author: Per Curiam. Warner, J., dissenting.

text:
    B.F., the Father, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-2986
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Andrew A. Holness of the Law Offices of Andrew A. Holness, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Meredith K. Hall, Children's Legal Services, Bradenton, for appellee.
    Heather Sayfie, Pro Bono, Hallandale Beach, and David P. Krupski, Sanford, for Guardian Ad Litem Program.
   Per Curiam.

B.F. ("the father") appeals an order terminating his parental rights and raises several arguments. We affirm the majority of the order, but we recognize that, as the father argues, the trial court erred in terminating his parental rights on the ground of abandonment where the Department of Children and Families ("the Department") failed to sufficiently prove that ground. Consequently, we reverse the portion of the order terminating the father's parental rights on the ground of abandonment.

The child was sheltered at the age of four months and was adjudicated dependent several months later. He was ultimately placed with his paternal great-grandmother and great-aunt. The father was incarcerated at commencement of the dependency proceedings, and while an exact timeline is not clear, the record reflects he was in and out of jail for a significant portion of the dependency and termination proceedings. A case plan was entered requiring the father to provide proof of child support, stable income, and housing, among other tasks. The Department eventually petitioned for termination of his parental rights alleging several grounds, including abandonment.

At trial, at which point the child was two years old, the Department presented testimony regarding the father's support of and interaction with the child from the case manager and the child's paternal great-grandmother, who is one of the child's custodians. The case manager testified that she did not facilitate visitation between the father and the child, but was aware of one visit between them. The father lived in Broward and Tampa at different times in the proceedings and the child lived in Miami. The father did not provide proof of child support, stable income, or housing, but he reported to the case manager that he worked "underneath the table" and did not have physical paychecks.

The great-grandmother testified that the father has visited the child on four occasions, but he did not visit the child on a consistent basis because he has been in and out of jail. Initially, the child was hesitant to go to his father and bites him sometimes, but has warmed up to him. The child loves the father, calls him "Da-Da," and runs to and hugs the father when he sees him. Additionally, the father and child have "good communication" on the phone and the child knows he is his father. The father did not provide financial support or supplies for the child, with the exception of an outfit and a pair of shoes, and possibly fast food when he visited the child.

Following trial, the court entered an order finding that grounds for termination existed pursuant to section 39.806(1)(b), Florida Statutes, because the father had abandoned the child, and pursuant to section 39.806(1)(e), Florida Statutes, because the father failed to substantially comply with the case plan for a period of time after the child was adjudicated dependent and the case plan had been filed.

On appeal, the father argues the Department failed to present evidence that he had the ability to contribute to the child's care and maintenance, and therefore failed to prove abandonment. The father also asserts that the evidence demonstrates he maintained a relationship despite his incarceration by communicating with the child on the phone. We agree.

Termination of parental rights requires clear and convincing evidence of a statutory ground for termination set forth in section 39.806, Florida Statutes. D.S. v. Dep't of Children & Families , 164 So.3d 29, 33 (Fla. 4th DCA 2015). Clear and convincing evidence is an "intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." Fla. Dep't of Children & Families v. F.L. , 880 So.2d 602, 614 n.7 (Fla. 2004) (Cantero, J., concurring) (quoting In re Adoption of Baby E.A.W. , 658 So.2d 961, 967 (Fla. 1995) ). "While a trial court's decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whether competent substantial evidence supports the trial court's judgment." J.E. v. Dep't of Children & Families , 126 So.3d 424, 427 (Fla. 4th DCA 2013) (citation omitted).

Abandonment is a ground for termination of parental rights. § 39.806(1)(b), Fla. Stat.

"Abandoned" or "abandonment" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able , has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. For purposes of this subsection, "establish or maintain a substantial and positive relationship" includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. ... The incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment.

§ 39.01(1), Fla. Stat. (2016) (emphasis added).

"The qualifying phrase 'while being able' excludes involuntary abandonment." T.S. ex rel. D.H. v. Dep't of Children & Families , 969 So.2d 494, 496 (Fla. 1st DCA 2007). "Although a parent's incarceration can be a factor the court considers for terminating parental rights based on abandonment, incarceration alone is insufficient. It is also improper to terminate parental rights if a parent is unable to financially provide for the child or assume parental obligations due to incarceration." Id. (citations omitted). "[T]he parent's efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison." In re T.H. , 979 So.2d 1075, 1080 (Fla. 2d DCA 2008).

The Department did not prove abandonment, as the record does not reveal competent, substantial evidence that the father was able to significantly contribute to the child's care and maintenance or that he failed to establish and maintain a positive and substantial relationship with the child. First, the only evidence of the father's financial ability was the case manager's testimony that the father told her he works under the table. There was no evidence of the amount of income, the type of work performed, or the duration of employment. Presumably this employment occurred at some point while he was not incarcerated, but the case manager did not know how long the father was incarcerated. Testimony that the father performed undocumented work between stints in jail is not competent, substantial evidence of ability and does not establish voluntary abandonment.

Second, the Department did not prove that the father failed to establish and maintain a positive relationship with the child; the evidence as a whole tended to establish the opposite. While he only visited the child four times in person, the great-grandmother's testimony established that the father and child communicated well on the phone, and there was no evidence to contradict this. There was also no evidence regarding the father's ability to contact the child while he was incarcerated. Further, the great-grandmother testified that the child loves the father and recognizes him as his father. Testimony that the child was initially standoffish and has bitten the father is not competent, substantial evidence of the absence of a substantial and positive relationship, particularly in light of the fact that the child was two years old at the time of the testimony.

Consequently, we reverse the portion of the order terminating the father's parental rights on the ground of abandonment and remand for that ground and findings inconsistent with this opinion to be stricken from the order. However, we affirm the termination of the father's parental rights on the remaining ground, as the father's remaining arguments are either without merit or are waived.

Affirmed in part, reversed in part, and remanded with instructions.

May and Ciklin, JJ., concur.

Warner, J., dissents with opinion.

Warner, J., dissenting.

I dissent from that portion of the majority opinion which concludes that there was no competent substantial evidence to support abandonment, both as to his ability to contribute and as to his maintenance of communication to create a positive relationship. To the contrary, even when the father was out of prison and employed "under the table," he failed to make any contribution to the care of his child. Thus, while he was "able" and making income, he did not use any money for the support of his child. The Department should not be required to show the amount of his actual income in order to show abandonment. Further, as to maintaining contact with the child, the evidence supports the conclusion that appellant made only marginal efforts to interact with his child. Section 39.01(1) makes such efforts insufficient:

For purposes of this subsection, "establish or maintain a substantial and positive relationship" includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child .

§ 39.01(1), Fla. Stat. (2016) (emphasis added). As there was competent evidence to show that appellant's efforts were indeed marginal, the trial court's judgment should be sustained.

      With respect to this ground, the order provides:
      39.806(1)(e) The child has been adjudicated dependent, a case plan has been filed with the court, and:
      (1) The child continue[s] to be abused, neglected, or abandoned by the father. The failure of the father to substantially comply with the case plan for a period of 12 months after an adjudication of the children as dependent children or the children's placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the father's lack of financial resources or to the failure of the Department to make reasonable efforts to reunify the father and children, as defined in § 39.806(1)(e) [1.], Florida Statutes, or
      (2) The child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under § 39.522(2) Florida Statutes.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Derrick Dewon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2985
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See State v. Born-Suniaga , 219 So.3d 74 (Fla. 4th DCA 2017).

Gerber, C.J., Taylor and Conner, JJ., concur.


author: Gerber, C.J.

text:
    INLET MARINA OF PALM BEACH, LTD., Appellant, v. SEA DIVERSIFIED, INC., Anderson-Moore Construction Corp., and Ardaman & Associates, Inc., Appellees.
    No. 4D17-1406
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Raymond M. Masciarella II, North Palm Beach, and Tyson J. Waters, Jupiter, for appellant.
    Richard G. Rumrell and Lindsey C. Brock III of Rumrell, McLeod & Brock III, Jacksonville, for appellee Sea Diversified.
   Gerber, C.J.

The plaintiff marina sued the defendant engineer in alternative causes of action arising from the engineer's design of a concrete runway slab upon which forklifts transport boats from a boat barn to the water launch area. The slab developed cracks, spalling, and other deterioration over a period of time. The engineer filed a motion for summary judgment, arguing that the four-year statute of limitations barred the plaintiff's causes of action. The circuit court entered a final order granting the engineer's motion.

