source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor GUZMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-776
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

Victor Guzman appeals his convictions for attempted felony murder, lewd and lascivious battery on a person 12 to 16 years old, and aggravated battery with great bodily harm. In this appeal, we need only address the defendant’s argument that the convictions are barred by the statute of limitations in effect at the time the offenses were committed. Finding this argument to have merit, we reverse and remand with instructions to vacate the convictions.

In reaching this result, we are following a prior decision of this Court holding that a defendant may raise the statute of limitations for the first time on direct appeal (as the defendant has done here), as a matter of fundamental error, such that it need not have been pleaded as an affirmative defense in the trial court. Key v. State, 990 So.2d 529 (Fla. 3d DCA 2008). In a decision in another case issued today, however, the continued viability of the holding in Key is called into question and our Court certifies to the Supreme Court of Florida a question of great public importance:

Must a defendant, who claims that the offense as charged in the information is barred by the statute of limitations, raise the issue in the trial court in order to preserve the issue for direct appeal?

Smith v. State, Case No. 3D14-1635, 211 So.3d 176, 181-82, at 23, 2016 WL 7403663 at *10 (Fla. 3d DCA Dec. 21, 2016).

With that caveat (the concurrence in Smith concludes, after a detailed analysis of precedent and policy, that the certified question should be answered in the affirmative), we address the statute of limitations issue in the present appeal.

Facts

On April 15, 2001, the victim, a twelve-year-old, reported to the police that she had been raped that day. She reported that she had approached the perpetrator and asked him to buy her a slice of pizza because she was hungry. As they were walking, the perpetrator pushed her into an alley and began to choke her. The victim passed out. She awoke with the perpetrator on top of her. She reported that he had raped her and that she had scratches and bruises on her neck. However, the victim could not show the detective who met with her at the Rape Treatment Center where the crime had occurred, and could not identify the perpetrator from photographs.

After the incident, the victim moved to Texas. Three years later, in 2004, she identified the defendant as the perpetrator from a photo lineup. On April 22, 2004, the state filed the information charging Victor Guzman with attempted first degree murder (Count 1), lewd and lascivious battery on a 12 to 16 year old (Count 2), and sexual battery (Count 3).

Six years later, nine years after the crime, on May 4, 2010, the state filed an amended information. This document charged the defendant with attempted felony murder (Count 1), lewd and lascivious battery on a 12 to 16 year old (Count 2), and aggravated battery with great bodily harm (Count 3). Despite the time lapses between the crime and the filing of the information and amended information, defense counsel did not raise an affirmative defense based on the statute of limitations.

The defendant was found guilty as charged and sentenced to thirty years on the attempted felony murder count and fifteen years each as to the lewd and lascivious and aggravated battery counts, with all sentences to run concurrently. The trial court suspended entry of sentence as to the aggravated battery count. This appeal ensued.

Application of Statute of Limitations

On appeal, the defendant argues that the statute of limitations bars the convictions, as the 2010 amended information was filed beyond the date that statute ran. This argument has merit since, by May 4, 2010, the limitations period on all three charged offenses had run.

“[T]he statute of limitations that applies in a criminal case is the one that was in effect at the time of the incidents giving rise to the charges.” Torgerson v. State, 964 So.2d 178, 179 (Fla. 4th DCA 2007) (quoting State v. Shamy, 759 So.2d 728, 730 n.2 (Fla. 4th DCA 2000)); accord Rubin v. State, 390 So.2d 322, 324 (Fla. 1980). Based on the date of the offense in this case, April 15, 2001, section 775.15(5)(b), Florida Statutes (2001) (enacted in Ch. 2000-246, § 3, Laws of Fla., effective Oct. 1, 2000, to Sept. 30, 2001), is the applicable statute of limitations. Each count in the original and amended information will be discussed separately. The following chart illustrates the sequence of charges; the notations are explained in the analysis that follows.

Count 2—leivd and lascivious battery

The statute of limitations analysis applicable to Count 2 of both informations is the most straightforward since this count was carried over unchanged from the initial information to the amended information. The initial information charging this count was filed beyond the limitations period.

Count 2 charged the defendant with lewd and lascivious battery on a person 12 to 16 years old, a second degree felony. Under the three-year limitations period for commencing a second degree felony prosecution, § 775.15(2)(b), Fla. Stat. (2001), Count 2 in the April 22, 2004, information was filed eight days after the April 14, 2004, expiration of the statute of limitations. Even though Count 2 in the 2010 information is a continuation of the 2004 charge, for statute of limitations purposes, the charge was time-barred as of the 2004 information.

Count 1—“Attempted First Degree Murder" Redesignated “Attempted Felony Murder"

As a threshold matter, the crime apparently charged in Count 1 of the 2004 information, attempted first degree felony murder, was not a crime. Nine years earlier, in 1995, the Florida Supreme Court had declared the offense of attempted felony murder non-existent. State v. Gray, 654 So.2d 552 (Fla. 1995). Because the 2004 information charged a non-existing offense, the continuation principle cannot be applied to avoid a statute of limitations bar to the Count 1 charge in the amended information.

It follows that the 2010 amended information Count 1 charged a wholly new crime, attempted felony murder, a first degree felony, which was subject to a four-year statute of limitations. § 775.15(2)(a), Fla. Stat. (2001). Since the May 4, 2010, charge was filed well beyond that four-year limitations period, prosecution on this Count was also barred.

A “subsequently filed information, which contains language indicating that it is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore will not be barred by the statute of limitations.” Rubin, 390 So.2d at 324. However, where the state has “brought a new charge, alleging a new and distinct crime with different elements, under a completely different statute,” the statute of limitations requires dismissal of the new charge. Labrador v. State, 13 So.3d 1070, 1072 (Fla. 3d DCA 2007). Since the initial information did not charge a crime, the 2010 Count 1 was not a continuation of anything and must be considered a new charge. A substantial change in the charge contained in an amended information will require dismissal. Johnston v. State, 283 So.2d 120, 121 (Fla. 1st DCA 1973).

It is true that the “state may amend the charging document to correct the error after the applicable statutory period has elapsed.” M.F. v. State, 583 So.2d 1383, 1386 (Fla. 1991). However, such an amendment may not actually change the substantive charge and may not prejudice the rights of the defendant. M. Where a more serious, amended charge alleges an act not originally charged, then the amended charge must independently satisfy the statute of limitations. Bongiorno v. State, 523 So.2d 644, 645 (Fla. 2d DCA 1988).

Had the crimes in the original and amended information been identical, there would have been a continuation of the charge, and no limitations bar. Rubin, 390 So.2d at 324. However, where there is “nothing in the last information to link it with the first,” the state is deemed to have abandoned the original information, see Fridovich v. State, 562 So.2d 328, 330 (Fla. 1990), and the amended information will be subject to the statute of limitations bar. The initial information did not charge an offense in Count 1. The amended information Count 1 contains allegations different from the initial information Count 1, constituting a new charge. Rubin, 390 So.2d at 324. The new charge filed beyond the statute of limitations was barred.

Count 3—Aggravated Battery with Great Bodily Harm

Count 3 in the initial 2004 information charged sexual battery under section 794.011(3), based on the rape; no choking was alleged in this count. Count 3 in the 2010 amended information dropped the sexual battery charge and charged the defendant with aggravated battery causing great bodily harm based on the defendant’s act of choking the victim, a second degree felony, under section 784.045(l)(a)l. The 2010 Count 3 was a wholly new charge, not in the 2004 information. The 2010 prosecution for the aggravated battery with great bodily harm under section 784.045(l)(a)l., a second degree felony, was barred by the three-year statute of limitations. § 775.15(2)(b) (2001).

As with Count 2, the continuation principle does not save this count. Had the aggravated battery with great bodily harm, a second degree felony, been charged in 2004, it would still have been barred by the three-year statute of limitations, which ran on April 14, 2004. The 2010 information was filed nine years after the offense, and six years after the statute of limitations expired. This conviction must also be vacated as time-barred.

As the foregoing analysis demonstrates, the defendant’s convictions must be vacated, as violating the statute of limitations for the offenses charged.

Reversed; remanded for the vacation of the convictions and sentences in the underlying circuit court case.

      . The opinion in Smith describes the intra-district conflict regarding defendant’s right to raise the statute of limitations for the first time on direct appeal.

      . For this chart: * "2°F” refers to “second degree felony;” "1°F PBL” refers to “first degree felony punishable by life;” ** “SOL” refers to “statute of limitations.”

