court’s granting of a new trial. Appel-lees claim they Were entitled to a new trial because the trial court improperly limited their questioning during voir dire. Because Appellees failed to notify the trial court of any challenge to the purported limitation of their voir dire, they could not subsequently seek a new trial on this ground. See Wallace v. Holiday Isle Resort & Marina, Inc., 706 So.2d 346, 347 (Fla. 3d DCA 1998) (“-[Wlithout a renewal of an earlier objection, it is reasonable to conclude that events occurring subsequent to the objection may have caused the objecting party to become satisfied with the jury about to be sworn.” (citing Joiner v. State, 618 So.2d 174, 176 (Fla. 1993))). Accordingly, we reverse the order granting a new trial.

REVERSED and REMANDED with Instructions.

COHEN, C.J., EVANDER, J., and EGAN, R., Associate Judge, concur.

      . The experts at issue are the compulsory medical examination physician, a biomechanical engineer, and a medical coding • expert.

      . Because we reverse the order granting a new trial, we do not address 21st Century's challenges, in the alternative, to the striking of its experts and the denial of its motion to disqualify Appellees' counsel.


author: JAY, J.

text:
    James Anthony STEVENSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3177
    District Court of Appeal of Florida, First District.
    Opinion filed December 27, 2017

      Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Trader, Assistant Attorney General, Tallahassee, for Appellee.
   JAY, J.

In this direct criminal appeal, we affirm appellant’s convictions and sentences for lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition. We write only to explain why the trial court did not abuse its discretion by allowing the child victim to testify while seated.in front of the jury box.

Prior to trial, the state filed a motion to allow the eight-year-old child victim to give trial testimony while seated in front of the jury box. The motion explained:

Counsel for the State and Defense would, conduct their direct and cross-examination while seated one at a time in a chair next to the child and facing the jury. This arrangement would serve not only to ease the great potential for fear and intimidation a child may suffer while testifying in a large courtroom filled with unfamiliar adults, thereby improving his ability to communicate, without fear, but also to place the child closer to the jury so that they may see and hear the child more clearly.

At trial, when the prosecutor announced that the state would be calling the child victim as its next witness, the following exchange transpired: ■

[PROSECUTOR]: You granted the motion that he can sit in front of the jury box? ’ ’
THE COURT: Uh-huh.
[PROSECUTOR]: So can I just put two chairs in front?
THE COURT: Uh-huh.
[DEFENSE COUNSEL]: Do I have to do that? I mean, that’s what’s the weird part about this motion? Can I still ask questions in my normal way?
THE COURT: ' Yeah,, you can — I mean, I’m going to let you do,what you feel comfortable with.
[DEFENSE COUNSEL]: Okay.'
• [PROSECUTOR]: But the child'get's to stay seated at the same place?
THE COURT: Right, yeah.
[PROSECUTOR]: Okay.
THE COURT: Do you want me to swear him in?
■ [PROSECUTOR]: Well, he was previously told to tell the truth, or you will just say he’s been previously sworn unless [defense counsel] has.a-
[DEFENSE COUNSEL]: Yeah, that’s fine. Say he was previously sworn. I would just note for the record the same objection as before. I feel this is going to be awkward for me. I have no idea how to do this sitting in' a chair in front of the child. If I don’t do it, I think it looks like I got no heart. It’s just putting me in a really bad spot.
[PROSECUTOR]: And, judge, and I have some case law that the confrontation clause is not absolute.
THE COURT: Well—
[DEFENSE COUNSEL]: He’s already ruled on it.
[PROSECUTOR]: Okay.
THE COURT: Yeah. I think he has the right to confront. I know it’s awkward for Counsel. It’s awkward for the child, it’s awkward for everybody, but that’s the nature of these cases.
[DEFENSE COUNSEL] Right, right.

Afterwards, the victim was examined and cross-examined without further objection.

On appeal, appellant claims that he was denied a fair trial because the trial court allowed the child victim to testify in front of the jury box, which might have appeared as a judicial comment on the victim’s testimony and made the victim more sympathetic and credible due to the victim’s unique position in the courtroom. While acknowledging that the trial court has broad power to protect child witnesses who have alleged sexual abuse, appellant claims that there is no record evidence that special placement was necessary for the victim’s emotional well-being. The state responds that none of these arguments are preserved for appeal because they were never raised below. As the Florida Supreme Court has observed, proper preservation includes three important components:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion, below,” Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (emphasis added); accord Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.”).

Harrell v. State, 894 So.2d 935, 940 (Fla. 2005). These three elements are necessary to “ ‘place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings.’” Id. (quoting Castor v. State, 365 So.2d 701, 703 (Fla.1978)).

Here, because the enhancement of credibility and insufficient record evidence arguments were never raised below, they were not preserved for our review. Rodriguez, 609 So.2d at 499; see also Spann v. State, 857 So.2d 845, 852 (Fla. 2003) (“Because the record clearly shows that Spann’s trial objection was limited to the expert testimony on the issue of distortion or intentional disguise, and because Spann’s argument here is that handwriting expert testimony in general should be barred, the issue was not properly preserved and this claim is procedurally barred.”).

To the extent that defense counsel voiced any objection at trial, it was based on counsel’s complaint that the seating arrangement made it “awkward” for counsel to question the victim. Specifically, counsel complained that he was uncomfortable cross-examining the child while the child was seated in front of the jury and that if he chose not to sit in a chair while examining the child, the jury would believe that he had “no heart.”

In evaluating the propriety of counsel’s objection, it is important to remember that trial courts have “ ‘wide latitude’ to regulate proceedings before them ‘in order that the administration of justice be speedily and fairly achieved in an orderly, dignified manner[.]’ ” Medina v. State, 573 So.2d 293, 295 (Fla. 1990) (quoting Hahn v. State, 58 So.2d 188, 191 (Fla. 1952)) (emphasis added). This means that “in the absence of a controlling statute or overriding [r]ule of procedure^] the method of conducting'a trial is within the reasonable discretion of the trial court.” Kennick v. State, 107 So.2d 59, 60 (Fla. 1st DCA 1958). More simply, “[t]he trial court has broad discretion in the manner in which it conducts trials.” Friedman v. United States, 87 Fed.Appx. 459, 463 (6th Cir. 2003); see also United States v. Microsoft, 253 F.3d 34, 100 (D.C. Cir. 2001) (“Trial courts have extraordinarily broad discretion to determine the manner in which they will conduct trials.”).

In this case, because the trial court had “wide latitude” in regulating the proceedings, Medina, 573 So.2d at 295, and because counsel’s objection went to the presentation mechanics of a child witness’s testimony, the trial court’s decision was well within its broad discretion. See Baisden v. State, 203 So.2d 194, 196 (Fla. 4th DCA 1967) (“The conduct of counsel during the progress of the trial is ... under the supervision and control of the trial court in the exercise of its discretion.... [T]he court has a duty to maintain the dignity of the law in the courtroom which also includes the protection of witnesses under examination”) (emphasis added); see also § 90.612(1), Fla. Stat. (2014) (“The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses and the presentation of evidence!)]”) (emphasis added).