The marina appeals, arguing, among other things, that a genuine issue of material fact existed as to when it discovered or should have discovered the latent design defect in the runway slab with the exercise of due diligence, which should have precluded the court's application of the statute of limitations as a matter of law. See § 95.11(3)(c), Fla. Stat. (2013) ( "Actions ... shall be commenced ... [w]ithin four years [for] [a]n action founded on the design, planning, or construction of an improvement to real property, with the time running from ... the date of completion or termination of the contract between the professional engineer ... except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence .") (emphasis added).

Based on our review of the record, we agree with the marina on this argument only and reverse. See Performing Arts Ctr. Auth. v. Clark Constr. Grp., Inc. , 789 So.2d 392, 394 (Fla. 4th DCA 2001) ("[W]here there is an obvious manifestation of a defect, notice will be inferred at the time of manifestation regardless of whether the plaintiff has knowledge of the exact nature of the defect. However, ... where the manifestation is not obvious but could be due to causes other than an actionable defect, notice as a matter of law may not be inferred .") (emphasis added; citation omitted). As in Performing Arts , whether the facts and circumstances were sufficient to put the marina on notice that a cause of action existed before the four-year limitations period expired should be a question for the jury.

We conclude without further discussion that the other arguments which the marina raises in support of reversal (including its procedural, equitable tolling, and equitable estoppel arguments) lack merit.

Reversed and remanded.

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


author: Forst, J.

text:
    Obrian OAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4359
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Jason B. Blank of Haber Blank, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

After a series of burglaries, a high-speed chase, and a fatal car accident killing two bicyclists, Appellant Obrian Oakley was charged with two counts of first degree felony murder; two counts of vehicular homicide/failure to render aid; and five counts of burglary of a conveyance. Appellant was found guilty on all charges. On appeal, Appellant argues that the trial court abused its discretion by admitting certain photographic evidence. He also contends that it was error to sentence him on all four homicide counts when there were two, not four, deaths. As to Appellant's first point, we disagree and find no abuse of the trial court's discretion. We agree with Appellant's second point and write to address only this issue. Because we reverse the lesser vehicular homicide convictions, we need not address Appellant's remaining arguments challenging his vehicular homicide convictions.

Background

Appellant and his accomplice burglarized several unlocked vehicles within a neighborhood. Their scheme had the accomplice looking for unlocked cars and removing any valuables inside, while Appellant waited in a silver Infiniti, watching the accomplice go from car to car, occasionally returning with stolen items. A neighborhood resident pulled into his cul-de-sac and saw a silver Infiniti slowly pass by him. The resident saw the accomplice walk toward a parked car in the resident's driveway, enter it, and sort through the items within. The resident called the police, who arrived and arrested the accomplice.

During the arrest, the resident saw the silver Infiniti that he had earlier noticed drive away from the cul-de-sac and pointed out the car to the police officers. The police gave chase to the silver Infiniti being driven by Appellant. At the same time, four friends were riding their road bicycles, as they did every Sunday morning. As the high-speed chase entered an intersection, Appellant struck two of the bicyclists, killing them instantly. A K-9 officer responded to the crash to track Appellant, who was not found in the car, but was found nearby a few hours later and arrested.

Analysis

For the deaths of the two bicyclists, Appellant was charged and convicted of two counts of first-degree felony murder, as well as two counts of vehicular homicide/failure to render aid. Appellant argues on appeal that Florida law prevents two homicide convictions arising from one death and therefore, it was error to sentence him on all four homicide counts when there were two, not four, deaths. Because the issue requires only a legal determination based on undisputed facts, our standard of review is de novo. See Trotter v. State , 825 So.2d 362, 365 (Fla. 2002).

In Houser v. State , 474 So.2d 1193 (Fla. 1985), the Florida Supreme Court examined the certified question of whether a defendant may be sentenced for both DWI manslaughter and vehicular homicide for a single death. Id. at 1194. The Supreme Court answered in the negative, and found that even though they were Blockburger separate offenses, the legislature did not intend to punish a single homicide under two separate statutes. Id. at 1196-97. The Court held that "only one homicide conviction and sentence may be imposed for a single death." Id. at 1196.

Florida courts have consistently applied the Houser rule in cases involving more than one homicide conviction for a single death in the absence of legislative language to the contrary. See Goodman v. State , 229 So.3d 366, 382 (Fla. 4th DCA 2017) ("A conviction for DUI manslaughter and for vehicular homicide involving a single victim violates double jeopardy."); Wilkes v. State , 123 So.3d 632, 635 (Fla. 4th DCA 2013) (holding the Houser rule "also extends to convictions for attempted murder and attempted felony murder from the same attempted killing"); State v. Merriex , 42 So.3d 934, 936 (Fla. 2d DCA 2010) ("[The defendant's] conviction of third-degree felony murder bars a vehicular homicide conviction for the same death."); Rodriguez v. State , 875 So.2d 642, 645 (Fla. 2d DCA 2004) ("For the one death he caused, [the defendant] received sentences for both DUI manslaughter and third-degree murder. These two sentences for homicide counts cannot stand ...."); Collins v. State , 605 So.2d 568, 569 (Fla. 5th DCA 1992) ("Even though they are separate crimes, the courts have held that a person cannot be convicted of DUI/Manslaughter and vehicular homicide for the same death."); Jones v. State , 502 So.2d 1375, 1377 (Fla. 4th DCA 1987) (agreeing that the defendant "may not be convicted of both third degree murder and manslaughter for the same death").

The State cites to Valdes v. State , 3 So.3d 1067 (Fla. 2009), to argue that the two crimes at issue are substantially different and as such, the protections against double jeopardy are not violated. In Valdes , the defendant fired a gun multiple times and was charged with multiple counts for the firing of that weapon, none of which resulted in death. Id. at 1077. The Florida Supreme Court found that the Double Jeopardy Clause was not violated because the defendant's conviction for discharging a firearm from a vehicle within one thousand feet of a person and his conviction for shooting into an occupied vehicle were not varying degrees of the same crime, nor was one an aggravated form of the other, no matter that both crimes arose from the same factual situation. Id. Here, however, the convictions of murder and vehicular homicide are varying degrees of the same crime. Moreover, cases involving homicide are distinguishable from Valdes because the Legislature never intended to allow for multiple homicide convictions arising from one death. See Ivey v. State , 47 So.3d 908, 911 (Fla. 3d DCA 2010) (" Valdes did not overrule the well-settled principle that a single death cannot give rise to dual homicide convictions."); see also Jones , 502 So.2d at 1377 ("There is no need in this case to engage in an extensive discussion of double jeopardy and the applicability of the test in Blockburger ... because in Florida the legislature did not intend to punish the one death by multiple convictions under different statutes.").

In this case it is uncontested that the two victims were killed by Appellant's actions and that for each death, Appellant was convicted of one count of first degree felony murder and one count of vehicular homicide. The Houser rule-"only one homicide conviction and sentence may be imposed for a single death"-instructs that Appellant's dual homicide charges for a single victim was in error.

Conclusion

To correct the error, courts reverse the lesser offense conviction and affirm the greater. See Pizzo v. State , 945 So.2d 1203, 1206 (Fla. 2006) (citing State v. Barton , 523 So.2d 152, 153 (Fla. 1988) ). We therefore reverse Appellant's convictions and sentences for both vehicular homicide/failure to render aid charges and affirm each first degree felony murder conviction and sentence, per the Houser rule.

Affirmed in part, Reversed in part.

Taylor and Klingensmith, JJ., concur.

      Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test is codified in section 775.021, Florida Statutes (2012), to determine whether separate offenses exist.


text:
    Gregory CHERY, Appellant, v. Zoraida SOTO, Appellee.
    No. 4D17-2031
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Gregory Chery, Sunrise, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank , 377 So. 2d 1150 (Fla. 1979).

Gerber, C.J., Taylor and Conner, JJ., concur.


text:
    Raymond PLATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-148
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his convictions and sentences for one count of grand theft and one count of uttering a forged instrument. On all of the arguments which the defendant raises in appeal of his convictions, we affirm his convictions without further discussion.

