author: Forst, J.

text:
    MDVIP, INC., Appellant, v. Robert BEBER, as Personal Representative of the Estate of Joan P. Beber, Deceased, Appellee.
    No. 4D15-1648
    District Court of Appeal of Florida, Fourth District.
    [May 31, 2017]

      Rodolfo Sorondo, Jr., Christopher N. Bellows, and llene L. Pabian of Holland & Knight LLP, Miami, for appellant.
    Karen E. Terry and Jack Scarola of Searcy Denney Scarola Barnhart & Ship-ley, P.A., West Palm Beach, and Daniel R. Hoffman and David J. Sales of David J. Sales, P.A., Jupiter, for appellee.
   Forst, J.

This case involves claims against a self-described “personalized healthcare program” for both fraud and negligence related to alleged medical malpractice attributable to one of the program’s affiliated physicians. This purported medical malpractice resulted in serious permanent injury to one of the original plaintiffs. We hold that the trial court made several errors in its consideration of motions for directed verdict made by both parties, and we therefore reverse for a new trial on limited grounds, as set forth below.

Background

MDVIP is in the “concierge medicine market” and provides members with certain medical-care benefits in exchange for an annual fee. In its initial brief, MDVIP explains that a concierge practice gives physicians more time to provide personalized service to patients through greater accessibility and availability and, in exchange for a $1,500 annual membership fee, patients were provided with “a comprehensive annual wellness exam as well as certain convenience factors, including same or next-day appointments, 24/7 access to physicians, smaller physician practices and a personalized wellness plan.” MDVIP does not engage in any actual practice of medicine and does not tell its affiliated physicians how to practice medicine, how to diagnose and treat a patient, what medication to prescribe, or whether to refer a patient to a specialist. At all times relevant to this appeal, a physician named Dr. Metzger was ■ affiliated with MDVIP. Neither Dr. Metzger nor any other physician is a party to the lawsuit at issue here, though he and several other health care providers had been original defendants and were voluntarily dismissed from the suit as a result of pre-trial settlements, leaving MDVIP as the sole defendant at trial.

Original plaintiff Joan Beber (“Plaintiff’) was a patient of Dr. Metzger’s before he was affiliated with MDVIP. When Dr. Metzger made the decision to affiliate with MDVIP, some of his patients, including Plaintiff, attended a presentation about the concierge program offered by MDVIP. At the presentation, prospective patients were told about MDVIP, including how doctors were selected, what hospitals MDVIP worked with, and how a study showed .that MDVIP members were sixty-five percent less likely to be hospitalized. MDVIP also provided the audience with a Frequently Asked Questions booklet, which included an explanation of the relationship between MDVIP and Dr. Metz-ger. This booklet was also mailed to Plaintiff. ■

In a deposition, Plaintiff described three reasons why she chose to join MDVIP: “I think the major reason [for joining MDVIP] was the accessibility of other doctors and other hospitals. That would be number one. [Maintaining a relationship with] Dr. Metzger would be number two, and quick services would be number three, if you want that rated.” Plaintiffs husband also testified that the reason the two joined was because of the offer of “the finest doctors, exceptional doctors.”

The events leading to Plaintiffs injury need not be described at length. To summarize,. she began to experience pain in her leg which, through what the jury determined was Dr. Metzger’s negligence, went undiagnosed and misdiagnosed, until Plaintiff was forced to undergo an above-the-knee amputation. Of particular note, however, are the fact that the main contact Plaintiff had at Dr. Metzger’s office was a nurse, not Dr. Metzger, and the fact that Plaintiff was told that Dr. Metzger did not have admitting privileges at any nearby hospital other than at the then-named Boca Raton Community Hospital.

Plaintiff sued a variety of parties, including Dr. Metzger, but by the time of trial only MDVIP remained as a defendant. Plaintiffs theories against MDVIP were for vicarious liability for Dr. Metzger’s negligence, turning on apparent agency, joint venture, and actual agency, and for misleading advertising and fraudulent misrepresentation related to its marketing statements (collectively, these latter theories are referred to as "the fraud claims”). There were no independent allegations of negligence against MDVIP. Prior to trial, Plaintiff died of cancer unrelated to the alleged negligence, and her husband was substituted .as the main plaintiff as personal representative of her estate..

During trial, MDVIP moved for a directed verdict on the fraud claims, which the trial court denied. On the other hand, the trial court granted Plaintiffs motions for directed verdicts on apparent agency and joint venture. In closing, Plaintiff told the jury that the issues of apparent agency and joint venture “[were] not [] issue[s] for you to determine, it’s already been determined by the Court.” The trial court’s instructions to the jury included telling it that’it was obligated to decide each claim it was considering separate from the others.

•The jury -found in favor of Plaintiff on all claims. It awarded a total of $8,539,289 for mostly non-economic damages: $1,036,288 attributable to the negligence claims and $7,503,001 on the fraud claims. On MDVIP’s motion, the trial court reduced the amount of the-final award based on the non-economic damages caps created by section 766.118, Florida Statutes, which this Court has since determined' are unconstitutional. N. Broward Hosp. Dist. v. Kalitan, 174 So.3d 403, 411 (Fla. 4th DCA 2015); see also Go v. Normil, 184 So.3d 554, 557 (Fla. 4th DCA 2016).

Both parties appealed, with Plaintiffs cross-appeal limited to the Kalitan unconstitutional caps issue.

Analysis

A, MDVIP’s motions for directed verdict on the,fraud claims. ■

This Court reviews motions for directed verdict de novo. Henry v. Hoelke, 82 So.3d 962, 965 (Fla. 4th DCA 2011). “When an appellate court reviews the trial court’s denial of a motion for directed verdict, it must ‘view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant.’ ” Conrad v. Young, 10 So.3d 1154, 1157 (Fla. 4th DCA 2009) (quoting Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004)).

MDVIP moved for directed verdicts on Plaintiffs fraud claims, and the trial court denied those motions. As set forth below, we hold that there is no view of the evidence sufficient to sustain a verdict on the fraud claims and thus reverse the trial court’s denial of MDVIP’s motions for directed verdict.

The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, or printed form .or otherwise, to or before the, public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such- property or services,

§ 817.40(5), Fla. Stat. (2009). “A claim of fraudulent misrepresentation is not actionable if premised on a mere opinion, rather than a material fact.” Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994). It is the responsibility of the buyer of a product or service to investigate the truth of any “puffing” statements, as such declarations “do not constitute fraudulent misrepresentations.” Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995). A promise to deliver an “exceptional” product or service is a matter of opinion rather than fact, and constitutes non-actionable puffery. See Heath v. Palmer, 181 Vt. 545, 915 A.2d 1290, 1296 (2006) (holding that a representation of “exceptional value” “unquestionably fall[s] within the category of opinion”).

Plaintiffs fraud claims were non-actionable to the extent that they depended on MDVIP’s pledge to provide “exceptional doctors, exceptional care, and exceptional results.” However, neither of the fraud claims depended exclusively on this puffery. We therefore must examine the other, fact-based statements made by MDVIP to determine whether any of those were supported by the evidence.

In the complaint, Plaintiff alleged that MDVIP:

• promised Plaintiff “that she would be seen by the finest national specialists with advanced treatment”;
• “held itself out as being associated with the best hospitals and doctors nationwide”;
• claimed to be “a network fraternity of some of the nation’s finest physicians”;
• stated that Plaintiff’s- specialty care would be “actively coordinate[d]” by Dr. Metzger, including through “personal calls to specialists”;
• defined an “exceptional doctor” as one with “excellent credentials[,] bedside manner, reputation[, and] diagnostic skills”;
• represented that it selected, doctors “based upon [the doctors’] medical expertise and their relationships with patients”;
.• stated that it had a relationship with the Cleveland Clinic and the Miller School of Medicine, and;
• cited statistical data showing that MDVIP patients had sixty-five percent fewer hospitalizations than patients in traditional practices.

Some of these allegations are easily disposed of as puffery alongside the “exceptional doctors, exceptional care, and exceptional results” statement. Those would be the “finest national specialists,” the “best hospitals and doctors,” and the “fraternity of some of the nation’s finest physicians” statements. The status of being the “finest” or the “best” is a matter of opinion, and the allegations of fraud from the use of these terms cannot stand. Similarly, the referenced statements describing what makes ah' “exceptional doctor” are statements of opinion concerning the quality of a doctor’s credentials, bedside manner, reputation, and diagnostic skills.

