text:
    Sharon Atara KANE, Appellant, v. Lawrence R. SANDERS, Appellee.
    Nos. 3D17-148 & 3D17-69
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017

      Law Office of Kenneth B. Schurr, P.A. and Kenneth B. Schurr; Buchbinder & Elegant, P.A., and Harris J. Buchbinder, for appellant.
    Weiss & Kahn, P.A., and Owen Ellison Kahn, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   SALTER, J.

These consolidated appeals in this high-conflict, post-judgment family case are brought by the mother and former wife, Dr. Kane, from an order holding her in civil contempt (Case No. 3D17-148) and an order on a series of motions (Case No. 3D17-69). For jurisdictional and other reasons, we first describe the procedural history and then separately analyze the two appellate cases. We dismiss the appeal in Case No. 3D17-69 for lack of jurisdiction. In Case No. 3D17-148, we reverse and vacate the order granting the former husband’s motion and supplemental motion for contempt, sanctions, and attorney’s fees and costs.

Procedural History

The former husband and appellee here, Dr. Sanders, petitioned in mid-2010 for the dissolution of the parties’ six-year marriage. By March of 2011, he and Dr. Kane had entered into a mediated marital settlement agreement and parenting plan (“MSA”). The then-presiding family court judge approved and incorporated the MSA in a final judgment of dissolution of marriage only two weeks later. The parties’ daughters were then two and five years of age.

Within about three years, however, various disputes arose regarding time with the children and interpretation of a “right of first refusal” clause (the “ROFR”) in the parenting plan. The disputes intensified following Dr. Kane’s remarriage. Under Dr. Sanders’ interpretation of the ROFR, Dr. Kane could not leave the two girls in their home for 45 minutes to go to the grocery store without first offering to drive the children to Dr. Sanders’ home to leave them with him (and offering to pick up the children to return them to her home). As father and former husband, Dr. Sanders also claimed that Dr. Kane violated the final judgment because she made a “major health decision” unilaterally when she changed the date their daughters were to go to the dentist.

Dr. Sanders moved for the appointment of a parenting coordinator, and Dr. Kane agreed to such an order. Several months later, Dr. Sanders filed a “Motion to Compel, for Contempt, Sanctions, Attorney’s Fees and Costs,” alleging:, five occasions when he was deprived of his right of first refusal; Dr. Kane’s alleged failure to pay for piano lessons, in violation of the MSA; her violation of “sleep-over” agreements and “healthy snacks” agreements established with the parenting coordinator; Dr. Kane’s interference with Dr. Sanders’ telephone contact with the two girls; and her “excessive physicality with and hitting of’ the daughters.

.When Dr. Sanders’ motion was heard in December 2016, the breaches of the ROFR turned out to involve strained interpretations of that clause (leaving one or both of the children at home with child care for a matter of hours rather than a full day, and for reasons which were practical rather than violative of the parenting plan embodied in the MSA). The alleged violation of the “healthy snacks” agreement arranged by the parenting coordinator occurred when the children refused to accept carrots, hummus, and apples Dr. Sanders brought to school on days when Dr. Kane was tlie custodial parent. Dr. Sanders supplemented the motion for contempt with allegations that Dr. Kane was refusing tó meet with him and their older daughter (by then ten years old) regarding her participation on a jump rope, team, such that Dr. Sanders would not allow further participation in those activities.

Given Dr. Sanders’ concern about the children’s contact with Dr. Kane’s fiancé (who became Dr. Kane’s husband), the parties mutually agreed that a licensed psychologist should conduct an investigation and provide a report. Each party met twice with the psychologist, but Dr. Sanders then advised the psychologist that her work was suspended. Dr. Kane filed a motion to appoint a guardian ad litem for the minor children, and the parenting coordinator filed a request for a status conference to ask the family court for psy-chotherapeutic evaluation and treatment for the two girls.

Dr. Kane scheduled the psychologist for a deposition, but Dr. Sanders moved for a protective order based on an assertion that the psychologist was appointed based on a settlement agreement that failed.

After hearing these motions and cross-motions, the court entered an order on one group of pending motions (Case No. 3D17-69) (denying Dr. Kane’s motions for a guardian ad litem and an evaluation of the children, granting Dr. Sanders’ motion for protective order regarding the deposition of the psychologist, and denying the parenting coordinator’s request for a status conference). A month later, the court entered a more extensive order granting Dr. Sanders’ motions to compel, for contempt, for sanctions, and for attorney’s fees, and denying Dr. Kane’s motions for similar relief (Case No. 3D17-148). These appeals followed.

Analysis: Case No. 3D17-69 (Order on Pending Motions)

The order denying a group of pending motions, entered a month before the contempt order in Case No. 3D17-148, is a non-final order that is not subject to appeal. We lack jurisdiction and thus dismiss this case.

That portion of the order granting Dr. Sanders’ post-judgment motion for a protective order as to the deposition of the psychologist could be treated as a petition for certiorari. See S.W. Fla. Paradise Prop., Inc. v. Segelke, 111 So.3d 268 (Fla. 2d DCA 2013). On the record before us, however, we would dismiss such a petition because the court’s ruling does not depart from the essential requirements of law, cause material injury throughout the remainder of the proceedings below, or effectively leave Dr. Sanders without an adequate remedy on appeal. Id. at 271 (quoting Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006)).

Analysis: Case No. 3D17-148 (Contempt)

The trial court has inherent authority to hold a party in contempt for intentionally failing to obey a court order. Rojo v. Rojo, 84 So.3d 1259, 1261-62 (Fla. 3d DCA 2012). To hold a party in contempt, it must be found that the party acted intentionally to violate a court order. Fore v. State, 201 So.3d 839 (Fla. 4th DCA 2016). Merely acting recklessly is insufficient to support a contempt. Id.

To support a contempt finding, the violated court order must also clearly and definitely make the party aware of the court’s command. M.J. v. State, 202 So.3d 112, 113 (Fla. 5th DCA 2016). The language of the order must be clear and precise. Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975). A contempt cannot be based on behavior that the court order does not contain. Haas v. State, 196 So.3d 515, 523 (Fla. 2d DCA 2016); Paul v. Johnson, 604 So.2d 883 (Fla. 5th DCA 1992).

“It is well established that a party cannot be sanctioned for contempt for violating a. court directive or order which is not clear and definite as to how a party is to comply with the court’s command.” Ross Dress for Less Virginia, Inc. v. Castro, 134 So.3d 511, 523 (Fla. 3d DCA 2014) (quoting Northstar Inves. & Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla. 5th DCA 1997)). When a trial court holds a party in contempt based on that party’s failure to follow an order that does not “clearly and definitely” make the party aware of what the party must do, the standard of review is legal error. Rojo, 84 So.3d at 1261.

To the extent that the finding of contempt in this case is based on the ROFR, it fails because of the ambiguous terms of both the provision and the conduct alleged to have violated it. Requiring Dr. Kane to notify Dr. Sanders, and (potentially) to transport and pick up the children if Dr. Sanders exercised his right, comports with common sense when Dr. Kane could not stay with the children for some meaningful period of time, but is absurd when invoked regarding her hour-long trip to the supermarket or for similar errands. The ROFR’s failure tó specify a minimum period of absence, and its reference to a parent’s inability to enjoy access to the child “for whatever reason” during a time-sharing slot, are a recipe for differing interpretations, for interrupting the children’s activities and focus by shuttling them hither and yon, and for fostering friction in post-dissolution parenting.

Here, as in' Miranda v. Miranda, 566 So.2d 16 (Fla. 4th DCA 1991), the challenged order fails to contain a “clear and definite command” sufficient to notify a party of his or her required conduct and is not enforceable via contempt. Dr. Kane’s interpretation, that the ROFR is applicable .to overnight absences, is at least as reasonable as Dr. Sanders’ interpretation, that the ROFR also applies to short absences for any reason and any period during a day.

The other purported grounds for contempt are equally infirm. The charge that Dr. Kane denigrated Dr. Sanders in the presence of the minor children is based on a single instance after which it is undisputed that Dr. Kane apologized. Reckless action, as opposed to intentional misconduct, is insufficient to support a contempt. Fore, 201 So.3d at 841. Dr. Kane’s alleged interference with Dr. Sanders’ Facetime calls with the children rests on a vague provision in the MSA as well. Dr. Kane’s alleged interruption of such calls on a very limited number of occasions (when a child was upset or sick) does not violate any parenting plan provision. The MSA provisions on communications with children could easily have been drafted to require isolated and private Facetime communications between the children and the absent parent.