However, on the defendant's argument that the trial court erred by failing to renew the offer of counsel or conducting another Faretta hearing before sentencing, we agree. As we recently stated in Birlkey v. State , 220 So.3d 431 (Fla. 4th DCA 2017) :

As sentencing is a critical stage of a criminal proceeding ... a trial court must renew the offer of counsel even if the defendant has previously waived counsel. Prior to sentencing, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.
....
Sentencing is a critical and often complicated part of the criminal process involving subtleties that may be beyond the appreciation of the average layperson. A defendant who is unfamiliar with the post-conviction process may inadvertently waive a meritorious argument that he or she might otherwise have raised on appeal. Given these intricacies, it is particularly important that a sentencing court be certain that a defendant understands the perilous path he or she traverses by proceeding to sentencing without the benefit of counsel.

Id. at 435-36 (internal citations and punctuation omitted).

Based on the foregoing, we vacate the defendant's sentences on both counts and remand for a new sentencing hearing, at which the trial court shall renew the offer of counsel or conduct another Faretta hearing if the defendant again seeks to represent himself during sentencing. Our holding moots the defendant's other arguments attacking his sentence, though the defendant may raise those arguments to the trial court should those arguments become relevant during the sentencing hearing.

Convictions affirmed; sentences reversed; remanded for resentencing.

Taylor and Conner, JJ., concur.

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


text:
    Patricia SALMON, Appellant, v. FORECLOSED ASSETS SALES AND TRANSFER PARTNERSHIP FOR the LSF6 MRA REO TRUST, Appellee.
    No. 4D17-1758
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.
    Matthew R. Feluren and Anthony R. Smith of Sirote & Permutt, P.C., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed . See Nationstar Mortg. LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017).

Gerber, C.J., Taylor and Conner, JJ., concur.


text:
    Seth S. BRIER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR BCAP LLC TRUST 2007-AA2, Agri Sales USA, Inc., Atlas Peat & Soil, Inc., Cemex, Inc., Hamblin Village Homeowners Association, Inc., Olympia Master Association, Inc., Palm Beach Newspapers, Inc., and Wood Mulch Products, Inc. Appellees.
    No. 4D17-2934
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Henry B. Handler and David K. Friedman of Weiss, Handler & Cornwell, P.A., Boca Raton, for appellant.
    Sara F. Holladay-Tobias, Emily Y. Rottmann, and C.H. Houston III of McGuireWoods LLP, Jacksonville, for Deutsche Bank National Trust Company, as Trustee for BCAP LLC Trust 2007-AA2.
    ON CONFESSION OF ERROR
   Per Curiam.

Appellee Deutsche Bank filed a complaint to foreclose on a mortgage. Appellant responded with an answer and eleven affirmative defenses, two of which were later stricken. The bank moved for summary judgment, addressing appellant's remaining affirmative defenses only by generally claiming they lacked factual and legal support and were not pled with specificity. The trial court granted the bank's motion. The bank has confessed error, stipulating that final summary judgment should be reversed. See Seale v. Regions Bank , 121 So.3d 649, 650 (Fla. 4th DCA 2013) ("[I]n mortgage foreclosure cases, summary judgment is precluded if affirmative defenses are not factually refuted or shown to be legally insufficient."). As such, we reverse and remand with instructions for the trial court to vacate the final judgment of foreclosure.

Reversed and remanded with instructions .

Gerber, C.J., Warner and Levine, JJ., concur.


text:
    Catherine DIAZ, Appellant, v. Jonathan VASQUEZ, Appellee.
    No. 4D17-2969
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Kimberly H. Schultz of Kimberly H. Schultz, P.A., Miami, for appellant.
    Jonathan Vasquez, Broward, pro se.
   Per Curiam.

Catherine Diaz (the wife) appeals from an order denying her motion for change of venue from Broward County, the husband's present county of residence where he filed his petition for dissolution of marriage, to Miami-Dade County, where the wife and the marital child currently reside. We reverse.

"The law is well settled in Florida that a cause of action for dissolution of marriage arises in the Florida county in which both parties last resided with a common intent to remain married." Rakusin v. Rakusin , 569 So.2d 893, 895 (Fla. 4th DCA 1990). Here, the parties last resided as husband and wife in the city of Hialeah, in Miami-Dade County. No basis for venue in Broward County has been shown. Accordingly, we reverse this cause and remand with instructions that venue be transferred to Miami-Dade County, Florida.

Reversed.

Gross, Conner and Kuntz, JJ., concur.


text:
    Phillips PIERRE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-3103
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2018]
    Phillips Pierre, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke Napodano, Assistant Attorney General, West Palm Beach, for petitioner.
   Per Curiam.

The defendant petitions for a writ of habeas corpus, alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d). According to the defendant, a manifest injustice has occurred because his appellate counsel failed to raise an argument which his co-defendant's appellate counsel successfully argued on appeal. We agree with the defendant and therefore grant the petition, vacate the defendant's convictions and sentences, and remand for a new trial.

The defendant and the co-defendant were convicted of first degree murder and attempted first degree murder following a joint trial. We affirmed the defendant's convictions on direct appeal. Pierre v. State , 156 So.3d 1101 (Fla. 4th DCA 2015) (unpublished table opinion).

However, we reversed the co-defendant's convictions because the prosecutor's closing argument improperly shifted the burden of proof and invited the jury to convict the defendants for failing to call a certain witness. See Reid v. State , 222 So.3d 575, 577-79 (Fla. 4th DCA 2017).

Based on the co-defendant's successful appeal, the defendant now contends that he is entitled to habeas relief because his appellate counsel did not raise the argument that the prosecutor improperly shifted the burden of proof and invited the jury to convict the defendants for failing to call a certain witness.

We agree with the defendant's argument. As we recently stated in Johnson v. State , 226 So.3d 908 (Fla. 4th DCA 2017) :

This Court has inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results. Relief may be granted even on a successive petition or claim where failing to do so would result in manifest injustice.
Disparate treatment of similarly situated co-defendants can result in manifest injustice, warranting habeas relief. To give relief to one co-defendant but deny another co-defendant the same relief under virtually identical circumstances is a manifest injustice that does not promote-in fact, it corrodes-uniformity in the decisions of this court.

Id. at 910-11 (internal citations and quotation marks omitted).

Accordingly, we grant the petition, vacate the defendant's convictions and sentences, and remand for a new trial.

Petition granted; convictions and sentences vacated; remanded for new trial.

Gerber, C.J., Forst and Klingensmith, JJ., concur.


text:
    TESORO PROPERTY OWNER'S ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. TESORO COMMONS, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D17-3006
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Albert B. Moore, Fort Pierce, for appellant.
    Owen Schultz of McCarthy, Summers, Bobko, Wood, Norman, Bass & Melby, P.A., Stuart, for appellee.
   Per Curiam.

Tesoro Property Owner's Association, Inc. appeals an order granting a temporary injunction in favor of Tesoro Commons, LLC ("the property owner"). Because the trial court failed to make sufficient factual findings to support the injunction, we reverse.

Florida Rule of Civil Procedure 1.610(c) mandates that "[e]very injunction shall specify the reasons for entry." This Court has held that strict compliance with rule 1.610(c) is required. Eldon v. Perrin , 78 So.3d 737, 738 (Fla. 4th DCA 2012). Before granting a temporary injunction, the trial court must make clear, definite, and unequivocally sufficient factual findings showing that (1) the movant will suffer irreparable harm unless the injunction is entered; (2) there is no adequate remedy at law; (3) there is a substantial likelihood that the movant will succeed on the merits; and (4) entry of a temporary injunction will serve the public interest. Am. Learning Sys., Inc. v. Gomes , 199 So.3d 1076, 1082 (Fla. 4th DCA 2016) ; Concerned Citizens for Judicial Fairness, Inc. v. Yacucci , 162 So.3d 68, 72 (Fla. 4th DCA 2014) ; Eldon , 78 So.3d at 738. Failure to make specific findings as to each of these four elements is reversible error. Wade v. Brown , 928 So.2d 1260, 1262 (Fla. 4th DCA 2006).

Here, the property owner concedes that neither the oral ruling nor the written order contains sufficient findings to support entry of a temporary injunction. The trial court failed to make any findings that the property owner will suffer irreparable harm unless an injunction is entered, that the property owner does not have an adequate remedy at law, or that the entry of an injunction will serve the public interest.

Accordingly, we reverse the temporary injunction and remand for further proceedings.

Reversed and remanded.

