text:
    Jose VILA, Appellant/Cross-Appellee, v. PHILIP MORRIS USA INC., Appellee/Cross-Appellant.
    No. 3D15-1853.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.

      The Ferraro Law Firm, P.A., and Paulo R. Lima, Allan B. Kaiser, Eric M. Tinst-man, and Juan P. Bauta, II, for appellant/cross-appellee.
    Shook, Hardy & Bacon L.L.P., and J. Daniel Gardner; Arnold & Porter LLP, and Geoffrey J. Michael, Washington, DC, for appellee/cross-appellant.
    Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   ROTHENBERG, J.

In this Engle-progeny case, the jury returned a verdict in favor of the defendant, Philip Morris USA Inc. (“Philip Morris”), finding that smoking cigarettes manufactured by Philip Morris was not a legal cause of the plaintiffs, Jose Vila (“Vila”), laryngeal cancer. Thereafter, the trial court entered a final judgment in favor of Philip Morris and denied Vila’s motion for a new trial. Vila has appealed the final judgment and the denial of his motion for a new trial.

I. FACTS AND PROCEDURAL HISTORY

Vila testified that he started smoking cigarettes in 1969, when he was approximately fifteen years old and living in Spain, and he continued to smoke cigarettes after he moved to the Dominican Republic in 1974, and to the United States in 1989. Vila also claimed that he smoked only Marlboro cigarettes during his entire smoking history.

In July 1993, Vila first developed symptoms of laryngeal cancer. Following the diagnosis of Vila’s laryngeal cancer in 1994, he underwent a series of radiation treatments. In 1996, after the recurrence of Vila’s laryngeal cancer, he underwent a laryngectomy.

Vila filed suit against Philip Morris to recover damages for his alleged smoking-related laryngeal cancer, asserting claims for strict liability, fraud, conspiracy to commit fraud, and negligence, and during the course of the litigation, the trial court permitted Vila to amend his complaint to add a claim for punitive damages. Philip Morris filed its. answer to the amended complaint, and in its nineteenth affirmative defense, Philip Morris asserted, without faulting any third party, that Vila’s injuries and damages were caused solely “by forces and/or things over which Philip Morris USA had no control and for which Philip Morris USA is not responsible and not liable.”

Approximately one month prior to the scheduled trial date, Philip Morris elicited deposition testimony from Vila’s historian expert, Dr. Robert Proctor, that Marlboro cigarettes sold in the Dominican Republic when Vila lived there were manufactured by E. Leon Jimenes Company (“E. Leon Jimenes”), not Philip Morris. Vila’s counsel did not move for a continuance to address this newly-discovered information, and the case proceeded to trial as scheduled.

At trial, Philip Morris’s position was that Vila’s laryngeal cancer was caused by the human papillomavirus, not by smoking cigarettes, but if smoking cigarettes did cause Vila’s cancer, then it was not caused by smoking cigarettes manufactured by Philip Morris. In support of the latter argument, Philip Morris presented evidence relating to the three time periods Vila allegedly smoked cigarettes—1969 to 1974 when Vila lived in Spain; 1974' to 1989 when Vila lived in the Dominican Republic; and December 1989, when Vila moved to the United States, to July 1993, when Vila began to have symptoms of laryngeal cancer.

As to the first time period, Philip Morris challenged Vila’s claim that he smoked Marlboro cigarettes in Spain from 1969 to 1974. Philip Morris elicited testimony from Vila’s expert, Dr. Proctor, that Marlboro cigarettes were not only the least popular brand of cigarettes in Spain during that time period, but they were also the most expensive, and therefore, it was unlikely that Vila, who was a teenager and unemployed, would have smoked Marlboro cigarettes in Spain. As to the second time period, Philip Morris elicited testimony from Dr. Proctor that from 1974 to 1989, when Vila was living in the Dominican Republic, Marlboro cigarettes sold in the Dominican Republic were manufactured by E. Leon Jimenes, not Philip Morris. Lastly, Vila’s expert on medical causation, Dr. William Goodwin, testified that even if Vila smoked cigarettes manufactured by Philip Morris from the time he entered the United States, in December 1989, until the time he developed symptoms of laryngeal cancer, in July 1993, he has never seen a person develop laryngeal cancer as a result of smoking cigarettes over a period of three-and-a-half years.

Prior to trial, the trial court granted Vila’s motion in limine to exclude any reference to certain personal information. During the trial, the parties disputed when Vila had stopped smoking—in 1994 or 1996. Vila testified on direct examination that he quit smoking in 1996. However, during Vila’s cross-examination, Philip Morris’s counsel impeached Vila with portions of his medical records that reflect that Vila told his physicians that he had stopped smoking in 1994, not 1996. To impeach Vila, Philip Morris’s counsel would first display to Vila and the jury the page of the medical record containing the physician’s signature, which counsel had highlighted, to ascertain whether Vila recognized the physician’s name. Next, counsel would display the page of the medical record reflecting that Vila had told that physician that he had stopped smoking in 1994. For the particular medical record at issue, the page containing the highlighted physician’s signature also contained a reference to the personal information that was excluded by the motion in limine. After Philip Morris’s counsel confirmed that Vila recognized the physician’s name, counsel displayed a different page of the medical record. At that point, Vila’s counsel requested a sidebar.

At the sidebar, Vila’s counsel objected to the unredacted signature page displayed to the jury and requested a mistrial. Philip Morris’s counsel responded that he had not realized that the signature page contained the excluded personal information and that the violation of the motion in limine was inadvertent. In order to assess Vila’s motion for a mistrial, the trial court asked Vila to step down from the witness stand and sent the jurors into the jury room. Thereafter, the trial court called each juror to the courtroom one by one and asked if he or she had read or looked at anything on the signature page other than the highlighted area containing the physician’s signature. Each juror responded that he or she had not. Thereafter, the trial court asked Vila’s counsel if there was anything else he wished to say. Vila’s counsel responded that he did not, and the trial court denied Vila’s motion for a mistrial.

When charging the jury and explaining the verdict form to the jury, the trial court instructed the jury to answer the following questions on the verdict form: (1) “Was Jose Vila addicted to cigarettes containing nicotine and, if so, was such addiction a legal cause of his laryngeal cancer?”; and (2) “Was smoking cigarettes manufactured by Philip Morris USA Inc. a legal cause of Jose Vila’s laryngeal cancer?” The jury answered “yes” as to the first question and “no” as to the second question, and thereafter, the trial court entered a final judgment in favor of Philip Morris. The trial court denied Vila’s motion for a new trial, and Vila’s appeal followed.

II. ANALYSIS

A. Whether the trial court erred by including question number (2) on the verdict form over Vila’s objection

Vila contends that the trial court erred by including question number (2) on the jury verdict form where Philip Morris failed to plead as an affirmative defense the liability of E. Leon Jimenes as a Fa-bre defendant. We disagree because Philip Morris presented an “empty chair” defense, rather than seeking to include E. Leon Jimenes as a Fabre defendant on the verdict form and have the jury apportion any fault to E. Leon Jimenes.

There is a distinct legal difference between asserting an “empty chair” defense and seeking an apportionment of fault under Fabre. To present an “empty chair” defense, a defendant may “point to an empty chair” by arguing that “a non-party is responsible for the plaintiffs injuries.” Black v. Montgomery Elevator Co., 581 So.2d 624, 625 (Fla. 5th DCA 1991). To present an “empty chair” defense, the defendant need only answer the complaint with a general denial and argue to the jury that the injury was due to the negligence of a non-party to the suit. See Clement v. Rousselle Corp., 372 So.2d 1156, 1158 (Fla. 1st DCA 1979) (“A defendant who has answered with a general denial, is entitled to prove, and to argue to the jury, that the accident was due solely to the negligence of a person not party to the suit.”); see also Pearson v. Royal Caribbean Cruises, Ltd., 751 So.2d 125, 126 (Fla. 3d DCA 2000) (affirming the order under review by relying on the above quoted statement from Clements). As an “empty chair” defense is not truly an affirmative defense, it does not have to be pled in the defendant’s affirmative defenses. See King ex rel. Murray v. Rojas, 767 So.2d 510, 511 n. 1 (Fla. 4th DCA 2000) (“When a defendant in a negligence action alleges that a plaintiffs injury resulted from someone else’s negligence rather than his own, the defendant is simply elaborating on the simplest defense of them all, namely that [the] plaintiff has sued the wrong person. Saying that someone else is really the negligent actor is obviously not a confession and avoidance, the essence of a true affirmative defense.”); see also Dover v. R.J. Reynolds Tobacco Co., 2014 WL 4723116, at *3 n. 25 (M.D.Fla. Sept.22, 2014) (noting that “it is not an affirmative defense for a defendant in a negligence action to argue that [the] plaintiffs injury resulted from someone else’s negligence”).

Conversely, if the defendant wishes to seek an apportionment of fault against a nonparty, it must identify the nonparty and plead the negligence of that nonparty as an affirmative defense. If these requirements are met, then the non-party defendant may be placed on the verdict form and the jury may consider and allocate the percentage of fault attributable to the nonparty defendant. “[I]n order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty.” Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (1996); see also Loureiro v. Pools by Greg, Inc., 698 So.2d 1262, 1263 (Fla. 4th DCA 1997) (holding that the issue of a non-party’s liability was not properly raised by the pleadings because the defendant’s affirmative defense “did not specifically identify any non-party and [the defendant] did not move to amend the defense at any time,” and therefore, the plaintiffs “objection to the injection of non-party liability into the case should have been sustained”).