      . As noted at the outset of this opinion, the statute of limitations error was not raised at or before trial. But because the error is apparent on the face of the record, and unless the Supreme Court of Florida modifies this holding as proposed in today’s concurring opinion in Smith v. State, the error may be raised for the first time on appeal as fundamental error. Key v. State, 990 So.2d 529, 530 (Fla. 3d DCA 2008); see also Mead v. State, 101 So.2d 373 (Fla. 1958); Bridenthal v. State, 453 So.2d 437 (Fla. 2d DCA 1984); Maguire v. State, 453 So.2d 438, 438 (Fla. 2d DCA 1984). This defendant did not knowingly and personally divest himself of this right. Tucker v. State, 459 So.2d 306, 309 (Fla. 1984). In appropriate circumstances, and this would be one of them, we have also considered "this issue as being one of the rare instances in which ineffective assistance of trial counsel appears on the face of the record.” Harper v. State, 43 So.3d 174, 175 (Fla. 3d DCA 2010) ("In this case we are unable to perceive, and the State has not suggested, any legitimate tactical reason for trial counsel to fail to raise the defense of the statute of limitations.”).

      .The 2004 information includes a caption as to Count 1, "MURDER 1st DEGREE/ATTEMPT 782.04(1) & 777.04(1) FI,” omitting reference to the attempted felony murder statute, section 782.051, Fla. Stat. (2004). However, the narrative on the following page of the information specifies that Count 1 is based on an alleged felonious attempt to kill a human being while engaged in the perpetration, or attempted perpetration, of a felony enumerated in section 782.04(1).

      . The defendant is not entitled to be discharged, as he is currently incarcerated following conviction in a different case.


author: VILLANTI, Chief Judge.

text:
    Kathleen LIEBRECHT, Appellant, v. Thomas LIEBRECHT, Appellee.
    Case No. 2D15-2489
    District Court of Appeal of Florida, Second District.
    Opinion filed December 30, 2016.
    Woodrow M. Melvin, Jr., of Woodrow “Mac” Melvin, Jr., P.A., Miami, for Appellant.
    Lorena L. Kiely, Tampa, for Appellee.
   VILLANTI, Chief Judge.

We affirm the trial court’s order on the supplemental petition for modification of final judgment of dissolution filed by Kathleen Liebrecht (the Wife) and on the coun-terpetition filed by Thomas Liebrecht (the Husband); however, we agree with the Wife that the trial court’s factual finding that she engaged in “alienation tactics” concerning the parties’ children is not supported by any evidence in the record. Therefore, on remand, the trial court shall strike that factual finding from the order. In all other respects, the order is affirmed.

Affirmed, but remanded with instructions.

KHOUZAM and BADALAMENTI, JJ., Concur.


author:
May, J.
      Artau, Edward L., Associate Judge,

text:
    Tammy BOSWELL, an individual, Jerry Hernandez, an individual, Rebekah Brague, an individual, and Marilyn Pryor, an individual, Appellants, v. SHIRLEY’S PERSONAL CARE SERVICES OF OKEECHOBEE, INC., a Florida corporation, Appellee.
    No. 4D15-4463
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017
    Colin M. Cameron of Colin M. Cameron, P.A., Okeechobee, for appellants.
    J. Garry Rooney of Rooney & Rooney, P.A., Vero Beach, for appellee.
   May, J.

A remand for allocation of an attorney’s fees award brings this case back to us for a second time. In our prior decision, we affirmed the defendants’ entitlement to attorney’s fees, limited to defense of the plaintiffs injunctive relief claims. On remand, the trial court awarded no attorney’s fees to the defendants. The defendants now appeal. We find merit in their argument that the court exceeded the scope of our mandate upon remand. We therefore reverse.

This litigation arose from a dispute over a non-compete agreement. The plaintiff sought injunctive relief and damages against the individual defendants and damages against the corporate defendant for tortious interference with the contract. The plaintiff ultimately voluntarily dismissed the case, and the defendants (both corporate and individual) requested attorney’s fees.

The individual defendants based their attorney’s fees motion upon the contract’s fee provision and section 57.105(7), Florida Statutes (2013). They also requested fees based on section 542.22, Florida Statutes (2013). The corporate defendant sought fees based only on section 542.22, Florida Statutes (2013).

The parties agreed to the reasonable hourly rate and the reasonable number of hours expended, but the plaintiff disputed entitlement. At the fee hearing, the defendants admitted their failure to plead a request for attorney’s fees in their answer, but argued their pretrial statement put the plaintiff on notice of their fee request. The trial court found the defendants were entitled to fees as prevailing parties under the contract and section 57.105 and awarded $28,366.85 in attorney’s fees.

The plaintiff appealed and argued that none of the parties were entitled to fees because they failed to request fees in their answer. We held that by including a request for fees in their pretrial statement, the defendants sufficiently provided notice to the plaintiff. But, we limited their entitlement to fees to the defense of the plaintiffs claim for injunctive relief. We then remanded the case “for the trial court to conduct an additional hearing as to the amount of fees to be awarded in this matter ... limited to work related to the injunction counts of the complaint.” Shirley’s Pers. Care Servs. of Okeechobee, Inc. v. Boswell, 165 So.3d 824, 829 (Fla. 4th DCA 2015).

On remand, defense counsel provided a “breakdown on time,” listing work related to motions and discovery, and percentages of time attributed to the injunctive relief counts. An expert witness affidavit was also provided attesting to the reasonableness of the hours and hourly rate.

Defense counsel testified that he did not keep records sufficient to separate the work performed on the injunctive relief count. He explained that he broke down the type of work performed into categories: (a) generic information related to both counts; (b) work specific to the in-junctive relief count; and (c) work related to the breach of contract count. He testified that 6.55% of the work was directly related to the breach of contract count and 93.45% of the total time expended was related to the injunctive relief claim. Multiplying 96.104 hours to the stipulated reasonable hourly rate of $250, the defendants requested $24,026 in fees.

Plaintiffs counsel argued that the amount of fees should be less than $3,000 based on his expert witness’s testimony. The trial court denied the motion for attorney’s fees based on a lack of evidence of reasonable hours expended. The defendants now appeal.

The defendants argue the trial court exceeded the scope of our mandate by denying fees entirely when the remand was limited to allocating the fees related to the injunctive relief counts. The reasonableness of the hourly rate and amount of hours expended had been stipulated to before the first appeal. They argue that they made a sufficient showing to allocate fees for the injunctive relief counts by testimony, documents, and affidavits. The plaintiff responds that the defendants failed to prove the reasonable hours worked for the injunctive relief count.

“It is the party seeking attorney’s fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney’s fees.” Van Diepen v. Brown, 55 So.3d 612 (Fla. 5th DCA 2011). “[W]here the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought.” Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169, 172 (Fla. 4th DCA 2002).

Here, defense counsel reviewed his time sheets and assigned a percentage of each entry to the injunctive relief claim. And, while the time sheets did not differentiate between the claims when the time sheets were created, counsel testified to how he allocated the time recorded. Counsel provided an expert witness affidavit, attesting to the reasonableness of the time expended. In short, defense counsel sufficiently proved which of the billed hours were allocated to the injunctive relief claim.

Because the parties had stipulated to the reasonableness of the hourly rate and the hours expended prior to the first appeal, there was no need for defense counsel to start all over again. See, e.g., Tucker v. Tucker, 513 So.2d 733, 734 (Fla. 2d DCA 1987) (parties can agree to aspects of a fee award obviating otherwise required proof). All that was required by our prior decision was an allocation of the time expended for the injunctive relief claim, the one claim for which fees were authorized. Failing to address the plaintiffs stipulation that $28,366.85 was a reasonable fee at the first hearing, even the plaintiffs expert testified to “around $3,000” as a reasonable fee. Yet, the trial court awarded none.

The dissent suggests that we are in conflict with Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 340-41 (Fla. 4th DCA 2014) (May, J.). We disagree. In Effective Teleservices, the claims “arose along a timeline, but included claims that arose at different times, against different parties, sought different damages, were based on different legal theories, and provided for attorneys’ fees for only some of the claims.” Id. Here, the claims occurred during the same time frame and against the same parties. The attorney seeking fees apportioned his time by providing percentages attributable to the injunctive relief claim for each entry, and the opposing side had previously stipulated to the reasonableness of the hours expended and the hourly rate. These are facts far different from those in Effective Teleservices. And, the plaintiffs expert did not attempt to contradict or reapportion what part of the originally agreed upon fee was attributable to defense of the injunctive relief claim.

We reverse and remand the case for entry of a fee award in the amount of $24,026, which accounts for 93.45% of the total fees incurred in defending the two count complaint that was ultimately voluntarily dismissed.

Reversed and remanded.

Warner, J., concurs.

Artau, Edward L., Associate Judge, dissents with opinion.

Artau, Edward L., Associate Judge,

dissenting.

I dissent from the majority opinion in that it is in conflict with this court’s precedent and disturbs the sound discretion of the trial court.