Gerber, C.J., Ciklin and Levine, JJ., concur.


text:
    LIBERTY INTERNATIONAL UNDERWRITERS, Appellant, v. FRISKY LADY VENTURES, LLC and Dempsey Marine Electronics and Electrical, A Foreign Corporation, Appellees.
    No. 4D17-3839
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Jerry D. Hamilton, Michael J. Dono and Karina M. Cerda Collazo of Hamilton, Miller & Birthisel, LLP, Miami, for appellant.
    Stuart Sobel and John I. Criste, Jr. of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., Coral Gables, for appellee, Frisky Lady Ventures, LLC.
   Per Curiam.

Liberty International Underwriters appeals a non-final order denying a motion to compel arbitration. Appellee, Frisky Lady Ventures, LLC, concedes error.

Accordingly, we reverse the order denying the motion to compel arbitration and remand for the trial court to submit the action against Liberty International Underwriters to arbitration.

Reversed and remanded .

Gross, Forst and Kuntz, JJ., concur.


author: Ciklin, J.

text:
    Jimmie Ernest GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1182
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Jimmie Ernest Glover was convicted of numerous offenses after a jury trial. At issue in this appeal are his two convictions for kidnapping. Glover argues that his actions did not constitute kidnapping because the movement of his victims was slight and inconsequential and did not assist the commission of another crime. We disagree and affirm.

One night, a group of five young men and two young women met at a neighborhood park. On their way into the park, the two women passed Glover, who was walking in the opposite direction. They headed to a table in the back of the park and met up with the rest of the group. Later, as the victims were about to leave the park, Glover approached them, produced what appeared to be a handgun, and announced that they were "all gonna die tonight." Glover ordered all of the victims on the ground and took personal items from three of the victims, including a cell phone and a wallet.

Afterward, Glover-wielding the gun-ordered the two women to get up from the ground and completely disrobe. The women started to comply and Glover then "brought [them to] these trees and separated [them]." One of the women disrobed completely. Glover then placed a gun to the back of her head and proceeded to rape her. He began to move her toward a picnic table. While this was happening, the five men remained face down on the ground and could make out some of what was happening, although their view was partially obstructed by "a fairly big tree."

Glover continued to threaten all of the victims that they were going to die. Meanwhile, the second woman, who had only partially disrobed, shouted, "Run," and the group scattered and fled. The woman who had been raped also fled, leaving her clothing behind. Glover proceeded to chase down the second woman but she was able to escape after Glover removed her pants.

After a jury trial, Glover was convicted of numerous offenses, including attempted robbery, robbery, attempted sexual battery, sexual battery, aggravated battery, and kidnapping. On appeal, Glover challenges only the kidnapping convictions. He contends the state failed to prove that his movement of the women was any more than slight, inconsequential, and merely incidental to the sexual battery and attempted sexual battery, and that the trial court should have granted his motion for judgment of acquittal. We disagree.

We review the trial court's denial of Glover's motion for a judgment of acquittal de novo. See Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). "Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence." Id. "If, after viewing the evidence in the light most favorable to the State , a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id. (emphasis added).

Section 787.01(1)(a)2., Florida Statutes (2014), defines kidnapping as "forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to .... [c]ommit or facilitate commission of any felony." The Florida Supreme Court "has recognized that the statute's literal interpretation would result in a kidnapping conviction for any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery." Delgado v. State , 71 So.3d 54, 59-60 (Fla. 2011) (citation and internal quotation marks omitted). Therefore, in Faison v. State , 426 So.2d 963, 965-66 (Fla. 1983), the Florida Supreme Court, "adopted a three-part test" "in an effort to limit the scope of that particular subsection so as 'to prevent any crime that involves some level of confinement or detention from also constituting a kidnapping[.]' " Delgado , 71 So.3d at 60 (quoting Lynch v. State , 2 So.3d 47, 62 (Fla. 2008) ).

The supreme court has since elaborated on the Faison test:

Faison provided the framework for analyzing the facts of a case to determine whether a defendant's conduct amounts to a confinement crime under section 787.01(1)(a)2. distinct from other criminal charges involving forcible felonies. Pursuant to Faison ,
[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Id. (alteration in original) (quoting Faison , 426 So.2d at 965 ).

The facts and reasoning of Faison , 426 So.2d 963, provide guidance. There, the defendant entered an office where a female employee was working alone and violently dragged her from her desk in front of a large window to the rear of the office where he sexually assaulted her. Id. at 964. He then fled to a residential area and broke into a woman's home, violently dragged her from the kitchen down a hallway into the bedroom, and sexually assaulted her after beating her to a state of near unconsciousness. Id. The district court affirmed the kidnapping convictions, finding as follows:

(a) The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.
(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any asportation whatever.
(c) Both abductions were from an area where the rape could have been more easily observed through a window-in the first victim's office, and the second one's kitchen-to the "relative seclusion" of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door-again, in the office and in the kitchen-through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection.... The fact that relatively short distances were involved makes no difference.

Id. at 966 (emphasis in original) (quoting Faison v. State , 399 So.2d 19, 21-22 (Fla. 3d DCA 1981) ).

The Florida Supreme Court found that the district court reached the correct result, with the exception of a footnote in the district court opinion not relevant here. Id.

Although Glover did not use great force to move the women to the area behind a "fairly large tree," he deliberately directed the women to disrobe completely before ordering them to move behind the tree which Glover was attempting to hide behind while committing the sexual battery. These actions, taken together, were not inconsequential nor were they inherent in the act of sexual battery, and taken in the light most favorable to the state they establish that Glover intended to make it easier to commit sexual batteries and to reduce the danger of detection. See Carter v. State , 762 So.2d 1024, 1027 (Fla. 3d DCA 2000) (affirming kidnapping conviction where defendant entered a gym where victim was alone in the public exercise area, robbed her at gunpoint, and directed her through a doorway into a nearby hallway before committing sexual battery); Bush v. State , 526 So.2d 992, 993-94 (Fla. 4th DCA 1988) (affirming kidnapping conviction where defendant dragged victim from side of well-traveled road to the woods); Lamarca v. State , 515 So.2d 309, 310-11 (Fla. 3d DCA 1987) (affirming kidnapping conviction where defendant "pulled out a medium sized kitchen knife, pointed it at [the victim] and forced her into the last stall in the restroom" before attempting to commit sexual battery).

Affirmed.

Warner and Klingensmith, JJ., concur.


author: SALTER, J.

text:
    Jason ICE, Appellant, v. The COSMOPOLITAN RESIDENCES ON SOUTH BEACH, A CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D15-2787
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    The Stabenow Law Firm, and Tony Stabenow, for appellant.
    Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, and Elizabeth A. Bowen and Diane J. Zelmer, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   SALTER, J.

Jason Ice appeals the dismissal with prejudice of his second amended complaint ("Complaint") against defendant and appellee, The Cosmopolitan Residences on South Beach, a Condominium Association, Inc. ("Association"). In light of certain specific allegations within the Complaint and the standard of review applicable to dismissals with prejudice, we reverse the final order of dismissal with prejudice (including the denial of Mr. Ice's motion for reconsideration), but only insofar as the dismissal pertained to Count II, conversion.

Mr. Ice obtained title to a condominium unit in 2010 at a foreclosure sale resulting from the Association's foreclosure of a lien for unpaid assessments against the prior owner. Following the foreclosure sale, the Association issued a written approval for Mr. Ice's purchase of the unit. When he took title, however, the unit was still subject to a pending mortgage foreclosure action commenced against the prior owner. Mr. Ice alleges in the Complaint that he was unaware of that pending mortgage foreclosure action against his newly-acquired condominium unit, but that allegation is not relevant to the issues before us.

In early 2012, the mortgage lender obtained a final judgment of foreclosure against Mr. Ice's condominium unit. In March of that year, the lender obtained a certificate of title to the unit. Although Mr. Ice had received information in March that the lender's foreclosure was in process, he alleges that he was surprised, at about 9:00 p.m. on April 10, 2012, to find a final notice and writ of possession on the door of his condominium unit advising him that he had 24 hours to vacate. Mr. Ice removed some of his possessions from the unit the following day, but he alleges that he could not find an apartment and arrange the logistics for moving his furniture and remaining possessions from the unit during that single day.

The Complaint alleges that, on April 12, 2012, deputy sheriffs removed all of Mr. Ice's remaining property from the unit. Mr. Ice further alleges that the Association's property manager expressly instructed the deputies to place all such property in the condominium building's parking garage, and that the property manager also "placed yellow/black barricade tape around [Mr. Ice's] property, ostensibly to serve as a caution and purported deterrent for thieves."

