author: Damoorgian, J.

text:
    PHILIP MORRIS USA INC., Appellant, v. Bernice MCCALL, individually and as Personal Representative of the Estate of Martin McCall, Appellee.
    No. 4D16-2016
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      David F. Northrip'and William P. Ger-aghty of Shook Hardy & Bacon LLP, Kansas City, Missouri, and Miami, and Frances Daphne O’Connor and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC, for appellant.
    Shea T. Moxon, Celene H. Humphries, Maegen Peek Luka and Thomas J. Seider of Brannock & Humphries, Tampa, and Alex Alvarez of The Alvarez Law Firm, Coral Gables, and Jordan L. Chaikin of Chaikin Law Firm PLLC, Fort Myers, for appellee.
   Damoorgian, J.

In this Engle progeny case, Philip Morris USA Inc. (“PM”) appeals a final judgment entered in favor of Bernice McCall (“Plaintiff’), individually and as the personal representative of the estate of Martin McCall (“Decedent”), on her survival and loss of consortium claims. PM argues that the loss of consortium award must be vacated because the claim was barred by the applicable statute of limitations. PM also argues, as it does in every Engle appeal, that the court’s application of the Engle common core findings violated its due process rights. Plaintiff cross-appeals, asserting that the court erred in instructing the jury on the elements necessary to establish fraudulent concealment and conspiracy to commit fraudulent concealment as well as the legal effect of cigarette warning labels. Additionally, Plaintiff argues that the court erred in reducing the jury’s award by its allocation of the Decedent’s comparative fault. We continue to reject PM’s due process argument based on Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 435-36 (Fla. 2013), and likewise reject Plaintiffs comparative fault argument based on R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 495-96 (Fla. 4th DCA 2015). We also find no error in the court’s instructions on Plaintiffs fraudulent concealment and conspiracy to commit fraudulent concealment claims. However, we find merit in both parties’ remaining positions and, for the reasons set forth below, reverse ,and remand for a new trial.

The Facts

Plaintiff sued PM pursuant to Engle, alleging that her deceased husband died from lung cancer caused by an addiction to smoking cigarettes manufactured and marketed by PM. Plaintiff alleged causes of action for strict liability, fraud by concealment, conspiracy to commit fraud by concealment, and negligence. Plaintiff sought relief for her negligence claims under the Florida Wrongful Death Act and, in the alternative, asserted a survival claim for damages based on the injuries suffered by Decedent prior to his death. In conjunction with her alternative survival claim, Plaintiff also asserted, a loss of consortium claim. In response, PM asserted several affirmative defenses, including bar by the statute of limitations.

The case was set to be tried in two phases. In the first phase, the jury was asked to determine if Decedent was a member of the Engle .class and, if so, liability, compensatory damages, and entitlement to punitive damages. The second phase was reserved for the determination of the proper amount of punitive damages, if any.

Evidence

During the first phase of trial, Plaintiff presented the following evidence concerning the Decedent’s smoking history, illness, and death.

Decedent was born in 1940 arid began smoking cigarettes in the early 1950s when he was twelve or thirteen years old and continued to smoke them for the next thirty-plus years. Plaintiff testified that when she met Decedent in 1971, he was smoking about a pack a day. Decedent primarily smoked cigarettes with filters, which according to Plaintiff, Decedent believed were “safe” to smoke. Plaintiff testified that Decedent’s belief came from advertisements, specifically Parliament advertisements, which stated that cigarettes with filters were “lower in tar and nicotine.” Decedent went so' far as to cut out the filter of a smoked cigarette and show it to Plaintiff, explaining that the black spots on the filter were the filtered-out nicotine and tar.

Decedent was diagnosed with lung cancer in September of 1992, when he was 52 years old. Shortly after his diagnosis, Decedent underwent surgery to remove a cancerous lobe of his right lung. After his discharge from the hospital, Decedent began radiation and chemotherapy treatment. Not long thereafter, Decedent was readmitted to the hospital for breathing complications. Decedent died in the hospital in November of 1992. The causes of death listed on Decedent’s death certificate were “adult respiratory distress syndrome” and “possible fungal pneumonia.”

Plaintiff also presented testimony from several experts concerning the actions of the tobacco companies and the health effects of smoking. This testimony, like the testimony in almost every Engle case, established that the tobacco companies knew of the addictive nature of nicotine and the harmful effects of smoking well before the public health community did and, over a fifty-year period of time, took concerted efforts to obfuscate this information while encouraging people to smoke through marketing efforts. For example, the tobacco companies marketed filtered cigarettes as having fewer health risks because they contained less tar and nicotine when in fact, they knew the opposite.

PM’s Motion for Directed Verdict

At the close of Plaintiffs evidence, PM moved for a directed verdict on Plaintiffs alternative loss of consortium claim. PM ar£ued that Plaintiffs claim accrued, at the latest, wheri Decedent died in 1992. As Plaintiff did not file her suit until 2007, nearly fifteen years later, PM maintained that Plaintiffs loss of consortium claim was barred by the applicable four-year statute of limitations. Plaintiff countered that as Decedent’s survivor, she was an Engle class member and, therefore, was entitled to the tolling effect of the initial Engle lawsuit filing. The court agreed with Plaintiff and denied PM’s motion.

Jury Instructions

On the reliance element of Plaintiffs fraudulent concealment claim, the court instructed the jury as, follows:

On this claim, the issue for your determination is whether [Decedent] reasonably relied to his detriment on any statement of material fact by PM USA that concealed or. omitted material information not otherwise known or available concerning the health effects or addictive nature of smoking cigarettes and, if so, whether such reliance was a legal cause of [Decedent’s] lung cancer..

Similarly, the conspiracy instruction contained the following direction:

On this claim, the issue for your determination, is whether [Decedent] reasonably relied to his detriment on statements made in furtherance of PM USA’s agreement to conceal or omit information concerning the health effects or addictive nature of cigarettes; and, if so, whether such reliance was a legal cause of his lung cancer.

Plaintiff opposed these instructions, arguing that requiring reliance on a “statement” was too narrow because it precluded liability based solely on fraudulently concealed information. Instead, Plaintiff argued that the jury should be instructed that PM could be liable if Decedent “reasonably relied to [his] detriment on an act or omission taken in furtherance of [PM’s] agreement to conceal or omit information concerning the health effects or addictive nature of cigarettes

Per PM’s request, the court also provided the jury with the following instruction on the effect of cigarette warning labels:

The warning labels placed on cigarette packs by [PM] and other tobacco companies complied with .federal law. After July 1, 1969, [PM], and other tobacco companies had no obligation to place any additional warnings on their cigarette packages. Further, as long as the cigarette packs bear the federally mandated warnings,- cigarette advertising after July 1,1969 cannot be the subject of any claim that the advertising undermined or neutralized the warnings or made them less effective.

Plaintiff- objected to this instruction, arguing that it was inapplicable because she was not bringing a failure to warn claim. Alternatively, Plaintiff argued that the instruction implied PM was without liability for cigarettes sold after July 1, 1969 so long as there were labels on the packs. Therefore, Plaintiff asserted that the instruction should include language making it clear that PM.could still be liable for false and .misleading.information provided in its advertising; The court rejected Plaintiffs arguments and provided the instruction requested by PM.

Closing Arguments

During its closing argument, PM’s counsel repeatedly referred to- the opposed warning label instruction. After arguing for some time that Decedent was not truly addicted to cigarettes, PM’s counsel, then argued that, contrary to Plaintiffs testimony, Decedent did not smoke filtered cigarettes because he thought they were safe. It then asked the jury to consider the cigarette warning label instruction, stating that “the instruction kills the plaintiffs whole- daifa; Kills the plaintiffs whole claim.” Plaintiff objected to this argument and, although the court sustained her objection,' PM’s counsel continued by arguing: “When you go back and you read the instructions and you considér the evidence, you’ll see that the plaintiff can’t maintain their claim when you consider the evidence we’ve just talked about and the court’s instructions.”