Dr. Sanders’ claim that Dr. Kane' could not enroll a daughter in Zumba classes (to take place during Dr. Kane’s timesharing periods) fails because he admitted that the •parties had previously agreed verbally that each could enroll the children in after-school activities that took place during their respective timesharing intervals. Nor was Dr. Kane’s refusal to meet face to face with Dr. Sanders violative of the MSA when she imposed the condition that the meeting take place with a third adult present, but outside the presence of the children. The parenting plan does not require that a child be present at any such meeting, nor does it forbid the presence of a third person.

Conclusion

In Case No. 3D17-69, we dismiss the appeal taken from the “Order on Pending Motions" of December 7, 2016, for lack of jurisdiction.

In Case No. 3D17-148, we reverse and vacate the order granting Dr. Sanders’ motion and supplemental motion to compel, for contempt, 'for sanctions, and for attorney’s’ fees and costs.

      . The parenting plan ROFR provision stated: "To the extent the party entitled to access with the child is unable to enjoy access to the child for whatever reason, then the other parent shall be entitled to the right of first refusal to care for the child over any other third party.” Importantly, the provision did not include any specifics regarding the amount of access time that would trigger the right, or regarding the responsibility as between the parties to pick up or drop off the children upon exercise of the ROFR.

      . This recitation of alleged violations of the MSA is illustrative rather than exhaustive. No written parenting plan can be so complete and unambiguous as to address every eventuality that occurs with developing children over a course of years. Good will and the best interests of the children are to be the lodestars for former spouses and parents when the parenting plan is incomplete or ambiguous. The trial court correctly noted that "common sense” should apply regarding the ROFR.

      . The trial court did not impose specific sanctions against Dr. Kane other than the assessment of attorney's fees and costs.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Saint Luc Jean NOEL, Appellant, v. JAMES B. NUTTER & COMPANY, Appellee. Marie Ann Henry, Appellant, v. Reverse Mortgage Solutions, Inc., Appellee.
    No. 3D17-71
    Consolidated: 3D16-2901
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017.

      Morris 1 Barrow, LLP, and J. Wil Morris, for appellants.
    Robertson, Anschutz & Schneid, P.L., and David Rosenberg and Jarrett Cooper (Boca Raton), for appellees.
    Before LAGOA, SALTER, and LINDSEY, JJ.
   LAGOA, J.

The appellants in this consolidated appeal seek review of the trial court’s denial of respective motions for Relief from final judgments of attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.540(b). Because the trial court abused its' discretion in failing to vacate the relevant final judgments on the basis, of excusable neglect, we reverse and remand for further proceedings.

L FACTUAL AND PROCEDURAL HISTORY

•The underlying facts concern separate mortgage foreclosure actions. The relevant factual circumstances of each case are as follows:

A. Case Number 3D16-2901

In Case Number 3D16-2901, appellee, Reverse Mortgage Solutions, Inc. (“Reverse Mortgage”), filed a complaint to foreclose mortgage against appellant, Marie Ann Henry (“Henry”), on June 26, 2014 (the “Henry case”). On March 30, 2016, Henry filed an answer, affirmative defenses, and counterclaims. Henry’s counterclaims were based on her allegation that Reverse Mortgage failed to obtain approval from the Secretary of Housing and Urban Development (“HUD”) prior to commencing its foreclosure action. Shortly thereafter, on April 26, 2016, Reverse Mortgage served Henry’s counsel with a motion for attorney’s fees pursuant to the “safe harbor” provision of section 57.105(4), Florida Statutes (2016). Reverse Mortgage asserted that the counterclaims were devoid of legal or factual support, and therefore frivolous, within the meaning of section 57.105 because Reverse Mortgage obtained approval from HUD on March 25, 2014, prior to commencing suit. Henry failed to timely withdraw the counterclaims, and Reverse Mortgage subsequently filed its motion for attorney’s fees.

On September 26, 2016, the trial court entered an order granting Reverse Mortgage entitlement to attorney’s fees. On that same date, the trial court issued a standing order on attorney’s fees and costs (the “standing order”). The standing order set forth deadlines for the parties’ submissions related to the determination of an amount of fees. Specifically, the standing order provided that within ten days of the moving party’s compliance with submissions, the non-moving party must respond in writing to each item of costs and fees, and that a failure to timely object shall constitute a waiver and approval of all fees and costs requested. The standing order also provided that no hearing was required if the non-moving party failed to object to the amounts sought. Henry failed to respond or object to Reverse Mortgage’s submissions regarding the amounts of its fees, and on October 18, 2016, the trial court entered a final judgment of attorney’s fees and costs against Henry and her counsel in an amount consistent with Reverse Mortgage’s submissions.

After receiving a copy of the final judgment of attorney’s fees and costs, Henry filed a verified motion for relief from final judgment of attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.540(b). Henry sought to vacate the final judgment on the basis of excusable neglect and to be allowed the opportunity to raise objections to the amount of fees sought by Reverse Mortgage. Specifically, Henry’s counsel attested that “none of the deadlines outlined in the Standing Order were ever noted or calendared” by his assistants, for whom calendaring is the sole responsibility in his office. Counsel attested that “but for the innocent failure to calendar the deadlines contained in the Standing Order” he would have objected to the time sheets submitted by Reverse Mortgage in support of attorney’s fees. Counsel also stated that the Standing Order was filed on October 4, 2016, “the day before offices began closing due to Hurricane Matthew” and that this partially lead to the failure to calendar the deadlines outlined in the standing order.

On November 28, 2016, the trial court denied Henry’s verified motion for relief from final judgment of attorney’s fees and costs, finding that “there was no establishment of excusable neglect.” Henry appeals from the trial court’s order denying her motion for relief from final judgement of attorney’s fees and costs.

B. Case Number 3D17-71

In Case Number 3D17-71, appellee, James B. Nutter & Co. (“Nutter”), filed a complaint to foreclose mortgage against appellant, Saint Luc Jean Noel (“Noel”), on November 30, 2015 (“Noel case”). Noel was represented in the foreclosure action by the same counsel as Henry. As he did in the Henry case, Noel’s counsel filed counterclaims based upon a factual allegation that Nutter failed to obtain approval from HUD prior to commencing its foreclosure action. Nutter served Noel’s counsel with a motion for attorney’s fees pursuant to the “safe harbor” provision of section 57.105(4), alleging entitlement to attorney’s fees on the basis that it obtained approval from HUD prior to commencing suit, and therefore Noel’s counterclaims were devoid of factual or legal support. The counterclaims were not timely withdrawn, and Nutter filed its motion with the trial court.

On September 26, 2016, the trial court entered an order granting Nutter entitlement to attorney’s fees. On that same day, the trial court also issued a standing order on attorney’s fees and costs which contained the same deadlines as those set forth in the standing order issued in the Henry case. Noel failed to respond or object to Nutter’s submissions regarding the amount of its fees, and on November 7, 2016, the trial court entered a final judgment of attorney’s fees and costs against Noel and his counsel in an amount consistent with Nutter’s submission.

Noel subsequently filed a verified motion for relief from final judgment of attorney’s fees and costs, seeking to vacate the final judgment and an opportunity to raise objections to the amount of attorney’s fees sought. Noel’s counsel made the same allegations of excusable neglect that he made in the Henry case — attesting that “none of the deadlines outlined in the Standing Order were ever noted or calendared by the undersigned counsel’s office,” and that the failure to calendar the deadlines was partially because the standing order was sent during preparations for Hurricane Matthew. Following a hearing, the trial court entered an order on December 12, 2016, denying Noel’s motion for relief from final judgment'Of attorney’s fees. Noel appeals from the trial court’s order denying his motion for relief from final judgement of attorney’s fees.

II. STANDARD OF REVIEW

The denial of a motion for relief from final judgment under Florida Rule of Civil Procedure 1.540(b) is reviewed for an abuse of discretion. See Ocwen Loan Servicing, LLC v. Brogdon, 185 So.3d 627, 629 (Fla. 5th DCA 2016); SunTrust Mortg. v. Torrenga, 153 So.3d 952, 953 (Fla. 4th DCA 2014); Acosta v. Deutsche Bank Nat’l Tr. Co., 88 So.3d 415, 417 (Fla. 4th DCA 2012).

III. ANALYSIS

The appellants and their counsel sought relief under rule 1.540(b), ’ which provides in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ....