Mr. Ice alleges that later that same day, he discovered that the Association had intentionally deactivated his access card to the condominium premises, such that he could not remove his property. A security guard at the condominium, Mr. Ice alleges, told him that the Association property manager told the deputies not to put the property out on the street, and to "put everything in the garage so that it would be safe until the owner of the property could be contacted." According to the Complaint, the security guard told Mr. Ice that the management office instructed Mr. Ice to contact them when they opened the following day to make arrangements to get his remaining property. Mr. Ice asserts that he was not allowed to have access to, or remove, any of his property in the condominium garage.

When Mr. Ice called the next morning, he alleges, the Association property manager asked if she could have his couch and some other items. He told her that she could not, and that he was going to rent a truck to come by in the afternoon to retrieve his property. In the early afternoon, however, Mr. Ice alleges that the Association's manager called him and told him that he could not have access to his remaining property, that it had already been disposed of, and that he could not return to the condominium complex (on pain of being removed as a trespasser).

Finally, Mr. Ice alleges that "a few days later" the Association's security guard contacted Mr. Ice and asked if he could have the property in Mr. Ice's storage unit at the condominium. The security guard said that if Mr. Ice granted permission, the condominium manager would allow the security guard to have them. Mr. Ice alleges that he communicated then that he wanted all his property back. Thereafter, having recovered none of his property that had been deposited in the condominium parking garage, and none of the property in his storage unit, Mr. Ice filed his lawsuit.

The Association filed motions to dismiss directed to his original complaint and a first amended complaint, and those motions were granted. Mr. Ice then filed the Complaint, the Association moved to dismiss it with prejudice, the motion was granted, and Mr. Ice's motion for rehearing was denied. This appeal followed.

Analysis

We review the dismissal order de novo, we accept the allegations in the complaint as true, and we view those allegations in the light most favorable to Mr. Ice. Charles v. Florida Foreclosure Placement Ctr., 988 So.2d 1157, 1158-59 (Fla. 3d DCA 2008). We construe all reasonable inferences from the allegations in favor of Mr. Ice. United Auto Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010).

The dismissal with prejudice of Count I of the Complaint, a claim for breach of duty as a bailee, must be affirmed. The allegations do not establish that the Association obtained independent, temporary, exclusive possession of the property from Mr. Ice (as opposed to the sheriff's deputies). See S & W Air Vac Sys., Inc. v. Dep't of Revenue, 697 So.2d 1313 (Fla. 5th DCA 1997). Indeed, the deputies' delivery of the property to the parking garage was, according to the Complaint, accomplished over the objection of Mr. Ice and against his wishes. The Complaint alleges that Mr. Ice tried (unsuccessfully) to stop the execution of the writ of possession because he believed the Bank had arranged for him to have a longer period within which to vacate the premises.

Count II, however, presents a legally sufficient cause of action for conversion. Conversion "constitutes the exercise of wrongful dominion and control over the property to the detriment of the rights of the actual owner." Envases Venezolanos, S.A. v. Collazo, 559 So.2d 651, 652 (Fla. 3d DCA 1990) ; John Hall Elec. Contracting, Inc. v. Allstate Const., Inc., 917 So.2d 310, 311 (Fla. 1st DCA 2005). The Complaint's allegations impute the Association's agents' (property manager's and security guard's) statements and conduct to the Association, including statements and actions exercising intentional control over Mr. Ice's property coupled with a stated intention to possess some or all of that property.

Once the property was deposited in the parking garage, the Association (and its agents) had no legal right to require Mr. Ice to give them certain items of property as a quid quo pro for access to recover the balance. The sufficiency of the allegations is even clearer with respect to Mr. Ice's property allegedly stored by him in a storage unit within the condominium premises. The allegations are quite clear that Mr. Ice did not abandon his remaining property, but instead made numerous and repeated demands and efforts to recover that property.

In this respect, the present case is readily distinguishable from the case relied upon by the Association, McCready v. Booth, 398 So.2d 1000 (Fla. 5th DCA 1981). In that case, Mr. McCready sued his landlord for negligence after his eviction from an apartment. A deputy sheriff "removed all of McCready's furniture and possessions from his apartment and placed them at the edge of the street. Various passersby then proceeded to steal the possessions." Id. at 1001. McCready's lawsuit claimed, among other things, that the landlord was "negligent in failing to take care of McCready's possessions that the deputy sheriff moved outside at the time of the eviction." Id. The Fifth District held that, absent intentional or malicious damage by the landlord to McCready's property, the landlord had no duty to protect the property because McCready had been "lawfully evicted pursuant to statutory procedure." Id.

Mr. Ice's allegations go well beyond the facts of McCready, including acts of intervention, control, and refusal to permit recovery of the property, by the Association and its agents.

Finally, the Association's reliance on section 83.62(2), Florida Statutes (2012), is also unavailing. First, the statute is part of the Residential Landlord and Tenant Act applicable to "the rental of a dwelling unit." According to the Complaint, Mr. Ice was an owner of his unit, not a tenant, until his loss of title to the foreclosing mortgage lender. Second, section 83.62(2) exculpates the sheriff, landlord, and landlord's agent from liability "for the loss, destruction, or damage to the property after it has been removed." The evicted tenant's property is to be removed "to or near the property line." That provision does not address the liability of a condominium association or its agents following their direction to the sheriff to store property within the condominium premises.

This is not to suggest that Mr. Ice's conversion claim will or will not survive summary judgment, or that he will prevail in the event of a trial. See Greene v. Times Publ'g Co., 130 So.3d 724, 730 n.11 (Fla. 3d DCA 2014). Under the applicable standard of review at this procedural point, however, and looking no further than the four corners of the Complaint and its attachments, we conclude that Mr. Ice's Complaint alleges a legally sufficient cause of action for conversion of his property.

Affirmed as to Count I; reversed as to Count II; and remanded for further proceedings.

      Mr. Ice's second amended complaint also named Bank of America, N.A., as a defendant, but during the pendency of this appeal the Bank and Mr. Ice filed a stipulation for dismissal with prejudice of the Bank as a party.

      Count I alleged a claim for bailment as against the Association. Counts III and IV pertained exclusively to the Bank which (see n. 1 above) is no longer a party to this appeal.

      §§ 83.40, 83.41, Fla. Stat. (2012).


author: PER CURIAM.

text:
    Richard HANCHETT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4541
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017 Rehearing Denied December 29, 2017
    Richard Hanchett, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


author: COHEN, C.J.

text:
    William J. VICKERS, Appellant, v. Annie D. THOMAS, Appellee.
    Case No. 5D15-3610
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017 Rehearing Denied January 17, 2018 Rehearing and Rehearing En Banc Denied January 31, 2018
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellant.
    Jeffrey M. Byrd and Heather A. Trombly, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
   COHEN, C.J.

William Vickers appeals a final judgment entered against him following a jury verdict in favor of Annie Thomas. Vickers and Thomas were involved in an automobile accident. Thomas sued Vickers, claiming bodily injuries as a result of the accident. Vickers admitted responsibility but disputed that the accident was the cause of Thomas's permanent injuries. The jury awarded Thomas compensatory damages, including future medical expenses and future loss of earning capacity. On appeal, Vickers argues that the trial court abused its discretion in certain evidentiary rulings, in denying his motions for remittitur, and in denying his motion for new trial based on Thomas's counsel's improper closing argument. We affirm in part, reverse in part, and remand for a new trial or remittitur on the issue of damages for future loss of earning capacity.

"Florida law restricts recovery of future medical expenses to those expenses reasonably certain to be incurred." Volusia Cty. v. Joynt, 179 So.3d 448, 452 (Fla. 5th DCA 2015) (citing Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953) ). At trial, Thomas presented evidence of her need for and the costs of continued palliative care, cervical surgery, and lumbar surgery. The jury awarded her $353,100 for future medical expenses. Vickers argues that the jury's award for these damages was speculative in nature because it was not "reasonably certain" that Thomas would obtain cervical and lumbar surgery.