The Verdict

In its verdict, the jury found that Decedent was a member of the Engle class by virtue of its finding that Decedent was addicted to cigarettes containing nicotine and that such addiction was the legal cause of his lung cancer. It also found that smoking cigarettes manufactured by PM was a legal cause of Decedent’s lung cancer. However, the jury found that lung cancer was not a legal cause of Decedent’s death. Accordingly, the jury did not award any wrongful death damages. It did, however, find in favor of Plaintiff on her alternative survival and loss of consortium claims and awarded Plaintiff $Í75,000 for Decedent’s pain and suffering and $175,000 for Plaintiffs loss of consortium.

• The jury ,found in favor of PM on both of Plaintiffs, intentional tort claims, finding that -Decedent did not reasonably rely to his detriment - on any statement made by PM which concealed or omitted material information not already known or available to him and that, likewise, Decedent did not reasonably rely to his detriment on any statement made in furtherance of PM’s agreement with other tobacco companies to conceal or omit material information. Based on the jury’s intentional tort findings, the matter did not proceed to the punitive phase. This appeal and cross-appeal follows. ' •

Analysis

On Direct Appeal

PM argues that the court erred in denying its statute of limitations based motion for directed verdict on Plaintiffs loss of consortium claim. Plaintiff counters that the court ruled correctly because she, individually, is an Engle class member and, in the alternative, her loss of consortium claim was timely because it was “intertwined” with the survival, claim she brought on behalf of Decedent. We hold that Plaintiffs claim was time barred.

Our analysis on this issue necessarily begins with some procedural background on the Engle class. The now-voluminous Engle litigation commenced on May 5, 1994, when a group of smokers filed a class action lawsuit against numerous tobacco industry organizations and cigarette companies, including PM, seeking damages for smoking-reláted illnesses and deaths. Hess v. Philip Morris USA, Inc., 175 So.3d 687, 693 (Fla. 2015). On November 21,1996, the trial court recertified the Engle class as the more than 700,000 Florida “citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions ' caused by their addiction to cigarettes that contain nicotine.” Engle, 945 So.2d at 1274, 1258. The Florida Supreme Court later confirmed that the class recer-tification date was. the class membership cut-off date. Id. at 1275. Based on the foregoing, the filing of the Engle lawsuit tolled the statute of limitations for Engle class member causes of action accruing no earlier than May 5, 1990 (four years before the filing date) and no later than November 21, 1996 (the class recertification and membership cut-off date). See R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1042 (Fla. 2016) (Polston, J., dissenting) (explaining the effects of the filing and membership cut-off dates).

The Engle class action jury went on to find the tobacco defendants liable for the class’ injuries and in doing so, made a myriad of “common core” findings regarding the health effects of smoking cigarettes, the addictive properties of nicotine, and the tobacco companies’ actions. Engle, 945 So.2d at 1257 n.4. After prolonged litigation regarding the propriety of continued class action treatment, on December 21, 2006, the Florida Supreme Court decertified the class and vacated the class action jury’s punitive damages award. Id. at 1254. However, the court “did not decer-tify the class in the traditional sense, but conferred upon the class members two benefits: (1) each class member’s time to file an individual suit would be equitably tolled to allow filing within one year of the court’s decision, and (2) in the individual action, the Engle jury’s common core findings in Phase I would be given res judicata effect.” Ciccone, 190 So.3d at 1037 (internal quotation marks and citations omitted). Based on this decision, persons meeting the Engle class member definition could file lawsuits as late as December 21, 2007, for causes, of action which accrued between May 5, 1990, and November 21, 1996. Id. at 1042

This Court has previously rejected the notion that a surviving spouse of a smoker is an Engle class member in his or her individual right. In Fanali v. R.J. Reyn olds Tobacco Co., 220 So.3d 1209, 1210-11 (Fla. 4th DCA 2017), the surviving spouse of a deceased smoker sued a tobacco company under the Florida Wrongful Death Act. Because it was undisputed that the deceased smoker knew he had a smoking related injury before May 5, 1990, the statute of limitations bar date for Engle class membership, the tobacco company moved for and was granted; summary judgment. Id. The surviving spouse appealed, arguing, just as Plaintiff does here, that she met the definition of an Engle class member because she was a survivor of a Florida resident who died from a smoking related disease. Id. Since the deceased smoker did not die until 1993 and the statute of limitations on a wrongful death claim is two years, the surviving spouse maintained that the statute of limitations on her wrongful death claim did not begin to run, much less expire, before the May 5, 1990 bar date. Id.

We rejected the surviving spouse’s class membership argument. Id. Reasoning that “[t]he determination of membership in the Engle class has always focused on the smoker, not on the survivoks,” we concluded that “[t]he term ‘survivors’ in the class definition is best interpreted as including survivors of addicted smokers who were Engle class members.” Id. at 1211-12 (emphasis added). This holding establishes that smokers whose claims accrued during the May 5, 1990-November 21, 1996, Engle window are the only potential Engle class members and that any survivor filing suit via Engle must establish the smoker’s class membership as to each claim. Id. in line with our decision in Fanali, we now conclude that Plaintiff, a survivor of a smoker who suffered from a smoking-related disease, is not an Engle class member for purposes of her own individual claims. Id. at 1212. Although not binding, it is worth noting that federal courts considering Engle cases have reached the same conclusion. See, e.g., Elkins v. R.J. Reynolds Tobacco Co., 65 F.Supp.3d 1333, 1338 (M.D. Fla. 2014) (affirming that “spouses asserting loss of consortium claims are not Engle plaintiffs for purposes of entitlement to Engle tolling”).

Having determined that Plaintiff is not entitled to the tolling benefit of Engle-class membership for purposes of claims brought in her 'individual right, we must 'next consider whether' her loss of consortium claim was a separate and distinct cause of -action belonging to Plaintiff individually or merely an additional remedy available for the survival claim Plaintiff brought on Decedent’s behalf. If it was nothing more than an' additional remedy which could be sought based on the timely pled survival action, theri it appears-that the claim was not barred by the statute of limitations. Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1229 (Fla. 2016) (holding that Engle class members’ requests for punitive damages in conjunction with negligence- and strict liability claims were not barred by the statute of limitations because, although such requests were not made in Engle, they were not subject to a separate statute 'of limitations as “a claim for punitive damages is not a sépa-rate, free-standing cause of action subject to a separate statute of limitations, but is rather a remedy that can be sought based ón any properly pled' cause of action”). However, if it was a free-standing cause of action unique to Plaintiff, -then it was subject to a separate statute of limitations.

Under the common law, a plaintiff may recover damages , for the loss of consortium due to his or her spouse’s injury caused by the negligence of another. Gates v. Foley, 247 So.2d 40, 43 (Fla. 1971). Consortium has been defined as:

[T]he companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, 'companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage. .

Id.

Loss of consortium claims, while derivative causes of action based on the injury of the claimant’s spouse, are nevertheless separate and distinct causes of actions belonging solely to the claimant. See Metro. Dade Cty. v. Reyes, 688 So.2d 311, 312 (Fla. 1996); Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675, 676 (Fla. 1955); Randall v. Walt Disney World Co., 140 So.3d 1118, 1121 (Fla. 5th DCA 2014). Accordingly, as loss of consortium claims are separate causes of action, they must be “timely” in their own right. See Gates, 247 So.2d at 45 (“Where there is a cause of action brought by the injured husband pending, the wife’s consortium action, if not time barred, may be joined with her husband’s claim ....” (emphasis added)). Here, the statute of limitations on Plaintiffs loss of consortium claim began to run in 1992, fifteen years before Plaintiff .tiled her lawsuit. Plaintiffs loss of consortium claim was well out of range of any statute of limitations recognized in Florida and was, therefore, time barred.

Further, we are not persuaded that Plaintiffs loss of consortium claim was an additional remedy of the survivorship claim by analogy to the Florida Wrongful Death Act. While it is true that the Florida Wrongful Death Act allows for a surviving spouse to “recover for loss of the decedent’s companionship and protection and for mental pain and suffering” when a person dies as the result of a personal injury, this remedy is a creature of statute. § 768.21(2), Fla. Stat. (2007); see also Nissan Motor Co. v. Phlieger, 508 So.2d 713, 714 (Fla. 1987) (“Florida’s Wrongful Death Act does create a right of action in favor of statutory beneficiaries which was not recognized, at common law.”). There is simply nothing in the common law automatically allowing for this remedy in a personal injury claim brought by the injured party. Rather, as diseussed above, the spouse seeking consortium damages must bring a claim in his or her own right and prove that the injury affectéd his or her marriage to the injured party. See Peterson v. Sun State Int'l Trucks, LLC, 56 So.3d 840, 842 (Fla. 2d DCA 2011) (“When a jury finds that one spouse has sustained injuries as a result of the negligence of a third party, an award of damages to the other spouse for loss of consortium is not automatic. Instead, in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship.”).