As explained in Vucinich v. Ross, 893 So.2d 690, 694 (Fla. 5th DCA 2005), there is a fundamental difference between a Fa-bre affirmative defense and an “empty chair” defense:

“Fabre defendants are non-parties which are alleged by a party defendant to be wholly or partially negligent and should be placed on the verdict form so there can be an apportionment of fault against them for non-economic damages.... ” [Phillips v. Guarneri, 785 So.2d 705, 706 (Fla. 4th DCA 2001)]. On the other hand, the term “empty chair” refers to the argument that “some non-party is the sole legal cause of the harm alleged but, unlike a Fabre defendant, this non-party is not placed on the verdict form and there is no apportionment of fault.” Id. at n. 4.

In the instant case, in its affirmative defenses, Philip Morris did not specifically identify E. Leon Jimenes as a nonparty who was responsible for Vila’s injuries, and Philip Morris did not ask the jury to apportion any fault to E. Leon Jimenes by seeking to include E. Leon Jimenes as a nonparty defendant. Therefore, consistent with Philip Morris’s pleadings, the verdict form did not include E. Leon Jimenes as a Fabre defendant, and contrary to Vila’s assertion, question number (2) of the verdict form did not somehow effectively place E. Leon Jimenes on the verdict form as a Fabre defendant. Instead, the record reflects that, at most, Philip Morris merely presented an “empty chair” defense.

In fact, Philip Morris’s main argument was that smoking cigarettes did not cause Vila’s cancer. In the alternative, Philip Morris however argued that even if Vila’s addiction to cigarettes was a legal cause of his laryngeal cancer, smoking cigarettes manufactured by Philip Morris was not a legal cause of his cancer. As explained earlier, Philip Morris broke down Vila’s smoking history into three different time-frames based on where he lived. As to the timeframe when he lived in Spain (1969 to 1974), Philip Morris argued that it was unlikely that Vila, who was an unemployed teenager, smoked Marlboro cigarettes in Spain because they were not only the least popular cigarettes, but they were also the most expensive cigarettes. Second, as to the period when Vila lived in the Dominican Republic (1974 to 1989), Philip Morris elicited testimony that the Marlboro cigarettes sold in the Dominican Republic were manufactured by E. Leon Jimenes, not Philip Morris. Finally, as to the period from when Vila moved to the United States (December 1989) to his date of diagnosis (July 1993), Philip Morris elicited testimony from Vila’s causation expert that he had never seen a person develop laryngeal cancer by smoking cigarettes for three-and-a-half years. Accordingly, we conclude that question number (2) did not effectively place E. Leon Jimenes on the jury verdict form as a Fabre defendant. Rather, Philip Morris presented a successful “empty chair” defense.

B. Whether the trial court abused its discretion by denying Vila’s motion for a mistrial based on Philip Morris’s violation of the motion in limine

Vila contends that the trial court erred by denying his motion for a mistrial based on Philip Morris’s violation of the motion in limine. A trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion, Salazar v. State, 991 So.2d 364, 372 (Fla.2008), and a “motion for mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” Id. (quoting England v. State, 940 So.2d 389, 401-02 (Fla.2006)).

In the instant case, following Vila’s objection and request for a mistrial, the trial court voir dired each of the jurors individually after asking the jury to step into the jury room and instructing the jurors not to discuss the case or the questioning by the trial court with the rest of the jurors. Thereafter, the trial court voir dired each juror one by one, asking if he or she had read anything on the signature page other than the physician’s signature, which was highlighted. Each juror responded that he or she had not. Based on the actions taken by the trial court and each juror’s response, we find no abuse of discretion where each juror’s response to the trial court’s question indicates that he or she did not see the information prohibited by the motion in limine.

III. CONCLUSION

Based on the reasons set forth in this opinion, we affirm the final judgment entered in favor of Philip Morris and the order denying Vila’s motion for a new trial.

Affirmed.

      . Engle v. Liggett Grp. Inc., 945 So.2d 1246 (Fla.2006).

      . Philip Morris moved for a directed verdict arguing that Vila should not be permitted to rely on the Engle Phase I findings because doing so would violate Philip Morris’s federal due process rights. The trial court denied Philip Morris’s motion. Philip Morris cross-appealed the denial of its motion for a directed verdict, but has acknowledged that this argument was rejected by the Florida Supreme Court in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla.2013), and the Supreme Court of the United States has denied review of Douglas. Philip Morris USA, Inc. v. Douglas, — U.S. -, 134 S.Ct. 332, 187 L.Ed.2d 158 (2013) (denying certiorari). Accordingly, we affirm the cross-appeal without further discussion.

      . Shortly after moving to the Dominican Republic, Vila and his family moved to Costa Rica for approximately a year, but returned to the Dominican Republic thereafter.

      . Vila also filed suit against other tobacco companies—R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Liggett Group, LLC, however, Vila voluntarily dismissed the lawsuit as to these defendants pri- or to trial.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hilda PINILLO, Appellant, v. HSBC BANK USA, N.A., etc., et al., Appellees.
    No. 3D15-1737.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    Hilda Pinillo, in proper person.
    Greenberg Traurig, P.A., and Kimberly S. Mello and Laura J. Bassini, Tampa, and Michele L. Stocker, Fort Lauderdale, for appellees.
    Before SUAREZ, C.J., and SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. See O’Connor v. N. Okaloosa Med. Ctr., 152 So.3d 843, 845 (Fla. 1st DCA 2014) (“The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as every actually litigated, issue.”).


text:
    J. Gerard LEGAGNEUR, Jr., etc., et al., Appellants, v. Bettina O’MARA, etc., Appellee.
    No. 3D15-2708.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    J. Gerard Legagneur, Jr., Boynton Beach, for appellants.
    Fitzgerald & Isaacson, LLP and Diana L. Fitzgerald and Erica Cañas, for appel-lee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Schneiderman v. Cantor, 546 So.2d 51 (Fla. 4th DCA 1989); Ranger Const. Indus., Inc. v. Huff, 499 So.2d 2 (Fla. 4th DCA 1986). See Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087, 1088 (Fla. 3d DCA 1987); Bayview Tower Condo. Ass’n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985).


author: SUAREZ, C.J.

text:
    Gerson JUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-972.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    Gerson Juarez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING and WRITTEN OPINION

SUAREZ, C.J.

We grant Gerson Juarez’s motion for rehearing of the opinion issued July 13, 2016, and for written opinion. We withdraw our prior opinion and substitute the following opinion in its stead.

On appeal from a summary denial of a petition for post-conviction relief, Juarez argues that he was entitled to an opportunity to amend his 3.850 petition after the trial court denied it for legal insufficiency. We agree. See Fla. R. Crim. P. 3.850(f)(2) (providing that “[i]f the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a non-final, non-appeal-able order allowing the defendant 60 days to amend the motion. If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice”). The trial court summarily denied Juarez’s 3.850 petition without any explanation of which of the several issues raised were insufficient and for what reasons, and failed to attach any documents that would conclusively show legal insufficiency or no entitlement to relief. Juarez moved on rehearing to be allowed to amend pursuant to rule 3.850(f)(2), but the trial court summarily denied that as well.

To the extent the denial of the motion was based upon the legal insufficiency of the motion, the trial court failed to follow the procedure outlined in Spera v. State, 971 So.2d 754 (Fla.2007) when determining that an initial motion for post-conviction relief is legally insufficient. To the extent the denial of the motion was based upon the record, the court failed to attach to its order any portion of the files or record that conclusively shows appellant was not entitled to relief. See Fla. R. Crím. P. 3.850(d). The trial court erred by denying the defendant sixty days to amend pursuant to the rule.

We therefore reverse and remand with directions that the trial court either: 1) enter an amended order that attaches those portions of the files and record that conclusively establish that appellant is entitled to no relief; or 2) permit appellant an opportunity to amend his motion to state legally sufficient claims, and for proceedings thereafter consistent with this opinion. Spera v. State, 971 So.2d 754 (Fla.2007); Belanger v. State, 146 So.3d 136 (Fla. 3d DCA 2014); Nottage v. State, 61 So.3d 1231, 1232-33 (Fla. 3d DCA 2011).


author: LAGOA, J.

text:
    CITIZENS PROPERTY INSURANCE CORP., Appellant, v. Rafaela SOSA, Appellee.
    No. 3D15-2901.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2016.
    Rehearing Denied April 11, 2017.
    Methe & Rockenbach and Kara Berard Rockenbach, Lauren J. Smith, and Kristi Bergemann Rothell, West Palm Beach, for appellant.
    Perry & Neblett and David Avellar Neb-lett and John A. Wynn, for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellee, Rafaela Sosa (“Sosa”), moves to dismiss the appeal of a non-final order denying Citizens Property Insurance Corporation’s (“Citizens”) motion to strike certain bad faith allegations and dismiss and/or strike Count II and Count III of Sosa’s complaint. The trial court’s order abates Count II and Count III of Sosa’s complaint until coverage or extent of liability are determined. Because the order appealed is a non-final, non-appealable order, we grant the motion to dismiss for lack of jurisdiction.