Rule 1.540(b)(1) “ ‘envisions an honest mistake made during the regular course of litigation, including those that result from oversight, neglect, or accident.’” Ocwen Loan Servicing, 185 So.3d at 629 (quoting Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007)). “Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’” Elliott v. Aurora Loan Servs. LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (quoting Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)). Where a failure to act is the result of clerical or secretarial error, excusable neglect is established under rule 1.540(b). See Ocwen Loan Servicing, 185 So.3d at 630 (finding that counsel’s absence from case management conference constituted excusable neglect where firm’s clerk misplaced order setting conference); SunTrust Mortg., 153 So.3d at 954 (“[T]he attorney’s unintentional absence in the instant case due to inadvertent calendaring is the type of mistake excused by Florida Rule of Civil Procedure 1.540(b), as well as judicial precedent.”); J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (holding that defense counsel’s failure to appear at hearing was excusable neglect where secretary accidentally iden>-tified the hearing as cancelled); Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992) (finding plaintiff was entitled to rule 1.540(b) relief from judgment where counsel’s failure to attend hearing was due to secretary’s failure to calendar hearing).

‘“Excusable neglect must be proven by sworn statements or affidavits.’” Elliott, 31 So.3d at 307 (quoting Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004)). In this case, counsel for both Henry and Noel provided affidavits explaining the clerical mishap that led'to counsel failing to comply with - the deadlines set forth in the standing order. Specifically, counsel for both Henry and Noel attested that the calendaring responsibility in his office lies solely with his assistants, and that in this instance, his assistants failed to calendar the deadlines set forth m the relevant standing orders. Moreover, office preparations for Hurricane Matthew contributed to the assistants’ failure to follow normal office procedure and calendar the deadlines. Counsel also attested that but for the failure to calendar the deadlines, he would have objected to the time sheets submitted by Reverse Mortgage and Nutter. These undisputed facts constitute the type of secretarial error or breakdown in normal office procedure, which constitute excusable neglect pursuant to rule 1.540(b). See Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83, 83-84 (Fla. 3d DCA 1987) (holding that neglectful, but understandable breakdown in defendant’s established office practice that resulted in the complaint being lost on the desk of general counsel constituted excusable neglect).

III. CONCLUSION

Because the failure to comply with the deadlines set forth in the- standing orders was the result of excusable neglect,' we find that the trial court abused its discretion in denying the respective motions for relief from final judgment of attorney’s fees and costs. On remand, Henry and Noel shall be given an opportunity to respond and object to Reverse Mortgage’s and Nutter’s submissions regarding attorney’s'fees in accordance with the-terms of the standing orders.

Reversed and remanded for further proceedings.

      . .Section 57.105, Florida Statutes, provides in relevant part:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.

      (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

      . As these cases were consolidated for appellate purposes on the basis that the factual and procedural histories of the two cases were substantially similar, we also include a brief description of the underlying proceedings in Case Number 3D17-71.

      . Nutter and Reverse Mortgage were also represented by the same counsel.

      . We decline to address any arguments directed toward the merits of the underlying final judgments of attorney's fees and costs. The law is clear that, an appeal from an order denying a motion to vacate under rule 1.540(b) does not encompass .the merits of the final judgment sought tp be vacated or any other judgment.' See Troiano v. Tizon, 632 So.2d 251, 252-53 (Fla. 3d DCA 1994); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988).


author: LEWIS, J. ROWE, J.,

text:
    Virginia Denise WYCHE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4797
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017.
    Rehearing Denied January 17, 2018

      Andy Thomas, Public Defender, Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Virginia Denise Wyche, Appellant, challenges her convictions and sentences for second-degree murder of an unborn quick child and attempted second-degree murder of the unborn child’s mother, raising eleven issues, only the first of which merits discussion. Appellant argues that her second-degree murder conviction cannot be legally sustained because under the common law born alive rule, an unborn child is not a human being within the meaning of Florida’s homicide statute, section 782.04(2), Florida Statutes (2013). We reject Appellant’s argument for the reasons that follow and affirm her convictions and sentences in all other respects without further discussion.

In this tragic case, on April 23, 2014, twenty-five to twenty-six weeks into her pregnancy, the mother was shot with a ,22-caliber revolver in the abdomen by Appellant, her friend, over a dispute involving the naming of the unborn quick child, with the bullet striking the unborn quick child and causing multiple injuries to the unborn child. While the mother survived the gunshot wound, the unborn quick child was not born alive and died as the result of the gunshot wound. Following trial, the jury found Appellant guilty as charged of attempted second-degree murder of the mother and guilty of second-degree murder of the unborn quick child. Thus, the issue we must resolve is whether the common law born alive rule has been abrogated by the Florida Legislature so as to allow Appellant’s second-degree murder conviction to stand under section 782.04(2). Given that this issue presents a pure question of law and turns on statutory interpretation, our review is de novo. See Townsend v. R.J. Reynolds Tobacco Co., 192 So.3d 1223, 1225 (Fla. 2016).

Section 782.04(2), Florida Statutes (2013), defines second-degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” Under the common law born alive rule, “the killing of a fetus was not homicide unless the child was born alive and then expired as a result of the injuries previously sustained.” State v. Gonzalez, 467 So.2d 723, 725 (Fla. 3d DCA 1985); see also Knighton v. State, 603 So.2d 71, 72 (Fla. 4th DCA 1992); State v. McCall, 458 So.2d 875, 876 (Fla. 2d DCA 1984).

The Florida Legislature enacted section 782.09, Florida Statutes, commonly referred to as the feticide statute, in 1868. Ch. 1868-1637, § 10, Laws of Fla. Through September 2006, the feticide statute provided that “[t]he willful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.” § 782.09, Fla. Stat. (2005). Effective October 2005, the feticide statute was amended to provide that the unlawful killing of an unborn quick child shall be deemed manslaughter or murder in the same degree as that which would have been committed against the mother if the act had resulted-in her death. Ch. 2005-119, § 2, Laws of Fla. At the time of Appellant’s offenses, the feticide statute set forth:

(1) The unlawful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such'mother, ■shall be deemed murder in the same degree as that which would have been committed against the mother. Any person, other than the mother, who unlawfully kills an unborn quick child by any injury to the mother:
(b) Which would be murder in the second degree if it resulted in the mother’s death commits murder in the second degree ....

§ 782.09, Fla. Stat. (2013) (defining “unborn quick child” as a “viable fetus”) (emphasis added).

■ “Under our rules of statutory construction, a statute will not displace the common law unless the legislature expressly indicates an intention to do ■ so.” Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla. 1997)-(citing Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla. 1977)). “Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990) (citations omitted); see also Townsend, 192 So.3d at 1231; Webb v. Sch. Bd. of Escambia Cty., 1 So.3d 1189, 1190 (Fla. 1st DCA 2009). The 2013 version of the feticide statute presents such a sequence of events.

“The polestar of a statutory construction analysis is legislative intent.” W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012). To discern legislative intent, the court must first look to the plain and obvious meaning of the statute’s text, which may be discerned from a dictionary. Id. at 9. If the statutoiy language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. Id. “Likewise, the ‘[a]dministrative construction of a statute, the legislative history of its enactment, and other extraneous matters are properly considered only in the construction of a statute of doubtful meaning’ ” Atwater v. Kortum, 95 So.3d 85, 90 (Fla. 2012) (quoting Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1153 (Fla. 2000))- (emphasis in original). This is so because the Legislature is assumed to know the meaning of the words used in the-statute and to have expressed its intent through the use - of the words. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d l216, 1225 (Fla. 2006).

' The clear and unambiguous . language -of the feticide statute provides that the- killing of an unborn quick child may constitute murder, which is in direct conflict ■with the common law rule requiring the fetus to be born alive. As such, the Legislature has expressed a clear intent to recognize an unborn quick child as a human being entitled to the protection of Florida’s homicide statute. Therefore, we hold that the. Legislature has abrogated the common law born alive rule by enacting the 2013 version of the feticide statute as the two cannot coexist. •

We recognize that our holding appears to b¿ in conflict with Knighton, McCall, and" Gonzalez. In Knighton, the Fourth District affirmed the appellant’s conviction for third-degree murder of a fetus that was born alive, unlike the unborn quick child in the instant case, but subsequently died due to the injuries the appellant inflicted on the mother upon concluding that the fetus was a human being under the common law born alive rule because'she was bom alive; 603- So.2d at 72-73. Significantly,-the court rejected'the appellant’s argument that the born alive rule has been abrogated by the feticide and termination of pregnancy statutes and “suggested] .,. [the rule’s] continued viability in the absence of any statutory definition of ‘human being.’”Id. at73.