In Effective Teleservices, Inc. v. Smith, this court followed the Fifth District’s rule on attorney fee awards involving multiple claims, some of which do not entitle the prevailing party to an award of legal fees. 132 So.3d 335, 341 (Fla. 4th DCA 2014) (citing Van Diepen v. Brown, 55 So.3d 612, 614 (Fla. 5th DCA 2011)). The Fifth District’s rule in Van Diepen holds that a party seeking attorney’s fees on multiple claims has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney’s fees. 55 So.3d at 614 (“If the moving party cannot meet his burden for any reason, including inadequate, confusing or imprecise timesheets or record keeping, he or she should not be awarded attorney’s fees for those vague or incomprehensible charges.”). This is a sound rule when awarding attorney fees involving multiple claims, some of which are based on statutory or contractual claims for fees, and some of which are not. Otherwise, attorney fees would be authorized by judicial fiat on claims upon which no statute or contract ever authorized an award of fees.

This court previously found that the Appellants were legally entitled to attorney’s fees on only one count (the injunctive relief count). The trial court found that the Appellants did not meet their required burden of demonstrating the reasonable hours expended on the injunctive relief count. Instead, the Appellants simply estimated that 93.45% of the total attorney effort for all the counts of the operative complaint were dedicated to the injunctive relief count. The Appellants failed to present evidence of the specific hours actually expended on the injunctive relief count. Appellants’ attorney testified that “it’s functionally impossible to isolate how much time was specifically” spent on each count of the multiple-count complaint. As a result, Appellants failed to meet the required burden of demonstrating reasonable hours expended on the injunctive relief count as required by the Van Diepen rule. Id.) see also Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985) (determination of amount of attorney’s fees requires specific findings as to reasonableness of the hours actually expended). Thus, the trial court did not abuse its discretion in denying an amount of attorney’s fees for the injunctive relief count. It is well established that a trial court’s determination of attorney’s fees “will not be disturbed on appeal, absent a showing of clear abuse of discretion.” DiStefano Constr., Inc. v. Fidelity and Deposit Co. of Md., 597 So.2d 248, 250 (Fla. 1992). I would therefore affirm.


author: Per Curiam.

text:
    Jeremy Lee COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4101
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges his conviction for unlicensed carrying of a concealed weapon, arguing that the statute prohibiting the unlicensed carrying of a concealed firearm is unconstitutional as violating the Second Amendment of the United States Constitution. As he did not raise this challenge in the trial court, he is limited to a facial challenge to the statute. In a scholarly and historical review of the Second Amendment’s application to concealed carry prohibitions, the Ninth Circuit in Peruta v. County of San Diego, 824 F.3d 919, 942 (9th Cir. 2016), held that the Second Amendment does not protect the carrying of concealed firearms by members of the general public. We agree with the court’s analysis and conclude, therefore, that section 790.01(2), Florida Statutes (2014), which prohibits the unlicensed carrying of a concealed firearm, is facially constitutional.

Affirmed.

Warner And Gross, JJ., Concur.

Forst, J., Concurs in Result Only.


text:
    Frank COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-63
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017
    Daniel P. Hyndman, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We find no reversible error in this first-degree murder case and affirm Appellant’s conviction and sentence. The limited purpose of this opinion is to briefly address one of the issues raised in Appellant’s initial brief, which was not preserved below.

In a recorded interview with law enforcement, Appellant was asked about pri- or offenses. He made a statement admitting that he was on probation for breaking and entering and implied that he violated his probation on that charge.

Prior to trial, Appellant moved in limine to suppress, among other things, “reference to the fact that Defendant was on juvenile probation at the time of his arrest and had open warrants for violation of probation ....” At a hearing on the motion, the State Attorney said “I agree[]” when the issue of juvenile probation was raised. The trial judge said “She agrees.” The discussion then turned to a separate issue raised in the motion in limine. Importantly, the trial court never made a ruling on whether evidence relating to Appellant’s probation should be excluded; as noted above, the judge simply said “[The State] agrees.” At trial, when the recording of Appellant making statements about his probation was introduced, his counsel made no contemporaneous objection.

“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” § 90.104(l)(b), Fla. Stat. (2014). Both this Court and the Florida Supreme Court have emphasized the need for a definitive ruling in order to avoid the standard contemporaneous objection requirement. See McGirth v. State, 48 So.3d 777, 790-91 (Fla. 2010); Philip Morris USA, Inc. v. Tullo, 121 So.3d 595, 601 (Fla. 4th DCA 2013). We do so again in this case.

The trial court’s statement recognizing the State’s agreement to the exclusion of the evidence was not a “definitive ruling” such that no contemporaneous objection would be required to preserve this issue for appeal. Instead, it appears to be at most a recognition of a stipulation by the parties.

We therefore have limited ability to review the merits of Appellant’s claim that this evidence should not have been admitted because this claim of error was not preserved. Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court”). Appellant did not argue to this Court that the error here was fundamental. Even if this point had not been waived by this failure, we would hold that the error does not rise to the level of fundamental error because, among other factors, the State’s only reference to Appellant’s juvenile record was the fleeting mention during the playing of the recording. See Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010) (describing the fundamental error standard).

Because of the dictates of Section 90.104(l)(b), it is important to secure a “definitive ruling on the record” with regard to each and every piece of evidence sought to be excluded or admitted. In the absence of such a ruling, and without a contemporaneous objection at the time the evidence is admitted, this Court is without the ability to consider the merits.

Affirmed.

Warner, Gross and Forst, JJ., concur.

      . We do not intend this opinion to signify a retreat from any holding allowing for blanket rulings on multiple pieces of evidence, to continuing objections and rulings, or to similar devices intended to facilitate a smooth trial. The problem in this case was not a lack of specificity in the ruling, but the lack of a definite ruling at all.


text:
    Fallon Rahima JALLALI, Appellant, v. KNIGHTSBRIDGE VILLAGE HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D15-2036
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017

      Cyrus A. Bischoff, Miami, for appellant.
    Michael J. Villarosa of Kaye Bender Rembaum, P.L., Pompano Beach, for ap-pellee.
   ON MOTION FOR REHEARING

Per Curiam.

We deny appellee’s motion for rehearing and rehearing en banc, but withdraw our prior opinion and substitute the following opinion in its place.

Fallon Rahima Jallali appeals a non-final order denying her motion to vacate the final judgment of foreclosure obtained by her property’s homeowners’ association, Knightsbridge Village Homeowners Association (“the Association”). Jallali asserted three reasons for reversal. We affirm as to all three, but write to distinguish U.S. Bank National Ass’n v. Quadomain Condominum Ass’n, 103 So.3d 977 (Fla. 4th DCA 2012).

We hold that the filing of a notice of lis pendens by a first mortgagee does not bar the foreclosure of an association’s subsequent lien for unpaid assessments against the owner, although that action is inferior to the foreclosure of the first mortgage, where the association’s subsequent lien was imposed under the association’s declaration of covenants recorded before the first mortgagee recorded its notice of lis pendens.

In 2007, the holder of the first mortgage on Jallali’s property (“the Lender”) filed a foreclosure action against Jallali and recorded it@ notice of lis pendens against the property. The Lender named the Association as a defendant. The Association’s Declaration of Covenants and Restrictions had been recorded in the public records prior to both the first mortgage and the notice of lis pendens.

In 2011, while the Lender’s action was still pending, the Association recorded a claim of lien for delinquent maintenance fees against the same property. In 2012, the Association sued Jallali to foreclose that lien and obtained á default final judgment, which this Court affirmed. See Jallali v. Knightsbridge Vill. Homeowners’ Ass’n, 185 So.3d 1251 (Fla. 4th DCA 2014). Subsequently, the Lender’s successor obtained a final judgment of foreclosure.

After the mortgage foreclosure concluded, Jallali filed a motion under Florida Rule of Civil Procedure 1.540(b)(4) to vacate the Association’s 2012 final judgment .of foreclosure. Jallali relied on Quadomain, 103 So.3d at 978-80, and section 48.23, Florida Statutes (2012). The trial court denied the motion and this appeal followed.

The question presented is whether the filing of the notice of lis pendens by the first mortgage holder constitutes a bar to the Association’s foreclosure action based upon a claim of lien for unpaid assessments filed after the notice of lis pendens. Because the Declaration of Covenants, which included provisions with respect to the Association’s right to lien and foreclose on the property, was a recorded “interest” at the time of the filing of lis pendens, we conclude that, even though the lien was inferior to the mortgage, section 48.23, Florida Statutes, constitutes no bar to the enforcement of the lien between the Association and Jallali.

A lis pendens serves two main purposes: (1) to give notice to and thereby protect any future purchasers or encumbrancers of the property; and (2) to protect the plaintiff from intervening liens. See Fischer v. Fischer, 873 So.2d 534, 536 (Fla. 4th DCA 2004).

One of several purposes underlying the doctrine of lis pendens is that, when a suit is filed that could affect title in property, some notice should be given to future purchasers or encumbrancers of that property. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925). This serves the purposes of protecting those purchasers or encumbrancers from becoming embroiled in the dispute, and of protecting the plaintiff from intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiffs unrecorded equitable lien. In sum, unlike a typical injunction, a lis pendens exists as much to warn third parties as to protect the plaintiff; and the procedural requirements associated with lis pendens should advance both of these important purposes.

Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993) (footnote omitted).