The order on appeal denies Citizens’ motion to dismiss and abates consideration of Counts II and III of Sosa’s complaint until a determination of coverage is made. It is well-established that “[a]n order abating or staying an action pending disposition of another action is not a reviewable non-final order.” Pecora v. Signature Gardens, Ltd., 25 So.3d 599, 599 (Fla. 4th DCA 2009). See also Hedin v. Indian River Cty., 610 So.2d 715 (Fla. 4th DCA 1992).

Citizens nonetheless argues that the order is appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which provides for appeal of non-final orders that determine “that, as a matter of law, a party is not entitled to sovereign immunity.” Citizens’ assertion, characterizing the trial court’s order as one determining that it is not entitled to sovereign immunity as a matter of law, however, is not supported by the record. Significantly, the order on appeal does not state that the motion to dismiss is denied on the basis that Citizens lacks sovereign immunity. Instead, the order merely states that Counts II and III of Sosa’s complaint are abated “until coverage or extent of liability are determined.” Furthermore, a review of the transcript of the hearing on the motion to dismiss also shows that the trial court did not reach or rule on the issue of sovereign immunity. Cf. Amcon Builders, Inc. v. Pardo, 120 So.3d 1254, 1255 (Fla. 3d DCA 2013) (finding order denying summary judgment on a claim of workers’ compensation immunity not appealable “ ‘unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party’ ” (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 821-22 (Fla.2004))). Here, the trial court’s order fails to state that, as a matter of law, sovereign immunity is not available to Citizens. As such, the trial court’s order is not appealable pursuant to Rule 9.130(a)(3)(C)(xi).

Because the order denying Citizens’ motion to dismiss is not reviewable under Florida Rule of Appellate Procedure 9.130 as a non-final order, we grant Sosa’s motion to dismiss the appeal for lack of jurisdiction.

Dismissed.


author: ROTHENBERG, J.

text:
    Raed ALDIN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-3144
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.
    Rehearing Denied March 30, 2017

      Raed Aldin, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Raed Aldin, filed the instant petition for writ of habeas corpus, alleging that his appellate counsel provided ineffective assistance of counsel by failing to contest on appeal the trial court’s denial of the defendant’s motion to suppress the physical evidence seized by the police and the defendant’s statements, which were provided after the defendant was advised of and waived his rights pursuant to Miranda v. Arizona. For the reasons which follow, we find no merit to the defendant’s claims and, therefore, deny the petition.

The defendant was tried and convicted of burglary of an unoccupied dwelling in Miami Beach, and second degree grand theft for the items stolen during the burglary. The evidence revealed that during the burglary of the victims’ home, several items were taken including jewelry, electronics, and a cell phone belonging to one of the victims. Detective Robert Lanier of the City of Miami Beach Police Department, who was assigned to investigate the burglary, met with the victims, reviewed the property list, and asked the victim who owned the cell phone taken during the burglary not to terminate his cell phone service so that the use of the phone could be tracked.

By tracking the use of the cell phone, Detective Lanier was able to identify the defendant as a possible suspect of the burglary. Detective Lanier, accompanied by other officers, set up surveillance at the defendant’s residence, and when the defendant arrived in his van, they approached him, identified themselves, and asked to speak with him. The defendant agreed to speak with the officers, and because it was raining, the defendant led the officers to his carport. Because the defendant was a suspect, Detective Lanier read the defendant his Miranda rights, which the defendant waived, and agreed to speak with the detective. Detective Lanier told the defendant that he had reason to believe that the defendant was in possession of a stolen cell phone. The defendant admitted that he had the stolen phone, told the detective that it was in his apartment, and offered to give it to the detective. The defendant then led the officers into his apartment, where he retrieved and delivered the phone to Detective Lanier.

While in the defendant’s apartment, Detective Lanier recognized some of the items stolen from the victims and other stolen property in plain view. When he asked the defendant if any of these items had been stolen, the defendant replied that it would be easier to ask him what had not been stolen. The defendant, who was apologetic, wanted to explain, however, Detective Lanier, who preferred to conduct a formal interview at the station, seized the stolen cell phone, arrested the defendant, and transported the defendant to the police station, where the defendant signed a consent to search form and a Miranda rights form, agreeing to answer questions without an attorney.

During the interview at the police station, the defendant admitted to burglarizing the victims’ home, which he subsequently agreed to identify and led them to the victims’ home. The defendant explained in detail how he had broken into the house, what items he had taken, and that he had sent some of the jewelry back home to friends in Palestine and sold other items in the parking lot of the Hard Rock Cafe.

The defendant moved to suppress his statements and the physical evidence on the basis that the arresting officers were City of Miami Beach police officers and thus they were acting outside of their jurisdiction when they arrested him at his home in the City of Miami. Although the trial court initially granted the defendant’s motion to suppress, after conducting an evidentiary hearing upon the State’s motion for reconsideration, the defendant’s motion to suppress was denied.

At the evidentiary hearing, the State introduced a certified copy under seal of the Voluntary Cooperation and Operational Assistance Mutual Aid Agreement (“Agreement”) entered into by the cities of Miami and Miami Beach in January 2007, which provided Detective Lanier with the lawful authority to arrest the defendant in the City of Miami. Detective Lanier submitted an affidavit and also testified to the requirements of the Agreement and that he and the City of Miami Beach Police Department had complied with the requirements. The trial court found that Detective Lanier’s testimony was credible.

The defendant contends that his appellate counsel provided ineffective assistance of counsel by failing to raise on appeal the denial of his motion to suppress. However, appellate counsel is not ineffective for failing to raise a meritless claim. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994)) (“If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.”).

Our review establishes that appellate counsel’s failure to raise the coraplained-of issue was not ineffective assistance of counsel as the defendant’s argument in this petition is without merit and no prejudice has been demonstrated. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that to demonstrate ineffective assistance of appellate counsel, the petitioner must show: (1) that the specific errors or omissions were of such a magnitude that they deviated from the norm or fell outside of the range of professionally acceptable performance; and (2) that the failure or deficiency prejudiced the petitioner to such a degree as to undermine the confidence in the fairness and correctness of the outcome).

Florida’s Mutual Aid Act authorizes law enforcement agencies operating in Florida to enter into mutual aid agreements such as the Agreement entered into by the City of Miami and the City of Miami Beach police departments. See § 28.1225, Fla. Stat. (2006) (authorizing mutual aid agreements between Florida law enforcement agencies); § 23.1225(l)(a) (permitting “voluntary cooperation and assistance of a routine law enforcement nature across jurisdictional lines”). A certified copy under seal entered into by the City of Miami and the City of Miami Beach police departments was introduced into evidence; Detective Lanier testified that his department complied with the terms of this Agreement; and the trial court found his testimony credible. Because the defendant did not attack the authenticity or the effect of the Agreement below and only disputes here the trial court’s credibility determination of Detective Lanier’s testimony regarding his compliance with the Agreement, and we are not free to re-weigh or substitute our view of the credibility of Detective Lanier’s testimony for that of the trier of fact, see Rodriguez v. State, 436 So.2d 219, 220 (Fla. 3d DCA 1983) (holding that this Court is “precluded by law from re-weighing the evidence on appeal and substituting our judgment for that of the trier of fact”), we find that the defendant’s appellate counsel did not provide ineffective assistance of counsel by failing to raise this issue on appeal.

We additionally note that the defendant’s admissions, voluntary return of the cell phone stolen during the burglary, and the officers’ observations of the victims’ stolen property in plain view and in the possession of the defendant all occurred while the defendant was voluntarily cooperating with the police and prior to his arrest. Thus, the physical evidence and the defendant’s admissions on the scene regarding the burglary and theft were not the product of the arrest. The defendant’s subsequent statement at the police station was merely further elaboration of the already admitted-to crimes.

Petition denied.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The trial court also concluded that the defendant lacked standing to object to the City of Miami Beach Police Department’s alleged failure to comply with the Agreement. See State v. Walker, 852 So.2d 863 (Fla. 3d DCA 2003). However, given our resolution on the merits, we need not reach this issue.


text:
    Teresa M. GAFFNEY, individually; Sarah K. Sussman, individually and as Trustee for The Sussman Family Trust dated January 19, 2012, Appellants, v. Phillip A. BAUMANN, as Administrator ad Litem of the Estate of John J. Gaffney, Deceased, Appellee.
    Case No. 2D15-5735
    District Court of Appeal of Florida, Second District.
    Opinion filed January 27, 2017.

      Dov Sussman, Tampa, for Appellants.
    Michael R. Kangas of Phillip A. Bau-mann, P.A., Tampa, for Appellee.
   PER CURIAM.

Dismissed as an appeal from a nonfinal, nonappealable order.