Thomas's pain management doctor, Dr. Dunson, testified that Thomas's reasonably certain costs for continued palliative care would be between $525,000 and $850,000. Thomas's orthopedic surgeon, Dr. Masson testified that, while Thomas's condition was stable, cervical surgery was appropriate to increase her functional capacity and quality of life. He also testified that if cervical surgery was successful, there might not be a need for a follow-up lumbar surgery. However, he explained that if Thomas's disability and quality of life issues persisted despite the cervical surgery and conservative care, lumbar surgery would be the next reasonable step. Dr. Masson testified that cervical surgery would cost $90,000 to $120,000, and that lumbar surgery would cost $60,000 to $90,000. While courts cannot allow juries to award amounts of damages beyond what is reasonably supported by the evidence presented, see, e.g., Festival Fun Parks, LLC v. Bellamy, 123 So.3d 684, 685-86 (Fla. 4th DCA 2013), the evidence presented in this case regarding the reasonably certain need for and costs of Thomas's palliative care alone was sufficient to support the jury's award of future medical expenses. See Metrolimo, Inc. v. Lamm, 666 So.2d 552 (Fla. 3d DCA 1995) (upholding future medical expenses award because the amount awarded was "within the range testified to by the plaintiff's witnesses").

However, we find the evidence of Thomas's future loss of earning capacity insufficient. To establish a claim for loss of future earning capacity, a plaintiff must introduce "reasonably certain evidence that the capacity to labor has been diminished." Rasinski v. McCoy, 227 So.3d 201, 204 (Fla. 5th DCA 2017) (quoting Hubbs v. McDonald, 517 So.2d 68, 69 (Fla. 1st DCA 1987) ). Here, the evidence presented revolved around Thomas's fear of losing her job rather than any diminished capacity to continue her employment; such fear is speculative and cannot serve as a proper basis for these damages. See Joynt, 179 So.3d at 451. Therefore, we reverse the jury award for future loss of earning capacity and remand for the trial court either to enter a remittitur under section 768.043(2), Florida Statutes, or to grant a new trial solely on the issue of damages for loss of earning capacity. See Rasinski, 227 So.3d at 203 (citing Truelove v. Blount, 954 So.2d 1284, 1289-90 (Fla. 2d DCA 2007) ).

Lastly, we feel compelled, as we have in the past, to comment upon the closing arguments made by Thomas's counsel, Jeffrey Byrd. Leading up to the trial, Thomas had sought recovery for cervical, lumbar, and shoulder injuries allegedly arising from the automobile accident. Four days before the trial, she withdrew her claim for the shoulder injury and successfully obtained a ruling in limine to prevent discussion of the withdrawn claim. During the defense's case, Vickers presented the testimony of Dr. Hurbanis, an orthopedic surgeon specializing in shoulder surgery, who conducted a compulsory medical examination on Thomas. During closing arguments, Thomas's counsel made several comments related to Dr. Hurbanis's qualifications to testify about cervical and lumbar injuries as a shoulder specialist.

While it was appropriate to question Dr. Hurbanis's qualifications to address Thomas's injuries, the closing argument by Thomas's counsel improperly attacked Vickers's counsel's decision to hire Dr. Hurbanis as an expert in the case, based on his specialization in shoulder injuries. This occurred despite the successful motion in limine on the withdrawn shoulder injury claim. The attack on Vickers's counsel for electing to hire Dr. Hurbanis was disingenuous and improper. See Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 1205, 1208 (Fla. 5th DCA 2008) (noting that arguments that attack opposing counsel are not appropriate and will not be condoned). The trial court sustained Vickers's objection, but it denied his request for a curative instruction. Although the trial court incorrectly declined to give the curative instruction, an improper closing argument will not result in a new trial unless the statements are highly prejudicial, inflammatory, and improper. See Riggins v. Mariner Boat Works, Inc., 545 So.2d 430, 433 (Fla. 2d DCA 1989) (citing Decks, Inc. v. Nunez, 299 So.2d 165 (Fla. 2d DCA 1974) ). Under the circumstances of this case, we find that the improper comments were not so highly prejudicial and inflammatory as to deny Vickers a fair trial. The trial court's failure to give the curative instruction was harmless on the facts of this case. See § 59.041, Fla. Stat. (2011) ; Bakery Assocs., Ltd. v. Rigaud, 906 So.2d 366, 367 (Fla. 3d DCA 2005).

We note that this trial occurred before our opinion in Rasinski issued. Thomas's counsel's closing arguments have gathered the attention of this Court and if they continue, should gather the attention of trial courts as well. We caution that the use of such improper comments, and the effect on a litigant's right to a fair trial, will lead to a new trial in the appropriate case. See City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011) ; Johnnides v. Amoco Oil Co., 778 So.2d 443 (Fla. 3d DCA 2001).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

EISNAUGLE, J., and EGAN, R., Associate Judge, concur.

      Thomas had previously been involved in an automobile accident after which she sought treatment for neck and back injuries.

      While certain evidentiary rulings were erroneous, such as allowing cross-examination of a medical expert with text the expert did not recognize as authoritative, the errors were harmless. See § 59.041, Fla. Stat. (2011) ; see also Herbello v. Perez, 754 So.2d 840, 840 (Fla. 3d DCA 2000) (finding that erroneous evidentiary rulings did not affect outcome of trial; therefore, errors were harmless).

      See, e.g., Rasinski, 227 So.3d at 202 n.1.

      On appeal, Vickers cites to eighteen comments Thomas's counsel made during closing arguments warranting reversal for a new trial. The majority of the comments were unobjected-to, unpreserved for appeal, and failed to rise to the level of fundamental error. See Murphy v. Int'l Robotic Sys., 766 So.2d 1010 (Fla. 2000). Of the seven comments preserved for appeal, our ruling on the loss of future earning capacity cures three of those comments. Additionally, Vickers's position that Thomas characterized the defense as a "grand scheme" is not supported by the record.


text:
    Glen W. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1868
    District Court of Appeal of Florida, Fourth District.
    January 10, 2018
    Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his conviction and sentence for aggravated assault with a firearm. We affirm the defendant's conviction on all arguments raised, without further discussion.

As to the defendant's sentence, he concedes that he was properly sentenced to twenty years in prison pursuant to section 775.087, Florida Statutes, more commonly known as the "10-20-Life" statute. See 775.087(2)(a)2., Fla. Stat. (2011) ("Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q. [which includes aggravated assault in sub-subparagraph (a)1.f.], regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a 'firearm' or 'destructive device' as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.").

However, the defendant argues that the trial court erred in reclassifying the charge of aggravated assault with a firearm from a third degree felony to a second degree felony based upon the use of a firearm. In support, the defendant relies upon our holding in Strobridge v. State , 889 So.2d 982 (Fla. 4th DCA 2004) : "Aggravated assault is punishable as a third degree felony. This offense may not be reclassified as a second degree felony based on the use of a firearm because the use of a firearm is an essential element of the crime." Id. at 982 (internal citations omitted).

We agree with the defendant's reliance on Strobridge as to the reclassification error. Based on the foregoing, although we affirm the defendant's conviction and twenty-year sentence, we remand with instructions for the trial court to correct the judgment and scoresheet to reflect the conviction for aggravated assault as a third degree felony. See Broome v. State , 774 So.2d 719, 720 (Fla. 2d DCA 2000) (remanding for correction of the defendant's judgment and scoresheet where those documents "improperly reclassified his conviction for aggravated assault with a firearm from a third degree felony to a second degree felony based on the use of a firearm, which is an element of his offense.").

Conviction and sentence affirmed; remanded for correction of judgment and scoresheet.

LEVINE, J., and SINGHAL, RAAG, Associate Judge, concur.


author: Levine, J.

text:
    Alexis J. CARTAGENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2200
    District Court of Appeal of Florida, Fourth District.
    January 10, 2018
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

This case presents two issues for our review. First, we are asked to determine whether evidence of acts committed by appellant shortly after the charged crime is considered inextricably intertwined with the offense so as to be admissible at trial. Second, we must decide whether the trial court properly applied a sentencing multiplier based on facts not submitted to the jury. As to the first issue, we affirm. As to the second, we reverse and remand for resentencing.

Appellant was charged with and found guilty of battery by strangulation. The battery occurred during a domestic dispute between appellant and his daughter. During an argument with appellant, the daughter attempted to retreat to her bedroom with her infant child. Appellant followed the daughter, pushing her onto her bed. At this point, the daughter's grandmother took the infant child, leaving appellant and his daughter alone in the room. The fight continued, with appellant eventually holding his daughter by the throat for about thirty seconds. Once appellant released the daughter, she left the house.