Jallali relies on Quadomain as standing for the proposition that the association’s foreclosure against her is barred because the association did not comply with section 48.23, Florida Statutes. In Quadomain, the bank holding a first mortgage on a condominium unit filed a foreclosure action, recorded a notice of lis pendens, and ultimately obtained a final judgment. 103 So.3d at 978. Because ownership of the unit had changed before the final judgment, the bank obtained leave to supplement its complaint to foreclose on the new owners. Id. It also filed a supplemental notice of lis pendens. Id. Thereafter, the association that managed the condominium recorded a claim of lien for unpaid fees against the bank, as the bank had obtained a certificate of title during the initial foreclosure. Id. The association filed a foreclosure action, obtained a default judgment against the bank, and the property was sold. Id. The bank moved to vacate, arguing the association’s lien foreclosure was barred because it was filed after the bank filed its notice of lis pendens. Id. The trial court denied the motion and the bank appealed. Id.

The issue on appeal in Quadomain was whether the bank’s supplemental lis pen-dens divested the trial court of jurisdiction to adjudicate the association’s lien. Id. This Court quoted from section 48.23, Florida Statutes. Id. at 979. That statute, last amended effective July 1, 2009, provides in part as follows:

(a) An action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby only if a notice of lis pendens is recorded in the official records of the county where the property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged.
(d) Except for the interest of persons in possession or easements of use, the recording of such notice of lis pen-dens, provided that during the pen-dency of the proceeding it has not expired pursuant to subsection (2) or been withdrawn or discharged, constitutes a bar to the enforcement against the property described in the notice of all interests and liens, including, but not limited to, federal tax liens and levies, unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens. If the notice of lis pendens expires or is withdrawn or discharged, the expiration, withdrawal, or discharge of the notice does not affect the validity of any unrecorded interest or lien.

§ 48.23(1), Fla. Stat. (emphasis added).

Based on that statute and similar cases, this Court concluded in Quadomain that the jurisdiction of the court conducting the mortgage foreclosure proceeding was exclusive:

[T]he only way to enforce a property interest that is unrecorded at the time the lis pendens is recorded is by timely intervening in the suit creating the lis pendens—all other actions are barred. Therefore, the court presiding over the action which created the lis pendens has exclusive jurisdiction to adjudicate any encumbrance or interest in the subject property from the date the lis pendens is recorded to the date it enters final judgment.
Accordingly, the court in the Association’s lien foreclosure action did not have jurisdiction to foreclose the lien. If the Association wanted to recover its unpaid Association fees, it was statutorily required to intervene in the re-foreclosure action as prescribed in section 48.23(l)(d).

Quadomain, 103 So.3d at 979-80 (citations omitted).

In this case, Jallali relies on the language of Quadomain, suggesting that the final foreclosure judgment which the Association obtained in the 2012 case was void because the trial court lacked jurisdiction at that time. Jallali contends that exclusive jurisdiction to foreclose on the property was with the circuit court conducting the Lender’s foreclosure action in the 2007 case.

Quadomain is factually distinguishable from this case. First, in Quadomain, the association was attempting to foreclose its lien against the bank, a first mortgagee, and not the homeowner. 'Second, Quado-main did not address the effect of the association’s declaration of covenants, which constitute a recorded interest and thus take the case out of the purview of section 48.23, Florida Statutes. The Association’s lien in the present case was imposed under the Association’s Declaration of Covenants, recorded before the Lender recorded its notice of lis pendens. Therefore, because the Declaration provided for the imposition of a lien which related back to the filing of the Declarations, it was not an “interest ... unrecorded at the time of recording the notice” of lis pendens within the meaning of section 48.23(l)(d), Florida Statutes.

We hold that an association’s declaration of covenants (or of condominium) constitutes an “interest” in property under section 48.23(l)(d), Florida Statutes. Therefore, declarations which are recorded not only prior to the filing of a notice of lis pendens by a first mortgagee, but prior to the mortgage itself, may constitute a prior recorded interest under section 48.23(l)(d), Florida Statutes. The filing of a lis pen-dens does not automatically preclude an association from foreclosing on a lien imposed under the declaration against parties other than a first mortgagee, although the association’s foreclosure may be subordinate to the foreclosure of a first mortgage.

This is reflected in section 720.3085, Florida Statutes (2015), which controls homeowners’ association liens and priority for unpaid assessments. The statute provides that the lien for unpaid assessments relates back to the recording of the declaration of community. § 720.3085(1), Fla. Stat. However, as to determining superiority over first mortgages of record, the lien is effective only from the date the claim of lien is recorded:

When authorized by the governing documents, the association has a lien on each parcel to secure the payment of assessments and other amounts provided for by this section. Except as otherwise set forth in this section, the lien is effective from and shall relate back to the date on which the original declaration of the community was recorded. However, as to ftfst mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the parcel is located.

Id,.-, see also § 718.116(5)(a), Fla. Stat. (2015) (providing similarly with regard to association assessments on condominiums).

The provisions of the Declaration of Covenants recorded by the Association operate as section 720.3085(1), Florida Statutes, contemplates. The Declaration provides for the assessment of fees by the Association for maintenance of the Association and its properties. It provides that when a lien is imposed for any unpaid fees, it relates back to the recording of the Declaration, except that the lien is subordinate to the lien of an institutional mortgage recorded prior to the time a notice of lien is recorded.

The Declaration is a covenant running with the land, thus constituting an “encumbrance or interest” in property for purposes of section 48.23(l)(d), Florida Statutes. See Bessemer v. Gersten, 381 So.2d 1344 (Fla. 1980) (holding that a valid contractual lien is created when a property is purchased subject to declarations of restrictions which manifest an intent to let the property stand for security for the obligations imposed in the restrictions). Further, the filing dates of any liens incurred under the Declaration, including the lien at issue, relate back to the date of the Declaration’s recording. Because the Declaration was recorded prior to the Lender’s lis pendens, a foreclosure action against anyone other than a first mortgagee based upon a claim of lien filed in accordance with the Declaration is not barred by section 48.23(l)(d), Florida Statutes.

This conclusion is not undermined by the Declaration’s exception with regard to first mortgages to the relation-back provision for claims of liens for assessments. This exception is relevant in determining priority of liens, not the application of section 48.23, Florida Statutes, in actions by an association to foreclose a lien against the property owner when a foreclosure proceeding is pending. From the outset, the Association has acknowledged its lien is inferior to the mortgage; its lien foreclosure action does not purport to affect the Lender’s superior interest.

That a homeowners’ association can proceed against the homeowner with foreclosure of its lien for unpaid assessments imposed under its declaration, recorded before the first mortgagee recorded its notice of lis pendens, while a mortgage foreclosure proceeding is pending, is further supported by section 720.3085(5)(b), Florida Statutes. Generally, a claim of lien cannot be foreclosed by a homeowners’ association without providing forty-five days’ notice to the homeowner. § 720.3085(5), Fla. Stat. However, the association need not provide such notice “if the parcel is subject to a foreclosure action or forced sale of another party[.]” § 720.3085(5)(b), Fla. Stat. This implies that a claim of hen can be foreclosed even where a mortgage foreclosure proceeding is pending at the time the claim of lien is filed.

Moreover, we note that, in the context of this case, a lis pendens recorded by a mortgage holder serves to protect the mortgage holder from liens unrecorded at the time of the filing. Although section 48.23(l)(d), Florida Statutes, creates a “bar to ... enforcement” and provides for extinguishment of any unrecorded interests or hens if the case proceeds to judicial sale, the statute is not designed to protect the delinquent homeowner. Here, not only does the Association have a prior recorded interest through its Declaration of Covenants, its action was only against the delinquent homeowner. Unlike Quadomcdn, the Association’s suit did not involve the Lender. See Quadomain, 103 So.3d at 978.

Accordingly, Quadomain does not control the outcome of this proceeding between the Association and the delinquent homeowner. A homeowners’ association has the right to proceed in a foreclosure of its hen for unpaid assessments against the homeowner in accordance with its declaration and the statutes governing such associations.

We affirm the order denying Jahali’s motion to vacate the final judgment.

Affirmed.

Warner, Gross and Klingensmith, JJ., concur.

      . Before the Lender sued, the Association had obtained a judgment of foreclosure against Jallali’s property based on its lien for unpaid maintenance fees. The Lender alleged, and the Association acknowledged, that the Association’s lien was inferior to the Lender’s mortgage. The Association’s judgment was satisfied in 2008 and is not relevant to this appeal.

      . This Court recently reversed that final judgment for lack of standing of the plaintiff at the time suit was filed. Jallali v. Christiana Tr., 200 So.3d 149 (Fla. 4th DCA 2016).