CASANUEVA, WALLACE, and LaROSE, JJ., Concur.


text:
    KENDALL IMPORTS, LLC, etc., Appellant, v. Dianellys Y. DIAZ, et al., Appellees.
    No. 3D15-1985
    District Court of Appeal of Florida, Third District.
    Opinion filed February 1, 2017.
    Rehearing Denied March 30, 2017

      Akerman LLP, and Christopher S. Carver, Lawrence D. Silverman, and Lorayne Perez, for appellant.
    Dorta Law, and Gonzalo R. Dorta, Matí-as R. Dorta, and Craig A. Applebaum, for appellees.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

FACTS AND PROCEDURAL HISTORY

Kendall Imports, LLC (“Kendall”) sold automobiles to Dayron Ortega (“Ortega”), Erislandis Marquez (“Marquez”), and Dia-nellys Y. Diaz (“Diaz”) (collectively, “the Buyers”). The Buyers do not speak or read English. When the Buyers purchased their vehicles, they each signed two documents that were written in English—a purchase order (“purchase order”) and a retail installment sales contract (“financing agreement”) (collectively, “the documents”). Both the purchase order and the financing agreement contained arbitration clauses, but they were not identical.

The Buyers filed a class action lawsuit against Kendall and its finance director, seeking damages and alleging violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), violations of the Motor Vehicle Retail Sales Finance Act, and unjust enrichment. Specifically, the Buyers alleged that after they signed the purchase order and financing agreement, Kendall filled in the blank spaces in these documents with extra fees and products without informing the Buyers or obtaining their consent.

Kendall filed a motion to compel arbitration based on the arbitration clauses in the purchase order and financing agreement. At the evidentiary hearing conducted on Kendall’s motion to compel, there was no evidence presented that the Buyers were rushed or pressured into signing the documents, sought help in translating the documents, or asked Kendall to clarify the terms of the arbitration clauses.

Following the evidentiary hearing, the trial court entered a non-final order, finding that the only discussions the sales staff had with the Buyers related to the financial terms, such as the purchase price and the monthly payments. Despite the Buyers’ inability to speak or read English, Kendall did not attempt to explain the terms of the documents to the Buyers or inform them of the arbitration provisions in the documents. Moreover, the trial court found that the arbitration provisions in the purchase order and financing agreement conflict, and even if they had been -written in Spanish, a reasonable person reading these documents would not have had a clear understanding of the precise terms and conditions needed to form a mutual agreement to arbitrate. Based on these findings, the trial court denied Kendall’s motion to compel arbitration on two alternative grounds: (1) due to the conflicts between several of the provisions within the arbitration clauses in the purchase order and the financing agreement, Kendall and the Buyers did not have “a meeting of the minds” regarding an agreement to arbitrate and thus there was no valid agreement to arbitrate as a matter of law; and (2)even if the arbitration clauses were validly formed, they were unconscionable. Kendall timely appealed the trial court’s non-final order.

ANALYSIS

I, Standard of Review

The trial court’s entry of an order denying a motion to compel arbitration “presents a mixed question of law and fact.” Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005) (citing Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003)). We review the trial court’s legal determinations and interpretations of contracts de novo, Basulto v. Hialeah Automotive, 141 So.3d 1145, 1153 (Fla. 2014); Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc., 133 So.3d 1108, 1110 (Fla. 3d DCA 2014), and presume that the trial court’s findings of fact are correct unless they are clearly erroneous. See Basulto, 141 So.3d at 1155.

“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999). Only the first element—whether the parties formed a valid written agreement to arbitrate through the execution of the documents—is in dispute in the instant case.

II. Whether a valid written agreement to arbitrate exists

As stated above, the trial court made several findings of fact, and based on those findings, it concluded as a matter of law that the parties did not form a valid agreement to arbitrate. As a threshold matter, we note that there is no dispute as to any of the trial court’s factual findings except for the finding that, due to the conflicts between the arbitration provisions, no reasonable person would have understood that they were agreeing to arbitrate in the event of a dispute. In addition to the dispute as to this factual determination, the trial court’s other factual findings are relevant based on the facts of this case. Therefore, because the initial factual findings are relevant to the issue of formation and may have influenced the trial court’s analysis, we address those findings first.

A. The relevance of the Buyers’ inability to read or write English

The trial court found, inter alia, that there was no agreement to arbitrate because the Buyers could not effectively communicate in English, and there was no evidence that anyone attempted to explain the documents, and specifically, the conflicting arbitration provisions to the plaintiffs. The trial court then likened the instant case to the “Basulto” case which generated a circuit court order memorialized in Basulto v. Hialeah Auto., L.L.C., 2007 WL 6623887 (Fla. Cir. Ct. 2007) (“Basulto I”); an opinion by this Court reviewing Basulto I, Hialeah Auto., LLC v. Basulto, 22 So.3d 586 (Fla. 3d DCA 2009) (“Basulto II”); and an opinion by the Florida Supreme Court, Basulto v. Hialeah Automotive, 141 So.3d 1145 (Fla. 2014) (“Ba-sulto III”). A review of the trial court’s findings in Basulto I and the Florida Supreme Court’s opinion in Basulto III, however, demonstrates that the trial court’s and the Buyers’ reliance on “Basulto” is misplaced.

In Basulto I, the trial court found that the plaintiffs in that case did not speak, read, or write English; the documents presented to them were all in English; they were rushed into signing the documents; they were not given an opportunity to ask any questions; Potamkin’s employees took it upon themselves “to explain everything to the plaintiffs” but either failed to explain the arbitration provisions or lacked a sufficient understanding to explain the arbitration provisions to the plaintiffs; the plaintiffs signed the documents which contained conditions that differed from what they were told were in the documents; and the dispute resolution provisions within the documents were inconsistent and irreconcilable. Based on these findings of fact, the trial court found that, as a matter of law, there was no meeting of the minds and thus there was no valid agreement to arbitrate.

In Basulto III, the Florida Supreme Court, citing to Tobin v. Michigan Mutual Insurance Co., 948 So.2d 692, 696 (Fla. 2006), held that the trial court’s factual findings are presumptively correct and must be upheld unless clearly erroneous. Basulto III, 141 So.3d at 1155-56. The Court then held that the trial court’s factual findings, as articulated above, were supported by the record. Id. at 1156. Lastly, the Court considered whether these factual findings supported the trial court’s legal determination that there was no meeting of the minds and thus no valid formation of an agreement to arbitrate. Id. at 1156.

In reaching the conclusion that the record supported the trial court’s determination that there was no meeting of the minds, such that an enforceable agreement to arbitrate did not exist, the Florida Supreme Court specifically relied on its decision in Pepple v. Rogers, 104 Fla. 462, 140 So. 205, 208 (1932), and included in its reference to Pepple the following parenthetical:

The general rule is that in order for a misrepresentation to be ground for rescission and cancellation, it must be with reference to some material fact or thing, unknown to the complainant, either from his not having examined, or for want of opportunity to be informed, or from his entire confidence reposed in the defendant ....

Basulto III, 141 So.3d at 1156. From the specific inclusion of this parenthetical in its holding that the trial court’s finding that there was no meeting of the minds was supported by the record, it is clear that the Florida Supreme Court’s holding was premised, at least in part, by the misrepresentations made by Potamkin’s employees to the plaintiffs.

The trial court’s reliance on “Basulto” in the instant case is misplaced because the facts in the instant case are totally dissimilar. In fact, the only fact the instant case shares with “Basulto” is that the Buyers could not read or write English and the forms they signed were in English. There is absolutely no evidence in the record before this Court that the Buyers in the instant case were rushed, pressured, or coerced into signing the documents; that they were not given an opportunity to ask questions or seek assistance in interpreting the documents; or that they even attempted to understand what they were signing. Kendall’s employees did not take it upon themselves “to explain everything to the plaintiffs,” omit discussing the arbitration provisions, incorrectly explain what these provisions meant, or misrepresent the effect of these provisions.

Rather, the Buyers in the instant case have admitted that they signed the documents in question without attempting to read them or learn what they were agreeing to, with the exception of the financial terms, such as the costs, monthly payments, etc. They did not tell anyone they could not read the documents they were signing because they did not speak or read English, and there is no evidence that Kendall’s employees were even aware that the Buyers could not and did not read the documents. In fact the financial agreement specifically provided the following statement directly above the Buyers’ signature line:

You agree to the terms of this contract. You confirm that before you signed this contract, we gave it to you, and you were free to take it and review it. You acknowledge that you have read both sides of this contract, including the arbitration clause on the reverse side, before signing below. You confirm that you received a completely filled-in copy when you signed it.

We, therefore, conclude that “Basulto” does not control the analysis, and thus we apply the general and longstanding legal principles regarding contract formation.

We begin that analysis with the well-established principle that one who signs a contract is generally bound by the contract. In Allied Van Lines, Inc. v. Bratton 351 So.2d 344, 347-48 (Fla. 1977), the Florida Supreme Court articulated this principle of law in no uncertain terms:

It has long been held in Florida that one is bound by his contract. Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.

See also Spring Lake NC, LLC v. Holloway, 110 So.3d 916, 917 (Fla 2d DCA 2013) (finding that although Ms. Holloway was 92 years old, had a fourth-grade education, could not spell, often had to sound out words while reading, had memory problems, was increasingly confused, and she “could not possibly have understood what she was signing” when she signed a financial agreement containing an arbitration agreement, she was nevertheless bound by the agreement where there was no evidence that the admissions staff at Spring Lake used any improper methods to obtain her signature or misled her, and that “[fjor better or worse, her limited abilities are not a basis to prevent the enforceability of this contract”); Rocky Creek Ret. Props., Inc. v. Estate of Fox, 19 So.3d 1105, 1108 (Fla. 2d DCA 2009) (holding that a party is generally bound by a contract the party signs unless he was prevented from reading the contract or induced by the other party to refrain from reading it, and “[t]his is true whether a party is physically unable to read the agreement, or simply chooses not to read the agreement”) (internal citation omitted); Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., 891 So.2d 558, 558 (Fla. 3d DCA 2004) (affirming an order compelling arbitration even though the party contesting arbitration was legally blind at the time she signed the agreement containing the arbitration clause).

In Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So.2d 311, 313 (Fla. 5th DCA 1985), the Fifth District Court of Appeal held;

Persons not capable of reading English, as well as those who are, are free to elect to bind themselves to contract terms they sign without reading.... The burden is on the person who cannot read to know that he cannot read and if he desires to have an instrument read and explained to him to select a reliable person to do so before he signs it.

Thus, the Fifth District concluded that although the brokerage firm’s employee was allegedly aware that Ms. Benton could not read English, the fact the employee did not read or explain the contractual documents, which contained an arbitration clause, to Ms. Benton was insufficient to invalidate the documents or to constitute a defense to them, where Ms. Benton did not allege or testify that the firm prevented her from reading the documents, induced her to refrain from reading them, or prevented her from having them read to her by a reliable person of her choice. Id. at 311.

This Court was presented with a similar situation in Rivero v. Rivero, 963 So.2d 934, 938 (Fla. 3d DCA 2007), wherein the former wife sought to avoid certain provisions in an executed marital settlement agreement based on her claim that because she did not speak, read, or write English, she did not understand the terms of the agreement, which were written in English. In rejecting Ms. Rivero’s argument, this Court relied on Benton, specifically citing to the following quote:

The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person cannot read the instrument, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so.

Rivero, 963 So.2d at 938 (quoting Benton, 467 So.2d at 313) (quoting Sutton v. Crane, 101 So.2d 823, 825 (Fla. 2d DCA 1958) (quoting 12 Am. Jur. Contracts § 137))); see also Keller v. Reed, 603 So.2d 717, 720 (Fla. 2d DCA 1992) (holding that “parties to a written instrument have a duty to learn and understand the contents of that instrument before signing it”).

Applying the law to the facts of the case before us, we conclude as follows. Although the Buyers contend that they could not read the purchase order or the financing agreement because they were in English and they could not read English, the burden squarely rested on the Buyers to seek clarification of the terms of these documents. The Buyers, however, failed to ask about the terms of the documents they were signing, and nothing in the record suggests that Kendall misrepresented the terms or prevented the Buyers from reading the documents. Instead, the Buyers blindly signed the purchase order and the financial agreement, willfully agreeing to whatever the terms were. Therefore, we find that the trial court erred as a matter of law by invalidating the arbitration agreement on this basis.

B. Whether the alleged conflicts between the arbitration provisions contained in the purchase order and the financing agreement affected the Buyers’ ability to understand the terms.

The Buyers contend, and the trial court found, that the arbitration provisions contained in the documents are unenforceable because the terms and conditions of the arbitration agreements “are in direct conflict with one another” and these conflicts “are irreconcilable.” Of most concern to the trial court was the alleged conflicts as to the dispute resolution terms, although the trial court, in conclusory fashion and without elaboration, also listed several other perceived conflicts: choice of law, rights of appeal, costs of arbitration, attorney fees, location of arbitration, delegation of issues, and class actions.

We begin our analysis by reiterating basic principles of law relevant here. First, it is well-settled law that a single term in an arbitration clause cannot be interpreted in isolation, but must be read together with the rest of the contract. Bari Builders, Inc. v. Hovstone Props. Fla., LLC, 155 So.3d 1160, 1162 (Fla. 4th DCA 2014) (“The arbitration clause must be read together with the other provisions in the contract.”); Phoenix Motor Co. v. Desert Diamond Players Club, Inc., 144 So.3d 694, 696 (Fla. 4th DCA 2014) (“Where two or more documents are executed by the same parties, at or near the same time, in the course of the same transaction, and concern the same subject matter, they will be read and construed together.”) (quoting Collins v. Citrus Nat’l Bank, 641 So.2d 458, 459 (Fla. 5th DCA 1994)) (emphasis added). Importantly, the presence of additional dispute resolution provisions will not, per se, create an irreconcilable conflict if the terms can be read in a complementary fashion. See Bari Builders, 155 So.3d at 1162.

“A primary rule of contract construction is that where provisions in an agreement appear to conflict, they should be construed so as to be reconciled, if possible.” Arthur Rutenberg Corp. v. Pasin, 506 So.2d 33, 34 (Fla. 4th DCA 1987). Thus, where the two arbitration clauses appear to be in conflict, or where an arbitration clause appears to conflict with another provision of the contract, the court must try to reconcile the conflicting provisions, just as it would do with any other contract provision. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 64, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (harmonizing an arbitration clause with a choice-of-law provision so as to resolve potential conflict as to the availability of punitive damages in the arbitration proceeding); H.C. Lawton, Jr., Inc. v. Truck Drivers, Chauffeurs & Helpers Local Union No. 384, 755 F.2d 324, 329 (3d Cir. 1985) (reconciling seemingly conflicting provisions in recognition of the legal principles “that all contractual provisions be read to make sense, and that arbitration be favored”) (emphasis in original).

Thus, the trial court in the instant case was required to read the two arbitration clauses in a complementary fashion in an attempt to resolve any conflict so as to give effect to each term in the parties’ written agreements and to uphold their agreement to arbitrate. Had the trial court done that, then it would have discovered no actual conflict as to the Buyers’ obligation to arbitrate their claims against Kendall.

The arbitration provisions contained in the purchase order and the financing agreement are as follows.

Purchase order:

MEDIATION, ARBITRATION AND WAIVER OF TRIAL BY JURY: ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS ORDER OR TO THE VEHICLE OR WITH RESPECT TO ANY CLAIM ARISING BY VIRTUE OF ANY REPRESENTATIONS ALLEGED TO HAVE BEEN MADE BY THE DEALER OR DEALER’S REPRESENTATIVE, SHALL BE SETTLED AND FINALLY DETERMINED BY MEDIATION OR BINDING ARBITRATION AS PROVIDED BY AND IN ACCORDANCE WITH THE FLORIDA ARBITRATION CODE. THIS ARBITRATION AGREEMENT IS TO BE INTERPRETED TO COVER ALL POTENTIAL CLAIMS ARISING IN TORT, CONTRACT, FLORIDA OR FEDERAL STATUTES, OR COMMON LAW, INCLUDING CLAIMS FOR PERSONAL INJURIES RESULTING FROM ALLEGED DEFECTS IN THE VEHICLE. The claim will first be submitted for non-binding mediation to a mediator certified by the Florida Supreme Court. If the parties are unable to agree upon a mediator, either party can petition the. appropriate Miami-Dade County Court for the appointment of a mediator. If not resolved by mediation, the claim will be submitted to a single agreed upon arbitrator. If the parties are unable to agree upon an arbitrator, either party can petition the appropriate Miami-Dade County Court for the appointment of an arbitrator. The parties agree that the final arbitration hearing shall take place within six months from the selection of any arbitrator. The arbitrator can extend the final hearing for an additional ' six months if he finds highly exceptional circumstances justifying such an extension, A judgment upon the award rendered by the arbitrator may be entered in any Miami-Dade County Court having jurisdiction of the.matter. However, any disputes wherein the Purchaser or dealer seeks damages of less than $5000.00, excluding costs and attorneys’ fees, shall be resolved in the small claims court of Miami-Dade County. In the event that any such small claims suit is filed in a Miami-Dade County Court and an amendment to the pleadings or counterclaim results in a claim for damages in excess of $5000.00, then this binding arbitration shall apply and the parties agree to jointly dismiss or stay the small claims proceedings and proceed with the requirements of this paragraph. The cost of the mediation and arbitration proceedings shall be borne equally by Dealer and Purchaser. All mediation and arbitration proceedings are to take place physically in Miami-Dade County, Florida. IN THE EVENT THAT THE PARTIES MUTUALLY AGREE IN WRITING TO AVOID ARBITRATION OR IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT A PARTICULAR DISPUTE BETWEEN THE PARTIES IS NOT SUBJECT TO THIS ARBITRATION PROVISION AND IT BECOMES NECESSARY FOR EITHER PARTY TO LITIGATE A DISPUTE BETWEEN THE PARTIES, THEN, IN THAT EVENT, THE PARTIES HEREBY MUTUALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY, AND AGREE THAT ANY SUCH LITIGATION SHALL BE IN A COURT OF COMPETENT JURISDICTION LOCATED IN MIAMI-DADE, COUNTY, FLORIDA. In any mediation arbitration or litigation proceedings between the parties, the prevailing party shall be entitled to recover reasonable attorneys’ fees, and, in the event [sic] litigation, the cost of litigation on all levels including any appeals.

