author: EMAS, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. Noel POZOS, Appellee.
    No. 3D15-2167
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017
    Abigail Price-Williams, Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant.
    Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and Pamela Beckham, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
   EMAS, J.

INTRODUCTION

Noel Pozos, the plaintiff below and the appellee here, filed a negligent security action against Miami-Dade County, seeking damages for injuries he sustained as a result of being shot by an unidentified assailant while attending a party at Benito Juarez Park in Miami. The one-count complaint alleged, inter alia, that Miami-Dade County owned and operated the park; that Pozos was an invitee on the premises when he was shot; that the County owed a duty to provide reasonable security; and that the County breached that duty, resulting in injury and damages.

The County filed a motion for summary judgment, asserting that sovereign immunity barred Pozos' action. After conducting an evidentiary hearing, the trial court entered an unelaborated order which stated merely that "the motion for summary judgment is denied." The County has appealed this order. Because the trial court did not determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9), Florida Statutes, the County was not authorized to appeal the trial court's order, and we therefore dismiss this appeal as one taken from a nonfinal, nonappealable order.

ANALYSIS

As a general rule, a party may not seek interlocutory review by appeal of a nonfinal order, including an order denying a motion for summary judgment. See, e.g., Mandico v. Taos Const., Inc., 605 So.2d 850, 851 n. 2 (Fla. 1992) ; State, Dep't of Envtl. Prot. v. Garcia, 99 So.3d 539 (Fla. 3d DCA 2011) ; Castillo v. Deutsche Bank Nat. Trust Co., 57 So.3d 965 (Fla. 3d DCA 2011) ; Taggart v. Morgan, 943 So.2d 250 (Fla. 3d DCA 2006). However, Article V, section 4(b) of the Florida Constitution authorizes district courts of appeal to review interlocutory orders of the circuit court "to the extent provided by rules adopted by the supreme court." The Florida Supreme Court has by rule authorized interlocutory appeals from a limited and narrowly-defined class of nonfinal orders. Interlocutory appeals of nonfinal orders in civil cases are restricted to those enumerated in Florida Rule of Appellate Procedure 9.130(a)(3). Keck v. Eminisor, 104 So.3d 359 (Fla. 2012).

Rule 9.130(a)(3)(C) provides:

(3) Appeals to the district courts of appeal of non-final orders are limited to those that
...
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;
(iii) in family law matters:
a. the right to immediate monetary relief;
b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or
c. that a marital agreement is invalid in its entirety;
(iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;
(v) that, as a matter of law, a party is not entitled to workers' compensation immunity;
(vi) whether to certify a class;
(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;
(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes ;
(ix) the issue of forum non conveniens;
(x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes ; or
(xi) that, as a matter of law, a party is not entitled to sovereign immunity.

(Emphasis added).

This rule, and its limited categories of orders subject to interlocutory review, must be narrowly construed.

Walker v. Fla. Gas Transmission Co., LLC, 134 So.3d 571 (Fla. 1st DCA 2014). In Travelers Insurance Co. v. Bruns, 443 So.2d 959, 961 (Fla. 1984), the Florida Supreme Court discussed the underlying purpose for the then-recent amendment to rule 9.130 :

The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.

And as the First District recognized in Walker, 134 So.3d at 572 :

Our supreme court has "carefully created" each category of non-final order subject to interlocutory review after input and weighing various policy considerations, "such as increased appellate workload and concomitant delay in ... resolution." Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So.3d 344, 348 (Fla.2012). Accordingly, the categories of non-final orders subject to interlocutory appeal are narrowly construed. Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla.1984) ("The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders.")

The relevant subdivision of rule 9.130 authorizes an appeal from a nonfinal order which determines that a party, as a matter of law, is not entitled to sovereign immunity, or is not entitled to immunity under section 768.28(9). Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

The trial court in this case did not declare, make a finding, or otherwise determine that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9). In fact, and as the dissent acknowledges, the trial court did not make any findings at all. The trial court's order merely "denied" the motion for summary judgment, and contained no explanation, findings of fact, or conclusions of law. Construing the rule narrowly and applying the relevant case law, we are compelled to conclude that this court is without jurisdiction to review this nonfinal order.

Some history is necessary for proper context. In 2012, the Florida Supreme Court addressed the following certified question of great public importance:

Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law?

Keck, 104 So.3d at 360-61.

The Court answered the question in the negative, and requested that the Florida Bar Appellate Court Rules Committee "submit a proposed narrow amendment to rule 9.130 addressing the rule change mandated by this decision." Id. at 366. In compliance with the Court's request, the Appellate Court Rules Committee submitted a proposed amendment to rule 9.130(a)(3), which was adopted by the Florida Supreme Court in 2014. In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d 1217 (Fla. 2014). The amendment authorized appeals from nonfinal orders which determine that a party, as a matter of law, is not entitled to immunity under section 768.28(9), or is not entitled to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(C)(x), (xi).

Given the recency of these amendments, there is virtually no case law construing or applying these provisions. However, there is relevant case law construing identical language from an existing provision of rule 9.130, authorizing an appeal from a nonfinal order "that determines... that, as a matter of law, a party is not entitled to workers' compensation immunity." Fla. R. App. P. 9.130(a)(3)(C)(v). Case law interpreting this provision holds uniformly that an order denying summary judgment on the basis of workers' compensation immunity is not appealable under rule 9.130 unless the trial court's order expressly provides that it is making a determination that, as a matter of law, the party is not entitled to immunity.

For example, in Hastings v. Demming, 694 So.2d 718 (Fla. 1997), the Florida Supreme Court set forth what was required to render such a nonfinal order appealable:

Nonfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party.

Id. at 720 (emphasis added).

The Supreme Court noted that a prior version of this rule was susceptible to differing interpretations, resulting in conflicting decisions among the district courts. In 1996, the rule was amended (to its present language) to settle the conflict among the district courts, eliminate confusion in application of the rule, and restore the narrow scope of the rule. As the Supreme Court would later explain in Reeves v. Fleetwood Homes of Florida, Inc., 889 So.2d 812 (Fla. 2004) :

The original version of the amendment [to rule 9.130(a)(3)(C)(vi) ] read: "Review of non-final orders of lower tribunals is limited to those which ... determine ... that a party is not entitled to workers' compensation immunity as a matter of law." In 1996, the section was amended by moving the phrase "as a matter of law" from the end of the provision to the beginning. As explained in the committee notes, this amendment was made to clarify "that this subdivision was not intended to grant a right of nonfinal review if the lower tribunal denies a motion for summary judgment based on the existence of a material fact dispute." Fla. R. App. P. 9.130 (Committee Notes, 1996 Amendment). The amendment occurred due to a number of decisions from the district courts of appeal that had broadly interpreted the rule and had allowed review of nonfinal orders denying summary judgment when the denial was the result of the existence of disputed facts.

Id. at 819 (internal citations and footnote omitted).

In Reeves, the Florida Supreme Court reaffirmed its holding in Hastings, requiring that there be a "determination, on the face of the order" that the defendant, as a matter of law, is precluded from asserting workers' compensation immunity. Id. at 821.

The Florida Supreme Court's holding in Hastings-that nonfinal orders denying summary judgment on a claim of workers' compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party-has been faithfully followed by all the district courts, including this court. See, e.g., Reeves, 889 at So.2d at 821 (observing that "[t]he lower courts of Florida have strictly adhered to this Court's decisions in Hastings and [ Florida Department of Corrections v. ] Culver, [716 So.2d 768 (Fla. 1998) ] determining that a district court does not have jurisdiction to review a nonfinal order denying summary final judgment unless the trial court's order explicitly states that the defendant will not be entitled to present a worker's compensation immunity defense at trial"); Amcon Builders, Inc. v. Pardo, 120 So.3d 1254 (Fla. 3d DCA 2013) ; Coastal Bldg. Maint., Inc. v. Priegues, 22 So.3d 148 (Fla. 3d DCA 2009) ; Southern Pan Servs. Co. v. Rodriguez, 771 So.2d 612 (Fla. 3d DCA 2000) ; Peoplease Corp. v. Schroeder, 57 So.3d 910 (Fla. 1st DCA 2011) ; Footstar Corp. v. Doe, 932 So.2d 1272 (Fla. 2d DCA 2006) ; Rinker Materials Corp. v. Holmes, 697 So.2d 558 (Fla. 4th DCA 1997).

All of this background is pertinent because the Florida Supreme Court, in adding subdivisions (x) and (xi) to the list of appealable nonfinal orders, adopted the identical language it approved in its 1996 amendment to nonfinal orders regarding entitlement to workers' compensation immunity (subdivision (v)). The Florida Supreme Court's adoption of this identical language cannot be regarded as accidental. When the Supreme Court added subdivisions (x) and (xi) to the list of nonappealable orders, it was obviously aware of the language it had previously utilized in authorizing appeals from workers' compensation immunity orders. The only logical conclusion is that, by using the identical language of the existing rule, and knowing how that language had been construed by Florida courts, the Florida Supreme Court intended that these two new provisions would be construed and applied in like fashion. See Charter Sch. USA, Inc. v. John Doe No. 93, 152 So.3d 657, 659 n. 2 (Fla. 3d DCA 2014) (recognizing that court rules are construed using the same principles of construction that apply to statutes). See also Dickinson v. Davis, 224 So.2d 262 (Fla. 1969) (holding that the Legislature is presumed to know the existing law when a statute is enacted, and in reenacting a statute, the Legislature is presumed to be aware of constructions placed upon it by the court); Fla. Dep't of Children & Families v. F.L., 880 So.2d 602, 609 (Fla. 2004) (holding that "[t]he Legislature is presumed to know the judicial constructions of a law when amending that law, and the Legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed").