Once these puffing statements are removed from the analysis, there remain but four allegations of fact that could serve as grounds for the fraud claims: (1) Dr. Metzger would “actively coordinate” Plaintiffs care; .(2) MDVIP’s selection criteria for doctors was based on expertise and patient relationships; (3) MDVIP participated with the Cleveland Clinic and Miller School of Medicine; and (4) data showed a sixty-five percent lower hospitalization rate for MDVIP patients. Our continued analysis focuses only on these statements.

In a fraud claim, there must be evidence of “the [speaker’s] knowledge that the representation is false.” Wadlington v. Cont'l Med. Servs., Inc., 907 So.2d 631, 632 (Fla. 4th DCA 2005) (quoting Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 991 (Fla. 4th DCA 2003)). Here, the evidence did not show MDVIP’s knowledge of falsehood concerning any of the four possible grounds for the fraud claims.

Although Plaintiff did present evidence that Dr. Metzger did not personally actively coordinate Plaintiffs care during portions of the pertinent timeframe, Plaintiff failed to present evidence that MDVIP knew that Dr. Metzger would not do so. Similarly, Plaintiff failed to present evidence that MDVIP knew that Dr. Metzger did not have a relationship with the Cleveland Clinic and Miller School of Medicine. In fact, MDVIP’s participation agreement with Dr. Metzger stated, in relevant part, that “Physician shall promptly coordinate necessary referrals with specialty physician practices,” and required Dr. Metzger to “be accessible to Members by cellular phone or personal pager 24 hours per day, 7 days per week.” These provisions indicate a desire on MDVIP’s part both for Dr. Metzger himself to do the coordination and for coordination to be available with specialty practices such as those available at the Cleveland Clinic and Miller School of Medicine.

Even assuming that MDVIP did know of Dr. Metzger’s lack of admitting privileges at those hospitals—an assumption for which no supporting evidence was admitted—that would not necessarily show that MDVIP knew its more general statement of its partnerships—perhaps through doctors other than Dr. Metzger—was false. Accordingly, Plaintiff failed to introduce any evidence supporting the conclusion that MDVIP knew the above-noted statements (1) and (3) were false at the time it made the representations.

Next, Plaintiff did not introduce evidence showing that MDVIP knew its statements regarding its physician-selection criteria were false or that Plaintiff relied on these representations. See Wad-lington, 907 So.2d at 632 (stating that reliance on a false statement is required for a claim of fraud). In fact, testimony established that the selection criteria was based on “whether or not the patients have a strong relationship with their physician,” which is exactly what MDVIP stated was part of its evaluation. The testimony did not establish that a physician’s expertise was not a part of this evaluation, but rather that the “primary” metric used was patient relationships. The evidence did not show that MDVIP knew its statement regarding selection criteria was false, and in fact showed that the selection criteria represented was in fact the selection criteria used. Furthermore, Plaintiff testified in a deposition that her three reasons for joining MDVIP were the accessibility of other doctors, a continued relationship with Dr. Metzger, and quick services, and the husband added that he joined MDVIP based on the promise of “the finest doctors, exceptional doctors.” Clearly, the principal lure for Plaintiff and her husband was continued accessibility to Dr. Metzger, as well as the availability of a network of experienced specialists, consistent with MDVIP’s marketing. Thus, the statement regarding MDVIP’s selection criteria was not shown to have been known to be false or to have been relied upon to Plaintiffs detriment.

Finally, Plaintiff did not introduce any evidence that showed that MDVIP knew its sixty-five percent statistic was false. There was evidence introduced that called the statistic’s validity into question, but the issue of the statistic being misleading based on methodology is different from the issue of MDVIP’s knowledge of its falsehood. No evidence was introduced that MDVIP believed or should have known that its statistic was a mischarac-terization of the truth.

Although Plaintiff did allege some non-puffery statements which could have grounded the fraud claims, Plaintiff failed to introduce any evidence which would support the necessary conclusion that MDVIP knew its statements were untrue at the time they were made. Because no proper view of the evidence could sustain the verdicts in light of this failure, we reverse the trial court’s denial of MDVIP’s motions for directed verdict on the fraud claims and remand for the trial court to grant MDVIP’s motions.

B. Plaintiff’s motions for directed verdict on apparent agency and joint venture grounds.

This Court reviews motions for directed verdict de novo. Henry, 82 So.3d at 965. “A motion for directed verdict should be granted only when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to judgment as a matter of law. If there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper.” Brown v. Kaufman, 792 So.2d 502, 503 (Fla. 4th DCA 2001) (citation omitted).

Plaintiff moved for, and was granted, directed verdicts on claims of apparent agency and joint venture establishing MDVIP’s vicarious liability for damages directly attributable to Dr. Metzger’s negligence. Under the standard just described, the granting of those motions was only proper if there was no evidence that could have allowed a reasonable jury to conclude that any element of those claims was not met. We hold that, for both issues, such evidence was admitted and therefore that the directed verdicts were improper.

First, we consider the issue of apparent agency. Apparent agency has three elements: “(a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.” Stone v. Palms W. Hosp., 941 So.2d 514, 519 (Fla. 4th DCA 2006) (quoting Roessler v. Novak, 858 So.2d 1158, 1161 (Fla. 2d DCA 2003)). Reliance on apparent authority “must be reasonable and rest in the actions of or appearances created by the principal.” Id. at 520 (quoting Lensa Corp. v. Poinciana Gardens Ass’n, 765 So.2d 296, 298 (Fla. 4th DCA 2000)).

Here, evidence was introduced that MDVIP mailed a Frequently Asked Questions document to Plaintiff which expressly disclaimed Dr, Metzger being MDVIP’s agent. The document stated, in part, “Your doctor owns the practice, and MDVIP has absolutely no involvement whatsoever in any medical decisions. Our job is simply to remove all obstacles that exist to the delivery of the highest level of care,” On its face, this evidence appears to both invalidate any representation by MDVIP under the first element of apparent agency, and call into question the reasonableness of any reliance on any other representation made.

Plaintiffs attempts to brush aside this disclaimer are unpersuasive. First, although there was no direct evidence that Plaintiff read the document, there was evidence that it was mailed to Plaintiff. Viewing the evidence in the light most favorable to MDVIP, as we must, we hold that the evidence of mailing , was sufficient to create ah inference that the document was read. Second, Plaintiff relies on the “remove all obstacles” sentence from the document, arguing that this case is about the obstacles that’ arose which prevented Plaintiff from receiving adequate care. But MDVIP’s statement in that sentence has nothing to do with its relationship with Dr. Metzger; instead, it is a statement about MDVIP’s responsibilities to Plaintiff; Whether MDVIP lived up to this statement or not is irrelevant to the question of whether MDVIP held out Dr. Metzger as its agent.

We therefore hold that a reasonable jury could have found that at least the first two elements of apparent agency were not met. The document quoted above delineates two separate but related endeavors: Dr. Metz-ger would provide medical care, and MDVIP would .provide support services. The document may have been evidence of a collaboration between Dr. Metzger and MDVIP, but it also disclaims any hierarchical relationship between the two. Because a jury could have found that MDVIP did' not represent itself as Dr. Metzger’s principal or that Plaintiffs reliance on MDVIP’s representations was unreasonable based on this document, we hold that the trial court’s grant of Plaintiffs motion for directed verdict on the issue of apparent agency was error.

The next issue’presented is whether the trial court erred in directing a verdict on the issue of joint venture. Joint venture has five elements, each of which must be established: “1) a community of interest in performance of a common purpose; 2) joint control or right of control; 3) a joint proprietary interest; 4) a right to share in profits; 5) a duty to share in losses.” Arango v. Reyka, 507 So.2d 1211, 1212 (Fla. 4th DCA 1987). Our analysis below focuses solely on the second of these elements.

The “joint control” contemplated by the second element exists when a contract specifically allows both parties to control the operations of the venture. For example, in Chase Manhattan Mortgage Corp. v. Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., 694 So.2d 827 (Fla. 4th DCA 1997), this Court held that a party that was “free to make mortgage loans to anyone on any terms of its choosing” was’ not in a joint venture with a separate corporation. Id. at 831. This was true’ despite the fact the other éntity had established “lending standards” which the first party was required to meet if it desired to engage in continued business with the second'party. Id.

Here, Plaintiff argues that MDVIP maintained control over its business with Dr. Metzger because MDVIP had the power to revoke the contract if Dr. Metzger failed to comply with certain • standards. But just as in Chase, conditions for a continued relationship “d[o] not constitute control by [MDVIP] over [Dr. Metzger] for purposes of joint venture law.” Id. The evidence presented regarding Dr. Metz-ger’s control over medical decisions and the day-to-day operations of his practice was therefore sufficient to allow a reasonable jury to conclude that there was no joint control. Id.; see also E & H Cruises, Ltd. v. Baker, 88 So.3d 291, 295 (Fla. 3d DCA 2012) (finding no joint venture when one party “ha[d] no control over, nor say in, how the [business’s services] [were] operated”); A & A Elec. Servs., Inc. v. Jurado, 198 So.3d 37, 42-43 (Fla. 2d DCA 2015) (similar); cf. Arango, 507 So.2d at 1213-14 (holding that evidence of joint control existed sufficient to send the issue to the jury where a hospital maintained control over day-to-day’ operations such as patient scheduling and group assignments).