We note that although loss of consortium claims are subject to a separate statute of limitations, there is some ambiguity concerning whether an otherwise time barred loss of consortium claim could relate back to the injured spouse’s timely filed personal injury claim. The applicable Rule of Civil Procedure governing the relation-back of amendments provides, in pertinent part, that “[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading,” Fla. R. Civ. P. 1.190(c). Until very recently, case law interpreting this rule established that newly added loss of consortium claims do not relate back to a timely pled personal injury action. W. Volusia Hosp. Auth. v. Jones, 668 So.2d 635, 636 (Fla. 5th DCA 1996) (holding that an untimely loss of consortium claim does not relate back to the date of the injured spouse’s timely suit); Daniels v. Weiss, 385 So.2d 661, 663 (Fla. 3d DCA 1980) (same). Recently, the Florida Supreme Court disapproved of these cases to the extent that they stood for the proposition that amended complaints which assert new and distinct causes of action can never relate back to the date of original filing. Kopel v. Kopel, 229 So.3d 812, 814-15, 2017 WL 372074 (Fla. Jan. 26, 2017).

Although Kopel raises a question as to whether a newly asserted loss of consortium claim is deemed to arise out of the same conduct, transaction, or occurrence as the personal injury claim from which it derives, we do not believe that Kopel mandates the conclusion that a spouse’s untimely loss of consortium claim relates back to the date of- the other spouse’s timely filed personal injury suit. Indeed, the Kopel court expressly provided that it was not “passing judgment as to the correctness” of the . ultimate conclusions reached in West Volusia Hospital Authority or Daniels, but was instead holding that it is possible for a new claim to relate back. Id. at 817 n.4.

Further, in addition to holding that the loss of consortium claims did not relate back because they were separate and distinct from the injured spouses’ causes of action, the West Volusia Hospital Authority and Daniels courts also held that the claims did not relate back because they brought a new party to the lawsuit. W. Volusia Hosp. Auth., 668 So.2d at 636; Daniels, 385 So.2d at 663. Kopel did not disturb this conclusion, and neither will we. Generally speaking, the relation-back doctrine does not apply when an amendment seeks to add an entirely new party to the action. See Roback v. Cassaro, 837 So.2d 1061, 1062 (Fla. 4th DCA 2003). However, courts have recognized an exception to this rule where the new party is sufficiently related to an original party to the extent that amendment would not cause any prejudice. Id. at 1063; Russ v. Williams, 159 So.3d 408, 410 (Fla. 1st DCA 2015). Married individuals are not deemed “sufficiently related” by virtue of their marriage alone. Russ, 159 So.3d at 411 (affirming that amendment to. change defendant in tort suit from husband to wife did not relate back because spouses are “separate individuals” and “each spouse has his or her own legal rights and obligations”). Further, it’ cannot be said that allowing the 'untimely addition of an injured party’s spouse as a plaintiff does not cause any prejudice as it Exposes the defendant to additional liability. To that end, because a loss of consortium claim belongs to a separate plaintiff, it is our view that loss of consortium claims which are otherwise time barred do not relate back to the date of the injured spouse’s otherwise timely filed lawsuit.

In sum, we conclude that Plaintiffs loss of consortium claim was a separate and free-standing claim belonging tó her individually and that Plaintiff cannot be considered an Engle class member for purposes of her individual'claims^ Therefore, the filing of Englé'had no tolling effect on the applicable statute of'limitations. Because Plaintiff did not file her lawsuit until fifteen years after the statute of limitations began to run and her claim does not relate back to the timely filed survival claim, Plaintiffs loss of consortium claim was time barred. Accordingly wé conclude that the court erred in denying PM’s motion for directed verdict on the issue. .

On Cross-Appeal

On cross-appeal,- Plaintiff takes issue with the court’s instructions on her fraud by ■ concealment and . conspiracy counts..as well as its decision to instruct the jury on the legal effects of cigarette warning labels. A trial court’s decision to give or refuse to give a proposed jury instruction is reviewed for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Jewett, 106 So.3d 465, 467 (Fla. 1st DCA 2013). A trial court abuses its discretion when it gives an instruction that is “ ‘reasonably calculated to confuse or mislead’ ” the jury, resulting in a miscarriage of justice. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla. 1990) (quoting Fla. Power & Light Co. v. McCollum, 140 So.2d 569, 569 (Fla. 1962)). Further, “[a] trial court abuses its discretion when it fails to give a proposed instruction that is (1) an accurate statement of the law, (2) supported by the facts of the case, and (3) necessary for the jury to properly resolve the issues, so long as the subject of the proposed instruction is not covered in other instructions given to the jury and the failure to instruct is shown to be prejudicial.” Jewett, 106 So.3d at 467.

a) The Fraud-Based Instructions

Plaintiff argues that the court erred when it instructed the jury on her claims for fraud by concealment and conspiracy because it asked the jury to find whether Decedent detrimentally relied on a “statement that was misleading to Decedent because it concealed or omitted a material fact” instead of asking the jury to find whether Decedent relied on PM’s “concealment of material information.” Plaintiff maintains that these instructions did not accurately reflect the law because fraudulent concealment may occur by omission. PM counters that an omission by itself cannot serve as the basis for fraudulent concealment absent some sort of special relationship giving rise to a fiduciary duty. Alternatively, PM argues that the instruction given was warranted based on the facts of the case. Plaintiff is correct that reliance on a statement is not a requirement, however, we hold that the instruction as given was nonetheless proper based on the individual facts of the case.

In R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 766 (Fla. 4th DCA 2016), this Court considered the propriety of a jury instruction on a smoker’s fraudulent concealment claim and held that it did not pass legal muster because it failed to instruct the jury that detrimental reliance was necessary. In doing so, we wrote:

“(I]n a post-Engle case, a plaintiff alleging fraudulent concealment need only prove that he or she detrimentally relied upon the defendant tobacco corporation’s misinformation.” [Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145, 1150 (Fla. 4th DCA 2013) ] (emphasis added). “Similarly, a plaintiff claiming conspiracy to commit fraudulent concealment in an Engle progeny case need only prove that he or she detrimentally relied upon deceptive statements made by a member’ of the conspiracy.” Id. (emphasis added). The instruction need not include reliance on “a statement” unless the facts of the case warrant it. What is necessary is that an instruction properly tailored to the facts of the case apprise the jury of the essential element of “reliance” in a fraudulent concealment claim.

Id. (emphasis added).

The above language establishes that in an Engle case, a fraudulent concealment claim need not be limited to reliance on a “statement,” but, at the same time, also establishes that an instruction referencing reliance on “a statement” is not incorrect as a matter of law. Id. The Second District Court has since considered this issue and, after a thorough discussion, rejected the notion that an Engle fraudulent concealment claim must be limited to reliance on a “statement.” Philip Morris USA, Inc. v. Duignan, — So.3d —, —, 42 Fla L. Weekly D2427, D2430-32, 2017 WL 5471866 (Fla. 2d DCA Nov. 15, 2017). Instead, in line with Calloway, it concluded that “whether an instruction that a jury must find reliance on a ‘statement’ is necessary or proper will depend on the nature of the claims presented and , the evidence at trial.” Id. at —, at D2431.

In the instant case, Plaintiff testified as to specific advertising statements which she claimed Decedent detrimentally relied upon in formulating his belief that smoking filtered cigarettes was safe. Accordingly, because there was evidence presented at the trial regarding Decedent’s reliance on “statements,” the instruction was not improper.

b) The Warning Label Instruction

Plaintiff also takes issue with the court’s decision to provide an instruction on the effect of cigarette warning labels, arguing that the instruction was inapplicable to Plaintiffs suit as she did not bring a failure to warn claim. She further maintains that, especially when combined with PM’s counsel’s closing argument, the instruction led the jury to believe that PM could not be liable for any fraudulent concealment effectuated through advertising. PM counters that there was no error as the challenged instruction was an accurate statement of law and was necessary to ensure that the jury knew it “could not impose liability based on a legally impermissible theory — that [the tobacco companies] should have placed additional or different warnings on cigarette packages or in advertisements.” Although the propriety of a warning label instruction in Engle cases appears to be an issue of first impression, based on the case law discussing the preemptive effect (or lack thereof) of cigarette warning labels on Engle-type claims, we conclude that the instruction as worded did not serve any purpose other than to confuse the jury and was, therefore, improper.