After calling the police, the daughter returned to her room, where she found several of her belongings broken on the floor. At trial, the state introduced the daughter's deposition testimony that appellant broke "everything" in her room-apparently in anger, according to the state-after the battery by strangulation occurred. Over appellant's objection that the testimony constituted collateral matter evidence, the trial court admitted the testimony as evidence of an inextricably intertwined act.

We review rulings on the admissibility of evidence for abuse of discretion. Gaines v. State , 155 So.3d 1264, 1271 (Fla. 4th DCA 2015). Evidence is admissible as inextricably intertwined if it is necessary to adequately describe the charged crime, provide an intelligent account of the charged crime, establish the context out of which the charged crime arose, or adequately describe events leading up to the charged crime. Ward v. State , 59 So.3d 1220, 1222 (Fla. 4th DCA 2011).

Here, the daughter's testimony regarding appellant's destruction of her belongings tended to show appellant's state of mind immediately following the battery. Because it was necessary to describe and contextualize the crime, the testimony was admissible. See id.

However, the trial court's improper use of a sentencing multiplier mandates reversal and resentencing. Appellant's initial guidelines score qualified him for a non-prison sentence. The trial court then applied a 1.5 multiplier for "domestic violence in the presence of a related child," increasing the mandatory minimum sentence to preclude any non-prison sanction. The court sentenced appellant to thirty-six months in prison.

As a threshold matter, we note that appellant preserved the sentencing error by filing a motion to correct sentencing. See Allen v. State , 172 So.3d 523, 524-25 (Fla. 4th DCA 2015) ("[I]t is well-settled that a defendant may raise unpreserved sentencing errors under a rule 3.800(b)(2) motion."). Whether a trial court properly assessed points on a sentencing scoresheet is subject to de novo review. Blair v. State , 201 So.3d 800, 802 (Fla. 4th DCA 2016).

In order to afford a criminal defendant due process, "any fact that increases the mandatory minimum [sentence]," with the exception of a prior conviction, "is an 'element' that must be submitted to the jury." Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). Failure to submit such an element to the jury is harmless, however, "if the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact required to impose the mandatory minimum term." Britten v. State , 181 So.3d 1215, 1218 (Fla. 1st DCA 2015).

Here, the court applied a sentencing multiplier for domestic violence in the presence of a related child. However, the jury was never presented with an interrogatory regarding the child's presence, nor did its verdict reflect any finding that the battery by strangulation was committed while the child was in the room. Because the child's presence was an "element" that increased the mandatory minimum sentence and was not submitted to the jury, the trial court committed an Alleyne error. Alleyne , 133 S.Ct. at 2155. As the testimony at trial suggested that the daughter's son may or may not have been present during the battery by strangulation, we cannot say that that the jury would have found the child present at the time of the battery beyond a reasonable doubt, so the error is not harmless. See Britten , 181 So.3d at 1218.

Because the court applied a domestic violence multiplier without the jury having found that a related child was present during the battery, reversal is required. See Mathew v. State , 837 So.2d 1167, 1171 (Fla. 4th DCA 2003). Consistent with the requirements of Alleyne and our opinion in Mathew , we reverse and remand for the trial court to resentence appellant without the multiplier for domestic violence in the presence of a related child.

Affirmed in part, reversed in part, and remanded for resentencing.

Gerber, C.J., and Ciklin J., concur.


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    DFG GROUP, LLC, Edward Falcone, and Arthur Falcone, Appellants, v. HERITAGE MANOR OF MEMORIAL PARK, INC., Memorial Park of Boca Raton, Inc., Sandra Strong, as the Personal Representative of the Estate of Kathleen I. Michael, Elishka E. Michael Tarnawa Revocable Trust Under Agreement Dated August 9, 2002, Laila Taylor, Trustee, and Laila Taylor, as Personal Representative of the Estate of Elishka E. Michael Tarnawa, Appellees.
    No. 4D16-2972
    District Court of Appeal of Florida, Fourth District.
    January 24, 2018
    William J. Cornwell, Seth A. Kolton, and David K. Friedman of Weiss, Handler & Cornwell, P.A., Boca Raton, for appellants.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach; Michael A. Avenatti and Scott H. Sims of Eagan Avenatti, LLP, Newport Beach, California; and Edward M. Ricci of Edward M. Ricci, P.A., West Palm Beach, for appellees.
   Levine, J.

The buyers appeal, and the sellers cross-appeal, a final judgment awarding the sellers attorney's fees incurred during the sale of a cemetery as well as punitive damages. The issue presented for our review is whether the sellers, after choosing affirmation over rescission of a disputed contract, can be awarded attorney's fees as damages. We find that once the sellers chose affirmation of the contract, the sellers could not be awarded attorney's fees as damages. As such, we reverse. We affirm the sellers' cross-appeal without discussion, finding it to be without merit.

The sellers retained a law firm and its attorneys ("attorney defendants") to represent them in matters relating to the sale of a cemetery. The buyers purchased the cemetery for $6,125,000. Unbeknownst to the sellers at the time, an attorney at the law firm worked both sides of the transaction and received a kickback of $100,000 from the buyers after the sale closed.

Upon learning what transpired, the sellers filed a complaint against the attorney defendants as well as the buyers. The sellers alleged that the attorney defendants' actions resulted in the sale of the cemetery for less than fair market value. The attorney defendants settled. As to the buyers, the operative complaint alleged counts for intentional misrepresentation and willful non-disclosure, breach of contract, conspiracy to breach fiduciary duty, aiding and abetting breach of fiduciary duty, and civil theft. The sellers also asserted a claim for punitive damages against buyers DFG Group and Edward Falcone.

After trial, the jury entered a verdict against the buyers on all counts. As to damages, the jury found that the sellers sustained $0 in "damages relating to the sale of the business and land." The jury further found that the sellers incurred $2,000,000 in "damages relating to attorneys' fees and costs incurred in connection with the transaction." As to punitive damages, the jury awarded $2,110,000 against DFG Group and $100,000 against Edward Falcone.

The buyers moved for judgment notwithstanding the verdict, arguing that attorney's fees were not a proper element of damages. The trial court granted the motion as to breach of contract and civil theft. However, the court denied the motion as to the remaining claims relating to fraud and breach of fiduciary duty, thereby leaving the damage award intact. The trial court applied a setoff for the amount paid by the attorney defendants who settled and entered a final judgment in favor of the sellers for $900,000.

Whether the trial court applied the correct measure of damages is a question of law reviewed de novo. Del Monte Fresh Produce Co. v. Net Results, Inc. , 77 So.3d 667, 673 (Fla. 3d DCA 2011). "[W]here a judgment is predicated on a verdict award that is contrary to the law and not permissible by law, the judgment based thereon constitutes fundamental error." Palm Beach Cty. v. Awadallah , 538 So.2d 142, 143 (Fla. 4th DCA 1989) ; see also Stevens v. Allegro Leasing, Inc. , 562 So.2d 380, 381 (Fla. 4th DCA 1990) (recognizing that fundamental error occurs where a party recovers damages to which it has no right under the law).

The goal of damages in tort actions is to "restore the injured party to the position it would have been in had the wrong not been committed." Totale, Inc. v. Smith , 877 So.2d 813, 815 (Fla. 4th DCA 2004) (citation omitted). Damages in a tort claim depend on whether the plaintiff rescinds rescission or affirms the contract. Sundie v. Lindsay , 166 So.2d 152, 153 (Fla. 3d DCA 1964). If the plaintiff rescinds the contract, the plaintiff is entitled to the expenses of preparing for performance, including attorney's fees, to return him to the position he was in at the time of the execution of the agreement. Id. If, however, the plaintiff affirms the contract, "he will be entitled to be compensated for the loss of profits he would have earned if the agreement had been performed, but not the cost of preparing to perform." Id.

In the instant case, once the sellers picked affirmance over rescission, their damages were limited to the difference between the sale price and the fair market value at the time of the sale. Because the jury found no difference between the sale price and the fair market value at the time of the sale, the sellers, having received the benefit of the agreed-upon bargain, were not entitled to any additional compensation. Only if the sellers had elected rescission would they have been entitled to their transactional attorney's fees. The sellers could not retain the proceeds from the sale and also recover attorney's fees associated with the transaction. Therefore, reversal of the transactional attorney's fee award is warranted.