Because a reasonable jury viewing the evidence in the light most favorable to MDVIP could have concluded that MDVIP did not have joint control or right of control over Dr. Metzger’s practice, we hold that the trial court erred in granting a directed verdict in favor of Plaintiff on the issue of joint venture.

The final question we are faced with is whether these errors require reversal under the specific facts of this case; Although the jury never considered apparent agency or joint venture (due to the directed verdict on these issues), its verdict did find that Dr. Metzger was MDVIP’s actual agent. Plaintiff urges us to hold that this finding by the jury renders any error in the directed verdicts harmless because MDVIP would be vicariously liable for Dr. Metzger’s malpractice under any of the three theories. Although we find Plaintiffs argument persuasive, it is not compelling enough to meet the heightened standard of Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014).

“To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Id. at 1256. Plaintiff attempts to meet this burden primarily by relying on the trial court’s instruction to the jury that it “should consider the evidence as it relates to each claim separately.” However, we find this instruction to be insufficient in this case for two reasons.

First, 4he trial court’s instruction only told the jury that it was to consider the evidence for each claim it was considering separately. The issues of apparent agency and joint venture, however, were not being considered by the jury. It is possible that, even presuming the jury followed the court’s instruction, see Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 942 (Fla. 2000), the jury was unaware that it should not have allowed the directed verdicts to play a role in their consideration of the issues left before them. Second and relatedly, Plaintiffs counsel’s statement to the jury regarding the directed verdicts may have misled them, especially in light of the ambiguity in the court’s instruction. The counsel’s statement was, in full:

Okay. So the defense has alleged that Dr. Lowen—well, actually, before I get there, believe it or not, the agency question is.just one question. It’s already been determined as a matter of law that—by the Court that Dr. Metzger was an apparent agent and was engaged in a joint venture business enterprise; MDVIP and Dr. Metzger together. So that’s not an issue for you to determine, it’s already been determined by the Court.

It is possible that a lay jury, having been told that the judge has determined that Dr. Metzger was apparently MDVIP’s agent and that the two were engaged in a joint venture, would have believed that the only rational conclusion to reach on the issue of actual agency was in Plaintiffs favor. When this suggestion is combined with the possible interpretation of the court’s instructions that would allow the jury to consider these directed verdicts, we cannot say that there was no reasonable possibility the erroneously granted directed verdicts affected the outcome of this case.

We also find the case law cited by Plaintiff to be distinguishable on this issue. To start, both cases—Conklin Shows, Inc. v. Clementi, 448 So.2d 588 (Fla. 5th DCA 1984), and Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996)—were decided before the Special standard was in place. Furthermore, the directed verdict that counsel mentioned to the jury in Conklin Shows was both on a sufficiently unrelated issue (the negligence of a separate individual) and was not erroneous. Conklin Shows, 448 So.2d at 589. Here, in contrast, the directed verdict and eventual jury verdict were on closely related issues and the directed verdict was improper. Slawson is even more inapplicable, in that it dealt with whether the jury was properly instructed on the law and did not involve a directed verdict. Slawson, 671 So.2d at 260. We therefore distinguish both cases from the present one, where the jury was informed of directed verdicts on closely related issues which should not have been granted, and where we must analyze the harmfulness of the directed verdicts under the standard of Special.

Because there is a reasonable possibility that the directed verdicts had a spillover effect on the verdict reached by the jury, we cannot say that the error in granting the directed verdicts was harmless. We therefore reverse the final judgment on the issue of MDVIP’s vicarious liability.

Conclusion

Plaintiff entered into a “Membership Agreement” with MDVIP primarily based on this being her only opportunity to continue having Dr. Metzger as her primary care physician. Dr. Metzger had been Plaintiffs primary care physician for five years before affiliating with MDVIP. It was Plaintiffs experience with Dr, Metz-ger, consistent with MDVIP’s motto of “exceptional doctors, exceptional care, and exceptional results,” that led Plaintiff to join MDVIP, and there is no evidence of MDVIP overlooking any “red flags” with respect to Dr. Metzger. As discussed above, the trial court erred in denying MDVIP’s motions for directed verdict on the two counts of fraud. We reverse this denial and remand for entry of directed verdicts in MDVIP’s favor on those counts.

To the extent that MDVIP has challenged the size of the negligence damages award or the jury’s verdict finding that Dr. Metzger himself was negligent, we affirm. We hold that these issues were sufficiently separated from the erroneous holdings described herein and that the trial was not “contaminated” by the joint consideration of the fraud and negligence claims.

On the other hand, the trial court erred in granting Plaintiffs motions for directed verdict on the issues of apparent agency and joint venture. These errors were not harmless. We thus reverse the grants of these motions and remand for a new trial on all three claims of vicarious liability.

Reversed and remanded for further proceedings consistent with this opinion.

Taylor and Conner, JJ., concur.

      . We affirm, without discussion, the trial court’s denial of Appellant MDVIP’s motion for new trial based on allegedly improper closing arguments. Similarly, we find no merit in MDVIP’s argument that the jury was confused by, or the trial contaminated by, the separate issues of the reasonable care owed for the negligence claims and the exceptional care promised for the fraud claims. Moreover, our reversal on the directed verdict issues renders the cross-appeal moot.

      . Throughout this opinion, "Plaintiff” may refer both to Joan Beber, the patient, and to Robert Beber, her husband and the personal representative of her estate.

      . Because we find each of these statements present in the complaint, we need not address the parties’ arguments related to whether these issues were tried by consent.

      . We have considered Plaintiff’s argument that some of the statements of opinion were actually statements of fact based on MDVIP’s superior knowledge. See Thor Bear, 648 So.2d at 172, We reject this argument based on Plaintiff's failure to allege that she relied upon MDVIP's representations because of its superior position, see Mejia v. Jurich, 781 So.2d 1175, 1178 (Fla. 3d DCA 2001), and on the failure to allege that MDVIP itself purported to have superior knowledge, see A.S.J. Drugs, Inc. v. Berkowitz, 459 So.2d 348, 350 (Fla. 4th DCA 1984).

      . Representing that a medical concierge program values physician competence/“excellence” is not necessarily a misrepresentation even though the principle criteria for the program’s physician selection is a "book” of patients and patient attachment to the physician. McDonald’s and Subway are among the U.S. restaurants with the most customers and sales, which indicates customer attachment and, at least arguably, that aspects of the dining experience are “excellent,” notwithstanding a dearth of Michelin stars.

      . This holding negates any need for us to examine the effects of the integration clause in the agreement' between Plaintiff and MDVIP.


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    Barrington PARAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2402
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2017]

      David L. Luck, Marissel Descalzo and Mariko Shitama Outman of Carlton Fields Jorden Burt, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Barrington Parague appeals his convictions of aggravated assault with a deadly weapon and felony battery, as well as his sentence and the accompanying order to pay $30,000 to the victim in restitution. Although we affirm his conviction without further comment, we find the restitution order was the product of improper coercion by the trial court and reverse that portion of the sentence.

Appellant’s charges stemmed from an incident that began with a verbal altercation between appellant and victim at appellant’s place of work. What led to the altercation was a matter of dispute. What was undisputed is that during the episode appellant swung a machete toward the victim, slapping him across the chest with the flat side of the blade. The. victim testified that this strike caused a bruise on his chest. Then, at some point during the altercation, a third party (appellant’s employee) grabbed the victim from behind and slammed him to the ground, causing a dislocation of the victim’s shoulder.

After appellant was convicted of the charges, the court conducted a sentencing hearing where restitution was discussed. The victim agreed that his shoulder was dislocated when the third party threw him to the ground. Consequently, he lost his labor-intensive job and had not been able to work there since. He received four months of physical therapy that totaled $5,000 to $6,000, and although he never found out how much shoulder surgery would cost, he could not afford it regardless.

At this point, the State interjected and explained that restitution relating to the shoulder injury was unavailable because it was not caused by appellant:

[THE STATE]: There’s a little bit of a restitution issue in this case, I guess. Unfortunately, for the victim the injuries really were caused by him being thrown to the ground.
[DEFENSE COUNSEL]: Not by [appellant].
THE COURT: I understand.
[THE STATE]: So, that’s an additional cost that typically a victim would have—at least they could get monetary compensation and be made whole, and that is not available to the victim in this case and that is causing him to have stronger feelings perhaps about the potential punishment in the case.