The opinion in Ellis v. United States, 313 F.3d 636 (1st Cir. 2002), is consistent with this conclusion. In Ellis, over the objection of counsel, the trial judge allowed the child victim to sit in a chair facing the jurors, but in a way that faced away from the defendant. Id. at 639. Because of this seating arrangement, the child could only make “eye contact with the [defendant] by looking over her right shoulder.” Id Apparently, the child “did not avail herself of this opportunity.” Id.

In finding that the trial judge’s “core conclusion — that no Confrontation Clause violation occurred” — was neither unreasonable nor obviously incorrect, the United States Court of Appeals for the First Circuit observed:

In our view, the adequacy of Judge Freedman’s findings is buttressed by the hallmarks of testimonial reliability made manifest by the record.... These include ... the fact that the witness was required to give live testimony, under oath, in the presence of both the defendant and the jury. To the extent that nervousness, body language, demeanor, and the like are important indicia of credibility, the jurors’ entirely unimpaired view of the witness is persuasive. In addition, the petitioner had ample opportunity to cross-examine E.D. and to offer any evidence and arguments that might impugn her credibility. These are weighty factors.

Id. at 651 (citations omitted) (emphasis added).

Here, like Ellis, the child gave live testimony — in the presence of appellant and the jury — the jurors had an unimpaired view of the witness, and counsel had an unrestricted opportunity to cross-examine the child. These are indeed “weighty factors” and solidify the reasonableness of the trial court’s decision to allow the victim to testify while seated before the jury. Id.; see also Kennick, 107 So.2d at 60.

AFFIRMED.

WOLF and WINOKUR, JJ., CONCUR.


text:
    Jeffrey Lance HILL, Sr. and Linda Petry Hill, Petitioners, v. SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Respondent.
    CASE NO. 1D17-3030
    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
    Rehearing Denied January 31, 2018
    Jeffrey L. Hill, Sr., pro se, Petitioner.
    No appearance for Petitioner Linda Pe-try Hill.
    David C. Willis and Chase E. Hattaway of Rumberger, Kirk & Caldwell, P.A., Orlando; Leonard J. Dietzen of Rumberger, Kirk & Caldwell, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

WOLF, ROWE, and WINSOR, JJ., CONCUR.


author: Per Curiam.

text:
    Freemel BEST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4993
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Freemel Best, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition filed on November 27, 2017, is denied.

Wolf, Rowe, and Winsor, JJ., concur.


text:
    WELLS FARGO BANK NATIONAL ASSOCIATION, as Trustee and Custodian FOR MORGAN STANLEY ABS CAPITAL; MSAC 2007-HE3, Appellant, v. Adren BIRD, Uraiwan Bird and U.S. Bank National Association as Trustee, Appellees.
    Case No. 5D16-669
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 5, 2018

      Kimberly S. Mello, Jonathan S. Tannen and Danielle M. Diaz, of Greenberg Trau-rig, P.A., Tampa, for Appellant.
    Carl J. Hognefelt, of Law Office of Carl J. Hognefelt, Tampa, for Appellees.
   PER CURIAM.

Wells Fargo Bank National Association (“Wells Fargo”) appeals the final judgment imposing a set amount of contractual attorney’s fees against it and in favor of Adren and Uraiwan Bird (“Borrowers”). Wells Fargo argues that Borrowers cannot recover contractual attorney’s fees based on the attorney’s fees provision in paragraph 22 of the mortgage and section 57.105(7), Florida Statutes (2006), because the mortgage was void. We agree and reverse.

Contractual attorney’s fees must be enforced “absent compelling circumstances.” M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 975 So.2d 1288, 1289 (Fla. 4th DCA 2008) (citing Hutchinson v. Hutchinson, 687 So.2d 912 (Fla. 4th DCA 1997)). “The prevailing party is the party that won on the significant issues in litigation.” Id. at 1289-90. (citing Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla. 1992)). “Generally, a trial court’s determination of which party prevailed and its award of attorney’s fees is reviewed for an abuse of discretion.” T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010) (citing Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007)). The abuse of discretion standard is “usually with regard to the amount of an award rather than the actual entitlement to an award.” Hinkley, 971 So.2d at 956 (citing DiStefano Constr., Inc. v. Fid. & Deposit Co., 597 So.2d 248, 250 (Fla. 1992)). “However, when entitlement to attorney’s fees is based on the interpretation of contractual provisions, see Gibbs Construction Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000), or a statute, see Allstate Insurance Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006), as a pure matter of law, the appellate court undertakes a de novo review.” Hinkley, 971 So.2d at 956.

Here, it is undisputed that Borrowers’ signatures on the mortgage were forged. Consequently, there was no valid contract between Borrowers and Wells Fargo. See Jamnadas v. Singh, 731 So.2d 69, 70 (Fla. 5th DCA 1999) (“A forged mortgage is void, a legal nullity.” (citing Se. Bank, N.A. v. Sapp, 554 So.2d 1193 (Fla. 1st DCA 1989))). Thus, because there was no valid contract, it was error to award attorney’s fees under either paragraph 22 of the mortgage or the reciprocity rule found in section 57.105(7), Florida Statutes. See Bank of N. Y. Mellon v. Mestre, 159 So.3d 953, 956 (Fla. 5th DCA 2015) (holding attorney’s fees cannot be awarded under attorney’s fees clause in a void mortgage). And inasmuch as Borrowers are not entitled to contractual attorney’s fees, they are also not entitled to recover their expert witness costs. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (citing Jupiter Mall Realty Corp. v. Rosner’s, Inc., 614 So.2d 52 (Fla. 4th DCA 1993)); Cohen v. Gen. Motors Corp., 444 So.2d 1170, 1171 (Fla. 4th DCA 1984).

Accordingly, we reverse that portion of the final judgment awarding attorney’s fees and expert witness costs to Borrowers. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part.

SAWAYA, ORFINGER and BERGER, JJ., concur.

      . The trial court’s attempt to distinguish Mes-tre on the basis that there was a judicial determination that the mortgage was fraudulent in that case essentially eliminates the movant’s burden of proving that a contractual provision for attorney’s fees exists and would allow contractual attorney’s fees to be awarded to and against non-parties to the contract. That is clearly not permissible. See Fla. Cmty. Bank, N.A. v. Red Road Residential, LLC, 197 So.3d 1112, 1115 (Fla. 3d DCA 2016) (“As section 57.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision.” (citing Novastar Mortg., Inc. v. Strassburser, 855 So.2d 130, 131 (Fla. 4th DCA 2003))).


author: BLACK, Judge.

text:
    IN the INTEREST OF K.W. and K.W., children. Guardian Ad Litem Program, Appellant/Cross-Appellee, v. J.W. and M.W., Appellees/Cross-Appellants, and Department of Children and Families, Appellee.
    Case No. 2D17-272
    District Court of Appeal of Florida, Second District.
    January 5, 2018
    Matthew C. Wilson; and Sara E. Gold-farb, Sanford (substituted as counsel of record), for Appellant/Cross-Appellee Guardian ad Litem Program.
    C. Michael Kelly of C. Michael Kelly, P.A., Bradenton,' for Appellee/Cross-Ap-pellant J.W.
    M.W., pro se.
    Stephanie C. Zimmerman, Bradenton, for Appellee Department of Children and Families.
   BLACK, Judge.