CONCLUSION

Applying the decisions of the Florida Supreme Court, and our own court, in construing rule 9.130 in the context of appeals from orders regarding workers' compensation immunity, we conclude that the County is not authorized to appeal, and this court is without jurisdiction to review, the trial court's order denying the motion for summary judgment.

The scope of our limited authority under rule 9.130(a)(3)(xi) is to review whether the trial court properly "determine[d]... that, as a matter of law, a party is not entitled to sovereign immunity." This court does not have the authority to determine in the first instance whether, as a matter of law, the County is entitled to sovereign immunity. But that is, in essence, what the dissenting opinion proposes to do, given the complete absence of any indication in the order below that the trial court in fact determined that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9).

It may well be that the trial court denied the motion for summary judgment for reasons distinct from the merits of the immunity question, including the existence of disputed issues of material fact or ongoing discovery that would render summary judgment premature at this juncture. The parties could have, but did not, seek clarification or otherwise request that the trial court expressly state in its order whether it determined that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28(9). Failing that, we are left in the untenable position of trying to ascertain the trial court's rationale. This, however, is not our role, and we may not presume or infer jurisdiction under these circumstances.

Appeal dismissed as one taken from a nonfinal, nonappealable order.

SUAREZ, C.J., concurs.

ROTHENBERG, J.

Noel Pozos seeks damages for injuries he sustained as a result of being shot by an unidentified assailant while at a teenager's birthday party at Benito Juarez Park ("the Park") in Homestead, Florida. The one-count complaint alleges that Miami-Dade County ("the County") owned, controlled, maintained, and operated the park; Pozos was an invitee on the premises when he was shot; the County assumed the duty to provide reasonable safety to Pozos; and the County breached that duty by failing to provide reasonable safety measures and security personnel to control, patrol, and guard against dangerous activity and/or to warn Pozos and others of the potential danger.

The County filed a motion for summary judgment asserting that: (1) the County did not have a duty to prevent the misconduct of third persons or to enforce the law for the benefit of specific individuals; and (2) sovereign immunity bars this action.

After conducting an evidentiary hearing, the trial court denied the County's motion for summary judgment. Because the evidence clearly establishes that sovereign immunity bars this action as a matter of law, the trial court was required to grant the County's motion for summary judgment. I, therefore, respectfully dissent from the majority opinion affirming the trial court's order denying the County's motion for summary judgment.

JURISDICTION

In Rodriguez v. Miami-Dade County, 117 So.3d 400, 402 (Fla. 2013), the Florida Supreme Court found that the appellate courts lacked jurisdiction to review, by a petition for writ of certiorari, a trial court's order denying a motion to dismiss on sovereign immunity grounds where the governmental entity claiming the immunity has failed to demonstrate irreparable harm and where there exists material issues in dispute. The Court also reiterated its position that irreparable harm is not shown simply because the governmental entity must continue to litigate the matter despite its claim of immunity. Id. at 405. A majority of the Court, however, requested that the Florida Bar Appellate Court Rules Committee ("the Rules Committee") propose an amendment to Florida Rule of Appellate Procedure 9.130 to expand the list of appealable non-final orders to include denials of any claim of immunity where the question presented is solely a question of law. Id. at 405. In response, the Rules Committee proposed, and the Florida Supreme Court adopted, rule 9.130(a)(3)(c)(xi), which now permits such appeals. We, therefore, have jurisdiction to entertain this appeal, as the question presented is whether the County is immune from suit as a matter of law.

ANALYSIS

Based on my review of the trial court's comments during the evidentiary hearing conducted by the trial court, it is necessary to reiterate that when addressing the issue of governmental tort liability under Florida law, the court's "duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes." Wallace v. Dean, 3 So.3d 1035, 1044 (Fla. 2009) (footnote omitted). The analysis, therefore, consists of two-prongs. "If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached." Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 932 (Fla. 2004) ; see also Breaux v. City of Miami Beach, 899 So.2d 1059, 1063 (Fla. 2005) (noting that "[i]n cases involving governmental tort liability, we generally determine whether the defendant owes a duty of care to the plaintiff before we address whether the governmental entity is immune from liability"); Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003) (identifying "duty of care" as the first required element of a negligence claim); Henderson v. Bowden, 737 So.2d 532, 535 (Fla. 1999) ("A threshold matter is whether the [defendant] had a duty to act with care toward the decedents ...."). "[T]he absence of a duty of care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit." Wallace, 3 So.3d at 1044 (emphasis in original). In other words, the absence of a duty of care renders the defendant nonliable as a matter of law, and the trial court does not need to address whether the governmental entity is sovereignly immune from suit. Wallace, 3 So.3d at 1045.

However, it is important to remember that the analysis is a two-prong analysis, and thus, even where the plaintiff has established the existence of the governmental entity's duty of care towards the plaintiff, sovereign immunity may still shield the government from legal action and liability. Wallace, 3 So.3d at 1044 ; see also Henderson, 737 So.2d at 535 ("Assuming a duty is owed, we must then determine whether sovereign immunity bars an action for an alleged breach of that duty."); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla. 1989) ("[C]onceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.") (quoting Williams v. State, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 139 (1983) ).

Unfortunately, the trial court in the instant case did not appreciate the need to perform this two-step analysis, and either focused solely on the duty prong or conflated the two separate prongs of the analysis. See Wallace, 3 So.3d at 1045 (noting that in Miami-Dade County v. Fente, 949 So.2d 1101, 1103-05 (Fla. 3d DCA 2007), and in Seguine v. City of Miami, 627 So.2d 14, 17 (Fla. 3d DCA 1993), this Court conflated the issue of whether the government owed a duty of care to the plaintiff with the separate and distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability); see also City of Belle Glade v. Woodson, 731 So.2d 797 (Fla. 4th DCA1999) (similarly conflating duty of care with sovereign immunity). Although the trial court's order reflects a failure to perform this two-prong analysis, the record demonstrates that the County established under the second prong of the analysis that as a matter of law it is sovereignly immune from suit. I would therefore reverse the trial court's order.

A. Duty of Care

Under the two-prong analysis, the County is immune from liability if the County establishes either that it owed Pozos no duty of care or the County demonstrates that it is sovereignly immune from suit. I will, therefore, address each prong separately in this dissent. In Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla. 1985), the Florida Supreme Court issued a comprehensive opinion addressing the duty of care prong of the analysis, and articulated a " 'rough,' general guide concerning the type of activities that either support or fail to support the recognition of a duty of care between a governmental actor and an alleged tort victim." Wallace, 3 So.3d at 1047. To summarize, the Trianon Court made the following findings.

1. First, "for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care." Trianon, 468 So.2d at 917 (internal citations omitted).
2. Second, "the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities." Id. Thus, governmental entities have the identical duties of care as private persons do. Id.
3. Third, "there is not now, nor has there ever been any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals. In addition, there is no common law duty to prevent the misconduct of third persons." Id. at 918
4. Fourth, "under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Id. at 918. Specifically, the Court held that "[j]udicial intervention through private tort suits into the realm of discretionary decisions relating to basic governmental functions would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine." Id. at 918.
5. Lastly, "certain discretionary functions of government are inherent in the act of governing and are immune from suit. It is 'the nature of the conduct, rather than the status of the actor,' that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability." Id. at 918 (internal citations omitted).

The Florida Supreme Court's finding that "certain discretionary functions of government are inherent in the act of governing and are immune from suit" is, perhaps, the most difficult finding to apply, especially since the demarcation between discretionary and other executive or administrative decisions must be determined on a case-by-case basis. Trianon, 468 So.2d at 918. Thus, the Court set forth a list of criteria to assist the courts when determining whether the governmental conduct eminates from the discretionary planning or judgment phase of government, which is not subject to tort liability, or during the operational phase of government. If the governmental conduct or decision was operational, tort liability may attach if there exists either a common law or statutory duty of care and there exists no sovereign immunity for the governmental conduct or decision. Id.