      . Previously, language similar to that now appearing in section 48.23(l)(d) appeared in section 48.23(l)(b), but the period of time for intervening was only twenty days. § 48.23(1 )(b), Fla. Stat. (2008).


author: Damoorgian, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jan GROSSMAN, as Personal Representative of the Estate of Laura Grossman, deceased, Appellee.
    No. 4D13-3949
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017

      Eric L. Lundt, Gordon James III and Robert C. Weill of Sedgwick LLP, Fort Lauderdale, and Gregory G. Katsas and Noel Francisco of Jones Day, Washington, D.C., for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger and Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee.
   Damoorgian, J.

In this Engle progeny case, R.J. Reynolds Tobacco Company (“RJR”) appeals the final judgment entered in favor of Jan Grossman as Representative of the estate of his deceased wife, Laura Grossman (“Plaintiff’). RJR argues that the court erred by: 1) denying its motion for a mistrial based on an alleged error during jury selection; 2) denying its motion for a new trial based on comments made by Plaintiffs counsel during closing arguments; 3) refusing to reduce the jury’s compensatory damages award based on the Decedent’s comparative fault; 4) denying its motion to remit the jury’s compensatory and punitive awards; and 5) applying the Engle findings in violation of R JR’s due process rights. We reverse and remand with instructions that the court reduce the jury’s compensatoiy award in proportion with the jury’s comparative fault finding and affirm in all other respects for the reasons set forth below.

Background

This is the second time that this case is before this Court. The lawsuit began when Plaintiff sued RJR asserting that his late wife was a member of the Engle class because she died from lung cancer caused by her addiction to cigarettes. In his suit, Plaintiff alleged causes of action for strict liability, fraud by concealment, conspiracy to commit fraud by concealment, negligence, breach of express warranty, and breach of implied warranty.

The case initially went to trial in February of 2010, but ended in a mistrial. It went to trial for the second time in April of 2010 and was broken down into three phases. In Phase I, the jury was asked to determine if the Decedent was a member of the Engle class by virtue of her addiction to cigarettes. It found that she was. In Phase II, the jury was asked to determine liability, compensatory damages, and entitlement to punitive damages. At the end of Phase II, the jury found for Plaintiff only on his defective design count. Because the jury did not find for Plaintiff on any of his intentional tort claims, the case did not proceed to the third phase, which would have concerned the proper amount of punitive damages.

RJR appealed and Plaintiff cross-appealed the results of the second trial. We reversed and remanded for a new Phase II trial based on the trial court’s erroneous inclusion of Plaintiff as a defendant on the verdict form. R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d 917 (Fla. 4th DCA 2012). We did not disturb the jury’s Phase I class membership verdict. Id.

The third trial resumed at the Phase II stage (liability, compensatory damages and entitlement to punitive damages) with the possibility for a Phase III (amount of punitive damages), depending on the verdict.

The evidence presented at trial established that the Decedent began smoking in the mid-1970s when she was a teenager and remained a heavy smoker for the rest of her life. At the age of thirty-six, the Decedent was diagnosed with lung cancer. At that time, she had been married to Plaintiff for over ten years and they had two young children, a daughter, who was nine, and a son, who was one. The Decedent’s condition deteriorated rapidly as her cancer spread throughout her body. The Decedent died at home at the age of thirty-eight, eighteen months after she was first diagnosed with lung cancer. Her children were eleven and almost three when she passed away, leaving Plaintiff a forty-five year old widower and single dad.

The jury found for Plaintiff on all counts and awarded him $3.5 million in compensatory damages as well as the Decedent’s medical and funeral expenses. It awarded the Decedent’s daughter $7.5 million and her son $4 million. The jury apportioned RJR’s percentage of the fault at 75% and Decedent’s at 25%. It also found that punitive damages were warranted against RJR and following a Phase III punitive damages trial, awarded Plaintiff an additional $22.5 million. After the trial, RJR moved for a new trial based on a jury selection issue and certain comments made by Plaintiff during closing. It also moved for remittitur of the jury’s compensatory and punitive damages awards. The trial court denied all of RJR’s post-trial motions and entered judgment in favor of Plaintiff in the amount of $37,851,701.09.

Analysis

Jury Selection Issue

During jury selection, the court, over RJR’s objection, considered and granted two cause challenges made by Plaintiff after RJR used two of its peremptory strikes. RJR argues that this was reversible error. Recognizing case law which provides that a trial court does not have the discretion to “infringe upon a party’s right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn,” Jackson v. State, 464 So.2d 1181, 1183 (Fla. 1985), RJR concedes that the court was permitted to consider Plaintiff’s cause challenges, but asserts that the court was required to restart the peremptory process after striking any jurors for cause. We disagree.

Generally speaking, a trial court is afforded wide discretion in determining the time and manner of challenging and swearing jurors. Lottimer v. N. Broward Hosp. Dist., 889 So.2d 165, 166-67 (Fla. 4th DCA 2004). To that end, there is nothing in the Rule of Civil Procedure governing the use of challenges during jury selection which mandates the procedure advocated by RJR. Fla. R. Civ. P. 1.431(c)-(e). We decline to judicially create such a rule.

Closing Comments

RJR made over forty objections throughout Plaintiff’s closing and rebuttal closing arguments. About half of the objections were based on its position that Plaintiff was improperly disparaging RJR for contesting damages at trial and for defending itself in Plaintiffs lawsuit. In R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 759-65 (Fla. 4th DCA 2016), this Court held that such comments, if preserved, may merit a new trial. Based on Calloway, RJR asserts that it is entitled to a new trial. Plaintiff counters that RJR did not properly preserve its argument for appeal and that any error does not rise to the level of fundamental error. We agree with Plaintiff on this point.

The contemporaneous objection rule is well established in Florida in regard to argument of counsel. There must be an objection at the time the remarks are made. See, e.g., Philip Morris USA, Inc. v. Tullo, 121 So.3d 595, 600 (Fla. 4th DCA 2013). “Whether a party is required to seek a mistrial in this situation turns on whether the trial court sustained or overruled the objection. If a trial court finds a comment improper and sustains a party’s contemporaneous objection, the party must move for mistrial if he wishes to preserve his objection. If a contemporaneous objection is overruled, however, there is no reason for a party to seek a mistrial.” Newton v. S. Fla. Baptist Hosp., 614 So.2d 1195, 1196 (Fla. 2d DCA 1993) (internal citations omitted). Motions for mistrial, if required, must be made, by the end of closing arguments at the latest. Murphy v. Int’l Robotics Sys., Inc., 710 So.2d 587, 589 (Fla. 4th DCA 1998), approved 766 So.2d 1010 (Fla. 2000).

Our careful review of the record reflects that the court sustained all of RJR’s objections during closing to comments which were improper under Callo-way. Therefore, in order to preserve its argument for appeal, RJR was required to timely move for a mistrial. Here, RJR did not move for a mistrial based on Plaintiffs closing comments until after the jury was midway through its deliberations. Accordingly, this Court may only review the court’s denial of RJR’s motion for a new trial based on Plaintiffs closing arguments for fundamental error.

In Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla. 2000), our supreme court explained:

The purpose of closing argument is to help the jury understand the issues in a case by applying the evidence to the law applicable to the case. Attorneys should be afforded great latitude in presenting closing argument, but they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence. Moreover, closing argument must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.

(internal quotation marks and citations omitted).

When allegedly improper comments during closing are only preserved for fundamental error, the appellant must show: 1) that the comments were improper; 2) that the argument was harmful; 3) that the argument was incurable; and 4) that “the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. at 1028-30. See also Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So.3d 893, 900 (Fla. 4th DCA 2011). It is important to note that the Murphy court purposely made this test very difficult to meet, noting that while it was not “absolutely ‘clos[ing] the door’ on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe consistent with notions of due process which deserve public trust in the judicial system.” Murphy, 766 So.2d at 1031. As we did in another tobacco case, Tullo, 121 So.3d at 601-02, we hold that the unpreserved but improper comments in the present case did not create a fundamental error.

Comparative Fault

RJR argues that the court erred in refusing to reduce the jury’s compensatory damages by the Decedent’s comparative fault. The court’s refusal was based on its finding that section 768.81(4), Florida Statutes, (2013) barred application of the Decedent’s comparative fault to reduce damages because the jury found that RJR committed an intentional tort. During the pendency of this appeal, this Court held that at their “core,” Engle progeny suits are “products liability suit[s] based on conduct grounded in negligence.” R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 496 (Fla. 4th DCA 2015). Accordingly, “application of comparative negligence to [a tobacco] plaintiffs fraud-based claims” is always required. Calloway, 201 So.3d at 767. Therefore, the trial court was required to reduce the jury’s compensatory damages award by its comparative fault finding.

Remittitur

a) Compensatory Award to the Decedent’s Children

RJR argues that the trial court erred in denying its motion to remit the jury’s compensatory awards to the Decedent’s daughter ($7.5 million) and son ($4 million) because they are excessive and out of line with comparable cases. We disagree.