The Guardian ad Litem Program appeals and J.W. and M.W., the Father and Mother, cross appeal the “Final Judgment on Guardian ad Litem Program’s Second Amended Petition for Termination of Parental Rights.” The final judgment terminated the Mother’s parental rights' to K.W.(1) and K.W.(2); it terminated the Father’s parental rights to K.W.(1) but not to K.W.(2); and it concluded that no grounds were proven to sustain a,finding of dependency of K.W.(2). To the extent that the trial court terminated the Mother’s parental rights to KW.(l) and K.W.(2) and the Father’s parental rights to K.W.(1) but not to K.W.(2), we affirm the final judgment without further comment. We reverse the portion of the final judgment in which the trial court declined to adjudicate K.W.(2) dependent.

When a trial court finds the requirements for termination of parental rights were not proven, the court must then determine, as part of its dispositional' powers under section 39.811(1), Florida Statutes (2016), whether the evidence supports'the child being adjudicated dependent. If grounds for dependency have been established, the trial court shall adjudicate.or readjudicate the child dependent. § 39,811(1)(a); see also Fla. R. Juv. P. 8.525(i)(2) (2016). In this case, the trial court properly moved on to a dependency determination, concluding that as to K.W.(2) “there were no grounds proven to sustain a finding of dependency.”

However, although the- final judgment is replete with findings of fact that explain the trial court’s reasons for its decision in all other respects, the trial court’s conclusion with respect to dependency is made without further explanation. When facts supporting a finding of dependency under any of the statutory grounds set forth in section 39.01(15) are sufficiently alleged, the trial court is required to make specific factual findings as to each ground in order to-make a proper determination with regard to dependency. B.R.C.M. v. Fla. Dep’t of Children & Families, 215 So.3d 1219, 1223 (Fla. 2017). But see In the Interest of D.H., 575 So.2d 761, 762 (Fla. 4th DCA 1991) (concluding that while a trial court is required to make fact findings supporting an' order of dependency, the statutory provision applicable when a court finds that the child is not dependent directs- the trial court to “enter an order so finding and dismissing the case” but certifying a question of great public importance regarding whether findings of fact are required when denying a dependency petition (quoting section 39.409(1), Florida Statutes (1989))). The record in this case contains evidence that could support an adjudication of dependency as to KW.(2), and nothing in the record or on the face of the final judgment indicates whether the trial court rejected this evidence as not credible in determining that no grounds were proven to sustain a finding of dependency with respect to K.W.(2). Under these circumstances, this court can-pot conduct a meaningful review of the trial court’s conclusion on dependency.

Accordingly, we reverse the portion of the trial court’s order that determined there were no grounds proven to sustain a finding of dependency with respect to K.W.(2). See B.R.C.M., 215 So.3d at 1223; cf. J.S. v. Dep’t of Children & Families, 18 So.3d 1170, 1178-79 (Fla. 1st DCA 2009) (reversing where the trial court’s findings under section 39.810, Florida Statutes (2006), were insufficient to facilitate meaningful appellate review on the issue of whether the trial court abused its discretion in finding that termination of the father’s parental rights was not in the manifest best interests of the child). On remand, the trial court may reconsidér its determination on’ dependency based on the evidence presented at'the final adjudicatory héaring and must make the requisite findings with regard to that determination. However, due to the passage of time, the trial court may in its discretion allow the presentation of additional evidence regarding this issue and K.W.(2)’s current circumstances.

Affirmed in part, reversed in part, ánd remanded.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . We recognize that the proceedings in B.R.C.M. were initiated by the filing of a petition for an adjudication of dependency and not a petition for the termination of parental rights. 215 So,3d at 1221. Nonetheless, since section 39.81 1(1)(a) requires the trial court to make a dependency determination where the grounds for termination of parental rights have not been proven, we believe the supreme court's holding with regard to the adequacy of the trial court's findings when making a dependency determination is applicable to this case.

      . Section 39.409(1) is the predecessor to section 39.507(4), Florida Statutes (2016), which provides that "[i]f the court finds at the ádju-dicatory hearing [on the dependency petition] that the child named in a petition is not dependent, it shall enter an order so finding and dismissing the case,"


text:
    C.M., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5068
    District Court of Appeal of Florida, Second District.
    January 05, 2018

      Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

C.M. challenges the order withholding adjudication of delinquency but finding C.M. guilty of affray and placing her on probation for one year. C.M. contends that the court erred in denying her motion for judgment of dismissal of the affray charge based on the State’s failure to present evidence rebutting her theory of self-defense. We agree and reverse and remand for entry of judgment of dismissal.

C.M. was charged with disorderly conduct and affray as the result of a physical altercation between C.M. and another juvenile, S.J., on the juveniles’ high school campus. At the adjudicatory hearing, the State’s only witness was the high school’s dean of students. The dean testified that C.M. and S.J. were involved in a “disturbance” outside of the school’s cafeteria. The dean watched S.J. walk to a group of students S.J. “normally hangs with,” which included C.M. He saw S.J. and C.M. talking; after he had looked away and continued to talk to another administrator, he heard students yelling and turned around to see C.M. and S.J. “punching each other” and “striking each other.” The dean yelled for the students to “stop fighting”; however, C.M. and S.J. only stopped fighting after they were physically separated. Although the dean testified that the fight appeared mutual, he also testified that he did not see who threw the first punch or how the fight started.

Following the dean’s testimony, the State rested and C.M. moved for judgment of dismissal. C.M. argued that the State had not presented a prima facie case of disorderly conduct or affray because the dean had not seen how the fight started: “[I]t could have been self-defense, ... a full defense of the case.” The State responded that the testimony established the altercation was mutual — there was no indication that either student was the aggressor — and that despite being told to disengage, the students continued to fight. The court denied the motion for judgment of dismissal as to both charges.

The defense called T.J., a student who witnessed the fight. T.J. testified that she, C.M., and another student were walking out of the cafeteria when they were approached by S.J. S.J. began “cussing” at the third student, “just trying to fight, basically.” According to T.J., S.J. was aggressive. T.J. testified that after C.M. said “nobody’s going to fight, we aren’t doing this today,” the third student walked away and then S.J. “started going at” C.M. and punched C.M. “in the face just out of nowhere.” T.J. stated that she did not hear the dean command the students to stop fighting.