After several witnesses spoke on behalf of appellant to attest to his character and family obligations, and before appellant spoke on his own behalf, the court issued the following warning that was clearly intended to convey the message that anything less than a full acceptance of responsibility could increase the likelihood that appellant would be imprisoned:

But I don’t want to hear anything remotely—and I’m giving you a warning. I could have been the kind of guy to sit here and lying in wait, wait to make a huge mistake, and run his mouth like some of these authors of these letters about how “I was defending myself.”
If he did that, I’m telling you straight up, he is gone, off to see the wizard.
What I’d like to hear—I don’t know that. I would like to hear someone with a happy, happy, spirit, urge the Court to, please, let him remain free so he can pay $30,000 over time to this victim for losing his job, for the surgery that he is going to need, for the $6,000 he is out already.
The surgery is going to be at least another $10,000, and instead of staying free so he can pay financial bills for a daughter—no, if he ever stays free, it is not to pay her bills. It’s to show remorse and to show contrition and to show extraordinary responsibility. If I heard things like that, I might be moved to believe a lot more of what I read in here.
If I don’t hear anything like that, if I hear about what a generous man. I hear about a generous man who does for so many people, helps employees that otherwise would not be able to feed his families, I’m moved by that, if that’s really who he is, but not for him to stay free to keep paying a meal ticket to pay for his daughter.

(Emphases added). The court continued with appellant as follows:

THE COURT: I’m not telling you what to testify to. I want to know where his heart is at, and I want to know if this is all true, if it really is.
And if he really does have that generous heart and I don’t want to hear any excuses and extraordinary responsibility of acceptance of responsibility [sic]. I’m not saying what I’m going to do,
[DEFENSE COUNSEL]: I understand.
THE COURT: Nobody knows what I’m going to do.
What would you like to do about it, sir?
[APPELLANT]: I’m very sorry that this occurred. It bothers me a lot. What if this guy had gotten cut? He didn’t get cut. I’m happy for that, too. I help him .to pay the bills. If he, I don’t know what the procedure is. .
THE COURT: The procedure is you look a man in the eye and don’t call him “this guy” while you are looking at me. Look him in the eye and tell him “I’m sorry.”
[APPELLANT]: I’m sorry.
THE COURT: What are you sorry ■ for?
[APPELLANT]: That the machete touch you.
THE COURT: What are you going to do about it?
[APPELLANT]: I’m not sure' what the procedure would be if he has to give me the bill.
[DEFENSE COUNSEL]: The procedure he is willing—
[APPELLANT]: I will try to do the best I can.
[DEFENSE COUNSEL]: He is agreeing to pay.
THE COURT: Sir, regardless, you are adjudicated. Your sentence is you are adjudicated. You are convicted.
Whether I sentence you to prison— I’m going to listen to the state—listen to what the state wants, and I’m going to listen to your lawyer.

(Emphases added). The State advised the court on the maximum penalty, and explained that the court had discretion not to impose any prison sentence. However, the State also urged the court to weigh “very heavily” the fact that appellant had shown “no remorse.” Apparently sensing how the hearing would progress based on the trial judge’s statements, the State did a complete about-face on the issue of restitution, asking the court to order it in the event no prison sentence was imposed:

[THE STATE]: I would certainly ask that we agree to some amount of restitution which [the victim’s fiancé] does have the bills but they are just not on her, as well as what they have paid. I’m sure they could [g]et an estimate what that surgery would cost.
I ask that we do an extended term of probation even to auto term if the extensive restitution is paid. I am guessing it is in the $30,000. I would definitely ask that that be something that the parties agree to in exchange for him receiving leniency.

As defense counsel advised that he had a few things to say to the court, the judge remarked that while he was not inclined to impose a prison sentence, it was still a possibility:

I’m trying to stop you from making your pitch for “please don’t send him to prison,” because I’m already telling you upfront, I’m not going to send him to prison, but that would be very presumptuous of him for you to think that that wasn’t' one of the things in the equation, because the state made it very clear they were seeking prison and they offered 36 months in prison beforehand, so it’s as very much on the table.

(Emphasis added). The State suggested that the parties “agree” on what victim’s bills were to set the amount of restitution. Addressing that issue, the court stated:

THE COURT: There is a chance, [appellant], that the medical bills would end up being $27,000, $26,000 or a chance of $46,000 or over $46,000. You both take a chance. Fix a number like 30. Probably with after-care over time it could be more, but he is willing to live with that if you are willing to live with that.
[DEFENSE COUNSEL]: Yes.

Although appellant ultimately agreed to the $30,000 restitution figure included in the court’s sentencing order, there were no medical records or other related documents pertaining to victim’s injury that were ever submitted into evidence. The final order stipulated that appellant’s failure to pay the full restitution amount in a year’s time would result in 364 days of incarceration. This appeal followed.

Normally, “[a] trial court’s restitution order is reviewed under an abuse of discretion standard.” Hunter v. State, 48 So.3d 174, 175 (Fla. 4th DCA 2010). However, where an appellant is alleged to have been improperly coerced into agreeing to the restitution amount ordered, “[t]he legality of a sentence is a question of law and is subject to de novo review.” Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

There are two issues relating to the restitution order on appeal: the first is whether the trial court erred in entering the special restitution order because there was no evidentiary finding that appellant caused the injury on which it was based, and the second is whether the trial court improperly coerced appellant to agree to the restitution as a way of showing remorse. We find that the court erred in both respects.

With regard to the trial court’s imposition of restitution, section 775.089, Florida Statutes (2015), provides, in relevant part:

(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode,
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.

§ 775.089, Fla. Stat. (2015) (emphasis added). “[T]o order restitution under the statute, the court must find that the loss or damage is causally connected to the offense and bears a significant relationship to the offense. Further, under the statute, the State must establish these factors by a preponderance of the evidence.” Dagerath v. State, 100 So.3d 1260, 1263 (Fla. 4th DCA 2012) (quoting Glaubius v. State, 688 So.2d 913, 915 (Fla. 1997)). While “the trial court has discretion to take into account any appropriate factor in arriving at a fair amount which will adequately compensate a victim for his or her loss and further the purposes of restitution,” the trial court cannot “arbitrarily award any amount of restitution it deems adequate.” Glaubius, 688 So.2d at 915.

Here, the court made no finding on whether the restitution claimed was either a direct or indirect result of appellant’s actions. Moreover, the State initially conceded there was no causal connection and that restitution was unavailable from appellant for the victim’s shoulder injury, before later adjusting its position after the court remarked sua sponte that it was inclined to order restitution in lieu of jail time. Because there was no competent substantial evidence presented by the State at the hearing to support the award of $30,000 in restitution, we reverse that portion of the sentencing order.

Additionally, reversal is necessary because the trial court violated appellant’s due process rights by explicitly extracting a coerced agreement to pay restitution as an expression of remorse when it factored appellant’s willingness to do so in crafting the sentence. Davis v. State, 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) (“A trial court’s consideration of a defendant’s lack of remorse in imposing its sentence is fundamental error.”). Rather than being initiated by the appellant, it was the trial judge that first broached the prospect of appellant’s willingness to agree to pay restitution as a way of showing contrition for the injuries suffered by the victim. See Lawton v. State, 207 So.3d 359, 361 (Fla. 3d DCA 2016). The court’s statements during sentencing were clearly imbued with a threat of jail time if appellant refused to “agree” to the restitution.

Recently in Allen v. State, 211 So.3d 48, 50 (Fla. 4th DCA 2017), this court reversed a sentence that was imposed based on improper consideration of a defendant’s willingness to admit guilt. In so doing, we held:

A defendant’s rights are infringed when he or she is forced to make a choice to either remain silent at a sentencing hearing and risk that the court regard this silence as a failure to accept responsibility, or to make an incriminating statement upon the trial court’s prodding, or to falsely admit wrongdoing and risk a perjury conviction in hopes of securing a measure of leniency. Any defendant in such a situation is in a vulnerable position and faced with a Hobson’s choice. Even though a defendant has the option, and indeed the-right to remain silent or maintain innocence, he or she may feel coerced under such circumstances to admit guilt, if for no other reason than to prevent receiving a harsher sentence.
While the evidence at the revocation hearing supported the allegation that appellant violated his probation, we must err on the side of protecting appellant’s constitutional rights with regard to the trial court fashioning an appropriate sentence. Here, the trial court repeatedly- threatened appellant with the maximum sentence unless he admitted guilt, while at the same time dangling the prospect of a reduced sentence if he “came clean.” Because the sentencing judge’s comments suggest that the sentence imposed was based on improper considerations, that sentence must be reversed even if it was not the maximum possible sentence that could have been given.