In McCall, the Second District-affirmed the dismissal of the' DWI manslaughter and vehicular homicide charges -relating to the death of an unborn child upon holding /that such crimes do not exist in Florida because an unborn child is not a human being within the definitions of DWI manslaughter and vehicular homicide, which require the death of a “human being," in light of the common law born -alive rule. 458 So.2d at 876. The court quoted the feticide statute, but stated that it did not apply because the information did not allege the willful killing of the unborn child or his mother, and “adopt[ed] the traditional interpretation of the words ‘human being’ under the homicide statutes as meaning one who has been born alive.” Id. at 877. Conversely, in this case, the information tracked the language of the feticide statute, in addition to the homicide.statute.

Finally, in Gonzalez, the Third District affirmed the,dismissal of the manslaughter charge against the appellant, a doctor who allegedly performed an illegal abortion on a minor, upon holding that an unborn child is not a human being within -the meaning of the manslaughter statute in light of the common law born alive rule. 467 So.2d at 725-26. The court reasoned that the Legislature believed the feticide and abortion statutes were adequate protections for the unborn; if the .Legislature chooses to expand the protections, it can expressly do so, such as by amending the manslaughter statute to criminalize “the killing of a human being or viable fetus”; the Legislature “has indicated it is capable of distinguishing between an unborn child and a person born alive since it has enacted statutes which acknowledge this distinction”; and “[sjince ‘human being’ is not defined in Florida Statutes and until the Florida Legislature specifically changes it, the common law definition controls,” Id. While the feticide statute in effect when the alleged illegal abortion on the minor was performed on June 25, 1982, did not apply to the facts of Gonzalez, as we previously stated, under the 2013 version of the feti-cide statute that applies to the facts of this case, an unborn quick child is recognized as a human being entitled to the protection of Florida’s homicide statute.

We, therefore, affirm Appellant’s convictions and sentences and certify conflict with Knighton, Gonzalez, and McCall to the extent our holding conflicts with those decisions.

AFFIRMED; CONFLICT CERTIFIED.

B.L. THOMAS, C.J., CONCURS; ROWE, J., CONCURS WITH OPINION.

ROWE, J.,

concurring,.

A dispute that began over a Facebook post ended with the murder of an unborn child. Markeisha Brooks, who was approaching the third trimester of her pregnancy, asked her Facebook “friends” to suggest names for her baby. Virginia Denise Wyche responded to the post in a profane and belligerent manner. Brooks decided to visit Wyche at her home to attempt to resolve their disagreement in person. However, after Brooks arrived at Wyche’s home, tensions between the .two women escalated. While standing less than an arm’s length away from Brooks, Wyche pulled a .22-caliber revolver from, her waistband and shot Brooks directly in the womb. Brooks survived the bullet wound, but her unborn child did. not. The bullet entered the child’s abdomen and exited near the child’s right shoulder. Brooks testified at trial that after the bullet entered her womb, she felt the- last movements of her child as the child died. The jury found Wyche guilty of attempted second-degree murder of Brooks and guilty of second-degree murder of Brooks’s unborn child.

Wyche argues that she could not legally be convicted of second-degree-murder of Brooks’s unborn child because under the common law “Born Alive” Rule, an unborn child is not a human being within the meaning of Florida’s homicide statute, section 782.04(2), Florida Statutes (2013). As explained in the majority opinion, the Legislature abrogated the common law when it enacted the 2013 version of the feticide statute, section 782.09, Florida Statutes, and expressed its clear intent to give protection under the homicide statute to unborn human beings from the point of viability. Pursuant to the statute, a viable, unborn child is recognized. ás a human being entitled to the protection under Florida’s homicide statute. I write to explain why, even absent Legislative abrogation, the courts should abandon the “Born Alive” Rule.

The earliest cases under the common law of England held that a defendant could not be convicted for killing an unborn child, Commonwealth v. Morris, 142 S.W.3d 654, 656 (Ky. 2004). During the thirteenth century when the earliest references to the Rule appear, knowledge of life in the womb was primitive and medical science was not sufficiently advanced to allow a court or jury to determine beyond a reasonable doubt whether a defendant’s actions or some unrelated event was the cause of death of an unborn child. Id. at 657; see also Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324, 1328 (1984). Instead, live birth was the required evi-dentiary standard to prove that the child was alive at the time of the acts by the defendant that resulted in the alleged homicide. Coke explained the “Born Alive” Rule in this way:

If a woman be quick with childe, and by a Potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder: but if the childe be born alive, and dieth of the Potion, battery, or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.

Sir Edward Coke, Third Institute 50-51 (1644). Thus, the “Born Alive” Rule has been frequently described as “an eviden-tiary principle that was required by the state of medical science of the day.” Morris, 142 S.W.3d at 657 (quoting Clarke D. Forsythe, Homicide of the Unborn Child: The Bom Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 586 (1987)).

American courts first applied the “Born Alive” Rule in the late eighteenth century. Morris, 142 S.W.3d at 657. Since that time, the Rule has been applied in both civil and criminal actions. Id. In Florida, the “Born Alive” Rule has been relied upon in four reported decisions involving homicide convictions. See State v. Ashley, 701 So.2d 338 (Fla. 1997) (holding that a pregnant woman who shot herself in the abdomen during her third trimester and whose child was born alive was immune from prosecution on grounds that the common law “Born Alive” Rule conferred immunity on the pregnant woman); Knighton v. State, 603 So.2d 71 (Fla. 4th DCA 1992) (affirming a murder conviction of a defendant who shot a pregnant woman in the abdomen, fatally wounding her unborn child, where the child died shortly after birth); State v. Gonzalez, 467 So.2d 723 (Fla. 3d DCA 1985) (relying upon the “Bom Alive” Rule to affirm a trial court’s dismissal of a manslaughter charge brought against a doctor who allegedly performed an illegal abortion on a minor, where the child was not born alive); State v. McCall, 458 So.2d 875 (Fla. 2d DCA 1984) (holding that a viable, but unborn child could not be the victim of the crimes of vehicular homicide or DWI manslaughter). In none of these decisions did the reviewing courts consider the evidentiary purpose served by the Rule along with whether that purpose has been undermined by modern-day advancements in medical science and technology. The necessity for the Rule has long since passed, and serving no purpose, the Rule should no longer be applied.

Medical experts in the twenty-first century possess exponéntiaüy more knowledge about life inside the womb than did their counterparts living in the thirteenth century when the “Bom Alive” Rule originated. With recent developments in medical technology and neonatal medicine such as sonography, fetal heart monitoring, amniocentesis, and chorionic villus sampling, medical experts can competently establish the point at which the unborn child is viable, as well as the proximate cause of the death of the child. See Robert H. Blank, Emerging Notions of Women’s Rights and Responsibilities During Gestation, 7 J. Legal Med. 411, 452 (1986); Carolyn J. Chackin, What Potent Blood: Norir-Invasive Prenatal Genetic Diagnosis and the Transformation of Modem Prenatal Care, 33 Am. J.L. & Med. 9, 10-11 (2007). Because medical experts can offer reliable testimony on viability and cause of death, the evidentiary necessity of the “Born Alive” Rule no longer exists. See McCarty v. State, 41 P.3d 981, 986 (Okla. Crim. App. 2002) (“As medical science continues to improve and viability comes at earlier and earlier stages of the birth process, individuals should be, and will be, put on notice that their acts which lead to the death of that unborn child, once the child has attained that level of viability as determined by the medical evidence, can, and will, make them liable for the taking of the life of that unborn child.”); see also Cass, 467 N.E.2d at 1328 (“Medical science now may provide competent proof as to whether the fetus.was alive at the time of a defendant’s conduct and whether his conduct was the cause of death.”). Many states have already abandoned the “Bom Alive” Rule, some through legislation, others by judicial decision. See Hughes v. State, 868 P.2d 730, 731 (Okla. Crim. App. 1994) (abandoning the “Born Alive” Rule); State v. Horne, 282 S.C. 444, 319 S.E.2d 703, 704 (1984) (holding that a viable, unborn child is a “person” within the statute defining murder as the killing of “any person”); see also Farley v. Smith, 196 W.Va. 671, 466 S.E.2d 522, 528 n.13 (1995) (providing a list of the thirty-six jurisdictions that permit tort recovery for the death of a viable, unborn child). Florida should abandon the Rule, too.