Financing agreement:

ARBITRATION CLAUSE PLEASE REVIEW—IMPORTANT—AFFECTS YOUR LEGAL RIGHTS
1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.
2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBI-TRATIONS.
3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral binding ai-bi-tration and not by a court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Clause shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose one of the following arbitration organizations and its applicable rules: the National Arbitration Forum, Box 50191, Minneapolis, MN 55405-0191 (www.arbforum. com), the American Arbitration Association, 335 Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org), or any other organization that you may choose subject to our approval. You may get a copy of the rules of these organizations by contracting the arbitration organization or visiting its website.
Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law in making an award. The arbitration hearing shall be conducted in the federal district in which you reside unless the Creditor-Seller is a party to the claim or dispute, in which case the hearing will be held in the federal district where this contract was executed. We will advance your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum of $2500, which may be reimbursed by decision of the arbitrator at the arbitrator’s discretion. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization’s rules conflict with this Arbitration Clause, then the provisions of this Arbitration Clause shall control. The arbitrator’s award shall be final and binding on all parties, except that in the event the arbitrator’s award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel. The appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs. Any arbitration under this Arbitration Clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.
You and we retain any rights to self-help remedies, such as repossession. You and we retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate by using self-help remedies or filing suit. Any court having jurisdiction may enter judgment on the arbitrator’s award. This Arbitration Clause shall survive any termination, payoff or transfer of this contract. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Clause shall be unenforceable.

We now address each of the “irreconcilable conflicts” identified by the trial court. We begin with the conflict which the trial court found was especially “problematic” and the only conflict specifically addressed in the trial court’s order.

1. The obligation to arbitrate and waiver of a jury trial

A review of the purchase order reflects that it requires that all claims for damages in excess of $5,000 be submitted for nonbinding mediation, and if they are not resolved by mediation, they are to be resolved by binding arbitration unless both parties agree in writing to avoid arbitration or the court determines that the dispute is not subject to arbitration. In the event the dispute is litigated, the parties waive their right to a jury trial.

The financing agreement provides for arbitration if either party so elects (in other words unless both sides agree not to arbitrate the dispute). Although the financing agreement could be read to allow for a jury trial if the dispute is not submitted for binding arbitration, this potential conflict is totally irrelevant to the instant analysis because it is undisputed that Kendall has demanded binding arbitration, and therefore, under both the purchase order and the financing agreement, the Buyers must resolve their claims by binding arbitration, which obviously precludes any consideration of a jury trial. Because Kendall has demanded arbitration, there clearly is no “irreconcilable” conflict between the two arbitration provisions.

We also find no irreconcilable conflict between the requirement in the purchase order to submit all claims to non-binding mediation prior to submitting the claims to binding arbitration unless the parties agree in writing to avoid arbitration, and the financing agreement, which contains no such requirement. Because the purchase order requires non-binding mediation, the purchase order and financing agreement, when read together, require non-binding mediation. There is no irreconcilable conflict between them. Although none of the parties have asked to submit the claims to non-binding mediation, they were certainly permitted to do so. Thus, if any of the parties had invoked his, her, or its right to non-binding mediation under the purchase order, that request likely would have been granted. However, we note that, as with arbitration clauses, mediation can be waived. DVDPlay, Inc. v. DVD 123 LLC, 930 So.2d 816, 820 n.2 (Fla. 3d DCA 2006) (stating that a party waived mediation because, although the contract contained an enforceable mediation clause, the party “never sought to judicially compel mediation, and instead it filed a lawsuit”); see also Coastal Sys. Dev., Inc. v. Bunnell Found., Inc., 963 So.2d 722, 724 (Fla. 3d DCA 2007) (“A party who actively participates in a lawsuit waives the right to arbitration.”); Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 397-98 (Fla. 5th DCA 2003). Because none of the parties have requested nonbinding mediation, we decline to express an opinion as to whether the contractual right to mediation has been waived.

Thus, there is clearly no irreconcilable conflict between the purchase order and the financing agreement precluding the enforcement of the arbitration provisions contained in these two documents and to which all of the parties have agreed.

2. The choice of law provisions

The purchase order provides that arbitration is to be “in accordance with the Florida Arbitration Code.” The financing agreement provides that the Buyers may choose any of the following arbitration organizations and its applicable rules to arbitrate their claims: the National Arbitration Forum, the American Arbitration Association, or any other organization subject to Kendall’s approval. Further, any arbitration under the arbitration clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.

While, at first blush, it would appear that the two choice of law provisions are in conflict, had the trial court attempted, as it was required, to resolve the conflict, it would have actually discovered that these two provisions are not in conflict. First, as the Florida Supreme Court has said not once, but twice, “[i]n Florida, an arbitration clause in a contract involving interstate commerce is subject to the [FAC], to the extent that the FAC is not in conflict with the FAA.” Visiting Nurse Ass’n of Fla., Inc., 154 So.3d 1115, 1124-25 (Fla. 2014); see also Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 463-64 (Fla. 2011); CT Miami, LLC v. Samsung Elec. Latinoamerica Miami, Inc., 201 So.3d 85, 90 n.3 (Fla. 3d DCA 2015) (acknowledging the Florida Supreme Court’s opinion in Shotts and finding that although the FAC governs the proceedings to the extent it does not directly conflict with the FAA, “[t]he sections of the FAC and FAA relevant to the determination of this appeal, however, are virtually identical,’ ... so the determination is not dispositive of the case at bar”).

As in CT Miami, this Court recognizes the Florida Supreme Court’s holdings in Shotts, 86 So.3d at 463, and Visiting Nurse Ass’n of Florida, 154 So.3d at 1224-25, and notes that although the FAA controls when a transaction involves interstate commerce, “[i]n Florida, an arbitration clause in a contract involving interstate commerce is subject to the [FAC], to the extent the FAC is not in conflict with the FAA.” Shotts, 86 So.3d at 463. However, whether the FAA or FAC controls in the instant case is not determinative of whether there exists irreconcilable conflict between the purchase order and the financing agreement because we find, as this Court found in CT Miami, “[t]he sections of the FAC and FAA relevant to the determination of this appeal, however, are ‘virtually identical.’ ” CT Miami, 201 So.3d at 90 n.3. Thus, our decision is in no way based on a finding of preemption. Rather, our finding is based on the failure of the Buyers to demonstrate any irreconcilable differences between the FAC and the FAA relevant to this case.

Although the Buyers argued that there were three specific irreconcilable differences between the FAC and the FAA, our review demonstrates that these specific provisions are not in conflict. First, the Buyers attempt to show a conflict between certain provisions of the Revised Florida Arbitration Code (the “RFAC”) and the FAA. However, the arbitration agreements at issue in this case were entered into in 2008 and 2011. (Kendall sold Dayron Ortega a new automobile in 2008, and sold Erislandis Marquez and Dianellys Y. Diaz a used automobile in 2011). The RFAC “governs an agreement to arbitrate made on or after July 1, 2013.” § 682.013, Fla. Stat. (2016); see also CT Miami, 201 So.3d at 91 (noting that “the parties correctly agree that the pre-2013 version of the [FAC] applies because the contract at issue was drafted and signed in 2009”). Because the arbitration agreements at issue in this case were entered into prior to July 1, 2013, the Buyers’ reliance on the RFAC in an attempt to find a conflict between the FAC and the FAA is misplaced.

The Buyers’ second argument—that the FAC and the FAA provide different time limitations in which to file an application to modify or correct an award is incorrect. Both the FAA and the FAC provide for a three-month time limit to modify or correct an award. See 9 U.S.C. § 12; §§ 682.13(2), 682.14 (1), Fla. Stat. (2012).

Lastly, the Buyers contend that because the FAC does not allow for a waiver of representation, and the FAA is silent on this issue, there is an irreconcilable difference between the two. However, because the FAA is silent as to this issue, the FAC controls and there is no conflict.

A review of the relevant provisions of the FAC and the FAA demonstrates that they are substantively nearly identical. Because the Buyers have not identified any relevant irreconcilable differences between the FAC and the FAA, there is no conflict between the choice of law provisions in the purchase order and the financing agreement. There is no conflict to resolve, and certainly no justification for invalidating the arbitration provisions contained in the documents the Buyers signed when they purchased their automobiles from Kendall.

3. Location of the arbitration

The purchase order provides that all mediation and arbitration proceedings are to take place in Miami-Dade County. The financing agreement states that the arbitration hearing shall be conducted in the federal district in which the Buyers reside unless the “Creditor-Seller” (which in this case is Kendall) is a party to the claim or dispute, in which case, the hearing will be held in the federal district where the contract was executed.

As is readily obvious, these two provisions, under the facts of this case do not conflict and are easily harmonized. The contracts in question were executed in Miami-Dade County, which is in the federal Southern District of Florida, and is where the Buyers filed their lawsuit against Kendall.

4. Delegation of issues

“The delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement.” Rent-A-Center, W., Inc. v. Jackson, 661 U.S. 63, 69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). The financing agreement authorizes the arbitrator to decide “the interpretation and scope of the Arbitration Clause, and the arbitrability of the claim or disputes.” The purchase order, on the other hand, is silent. Thus, there is no conflict between the purchase order and the financing agreement on the issue of delegation. More importantly, because there is no dispute in this case that the Buyers’ claims fall within the scope of the broad arbitration provisions, there is certainly no “irreconcilable conflict.”

5. Class actions

Although the financing agreement expressly bars class action proceedings and the purchase order is silent as to class actions, this does not create an “irreconcilable conflict” as the trial court found. Had the trial court attempted to harmonize the two provisions and resolve potential conflict, it would have discovered that under the FAA “a party may not be compelled ... to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010); see also Anderson v. Maronda Homes, Inc. of Fla., 98 So.3d 127, 130 (Fla. 2d DCA 2012) (Larose, J., concurring) (“Assent to class arbitration is needed; agreement cannot be inferred from silence.”). Because the financing agreement expressly bars class action proceedings and, in the purchase order, the parties did not expressly agree to permit class actions, then under both documents, class actions are not permitted.