The trial court also awarded a total of $2,210,000 in punitive damages. Because we reverse the transactional attorney's fees award, there is no compensatory damage award to support the punitive damage award. In the absence of any compensatory damage award, the punitive damages award must also be reversed. James Crystal Licenses, LLC v. Infinity Radio Inc. , 43 So.3d 68, 75-76 (Fla. 4th DCA 2010) ; Morgan Stanley & Co. v. Coleman Holdings, Inc. , 955 So.2d 1124, 1132 (Fla. 4th DCA 2007).

In sum, we affirm the cross-appeal, and we reverse and remand for the trial court to vacate the judgment for attorney's fees and punitive damages.

Affirmed in part, reversed in part, and remanded.

Kuntz, J., concurs.

Forst, J., concurs specially with opinion.

Forst, J., concurring specially.

The jury in this case determined that the defendant buyers, DFG Group, LLC, Arthur Falcone, and/or Edward Falcone "intentionally misrepresent[ed], conceal [ed] or fail[ed] to disclose a material fact to Plaintiffs, which was a legal cause of damage to Plaintiffs"; "knowingly provide[d] substantial assistance or encourage[d] either Michael Masanoff or Michael Karsch to commit a breach of their fiduciary duty to Plaintiffs, which was a legal cause of damage to Plaintiffs"; and that the same three defendants "conspire[d] with Michael Masanoff to have Michael Masanoff commit a breach of his fiduciary duty to Plaintiffs, which was a legal cause of damage to Plaintiffs." The jury further determined that punitive damages were warranted against DFG and Edward Falcone "in connection with Plaintiffs' claim for conspiracy to breach fiduciary duty."

Clearly, the jury found that the buyers intentionally acted in a manner that "damaged" the sellers. However, they were not able to adequately pinpoint the damage, as their verdict awarded "$0" in damages with respect to the selling price of the property and, as set forth in our opinion, the award of attorney's fees and costs incurred "in connection with the transaction" was not supported due to the sellers choosing to pursue damages while affirming the contract. I am unable to discern a viable alternative basis on which the jury grounded its award of compensatory damages, such as premising them on what the buyers would have paid in a non-tainted transaction. Thus, notwithstanding the jury's determination that the buyers acted fraudulently and aided and abetted the sellers' attorneys' breach of their fiduciary duty, in light of our reversal of the compensatory damages premised on attorney's fees and costs, there are no grounds on which to base an award of compensatory damages.

There is a mechanism to address the misbehavior of Masanoff and the other attorneys who were, arguably, the central players in this fraudulent transaction. That is via the appropriate Bar disciplinary process. Moreover, the lawyers settled the monetary legal claims filed against them by the sellers. To punish the other tortfeasors involved in this case, the sellers contend that the award of punitive damages should be retained. However, per this Court's precedent, particularly Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc. , 955 So.2d 1124 (Fla. 4th DCA 2007), as actual damage is an essential element to both fraud and breach of fiduciary duty, punitive damages cannot be awarded absent a basis for an award of compensatory damages. Id. at 1132 ; see also James Crystal Licenses, LLC v. Infinity Radio Inc. , 43 So.3d 68, 76 (Fla. 4th DCA 2010) ; Lawnwood Med. Ctr., Inc. v. Sadow , 43 So.3d 710, 728-29 (Fla. 4th DCA 2010). In Morgan Stanley , we distinguished Ault v. Lohr , 538 So.2d 454 (Fla. 1989), and minimalized the import of the Supreme Court's opinion in Engle v. Liggett Group, Inc. , 945 So.2d 1246 (Fla. 2006), determining that neither opinion supports an award of punitive damages where there is no compensatory damages award. Morgan Stanley , 955 So.2d at 1132-33.

As in James Crystal Licenses , "[b]ecause we reverse the compensatory damage claim, the punitive damages must also fall." 43 So.3d at 76. Thus, although the buyers' misconduct was reprehensible, in the absence of compensatory damages, this Court lacks a mechanism to punish the miscreant defendants. Accordingly, I am compelled to concur with the majority opinion.

      Just as the Bar disciplinary process was utilized to punish the deceptive attorneys in this case, perhaps there is a non-judicial mechanism, outside of our purview, to similarly punish the attorneys' partners-in-deception, the buyers.


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    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Brenda HARMON, Appellee.
    Case No. 5D16-2948, 5D17-209
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 26, 2018
    Rhonda B. Boggess, and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    Leslie H. Morton, Robert L. McLeod, II, and Seth B. Dempsey, of The Mcleod Firm, St. Augustine, for Appellee.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company appeals the final judgment and the trial court's order denying its motion for new trial and remittitur. We affirm as to all issues except for the trial court's failure either to grant the remittitur or to order a limited new trial because there was insufficient evidence to sustain the jury's verdict awarding future medical expenses in the amount of $100,000. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

Brenda Harmon sued State Farm, her insurer, seeking underinsured motorist benefits following her collision with an underinsured driver. While the negligence of the adverse driver was admitted, State Farm contested injury causation and related damages. The jury awarded Ms. Harmon $685,800, which included $158,000 for past medical expenses and $100,000 for future medical expenses.

State Farm challenges rulings made during trial regarding whether the scope of one expert's testimony was properly disclosed prior to trial, whether a treating physician could testify regarding why he referred Ms. Harmon to a neurosurgeon, and whether comments Ms. Harmon's counsel made during closing argument were unfairly prejudicial. The standard of review is abuse of discretion for each of these issues. See Binger v. King Pest Control , 401 So.2d 1310, 1313-14 (Fla. 1981) (explaining the standard of review for expert witness disclosure); City of Orlando v. Pineiro , 66 So.3d 1064, 1068 (Fla. 5th DCA 2011) (explaining the standard of review for improper closing argument); Crowe v. Lowe , 942 So.2d 903, 905 (Fla. 4th DCA 2006) (explaining the standard of review for admissibility of evidence). Under the specific facts of this case, we find no abuse of discretion as to any of those issues, and we affirm without further discussion.

However, we find that the trial court erred by denying State Farm's motion for new trial or for remittitur regarding the jury's award of $100,000 for future medical expenses. Ms. Harmon presented the testimony of her treating physician, Dr. Collier, to lay a foundation for an award of future medical expenses. Dr. Collier testified that Ms. Harmon would need certain care in the future, such as routine follow-up visits with her doctors on a schedule approximating the one she followed post-accident. Dr. Collier agreed with Ms. Harmon's counsel that his prior billing could reflect the cost of those probable future visits. Additionally, Dr. Collier testified that Ms. Harmon may need different modalities of treatment in the future that might include trigger point injections, which might possibly be of benefit along with other treatments that might be indicated in the future. Again, Dr. Collier agreed with Ms. Harmon's counsel that a review of his past medical bills, totaling $35,947, could define the costs of those possible treatments that may occur in the future.

Because "Florida law restricts recovery of future medical expenses to those expenses 'reasonably certain' to be incurred," there was no evidentiary basis for those potential future medical expenses. Volusia Cty. v. Joynt , 179 So.3d 448, 452 (Fla. 5th DCA 2015). "Testimony or evidence that certain treatments might possibly be obtained in the future cannot merit an award of future medical expenses." Gen. Emps. Ins. Co. v. Isaacs , 206 So.3d 62, 63 (Fla. 4th DCA 2016). The trial court also erred in allowing the award for future care, other than routine follow-up visits, because Dr. Collier offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of that potential additional future medical care. "[T]here must be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses." Volusia Cty. , 179 So.3d at 452. Without any testimony regarding the frequency or specific type of treatments beyond routine follow-up visits, the jury had no basis for reaching the dollar amount that it did. See DeAlmeida v. Graham , 524 So.2d 666, 668 (Fla. 4th DCA 1987), review denied , Reid v. Graham , 519 So.2d 988 (Fla. 1987) (holding that past medical expenses alone do not provide a reasonable basis for jury to draw inferences from to compute the cost of future medical care).

While there was evidence that Ms. Harmon would probably need future care, specifically routine follow-up office visits, we find that there was no competent substantial evidence to support an award of $100,000 for future medical expenses. Accordingly, we reverse that portion of the final judgment and remand for the trial court either to grant State Farm's motion for remittitur or to conduct a new trial limited to a determination of future medical expenses.

We reverse the cost judgment entered below based upon the specific stipulation of the parties that the cost judgment should be reversed unless the judgment was affirmed in its entirety. Accordingly, the trial court may entertain argument and evidence, if necessary, to reconsider the judgment taxing costs.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS. COST JUDGMENT REVERSED.

SAWAYA, ORFINGER, and EDWARDS, JJ., concur.