The four categories regarding governmental functions are as follows:

I. Legislative, Permitting, Licensing, and Executive Officer Functions.
Clearly, the legislature, commissions, boards, city councils, and executive officers, by their enactment of, or failure to enact, laws or regulations, or by their issuance of, or refusal to issue, licenses, permits, variances, or directives, are acting pursuant to basic governmental functions performed by the legislative or executive branches of government. The judicial branch has no authority to interfere with the conduct of those functions unless they violate a constitutional or statutory provision. There has never been a common law duty establishing a duty of care with regard to how these various governmental bodies or officials should carry out these functions. These actions are inherent in the act of governing.
II. Enforcement of Laws and Protection of the Public Safety.
How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials, as well as the discretionary authority given fire protection agencies to suppress fires. This same discretionary power to enforce compliance with the law is given to regulatory officials ....
The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care.
III. Capital Improvement and Property Control Functions.
As this Court has made clear in prior cases, there is no liability for the failure of a governmental entity to build, expand, or modernize capital improvements such as buildings and roads. ... On the other hand, once a governmental entity builds or takes control of property or an improvement, it has the same common law duty as a private person to properly maintain and operate the property.
IV. Providing Professional, Educational, and General Services.
Providing professional, educational, and general services for the health and welfare of citizens is distinguishable from the discretionary power to enforce compliance with laws passed under the police power of this state. These service activities, such as medical and educational services, are performed by private persons as well as governmental entities, and common law duties of care clearly exist. Whether there are sufficient doctors provided to a state medical facility may be a discretionary judgmental decision for which the governmental entity would not be subject to tort liability. Malpractice in the rendering of specific medical services, however, would clearly breach existing common law duties and would render the governmental entity liable in tort.

Trianon, 468 So.2d at 919-921 (italics in original; internal citations omitted).

In Wallace, the Florida Supreme Court explained that the activities listed in Category I pertain to the public at large, and thus they do not support a duty of care towards individual plaintiffs. Id. at 1047. The same is true for activities falling within Category II, unless it can be shown that the governmental actor owed the alleged tort victim a "special duty of care." Id. at 1047-48. On the other hand, Category III and IV activities generally may subject the government to liability. Id. at 1048.

The law as it relates to the duty of care prong when addressing the issue of governmental tort liability may, therefore, be summarized as follows. To establish governmental tort liability, there must be an underlying common law or statutory duty of care; there is no common law duty to enforce the law for the benefit of individuals or groups of individuals or to prevent the misconduct of third person; there is no duty of care for certain basic judgmental or discretionary governmental functions absent a special duty of care owed to the tort victim; and once the governmental entity builds, improves, or takes control of property, it has the same common law duty as a private person to properly maintain and operate the property.

B.Sovereign Immunity

As stated earlier, even where a duty is owed, sovereign immunity may bar an action for an alleged breach of that duty, see Pollock 882 So.2d at 932-33 ; Henderson, 737 So.2d at 535 ; Kaisner, 543 So.2d at 734, because in Florida, "governmental immunity derives entirely from the doctrine of separation of powers, not from a duty of care or from any statutory basis." Kaisner, 543 So.2d at 737.

When addressing the test for determining when a governmental entity enjoys sovereign immunity, the Florida Supreme Court held "that the separation-of-powers provision present in article II, section 3 of the Florida Constitution requires that 'certain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.' " Wallace, 3 So.3d at 1053 (quoting Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010, 1020 (Fla. 1979) ). On the other hand, decisions made at the operational level-decisions or actions implementing policy, planning, or judgmental governmental functions-generally do not enjoy sovereign immunity. Commercial Carrier, 371 So.2d at 1021. "Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy." Id. (footnote omitted).

While nearly every endeavor involves some level of discretion, it is the governmental quasi-legislative discretion exercised at the policy-making or planning level which is protected from tort liability. Wallace, 3 So.3d at 1053 ; Yamuni, 529 So.2d at 260. Thus, in addition to the five basic principles identified by the Florida Supreme Court in Trianon, which have been listed at the beginning of this analysis, the Court recognized that "there were areas of government activity where orthodox tort liability stops and the act of governing begins, ... as well as the distinct principle of law ... which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing." Trianon, 468 So.2d at 918 (internal citations and quotation marks omitted). Further, "certain discretionary governmental functions remain immune from tort liability ... because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance." Id. (internal citations and quotation marks omitted).

C. Applying the Law to the Instant Case

The trial court's order denying the County's motion for summary judgment provides this Court with absolutely no guidance. The order does not contain the basis for the trial court's ruling, perform even a perfunctory analysis, indicate whether there were any material factual issues in dispute or factual issues generally reserved for the trier of fact, or specify which of the prong(s) of the analysis the County failed to establish.

Because the duty of care prong involves resolution of factual issues, which the trial court failed to address, and the record reflects potential disputed material factual issues as to whether the County owed Pozos a legal duty of care, my analysis is focused on the sovereign immunity prong, which if established by the County as a matter of law, required the grant of summary judgment in its favor. That is because even if the trial court were to have found that the County owed Pozos a duty of care or that there were material facts in dispute or facts that needed to be resolved by the jury as to duty, if the County's conduct, actions, or decisions were as a result of its discretionary policy-making or planning function, then it is sovereignly immune from suit as a matter of law.

The record reflects the following. On August 24, 2012, Eli Salgado purchased a Miami-Dade County Park Foundation membership for $149. This membership included a coupon book containing several promotional items, including two tickets to the zoo, a 50% discount coupon for golf, and a coupon for the use of a park shelter without payment of the requisite rental fee. Along with Salgado's membership and the coupon booklet, Salgado was given a copy of the Park's rules and regulations to be followed when renting a facility at the Park. These rules contained a section regarding when permits and off-duty officers are required and provided notice to Salgado that it was his responsibility to obtain the correct permit(s) and to hire off-duty police officers under certain circumstances. For example, these rules provided that when a D.J., live music, or speakers are going to be used, the person renting the facility or hosting the event at the Park must obtain a broadcast permit and hire and pay for off-duty police officers. Depending on the type or size of the party or event, other permits are required, and again, Salgado must hire off-duty police officers to provide security for the event. Specifically, the rules and regulations provided that if Salgado was expecting over a certain number of guests, then he would be required to hire two off-duty police officers and obtain a special events permit. The rules and regulations additionally stated that the Park's employees would not be responsible for providing any of these items.

When Salgado rented a shelter at the Park for his September 22, 2012 birthday party, he simply asked to rent the shelter and used the free rental coupon contained in his membership coupon booklet. He did not advise anyone that he was going to hire a D.J., and he did not obtain any permits or hire any off-duty police officers. Instead, he procured two private security officers to provide security at the party.

The only Park employee present for this after-hours private party was Diogenes Martin, a part-time Park Service Aide, whose responsibilities were to clean the restrooms and the Park before and after an event and to keep the area clean and change the trash bags during the event. Also present was a teenage volunteer who was helping Martin that night. Victor Jenkins, the Goulds South Dade Zone Manager who is responsible for managing seventeen parks for Miami-Dade County Parks and Recreation, testified in his deposition that the County has only budgeted for twenty-seven park security officers to service all of the recreational facilities throughout the County. These officers are directed to mainly patrol the beaches and marinas on the weekends. Because the County does not provide security at these private parties and events, it requires the patron renting a park facility to contact the police department and hire off-duty officers for certain events.

Martin testified in his deposition that he performed his duties as required on the night of the party. He made sure the restrooms and area were clean, the trash was properly disposed of, and the trash bags were changed when the cans became full. He explained that Salgado was celebrating his eighteenth birthday, and the party consisted of mostly sixteen-to-eighteen-year-olds who were eating, dancing, and just having a good time. Salgado's parents were present, and there were also two large men wearing "Security" T-shirts present who appeared to be patrolling the area and providing security for the party. He did not see anyone using drugs, fighting, or having a confrontation with anyone. Everything was calm and everyone seemed to be having a good time when all of a sudden, at around 10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the kids had been shot, he called 911 and then called his supervisor.

Inga Portilla, a Park Manager, confirmed that Park Service Aides are only responsible for maintenance within the Park. They do not provide security, do not check to see if the renter has obtained the required permits, are not trained in crime prevention, and are not authorized to "police" the area. She also confirmed that after Salgado paid his membership fee, a booklet was sent to his house containing the rental coupon and a copy of the Park's rules and regulations. These rules and regulations are also posted at the Park. Portilla explained that "once we rent the facility ... we don't have anything to do with direct involvement of the parties," and that it was Salgado's responsibility to follow the rules, obtain the necessary permits, and hire off-duty police officers if he was having a party that required off-duty police officers, as "[w]e are not responsible for the party."

Pozos presented no evidence to refute any of the above referenced evidence. The affidavit/statement provided by Salgado, the renter and host of the party, does not refute the testimony of the park employees or the physical evidence. Salgado did not dispute that he had received a copy of the Park's rules and regulations related to rentals of the Park's facilities. He merely states that when he rented the pavilion he was not advised that he needed to hire off-duty officers and that he did not recall if anyone had asked him how many people he expected would be attending the party.

Therefore, the unrefuted evidence supports the legal conclusion that the County made a discretionary policy/planning decision to allow patrons of its parks to rent its facilities for private parties or events. Relying on its legislative/permitting/ licensing authority, the County enacted certain rules and regulations governing the rental and use of its parks and the park's facilities. Based on the County's limited resources, it exercised its discretion to assign only twenty-seven officers to the Parks and Recreation Department to service all of the parks, beaches, and County-owned recreational areas located throughout the county and to direct those officers to primarily patrol the public beaches and marinas on the weekends, rather than directing them to patrol and monitor private parties being held in public parks. The County, therefore, included certain restrictions and requirements within its enacted rules and regulations and rental agreements, which the party or event host was required to follow. Among other things, these rules and regulations required the renter to go to the police department and (1) obtain a broadcast permit if using a D.J., live music, or sound equipment; (2) obtain a special event permit if over 200 guests were expected to attend; and (3) hire off-duty police officers under each of these scenarios. The rules and regulations and the rental agreement specified that the County's park employees would not be responsible for the failure to meet any of these requirements.