Moreover, the facts of this case amply demonstrate why the “Born Alive” Rule is no longer required to assist the trier of fact in determining whether the unborn child was alive at the time of the defendant’s acts that led to the alleged homicide and whether the defendant caused the death of the unborn child. Brooks testified that she felt her unborn child’s last movements, following the entry of the bullet into her abdomen. The medical evidence established that Brooks was twenty-five to twenty-six weeks pregnant at the time of the shooting. The medical examiner testified that the child was viable. He explained that at twenty-five weeks, Brooks’s child had between a fifty and an eighty percent chance of surviving, and at twenty-six weeks, the survival fate would be between eighty and ninety percent. The medical examiner testified that other than the trauma resulting from the fatal gunshot wound, Brooks’s child was free of any pathology, abnormalities; or • congenital defects. He provided his expert opinion that Brooks’s child was capable of life and that the child died because of the bullet that-passed through the mother’s womb into the child. Due to the medical and lay testimony in this case, the jury could determine beyond a reasonable doubt whether Brooks’s child was alive and viable when Wyche shot Brooks and whether the shooting was the cause of the child’s death.

Accordingly, I would affirm Wyche’s conviction for the second-degree murder of Brooks’s unbom'child. I join the majority in holding that the Legislature abrogated the “Bom Alive” Rule through its enactment of the feticide statute. But I also conclude that the “Born Alive” Rule should no longer be applied in Florida because the evidentiary basis for the Rule no longer exists. Developments in modern medicine allow for experts to testify competently as to the health and development of the unborn child and the cause of the child’s death. The medical evidence and testimony presented in this case was more than sufficient for the jury to determine beyond a reasonable doubt that Wyche’s gunshot to Brooks’s womb resulted in the death of her viable, unborn child. Because Brooks’s unborn child was a human being entitled to the protection under Florida’s homicide statute, Wyche’s conviction should be affirmed.

      . Ct. State v. Ashley, 701 So.2d 338, 339-42 (Fla. 1997) (noting the born alive rule, and holding that an expectant mother cannot be criminally charged with the death of her born alive child resulting from self-inflicted injuries during the third trimester of pregnancy because the common law immunity from prosecution for the pregnant woman was not abrogated by sections 390.001, 782.04, and 782.07, Florida Statutes (1993)).

      . Effective October 2014, the feticide statute was amended to criminalize the' killing of an - “unborn child,” which is defined as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.” § 782.09(1), (5), Fla. Stat. (2014); § 775.021(5)(e), Fla. Stat. (2014). Also effective October 2014, a new rule of construction was added to -section 775.021, Florida Statutes (2014), which provides in part as follows: (5) Whoever commits an act that violates a provision of this code or commits a criminal offense defined by another statute and thereby causes the death of, or bodily injury to, -an unborn child commits a separate offense if the provision or statute does not otherwise specifically provide a separate offense for such death or injury to an unborn child.

      . "A Facebook friendship does not necessarily signify the existence of a close relationship." Chace v. Loisel, 170 So.3d 802, 804 (Fla. 5th DCA 2014).

      . In 2014, the Legislature amended the definition of "unborn child” to include any "member[s] of the species Homo sapiens, at any stage of development, who is carried in the womb.” §§ 782.09(1), (5), Fla. Stat. (2014); § 775.021(5)(e), Fla. Stat. (2014). Thus, where a defendant's actions end the life of an unborn child, the State has rejected the viability framework employed in the context of abortion in favor of providing the broadest protection of human life. The United States Supreme Court has repeatedly held that “the State .has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus.” See Gonzales v. Carhart, 550 U.S. 124, 125, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (emphasis ■ added). When it comes to actions by third parties that end the life of the uribom child, the viability of the unborn child is "simply immaterial.” Smith v. Newsome, 815 F.2d 1386, 1388 (11th Cir. 1987); see also State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990) (“Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ] protects the woman’s right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.”),


author: PER CURIAM.

text:
    David BELLEGARDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1613
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017
    . Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Dale v. State, 703 So.2d 1045, 1047 (Fla. 1997) (concluding that a BB or pellet gun can be a deadly weapon for the purposes of the crime of robbery under section 812.13(2)(a) of the Florida Statutes, and holding that the issue of “deadliness” is a jury question).


author: EMAS, J.

text:
    Victor HERRERA-ZENIL, et al., Appellants, v. Carlos Luis Vasallo TOME, et al., Appellees.
    No. 3D16-2536
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017

      Fors i Attorneys at Law and Jorge L. Fors, Jr., for appellants.
    Dorta & Ortega, Nicole Ruesca, Omar Ortega and Aileen J. Esteban, for appel-lees.
    Before LAGOA, EMAS and SCALES, JJ.
   EMAS, J.

Carlos Luis Vasallo Tome, Mi Cine USA, Cine Nostalgia, Inc., and Cine Este-lar, Inc., are defendants in the action below. Defendants filed a motion to dismiss the operative complaint of plaintiffs Victor Herrera-Zenil and Canal Mi Cine S.A. de C.V., on forum non conveniens grounds.

The trial court granted the motion and entered an order dismissing the complaint. Plaintiffs have appealed that order, which we review for an abuse of discretion. Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996); Rolls-Royce, Inc. v. Garcia, 77 So.3d 865 (Fla. 3d DCA 2012). Upon our review and consideration of the entire record, we affirm.

The Florida Supreme Court, “out of growing concern that Florida was becoming a ‘courthouse ' for the world’ ... adopted the federal forum non conveniéns standard” in Kinney. Hilton Int’l Co. v. Carrillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008). Under this standard, a trial court presented with a forum non conve-niéns motion must consider: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the “strong presumption against disturbing plaintiffs’ initial forum choice"; 3) if the balance of private interests is at or near equipoise, whether relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum. Kinney, 674 So.2d at 90. See also Fla. R. Civ. P. 1.061(a)(l)-(4).

The trial court conducted an evidentiary hearing over a period of three days, and live testimony was presented during two of those days. Following the hearing, and argument of counsel, the trial court entered a detailed, thirteen-page order which set forth its analysis of each of the Kinney factors. The order also addressed the evidence supporting the trial court’s determinations that: Mexico was an available and adequate alternative forum; the private interest factors between litigating in Florida or Mexico were in equipoise; the public interest factors weigh in favor of Mexico as the forum for the action; the plaintiffs can reinstate their' suit in the alternative forum without undue inconvenience or prejudice.

Plaintiffs contend that there was no evidence to support the trial court’s finding that Mexico was an available and adequate alternative forum. We do not agree. The defendants’ Mexican legal expert provided, by affidavit and sworn testimony, sufficient evidence to establish that Mexico will provide an adequate alternative forum for the causes of action asserted in the operative complaint. Appellees presented no expert testimony to rebut or contradict defendants’ evidence in this regard.

In addition, defendants presented evidence of ongoing parallel litigation in Mexico between Mi Cine, Herrera and Vasallo on the same issues raised by plaintiffs in their complaint. There was no abuse of discretion in the trial court’s determination that Mexico is an available and adequate alternative forum.

We reject plaintiffs’ contention that defendant Vasallo waived any forum non conveniens challenge, and that the trial court therefore necessarily abused its discretion in granting the motion to dismiss on those grounds. A proper reading of the record indicates that, although Vasallo’s counsel conceded that Vasallo, personally, was not going to challenge forum non con-veniens as to himself, counsel made it clear that there was no waiver of the forum non conveniens challenge raised on behalf of the defendant corporations (Mi Cine USA, Cine Nostalgia, Inc., Cine Estelar, Inc.). Thus, the trial court properly analyzed the Kinney factors as to the forum non conve-niens challenge pressed by the corporate defendants. And, in fact, the trial court considered, as one of the private interest factors, the fact of Vasallo’s waiver of his own personal forum non conveniens challenge. Nevertheless, the trial court determined that the private interest factors were in equipoise, and we find no abuse of discretion in that determination.

We find the other issues raised by plaintiffs are without merit and warrant no further discussion.

Affirmed.