The language of the instruction at issue was based on the Federal Cigarette Labeling and Advertising Act (“Labeling Act”), which was enacted by Congress “in 1965 in response to the Surgeon General’s determination that cigarette smoking is harmful to health.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (footnote omitted). To that end, the Labeling Act “required that every package of cigarettes sold in the United States contain a conspicuous warning, and it preempted state-law positive enactments that added to the federally prescribed warning.” Id. (citing 15 U.S.C. § 1331). “The Labeling Act has since been amended further to require cigarette manufacturers to include four more explicit warnings in their packaging and advertisements on a rotating basis.” Id. at 78, 129 S.Ct. 538 (footnote omitted).

In Engle, the Florida Supreme Court did not expressly address whether the class’ state law tort claims were preempted by the Labeling Act. However, addressing the propriety of a closing argument, the court wrote that “[although compliance with the federal warnings preempted any claim based on failure to warn, it did not eliminate the other causes of action that the jury had to consider in Phase I.” Engle, 945 So.2d at 1273 (emphasis added). Despite this dicta, the tobacco companies have continuously argued that Engle plaintiffs’ claims are pre-empted by the Labeling Act. Recently, the Florida Supreme Court revisited the issue and definitively held that Engle plaintiffs’ strict liability and negligence claims are not preempted by the Labeling Act. R.J. Reynolds Tobacco Co. v. Marotta, 214 So.3d 590, 605 (Fla. 2017).

In Marotta, the court reasoned that “the record in Engle reflects that the claims were grounded in allegations that Engle defendants deliberately manufactured their products to increase the likelihood of addiction, despite defendants’ knowledge of the hazards of nicotine, and that Engle plaintiffs suffered .disease and death as a result of their inability to quit.” Id. Based on the foregoing, it concluded that preemption was not a valid defense to the afore?,outlined claims because “[fjederal tobacco regulations have, not explicitly allowed the type of conduct underlying Engle claims, namely, the intentional manipulation of nicotine levels.” Id. at 604-05. The Marotta court did not address the effect qf the Labeling Act on, fraudulent concealment and conspiracy to commit fraudulent concealment causes of action, but this is because the issue has already been squarely addressed by the United States Supreme Court.

In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), the Court considered whether a smoker’s state law fraudulent misrepresentation and conspiracy to misrepresent or conceal material facts claims were preempted by the Labeling Act To the extent that the smoker’s fraudulent misrepresentation claim was based on the theory that, “through their advertising,, [the tobacco companies] neutralized the effect of federally mandated warning labels,” the plurality held that the claims were preempted. Id. However, to the extent the claims were predicated on a. “state-law. duty not to not make false statements of material fact or to conceal such facts,” the plurality held that the fraudulent misrepresentation and conspiracy claims were not preempted by the Labeling Act. Id. at 528, 530, 112 S.Ct. 2608. As such, Cipollone established that a smoker’s “claim based on allegedly fraudulent statements made in [the tobacco companies’] advertisements is not pre-empted by [the Labeling Act].” Id. at 529, 112 S.Ct. 2608.

The Court revisited the issue of preemption and fraud based claims against tobacco companies again in Altria, 555 U.S. at 76-87, 129 S.Ct. 538. There, a smoker alleged that a tobacco company violated the Maine Unfair Trade Practices Act by fraudulently conveying through its advertising that “light” cigarettes delivered less tar and nicotine than regular brands despite its knowledge to the contrary. Id. at 72-73, 129 S.Ct. 538. The tobacco company argued that the claim was preempted because it was “more analogous to the ‘warning neutralization’ claim found to be preempted in Cipollone” as it was based “on statements that ‘might create a false impression’' rather than statements that are ‘inherently false.’ ” Id. at 81-82, 129 S.Ct. 538. The Court outright rejected the tobacco company’s claini, clarifying that the “warning'neutralization” claim found to be pre-empted by Cipollone was really a failure to warn claim mislabeled as a fraudulent misrepresentation claim. Id. at 82, 129 S.Ct. 538. It further clarified that “[n]oth-ing in the Labeling Act’s text or purpose or in the plurality opinion in Cipollone suggests that whether a claim is pre-empt-ed turns in any way' on the distinction between misleading and inherently false statements.” Id. It then concluded that:

[I]t is clear that our holding in Cipollone that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case. As was true of the claim in Cipollone, respondents’ claim .that the deceptive statements “light” and “lowered tar and nicotine” induced them to purchase petitioners’ product alleges a breach of the duty not to deceive. To be sure, the presence of the federally mandated warnings may bear on the materiality of petitioners’ allegedly fraudulent statements, “but that possibility does not change [respondents’] case from one about the statements into one about the warnings.”

Id. at 82-83 (citation and footnote omitted).

Based on the foregoing precedent, it is plain that a warning label instruction has no impact on Engle based negligence or strict liability claims and, likewise, has no bearing on a smoker’s claims that the tobacco companies fraudulently concealed material facts regarding the health effects of their cigarettes (both in their advertising and to regulatory authorities) and conspired to make these concealments. See Altria, 555 U.S. at 82-83, 129 S.Ct. 538; Cipollone, 505 U.S. at 529-30, 112 S.Ct. 2608; Marotta, 214 So.3d at 605. These were the only theories of liability Plaintiff asserted.

Despite the fact that Plaintiff did not assert a warning claim and her remaining claims were not pre-empted by the Labeling Act, PM insists that the instruction was nonetheless necessary to resolve the issues in the case, PM points to the following evidence as necessitating the instruction: 1) during Plaintiffs testimony, the jury asked Plaintiff whether there was adequate information about the risks of smoking “with the Surgeon General Report, warning labels on cigarette packs, and various public service announcements” to which Plaintiff responded that “with all the warnings it — it wasn’t enough to overcome all the advertisements about smoking being safer if you smoked filtered cigarettes,” and .2) one of Plaintiffs experts testified that PM concealed that it knew smokers were getting more tar and nicotine from filtered cigarettes. Based on the foregoing, PM maintains that “the jury .would have been left with the impression that it could impose liability based on a legally impermissible theory [that] the Defendants should have placed additional or different warnings on cigarette packages or in advertising."

PM’s argument is flawed in the same way that,-the tobacco company’s argument in Altria was flawed. 555 U.S. at 82-83, 129 S.Ct. 538. Plaintiffs evidence establishing that the fraudulent concealments and misrepresentations contained in advertising induced Decedent to purchase cigarettes despite the warnings had nothing to do with the adequacy of the warnings, but rather, as explained fey the Altria court, went to the materiality of the fraud. Id. Accordingly, despite PM’s best attempts to argue otherwise, nothing about this evidence somehow changed the case from one about the fraudulent statements to one about the warnings.

At any rate, to the extent the instruction had any bearing on the facts of the case, the possibility that it confused the jury is exceedingly high, especially considering the fact that the jury found for PM on Plaintiffs intentional tort claims. The instruction stated that based on the cigarette warning labels, “cigarette advertising after July 1, 1969 cannot be the subject of any claim that the advertising undermined or neutralized the warnings or made them less effective.” As Plaintiff compellingly argues, “most reasonable jurors (and even most lawyers) would misunderstand this language to mean that tobacco companies can have no liability for any statements in their advertising that are contrary to the mandated health warnings.” indeed, this is exactly how PM’s counsel explained the instruction in its closing argument. As discussed above, this is absolutely not true— PM could still be liable for fraudulent statements contained in its advertising despite the presence of a contrary warning label.