When Salgado purchased his Park membership, he was sent a copy of these rules and regulations. Salgado, however, did not abide by these rules and regulations when he used his free coupon to rent a pavilion for his birthday party. Although he had a D.J. and sound equipment at the party, he did not obtain a broadcast permit or hire off-duty police officers from the police department. Whether he was additionally required to obtain a special event permit and hire off-duty police officers based on the number of guests he expected to attend is unclear because the evidence does not reflect whether Salgado expected so many people to attend and whether there were more than 200 guests at the party. This issue is nevertheless irrelevant because, based on Salgado's use of a D.J. and sound equipment, he was required to hire two off-duty police officers anyway. However, instead of obtaining the necessary permit(s) and hiring off-duty police officers, Salgado hired two private-duty security officers.

Whether Salgado's failure to follow the County's rules and regulations was the proximate cause of the shooting during his party is, however, not the issue before us. Setting aside the question of whether the County even had the duty to protect Salgado's invitees against the unlawful conduct of a third party during Salgado's party at the Park, the County was sovereignly immune from tort liability as a matter of law. As stated earlier, that is because if the County demonstrated that either it did not owe the plaintiff a duty of care or the County's decision, omission, or conduct was as a result of its quasi-legislative discretionary policy or planning decision, the County would be sovereignly immune from tort liability. Wallace, 3 So.3d at 1044 ; Henderson, 737 So.2d at 535 ; Kaisner, 543 So.2d at 734 ; Trianon, 468 So.2d at 917-21.

Because the County's decisions were quasi-legislative discretionary policy or planning decisions it is sovereignly immune from suit and thus, it was entitled to summary judgment as a matter of law. This conclusion is supported by prior decisions from the Florida Supreme Court, this Court, and our sister courts.

For example, in Delgado v. City of Miami Beach, 518 So.2d 968 (Fla. 3d DCA 1988), this Court affirmed the trial court's order granting the City of Miami Beach's motion for summary judgment after concluding that the City of Miami Beach was protected from liability under the doctrine of sovereign immunity as a matter of law. Delgado was injured when someone in the crowd ignited fireworks which struck and burned Delgado's leg while he was attending a concert and a fireworks display sponsored by the City of Miami Beach. Delgado claimed that the City of Miami Beach, which had sponsored the event, breached its duty by failing to prohibit the attendees from possessing and detonating their own fireworks. This Court, however, concluded that the City of Miami Beach's "actions fell within the planning-level, discretionary function of government, for which no liability attaches." Id. at 969. Specifically, this Court held that "[t]he manner in which a city, through its police officers, exercises discretionary authority to enforce compliance with the laws and protect the public safety, falls squarely within the city's power to govern. Accordingly, the city is protected under the doctrine of sovereign immunity." Id. (citing Trianon, Commercial Carrier, and other cases).

As in Delgado, the County's actions in the instant case-not assigning officers to patrol or be present at private parties or events held in its public parks, but to, instead, require those who rent its park facilities to obtain permits and hire off-duty officers under certain circumstances-was a discretionary planning and/or policy decision. It was a governmental decision made in the exercise of its discretionary authority regarding the manner in which compliance and enforcement of the law and the protection of the public would be effectuated. How the County notified those who rented its park facilities of their obligations and responsibilities was also a planning/policy discretionary governmental decision. Because parks such as Benito Juarez Park were "un-manned" parks with only part-time maintenance employees in attendance, the County, in the exercise of its discretion, put into place a policy requiring the County to notify each individual who purchased a Park membership or rented a Park facility by providing him/her with a copy of the Park's rules and regulations. The unrefuted evidence in this case is that these rules and regulations were sent to the Salgado's home along with his coupon book after he purchased his Park membership. Because these decisions fell squarely within the County's power to govern, they are protected as a matter of law under the doctrine of sovereign immunity.

The decisions of the County regarding where and how to deploy its available manpower (sworn police officers) is a discretionary or planning function. And, as the Florida Supreme Court stated in Trianon, "under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Trianon, 468 So.2d at 918. "While sovereign immunity is a silent issue here, we ought not lose sight of the fact that inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers." Wong v. City of Miami, 237 So.2d 132, 134 (Fla. 1970) ; see also Commercial Carrier, 371 So.2d at 1020 (quoting Wong, 237 So. 2d at 134 ):

The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed ....

The majority contends that because the trial court simply denied the County's motion for final summary judgment, this Court lacks jurisdiction to review that ruling. I respectfully disagree.

I recognize that unless it can be determined as a matter of law that either the County had no duty or it is immune from suit, this Court lacks jurisdiction to review the trial court's order denying the County's motion for summary judgment. This Court has jurisdiction in this case because there are no disputed issues of fact as to the immunity prong, and thus the County is immune from suit as a matter of law. The County's decisions as to: how many officers to employ and allocate to patrol the County's recreational facilities; whether to rent its facility for the use of a private party or function; what rules and regulations should be adopted for that purpose; and the responsibilities and duties to be borne by the renter, are all quasi-legislative discretionary policy/planning decisions. Thus, the County is immune from suit, and therefore, was entitled to summary judgment as a matter of law.

The majority contends that, because the trial court's order does not articulate the basis for its ruling, there could have been a number of reasons why the trial court denied the County's motion for summary judgment. For example, the majority posits that there may have been disputed issues of material fact precluding summary judgment. While I agree that the record may support a finding that there are disputed issues of material fact as to the duty prong, there were, however, no disputed issues of material fact as to the immunity prong, and therefore the determination as to whether the County is sovereignly immune from suit is a legal determination, not a factual determination in this case.

The majority opinion also cites to two cases in footnote 2 in support of its position that this Court lacks jurisdiction to review the order denying the County's motion for summary judgment on the basis of sovereign immunity. The first case is Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90, 2016 WL 6992583 (Fla. 3d DCA Nov. 30, 2016). Sosa, however, is distinguishable.

First, the order appealed in Sosa was an order denying Citizen's motion to strike or dismiss Counts II and III of the complaint, not from an order denying a motion for summary judgment. Second, this Court specifically noted that the transcript of the hearing on the motion to dismiss revealed that the trial court did not reach or rule on the issue of immunity when it denied Citizen's motion to dismiss. Third, the motion to dismiss was only being denied until a coverage determination was made. Under these circumstances, this Court concluded that the order was not a reviewable non-final order.

In contrast, the issue of sovereign immunity was squarely before the trial court in the instant case; the motion before the trial court was not a motion to dismiss, but rather, was a motion for summary judgment based on sovereign immunity; and the trial court did not simply defer or abate its ruling-it decided the issue based on the factual record before it. The parties in the instant case presented evidence and made arguments relating to both the duty and sovereign immunity prongs of the County's immunity from suit argument. While there were disputed issues of fact regarding the duty prong, there were no disputed issues of fact as to the sovereign immunity prong. And the undisputed facts as to the sovereign immunity prong established that the County is sovereignly immune from suit. Thus, the trial court erred as a matter of law by denying the County's motion for summary judgment, and this Court has jurisdiction to review that order.

The second case cited by the majority in footnote 2 is Taival v. Barrett, 204 So.3d 486 (Fla. 5th DCA 2016). The one paragraph opinion provides little direction but, based on the parentheticals following the citations in the body and footnotes in the opinion, it appears that, unlike the case before this Court, there were disputed issues of fact.

I also disagree with the majority's interpretation of rule 9.130(a)(3)(C)(xi). In 2012, the Florida Supreme Court was presented with a certified question of great public importance in Keck v. Eminisor, 104 So.3d 359, 360 (Fla. 2012), which it rephrased as follows:

Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law ?

(emphasis added). The Florida Supreme Court answered the certified question in the negative and requested an amendment to rule 9.130 to reflect the rule change "mandated by this decision." Id. at 366. Thereafter, rule 9.130 was amended to add subsections (x) and (xi).

(3) Appeals to the district courts of appeal of non-final orders are limited to those that
....
(C) determine
....
(x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes ; or
(xi) that, as a matter of law, a party is not entitled to sovereign immunity.

In reaching its decision in Keck, the Florida Supreme Court specifically noted that:

[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant.
For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a)is subject to interlocutory review where the issue turns on a question of law .

Keck, 104 So.3d at 366 (emphasis added).

Of particular note is the fact that, although the First District Court of Appeal had not addressed whether Keck was entitled to the immunity provided under section 768.28(9)(a) because it believed it had no authority to review the trial court's order in an interlocutory appeal, the Florida Supreme Court reviewed the record itself and made that determination. Keck, 104 So.3d at 366-67. Ultimately, the Court concluded that based on the undisputed material facts, Keck was entitled to immunity under section 768.28(9)(a). Id. at 366-67.