Id at 54-55 (footnote omitted).

Therefore, although we affirm appellant’s convictions for aggravated assault with a deadly weapon and felony battery, we vacate that portion of the disposition that ordered appellant to pay $30,000 in restitution to the victim as a condition of his probation, ■

Affirmed in part, Reversed in part.

Damoorgian and Gerber, JJ., concur.


author: Per Curiam.

text:
    Tamarick CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-423
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras and Matthew Steven Ocksrider, Assistant Attorney Generals, West Palm Beach, for appellee.
   Per Curiam.

Tamarick Cruz appeals a trial court order that denied all eleven grounds of his motion for post-conviction relief, ten summarily and one after evidentiary hearing. In his initial brief, he limits his challenges to the denial of four grounds. We affirm in part and reverse and remand in part -for an evidentiary hearing on two grounds.

Appellant was tried, along with a co-defendant,'and convicted of two counts of armed robbery with a firearm. He was sentenced to life in prison as a prison releasee reoffender on each count, to run concurrently.

At trial, the prosecution presented evidence that appellant and his co-defendant robbed a cell phone store, armed with a firearm. They removed cash from the register and took property from employees. Police found cash on appellant and his cell phone in the getaway car. Appellant’s defense was misidentification.

Appellant testified at trial that the currency found on him after his arrest was tip money earned at a car wash. He also testified that he had detailed the car in which his cell phone was found and had placed his cell phone in it to charge. On direct appeal, he argued trial court error in failing to conduct a Richardson hearing after the prosecution presented at trial a non-disclosed witness who undermined his defense. The witness was Kendall Murray, owner and/or bookkeeper at the car wash. She testified she had never met appellant and that he did not work there.

This Court affirmed in Cruz v. State, 90 So.3d 893 (Fla. 4th DCA 2012), with a citation to Guzman v. State, 42 So.3d 941 (Fla. 4th DCA 2010). In Guzman, this Court held that a discovery violation had not been preserved for review when it occurred during the State’s direct examination of a witness and the defendant completed cross-examination before objecting.

In ground seven of his motion for post-conviction relief, appellant claims ineffective assistance of trial counsel for failure to timely make the Richardson objection. The record demonstrates that defense counsel did not object to the Richardson violation until after completing cross-examination of Murray. The trial court did not conduct a proper Richardson hearing and did not make findings on the three prongs of Richardson requiring determination of: (1) whether the discovery violation was inadvertent or willful; (2) whether it was trivial or substantial; and (3) whether noncompliance with the discovery requirements prejudiced the defense’s ability to prepare for trial. Thomas v. State, 63 So.3d 55, 59 (Fla. 4th DCA 2011) (citing State v. Evans, 770 So.2d 1174, 1182 (Fla. 2000)).

Consequently, Murray’s testimony, left unchallenged due to the discovery violation, contradicted defense counsel’s opening statement and appellant’s own testimony about the money found on him. The discovery violation also hampered defense counsel’s ability to investigate and test Murray’s memory of employees and the accuracy of her trial testimony. Appellant alleged a deficiency of defense counsel which prejudiced his defense, such that the claim was legally sufficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court erred in summarily denying ground seven.

In ground five, appellant claims counsel rendered ineffective assistance for failing to file a notice of alibi defense and call alibi witness Chauncy Green. Cruz alleged he was with Green at the time of the robberies and nowhere near the scene where they occurred. He said he gave defense counsel Green’s name and address and told him about the alibi the first time counsel visited him in jail. He alleged Green was available and willing to testify. This claim was legally sufficient. Nelson v. State, 875 So.2d 579 (Fla. 2004).

The State- argued in its response filed below that this claim was refuted by defense counsel’s statement in trial that he did not intend to present an alibi defense or witness. However, defense counsel did not give sworn testimony at trial that could have been considered. To the extent his statement suggested that counsel made a strategic or tactical decision not to present this defense, or that he was never informed of an alibi witness, the trial court should have conducted an evidentiary hearing rather than summarily denying relief. Gordon v. State, 181 So.3d 1193, 1194 (Fla. 4th DCA 2015) (citing Rector v. State, 668 So.2d 1104, 1105 (Fla. 4th DCA 1996)).

We affirm without discussion the summary denial of ground two and the denial of ground ten after an evidentiary hearing. For the reasons above, we reverse the trial court’s summary denial of grounds five and seven and remand for an evidentiary hearing.

Affirmed in part, reversed and remanded in part.

Warner, Damoorgian and Levine, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . Appellant also claimed counsel failed to call alibi witness Cory, a/lt/a “Gut," but he never explained who that witness was or what he would have said if called to testify. That portion of the claim, therefore, was a mere shell claim and legally insufficient.


author: Damoorgian, J.

text:
    Leon REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2303
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2017]

      Dan Hallenberg, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.’
   Damoorgian, J.

Leon Reid (“Defendant”)' appeals his convictions for first degree murder and attempted first degree murder. The Defendant and his co-defendant, Phillips Pierre, were jointly tried on a two" count indictment on the same charges. In this appeal, the Defendant argues that his convictions should be reversed because: (1) the trial court excluded the proffered testimony of two defense witnesses regarding an unrelated theft; (2) the prosecutor shifted the burden of proof to the Defendant during closing argument; (3) the trial court improperly denied the Defendant’s motion to suppress the surviving victim’s in-court and out-of-court identification of the Defendant; and (4) the trial court improperly allowed the surviving victim to testify that he identified the Defendant as one of the perpetrators in open court on four previous occasions. We reject arguments (1) and (3) without further comment. As to the remaining points on appeal, we agree with the Defendant that the prosecutor improperly shifted the burden of proof to the Deféndant during closing and also hold that it was error to allow the surviving victim to testify that he identified the Defendant as the shooter in open court on four previous occasions. Furthermore, we conclude that these, errors were harmful. Accordingly, we reverse the Defendant’s convictions and sentence and remand for a new trial.

The State’s theory of the case was that the victims were in possession of a stolen car. The car’s owner along with several other individuals, including the Defendant and co-defendant, drove to the victims’ location to retrieve the vehicle. There, while brandishing firearms, the Defendant and the .co-defendant confronted both victims. A physical struggle ensued between all four individuals. During the struggle, the Defendant shot and killed one victim, and shot and severely injured the other •victim.

The defense’s theory of the case was that the stolen car’s owner, William Tibe, and another individual, committed the charged crimes during an attempt to retrieve the stolen car. To advance this theory, the defense sought to discredit the State’s eyewitnesses by suggesting that law énforcement improperly influenced or encouraged the witnesses to offer evidence implicating the Defendant and co-defendant.

The State’s Closing Argument

The Defendant argues that the prosecutor’s closing argument improperly shifted the State’s burden of proof by inviting the jury to return a guilty verdict based upon the Defendant’s failure to call William Tibe as a witness. To support his argument, the Defendant identified the following statements made by the prosecutor during his rebuttal argument:

[Defendant’s counsel] actually said it’s William Tibe. He. said William Tibe could have been the person. You’ve heard a whole lot about William Tibe. You heard from [co-defendant’s counsel] in opening statement about William Tibe—Mr. Tibe is going to tell you all about this and Mr. Tibe is going to tell you all about that.
Now, the burden of proof is on the State, I have to prove my case, Leon Reid, Phillips Pierre. But the Defense, though they have no burden, as you have seen in this case can call witnesses, and they did .... They could have called William Tibe.... They absolutely could have called William Tibe. They have the same availability to him as I do
They could have called him, but they didn’t. And yet, they tell you, [Defendant’s counsel] tells you, he could have been the one. Really? If he’s so important, [co-defendant’s counsel] said that Detective Toyota kept going back to him, he’s square one, he went back to Mr. Tibe, he went back to Mr. Tibe, [co-defendant’s counsel] went on and on about Mr. Tibe, and said you’re going to hear from Mr. Tibe. [Co-defendant’s counsel] told you all these things Mr. Tibe was going to tell you; and yet, you’ve heard none of them....
That’s his promise, he said you’re going to hear from him. And then in closing, to get up again and say this is William Tibe’s involvement, and William Tibe was wearing a burgundy skully? Follow the burgundy skully, [Defendant’s counsel] said it, Ms. Rhodus said it, follow the burgundy skully. Where the heck is it? Who wore it? Is it the only burgundy skully? Is that it? Is there only one white t-shirt in the world? There [were] seven people in the car, maybe seven of them are wearing burgundy skullies
What did Mr. Michael Gutierrez tell you about his trip? Phillips told him everywhere to go, all the commands came from Phillips, ‘cause Phillips is the one he knew, Phillips is in the front passenger seat. So, who is he speaking to between the homicide and the detectives? He’s talking to Phillips Pierre. But yet, [Defendant’s counsel] gets up and says obviously he talked to William Tibe. Really? Really? Could have called Tibe to say that, yeah, I spoke to him, I told him to leave me out of it....
So, they [the detectives] get information. Do they trust any information from William Tibe? Maybe they shouldn’t. Maybe that’s why he wasn’t called by either side.