Our holding should not be interpreted as absolutely foreclosing the use of a warning label instruction in an Engle case. As indicated in Altria, the presence of warning labels on cigarette packs may go to the materiality of the tobacco companies’ misrepresentations, or, put otherwise, to the issue of the smoker’s detrimental reliance on the statements. Id. at 83, 129 S.Ct. 538. The instruction provided by the court here, however, simply did not explain these subtle, but critical, nuances.

In sum, we conclude that the warning label instruction was improperly given in this case. Accordingly, we are compelled to reverse and remand for a new trial. As outlined in the direct appeal analysis section, on remand, the court should enter judgment in favor of PM on Plaintiffs individual loss of consortium claim.

Reversed and remanded with instructions.

Conner and Forst, JJ., concur.

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

      . Plaintiff’s alternative survival claim is dubbed a "survival” claim due to the survival action statute, section 46.021, Florida Statutes (2007), which preserves actions the decedent filed or may have filed prior to his or her death. Based on this statute, a personal representative may bring and maintain a personal injury action on behalf of the decedent. If, however, the personal injury was the cause of the decedent’s death, the personal injury action "abates” and becomes a wrongful death cause of action under the Florida Wrongful Death Act. § 768.20, Fla. Stat. (2007). "[I]t is permissible for a personal representative to pursue both a claim for survival damages and an alternative wrongful death claim where the cause of the decedent’s death may be disputed by the parties.” Capone v. Philip Morris USA, Inc., 116 So.3d 363, 378 (Fla. 2013).

      . The plurality was comprised of Chief Justice Rehnquist and Justices White, O’Conner, and Stevens.


source: Caselaw Access Project

author: Ciklin, J.

license: Public Domain

text:
    Jennifer E. CALENDAR, Appellant, v. STONEBRIDGE GARDENS SECTION III CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D16-3393
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    George Franjóla of Gilligan, Gooding & Franjóla, P.A., Ocala, for appellant.
    Gregory R. Eisinger of Eisinger, Brown, Lewis, Frankel & Chaiet, P.A., Hollywood, for appellee.
   Ciklin, J.

Jennifer E. Calendar (“the homeowner”) appeals an order disbursing surplus funds from a tax sale of her condominium unit to Stonebridge Gardens Section III Condominium Association, Inc. (“the association”) based on its claim for unpaid assessments. She contends the trial court erred in ordering the funds to be distributed to the association where it did not record a claim of lien or obtain a final judgment. Because the association has a lien on the unit by virtue of section 718.116(5)(a), Florida Statute (2016), we disagree and affirm.

Condominiums are governed by chapter 718, Florida Statutes. Section 718.116 clearly states that an association has a lien on each parcel, and implies that a claim of lien against a unit owner for assessments becomes necessary only in cases where a mortgagee is also asserting a claim:

(5)(a) The association has a lien on each condominium parcel to secure the payment of assessments.... [T]he lien is effective from and shall relate back to the recording of the original declaration of condominium .... However, as to first mortgages of record, the lien is effective from and after recording of a claim of hen in the public records of the county in which the condominium parcel is located.

§ 718.116, Fla. Stat. Consequently, under section 718.116, where a declaration of condominium is recorded, such as in the instant case, recording a claim of hen is not an absolute prerequisite to the enforcement of a hen for unpaid assessments. See also Bessemer v. Gersten, 381 So.2d 1344, 1348 (Fla. 1980) (holding that a valid contractual hen was created at the time the respondents accepted a property deed with actual or constructive notice of the lien provision of a recorded declaration of restrictions); .

This interpretation- of • section 718.116(5)(a) is consistent with a dissenting opinion in a case involving a foreclosure sale, Aventura Management., LLC v. Spiaggia Ocean Condominium Association, 105 So.3d 637, 640 (Fla. 3d DCA 2013). There, Judge Shepherd of the Third District dissented with respect to an issue unrelated to the instant matter, but his dissent sheds light on section 718.116. He indicated that a “statutory hen” is created by section 718.116(5)(a) and that a recorded claim of hen is not required under the section in most circumstances:

The majority opinion .... first concludes, correctly in my view, that [the] Condominium Association’s statutory hen, afforded by section 718.116(5)(a), Florida Statutes (2008), “survives the foreclosure.” Maj. Op. at [639]; see also Lassiter v. Kaufman, 581 So.2d 147, 148 (Fla. 1991); Contos v. Lipsky, 433 So.2d 1242, 1245-46 (Fla. 3d DCA 1983)....
... [I]t is apparent the fundamental purpose of the Legislature in promulgating section 718.116 was to assist condominium associations to be made whole in the collection of past due assessments, while at the same time not unduly impairing the value of collateral held by first mortgagees. In furtherance of this design, the Legislature has given condominium associations a statutory hen on each condominium unit over which it has jurisdiction, to secure payment of assessments without the necessity of filing a claim of hen in the public records, with the single exception of first mortgagees, where record notice is required. § 718.116(5)(a).

Id. at 640.

We agree with this reasoning and we hold that the hen in favor of the association was created by the statute itself. Since there is no indication that a first mortgage was at issue in this case, the association was not required to file a claim to validate its lien.

Affirmed.

Gross and Klingensmith, JJ., concur.


author: JOHNSON, Chief Justice CRICHTON, J.,

text:
    STATE of Louisiana v. Avery JULIEN
    No. 2017-KK-0557
    Supreme Court of Louisiana.
    10/18/2017

      ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Leon A. Cannizzaro, Jr., District Attorney, Scott Gerard Vincent, Donna R. Andrieu; For Applicant;
    George Augustus Blair, III; Justin Ash-er Zitler; Katherine Zabetti Crouch; LA-PORTE LAW OFFICE, LLC, Ryan Frederick LaPorte; Thomas Ward Frampton; For Respondent.
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

JOHNSON, Chief Justice

hThe underlying issue in this case concerns the reasonableness of a warrantless search of a probationer’s residence conducted by a multi-agency law enforcement task force. Specifically, we are called upon to determine whether the search violated Louisiana Code of Criminal Procedure Article 895(A)(13)(a), which provides as. a condition of probation that the defendant agree “to searches of ... his place of residence ... at any time, by the probation officer ... assigned to him, with or without a warrant ... when the probation officer ... has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.”

After review of the law and record, and considering the arguments of the parties, we hold that the warrantless search of defendant’s residence violated the provisions of Article 895(A)(13)(a) because the search was not conducted by the probation officer assigned to him. We further find that violation of this statute constituted an unconstitutional search under Louisiana Constitution Article I, § 5, requiring exclusion of the evidence pursuant to Louisiana Code of Criminal Procedure Article 703(C). Thus, we affirm the ruling of the district court which granted defendant’s motion to suppress the evidence.

FACTS AND PROCEDURAL HISTORY

[¡.The charges against defendant, Avery Julien, stem from a warrantless search of his residence on March 8, 2016. On that date, two officers from the New Orleans District of the Louisiana Department of Probation and Parole, James Bertrand and Jason Hardy, conducted a “compliance check” at defendant’s home at 6:00 a.m. Officers Bertrand and Hardy were accompanied by officers from the New Orleans Police Department and the United States Marshals Gulf Coast Criminal Fugitive Task Force. Officer Bertrand testified that the compliance check was conducted in conjunction with the U.S. Marshals violence reduction operation, “Operation VR12.”

After knocking on the door of Mr. Ju-lien’s residence for a period of time, someone opened the front door and the officers entered, secured the residence and were directed to Mr. Julien’s bedroom, where Officers Bertrand and Hardy found Mr. Julien in bed with a female companion. The officers handcuffed Mr. Julien and the female and- escorted them from the room. Then, while conducting a “protective sweep to make sure that there were no other individuals in the room,” Officer Bertrand saw a live nine-millimeter round of ammunition on the windowsill. Upon locating the ammunition, the officers deemed they possessed “enough reasonable suspicion to conduct .a search.” Officer Hardy discovered a firearm in the drawer of the nightstand next to where Mr. Julien was sleeping. The search of the remainder of the residence yielded a second firearm and accompanying ammunition. Both weapons were determined to be stolen. Officers Bertrand and Hardy reported their discovery of the contraband to a U.S. Marshal on the scene, who then took over the investigation.

According to Officer Bertrand’s testimony, neither he nor Officer Hardy were Mr. Julien’s assigned probation officer. They were conducting compliance checks throughout the city as part of the Marshals task force and Mr. Julien was put on their lalist by the probation department.