      . In addition to setting forth its findings in support of this determination, the trial court included in its order several stipulations agreed to by the parties, as well as a retention of jurisdiction provision:

        “the action will be treated in the new forum as though it had been filed in that forum on the date it was filed in Florida, with service of process accepted as of that date” (see Fla. R. Civ. P. 1.061(c)); "plaintiffs shall automatically be deemed to stipulate that they will lose the benefit of all stipulations made by the defendant ... if plaintiffs fail to file the action in the new forum within 120 days after the date the Florida dismissal becomes final” (see Fla. R. Civ. P. 1.061(d)); and the trial court retains jurisdiction of the action “to enforce its order of dismissal and any conditions and stipulations in the order” (see Fla. R. Civ. P. 1.061(h)).

      . Plaintiffs, in ostensible reliance on our decision in Telemundo Network Grp., LLC v. Azteca Intern. Corp., 957 So.2d 705 (Fla. 3d DCA 2007), contend that defendants’ expert was required to point to Mexican decisional law in which a plaintiff alleging comparable facts was granted the relief sought by the plaintiffs in this case. While the absence of specific decisional law in the alternative forum may be a basis for disputing or impeaching an opposing expert’s opinion, Telemundo does not affirmatively require the existence of decisional law in the alternative forum before an expert can render an opinion on the adequacy of the alternative forum.

      . In weighing the private interest factor, the trial court expressly considered and analyzed the parties’ access to evidence; access to witnesses; enforcement of judgments; and the practicalities and expenses associated with the lawsuit. See Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1092 (Fla. 2013). In considering this factor, the trial court gave proper deference to plaintiffs' choice of forum, recognizing that the "presumption in favor of a plaintiff's choice of forum 'can be defeated only if the relative disadvantages to the defendant’s private interests are of sufficient weight to overcome the presumption.’ ” Publicidad Vepaco, C.A. v. Mezerhane, 176 So.3d 273, 278 (Fla. 3d DCA 2015) (additional citations omitted). We find the trial court did not abuse its discretion in giving some, but not great, deference to the choice of forum in the instant case; Herrera-Zenil is a permanent resident of Mexico and Brazil, and Mi Cine is a Mexican entity. See Mezerhane, 176 So.3d at 278 (acknowledging that a foreign plaintiff’s choice of forum, although not entitled to great deference, is entitled to some deference); GLF Constr. Corp. v. Credinform Int'l, S.A., 225 So.3d 377 (Fla. 3d DCA 2017); Argandona v. Lloyd's Register of Shipping, 656 So.2d 1311, 1315 (Cope, J. specially concurring) (Fla. 3d DCA 1995) (observing that the presumption in favor of the plaintiff’s choice of forum “applies with less force when the plaintiff or real parties in interest are foreign .... [A] foreign plaintiff's choice deserves less deference,” (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981))).

      . Included among these is the claim that the trial court abused its discretion in deciding the motion without considering transcripts of depositions taken prior to the evi-dentiary hearing. However, the trial court issued an order setting forth the procedure to be followed at the evidentiary hearing, and plaintiffs interposed no contemporaneous objection to that procedure. Plaintiffs’ first objection .to this procedure was made in its motion for rehearing, which the trial court denied.


author: ROTHENBERG, C.J.

text:
    MIAMI-DADE COUNTY, Appellant, v. Wanda JONES, Appellee.
    No. 3D16-2266
    District Court of Appeal of Florida, Third District.
    Opinion filed November 08, 2017

      Abigail Price-Williams, Miami-Dade County Attorney, and Altánese Phenelus, Assistant County Attorney, for appellant.
    Lawrence1 J, Bohannon, P.A., and Keith E. Hope (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   ROTHENBERG, C.J.

Miami-Dade County (“the County”) appeals an adverse final judgment and an order denying the County’s motion for a directed verdict, a judgment notwithstanding the verdict, and a new trial (“post-trial motion”) entered after a jury verdict finding the County negligent for allowing a grease spill to remain on a County-owned sidewalk, which Wanda Jones (“Jones”) alleged caused her to slip and fall. For the following reasons, we find that the trial court erred by denying the County’s post-trial motion because Jones failed to introduce evidence from which the jury could infer that the County had notice of the dangerous condition that caused Jones to slip and fall. Wei also find that the trial court erred by permitting Jones to. introduce irrelevant and prejudicial County ordinances.

BACKGROUND

Jones slipped and fell on a greasy sidewalk owned by the County while visiting a barbeque stand located on private property that was operated byV-II Sports Club, Inc. (“the Sports Club”), Jones contended that a faulty grease disposal system underneath the barbeque stand caused grease to spill out onto the sidewalk. Jones suffered injuries from her fall and sued the County and the Sports Club. In her operative complaint, Jones alleged that the Sports Club was responsible for creating the dangerous condition on the sidewalk, and she alleged that the County negligently maintained the sidewalk by allowing the dangerous condition to remain on the sidewalk.

After a trial, the jury found the Sports Club 50% liable, the County 50% liable, and Jones 0% liable. Thereafter, the County filed its motion for a directed verdict, judgment notwithstanding the verdict, and a new trial. The County argued, in relevant part, that there was no evidence that the County had notice of the dangerous condition on. the sidewalk and that the trial court erred by permitting Jones to introduce County ordinances and other irrelevant and prejudicial evidence in an attempt to prove that the County had notice. After the trial court denied the County’s post-trial motions, the County appealed.

ANALYSIS

We review the trial court’s' denial of a motion for a directed verdict and a motion for judgment notwithstanding the verdict de novo. Marriott Int’l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So.3d 902, 905 (Fla. 3d DCA 2015). The trial court’s evi-dentiary rulings and denial of a motion for a new trial are reviewed for an abuse of discretion. Weatherly v. Louis, 31 So.3d 803, 805 (Fla. 3d DCA 2009); Padilla v. Buell, 797 So.2d 609 (Fla. 3d DCA 2001).

We begin with the general principle in premises liability,cases that “[a]ll premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 320 (Fla. 2001). “In order for á plaintiff to recover for injuries received in a slip and fall,' the plaintiff must show- that the defendant-responsible for the premises had actual or constructive notice of the dangerous -condition.” Wilson-Greene v. City of Miami, 208 So.3d 1271, 1274 (Fla. 3d DCA 2017) (quoting Maryland Maint. Serv., Inc. v. Palmieri, 559 So.2d 74, 76 (Fla. 3d DCA 1990)); see also Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275, 278 (Fla. 3d DCA 2017). Constructive knowledge of a dangerous condition “may be inferred from either: (1) the amount of time a substance has been oh the floor; or (2) the fact that the condition occurred with such frequency that the owner should have known of its existence.” Delgado v. Laundromax, Inc., 65 So.3d 1087, 1090 (Fla. 3d DCA 2011).

In the instant case, Jones concedes that the County did not cause the grease to spill onto its sidewalk and that the County did not have actual knowledge of the grease on the sidewalk. We also find no evidence in the record indicating how long the grease was present on the sidewalk on the day that Jones fell. To the contrary, Jones testified at trial that she did not know how long the grease had been on the ground that day, but that it appeared “fresh.” Thus, the County’s appeal reduces down to a very specific question: whether Jones presented evidence at trial to support her allegation that the grease was present on the sidewalk with such frequency that the County should have known about it.

Jones relies heavily upon photographs of a discoloration on the sidewalk next to the barbeque stand in order to prove that the County had constructive notice of a frequently occurring dangerous grease spill. However, even when we consider the evidence in the light most favorable to Jones, we cannot find any record evidence or testimony regarding what caused the discoloration on the sidewalk, whether there were grease spills on that area of the sidewalk in the past, and whether anyone had identified a grease spill on the sidewalk at any point before Jones fell. As a matter of fact, Jones testified that she did not know what caused the discoloration in the sidewalk, and no evidence was presented indicating that anyone had ever complained about or noticed a grease spill on the sidewalk before. Simply put, Jones failed to present any evidence that a grease spill occurred on the discolored sidewalk even once before Jones’s fall, let alone with such frequency that the County should have known about it. .

The remainder of the evidence that Jones points to in order to show that the County had constructive notice does not actually tend to show that the County should have had notice of the grease spill. For example, Jones introduced evidence that County inspectors and employees were present in the area numerous times over a course of years. However, Jones did not introduce any evidence to suggest that there was grease on the sidewalk during any of these inspections which could have put the County on notice that the grease collection system employed by the Sports Club was insufficient. There was also no evidence introduced that suggested that the inspections were conducted in response to a call relating to a grease spill or that anyone had ever reported or otherwise witnessed a grease spill in the area prior to Jones’s fall. Accordingly, the trial court should have granted the County’s post-trial motion and entered a judgment in favor of the County.