Pursuant to Florida’s remittitur and ad-ditur statute, section 768.74 of the Florida Statutes, the trial court has the responsibility to review the amount of an award and determine if it is excessive or inadequate “in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1), Fla. Stat. (2013). “If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.” § 768.74(2), Fla. Stat. (2013). In making its determination, the trial court is guided by the following statutory considerations:

(a)Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.74(5), Fla. Stat. (2013).

As we recently explained in considering the denial of a motion to remit an Engle case compensatory damages award:

Compensatory damages are intended to redress or compensate for a concrete loss. Where the loss is of a noneconomic nature, however, such as for mental pain and anguish and for loss of consortium, the valuation is inherently difficult. Because no formula can determine the value of such a loss, great deference is given the jury’s estimation of the monetary value of the plaintiffs mental and emotional pain and suffering. The fact that a damage awárd is large does not in itself render it excessive nor does it indicate that the jury was motivated by improper consideration in arriving at the award. Rather, a compensatory damage award is only excessive if it is so large that it exceeds the maximum limit of a reasonable range. In reviewing an award of damages for excessiveness, the court may consider the philosophy and general trend of decisions in comparable cases.

R.J. Reynolds Tobacco Co. v. Odom, 210 So.3d 696, 698-99, 2016 WL 6992162, at *2 (Fla. 4th DCA 2016) (internal quotation marks and citations omitted).

“When it comes to wrongful death awards, including those in the Engle context, courts have drawn a distinction between compensatory damages awarded to surviving spouses and to adult children.” Id. at 699, *3 (emphasis added). RJR primarily relies on adult surviving children cases in support of its argument that the awards to the Decedent’s children are excessive.

In R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 337 (Fla. 1st DCA 2012), the First District reversed an $8 million award to an adult surviving child of a cigarette smoker on the grounds that it was excessive as compared to other similar Engle awards. Citing to Webb, in Philip Morris USA Inc. v. Putney, 199 So.3d 465, 470 (Fla. 4th DCA 2016), this Court considered whether the impact of a decedent’s illness and subsequent death on her adult, independently living children was sufficient to justify a $5 million award to each child. We held that it was not, concluding that awards of such magnitude are reserved for cases involving “much closer relationships between the parties and the decedents during the decedent’s illness.” Id. at 471. Most recently, in Odom, we held that:

Read together, Webb and Putney establish that no matter how strong the emotional bond between an adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent’s smoking related illness and death is not entitled to multi-million dollar compensatory damages award, even if the child was involved in the facilitation of the parent’s treatments and suffered tremendous grief over the loss of the parent.

Odom, 210 So.3d at 701, 2016 WL 6992162, at *4.

However, none of these cases provide guidance as to the proper amount of compensation due to a surviving child who was still a child at the time of his or her parent’s death. Indeed, the logic employed by the aforementioned cases in finding multi-million dollar awards to independent, adult children too large supports the propriety of a large award to dependent, young children. As the Webb court made quite clear, the proper measure of damages should be based on “evidence of [the decedent’s] illness, subsequent death, and the noneconomic consequences of the death itself.” 93 So.3d at 339. This amount will obviously be lai-ger if the surviving family member was “wholly dependent on [the decedent’s] companionship, instruction and guidance” at the time the decedent died. Id.

There are no published Engle opinions discussing the proper measure of damages where the smoker’s surviving children were minors when the smoker died. Indeed, there are few published Florida opinions discussing the proper amount of compensation due to a minor child who wrongfully loses a parent. One such case is Citrus County v. McQuillin, 840 So.2d 343, 347 (Fla. 5th DCA 2003). There, the court affirmed a $4.4 million pain and suffering and loss of parental companionship award made to the decedent’s son, who was seven years old at the time of his mother’s death. Id. In doing so, the court concluded by writing: “Who can place a dollar value on a human life, measured by the loss and grief of a loved one? That difficult decision is generally one for the jury or fact finder, not the appellate court.” Id. at 348.

Here, the Decedent’s daughter was only nine years old when her mother was diagnosed with lung cancer and the Decedent’s son was an infant. The evidence presented at trial established that the Decedent’s illness and death had a devastating effect on the children. The daughter retained vivid memories of her mother’s illness and decline. She testified that she remembered wanting to do nothing more than hug and cuddle with her mother, but that her mother was in so much pain that the daughter could not even lay next to her. The daughter testified that she felt robbed by her mother’s death, and often thinks about the relationship they would have had and what her mother’s role would have been in her life.

The Decedent’s son testified that his only true memory of his mother was watching the paramedics take her dead body out of their home in a body bag. The son lamented not having more time with his mother and testified that it negatively affected him for the rest of his life. The son suffered from abandonment anxiety as a small child, and as he got older, exhibited behavioi'al problems. Plaintiff testified that the son could not comprehend that his mother died and would often cry out for “mommy.” The children’s eventual stepmother also provided accounts of the effect the Decedent’s death had on the children. For example, she testified that after seeing a lost-pet flyer hanging on a tree, the Decedent’s son drew a crayon depiction of his mom and taped it on a tree hoping that someone would “find” his mother. Another time, he asked the Santa at the mall for his mother back.

The evidence at trial established that two young children who were wholly dependent on their parents for support, guidance, and care not only lost their mother during their formative years, but watched her suffer and waste away as her body was ravaged by cancer. Under these circumstances, the jury’s $7.5 and $4. million awards to the Decedent’s son and daughter do not shock the judicial conscience. Accordingly, the trial court did not err in denying RJR’s motion for remittitur,

b) Punitive Damages

RJR also argues that the court erred in failing to remit the jury’s punitive damages award because it was unconstitutionally excessive. We affirm the trial court’s decision as the jury’s award ($22.5 million in punitive damages in light of a $13.5 million compensatory award) falls under the constitutionally acceptable range as established by other Engle decisions. R.J. Reynolds Tobacco Co. v. Buonomo, 138 So.3d 1049, 1052 (Fla. 4th DCA 2013) (holding that a jury’s initial $25 million punitive award as compared to a $5,235,000 compensatory award was not so excessive as to violate due process); Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 81-82 (Fla. 3d DCA 2013) (holding that a $25 million punitive damages award which bore a 2.5 to 1 ratio to a remitted compensatory damages award of $10 million dollars was not unconstitutionally excessive); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1072 (Fla. 1st DCA 2010) (holding that a $25 million punitive damages award that bore a 7.58 to 1 ratio to the $3.3 million compensatory damages award was permissible).

Due Process

Lastly, RJR argues that the trial court’s ruling allowing Plaintiff to use the Engle phase I findings to establish elements of his claims violates due process. As RJR recognizes, the Florida Supreme Court has rejected this argument. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013).

Conclusion

We affirm the trial court’s denial of RJR’s motions for a new trial and for remittitur, but hold that the trial court erred in failing to reduce the jury’s compensatory damages award by its comparative fault finding. Accordingly, we remand the case for further proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part.

Conner, J., and Moyle, Paul 0., Associate Judge, concur.

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


author: SUAREZ, C.J.

text:
    INDIAN CREEK COUNTRY CLUB, INC., etc., Appellant/Cross-Appellee, v. INDIAN CREEK VILLAGE, etc., Appellee/Cross-Appellant.
    No. 3D14-439
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017.

      Akerman LLP and Carmen I. Tugender (Ft. Lauderdale); Akerman LLP and Gerald B. Cope, Jr., Brian P. Miller, and Michael B. Chavies, for appellant/cross-appellee.
    Weiss Serota Helfman Cole & Bierman, P.L. and Edward G. Guedes, Joseph H. Serota, Stephen J. Helfman, and John J. Quick, for appellee/cross-appellant.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   SUAREZ, C.J.

Indian Creek Country Club appeals from two final orders: 1) a Final Judgment in the Club’s favor finding certain special assessments to be invalid, and 2) Partial Final Summary Judgment in favor of Indian Creek Village [“the Village”] finding a 1996 Agreement between the two entities void. Indian Creek Village cross-appeals from the special assessments Final Judgment. For the reasons detailed below, we affirm the trial court’s.Final Judgment in favor of the Club but we reverse the trial court’s Partial Final Summary Judgment wherein the trial court declared the 1996 Agreement to be void.

FACTS

The Village is a coastal Florida municipality within whose boundaries exists Indian Creek Island, on which the gated, private Indian Creek Country Club [“Club”] is located. The Club operates a golf course, clubhouse, docks and tennis courts for its members. The Island also has 41 single family homes, and is connected to the mainland Village by a public road and bridge with guardhouse, although the Island is entirely private. The Club is accessed by private road; most of the Club’s 300 members live elsewhere. The Village has its own land and marine police force to provide 24/7 law enforcement and traffic services to Village residents and also provides general law enforcement and police assistance to the Club and Village residents on the Island. The Club pays approximately $34,000 in ad valorem taxes to the Village to cover the annual cost of these services.