As in Keck, I have reviewed the record and the record reflects that based on the undisputed material facts, the County is entitled to immunity as a matter of law. Because the material facts relevant to the sovereign immunity prong of the analysis were undisputed, the determination as to whether the County is sovereignly immune "turns on a question of law" thus subjecting the trial court's denial of the County's motion for summary judgment reviewable on interlocutory appeal. Id. at 366.

CONCLUSION

The determination of whether a governmental entity is immune from liability involves a two-prong analysis: (1) whether the governmental entity owed the plaintiff a duty of care; and (2) whether sovereign immunity bars the actions based on an alleged breach of that duty. If the governmental entity establishes either that it owed no duty to the plaintiff or it was entitled to sovereign immunity, it is entitled to summary judgment.

Although the trial court's order merely denies the County's motion for summary judgment, the failure to specify the basis for that denial is not fatal because, even if the County owed the plaintiff a duty of care, or there was a material factual dispute as to the issue of duty (which was not addressed in my analysis), the County is immune from suit as a matter of law because it established the second prong of the analysis-that the County's decisions in this case were discretionary, quasi-legislative, planning, or policy decisions. The trial court therefore erred by denying the County's motion for summary judgment. Accordingly, I would reverse the order on appeal and remand for entry of an order granting summary judgment in favor of the County.

I believe that the majority has erred by focusing its analysis on the deficiency of the trial court's order. Although the trial court's order merely denies the County's motion for summary judgment without elaboration, by issuing such an order, it is denying the County's claim of sovereign immunity, which, based on the record before it, clearly established the County's immunity from suit. The majority opinion has, however, concluded that because the trial court's order does not specify the grounds for its denial, review of that order is premature and constitutes a non-appealable non-final order. Thus, based on the majority opinion, it appears that the County is not precluded from filing a new appeal after obtaining an order in which the trial court makes actual findings regarding the sovereign immunity prong of the analysis.

      We note parenthetically that a party may seek certiorari review of a nonfinal order not otherwise appealable under rule 9.130(a)(3). See Fla. R. App. P. 9.100(a) ; 9.130(a)(1).

      The only reported cases construing these newly-adopted amendments are Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90, 2016 WL 6992583 (Fla. 3d DCA Nov. 30, 2016) and Taival v. Barrett, 204 So.3d 486 (Fla. 5th DCA 2016), both released after oral argument was held in the instant case.
      In Sosa, another panel of our court rejected the argument that the order under review was appealable as a nonfinal order that determined Citizens was not entitled to sovereign immunity: "Here, the trial court's order fails to state that, as a matter of law, sovereign immunity is not available to Citizens. As such, the trial court's order is not appealable pursuant to Rule 9.130(a)(3)(C)(xi)." Sosa, 215 So.3d at 91.
      In Taival, the defendant filed a motion for summary judgment, asserting that she was sovereignly immune from suit under section 768.28(9). The trial court entered an order that simply denied the motion. The Fifth District dismissed the appeal for lack of jurisdiction, holding: "As we have previously explained, an order that simply denies the defendant's motion for summary judgment, but does not determine, as a matter of law, that summary judgment is improper, is not appealable." Taival, 204 So.3d at 487 (citations omitted).

      The pre-1996 version of rule 9.130(a)(3)(C)(v) (which at the time was numbered as (vi)) provided:
      (3) Review of non-final orders of lower tribunals is limited to those that
      ....
      (C) determine
      ....
      (vi) that a party is not entitled to workers' compensation immunity as a matter of law.

      Additional support can be found in cases construing the scope of an appeal from a nonfinal order under rule 9.130(a)(3)(C)(vii), authorizing an appeal from a nonfinal order which "determines ... that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law." Consistent with cases construing the workers' compensation immunity provision, courts have held that the order is appealable only if it expressly determines that, as a matter of law, the party is not entitled to absolute or qualified immunity. See, e.g., Tindel v. Kessler, 772 So.2d 599 (Fla. 5th DCA 2000) ; Vermette v. Ludwig, 707 So.2d 742 (Fla. 2d DCA 1997).

      The dissent opines, at *33: "I recognize that unless it can be determined as a matter of law that either the County had no duty or it is immune from suit, this Court lacks jurisdiction to review the trial court's order. ..." (Emphasis added.) This statement erroneously implies that either the trial court or this court can make such a determination. However, rule 9.130(a)(3) requires the trial court to make such a determination. This court's duty (and the scope of our authority under the rule) is to review the propriety of the trial court's determination. In the absence of such a determination by the trial court, this court is without jurisdiction to review this nonfinal order, and most certainly without authority to make the determination on our own accord.


source: Caselaw Access Project

author: Winokur, J.

license: Public Domain

text:
    CITY OF HOMESTEAD/Preferred Government Claims Solutions, Appellants, v. Harley FOUST, Appellee.
    No. 1D16-5589
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied May 10, 2018
    Eric L. Stettin, Laura K. Wendell, and Adam A. Schwartzbaum, of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
   Winokur, J.

The City of Homestead and Preferred Government Claims Solutions (E/C) appeal an order of the Judge of Compensation Claims (JCC) finding compensability of, and awarding benefits for, Claimant Harley Foust's heart disease and hypertension by operation of section 112.18, Florida Statutes. For the following reasons, we reverse.

The underlying facts are not disputed. Claimant is a law enforcement officer (LEO) who has both heart disease and hypertension. In May 2015, he had a disabling event due to both conditions, and sought compensability of both, as well as medical and indemnity benefits, claiming that he was entitled to the presumption of occupational causation of heart disease and hypertension for LEOs available under section 112.18(1), Florida Statutes. The E/C responded that Claimant was not eligible for the statutory presumption because he had not met all of the statutory prerequisites-specifically, he had not undergone a physical examination upon entering into service as a full-time LEO.

Claimant argued that he met that prerequisite because he had undergone a physical on January 28, 1983, before becoming an auxiliary LEO with the City on October 2, 1983, that this examination did not reveal any evidence of heart disease or hypertension, and that this examination counts as a "pre-employment physical" for his hire as a full-time LEO on October 4, 1984. Claimant argued that nothing in the law requires a second physical examination, both because he had the same employer and never left employment, and because section 943.13, Florida Statutes, which establishes the qualifications for LEOs, requires a physical examination for hire as an LEO without distinguishing between auxiliary and full-time.

The E/C, in contrast, argued that Claimant's January 1983 physical does not fulfill the statutory prerequisite because it did not occur "upon entering into any such service" as a full-time LEO. Instead, noting that the form for the 1983 physical indicates that it is for "PROPOSED JOB TITLE: Aux. Police Officer," the E/C argues that the physical related to his service as an auxiliary LEO, and section 112.18 does not include auxiliary LEOs. Specifically, section 112.18 refers to subsection 943.10(1), Florida Statutes, which includes only full-time LEOs (auxiliary LEOs are defined in subsection 943.10(8) ). The E/C also noted that the section 112.18 presumption did not apply to local LEOs until 2002.

The JCC found that Claimant satisfied the physical-examination requirement of section 112.18 on three alternative grounds: 1) the statutory presumption of section 112.18 did not apply to local LEOs at the time of Claimant's hire, so the pre-employment requirements of section 112.18 are not retroactive; 2) the employer waived or acquiesced to use of the 1983 physical for the 1984 hire as a full-time LEO; and 3) the 1983 physical was conducted at or near the time of entering full-duty status. We disagree with each of these rationales.

Regarding the first ground, both parties agree that the 2002 amendments to section 112.18, which extended the statutory presumption to local LEOs, were procedural and, therefore, the prerequisites to the presumption are retroactive and apply to Claimant. However, regardless of whether section 112.18 (or the 2002 amendment) is substantive or procedural, the earliest version of the statute that could apply to Claimant is the 2014 version-which already included LEOs-because Claimant's date of accident was his date of disability, May 12, 2015. See Gomar v. Ridenhour Concrete & Supply , 42 So.3d 855, 858 (Fla. 1st DCA 2010) ("[T]he date of accident dictates which version of a substantive statute applies."); Scherer v. Volusia Cty. Dep't of Corr. , 171 So.3d 135, 137 (Fla. 1st DCA 2015) (reiterating that for occupational diseases such as heart disease" 'the disablement ... shall be treated as the happening of an injury by accident' " (quoting Hoppe v. City of Lakeland , 691 So.2d 585, 586-87 (Fla. 1st DCA 1997) ) ). To the extent the JCC's ruling suggests that Claimant could rely on the presumption without meeting all of its prerequisites, we reject that interpretation of section 112.18 because section 112.18 has included all of its prerequisites since its enactment in 1965.

The second ground cited by the JCC fails because the record does not contain evidence of either a waiver or acquiescence. A waiver is defined as a "voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right." Major League Baseball v. Morsani , 790 So.2d 1071, 1077 n.12 (Fla. 2001) (citing Kissimmee Util. Auth. v. Better Plastics, Inc. , 526 So. 2d 46, 48 (Fla. 1988) ). To the extent that an E/C has a "right" to object to the validity of a pre-employment physical for purposes of the section 112.18 presumption (a question we do not answer here), certainly in this case the E/C could not have voluntarily and intentionally relinquished that right at the time of the hire (in the early 1980s) because neither the physical-examination requirement, nor the presumption itself, applied to LEOs at that time. As such, the E/C could not have waived that right. And to the extent that an Employer can "acquiesce" to the use of a particular physical examination for purposes of the statutory presumption, we find that no evidence beyond speculation supports the conclusion that the City "acquiesced" in the use of the January 1983 physical as a pre-employment physical upon Claimant's hire as a full-time LEO.