Although our finding that Jones failed to introduce any evidence as to the County’s constructive notice of the grease spill is dispositive, we additionally find that the introduction, over objection, of County ordinances, relating to inspections and permits for public food establishments, as evidence tending to show that the County had constructive notice of the grease spill was error. The mere fact that an ordinance may cover the subject of inspecting food establishments does not imply that the County had constructive notice of a dangerous condition created by a food establishment. In fact, the ordinances would only be relevant in this case if they were introduced to show that the County should have but failed to comply with its duty to inspect the barbeque stand. However, the County has sovereign immunity from liability for enforcing or failing to enforce its laws. See Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 922 (Fla. 1985) (“Governments must be able to enact and enforce laws without creating new duties of care and corresponding tort liabilities that would, in effect, make the governments and their taxpayers virtual insurers of the activities regulated.”).

The trial court’s limiting instruction did not limit, and in fact exacerbated the unfair prejudice and confusion caused by the introduction of the County ordinances. The trial court specifically told the jury that it could use the ordinance for the purpose of determining whether the County had notice of the grease spill (even though the ordinances are not relevant for this purpose) and told the jury that it could not use the ordinances to establish that the County was liable for failing to enforce its ordinances (even though that is the only way to make the ordinances pertinent).

Lastly, we also conclude that it was error -to allow Jones to testify that the barbeque stand was owned and operated, in part, by off-duty County bus drivers. Such testimony was irrelevant, as the County was not sued for the actions of its off-duty bus drivers who clearly were not acting within the scope of their employment. The testimony unfairly prejudiced the jury because it allowed the jury to infer that the County was or should have been put on notice by these off-duty employees that there existed a dangerous condition on a County-owned sidewalk. Worse still, the jury might have concluded that the County should be held liable for the negligence of its off-duty employees — a theory that was neither pled nor argued, and which counsel for Jones admits would have been improper.

CONCLUSION

In summary, we find that Jones failed to introduce any evidence to show that the County had constructive notice of the grease spill that caused, Jones to slip and fall, and therefore, the trial court erred by denying the County’s post-trial motion. We also find that the trial court abused its discretion by permitting Jones to introduce irrelevant and prejudicial County ordinances and by permitting Jones to testify that the barbeque stand owners and operators were also off-duty County employees. If the only errors below were the improperly introduced evidences, we would have remanded this case to the trial court for a new trial. However, because Jones also failed to introduce any evidence to support a finding that the County had constructive notice of the dangerous condition, we reverse the final judgment and the trial 'court’s order denying the County’s post-trial motion and remand for the entry of a judgment in favor of the County.

Reversed and remanded.

      . The existence of unfair prejudice and confusion is not hypothetical because the record demonstrates that the questions the jury asked during deliberations related to permitting and zoning.


author: SCALES, J.

text:
    Joseph PHELPS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-121
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017.

      Daniel J. Tibbitt, P.A., and Daniel Tib-bitt, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee. ’
    Before LAGOA,’EMAS and SCALES, JJ.
   SCALES, J.

Eighteen years after the murder of Louinas Lucas, a Miami grocery store owner, Joseph Phelps was convicted of first degree murder and attempted robbery with- a firearm. Louinas Lucas had closed his store for the night and was carrying home the day’s receipts when he was shot in his front yard during an arrhed robbery. In 2011, an accomplice to the murder, Donald Merelus, who had been arrested and convicted'after the crime had occurred in 1996, gave a statement to police from prison incriminating Phelps. Based on Merelus’s statement, a grand jury indicted Phelps and, after a four-day trial, the jury returned a guilty verdict on both counts. Phelps raises three primary issues on appeal. We address each in turn,

First, Phelps argues that the trial court erred by accepting the State’s peremptory challenge of a twenty-four-year-old, unmarried, African-American juror by failing to give a genuine, race-neutral reason for striking the juror, Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996). The State asserted that ’ the juror was "too young and inexperienced to serve on this jury. In support of a race-neutral justification, the State points out that the youngest juror was a married, twenty-seven-year-old, African-American woman with children. We agree that the trial court did not abuse its discretion by accepting, as genuine, the State’s age-and-experience-based, race-neutral reason for striking the juror. Cobb v. State, 825 So.2d 1080, 1086 (Fla. 4th D.CA 2002); see also Saffold v. State, 911 So.2d 255, 256 (Fla. 3d DCA. 2005) (holding that peremptory challenge based on the age and experience of a juror was race-neutral).

Phelps next argues that the trial court abused its discretion by allowing Merelus, a friend of Phelps for some three years prior to the crime, to testify that Merelus had seen Phelps with a gun a month prior to the crime; and that Phelps had bragged to Merelus that Phelps’s favorite gun was a .357 Magnum, which was the type of gun used to shoot Louinas Lucas. The trial court determined both that the testimony was relevant and that its probative value outweighed any prejudicial effect. On this record, we are unable to conclude that the trial court abused its discretion in allowing this testimony. Holloway v. State, 114 So.3d 296, 297 (Fla. 4th DCA 2013) (holding that an “adequate nexus” between ammunition found in defendant’s home and ammunition for the type of weapon used in a' crime established relevancy and probative value).

Finally, Phelps argues that the trial court abused its discretion by admitting certain testimony of an investigating detective as to conversations the detective had regarding Phelps’s admission to a hospital for a gunshot wound at or near the time of the crime. While the State admits that aspects of these out-of-court conversations constitute inadmissible hearsay, on this record we are persuaded that any error in introducing this evidence is harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (“Application of the [harmless error] test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the • impermissible evidence which might have possibly influenced the jury verdict.”); Hunter v. State, 174 So.3d 1011, 1016 (Fla. 1st DCA 2015); Lee v. State, 869 So.2d 1251, 1252-53 (Fla. 3d DCA 2004),

Affirmed.

      . In his appeal, Phelps also raises the argument, for the first time, that the prosecutor affirmatively misled the trial court, Phelps and Phelps’s counsel by failing to disclose incentives allegedly provided to Merelus for his cooperation. We do not address this claim. Our affirmance of Phelps’s conviction is without prejudice to Phelps asserting this claim in an appropriate post-conviction motion.


author: LUCK, J.

text:
    Luis Fundora MORENO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2883
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   LUCK, J.

Defendant Luis Fundora Moreno appeals the trial court’s finding that he was competent to be sentenced for violating his community control. After a brief competency hearing where the parties stipulated that the two doctors appointed to evaluate Moreno would testify consistently with their written reports (both doctors found Moreno competent), the trial court accepted the stipulation and made its competency finding. Moreno contends the trial court erred by not making an independent determination of Moreno’s competency, and abused its discretion by failing to appoint a neuropsychologist. After review of the record and briefs, and with the benefit of oral argument, we affirm the competency finding and sentence although we remand for the limited purpose of having the trial court enter a written competency order memorializing its oral ruling.

Factual Background and Procedural History

The First Sentencing Hearing. In February 2014, Moreno was charged with violating his community control by failing to complete a mental health evaluation; failing to register for a domestic violence class; and failing to submit to a random drug test. A few months later, in May, at the community control violation hearing, Moreno asked the trial court to discharge his public defender so he could represent himself. The trial court conducted a Faret-ta hearing, and after taking testimony from Moreno and finding that he knowingly, voluntarily, and intelligently waived his right to counsel, discharged the public defender, and continued with the hearing with Moreno as his own counsel. At the end of the hearing, the trial court found that Moreno willfully and substantially violated his community control. The trial court then turned to sentencing. After hearing from the state, Moreno’s probation officer, and Moreno, the trial court sentenced Moreno to twenty-one years in prison, followed- by two years of community control and thirteen years of probation.

The First Appeal. Moreno appealed, and we áffírmed in part and reversed in part. We affirmed the revocation of Moreno’s community control, but reversed the sentence because the trial court did not offer Moreno the assistance of counsel before the sentencing portion of the hearing as required by Florida Rule of Criminal Procedure 3.111(d)(5). Moreno v. State, 167 So.3d 522, 523 (Fla. 3d DCA 2015) (confession of error). (Florida Rule of Criminal Procedure 3.111(d)(5) provides that if a defendant, as here, waives his right to counsel, “the offer of assistance of counsel shall. be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” That includes a sentencing hearing.) We remanded “for the limited purpose of holding a new sentencing hearing with an offer of counsel.” Id.