6. Cost of arbitration

The purchase order provides that the cost of the mediation and the arbitration proceedings shall be borne equally by Kendall and the Buyers. In the financing agreement, Kendall agreed to advance the Buyers’ “filing, administration, service ol-ease management fee and the [Buyers’] arbitrator or hearing fee” up to $2500, which, at the discretion of the arbitrator, may be reimbursable. As Kendall aptly noted, “[tjhese provisions can be reconciled by requiring the Dealer to advance the fees of arbitration up to a maximum of $2500 before requiring that the Dealer and the Purchaser bear the remaining costs of arbitration equally.” Thus, there is clearly no “irreconcilable conflict.”

7. Right to appeal

As a matter of law, there is no right to appeal the merits of an arbitrator’s award. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 588-90, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). An arbitrator’s award may be set aside on very limited statutory grounds. See id. Both arbitration provisions provide for arbitration by a single arbitrator. The financing agreement contains a provision that in the event the arbitrator’s award is $0 or in excess of $100,000, or it includes an award granting injunctive relief, then a party may request a new arbitration by a three-arbitrator panel. Thus, under Mastrobuono, 514 U.S. at 64, 115 S.Ct. 1212; H.C. Lawton, Jr., Inc., 755 F.2d at 329; and Arthur Rutenberg Corp., 506 So.2d at 34, the trial court was required to harmonize the two arbitration clauses and conclude that because the purchase order was silent as to this issue, and the parties agreed to this procedure in the financing agreement, then the parties agreed to the procedure. As such, there is no “irreconcilable conflict.”

8. Attorney’s fees

The purchase order provides that the prevailing party shall be entitled to recover reasonable attorney’s fees; whereas the financing agreement provides that each party shall be responsible for its own attorney’s fees “unless awarded by the arbitrator under applicable law,” and “the arbitrator shall apply governing substantive law in making an award.” Since FDUPTA entitles the prevailing party to recover its fees, see § 501.2105, Fla. Stat. (2012), there is no conflict, let alone “irreconcilable conflict.”

We also specifically note that under basic contract principles, conflicts within the written agreement are to be construed against the drafter, which in this case is Kendall. Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1102 (Fla. 5th DCA 2006) (“To the extent any ambiguity exists in the interpretation of the contract, it will be strictly construed against the drafter.”); Tannen v. Equitable Life Ins. Co. of Washington, D.C., 303 So.2d 352, 355 (Fla. 3d DCA 1974) (stating that “any ambiguity of language within the contract will be strictly construed against the party who chose the language and drafted the contract”). Thus, for example, if there was a conflict between the two arbitration provisions as to whether the prevailing party was entitled to its fees, which could not be reconciled, then that conflict must be construed in favor of the Buyers. But whether the prevailing party will be entitled to its fees also is not relevant to the issue of whether there exists a valid agreement to arbitrate. This is typically an issue to be resolved by the arbitrator.

In sum, had the trial court actually scrutinized the two arbitration clauses, and attempted to harmonize them as it was required to do, it would have discovered no irreconcilable conflict so as to vitiate the Buyers’ agreement to arbitrate their claims against Kendall.

We also cannot ignore the fact that in this case, the Buyers are seeking avoidance of the arbitration clause contained in the contracts they signed without attempting to read or learn what provisions they were agreeing to, other than the financial terms associated with the purchase of their vehicles. They are not claiming that they were confused by their own interpretation of the terms contained in the arbitration clauses or that their interpretation differed from that explained by Kendall’s employees when they signed the documents. In other words, these particular plaintiffs do not claim they were confused or misled by the terms, nor can they, because they did not attempt to learn what the terms were. They did not attempt to read them, tell anyone they could not read them, ask any questions, ask that the documents be read to them, or ask anyone to explain them. They also admit that no one attempted to explain the documents to them (other than the financial terms) and therefore no one omitted an explanation of the arbitration clauses or misrepresented what they provided. Instead, the Buyers blindly signed the documents willfully agreeing to whatever the terms were and specifically acknowledged that they had read both sides of the documents, including the arbitration clauses before signing, and that they were agreeing to the terms of the documents.

III. Unconscionability

The trial court additionally found that the terms of the arbitration clauses were unconscionable. We highlight that the party seeking to avoid arbitration has the burden to prove both procedural and substantive unconscionability. Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1134 (Fla. 3d DCA 2006). “[Wlhile both elements must be present, they need not be present to the same degree.” Basulto III, 141 So.3d at 1159. Procedural uncon-scionability deals with whether, given the totality of the circumstances, the parties had a meaningful choice to refuse the contract terms. DePrince v. Starboard Cruise Servs., Inc., 163 So.3d 586, 595 (Fla. 3d DCA 2015). Substantive unconscionability deals with the reasonableness of those terms. Murphy, 944 So.2d at 1134.

While a contract of adhesion could indicate procedural unconscionability in some circumstances, “the presence of an adhesion contract alone does not require a finding of procedural unconscionability.” VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So.2d 34, 40 (Fla. 4th DCA 2005); see also AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346-47, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (stating that “the times in which consumer contracts were anything other than adhesive are long past”). It is important to inquire into additional surrounding circumstances, such as whether a party could obtain the desired product or services elsewhere, whether one party pressured or rushed the other into signing a contract, or whether the party was otherwise precluded from inquiring into the terms of the agreement. See DePrince, 163 So.3d at 595; Fonte, 903 So.2d at 1026-27; Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2d DCA 2004); Gainesville Health Care Ctr., 857 So.2d at 285-288 (holding that the trial court’s findings were insufficient to prove procedural uncon-scionability where the contract was pre-printed, the plaintiff did not understand the terms of the contract, and no one explained the terms to the plaintiff).

The trial court found that the arbitration clauses were procedurally unconscionable because: (1) the terms of the arbitration clauses in the purchase order and the financing agreement conflicted, such that there was no meaningful disclosure of the terms by which the Buyers would be bound; (2) the contracts containing the arbitration clauses were offered on a “take-it-or-leave-it” basis, such that the Buyers had no meaningful choice or opportunity to negotiate the terms; and (3) Kendall failed to explain the arbitration provisions to the Buyers in Spanish.

For the reasons we have already discussed, the terms of the arbitration clauses in the purchase order and the financing agreement did not irreconcilably conflict and Kendall was not required to explain the arbitration clauses to the Buyers in Spanish. Thus, because the Buyers had a full and fair opportunity to inquire into the terms of the documents, and they declined to do so, they will not now be able to escape the binding effect of their unequivocal assent to the arbitration clauses by claiming that Kendall did not explain the terms.

The trial court’s remaining justification, that the arbitration agreement was offered on a “take-it-or-leave-it” basis, is on these facts insufficient to prove that the Buyers’ execution of the arbitration agreement was procedurally unconscionable. See Concepcion, 563 U.S. at 346-47, 131 S.Ct. 1740 (holding that “the times in which consumer contracts were anything other than adhesive are long past”); Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1214-15 (11th Cir. 2011) (rejecting unconscionability challenges based on class waiver, small venue claims, and the adhesive nature of form contracts); Spring Lake NC, 110 So.3d at 918 (recognizing the role of standardized contracts and that most contracts are no longer individually negotiated and handwritten). Because the Buyers failed to prove any degree of procedural uncon-scionability, we conclude that the arbitration agreements contained in the purchase order and financing agreement are not unconscionable.

CONCLUSION

We find that, as a matter of law, each of the trial court’s alternative findings for denying Kendall’s motion to compel arbitration are flawed. Because the Buyers did not attempt to learn what the documents they were signing said or meant by reading them, requesting that they be read or explained to them, or ask any question to educate themselves as to the terms; there is no evidence that the Buyers were rushed, pressured, or coerced into signing the documents; there is no evidence that Kendall’s employees took it upon themselves to explain the documents and then either omitted mentioning the arbitration provisions or misrepresented the meaning of those provisions; and the arbitration provisions in the purchase order and financing agreement did not irreconcilably conflict, the trial court erred by finding that there was no valid agreement to arbitrate. We also reject the trial court’s finding of procedural unconsciona-bility. Accordingly, we reverse the trial court’s order denying Kendall’s motion to compel arbitration and remand for proceedings consistent with this opinion.

Reversed and remanded.


text:
    Michael TRAMEL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-2285
    District Court of Appeal of Florida, First District.
    Opinion filed February 16, 2017
    Rehearing Denied April 6, 2017
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Gonzalez, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We originally reversed Tramel’s conviction for attempted second-degree murder and aggravated battery with a deadly weapon and remanded for a new trial based on this court’s decision in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014). However, the Florida Supreme Court quashed our original opinion in this case and remanded for reconsideration upon application of its decision in State v. Floyd, 186 So.3d 1013 (Fla. 2016). Based on that decision, we reject Traméis argument that the jury instructions regarding the duty to retreat were fundamentally erroneous. We also affirm as to the other issues raised by Tramel, However, our affirmance is without prejudice to Tramel’s right to seek postconviction relief. See Grimsley v. State, 939 So.2d 123 (Fla. 2d DCA 2006).