“The courts of this state allow attorneys wide latitude to argue to the jury during closing argument.” Thomas v. State, 748 So.2d 970, 984 (Fla. 1999). Closing argument is an opportunity for the parties to summarize the evidence and advance all legitimate legal arguments, legal theories and logical inferences that can be derived from the evidence. Id. When reviewing a purported objectionable comment made during closing argument in a criminal trial, “[a] prosecutor’s argument should be examined in the context in which it is made. This is particularly so where invited by the nature of the defense.” Stancle v. State, 854 So.2d 228, 229 (Fla. 4th DCA 2003) (internal citations omitted); see also Austin v. State, 700 So.2d 1233, 1235 (Fla. 4th DCA 1997) (“The state has a right, and even a duty, to respond to the defense’s suggestion. To ignore it gives it credence.”).

However, the wide latitude afforded to a prosecutor during closing argument has its limits. A basic tenet of American criminal jurisprudence is that the state has the sole burden of proving a criminal defendant’s guilt. Jackson v. State, 575 So.2d 181, 188 (Fla. 1991). “To protect this tenet of due process, the general rule is that ‘the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.’ ” Love v. State, 971 So.2d 280, 284 (Fla. 4th DCA 2008) (quoting Jackson, 575 So.2d at 188). Nevertheless, a prosecutor is allowed to comment on the defendant’s failure to produce evidence “when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, self-defense, and defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state.” Jackson, 575 So.2d at 188. “A witness is not equally available when there is a special relationship between the defendant and the witness.” Id.

The excerpts from the prosecutor’s closing argument are specifically directed at the Defendant’s failure to call William Tibe as a witness. By the prosecutor’s own admission, Tibe was equally available to the State and apparently had no special relationship to the Defendant. By suggesting to the jury that the Defendant should have called Tibe to the witness stand to support the theory that Tibe and not the Defendant committed the crimes, the State improperly shifted the burden to the Defendant to prove that the identity of the shooter was someone other than himself. Accordingly, the trial court erred in failing to sustain the Defendant’s objections on the ground of improper burden shifting.

We reject the State’s argument that the error in permitting the prosecutor’s argument was harmless. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). The prosecutor’s multiple comments on the Defendant’s failure to call Tibe as a witness invited the jury to convict the Defendant for failing to present a case. Raupp v. State, 678 So.2d 1358, 1361 (Fla. 5th DCA 1996) (comments on defendant’s failure to call certain witnesses, impermis-sibly shifted the burden of proof and constituted harmful error).

Admission of Victim’s Prior In-Court Identifications of the Defendant

The Defendant argues that the trial court improperly permitted the State to question the surviving victim regarding four earlier instances in which he identified the defendant in court as a shooter. The State responds that this evidence was admissible as a statement of identification under Section 90.801(2)(c), Florida Statutes (2012).

Section 90.801(2)(c), Florida Statutes (2012), states in pertinent part:

A statement is not hearsay if the declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person.

This Court has interpreted this statute as follows:

We believe that the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, “that’s the man.” Hence, the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender.

Stanford v. State, 576 So.2d 737, 739-40 (Fla. 4th DCA 1991) (footnote omitted).

Based on the foregoing, we hold that Section 90.801(2)(c), Florida Statutes (2012), applies to out-of-court identifications made close to the time the declarant perceived the identified person and not to prior in-court identifications. See id. The parties do not cite to any judicial decision and we are unaware of any case law where this hearsay exception has been applied to an earlier in-court identification. Accord-* ingly, the trial court should have excluded the testimony regarding the four prior in-court identifications.

The State argues that even if the prior in-court identifications were inadmissible, , .the error was .harmless. The main issue at trial was the shooters’, identities, Given the issues surrounding the surviving victim’s inability to identify the Defendant pre-trial as well as the issues concerning the victim’s seemingly inaccurate physical description of the Defendant, the improperly admitted earlier in-court identifications likely bolstered the credibility of the surviving victim’s in-court identification in this trial. Thus, the State has failed to prove beyond a reasonable doubt that the error did not contribute to the verdict. See DiGuilio, 491 So.2d at 1135.

Reversed and remanded.

Warner and Porst, JJ,, concur.

      . See Pierre v. State, 156 So.3d 1101 (Fla. 4th DCA 2015) (unpublished table decisión).

      . The Defendant and co-defendant were previously tried on these charges four times. A mistrial was declared in each of the previous trials.

      .Defendant's counsel preserved this issue on appeal by properly objecting to all. of the prosecutor's comments.


text:
    Javier GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-913
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    Javier Gonzalez, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the summary denial of appellant’s motion for postconviction relief, concluding that each claim is legally insufficient. As to his claim that counsel was ineffective for failing to file a motion to suppress the search of the home, the facts show that such a motion would have been futile because, appellant did not have a reasonable expectation of privacy in the home, as counsel explained to appellant. See State v. Suco, 521 So,2d 1100, 1102 (Fla. 1988) (holding that whether a defendant has a reasonable expectation of privacy depends on the totality of the circumstances); Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011) (holding that the resident of a home lacked standing to challenge the search of the garage based on his “unequivocal statements that he knew nothing about that part of the residence and didn’t have anything to do with that part of the residence”); Burgos v. State, 939 So.2d 219, 219-20 (Fla. 1st DCA 2006) (holding that an overnight guest lacked standing to contest .the search of luggage in the. guest room where he .“affirmatively denied any knowledge or ownership of the luggage searched”); State v. Mallory, 409 So.2d 1222, 1224 (Fla. 2d DCA 1982) (explaining that standing turns on whether the defendant considers the residence in question his home, whether permanent or temporary). -

As to his claim that counsel was ineffective for failing to move for judgment of acquittal on the ground that the State failed to prove the requisite weight of the MDMA pills to support a conviction for trafficking over 400 grams, this claim is refuted by Asmer v. State, 416 So.2d 485, 487 (Fla. 4th DCA 1982) (holding that the State’s random testing of one out of 1,000 similar tablets was sufficient to admit evidence of weight, as “[t]o require the State to test each tablet of the 1,000 tablets delivered by appellant and prove that enough tablets contained enough pure Me-thaqualone to satisfy the statutory amount is patently unreasonable”).

As to his claim that counsel was ineffective for failing to object to the introduction of the chemist’s report, we conclude that it was not ineffective for counsel to stipulate to admission of the report under the circumstances of the trial.

Affirmed

Warner, Damoorgian and Levine, JJ., concur.


author: Gross, J.

text:
    Fannie COLLAR, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.
    No. 4D15-3893
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Celene H. Humphries, Maegen Peek Luka and Thomas J. Seider of Brannock & Humphries, Tampa, and Jonathan R. Gdanski, Steven Hammer and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellant.
    William P. Geraghty and Rachel A. Can-field of Shook, Hardy & Bacon, LLP, Miami, Geoffrey J. Michael, David M. Meni-chetti, and Daphne O’Connor of Arnold & Porter Kaye Scholer, LLP, Washington, D.C., David Northrip of Shook, Hardy & Bacon, LLP, Kansas City, Missouri, and Charles R.A. Morse of Jones Day, New York, New York, for appellees.
   Gross, J.

We reverse the final judgment for the defense in an Engle progeny case, where the jury answered “No” to the question “Was [Plaintiff] addicted to cigarettes containing nicotine and, if so, was her addiction a legal cause of her lung cancer and/or COPD?” The trial court made two inconsistent evidentiary rulings that favored the defense, which exploited those rulings as a theme of closing argument.

The court ruled that the plaintiffs treating pulmonologist was not qualified as an expert to testify that the plaintiff was addicted to nicotine. On cross-examination, however, over the plaintiffs objection, the court allowed the pulmonologist to testify that the plaintiff was able to quit smoking when “sufficiently motivated to do so.”