C.M. also testified. C.M. saw S.J. walking toward her and could tell S.J. was angry. S.J. asked the third student if they were going to fight, and C.M. said, “No, we can’t be doing this.” C.M. testified that S.J. punched her in the face and that she defended herself by punching S.J. C.M. also testified that she did not hear the dean tell them to stop fighting.

Following C.M.’s testimony, the defense renewed its motion for judgment of dismissal. Counsel argued that the undisputed evidence established that C.M. had acted in self-defense and that the State had failed to rebut the defense with any evidence. In support of the argument, counsel pointed to two cases discussing the applicability of self-defense to the charge of disorderly conduct. The State responded that the court should find T.J.’s and C.M.’s testimony less credible than the dean’s. The State represented that the dean’s testimony was that S.J. was not acting aggressively and therefore TJ.’s and C.M.’s testimony that S.J. approached them in an aggressive manner should not be believed. The court indicated that it would “reserve on that argument” and asked the parties for closing argument.

In closing argument, counsel reiterated that C.M. was acting in self-defense and that the undisputed evidence established that S.J. threw the first punch. Addressing the unresolved motion for judgment of dismissal, the court stated: “Based on the case law and the facts that are virtually identical to what we have here today as to the charge of disorderly conduct, which is the only thing that has been argued to this point in time, I find the defendant not guilty of disorderly conduct.” However, the court found C.M. guilty of affray and placed her on one year of probation.

C.M. subsequently filed a written renewed'motion for judgment of dismissal, arguing that she had moved for judgment of dismissal as to both charges on the basis that the State had failed to rebut her defense of self-defense. C.M. contended that justified use of force is applicable in cases of affray just as it is in cases of disorderly conduct. The renewed motion was denied in an order containing no findings or conclusions.

We review the trial court’s ruling on a motion for judgment of dismissal de novo. G.T.J. v. State, 994 So.2d 1182, 1184 (Fla. 2d DCA 2008) (citing E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003)). On our review of the-record, it appears that the trial court denied the motion for judgment of dismissal not because it found that self-defense is not a defense to the charge of affray but because it did not realize that both affray and disorderly conduct were the subject of the motion. The court ruled: “Based on the case law and the facts that are virtually identical to what we have here today as to the charge of disorderly conduct, which is the only thing that has' been argued to this point in time, I find the defendant not guilty of disorderly conduct.” (Emphasis added.) C.M.’s written-motion for judgment of dismissal established that C.M. also understood the court’s ruling to be a misapprehension that the argument encompassed only the disorderly conduct charge. However, regardless of the reason, the court erred in denying the motion for judgment of dismissal.

Section 870.01, Florida Statutes .(2015), Affrays and riots, does not provide a definition of affray; it provides only that “persons guilty of an affray shall be guilty of a misdemeanor of the first degree.” § 870.01(1). Because the statute does not define affray, courts have resorted to the common-law definition: ‘‘the fighting of two or morís persons in a public place, to the terror of the people.” O.A. v. State, 312 So.2d 202, 203 (Fla. 2d DCA 1975) (quoting Carnley v. State, 88 Fla. 281, 102 So. 333, 334 (1924)); accord D.L.B. v. State, 707 So.2d 844, 844 (Fla. 2d DCA 1998). Therefore, “an affray by fighting ,.. necessarily includes’ assault and battery.” O.A., 312 So.2d at 203 (quoting Carnley, 102 So. at 334); see also D.L.B., 707 So.2d at 845 (utilizing the dictionary definition of affray as “a public fight or brawl”). Although O.A. was decided when “assault and battery” .was a single offense, the analysis remains valid: an affray requires two or more people to engage in batteries. See § 784.03, Fla. Stat. (1973). And self-defense is a defense to battery. S.J.C. v. State, 906 So.2d 1115, 1115 (Fla. 2d DCA 2005); see § 776.012, Fla. Stat. (2015); cf. M.L.J. v. State, 93 So.3d 348, 349 (Fla. 2d DCA 2012) (“When charged with disorderly conduct, a defendant who does not initiate the fight and acts to protect himself or herself from the attacker may assert self-defense.” (citing S.D.G. v. State, 919 So.2d 704, 705 (Fla. 5th DCA 2006))).

We note that while there is an absence of Florida case law.on the issue, other states have expressly held that self-defense is a defense to the charge of affray. See, e.g., Commonwealth v. Nee, 83 Mass. App.Ct. 441, 985 N.E.2d 118, 126 n.8 (2013) (“Nothing in the definition of affray precludes á defendant so charged from asserting self-defense or defense of another in justification of his .conduct.”); Dashiell v. State, 214 Md.App. 684, 78 A.3d 916, 920 (Md. Ct. Spec. App. 2013) (“To begin with, self-defense, in our view, may be invoked as a defense to affray. An affray, by its very definition, involves ‘fighting.’ And ‘the simple and frequently neglected larger truth is that the defense of self-defense applies . to assaultive crimes generally.’ ” (quoting Bryant v. State, 83 Md.App. 237, 574 A.2d 29, 33 (Md. Ct. Spec. App. 1990))); In re B.R.-D., 173 N.C.App. 756, 620 S.E.2d 320, *2 (N.C. Ct. App. 2005) (table decision) (holding that “to defeat a charge of affray based on self-defense, a juvenile must be ‘without fault in provoking, engaging in, or continuing a difficulty with another,’ and must retreat from, any non-felonious assault if she has the means to do so” (quoting In re Wilson, 153 N.C.App. 196, 568 S.E.2d 862, 863 (2002))); cf. State v. Bea, 162 Wash.App. 570, 254 P.3d 948, 951 (2011) (stating that “one who provokes an affray cannot invoke the right of self-defense” (citing State v. Wingate, 155 Wash.2d 817, 122 P.3d 908, 911 (2005))). “If, in prosecuting two defendants for an affray, it appears that one was acting in self-defense, having been attacked by the other, there is no affray; the attacker is guilty of a battery, and the other person is guilty of no crime at all.” 4 Charles E.' Tortia, Wharton’s Criminal Law § 536 (15th ed. 2017).

“[W]hen [a] defendant presents a prima facie case of self-defense, the State’s burden includes ‘proving beyond a reasonable doubt that the defendant did not act in self-defense.’ ” G.T.J., 994 So.2d at 1184 (quoting Fowler v. State, 921 So.2d. 708, 711 (Fla. 2d DCA 2006)). “This means the State must overcome the defense by rebuttal or by inference in, its case in chief.” Id. Here, C.M. presented unrebutted testimony that S.J. was the aggressor, initiating the altercation and throwing the first punch. The evidence established that C.M. did not provoke the fight. Cf. M.L.J., 93 So.3d at 349. C.M. presented a. prima facie case of self-defense. The State presented no rebuttal witnesses or evidence, and no evidence contradicted T.J.’s or C.M.’s testimony. The dean did not see who initiated the physical contact. As a result, the State failed to prove beyond a reasonable doubt that C.M. was not acting in self-defense. The State’s evidence was legally insufficient, and a judgment of dismissal should have been entered. See G.T.J., 994 So.2d at 1184.