Finally, the JCC found that Claimant met the statutory physical-examination requirement because his physical was given " 'at or near' the time of entering full duty status." The statute requires the physical examination "upon entering into any such service as a ... law enforcement officer." § 112.18(1)(a), Fla. Stat. Although the JCC did not err in looking to the date of hire as a full-time LEO (because auxiliary LEOs are not eligible for the presumption), we find that the twenty-one months between the physical examination and the hire date is too lengthy a period of time to qualify as "upon entering into" service. Only two cases deal with the "upon entering into" requirement; one holds that a difference of ten to fifteen days qualified as "upon entering into," and the other holds that an examination given two years after the hiring date did not qualify as "upon entering into." See City of Tarpon Springs v. Vaporis , 953 So.2d 597 (Fla. 1st DCA 2007) (holding that a physical examination occurred "upon entering into service" where it was partially administered ten days before employee's first day of employment and completed fifteen days after first day of employment); Cumbie v. City of Milton , 496 So.2d 923, 924 (Fla. 1st DCA 1986) (holding that the statutory presumption did not apply because no physical was done, and noting in dissent that the first city-sponsored physical of claimant was done "nearly two years after claimant's entry into service"). Because Claimant did not pass a physical examination upon entering into service as a full-time LEO, he is not entitled to the presumption of occupational causation of his heart disease and hypertension under section 112.18(1).

REVERSED and REMANDED for further proceedings in accordance with this opinion.

B.L. Thomas, C.J., and Makar, J., concur.

      Section 112.18(1)(a) reads in pertinent part as follows:
      Any condition or impairment of health of ... any law enforcement officer ... as defined in s. 943.10(1) ... caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such ... law enforcement officer must have successfully passed a physical examination upon entering into any such service as a ... law enforcement officer, which examination failed to reveal any evidence of any such condition.

      Section 112.18 was enacted in 1965, but applied only to firemen. Ch. 65-480, § 1, at 1655, Laws of Fla. The statutory presumption was extended to state LEOs in 1999, and to all LEOs in 2002. Ch. 99-392, § 21, at 4000, Laws of Fla.; Ch. 2002-236, § 3, at 1720, Laws of Fla.

      We reject Claimant's argument that a physical examination prior to hire or appointment to any category of LEO, including auxiliary LEO, qualifies for the section 112.18 presumption. By requiring the examination to be "upon entering into any such service" as a "law enforcement officer," it is clear that the statute refers to an examination before hire as a LEO defined by section 943.10(1), meaning a full-time officer. We also reject Claimant's contention that section 943.13(6), Florida Statutes, supports his argument.


author: SALARIO, Judge.

text:
    KIA MOTORS AMERICA, INC., Appellant, v. Khristopher DOUGHTY and Katarzyna Dziewiecien, Appellees.
    Case No. 2D16-3861
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
    Brooks C. Rathet of Bromagen & Rathet, P.A., Tampa, for Appellant.
    Jeanne M. Cremeens of The Law Office of Patrick J. Cremeens, P.L., Tampa, for Appellees.
   SALARIO, Judge.

In this action for breach of a motor vehicle warranty, Kia Motors America, Inc. appeals from a final judgment after a jury trial awarding $15,000 in damages to Khristopher Doughty and Katarzyna Dziewiecien. We affirm without comment in all respects but one. We agree with Kia that the evidence produced by Mr. Doughty and Ms. Dziewiecien was legally insufficient to establish the amount of their damages.

We reverse the damages portion of the judgment and remand for entry of a judgment awarding nominal damages.

The evidence at trial, which consisted of the testimony of Mr. Doughty and some documents introduced during that testimony, was sufficient to establish the following. In April 2013, Mr. Doughty and Ms. Dziewiecien bought a new 2012 Kia Optima hybrid from a dealership in Pennsylvania. The purchase price of the car was $25,676.50. After factoring in rebates, Mr. Doughty and Ms. Dziewiecien paid $21,867. They received a written limited warranty from Kia. In substance, the warranty provided that if the car failed to work correctly when it was being used normally, Kia would have an authorized Kia dealer fix the car. The repairs would be paid for by Kia. The warranty was good for six years or sixty thousand miles, whichever came first.

Mr. Doughty and Ms. Dziewiecien began having problems with the car in early to mid-2014. The car's "check engine light" was on, the car displayed a message reading "hybrid system failure" and alerted the driver to pull over and not drive, the transmission was making a grinding noise, and the car was losing power. At that time, Mr. Doughty, who serves in the Air Force, was stationed at a base in North Dakota. He contacted Kia and took the car to the dealership as instructed. After a first attempt at repair did not fix the problem, he returned to the dealership, which again attempted to repair the car and then gave it back to him.

The car was not fixed. While Mr. Doughty and Ms. Dziewiecien were traveling in the car with their family, they heard a loud sound, the car's wheels locked up, and the vehicle skidded off to the side of the road. Kia had the car towed to a different dealership, which replaced the engine and returned the car two months later. Not too long thereafter, there was another incident in which the car made a loud sound, the wheels locked up, and the car skidded off to the side of the road.

Mr. Doughty returned the car to the dealership. It remained there for a year, unrepaired. Mr. Doughty had the car towed to Florida, where Mr. Doughty and Ms. Dziewiecien were then living and where the car remained parked. Mr. Doughty went to a Kia dealership to trade the car for another one of the same year, make, and model. The dealership would not accept the trade. He also attempted to sell the vehicle privately for $5000, but he was unable to do so.

Mr. Doughty and Ms. Dziewiecien commenced this action against Kia. The operative complaint asserted a single count for breach of express warranty pursuant to 15 U.S.C. § 2310(d)(1) (2014), a provision of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 - 2312. Mr. Doughty and Ms. Dziewiecien alleged that the car's problems were the result of defects in manufacturing workmanship or materials and that Kia had failed to repair the vehicle as required by the warranty.

The case proceeded to a jury trial, where Mr. Doughty and Ms. Dziewiecien sought damages for the diminished value of their defective car as well as incidental and consequential damages. Kia made motions for directed verdict arguing, among other things, that Mr. Doughty and Ms. Dziewiecien failed to present legally sufficient evidence of diminished-value damages. The trial court denied that motion, and the jury returned a verdict in favor of Mr. Doughty and Ms. Dziewiecien. In answers to special interrogatories on the verdict form, the jury found that they had diminished-value damages of $15,000 and had not suffered any incidental or consequential damages at all. Kia renewed its motion for directed verdict. The trial court denied the motion and entered judgment in accord with the jury's verdict.

On appeal, Kia asserts that the trial court should have granted it a directed verdict because the evidence was insufficient as a matter of law to establish damages. We review the denial of a motion for directed verdict de novo. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009). We take the trial evidence and every reasonable inference from that evidence in the manner most favorable to Mr. Doughty and Ms. Dziewiecien, as the nonmoving parties. Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005).

The Magnuson-Moss Warranty Act "creates a federal private cause of action for consumers damaged by the failure of a warrantor to comply with any obligation under a written warranty." Ocana v. Ford Motor Co., 992 So.2d 319, 323 (Fla. 3d DCA 2008) (citing 15 U.S.C. § 2310(d)(1) ). Because the Act is "virtually silent" when it comes to regulating limited express warranties-the type of warranty involved in this case-the contours of the cause of action granted by the federal statute are generally defined by state law. Id.; see also Mesa v. BMW of N. Am., LLC, 904 So.2d 450, 455 (Fla. 3d DCA 2005) ("With regard to warranties on consumer products, [the Act] modifies the applicability and operation of the UCC and, to the extent applicable, supersedes inconsistent provisions of the UCC."). The parties to this case agree that Florida law governs the cause of action Mr. Doughty and Ms. Dziewiecien have alleged, including the requirements applicable to a claimant's proof of damages.

Under Florida law, a claimant in an action for breach of warranty may recover damages for the diminished value of the warranted goods as well as incidental and consequential damages resulting from the breach. See § 672.714(2), (3), Fla. Stat. (2014) ; Bill Branch Chevrolet, Inc. v. Redmond, 378 So.2d 319, 320 (Fla. 2d DCA 1980). These were the types of damages Mr. Doughty and Ms. Dziewiecien requested. They have not cross-appealed the judgment and thus have accepted, at least so far as this appeal is concerned, the jury's finding that they had no incidental or consequential damages. The only question for us with respect to damages, then, is whether the evidence was sufficient to establish the diminished-value damages that Mr. Doughty and Ms. Dziewiecien sought.