In 2008, the Village hired a contractor, Government Services Group, Inc., [“GSG”] to evaluate the Village’s budget and to develop a special assessments to support the police department, as well as to recommend how to apportion such an assessment. GSG determined that 97% of the police department’s time and budget were spent on security matters such as manning the guard house that controls access to the Island and providing for ground and water patrol of the Island. GSG recommended a special assessment to cover that 97%. GSG recommended that the special assessment be allocated based on what it termed “an equivalent residential unit” (ERU). Each residential buildable lot was to be assigned one ERU. Therefore, each of the residential buildable lots was assessed $25,510 (the amount of one ERU). The GSG recommended assigning 33.02 ERU’s to the Club’s Golf Course property arriving at a proposed special assessment of $843,340.00 for the Club. In 2010, based on GSG’s recommendations, the Village passed an $843,340.00 special assessment against the Club for security services intended to cover 97% of the Village’s police budget. The Club brought a declaratory judgment action against the Village to challenge the legality of the assessment. While that suit was pending, the Village obtained passage of legislation in the 2011 session, by floor amendment, that amended Florida’s special assessment statute to say “a municipality that has a population fewer than 100 persons ... may also levy and collect special assessments to fund special security and crime prevention services and facilities, including guard and gatehouse facilities.” § 170.201(1) Fla. Stat. (2011). This amendment was added to a bill entitled “An Act relating to local government accountability.” The Village imposed the special assessment on the Club in 2011, increasing the Club’s taxes to $1,724,763.0o. The Club brought another suit to challenge the 2011 assessment and the two cases were consolidated. The Club argued that this amendment violated the single subject act, as the tacked-on amendment had no logical relationship to the bill.

Additionally, as part of the proceedings below, the Village asked the trial court to set aside a 1996 Agreement between the Village and the Club, which Agreement canceled the Village’s lease of the road and bridge from the Club, gave the bridge to the Village in as-is condition, and gave the Village the right to patrol the Club’s private road for the sole purpose of “enforcing State and County traffic laws.” The 1996 Agreement also provided that if there were any special tax assessments levied against all property in the Village, the Club would be assessed in the same proportion as its assessment for ad valorem taxes. The Village moved for partial summary judgment on its request to invalidate the 1996 Agreement, arguing that several of the Village Councilmembers voting on the Agreement in 1996 were, at that time, Club members, which, the Village argued, created a conflict of interest. The trial court granted partial summary judgment in favor of the Village on this issue, concluding that the Councilmembers who were also Club members should not have voted as they stood to gain special private benefit from the Agreement.

After a bench trial, the court ruled that, 1) the 2010 special assessment against the Club was invalid for failing to meet either prong of the two-part test for evaluating the validity of such special assessments as set forth in City of Boca Raton v. State, 595 So.2d 25 (Fla. 1992), 2) the 2011 special assessment was invalid for failing to meet the second prong of the two-part test, but, 3) also found that the 2011 statutory amendment was validly enacted and satisfied the first part of the two-part test by conferring a special benefit on the property so assessed, rejecting the Club’s single-subject violation argument.

The Club appeals from that part of the final declaratory judgment finding special benefit to the Club based on the 2011 statutory amendment, despite the favorable ruling finding the 2011 assessment invalid. The Club also appeals from the order granting the Village’s Amended Motion for Partial Summary Judgment invalidating the 1996 Agreement.

THE 2010-2011 SPECIAL ASSESSMENTS

“[A] valid special assessment must meet two requirements: (1) the property assessed must derive a special benefit from the service provided; and (2) the assessment must be fairly and reasonably apportioned according to the benefits received.” Sarasota Cty. v. Sarasota Church of Christ, 667 So.2d 180, 183 (Fla. 1995) (citing City of Boca Raton v. State, 595 So.2d 25, 30 (Fla. 1992)). “These two prongs both constitute questions of fact for a legislative body rather than the judiciary.” Id. at 183. “[T]he standard [of review] is the same for both prongs; that is, the legislative determination as to the existence of special benefits and as to the apportionment of the costs of those benefits should be upheld unless the determination is arbitrary.” Id. at 184; City of Winter Springs v. State, 776 So.2d 255, 258 (Fla. 2001). “Even an unpopular decision, when made correctly, must be upheld.” Id. at 261. See also Morris v. City of Cape Coral, 163 So.3d 1174, 1176-77 (Fla. 2015).

“The apportionment of benefits is a legislative function, and if reasonable people may differ as to whether the land assessed was benefitted by the local improvement, the finding of the city officials must be sustained.” Rosche v. City of Hollywood, 55 So.2d 909 (Fla. 1952); City of Boca Raton, 595 So.2d at 30. But if there is no competent substantial evidence in the record to support a finding of benefit, then the presumption of correctness does not attach to the municipality’s findings of special benefit—and then the court must review the trial court’s decision based on ordinary findings of fact. See City of N. Lauderdale v. SMM Properties, 825 So.2d 343, 348 (Fla. 2002). That test was set forth in Lake County v. Water Oak Management Corp., 695 So.2d 667, 669 (Fla. 1997). In Lake County, the Court stated that “In evaluating whether a special benefit is conferred to property by the services for which the assessment is imposed, the test is not whether the services confer a ‘unique’ benefit or are different in type or degree from the benefit provided to the community as a whole; rather the test is whether there is a ‘logical relationship’ between the services provided and the benefit to real property.” Id. [emphasis supplied].

In reviewing the record, this Court must ascertain whether it contains competent substantial evidence that the special assessments against the Club property for security and law enforcement services would confer a special benefit to the Club’s real property (i.e., golf course, clubhouse, tennis courts) in reduction of insurance costs, increased property values, etc., that the benefits would exceed the amount of the assessments, and that the benefits would be in proportion to the assessments. See City of Boca 595 So.2d at 30; City of N. Lauderdale v. SMM Properties, 825 So.2d 343, 348 (finding that no competent substantial evidence supported the municipality’s findings that the special assessment provided special benefit to the properties, although the municipality did make general findings that there was a special benefit to the assessed property). Just saying it is so does not make it so: “a legislative body cannot by its fiat make a special benefit to sustain a special assessment where there is no special benefit.” Id. at 348 (citations omitted).

The trial court found record evidence that:

• At no time does the Club use services of on-duty police officers to provide security for Club events;
• The Village’s full-time police officers patrol the road to the island where the Club exists;
• The Village’s marine patrol supports the sovereign function of the Village to protect its citizens and property by deterring crime; the marine patrol keeps the public from coming ashore on the private island;
• The Village’s public service aides limit land access to the island;
• The Village relied on assessment recommendations of GSG that were clearly erroneous, arbitrary, or without basis in reason, and were clearly unsupported by competent substantial evidence;
• No evidence in the record that “special” benefits were conferred on the Club’s real property from the provision of general law enforcement that would justify the additional assessments; GSG did not perform any studies to determine whether the real property in the Village was specially benefitted from security service, i.e,, increased property values, lowered insurance premiums, etc., and there was no available data that could quantify how, if at all, the services that are the subject of the special assessment impact the value of the Club.

The trial court concluded that it was not its job to approve or disapprove of the methodology that GSG used to formulate a recommended assessment value. The trial court did, however, determine that there was no record evidence (i.e., data) to support the 2010 and 2011 special assessments as against the Club, and thus invalidated the assessments as arbitrary.

We agree with the trial court that both the 2010 and 2011 assessments were unsupported by competent substantial evidence and, therefore, are invalid. GSG considered several methodologies for evaluating how the special assessments could be calculated (traffic frequency over the bridge; land area/lot size; frontage measurements; “equivalent residential units” or ERUs). GSG ultimately used the ERU measure, which assigned 33.02 ERUs to the Club’s golf course property—by assuming that land area was equal to 40 buildable residential lots, and thus a $25,510 assessment per buildable lot resulted in a special assessment for the Club’s golf course of $842,340.00. GSG then used this numeric to recommend an assessment value to the Village, which then imposed that assessment on the Club. The problem is that golf course and tennis court land is not residential. GSG did not consider how the Club actually used its real property, or distinguished between the structure of the clubhouse versus tennis courts and golf course areas. GSG failed to consider the use of the golf course property and whether the Club would be benefitted by $842,324.00 worth of law enforcement security services. GSG failed to conduct studies to determine; (a) how the Club’s golf course property benefits from the police department’s services; (b) whether or not a golf course requires the same level of security as do developed multimillion dollar residential homes; (c) the historical use of the Club’s property or even that of any other property on the Island, and; (d) whether the Club, as the only non-residential property with an 18-hole golf course on the Island, actually requires the amount of manpower and services included in the special assessment, or whether a Club requires the only the type and level, of “security” services already being funded.

The Village argues that there is evidence in the form of deposition testimony that the special assessments benefit the real property by; (i) increasing property values; (ii) preventing vandalism of and access to the island properties; (iii) enhancing the safety and enjoyment of real property; and, (iv) reducing insurance, premiums. But GSG failed to provide any evidence that the assessments would have a measurable positive benefit to the Club’s real property in any of these respects. There is no evidence in the record to show that any of the real property owners (residential or commercial) would get lower insurance premiums as a result of the Village providing general law enforcement to its residents’ real property; there appears to be no evidence in the record of an increase in law enforcement capabilities and patrols as a result of the special assessment; there is no data to show that property values would increase as a benefit of the general law enforcement provided to the Village and ■ Club. Here, the “security” services funded by the special assessment are not “similar” to law enforcement services: they are the same law enforcement services provided before and after the special assessment was passed. Even if a special assessment may constitute replacement funding for services previously funded by ad valorem taxation, those services must pass the special benefit and apportionment tests.