Accordingly, we reverse the order withholding adjudication and remand with instructions to dismiss the State’s petition for delinquency.

Reversed and remanded.

CASANUEVA and LUCAS, JJ., Concur.


author: Gerber, C.J.

text:
    Julie WOHLBERG, Appellant, v. Michael CONNER, Appellee.
    No. 4D17-390
    District Court of Appeal of Florida, Fourth District.
    January 10, 2018
    Harvey J. Sepler and Jeffrey DeSousa of Harvey J. Sepler, P.A., Hollywood, for appellant.
    Robin Bresky and Daniel S. Weinger of Law Offices of Robin Bresky, Boca Raton, for appellee.
   Gerber, C.J.

The former wife appeals from the circuit court’s order granting the former husband’s motion to enforce the parties’ marital settlement agreement (“MSA”). The court found that a provision in the MSA unambiguously required the parties’ initial 70/30 timesharing schedule in the former wife’s favor be modified to equal timeshar-ing, because the former husband continuously and timely exercised his timesharing for six consecutive months before he filed his motion..According;to, the former wife, the MSA was ambiguous as to whether the provision applied to the first six months after the dissolution judgment’s entry, or to any six consecutive months after the dissolution judgment’s entry. We agree with the former wife that the MSA’s provision was ambiguous. Therefore, we reverse the order on appeal, and remand for the circuit court to consider the parties’ extrinsic evidence as to which six consecutive months the MSA provision was to be applied.

Procedural History

As stated above, the MSA contained an initial 70/30 timesharing schedule in the former wife’s favor. However, the MSA contained the following condition: “If the [former husband] continuously and timely exercises timesharing with the minor child for a period of 6 consecutive months, the parties shall exercise equal timesharing.” The circuit court entered a final judgment of dissolution incorporating the MSA.

Approximately three months after the dissolution judgment’s entry, the former wife filed a petition requesting that the circuit court find the former husband failed to satisfy the condition which would result in equal timesharing. According to the former wife, the former husband failed to comply with the 70/30 timesharing schedule “continuously and timely” in the first three months after the dissolution judgment’s entry.

The former husband moved to dismiss the former wife’s petition, arguing that the petition was premature because six months had not passed since the dissolution judgment’s entry. The former husband’s response did not argue that the six month period did not apply to only the first six months immediately after the dissolution judgment’s entry.

The circuit court dismissed the former wife’s petition without prejudice.

Over a year later, the former husband filed a motion to enforce the MSA’s cdndition which would result in equal timeshar-ing. In the motion, the former husband alleged that he “continuously and timely” exercised 70/30 timesharing for the prior six consecutive months. The former husband admitted in the motion that during the first six months immediately after the dissolution judgment’s entry, he “occasionally had to reschedule timesharing due to work and family obligations .... ”

At a hearing on the former husband’s motion, the parties stipulated that the former husband “continuous and timely” exercised 70/30 timesharing for the six consecutive months immediately before the former husband’s motion. However, the former wife argued that the six consecutive months stated in the MSA referred to the period immediately after the dissolution judgment’s entry, during which the former husband did not “continuous and timely” exercise 70/30 timesharing. The former wife argued, in the alternative, that the MSA was ambiguous as to which six consecutive months the MSA was to be applied.

After the hearing, the circuit court entered a written order granting the former husband’s motion. The court first found no ambiguity in the MSA’s provision that “[i]f the [former husband] continuously and timely exercises timesharing with the minor child for a period of six (6) consecutive months, the parties shall exercise equal timesharing.” The court then found that the former husband “continuous and timely” exercised 70/30 timesharing for the six consecutive months immediately before the former husband’s motion. As a result, the court concluded, the former husband was immediately entitled to equal timesharing.

This appeal followed. The former wife primarily argues that the MSA was ambiguous as to whether the provision at issue applied to the first six months immediately after the dissolution judgment’s entry, or to any six consecutive months after the dissolution judgment’s entry. Thus, the former wife argues, the circuit court should have considered extrinsic evidence of the parties’ intent on this issue which, she alleges, was to limit the provision’s application to the first six months immediately after the dissolution judgment’s entry.

Our Review

Our review is de novo. See Feliciano v. Munoz-Feliciano, 190 So.3d 232, 233-34 (Fla. 4th DCA 2016) (“The interpretation of the wording and meaning of [a] marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement agreement is interpreted like any other contract.”) (citations and quotation marks omitted).

We agree with the former wife’s argument. The MSA’s provision that “[i]f the [former husband] continuously and timely exercises timesharing with the minor child for a period of six (6) consecutive months, the parties shall exercise equal timesharing,” is ambiguous. The MSA nowhere indicates whether “a period of 6 consecutive months” began immediately after the dissolution judgment’s entry, or could apply to any six consecutive months after the dissolution judgment’s entry. Cf. Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010) (“The MSA failed to specify a time for payment and was thus ambiguous as to the intent of the parties in that regard.”).

Therefore, a hearing to consider extrinsic evidence of the parties’ intent is required. See White v. White, 141 So.3d 645, 646 (Fla. 4th DCA 2014) (“[W]hen a term in a marital settlement agreement is ambiguous or unclear ... the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.”) (citation and quotation marks omitted).

At the evidentiary hearing to occur on remand, the circuit court also must interpret the MSA in accordance with the child’s best interests at the time of the court’s determination, something which the court did not do upon its initial consideration of the motion at issue. See Kirsch v. Kirsch, 933 So.2d 623, 626 (Fla. 4th DCA 2006) (“It is fundamental that the court may not remake an agreement between the parties, and if there is any ambiguity, the agreement will be interpreted in accordance with the best interest of the child concerned.”) (alteration and citations omitted); § 61.13(3), Fla. Stat. (2016) (“For purposes of ... modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration.”).

Reversed and remanded for proceedings consistent mth this opinion.

Levine, J., and Singhal, Raag, Associate Judge, concur.


author: EDWARDS, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. David C. KNAPP and Logan Atkinson, Respondents.
    Case No. 5D17-447
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 12, 2018

      Rhonda B. Boggess, and Gina P. Grims-ley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Petitioner.
    Christopher V. Carlye, of The Carlyle Appellate Law Firm,'The Villages, for Respondent, David C. Knapp.
    No appearance for other Respondent.
   EDWARDS, J.

State Farm Mutual Automobile Insurance Company petitions this Court to issue a writ of certiorari regarding discovery-orders compelling production of documents that State Farm claims the work product doctrine and the attorney-client privilege protect from disclosure. Although the trial court reviewed the documents in camera, its orders did not state which documents State Farm properly designated as work product nor which documents contained privileged attorney-client communications. Furthermore, the trial court’s orders failed to explain the justification for requiring State Farm to turn over its work product documents to Respondent David C. Knapp, and there is no justification here for ordering production of confidential attorney-client documents to opposing, counsel. Under the circumstances, the trial court departed fromuthe essential requirements of the law, subjecting State Farm to harm that cannot be remedied in a later plenary appeal. Accordingly, we grant the petition and quash the orders in question.