On April 5, 2016, the State filed a bill of information charging defendant with possession of a firearm by a convicted felon and illegal possession of a stolen firearm. Defendant filed various motions, including a motion to suppress the evidence. The district court held a hearing on November 3, 2016, and granted the motion to suppress. The district court found the officers who conducted the search did not have the ability to conduct a warrantless search under Article 895(A)(13)(a), noting the probation officers involved were not assigned to Mr. Julieris case.

The court of appeal denied the state’s writ application with reasons. State v. Julien, 16-1223 (La. App. 4 Cir. 3/15/17), 229 So. 3d 640, 2017 WL 993193. The court explained that while any probation officer could presumably conduct a compliance check pursuant to La. C.Cr. P. art. 895(A)(4), the agents’ conduct in this case surpassed that contemplated by law when they entered Mr. Julieris bedroom and handcuffed both him and his female companion and escorted them out of the room before viewing the ammunition on the windowsill. Id. at p. 3. The court noted the state presented no evidence suggesting reasonable suspicion prior to assembling the law enforcement team to conduct the compliance check. Id. The court found that given the totality of the circumstances, the compliance check was unreasonably pre-textual. The court reasoned:

Agents Bertrand and Hardy should not have been in Mr. Julien’s bedroom and thereby able to view the ammunition in plain sight. The legality of the search conducted thereafter was vitiated by the fact that neither Agent Bertrand, nor Hardy was assigned as Mr. Julieris probation officer, which triggered La. C.Cr.P. Art. 895(13)(a). Once implicated, La. C.Cr.P. Art. 895(13)(a) requires that the warrantless search be conducted by the probation officer assigned to Mr. Julien. It] 4 is undisputed that the probation officer assigned to Mr. Julien was not present.

Id. at p. 4. The court of appeal found the district court did not abuse its discretion in granting the motion to suppress. Id. at p. 5. Judges Ledet and Dysart concurred in the writ denial, finding the probation officers’ compliance check crossed the line to a warrantless probation violations search. As such, the state was required to establish there was a reasonable suspicion that criminal activity was occurring, but failed to do so.

On the state’s application, we granted supervisory review and consolidated this case for, argument with State v. Brignac, 17-0448 (La. 5/12/17), 219 So.3d 1107, decided in a separate opinion issued contemporaneously with this matter. State v. Julien, 17-0557 (La. 5/12/17), 219 So.3d 1107.

DISCUSSION

For the reasons assigned this day in State v. Brignac, 17-448 (La. 10/18/17), 234 So. 3d 46, 2017 WL 4681982, we hold La. C.Cr. P. art. 895(A)(13)(a) requires a war-rantless search of a probationer be conducted by the particular probation officer who is generally and regularly assigned to á particular probationer. We further hold this is a factual determination to be made by the district court.

Here, the district court made a finding that the search was not conducted by the probation officer assigned to Mr. Julien as required by Article 895(A)(13)(a). After review of the. record, we find no error in that ruling. As a general rule, this court reviews district court rulings under a deferential standard with regard to factual and other triai determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751. When a district court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not|g overturn those findings unless there is no evidence to support those findings. Id.

The only evidence relative to this issue was presented via the testimony of Officer Bertrand:

Q (State): Agent Bertrand, will you please introduce yourself for the record, sir?
A (Bertrand): James Bertrand, Louisiana Department of Probation and Parole, New Orleans District.
* * *
Q: Agent Bertrand,: March the 8th of 2016, were you working by yourself or with any other probation and parole officers?'
A: I was working with one other probation and parole officer, Jason Hardy.
Q: Okay. And, what was your assignment on that date?
A: We were with the Marshals, or Operation VR12, Violence Reduction ... We were just doing compliance checks throughout the city.
Q: Okay. And, an Avery Julien was registered with Probation and Parole in Orleans Parish?
A: Yes.
* * *
Q: Were you the assigned officer, or . -was Hardy?
A: Neither one of us was. He was just . put on our list by the Department.

Officer Bertrand was also questioned directly by the court regarding this issue:

Q (Court): And, this has come up before, and I have to ask. You quoted ' S95(A)(13), where you said that someone on probation and parole subjects himself to a search of his residence ... when the officer has reasonable suspicion.
A (Bertrand): Yes, sir.
Q: You also testified that you weren’t the probation officer assigned to the case, nor was your partner?
A: Correct.
hQ: All right. My problem and concern ... is that the statute says .,. that a probationer agrees to a search of his person, his property, his place of residence, his vehicle or his personal effects, or any and all of them at any time by the probation officer ,.. assigned to him with [or] without [a] warrant when the probation officer ... has reasonable suspicion to believe that the person who is on probation ... is engaged or has been engaged in criminal activity.
This is obviously a way around a warrant requirement, and the statute seems to understand that and so limits this only to the probation officer assigned to him.
What legal authority do you,' as an agent who is. not assigned to the case but for to go out with U.S. Marshals, have to conduct a warrantless search?
A: The opinion of the Department as it has always been explained is that the language had never, been changed 'but is that they don’t technically bel long to any one officer. They are, you know, they are all charges of the Department of Corrections, and that’s the way that it has always been.
In granting the motion to suppress, the district court stated:
I’m saying that as I read the statute that they cannot enter the house and conduct a warrantless search, be it walk into the house in the first place, unless ... the agent that is assigned to the case is there with reasonable suspicion to believe that a crime is committed, or is being committed, or has been committed.
If you read the case law that exists ... it is because they are obviously making an attempt to make sure that this isn’t used [as] a reach around or an end around to the warrant requirement. I mean, what the officer said is, “I am not assigned to this case.” The agent that he was with wasn’t assigned.to this case, He'said-he was with the U.S. Marshals, which means, that they are conducting something above and beyond an actual status check, that wouldn’t be with an outside law enforcement agency if they didn’t havé últejior reasons. And, then, they are just ’basically doing an end [around the] warrant requirement by ■having a probátion Officer, regardless of who it is and regardless'of whether-or not they are assigned to the case as a means to get into that house without a warrant.

Based on our review'of the record in this case, we find' no error in the district court’s ruling'. Given Officer Bertrand’s unequivocal testimony, there is no question neither [7he nor Officer-Hardy was assigned to Mr. Julien within the meaning of Article 895(A)(13)(a). It is clear these probation officers, were assigned to, conduct “compliance checks”. of probationers as part of a U.S. Marshals task force, and Mr. Julien was a probationer who happened to be placed on their list. Officer Bertrand’s testimony also reflects the probation department’s inherent misunderstanding that the law allows any probation officer to conduct these searches.

We also reject the state’s contention that this was not a “search,” but merely a “walk through” inspection during a home visit to confirm defendant’s residence. It is clear based on the record that the probation officers went to defendant’s residence as part of a federal violence reduction task force consisting of multiple law enforcement agencies. The presence of such a task force alone belies any suggestion that the officers did not intend to conduct a search of Mr. Julien’s residence. The officers’ actions went far beyond a routine check or inspection to confirm residence normally conducted by the probation department. Notably, the visit did not end when the officers located defendant in his residence. Rather, officers handcuffed the defendant immediately, removed him from the room and then conducted a protective sweep. Under the facts presented, we find the district court correctly viewed the officers’ actions as a search governed by La. C.Cr. P. art. 895(A)(13)(a).

Having found the search in this case did not comply with the requirements of Article 895(A)(13)(a), we further hold the search constituted an unreasonable search and invasion of Mr. Julien’s privacy under Article I, § 5 of the Louisiana Constitution for the same reasons assigned this day in State v. Brignac, 17-448 (La. 10/18/17), 234 So.3d 46, 2017 WL 4681982. Thus, the evidence is properly excluded, and the district court correctly s granted defendant’s motion to suppress the evidence. See La. C.Cr. P. art. 703(C).

DECREE

AFFIRMED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUIDRY, J., concurs in the result.

CRICHTON, J.,

concurs and assigns reasons

hi concur in majority opinion’s finding in this case for the reasons stated in my concurrence in State v. Kayla Brignac, 17-0448 (La. 10/18/17), 234 So.3d 46.

      . La. C.Cr. P. art. 895(A)(4) provides: "When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall: (4) Permit the probation officer to visit him at his home or elsewhere.”