With respect to that issue, section 672.714(2) provides as follows:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Loosely stated, this statute required Mr. Doughty and Ms. Dziewiecien to establish two variables to prove their diminished-value damages: (1) the value of the car at the time and place of acceptance if the car had been as warranted and (2) the value of the car they actually got at the time and place of acceptance. See, e.g., Carter Hawley Hale Stores, Inc. v. Conley, 372 So.2d 965, 969 (Fla. 3d DCA 1979) (holding, in case where jeweler warranted diamond of color grade D and sold diamond of color grade E, that damages were the difference in value between a grade D and E diamond at the time and place of sale);

Johnson v. Thor Motor Coach, Inc., No. 5:15-cv-85-Oc-PRL, 2016 WL 8939134, at *5 (M.D. Fla. Aug. 1, 2016) (describing, in a case involving a recreational vehicle, that diminished-value damages were "the difference between the purchase price of a non-defective RV on [the purchase date], less the value of a defective RV [on that date]").

Here, the parties agree that by proving the price they paid for the car, Mr. Doughty and Ms. Dziewiecien presented sufficient evidence of the first variable-the value of the car as warranted at the time and place of acceptance. Kia argues, however, that there was no evidence to establish the value of the car they received at the time and place of acceptance. We agree. Although the evidence was sufficient to permit the jury to conclude that there were defects in the car that made it less valuable, there was no evidence that would have enabled the jury to determine the actual value of that defective car at the time and place of sale. Mr. Doughty's testimony and the exhibits introduced through him did not explain what the defects to which Mr. Doughty testified, defects that did not begin to manifest themselves until nearly a year after the car was purchased, would have meant for the amount of the car's value at the time and place it was sold. Mr. Doughty and Ms. Dziewiecien did not present an expert witness to testify as to that subject. And there is nothing else in the trial evidence upon which the jury could have hung its collective hat in determining what the diminished value of the car was. Mr. Doughty and Ms. Dziewiecien thus failed to present evidence that was legally sufficient to establish the value of the car they received from Kia at the time and place they received it. See Bill Branch Chevrolet, 378 So.2d at 321 (reversing award of damages where "[a]ppellee submitted no evidence to show the difference in value between the goods as accepted and as warranted"); Johnson, 2016 WL 8939134 at *5-6.

Mr. Doughty and Ms. Dziewiecien argue that the fact that they could not trade the car in for another car of the same make and model and that they could not sell it privately was evidence of their diminished-value damages. To the extent these facts say anything about the value of their car, however, they say only that at some point more than two years after they purchased their car, a dealership did not want to give Mr. Doughty a new car in exchange for it and that whatever undisclosed group of potential buyers Mr. Doughty was able to reach did not want the car for $5000. It is notable that the $15,000 verdict here does not appear to bear any relationship whatsoever to these facts. More importantly, neither of those facts would permit a jury to determine what the value of the car was at the time and place Mr. Doughty and Ms. Dziewiecien received it from Kia. Cf. Powers v. Lazy Days' R.V. Ctr., Inc., No. 8:05-cv-1542-T-17-EAJ, 2007 WL 1064215, at *2 (M.D. Fla. Apr. 4, 2007) (stating that a claimant's "conclusions regarding value do not reflect the value in fact of" a defective vehicle). Any conclusion about value at the time and place of acceptance that a jury might draw from these facts would be nothing but speculation, which is an impermissible basis for an award of damages. See Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998) ("Damages cannot be based on speculation, conjecture or guesswork.").

We do not today hold that expert testimony-or any particular type of evidence, for that matter-is necessary to establish the value of a warranted good at the time and place of acceptance. We hold only that in this case, Mr. Doughty and Ms. Dziewiecien failed to produce any evidence to prove that value. Thus, although the evidence was sufficient to establish that their car was worth less than it would have been had it been delivered as warranted, it was insufficient to prove the amount of that diminution in value. Accordingly, although we affirm the judgment insofar as it found a breach of warranty, we reverse the damages finding and remand the case with instructions to enter a judgment in favor of Mr. Doughty and Ms. Dziewiecien for nominal damages. See Rooney v. Skeet'r Beat'r of Sw. Fla., Inc., 898 So.2d 968, 970 (Fla. 2d DCA 2005) ("Because the damages could not be determined with any degree of certainty on the evidence presented, we reverse the compensatory damage award and remand with directions that judgment be entered ... for nominal damages." (citations omitted) ); Abstract Co. of Sarasota v. Roberts, 144 So.2d 3, 5 (Fla. 2d DCA 1962) (holding that a complaint for breach of warranty is sufficient to sustain an award of nominal damages).

Affirmed in part; reversed in part; remanded with instructions.

LaROSE, C.J., and SLEET, J., Concur.

      Accordingly, we need not and do not consider whether the law of some other jurisdiction-such as Pennsylvania, where the car was purchased, or North Dakota, where it was taken for repairs-has any bearing on the case.

      We express no opinion on whether Mr. Doughty himself could have testified as to the value of his car with the defect under the general principle that an owner of property is generally qualified to testify as to the value of that property. See, e.g., Johnson v. Thor Motor Coach, Inc., No. 5:15-cv-85-Oc-30PRL, 2016 WL 1182792, at *6 (M.D. Fla. Mar. 28, 2016) (relying on the principle that owners could testify as to value of allegedly defective recreational vehicle). Mr. Doughty was never asked his opinion as to the value of the car in its defective condition, and there is thus no record that would permit us to affirm on this basis. See Cannon v. Fournier, 57 So.3d 875, 882 (Fla. 2d DCA 2011) (explaining that a tipsy-coachman ground for affirmance must be based on facts in the record). Although Mr. Doughty was asked about research he may have conducted into his car's value, an objection to that testimony was sustained. Mr. Doughty was given an opportunity to proffer testimony on that or any related subject, but he did not avail himself of that opportunity. See § 90.104(1)(b), Fla. Stat. (2016) (discussing the proffer of evidence "[w]hen the ruling is one excluding evidence" for the purposes of reviewing an error, setting aside or reversing a judgment, or granting a new trial); see also Blackwood v. State, 777 So.2d 399, 410-11 (Fla. 2000) (discussing why the proffer of excluded evidence is usually necessary for appellate review of the issue); Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So.3d 867, 869 n.3 (Fla. 3d DCA 2013) (noting that the lack of a proffer where such a proffer was not prevented by the trial court was also significant to an appellate court's determination of whether the issue was reviewable).


author: PER CURIAM.

text:
    Aaron HAMILTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3579
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 27, 2018 Rehearing Denied April 20, 2018
    Aaron Hamilton, Cross City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Rusaw v. State , 451 So.2d 469, 470 (Fla. 1984) ; State v. Young , 579 So.2d 380 (Fla. 5th DCA 1991).

TORPY, WALLIS and EDWARDS, JJ., concur.


author: Rowe, J.

text:
    Jennifer M. ERLINGER, Appellant, v. Justin FEDERICO, Appellee.
    No. 1D17-248
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Jennifer M. Erlinger, Jacksonville, pro se, Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Brian G. Roberts of Roberts & Reiter, P.A., Jacksonville, for Appellee.
   Rowe, J.

Jennifer Erlinger appeals the amended final judgment that dissolved her marriage with Justin Federico. She asserts that the trial court erred in seven different ways: (1) by denying her motions to continue; (2) in calculating the support awards; (3) in distributing the marital assets; (4) by awarding equal timesharing; (5) by imposing sanctions; (6) by denying her request for attorney's fees; and (7) by denying her motion to disqualify the judge.

We affirm the first six issues without further comment, as Erlinger failed to provide a transcript of the final hearing as well as other proceedings pertinent to the disposition of those issues. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) ; Fay v. Craig , 99 So.3d 981, 982 (Fla. 5th DCA 2012) ("[A]ppellants proceed at their peril when they furnish a partial transcript."); Estes v. Sassano , 47 So.3d 383, 385 (Fla. 1st DCA 2010) ("Without an adequate record of the proceedings below, this court cannot reasonably conclude that the trial court so misconceived the law as to require reversal.").We write only to address Erlinger's assertion that the trial court erred when it denied her motion to disqualify.

I.

The parties were married in November 2009, and have one child, a daughter born in 2010. After thirty-three months of marriage, Erlinger petitioned for dissolution. The proceedings were protracted, spanning over four years, and were very contentious. Numerous conflicts over timesharing rights with the child were brought to the trial court for adjudication, and multiple contempt proceedings ensued when Erlinger failed to comply with court orders.

In 2013, Federico moved out of the marital home. After that, his efforts to spend time with his daughter were repeatedly thwarted by Erlinger. For a period of ten months, Federico had no visitation with his daughter. During the next two years, Federico was required to file seven separate motions to enforce his rights to spend time with his daughter. In October 2015, the trial court entered a temporary parenting plan providing for shared parental responsibility and an equal, rotating timesharing schedule. But despite the trial court's order, Erlinger failed to comply with the timesharing plan and repeatedly acted to interfere with Federico's timesharing rights. In 2016 alone, Federico was denied 84 days of visitation with his daughter. During the course of the proceedings, Federico filed three motions for contempt for Erlinger's failure to follow court orders concerning timesharing. Erlinger responded by moving to modify the temporary parenting plan.