FACTUAL BACKGROUND

Respondent was involved in two automobile wrecks within six months. Respondent obtained medical treatment following these wrecks, and he sued both of the adverse drivers. He also sued his insurer, State Farm, for payment of uninsured/underin-sured motorist benefits and- bad faith. State Farm retained and identified Dr. Michael Zeide as an expert witness to address Respondent’s alleged injuries and the medical care and treatment related to those injuries.

In turn, Respondent served discovery seeking information about how often State Farm had retained Dr. Zeide as an expert and how much money it had ’paid him, directly or indirectly, during the preceding three years. Our supreme court authorized this type of discovery, within certain limits, in the case of Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999). Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) codifies this so-called Boecher discovery. Boecher discovery allows a party to gather information that can be used to provide a factual basis for proving and arguing to the jury that an expert witness, such as Dr. Zeide, may have a financial bias favoring the party, retaining the expert, here State Farm. See Boecher, 733 So.2d at 997-98.

Initially, State Farm objected to portions of Respondent’s Boecher discovery and stated that it did not maintain any database or index in the ordinary course of business that could be accessed to identify the amounts it paid to Dr. Zeide when he was engaged to perform analysis, provide testimony, and/or complete compulsory medical examinations. However, State Farm did serve unverified answers to Respondent’s interrogatories, providing other information, such as the testimonial percentage and percentage of engagement of its experts, including Dr. Zeide, by plaintiffs versus defendants.

Respondent filed a motion to compel better responses, which the trial court granted. The trial court required State Farm to disclose the amount Dr. Zeide billed to State Farm, the amount State Farm paid him, and the total amount of money that State Farm or anyone acting on behalf of any State Farm entity had paid to each listed expert witness, directly or indirectly, during the preceding three years (2018-2015) for all services rendered, excluding payments or charges for medical treatment provided.

In response to the court’s order, State Farm provided verified answers to interrogatories, stating that it conducted a manual review of its records. State Farm also gave information regarding Dr. Zeide, including the number of claims and amount of money paid for compulsory medical examinations or record reviews for the years in question. According to State Farm, during those three years, Dr. Zeide was retained in 601 claims and received $1,285,067.75 in compensation for providing his services. State Farm advised that, because the numbers were calculated by hand following a manual review of claims files, the information was “its best approximation of the individual payments it made to Dr. Zeide” during the three years covered by Respondent’s Boecher discovery.

Not satisfied with this additional information, Respondent scheduled the deposition of Bruce Peterson, a State Farm representative who verified the Boecher interrogatory answers in this ease. Respondent also noticed the deposition of a different State Farm representative, Mike Wallace, who verified State Farm’s answers to the Boecher interrogatories regarding Dr. Zeide in a case between Amanda Park and State Farm, saying that it was not feasible to provide that information and would cost hundreds of thousands of dollars to compile. Both deposition notices were duces tecum, requiring each named witness to produce all documents relied upon or generated in connection with providing the Boecher information; all written policies, manuals, memos, or other documents that set forth State Farm’s policies for tracking payments made to retained experts; and all correspondence, e-mails, or other documentation relating to the issue of State Farm’s payment to Dr. Zeide during the three years in question. State Farm objected, moved for a protective order, and moved to quash the duces tecum document requests on a number of grounds, including that the information sought was beyond the proper scope of discovery, that it invaded the privacy of non-parties, that it sought documents protected from disclosure by the work product doctrine and attorney-client privilege, and that compliance was unduly burdensome.

Respondent asserted that State Farm’s answers to interrogatories regarding its dealing with Dr. Zeide were inconsistent in this case compared to its answers given in the Park case, which Respondent asserted were both different from the answers State Farm gave to similar interrogatories in a third case between Cynthia Parent and State Farm. In the Parent case, State Farm advised that it paid Dr. Zeide or the companies employing him a total of $1,235,077 — a difference of $9.25 from the answer given in the present case. Based on the allegedly inconsistent answers, Respondent asserted that • State Farm was not giving accurate answers to the interrogatories, which justified taking the depositions of Wallace and Peterson.

At the conclusion of the December 20, 2016 hearing on State Farm’s motions, the trial court orally announced its rulings regarding what subject matter could be addressed in each deposition and what documents needed to be provided. The trial court suggested postponing the depositions scheduled for January 6, 2017, so that State Farm could compile the documents, prepare a privilege log, and allow time for the trial court to review privileged information if there was a dispute. Respondent postponed the depositions to January 10, 2017. The trial court also granted Respondent’s request to order ExamWorks, a company employing Dr. Zeide, to provide evidence of all payments it made to Dr. Zeide for any State Farm entity for the same three years. ExamWorks filed its response, advising that it did not have any responsive documents that it maintained in the ordinary course of business.

On December 28, 2016, the trial court entered a written order regarding State Farm’s objections and motions, which required the documents and privilege logs to be provided to the eourt and opposing counsel ten days prior to the depositions. This deadline translated to a December 30 due date, two days after the order. State Farm filed its privilege log related to the Wallace notice of deposition on the due date, identifying proprietary information that he had relied on for providing responses in the Park case, together with an affidavit from Wallace explaining his responses. State Farm filed a motion for extension of time on December 30, 2016, seeking five additional business days to prepare and file the privilege log regarding Peterson. On January 5, 2017, State Farm filed its privilege log, with an amended log filed the following day, regarding the documents described in the duces tecum portion of Peterson’s deposition notice. The amended privilege log identified documents that State Farm claimed constituted work product and documents that allegedly were or contained privileged attorney-client communications. The amended privilege log identified each document by date, author, recipients, subject matter, and privilege(s) asserted.

At the January 11, 2017, hearing, the trial court announced that it had reviewed the documents attached to the privilege logs and determined what should be redacted. The trial, court directed State Farm- to pick up the redacted documents from the court on January 12 and-provide them to Respondent’s' counsel on January 13. On January 13, 2017, State Farm filed a motion for extension of time and to stay so that it could have time to determine whether it would seek appellate review of the court’s order once it was reduced to a written, executed order.

The court’s oral rulings announced on January 11 were, set forth in a written order filed January 31, 2017, and an amended order filed February 7, 2017, but dated nunc pro tunc January 13, 2017. The trial court ruled that the documents related to State Farm’s internal policies and procedures were proprietary in nature and not reasonably calculated to lead to the discovery of admissible evidence; therefore, State Farm did not need to produce them in discovery..However, the trial court ordered that the information and documents relating to State Farm’s use of and payments to Dr. Zeide were reasonably calculated to lead to the discovery of admissible evidence; thus, they were discoverable. The trial court stated that it made redactions “consistent with the reasoning above” to those documents which were ordered to be produced.