      . Because we have determined the search of Mr. Julien’s residence violated La. C.Cr. P. art. 895(A)(13)(a) on the basis it was not conducted by the probation officer assigned to him, we need not reach the issue of whether "reasonable suspicion” existed for the search.


author: CLARK, J.

text:
    STATE of Louisiana v. Skylar FRANK
    No. 2016-K-1160
    Supreme Court of Louisiana.
    10/18/2017

      ALLEN PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Hebert Todd Ne-som, District Attorney, Steven Benard Sumbler, John Keith Richardson; For Applicant . .
    ' Christopher A. Aberle; Paula Corley Marx;’ For Respondent,
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF ALLEN

CLARK, J.

11 This case presents the question of whether-the court of appeal erred in applying Louisiana’s jurisprudential “same evidence” test to find that defendant’s conviction for attempted felony carnal knowledge of a juvenile, La.R.S. 14:27 and 14:80, must be set aside in light of his conviction for malfeasance in office, La.R.S. 14:134, because it violates the prohibition against double jeopardy. Finding that no double jeopardy violation occurred, we reinstate defendant’s conviction and sentence for attempted felony carnal knowledge of a juvenile. Furthermore, we find no significant difference between U.S. Const. Amend. V and La. Const. art. I, § 15 supporting the notion that Louisiana’s constitution affords greater protection against double jeopardy than the federal constitution or requires this state’s courts to apply two distinct tests — one federal and one state — to analyze double jeopardy claims. Therefore, Louisiana courts are bound only to apply the standard established by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to protect against double jeopardy and can dispense with Louisiana’s separate “same evidence” test.

li>.The State charged defendant, a former Oakdale police officer, with felony carnal knowledge of a juvenile, malfeasance in office, and obstruction of justice. The charges arose from an incident involving 15-year-old B.W. On May 23, 2014, B.W.’s uncle, Thomas Buxton, became concerned when he saw a police unit parked in front of his sister’s Allen Parish residence, where he knew his niece was home alone. Mr. Buxton entered the home and found a police gun belt and radio on the living room floor. In B.W-’s bedroom, he found defendant alone with B.W. She was in bed under the covers, and defendant was hiding behind the bedroom door with his shirt untucked and his belt-undone.

B.W. first told investigators that defendant went to the residence to force Hesiki-ah Hayward, her former boyfriend and defendant’s cousin, to leave. She claimed Mr. Hayward fled when defendant began searching the home. She later recanted that account and stated that defendant concocted the story about Mr. Hayward. She also admitted that, before her uncle interrupted them, she had performed oral sex on defendant and was about to engage in sexual intercourse with him.

Defendant told investigators he went to the residence to compel Mr. Hayward to leave and found his cousin hiding in a closet. He claimed he did not inform the dispatcher of his location because he did not want Mr. Hayward to get in trouble. He denied any sexual misconduct with B.W.

Mr. Hayward told investigators he was not in the residence at the time of the incident, but had received text messages from B.W., asking him to say he was there when defendant arrived. Text messages on Mr. Hayward’s phone confirmed [ athis account. Defendant had instructed B.W. to delete the relevant text messages on her cell phone.

An Allen Parish jury found defendant guilty of attempted felony carnal knowledge of a juvenile, malfeasance in office, and obstruction of justice. The trial court sentenced him to four years imprisonment at hard labor (with all but one year suspended) on each conviction and ran the sentences concurrently.

. The court of appeal affirmed in part, vacated in part, and remanded for establishment of a payment plan for costs and fees. State v. Frank, 15-0893 (La. App. 3 Cir. 5/25/16), 192 So.3d 888. The majority vacated defendant’s conviction for attempted felony carnal, knowledge of a juvenile because it found that punishing defendant for that conviction and the malfeasance in office conviction violated double jeopardy, pursuant to -this state’s “same evidence” test. Frank, 15-0893, pp. 4—8, 192 So.3d at 891-93. In reaching that conclusion, the majority relied on, inter alia, the state’s comment during closing argument that “[a]nd lastly we’ve proven beyond a reasonable doubt the third element of Malfeasance in Office through the testimony of [B.W.]. saying that she performed oral sex on the defendant while he was on duty.” Frank, 15-0893, p. 7, 192 So.3d at 893.

Under Blockburger, there is no obstacle to convicting defendant of, and punishing him for, both attempted felony carnal knowledge and malfeasance in office. As noted by Judge Saunders in his dissent:

The two crimes in question, malfeasance and attempted carnal knowledge, do not, according to their definitions, appear to be the same offense. Attempted carnal knowledge occurs when a person, age seventeen or older, attempts to have sexual intercourse,
with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference, between the age of the victim and the age of the offender is four years or greater.
La.R.S. 14:80; La.R.S. 14:27. It is sufficient that oral sex occurred. La.R.S. 14:80. Malfeasance, in-office is committed when a public officer intentionally refuses or fails to perform his lawfully required duty or intentionally performs his lawfully required duty in an unlawful way.
On their face, it is clear that there are several elements for attempted carnal knowledge that are not required to convict for malfeasance and vice- versa. For example, for malfeasance in office, the State must show that Defendant was a public officer. No such showing is necessary for attempted carnal knowledge. Likewise., for attempted, carnal knowledge,. Defendant’s age is a relevant fact that the State must establish, no such showing is necessary for a malfeasance in office prosecution. Thus, each offense requires proof which the other does not, and this case fails the Blockburger test.

Frank, 15-0893, pp. 1-2, 192 So.3d at 896.

The present case arises, however, because Louisiana has also applied a “same evidence” test in addition to the Blockburger test. The impact of the “same evidence” test on this state’s double jeopardy jurisprudence has not gone without criticism. Judge Drew in particular succinctly illuminated the problem with this troublesome test;

Three out of every four states settle Fifth Amendment claims of double jeopardy by simply applying the precepts of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein a defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. This is a straightforward test.
In Louisiana, courts are required to also add a murky “same evidence” test, which few understand, and none can clearly explain. This double whammy has lead to inconsistent results and wildly uneven double jeopardy analyses. Blockburger, supra, has been the gold standard for 80 years. It is more than sufficient to afford protection against double jeopardy under the Fifth Amendment.

State v. Balentine, 47,858, pp. 2-3 (La. App. 2 Cir. 7/10/13), 119 So.3d 979, 985-86 (Drew, J., dissenting) (footnote omitted).

IsThe Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Supreme Court has determined that this clause protects against a second prosecution for the same offence after acquittal, Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), against a second prosecution for the same offense after conviction, Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), and against multiple punishments for the same offense, Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872 (1873). The scope of these protections depends on the meaning of “the same of-fence.”

According to Justice Brennan’s concurrence in Ashe v. Swenson, 397 U.S. 436, 451, 90 S.Ct. 1189, 1198, 25 L.Ed.2d 469 (1970), various “same evidence” tests for determining “same offence” developed in the common law, first appearing in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796), and were eventually adopted by a majority of U.S. jurisdictions. One particularly influential version of the “same evidence” test was adopted by Massachusetts and expressed as follows:

A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Morey v. Commonwealth, 108 Mass. 433, 435 (Mass. 1871). The U.S. Supreme Court essentially adopted the Morey test in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 [(1911)], and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense [sic] against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Compare Albrecht v. United States, 273 U. S. 1, 11, 12, 47 S.Ct. 250, 71 L.Ed. 505 [ (1927) ], and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.

The double jeopardy prohibition of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). It also applies to different levels of |7courts within a state. Waller v. Florida, 397 U.S. 387, 394-95, 90 S.Ct. 1184, 1188-89, 25 L.Ed.2d 435 (1970) (conviction in city court barred felony prosecution for same offense in state court). Thus, Louisiana courts are constitutionally required to apply Blockburger.

Louisiana courts have to some extent, however, viewed Blockburger as a constitutional minimum that is supplemented by a heightened protection against double jeopardy afforded under Louisiana law. That view has never been adequately grounded in any textual difference between this state’s and federal constitutional provisions. Generally, the jurisprudence of double jeopardy in Louisiana and federal courts stem from.the same common law sources and have always remained tightly synchronized with one exception, discussed below.