During closing argument, the defense skillfully exploited the notion that the plaintiffs own treating doctor, not some hired expert, believed she could quit any time she wanted. The defense equated the plaintiffs motivation to quit with an absence of addiction in spite of the fact that the plaintiff resumed smoking 13 years after having a cancerous lung removed.

On closing, the defense theorized that the plaintiff smoked because she wanted to and the “case was about two words: control and responsibility.” Counsel instructed the jury to ask who was in control of the plaintiffs efforts to quit smoking and who controlled her motivation to quit? “The truth [wa]s [plaintiff] could have quit smoking any time she wanted to.” The plaintiffs own pulmonologist, who treated her since 1993, testified that “[i]f a smoker is not well motivated,” it is much less likely the smoker will successfully quit smoking. Her pulmonologist agreed that the plaintiff could “quit when she was sufficiently motivated to do so.”

The defense argued that the pulmonologist “probably [knew] her better than anybody you heard from during the course of this entire trial. He has no interest in the outcome of this case. He told you [the plaintiff] quit smoking when she was motivated to do so.” “Her own doctor ... said she quit when she was motivated to do so.”

Defense counsel continued along the same theme. The “[pulmonologist] told you [the plaintiff] quit when she was sufficiently motivated to do so. Would you agree? I believe so. That’s from the doctor that knows her better than anybody, from right here in Vero Beach.” Counsel argued to the jury that if they decided the plaintiff “could have quit smoking whenever she was truly motivated to do so, then addiction [wa]s not a legal cause of her disease.” The plaintiff objected, insisting this was not the legal standard. The objection was sustained. Defense counsel maintained he was simply responding to the plaintiffs arguments and the legal cause in this case was the plaintiffs decision to continue smoking. The plaintiff objected that defense counsel was miseharacterizing her statement, which was overruled.

Defense counsel continued, urging that the legal cause was the plaintiffs decision to smoke, despite all the warnings. The legal cause was the plaintiffs “decision not to make a committed and determined and motivated effort to quit.” “Frankly, you don’t have to look any further than [the] plaintiffs own experts. ... They told you anyone can quit smoking if they are motivated to do so.”

“Does the [pulmonologist] say nicotine overpowered her? Does [the pulmonologist] say nicotine was the substantial contributing factor because it made her smoke and she couldn’t quit? He told you, she quit when she was motivated.” Defense counsel replayed the video of the pulmo-nologist’s deposition testimony that the plaintiff quit when sufficiently motivated, arguing:

That’s her doctor. That’s the only doctor that actually treated her. The only doctor that treated her for 22 years. The only doctor that saw her. She could quit when she was properly motivated. Nicotine, whether you call it an addiction or a habit, was not a substantial contributing factor in her disease. Everyone agrees that smoking was the cause of her disease. But she could quit. Nicotine didn’t make her smoke so that she got a disease.

Defense counsel likened the situation to a movie about a runaway train, where “you can’t steer, you can’t brake, that crash is inevitable.” The evidence in this case was that the plaintiff was not “strapped behind the steering wheel of a runaway train. She could control her smoking when she did. She could put the brakes on and slow her smoking down.” Defense counsel concluded that none of the plaintiffs experts told the jury “that her addiction or her habit or her behavior was such that she was prevented from quitting at any time.”

A smoker’s motivation and ability to quit smoking is deeply intertwined with the smoker’s addiction to nicotine; they are two sides of the same coin. This interlocking relationship was recognized by a federal court which found an expert’s testimony regarding the smoker’s differing levels of motivation to quit was “entirely consistent with the [National Institute on Drug Abuse] definition of ‘addiction,’ which accounts for the lack of motivation that smokers have to quit smoking and for their liking to smoke, even if they were aware of the dangers of doing so.” Starbuck v. R.J. Reynolds Tobacco Co., 102 F.Supp.3d 1281, 1306 (M.D. Fla. 2015). The federal court rejected the defendants’ attempt to generate a factual dispute regarding the definition of addiction, in part based on this testimony about motivation to quit. Id.; see also Frankson v. Philip Morris Inc., 4 Misc.3d 1002(A), 2004 WL 1433008 *1 n.4 (N.Y. Sup. Ct. 2004) (where expert was permitted to testily “that the decedent, had the ability to quit smoking, notwithstanding his addiction, but was simply not highly motivated enough to do so”).

If the pulmonologist was unqualified to opine that the plaintiff was addicted to nicotine, he was equally unqualified to opine concerning the plaintiffs motivation to quit, as evidence of the absence of addiction. Having disallowed the pulmonologist’s testimony regarding the plaintiffs addiction, the court erred by allowing his addiction/motivation testimony on cross-examination.

The.error in allowing this testimony, while excluding the related opinion of addiction, was not harmless.

“[I]n order to demonstrate harmless error, ‘the beneficiary of the error [has the burden] to prove beyond a reasonable doub't that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’ ” Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1255-56 (Fla. 2014) (quoting State v. DiGuilio, 491 So.2d 1129, 1135, 1139 (Fla. 1986)). “[T]he DiGuilio harmless error test focuses on the effect of the error on both the trier-of-fact and the result.” Id. at 1256.

Defendants claimed that the plaintiffs lack of motivation meant addiction was not the legal cause of her disease, which was actually caused by her voluntary and informed decision to smoke. While this may have been true, it was not placed in the proper context—that in her own doctor’s opinion, the plaintiff chose to smoke because she was addicted.

Defendants , mischaracterized the, evidence and relied on the exclusion of the pulmonologist’s addiction opinion to claim “anyone can quit smoking if they are motivated to do so,” which does not necessarily mean the smoker, is not addicted. Defendants’ “runaway train” analogy would have been less effective if the pulmonologist’s opinion that the plaintiff was addicted to nicotine had been admitted or his opinion about the plaintiffs motivation to quit had been excluded.

Possibly, the jury’s decision that -the plaintiff was not addicted was based on the evidence that she was able to stop smoking for 13 years and stopped a second time when her health deteriorated. However, it cannot be said with any degree of certainty that the verdict would have been the same if the trial court had included the pulmo-nologist’s opinion that the plaintiff was addicted to smoking or if the trial court had excluded his opinion that the plaintiff quit when sufficiently motivated. Allowing only a portion of the pulmonologist’s opinion regarding plaintiffs smoking addiction meant the jury could not consider his statements in context.

Reversed and remanded.

Ciklin and Kuntz, JJ., concur.'

      . We note that the court’s determination that the pulmonologist was unqualified to give an opinion regarding addiction could be upheld under either Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), or Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).


text:
    Nancy B. HUA, Appellant, v. Dennis H.L. TSUNG, Appellee.
    No. 4D15-4213
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Dirk Lorenzen of Lorenzen Law, Coral Gables, for appellant.
    Steven Friedman of Law Office of Steven Friedman, Pembroke Pines, for appel-lee.
   ON MOTION FOR REHEARING

Forst, J.

We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following.

Appellant Nancy Hua (“Wife”) appeals the trial court’s final judgment of dissolution of marriage. Primarily, Wife contends that the trial court erred by (1) not awarding her permanent alimony; (2) failing to classify certain stock as assets in determining support; (3) ordering the parties to pay the proceeds of the sale of rental property to a certain non-party creditor; and (4) denying her motion for attorney’s fees. We address these arguments below, while affirming without discussion the other issues raised in Wife’s appeal, including the classification of certain loans as marital and the legality of the timesharing plan with respect to the couple’s children.

Background

Wife’s then-husband Dennis Tsung (“Husband”) filed for divorce in 2013. By that time, the couple had been married for seventeen-and-a-half years. Both spouses were in their early forties by the time of divorce. Husband was the principal source of income throughout the marriage (abetted by the generosity of his parents), while Wife was both homemaker and, in the last years of the marriage, a stay-at-home mother. There was considerable evidence introduced at trial concerning Husband’s various business ventures throughout the marriage. At the time of divorce, Husband was a part owner of a restaurant. He lived in Brazil with a new girlfriend and their two minor children. Wife, meanwhile, remained in Broward County, Florida, where the couple had lived, taking care of the couple’s children who were also minors.

Throughout the marriage, Husband and Wife received generous gifts from Husband’s parents. In 1999, Husband’s father purchased the couple a house in California valued at approximately $800,000. The house was later sold. Then, when the couple moved to Broward County, Husband’s parents again purchased a marital home for the couple. Evidence at trial suggested the Broward County home’s value was about $650,000 to $700,000. The couple also decided to purchase a rental home (hereinafter “rental property”), subject to a mortgage. The value of the rental property was about $300,000 to $350,000. When Husband could no longer afford to pay the mortgage sometime around 2007 or 2008, his father loaned him approximately $260,000 to pay it.