We therefore affirm the trial court’s order finding both the 2010 and 2011 assessments are unsupported by competent substantial evidence and are thus invalid.

APPELLEE VILLAGE’S CROSS-APPEAL OF THE FINAL JUDGMENT REGARDING THE 2010 AND 2011 SPECIAL ASSESSMENTS.

The Village argues that there was indeed competent substantial evidence to support the special assessments, and that the trial court erred to find there was none. The Village argues that there was evidence—all in the form of witness testimony—of deterrence of vandalism, enhanced enjoyment of use of property, reduced insurance premiums, enhanced property values. Our review of the record did not disclose any data indicating that enhanced property values or reduced insurance premiums would occur as a result, and the trial court was not convinced that “enhanced enjoyment of property” as a result of ordinary police services already being provided is a “special benefit to real property” that warranted the special assessments.

Regarding the methodology used by GSG to calculate the special assessments, we defer to the trial court’s discretion. The trial court found the assessments were not fairly apportioned by whatever methodology the Village used. Because we conclude there was no competent substantial evidence of a logical relationship between the services provided and the benefit to the property, the Village’s cross-appeal from the final judgment fails.

THE 2010 AMENDMENT TO SECTION 170.201 FLORIDA STATUTES (2011)

We review the trial court’s conclusions of law on the issue of the single-subject rule and the 2011 amendment to section 170.201 de novo. As set forth in Lewis v. Leon Cnty., 73 So.3d 151, 153-54 (Fla. 2011):

Although our review is de novo, statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome. “[SJhould any doubt exist that an act is in violation ... of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.”

Given the presumption of constitutionality and legislative validity, the single subject rule requires that, 1) the law embrace one subject, 2) the law may include any matter that is “properly connected” to the subject, and 3) the subject shall be briefly included in the title. An amendment or provision is “properly connected” to the subject if the connection is natural or logical, or if there is a reasonable explanation for how the provision is necessary to the subject, or tends to make the purpose of the legislation more effective. Franklin v. State, 887 So.3d 1063, 1073 (Fla. 2004). The party challenging the validity of the legislation must prove invalidity beyond a reasonable doubt. Id. at 1073.

We affirm the trial court’s determination that the 2011 amendment to section 170.201 was constitutional. The trial court determined that the first prong of the 2011 special assessment was not supported by competent substantial evidence—there was nothing in the record to show that the Club’s real property got any additional “special” benefit from the assessment’s funding of Village security services. The Club argues that the trial court should not have gone further to rule that special benefit to the real property was established by the 2011 legislative amendment to section 170.201, and that the statute was constitutional because the amendment was related to government accountability. The Club asks this Court to find the 2011 legislative amendment to section 170.201 violated the single subject rule because it was unrelated to the subject matter of the bill, and was thus unconstitutional. If the amendment to the statute were unconstitutional, the Club argues, the trial court could not have found that the 2011 special assessment met the first prong of City of Boca’s test (special benefit to real property) simply by virtue of being included in the legislation.

We understand the Appellant’s arguments on this issue. The title and substance of the bill is not so unrelated, however, to the bill’s overall nature to warrant reversing in what would in essence be a futile act—if the panel declares the amendment unconstitutional by finding the 2011 amendment violated the single subject rule, and as a result the first prong of the special assessments test (benefit to real property) was not met, the outcome remains the same: the 2011 assessment against the Club is still invalid because it did not meet either the first or the second prong of Boca’s special assessment test, i.e., no special benefit to real property and unreasonable apportionment of the assessment against Club property. “When a single subject could not be easily determined, and when doubts arose as to whether the various provisions were connected to the subject this Court has consistently analyzed the act with every reasonable doubt in favor of validity. Franklin, 887 So.2d at 1075. We therefore affirm the trial court on this issue.

ORDER GRANTING THE VILLAGE’S MOTION FOR PARTIAL SUMMARY JUDGMENT INVALIDATING THE 1996 AGREEMENT BETWEEN THE TWO PARTIES

The 1996 Agreement between the two parties contains language that limited the Village’s ability to impose future assessments against the Club by limiting any future special assessments to the current ad valorem tax rate: “The Club agrees to pay its share pro rata to its assessed valuation of any special tax assessment levied against all property in the Village.” The Village argued that this tied its hands as to any future increase in assessments against the Club. In order to get around this, the Village challenged the validity of the Agreement itself by arguing that four of the Village Council members who voted in favor of the Agreement were also Club Members or were married to Club Members and thus had a vested interest in voting for the Agreement. The trial court agreed that this dual status created a conflict of interest, and those Council Members should have abstained from voting on the Agreement. The trial court based its conclusion following section 112.3143 (3), Florida Statutes (2013) which provides,

(3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

The trial court concluded that this statute controlled the actions of the Mayor and three Village Council Members who were also Club Members, and that the contract was voidable.

What is considered a threshold “private gain or loss” is also set forth in section 112.3143(d)(1), (2), and (3), which provide:

(d) “Special private gain or loss” means an economic benefit or harm that would inure to the officer, his or her relative, business associate, or principal, unless the measure affects a class that includes the officer, his or her relative, business associate, or principal, in which case, at least the following factors must be considered when determining whether a special private gain or loss exists:
1. The size of the class affected by the vote.
2. The nature of the interests involved.
3. The degree to which the interests of all members of the class are affected by the vote.
4. The degree to which the officer, his or her relative, business associate, or principal receives a greater benefit or harm when compared to other members of the class.
The degree to which there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer, his or her relative, business associate, or principal and, if so, the nature or degree of the economic benefit or harm must also be considered.

§ 112.3143, Fla. Stat. (2013). The Club points out that, by these measures, any “interest” those voting Council Members had in approving the Agreement does not rise to the level of “special private gain or loss.” The size of the Club Membership class at the time was around 291 persons; the nature of the interests involved were speculative, that is, there were no special assessments planned in 1996, and indeed none occurred until 2010; the degree to which the interests of all Club members may have been affected by the vote was not known until 2010, and then the Club would have to apportion that special assessment across all the Club membership, thus diluting any “special private gain or loss” to the four Club members who voted for the 1996 Agreement.

As the financial impact of the 1996 Agreement on the financial interests of the four voting Club members was speculative, we conclude that it was not a statutory voting ethics violation at the time of the execution of the Agreement, and therefore reverse the Partial Summary Judgment finding the 1996 Agreement voidable.

CONCLUSION

We affirm the Final Judgment regarding the 2010 and 2011 special assessments, and reverse the Partial Summary Judgment regarding the 1996 Agreement.

      . This includes the sum of the 2010 and 2011 assessments.

      . The short title of Chapter 170 is “An act relating to local government accountability.” The floor amendment to the statute introduced a mechanism to allow small municipalities to find alternative methods to fund "special security and crime prevention services and facilities, including guard and gatehouse facilities” through special assessments. The bill was signed by the Governor in June 2011 and became effective October 1, 2011.

      . (1) Any contract that has been executed in violation of this part is voidable: (a) By any party to the contract. Fla. Stat. Ann. § 112.3175 (West).


author: SCALES, J.

text:
    KEYS COUNTRY RESORT, LLC, et al., Appellants, v. FLORIDA COMMUNITY BANK, N.A., et al., Appellees.
    No. 3D16-2423
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017.
    Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for appellants.
    Cole, Scott & Kissane, P.A., and Scott A. Cole and Daniel M. Schwarz, for appellee, Thomas Wright, Esq.
    Before LAGOA, FERNANDEZ and SCALES, JJ.
   SCALES, J.

In a reformation action subsequent to a foreclosure, Appellants Keys Country Resort, LLC and 1733-1777 Overseas Highway, LLC, the defendants below, filed third party claims and a counterclaim alleging that wild deeds prepared and transferred by parties related to the foreclosing entity had impaired Appellants’ ownership interest in a parcel that had not been subject to the foreclosure. One of the third parties, Appellee Thomas Wright, sought, and the trial court granted, a stay of the third party claims and counterclaim until the adjudication of the reformation action.

Appellants have appealed the trial court’s stay order. We treat the appeal as a petition for writ of certiorari pursuant to rule 9.100 of the Florida Rules of Appellate Procedure. We dismiss the petition for lack of jurisdiction. Appellants have failed to demonstrate that the stay order results in an irreparable harm through the remainder of the case and that cannot be remedied on appeal. Stockinger v. Zeilberger, 152 So.3d 71, 72-73 (Fla. 3d DCA 2014).

Dismissed.