On September 1, 2016, the trial court heard Federico's second motion for contempt and Erlinger's motion to modify the temporary parenting plan. Erlinger represented herself at the hearing and conducted the cross-examination of Federico. After hearing from both parties and a number of witnesses, the trial court denied Erlinger's motion to modify, concluding that she failed to demonstrate grounds for modification. The trial court also determined that Erlinger's actions to interfere with Federico's timesharing "were malicious and intended to further harm the child's relationship with her father." The court granted Federico's motion for contempt because Erlinger had "decided to interpret the Court's timesharing schedule to frustrate [Federico's] relationship with their daughter and to eliminate substantial timesharing for [Federico] by such interpretation."

After the hearing, Erlinger moved to disqualify the trial judge for comments he made during the hearing. Erlinger argued comments made by the trial judge showed that he had prejudged the merits of Federico's motions for contempt. She alleged that she feared the court would not afford her a fair hearing. The trial court denied the motion and Erlinger petitioned this Court for writ of prohibition. We denied the petition without elaboration. Erlinger v. Federico , 202 So.3d 409 (Fla. 1st DCA 2016) (unpublished table opinion).

The proceedings continued in the trial court and included multiple conflicts over timesharing and alleged violations of the temporary parenting plan. A three-day final hearing was held beginning on November 14, 2016, and the amended final judgment of dissolution was entered shortly thereafter. The trial court awarded equal timesharing to the parties. The trial court also imposed sanctions against Erlinger for repeatedly and vindictively withholding timesharing throughout the course of the proceedings in violation of the court-ordered timesharing plan.

On appeal of the amended final judgment, Erlinger renews her argument that the motion to disqualify should have been granted.

II.

Though Erlinger previously raised her arguments for disqualification of the trial judge in a petition for writ of prohibition, we denied the petition without elaboration. Accordingly, we review Erlinger's renewed argument on the merits. See Topps v. State , 865 So.2d 1253 (Fla. 2004) (holding that an unelaborated appellate decision denying a petition for prohibition does not establish the law of the case). Our review is de novo. Kline v. JRD Mgmt. Corp. , 165 So.3d 812, 814 (Fla. 1st DCA 2015).

To determine the legal sufficiency of a motion to disqualify, we look to whether the facts, as alleged, would cause "the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge." Parker v. State , 3 So.3d 974, 982 (Fla. 2009). A motion to disqualify must contain facts "germane to the judge's undue bias, prejudice, or sympathy."

Scott v. State , 909 So.2d 364, 367 (Fla. 5th DCA 2005). General and speculative assertions about a judge's attitude will not warrant relief. Krawczuk v. State , 92 So.3d 195, 201 (Fla. 2012). Further, "the standards for disqualification do not turn on a demonstration of actual bias or partiality on the part of the judge or the judge's own perception of his or her impartiality. Rather, disqualification is required where the facts alleged and established, which must be taken as true, would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding." Kline , 165 So.3d at 814.

Erlinger alleged in her motion to disqualify that during the September 1, 2016 hearing on Federico's motions to hold Erlinger in contempt, the trial judge demonstrated bias and unlawfully prejudged the case by the following comments and conduct: (1) interrupting Erlinger's cross-examination of Federico and making several comments, including "you just do what you want;" (2) loudly sighing and shaking his head during Erlinger's testimony; and (3) becoming an active participant in the proceedings by interrupting opposing counsel's cross-examination of Erlinger "to question and comment openly" on her testimony. On direct appeal, Erlinger adds that the trial judge made several highly questionable rulings after he denied the motion to disqualify, which further support the appearance of bias. Taking the facts alleged in her motion to disqualify as true, we hold that Erlinger failed to allege facts that would demonstrate an objectively reasonable fear she would not receive a fair and impartial proceeding.

We first address Erlinger's allegation that the trial judge's comment that she would "just do what she wants" was legally sufficient to require disqualification. While a judge may not prejudge a case, it is well-settled that a judge may form mental impressions and opinions during the course of hearing evidence. Lukacs v. Ice , 227 So.3d 222, 224 (Fla. 1st DCA 2017) (citing Minaya v. State , 118 So.3d 926, 929 (Fla. 5th DCA 2013) ). Further, "mere characterizations and gratuitous comments, while offensive to the litigants, do not in themselves satisfy the threshold requirement of a well-founded fear of bias or prejudice." Nassetta v. Kaplan , 557 So.2d 919, 921 (Fla. 4th DCA 1990). Taking Erlinger's allegations as true, the trial judge's comment that she would "just do what she wants" was a mere characterization of the trial judge's observation that Erlinger had repeatedly failed to comply with the court's orders on timesharing and was directly relevant to the contempt motion pending before the court. See Lukacs , 227 So.3d at 224 ("[W]here a judge's comments are directed to the issue the court is currently handling, a motion to disqualify can be denied."). In a contempt proceeding, a trial judge necessarily considers evidence and testimony regarding whether a party has complied with orders of the court. Stated differently, the court must make a determination whether a party "does what he or she wants" instead of what the court has ordered the party to do.

Second, we find that the subjective fears expressed in Erlinger's allegations regarding the trial judge's non-verbal expressions do not provide grounds for disqualification. Though judges should avoid making reactive facial and audible expressions during witness testimony, "[t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality ." Pugliese v. Deluca , 207 So.3d 974, 976 (Fla. 4th DCA 2016) (citing MacKenzie v. Super Kids Bargain Store, Inc ., 565 So.2d 1332, 1334 (Fla. 1990) ) (emphasis added). Erlinger's allegations regarding the judge's non-verbal expressions represent only a subjective fear and do not provide a well-founded fear of prejudice. See Krawczuk , 92 So.3d at 201.

Third, we find both speculative and conclusory Erlinger's allegation that the trial judge was biased on grounds that the judge became an active participant in the proceedings by asking her questions during cross-examination. She neither describes the types of questions asked by the judge nor does she allege how those questions demonstrated bias or prejudice. See Pugliese , 207 So.3d at 976.

Finally, Erlinger's allegation that following the September 1, 2016 hearing, the trial judge made several "highly questionable" rulings is not legally sufficient to require disqualification. It is axiomatic that "[a]dverse or unfavorable legal rulings, without more, are not legally sufficient grounds for disqualification." Pilkington v. Pilkington , 182 So.3d 776, 779 (Fla. 5th DCA 2015) (citing Correll v. State , 698 So.2d 522, 524-25 (Fla. 1997) ). This is especially true when, as here, the party claiming bias has engaged in misconduct or contempt. Clark v. Clark , 159 So.3d 1015, 1017 (Fla. 1st DCA 2015).

For these reasons, we conclude that the motion for disqualification was properly denied. The amended final judgment of dissolution is AFFIRMED.

Wetherell and Osterhaus, JJ., concur.

      The facts set forth herein are drawn from the limited record on appeal, including the factual findings set forth in the 38-page amended final judgment of dissolution entered by the trial court.

      Erlinger failed to provide a transcript of the September 1, 2016 hearing.

      After her attorney moved to withdraw, Erlinger, a member of the Florida Bar, represented herself in the trial court proceedings.


author: Per Curiam.

text:
    Orion Christopher GARDINER, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5286
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Andy Thomas, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Orion Christopher Gardiner challenges his convictions and sentences for manslaughter with a firearm, attempted first-degree murder, and possession of a firearm by a convicted felon. All of the offenses arose from the same criminal episode. On count one, Gardiner was classified as both a habitual violent felony offender (HVFO) and a prison releasee reoffender and was sentenced to life imprisonment with concurrent mandatory minimum terms of fifteen years and thirty years. On count two, he was sentenced to fifteen years' imprisonment pursuant to a plea agreement. On count three, he was classified as a HVFO and was sentenced to thirty years' imprisonment with a three-year mandatory minimum for use for a firearm. The sentence on count two was ordered to run concurrently with count one. The sentence on count three was ordered to run consecutively to count one.

We affirm Gardiner's convictions without comment. However, we must reverse his sentences on counts one and three and remand with directions to run the sentences concurrently because Gardiner's HVFO sentences on those counts may not run consecutively. See Cotto v. State , 139 So.3d 283, 286-87 (Fla. 2014) (reaffirming the proposition stated in Hale v. State , 630 So.2d 521 (Fla. 1993) that once multiple sentences from a single criminal episode are enhanced pursuant to the habitual offender statute, the total penalty may not be further increased by consecutive sentencing absent specific legislative authorization); Braswell v. State , 171 So.3d 199, 199 (Fla. 1st DCA 2015) (holding that a trial court is prohibited from imposing consecutive habitual offender sentences for offenses that arose during the same criminal episode); Preston v. State , 134 So.3d 992, 994 (Fla. 1st DCA 2012) (reversing the trial court's imposition of consecutive habitual offender sentences for offense that occurred during a single criminal episode). The HVFO sentences may not run consecutively because the HVFO designation increased the statutory maximum on counts one and three and both offenses occurred during a single criminal episode; thus, the trial court was not permitted to further increase the penalty for these offenses by running the sentences consecutively. Cotto , 139 So.3d at 286.

We, therefore, AFFIRM Gardiner's convictions and REVERSE and REMAND for resentencing as to his convictions.

Wetherell, Rowe, and Jay, JJ., concur.