These orders required State Farm to provide the redacted documents to Respondent’s counsel no later than 5:00 p.m. on January 13, 2017. In an order dated February 10, 2017, the trial court granted State Farm’s previously filed motion for stay; however, the stay would expire at 5:00 p.m. on .February 14, 2017. Respondent served amended notices of depositions for Wallace and Peterson to take place on February 15, 2017. State Farm then fiied its petition with this Court, and we grantéd State Farm’s motion for stay.

STANDARD OF REVIEW

This Court may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury, for the remainder of the trial (3) that cannot be corrected on post-judgment. appeal.” Capital One, N.A. v. Forbes, 34 So.3d 209, 212 (Fla. 2d DCA 2010). This Court first examines prongs two and three to determine its certiorari jurisdiction. See Holden Cove, Inc. v. 4 Mac Holdings Inc., 948 So.2d 1041, 1041 (Fla. 5th DCA 2007); Barker v. Barker, 909 So.2d 333, 336 (Fla. 2d DCA 2005), rev. denied, 914 So.2d 952 (Fla. 2005). If jurisdictional prongs- two' and three are not fulfilled, we are bound to dismiss the petition. See Capital One, N.A., 34 So.3d at 212.

Certiorari is the appropriate vehicle to review an interlocutory discovery order requiring the production or disclosure of information for which a privilege is asserted. See Seminole Cty. v. Wood, 512 So.2d 1000, 1001 (Fla. 5th DCA 1987). “The'basis for allowing certiorari review of certain discovery orders is that discovery of protected material could result in letting the ‘cat out of the bag,’ and injury could result if such information was disclosed.” Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336, 339 (Fla. 5th DCA 2005); see also State Farm Fla. Ins. Co. v. Marascuillo, 161 So.3d 493, 497 (Fla. 5th DCA 2014); Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005).

DISCUSSION AND ANALYSIS

When a party asserts privilege objections. in opposition to discovery requests, the trial- court must make specific findings to support its denial of those objections. Such findings are necessary for meaningful appellate review. • This Court specifically addressed this issue in Magical Cruise Co. v. Turk, 114 So.3d 233 (Fla. 5th DCA 2013). In Turk, the majority relied on Dismas Charities, Inc. v. Dabbs, 795 So.2d 1038 (Fla. 4th DCA 2001), granted certio-rari relief, and quashed an order requiring the petitioner to turn over work product because the trial court made no findings to justify the production. 114 So.3d at 233; see also Harborside Healthcare, LLC v. Jacobson, 222 So.3d 612, 616 (Fla 2d DCA 2017). We'remanded with instructions to the trial court to reconsider the petitioner’s work product objections and to support any order requiring production of the documents with appropriate findings. Turk, 114 So.3d at 233.

In the present case, the trial court’s orders directing production of the documents are devoid of any determination that the documents at issue were not work product or protected by attorney-client privilege. Instead, the orders merely provide that .the documents are reasonably calculated to lead to the discovery of admissible evidence. That finding only addressed the possible relevance of the documents while completely ignoring State Farm’s -.claims that the documents were exempt from discovery as privileged work product or . confidential attorney-client communication. Because State Farm filed appropriate objections,-motions, and privilege logs asserting that work product and/or attorney-client privilege protected the documents at issue, the trial court was required to make specific detailed findings addressing each privilege claim before ordering production. See id.; Dismas, 795 So.2d at 1039. Accordingly,' because the trial court failed to address the privilege claims, we grant the petition, quash the trial court’s orders, and remand for further proceedings.

During its review "on remand, the trial court must determine whether State Farm’s' work product privilege daims are well-founded. Pursuant to "Florida Rule of Civil Procedure 1.280(b)(3), materials prepared in anticipation of litigation by or for a party or its representative are protected from discovery, unless the party seeking discovery has need of the material and is unable to obtain the substantial equivalent without undue hardship. The rationale supporting the work product doctrine is that “one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques- and discovery procedures.” Dodson v. Persell, 390 So.2d 704, 708 (Fla. 1980); Fact work product traditionally protects that information which relates to the case and is gathered in anticipation of litigation. See State v. Rabin, 495 So.2d 257, 260 (Fla. 3d DCA 1986). Opinion work product consists primarily of the attorney’s mental impressions, conclusions, opinions, and theories; it generally remains protected from disclosure, unlike fact work product, which is subject to discovery upon a showing of “need” and “undue hardship.” Id. The showing of need and undue hardship necessary to overcome work product immunity must include specific explanations and reasons. See N. Broward Hosp. Dist. v. Button, 592 So.2d 367, 368 (Fla. 4th DCA 1992).

The alleged work product documents at issue in this case are internal forms and emails relating fo- State Farm’s responses to Boecher interrogatories. Wallace’s affidavit provides evidence that the disputed documents were prepared in anticipation of litigation, which provides a good faith claim and the possibility for finding that the work product privilege would attach to them. See Anchor Nat’l Fin. Servs., Inc. v. Smelts, 546 So.2d 760, 760 (Fla. 2d DCA 1989). If on remand the trial court agrees that State Farm’s work product claims are valid, Respondent, would be entitled to the “fact” work product contained in the documents only if he can establish need and undue hardship.. At this time, there has been no such showing in this case.

‘ It is hard to imagine Respondent’s need for the potentially privileged information relating only to Boecher discovery. Respondent has' already obtained discovery responses that confirm that in the years 2013-2015, State Farm retained Dr. Zeide approximately 600 times and paid him either $1,235,067.75 or $1,235,077, depending on its slightly different answers to interrogatories in this case and the Parent case. Armed with that information at trial, Respondent’s counsel' can certainly lay a factual basis from which to argue financial bias as.permitted by Boecher without the need to invade State Farm’s work product. By making this observation, we do not intend to foreclose the trial court’s consideration of that issue if it is raised and supported on remand..

Furthermore, if on remand the trial court determines that certain documents constitute confidential attorney-client communication, they are beyond the reach of discovery. See Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So.3d 18, 24-25 (Fla. 2017). The attorney-client privilege is governed by section 90.502, Florida Statutes (2016), which provides that a client has a “privilege to refuse to disclose and to prevent any other person from disclosing the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” Furthermore, there are no “relevance” or “need” exceptions to the attorney-client privilege. See Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068 (Fla. 2011); see also Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002). The documents for which State Farm asserted attorney-client privilege include emails from State Farm employees that are either directed to or show copies being provided to their attorneys. Thus, because State Farm has established a good faith basis for asserting the attorney-client privilege, the trial court must determine on remand whether that privilege protects each objected-to document from discovery.

Accordingly, we grant the petition, quash the orders denying State Farm’s motion for protective order and granting Respondent’s motion to compel disclosure of documents that State Farm asserted were protected from discovery by either the work product doctrine or attorney-client privilege, and remand for further proceedings consistent with this order.