' The Blockburger test is often characterized as a “distinct fact” test to distinguish it from the “same evidence” test that preceded it in Louisiana. Louisiana expressed the pve-Bloclcburger “same evidence” test as follows (in the context of. two prosecutions arising from one act of transporting gih and wine between parishes): •

The gravamen or the essence of the offense against the state was the possession and transportation of the liquor. The line dividing the parishes, from which and into which defendant transported the liquor, formed no essential element of the offense. The only .importance the parish line could have in the matter would be for the determination of the question of venue or jurisdiction. In Marr’s Criminal Jurisprudence, p. 580, it is said that identity of the offense is an essential element in support of a plea of autre fois. By this is pot meant formal, technical, absolute identity; the rule is that there must be only substantial identity; that the evidence necessary to support the second indictment would have been sufficient for the first. In the instant case there was not only substantial identity, but the identity of the possession and the transportation in the two papish.es of the same liquor was absolute and conclusive. No more and no different evidence was required to support the charge in Bossier than was necessary to make out the case in Red River.

State v. Roberts, 152 La. 283, 286-87, 93 So. 95, 96-97 (1922) (emphasis added). Notably, this pve-Blockburger test involving “no more and no different evidence” necessary to support both charges is quite similar to the initial pronouncement at the outset of Morey (ie., “[T]he evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.”). The U.S. Supreme Court in Blockburger, however, adopted the “additional fact” language that appears later in Morey (and is reproduced above). Nonetheless, there is no reason to believe that the Massachusetts Supreme Judicial Court intended’ to articulate two different tests in Morey, instead, that court used slightly different language to expound upon a singular concept. Nonetheless, that court’s exposition formed the basis of two, distinct tests as the Blockburger and the “same evidence” tests in this state;

In State v. Didier, 262 La. 364, 374-76, 263 So.2d 322, 326-27 (1972), this Court determined that the legislature had codified the jurisprudential standard set forth in Roberts, supra, in La.C.Cr.P. art. 596. This Court subsequently opined that “[t]he ‘same evidence test’ is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” State v. Steele, 387 So.2d 1175, 1177 (La. 1980). The Steele court cited no authority for-that conclusion and provided no further explanation, but may have had State ex rel. Wikberg v. Henderson, 292 So.2d 505, 508-09 (1974) in mind.

lain Wikberg, the majority, despite stating- that the Blockburger test is not much different than the test traditionally, used in Louisiana, see Wikberg, 292 So.2d at 508-09, engaged in a broader analysis to find that convicting a defendant for attempted armed robbery following a conviction for felony-murder arising out of the same incident violated the prohibition against double jeopardy. The majority based its conclusion on the belief that the enumerated felony underlying a felony-murder charge operates much like a lesser responsive charge while not technically amounting to such:

Of course, an essential element of the state’s proof of felony-murder is the commission or attempted perpetration of the enumerated felony. The enumerated felony is therefore a different grade of the same offense (or an included offense) for double jeopardy purposes. See C.Cr.P. Art. 596.
In most cases, the lesser grade or included offense is generically the same as the more severe crime charge, e.g., armed robbery and theft. In the case of felony-murder and felony-manslaughter, however, generically. different offenses such as armed robbery and murder are combined into a single offense through a legal fiction, which fiction relieves the state of proving intent to kill or inflict great bodily harm. This difference may account for some of the confusion in the jurisprudence dealing with felony-murder and double jeopardy.

Wikberg, 292 So.2d at 509. The majority noted that the legislature enacted Article 596 without the “responsiveness” requirement of former Article 279 of the 1928 Code of Criminal Procedure and thereby “broadened” the protection of the article, which view may have inspired the statement in Steele that Louisiana law is “somewhat broader” than Blockburger. See Wikberg, 292 So.2d at 510. Chief Justice Sanders’ dissent in .Wikberg clearly perceived the majority as utilizing a broader test than used- previously in Louisiana or federal, courts. See Wikberg, 292 So.2d at 513-14, Regardless, the U.S., Supreme Court subsequently found in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (citations omitted) that “[wjhen ... conviction of a greater crime, [felony murder], cannot be I mhad without conviction of the lesser crime, [in this case] robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one.” Therefore, Harris healed the brief schism between federal and Louisiana double jeopardy jurisprudence. The concept that Louisiana must utilize a second, broader double jeopardy analysis, however, took root well beyond the context of Article 596 and felony murder in which it arose.

Thus, Louisiana’s anticipation of U.S. Supreme Court double jeopardy jurisprudence (and specifically the notion that the Double Jeopardy Clause bars prosecution for the underlying felony after a conviction for felony murder) has led' to the present state of the jurisprudence denounced by Judge Drew’s insightful dissent in Balentine, which is perceived as a two-stage process in which a lesser federally-mandated standard is-first applied followed by the application of heightened state standard. These two levels of protection, however, are not grounded in any substantive difference in the constitutional texts. Compare U.S. Const. amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”) with La. Const. Art. I, § 15 (“No person shall be twice placed in jeopardy for the same offense, .... ”). Accordingly, we take this opportunity to make clear that.the protections against double jeopardy mandated by the federal constitution, as restated in this state’s constitution, fall within the analytical framework set forth in Blockburger and Louisiana courts need only apply that framework in analyzing questions of double jeopardy. Because no double jeopardy violation is apparent here under Blockburger, reverse in part the court of appeal and reinstate defend'ant’á conviction and sentence for attempted Infelony carnal knowledge of a juvenile!

REVERSED IN PART

      . GPS records from defendant’s police vehicle confirmed the unit had been parked in front . of the residence with the ignition off for 13 minutes. A police dispatcher testified defendant (who was on-duty at the time) had not been dispatched there, and he did not call-in his location pursuant to protocol.

      . The state also presented evidence that defendant communicated extensively with B.W. via messaging application "Kile" under an assumed name.

      . The obstruction of justice conviction is not at issue on appeal.

      . The trial court also imposed a $2000 fine for each conviction.

      . Similarly, La. Const. Art. 1, § 15 provides, "No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained."

      . Applying this test, the Massachusetts Supreme Judicial Court found that a conviction for lewd and lascivious cohabitation did not bar subsequent indictment for adultery although based on the same acts of unlawful intercourse:

        The case now before us cannot be distinguished in principle from those just cited. The indictment for lewd and lascivious cohabitation contained no averment and required no proof that either of the parties was married, but did require proof that they dwelt or lived together, and would not be supported by proof of a single secret act of unlawful intercourse. Commonwealth v. Calef, 10 Mass. 153 [(1813)]. The indictment for adultery alleged and required proof that the plaintiff in error was married to another woman, and would be satisfied by proof of that fact and of a single act of unlawful intercourse. Proof of unlawful intercourse was indeed necessary to support each indictment. But the plaintiff in error could not have been convicted upon the first indictment by proof of such intercourse and of his marriage, without proof of continuous unlawful cohabitation; nor upon the second indictment by proof of such cohabitation, without proof of his marriage. Full proof of the offence charged in either indictment would not therefore of itself have warranted any conviction upon the other. The necessary consequence is, that, assuming that proof of the same act or acts of unlawful intercourse was introduced on the trial of both indictments, the conviction upon the first indictment was no bar to a conviction and sentence upon the second; and that there is no error in the judgment, for which it can be reversed.

        Id. at 435-36.

      . The U.S. Supreme Court found in Blockbur-ger that defendant could be prosecuted for two offenses arising from a single drug transaction; sale of morphine hydrochloride not in its original stamped package and sale of morphine hydrochloride without a written purchase order. Id., 284 U.S. at 303-04, 52 S.Ct. at 182.

      . La.C.Cr.P. art. 596 provides:
      Double jeopardy exists in a second trial only when the charge in that trial is:
      (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
      (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial,

      . Defendant appears to concede there is no obstacle presented here by Blockburger. See Brief in Opposition, p. 6 ("It is not. argued that the language in the two statutes at issue — malfeasance in office and attempted felony carnal knowledge of a juvenile — reveals a double jeopardy violation by virtue of the strict ‘Blockburger’ distinct fact test, but the inquiry does not end there.”).

      . Because we dispense with the "same evidence” test, we need not resolve the disagreement between the majority and dissent in the court below as to its correct application here.