The Competency Hearing. On remand, with the public defender now representing Moreno, Moreno’s counsel told the trial court there were reasonable grounds to believe Moreno was not competent to proceed with the sentencing hearing, and asked that doctors be appointed to evaluate his competency. The trial court granted the motion, appointed two doctors to evaluate Moreno, and reset the case so the doctors had time to complete their evaluations. When' the trial court called back the case three weeks later, the doctors had evaluated Moreno and submitted single-spaced five and nine page reports finding Moreno competent to proceed.

The state said it would stipulate that if the doctors were called to testify at the hearing they would testify consistently with their reports. Moreno’s counsel said that she assumed that’s what Moreno would want her to do, but she needed time to talk with him to confirm. The trial court passed the case so counsel could talk with Moreno. When the trial court recalled the case, counsel said that Moreno would make the same stipulation. The trial court accepted the stipulation, and found Moreno competent to proceed.

The Second Sentencing Hearing. At the sentencing hearing six weeks later, the trial court heard from the probation officer, Moreno’s son and wife, a mitigation specialist at the public defender’s office, and Moreno. The trial court said it considered the facts of the underlying convictions that caused Moreno to be on community control, his community control violations, and the mitigation evidence presented at the hearing, -and sentenced. Moreno to twenty-one years imprisonment, followed by fifteen years of probation.

Standard of; Review

“A trial court’s decision'regarding competency will stand absent a showing of abuse of discretion.” McCray v. State, 71 So.3d 848, 862 (Fla. 2011) (quotation omit/ ted). That decision “does not constitute an abuse of discretion unless no reasonable person would take the view adopted by the trial court.” Id. (quotation omitted).

Discussion

Moreno contends the trial court: (1) erred by relying only on the expert reports, in finding him competent and not making an independent competency determination, and (2) abused its discretion by failing to appoint a neuropsychologist to evaluate him. The state responds that the record shows the trial court made an independent determination of Moreno’s competency before sentencing him, and Moreno’s counsel did not request that Moreno be evaluated by a neuropsychiatrist. We address each' of these issues below.

1. Independent Competency Determination

A defendant is presumed sane when he enters the courtroom. Flowers v. State, 353 So.2d 1259, 1260 (Fla. 3d DCA 1978). But when there are reasonable grounds to believe the defendant is not competent, the trial court must determine whether -the defendant “-has sufficient present ability to consult with counsel with a reasonable degree of rational understanding - and whether he has a rational as well as a factual understanding of the pending ... proceedings.” Gore v. State, 24 So.3d 1, 9 (Fla. 2009) (quoting Alston v. State, 894 So.2d 46, 54 (Fla. 2004)); see also Fla. R, Crim. P. 3.211(a)(1) (setting forth the factors an expert must consider in determining competency). This determination must be “an independent legal” one “after considering the expert testimony or reports and other relevant factors.” Shakes v. State, 185 So.3d 679, 681 (Fla. 2d DCA 2016) (citing Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014)). The .experts’ written reports “are advisory to the trial court, which itself retains the responsibility of the decision.” Dougherty, 149 So.3d at 678 (quotations omitted). Moreno argues the trial court did not make the required “independent competency determination” before the sentencing hearing, and it erred in relying solely on the expert reports in finding Moreno competent to proceed. .,

Our review of the record shows otherwise. On September 25, 2015, the trial court had an in-court conversation with Moreno about his last name. The trial court spoke to Moreno again on October 14, 2015, when he had him sworn in, and on the following day, when questioning Moreno about whether he wanted to discharge the public defender. At the sentencing hearing, the trial court addressed Moreno’s competency and said that the court had spoken with Moreno and found him “to be intelligent, coherent, and alert.” T|ie trial court commented that Moreno seemed “to understand everything” and it didn’t have reasonable grounds to be believe Moreno was not competent to proceed. The trial court observed and heard Moreno testify at the sentencing hearing, and found him to be coherent, alert, and logical. The trial court reiterated after hearing Moreno speak that it was confident Moreno understood the proceedings.

Taken together, the trial court made an independent determination of Moreno’s competency. The trial court’s finding was based on its observations of, and conversations with, Moreno at four hearings. While the trial court relied on the experts’ reports in finding Moreno competent to proceed, as it was entitled to do, id. at 677-78 (“[W]here the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written report alone.” (quotation omitted)), the court also explained that it found Moreno competent based on its experiences with him during the previous hearings.

The trial court’s competency finding was leagues apart from those that have been reversed by the Florida courts. In Dough-erty, for example, the Florida Supreme Court held the competency' finding was insufficient because the trial court relied solely on the defendant’s stipulation on the ultimate issue that he was competent. See Dougherty, 149 So.3d at 678 (“[A] defendant cannot stipulate that he is competent, particularly where he has been previously adjudicated incompetent during the same criminal proceedings.”). In Shakes, the second district found error because “[t]he trial court did not consider the testimony of any experts, and the trial court gave no indication that it had reviewed the report submitted by the psychologist, which report was not specifically mentioned on the record at any of the hearings in this case.” Shakes, 185 So.3d at 681-82. The second district also found error in Bylock v. State, 196 So.3d 513 (Fla. 2d DGA 2016) because “there [was] no indication in the record that the parties agreed that the trial court could rely on the reports deeming Bylock competent to proceed.” Id. at 515. And in Harris v. State, 864 So.2d 1252 (Fla. 5th DCA 2004), the trial court failed to read or consider timely.the experts’ reports, did not talk to the. defendant, did not have a competency hearing, and did. not make a competency finding. Id. at 1255.

Here, unlike those cases, the trial court held a competency hearing; both parties stipulated on the record that the doctors would testify consistently with their reports; the trial court spoke to Moreno and observed his demeanor; the trial court considered the doctors’ reports; -and the trial court made a finding that Moreno was competent to proceed. While brief, the competency hearing complied with the procedural -rules, and the trial court’s finding was supported by competent substantial evidénce. There was no error.

2. Neuropsychology Expert

Moreno also contends the trial court abused its discretion when it failed to appoint a neuropsychologist to conduct a competency evaluation. We have combed the record and cannot find where Moreno made such a request. (Moreno’s brief concedes that “defense counsel never formally requested the appointment of a neuropsy-chologist.”) After Moreno’s counsel suggested Moreno was incompetent to proceed and. requested that two experts be appointed to evaluate him, the clerk asked about appointing.Dr. Fonte and Dr. Romero. The trial court.asked: “Is that fine with both of you?” Moreno’s counsel said, “That’s fine with me.” (The .state . also agreed.) At the competency hearing, Moreno’s counsel stipulated that the doctors would testify consistently with their reports. How could the trial court abuse its discretion to appoint a neuropsychologist when there was no request for it to exercise its discretion and there was a stipulation the trial court could rely on the testimony of the two appointed doctors?

Besides, when the issue of competency was raised again on the day of the sentencing hearing, the trial court found no reasonable ground to believe that Moreno was not competent, and that finding was supported by competent substantial evidence. The trial court’s finding was based on its conversations with Moreno on September 25, October 14, and October 15, 2015, and the doctors’ reports, which concluded that despite his head injury Moreno understood the proceedings and could consult with counsel. The trial court reiterated after seeing and hearing Moreno actively participate and testify at the sentencing hearing that Moreno understood the proceedings. The trial court did not abuse its discretion by not appointing a third doctor to evaluate Moreno.

Conclusion

For these reasons, we affirm the trial court’s competency finding and its sentence for Moreno’s violations of community control. Because the parties agree the trial court did not memorialize its competency finding with a written order as required by the rules of criminal procedure, Fla. R. Crim. P. 3.212(b) (“If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.”); Gordon v. State, 219 So.3d 189, 197 (Fla. 3d DCA 2017) (“[T]he trial court made an oral finding that defendant was competent to proceed, but failed to render a written order to that effect. This cause must be remanded to the trial court to enter a -written order consistent with its oral pronouncement.”), we remand to the trial court for the sole purpose of entering a written order reflecting its oral pronouncement regarding Moreno’s competency. Because this is a ministerial act, Moreno need not be present.

Affirmed and remanded for entry of a written order.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The trial judge on remand was not the same .one who presided at the first sentencing hearing.


text:
    Corey GREGG, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3911
    District Court of Appeal of Florida, First District.
    Opinion filed November 9, 2017
    Rehearing Denied January 16, 2018
    Corey Gregg, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for -writ of mandamus is denied on the merits. •

LEWIS, BILBREY, and M.K. THOMAS, JJ., CONCUR.