PETITION GRANTED, ORDERS QUASHED.

COHEN, C.J., and BERGER, J., concur.

      . But see Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017). Worley seems, as a practical matter, to permit full Boecher discovery only when it is directed to personal injury defendants and their insurers, while shielding injured plaintiffs from having to disclose information about similar repetitious referral relationships that exist between doctors and plaintiffs’ counsel by invoking the attprney-client privilege.


author: PALMER, J. LAMBERT J.

text:
    Neil VELDEN, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    Case No. 5D16-3628
    District Court of Appeal of Florida, Fifth District.
    January 12, 2018

      Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant.
    . Nancy M. Wallace, of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, Celia C. Falzone, of Akerman LLP, Jacksonville and Eric M. Levine, of Akerman LLP, West Palm Beach, and Charles P. Gufford, of McCalla Raymer Pierce, LLC, Orlando, for Appel-lee.
   PALMER, J.

Neil Velden appeals the final judgment of foreclosure entered by the trial court in favor of Nationstar Mortgage, LLC (Na-tionstar). We affirm in all respects except to the extent the final judgment includes some payments barred by the statute of limitations.

In July 2014, Freedom Mortgage Corporation (Freedom) filed a mortgage foreclosure complaint against Velden, alleging that Velden failed to make his February 1, 2009 mortgage payment as well as all subsequent payments. Thereafter, Nationstar was substituted for Freedom. After trial, the court entered a final judgment of foreclosure in favor of Nationstar, awarding the full amount of the unpaid note plus interest, dating back to January 2009.

Velden asserts that the trial court erred in denying his motion for the entry of an involuntary dismissal because Freedom’s complaint was filed more than five years after the date of his first missed payment. We disagree.

' Section 95.11(2)(c) of the Florida Statutes (2014) provides that an action to foreclose a mortgage shall be commenced within five years. In Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168-69 (Fla. 5th DCA 2017), we affirmed a final judgment of foreclosure, rejecting the same statute of limitations argument raised here:

Because the Bank alleged and proved missed payments within the five years prior to the filing of its complaint, its action was not barred by the statute of limitations.

See also U.S. Bank, N.A. v. Diamond, 228 So.3d 177, 178 (Fla. 5th DCA 2017).

Velden further argues that the trial court erred in awarding Nationstar amounts which accrued beyond the five-year limitations period. We agree.

In U.S. Bank National Association v. Bartram, 140 So.3d 1007 (Fla. 5th DCA 2014), affirmed, 211 So.3d 1009 (Fla. 2016), we quoted with approval from the federal district court case of Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S. D. Fla. 2013):

While any claims relating to individual defaults that are now more than five years old may be subject to the statute of limitations, each payment that is less than five years old ... created a basis for a subsequent foreclosure and/or acceleration action.

In Diamond, 228 So.3d at 179, under similar facts, we remanded with instructions for the trial court “to exclude any defaults that occurred more than five years prior to the filing date of the current suit, nunc pro tunc to the original date judgment was entered.” See generally Greene v. Bursey, 733 So.2d 1111 (Fla. 4th DCA 1999) (recognizing that statute of limitations may run on some payments due on a promissory note but not on others); Cent. Home Tr. Co. of Elizabeth v. Lippincott, 392 So.2d 931 (Fla. 5th DCA 1981) (holding that installment payments due on a promissory note more than five-years old are barred by the statute of limitations, although more recent missed payments are.collectible);

Accordingly, we. affirm the judgment as to liability, but reverse and remand for the trial court to exclude an award of damages for any defaults that occurred more than five years prior to the filing date of the current lawsuit, nunc pro tunc to the original date judgment was entered.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., concurs.

LAMBERT, J., concurs and concurs specially, with opinion.

LAMBERT J.

I concur with the majority opinion which affirms, in part, the final judgment of foreclosure entered in favor of Appellee. I also agree that the majority opinion is consistent with the recent precedent from this court that is cited in the opinion, providing that monies owed due to defaults that occurred more than five years prior to the filing date of the lawsuit must be excluded from the foreclosure judgment. However, if I were writing on a clean slate, I would not exclude these sums from the judgment and would affirm the final judgment of foreclosure for the entire balance owed on the thirty-year note at issue.

The first foreclosure suit on the subject note and mortgage was dismissed without prejudice. As a result of this dismissal, the prior acceleration of the debt owed by Veldén on the note was revoked, resulting in the parties being placed back in their respective pre-acceleration positions. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009, 1021 (Fla. 2016) (“[EJven if the note had been accelerated through the Bank’s foreclosure complaint, the dismissal of the foreclosure action had the effect of revoking the acceleration.”). Velden, however, defaulted on subsequent. monthly note payments. At that point, Nationstar’s predecessor, Freedom, “had the right to file a subsequent foreclosure action — and to seek acceleration of all sums due under the note — so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.” Id. That, in fact, is what happened here. However, the majority opinion finds error in the trial court’s award of any amounts owed on the note that accrued more than five years before the present suit was filed.

In his recent concurring opinion in Bollettieri Resort Villas Condominium Ass’n v. Bank of New York Mellon, 228 So.3d 72 (Fla. 2017), Justice Lawson addressed what he perceived to be “a widespread and fundamental misunderstanding, in Florida, regarding how the statute of limitations, § 95.11(2)(c), Fla. Stat. (2017), operates vis-á-vis a long-term note (and mortgage).” 228 So.3d at 73 (Lawson, J., concurring). Justice Lawson observed that when the right to accelerate the debt for non-payment is optional with the holder of the note, the statute of limitations does not rim until the note is due, which is thirty years after signing, unless the lender or holder accelerates and declares the full balance due earlier. Id. at 74. Justice Lawson recognized that because the promissory note in that case allowed the lender or holder to hold off or forbear accelerating the note upon the borrower’s non-payment, that such forbearance would “not constitute a waiver or defense against future collection of all sums due and owing under the note.” Id.

Here, the note contained the same pertinent provisions. Applying Bartram and the logic from Justice Lawson’s concurring opinion in Bollettieri to the present case, although' Freedom, or any successor such as Nationstar, could have waited until maturity date (i.e. thirty years after the note was signed) to bring its action for nonpayment on the note and to foreclose the mortgage upon Velden’s subsequent defaults, it chose not to do so. Instead, Freedom again accelerated the debt, as it was permitted to do, and filed suit approximately five years and six months from the first default date alleged (and proved) in the complaint. Under Justice Lawson’s analysis, Nationstar should not be deemed to have waived or forfeited its right to have included in the final judgment of foreclosure those monies owed for nonpayments on the note that are more than five years from the filing of the lawsuit based on the statute of limitations defense.

      . We reject Velden's standing argument without further elaboration.

      . Justice Lawson acknowledged that the views expressed in his concurring opinion were of no precedential value, but he invited the districts courts to revisit this issue on their own. Bollettieri, 228 So.3d at 75.