AFFIRMED.

ROBERTS, C.J., JAY and M.K. THOMAS, JJ., CONCUR.


text:
    Jose Osvaldo FABREGAS, Appellant, v. Yovany FERNANDEZ, Appellee.
    No. 3D16-681
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Rehearing Denied March 30, 2017

      Entin & Della Fera, Alvin Entin and Joseph E. Somake (Fort Lauderdale), for appellant.
    Yovany Fernandez, in proper person.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See § 90.104(l)(b), Fla. Stat. (2016); Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925 (Fla. 2005) (holding that in order to be preserved for appellate review, issue must be presented to lower court and the specific legal argument raised); Dade Cty. Sch. Bd. v. Radio Station WQBA, 781 So.2d 638 (Fla. 1999) (holding that, generally, a claim not raised in the trial court will not be considered on appeal).


text:
    OFFICE OF THE PUBLIC DEFENDER, Eleventh Judicial Circuit of Florida, Appellant, v. Milena LAKICEVIC, et al., Appellees.
    No. 3D15-2084
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Rehearing Denied April 4, 2017
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Samuel C. Cozzo, for appellees Milena Lakicevic and Amalia Toma Badia.
    Lawrence J. Fox (Philadelphia, PA), for Yale Law School Ethics Bureau, as amicus curiae; Karen M. Gottlieb and Sonya Ru-denstine, Co-chairs, Amicus Committee, for the Florida Association of Criminal Defense Lawyers, as amicus curiae; Jan L. Jacobowitz, Associate Director, for the University of Miami School of Law Center for Ethics & Public Service, as amicus curiae; Janet Moore (Cincinnati, OH), University of Cincinnati College of Law, Chair, Amicus Committee, for the National Association of Criminal Defense Lawyers, as amicus curiae.
    Before EMAS, LOGUE, and SCALES, JJ.
   PER CURIAM.

Appellant seeks review of the trial court’s order denying its motion for protective oi'der from a third-party subpoena duces tecum for deposition. In its filings below, Appellant asserted that the information sought by Appellee (pertaining to Appellant’s former client) was communicated during the attorney-client relationship and with the expectation that the information would remain confidential. There is no record evidence disputing that the client communicated this information to Appellant in confidence, during and as a result of the attorney-client relationship, and with the expectation that this communication was and would remain confidential and not be disclosed to anyone.

Therefore, we hold that the trial court erred in denying the motion for protective order, as the confidential communication by the client to his attorney was privileged and not subject to disclosure. See § 90.502(l)(c), Fla. Stat. (2015)R.L.R. v. State, 116 So.3d 570 (Fla. 3d DCA 2013).

Reversed and remanded.

      . Section 90.502(l)(c) provides:
      A communication between lawyer and client is "confidential” if it is not intended to be disclosed to third persons other than:
      1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
      2. Those reasonably necessary for the transmission of the communication.


author: B.L.THOMAS, J.

text:
    John Ray SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4231
    District Court of Appeal of Florida, First District.
    Opinion filed February 24, 2017.
    Rehearing Denied April 27, 2017

      Jason T. Forman, Ft. Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   B.L.THOMAS, J.

Appellant was convicted of conspiracy to commit armed robbery and second-degree felony murder. While we affirm Appellant’s conspiracy conviction, we reverse Appellant’s conviction of second-degree felony murder, because as the State correctly concedes, conspiracy is not a predicate offense for felony-murder, and thus, the jury instruction to the contrary was erroneous. Pugh v. State, 624 So.2d 277 (Fla. 2d DCA 1993) (holding conspiracy to commit aggravated child abuse could not serve as predicate offense for felony-murder, and jury instruction containing error was fundamental, thus affirming conviction for conspiracy and remanding for new trial on charge of felony-murder). We disagree with the State that the error here was not fundamental, however, and remand for a new trial, because the erroneous instruction permitted the jury to find Appellant guilty of a non-existent crime. Reid v. State, 656 So.2d 191, 192-93 (Fla. 1st DCA 1995) (reversing conviction for nonexistent crime of attempted manslaughter by culpable negligence, absent an objection at trial, because error was fundamental). Under Article II, Section 3 of the Florida Constitution, this court has no' authority to affirm a conviction for a crime not specified in law. See B.H. v. State, 645 So.2d 987, 992 (Fla. 1994). In B.H., the Florida Supreme Court noted that “[t]he term ‘legislative power’ as used in Article III most particularly embraces statutes defining criminal offenses; and in the field of criminal law, the concept of separation of powers is directly linked to the Constitutional guarantee of due process.” Id. at 992. The court specifically pointed out that, under Article X, Section 10 of the Florida Constitution, “no felony can exist under Florida law unless created by a valid statute properly approved by the legislature.” Id. Furthermore, the legislature itself has required that courts strictly construe criminal statutes. § 775,021(1), Fla. Stat.

At trial, the court insfructed the jury that conspiracy to commit armed robbery was an element of second-degree felony murder:

Counts 1 and 2 are linked in that the crime charged in count 1 (conspiracy to Commit Armed Robbery) is an essential element of the crime charged in count 2 (Second Degree Felony Murder). You should first consider the evidence applicable to count 1. If you find the crime in Count 1 has not been proven beyond a reasonable doubt, you must find the defendant not guilty on both counts 1 and 2.
If, on the other hand, you find that the crime charged in count 1 has been proven beyond a reasonable doubt, you must then consider the evidence applicable to Count 2. A guilty verdict on Count 1 does not require a guilty verdict on Count 2. You should find the defendant guilty on Count 2 only if you find all the elements of that crime, including' the essential elements contained in Count 1, were proven beyond a reasonable doubt.

Relying on this instruction, the State reiterated this incorrect statement of law in its closing argument.

Section 782.04(3), Florida Statutes, lists the offenses which may serve as an underlying felony in a felony-murder case. Although a defendant may be convicted of second-degree felony, murder “[w]hen a human being is killed during the perpetration of, or during the attempt to perpetrate ... robbery,” a defendant may not be convicted of second-degree felony murder when a human being is killed as a result of a conspiracy to commit armed robbery. § 782.04(3)(d), Fla. Stat. (emphasis added). In Pugh, the Second District noted this statutory exclusion of conspiracy from the enumerated qualifying offenses, and further noted that conspiracy offenses were separate and distinct from attempts and actual commission of offenses under section 777.04, Florida Statutes. 624 So.2d at 279. The court concluded that the “statutory definition of a felony should not by construction or interpretation be extended to cover acts of persons that are not within the intent of the statute, for only the lawmaking power can legally designate or define the criminal offenses for which penalties may be imposed.” Id. at 278-79 (emphasis added); see also Lewis v. State, 34 So.3d 183, 185 (Fla. 1st DCA 2010) (recognizing the limited scope of felony-murder as applying “only to those felonies specifically enumerated by statute”).

“Jury instructions are subject to the contemporaneous objection rule.” Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010). Because Appellant failed to object to the erroneous jury instruction, we may not order a new trial, unless the error was fundamental. Id. For an error to be fundamental, it must “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla. 1960). In Reid, the trial court instructed the jury that it could convict the defendant of attempted manslaughter resulting from the defendant’s culpable negligence; in reversing, this court noted that, while a defendant could be convicted of manslaughter by culpable negligence, being convicted of attempted manslaughter required proof that the act or procurement was intentional, and instructing the jury that it could convict a defendant of attempted manslaughter by culpable negligence was fundamentally erroneous,' because it is a non-existent offense. 656 So.2d at 192.

Even if we did not find the plain text of section 782.04(3) controlling here, however, employing the statutory-interpretation tool of expressio unius est exclusio alterius would also lead us to reverse the felony-murder conviction, because the legislative intent to exclude conspiracy is demonstrated by the inclusion of the inchoate offense of attempt and the exclusion of the inchoate offense of conspiracy. United States v. Plummer, 221 F.3d 1298, 1306 (11th Cir. 2000) (noting that “[a]ttempt, like conspiracy, is an inchoate crime that can be committed regardless of whether the object of the venture is achieved.”); Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (considering “conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.”). It is not within our constitutional power, therefore, to include the inchoate offense of conspiracy within the felony-murder statute by upholding a conviction based on a crime which the legislature did not enumerate as a predicate offense.

Appellant also raises on appeal the trial court’s denial of his motion for judgment of acquittal on the second-degree felony murder charge. While Appellant’s involvement in the attempted robbery was disputed at trial, the trial court properly denied Appellant’s motion for judgment of acquittal, because the State offered sufficient evidence to prove Appellant committed attempted armed robbery as a principal. See Parker v. State, 570 So.2d 1048, 1051 (Fla. 1st DCA 1990) (interpreting the term “in the perpetration of’ to include deaths that occurred during would-be robber’s flight); Pugh, 624 So.2d at 279.

AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.

M.K. THOMAS, J., CONCURS; WETHERELL, J., CONCURS IN RESULT.

      . This principle of statutory interpretation respects the separation of powers by properly deferring to the legislature’s decision that "the mention of one thing implies the exclusion of another .... Hence, where a statute enumerates the things on which it is to operate, ... it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.” Thayer v. State, 335 So.2d 815, 817 (Fla. 1976).