Although the couple lived a relatively comfortable life during their marriage, Husband’s financial affidavits and tax returns demonstrated that lifestyle was due in large part to his father. Husband’s latest amended financial affidavit, for 2014, showed that he earned a monthly gross income of $6,295. He listed $1,281,300 in total assets, and over $1,035,199 in total liabilities. Husband reported that his father gave him a substantial amount of assets, but also testified that there were strings attached in the form of great debt. In fact, at trial, the court found that Husband’s father loaned Husband approximately $1,410,000 over the course of the marriage. On his financial affidavit, Husband also claimed he owned contingent assets—shares in a company called DSC Holdings Limited—valued at $885,000. Evidence admitted at trial showed the true value of these shares to be in excess of one million dollars. As for Wife, she made no income, and argued at trial that her monthly reasonable living expenses exceeded $20,000. However, the trial court determined that Wife’s temporary alimony award, which totaled $2,500 a month and included an unspecified amount of rental income from the rental property, was sufficient to cover her reasonable living expenses.

As such, the trial court fashioned its alimony award after the temporary one. It awarded Wife “conditional rehabilitative alimony,” where Wife would receive $2,500 a month for two years as she attended nursing school, which she expressed interest in and which an expert testified she could accomplish in that time frame. Husband would pay the costs of nursing school, which could total up to $12,000. The expert, finding Wife to be in good health, also concluded Wife could earn between $49,920 and $58,240 per year as a full-time nurse.

Analysis

A Alimony Award

We review the trial court’s determination of the type of alimony to award for an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203-04 (Fla. 1980). The trial court’s judgment must be supported by competent, substantial evidence. Gray v. Gray, 103 So.3d 962, 963 (Fla. 1st DCA 2012). “However, ‘[wjhere a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law.’ ” Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (alterations in original) (quoting Kennedy v. Kennedy, 622 So.2d 1033, 1034 (Fla. 5th DCA 1993)).

“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony 'or maintenance and whether either party has the ability to pay alimony or maintenance.” ' § 61.08(2), Fla. Stat. (2014) (emphasis added); see also Sherlock v. Sherlock, 199 So.3d 1039, 1043 (Fla. 4th DCA 2016). After making these two requisite (“shall”) “specific factual determination[s],” the court must then determine the type of alimony to award. § 61.08(2), Fla. Stat. (2014). The alimony statute lists several factors for a trial court to consider when choosing the type of alimony, including (“but not limited to”) the duration of the marriage, age of the parties, financial resources of the parties, earning capacities of the parties, employability of the parties, and contribution of the parties to the marriage. Id.

Once the trial court determines that alimony is appropriate, it must choose what type of alimony to award. There is a rebuttable presumption in the alimony statute that a marriage lasting more than seventeen years is a long-term marriage. § 61.08(4), Fla. Stat. (2014). There is also a rebuttable presumption in our- case law and that of every sister District Court that an award of permanent alimony is appropriate after dissolution of a long-term marriage. Fichtel v. Fichtel, 141 So.3d 593, 595 (Fla. 4th DCA 2014); Motie v. Motie, 132 So.3d 1210, 1213 (Fla. 5th DCA 2014); Broemer v. Broemer, 109 So.3d 284, 289-90 (Fla. 1st DCA 2013); Alcantara v. Alcantara, 15 So.3d 844, 845-46. (Fla. 3d DCA 2009); Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2d DCA 2008). “Neither age nor á spouse’s ability to earn some income will alone rebut the presumption.” Motie, 132 So.3d at 1213.

As we recently explained, “[i]n almost every case [involving one spouse who has historically been the homemaker in a long-term marriage and a subsequent disparity in income], courts have found that permanent alimony was appropriate.” Dickson v. Dickson, 204 So.3d 498, 503 (Fla. 4th DCA 2016) (alterations in original) (quoting Motie, 132 So.3d at 1213). However, this is by no means an irrebutta-ble presumption. A .trial court can overcome it by making detailed findings of fact regarding a spouse’s need and the other spouse’s ability to pay, as well as by considering all the relevant statutory factors listed in section 61.08(2).

' The trial court’s final judgment implicitly determined that Wife would have-a need for alimony, but not beyond the $2,500 she had been receiving each month pursuant to the temporary spousal support order (supplemented by a separate child support provision, gross rental income from the couple’s rental property, and Husband’s payment of taxes and insurance for the marital property), and that this monthly payment would end in two years, at which time the trial court expected Wife to be holding a full-time job. The final judgment does not include any “specific factual determination” . with respect to Husband’s ability to pay alimony beyond finding that Husband’s “current living expenses to support himself, his family in Brazil and his two children born of this marriage is not sufficient to pay the rehabilitative alimony award.” The judgment appears to conclude that, until the marital home is sold (entitling Husband to half of the proceeds), Husband lacks the ability to pay alimony, even the limited rehabilitative alimony conditionally awarded by the trial court.

As noted above, this, was a “long-term marriage” and, as such, “the trial court was required to apply the rebuttable presumption in favor of permanent alimony.” Dickson, 204 So.3d at 503. The trial court’s judgment erroneously fails to make any reference to this presumption in choosing to award Wife conditional rehabilitative alimony, although the judgment does state that the factors enumerated in section 61.08(2) were considered, including the duration of the marriage..

The final judgment of dissolution awarded Wife rehabilitative alimony, consisting of $2,500 per month for two years (which the court erroneously calculated as totaling $62,000),' plus Husband paying up to $12,000 in tuition for Wife to attend nursing school. The $2,500 per month is conditioned upon (1) Wife attending school to obtain her degree, and (2) the sale of the marital home (to provide funds for Husband to make-'the monthly support and tuition payments). In choosing conditional rehabilitative alimony,' the- trial’ court imputed to Wife “income equal to $2,500 per month,” and also took into account, “[a]s an element of support,” that Wife would be either living in the couple’s rental property (she would need a new residence with the marital home being sold), or she would be receiving gross rental income from this rental property, with Husband paying half of the tax and insurance. Thus, if Wife chooses not to attend nursing school, the final judgment leaves her with no .alimony/support outside the precariously situated rental income, not even the $2,500 per month that she received as temporary support.

' In the absence of specific findings and determinations as set forth above, the best course of action is to remand the issue of alimony to the trial court to (1) make explicit findings as to Husband’s ability to pay alimony, and (2) recognize the presumption in favor of permanent alimony. See Broemer, 109 So.3d at 290 (reversing and remanding in part because the court failed to address the initial rebuttable presumption of permanent alimony, let alone provide an explanation as to why it was not awarded). Should the trial court once again choose an alternative to permanent alimony, it must do so based on explicit findings referencing the factors set forth in § 61.08(2). Moreover, if upon remand the award is conditional (as it was in the final judgment at issue), the- trial court must set forth an alternative alimony option if the conditions are not met.

B. Consideration of Husband’s Ownership .of Shares in DSC Holdings Limited in Calculating the Parties’ Assets

On appeal, Wife contends that the trial court erred by failing to consider thirty-four percent of the shares of DSC Holdings Limited, valued at more than one million dollars, as assets of.Husband to be used in calculating support. We agree.

At trial, Husband’s father testified that he transferred the shares to Husband in 2005. Husband was thus the legal owner in name of the stock, As the First District Court of Appeal explained, albeit in a different context:

In our analysis, we start with the principle that, corporate records provide a prima facie evidentiary basis for determining ownership of corporate stock. Thus, when a party’s name appears as a shareholder in the official corporate records, the burden is on that party to establish that he or she was not a shareholder. Some courts have expressed this principle in terms of estoppel, so that a person who permits his name to be registered on the books of the corporation as the owner of shares of stock may be estopped from disputing his ownership of the shares.

Sackett v. Shahid, 722 So.2d 273, 275-76 (Fla. 1st DCA 1998) (citations omitted). Here, wé too start our analysis of ownership of the stock by looking to who was the title owner. At trial, Wife submitted incontrovertible evidence that it was Husband. Moreover, on the stand, both Husband and his father agreed that the shares were in Husband’s name.

Our decision regarding ownership of the stock is also guided by the principles of estoppel. At trial, Husband’s father directly testified that the reason he placed ownership of the stock in his son’s name was to avoid paying a forty percent “death tax” in Taiwan. The father acknowledged that he intended to bequeath the stock to Husband upon the father’s death, but did not want to pay taxes. To accomplish this tax-avoidance objective, he needed to actually transfer ownership of the stock to his son before his (the father’s) death. Now, though, it appears Husband and his father want it both ways. They wish to circumvent foreign tax obligations by placing ownership of the stock in Husband’s name, yet circumvent our State’s marital dissolution support laws by arguing those same assets are in reality the father’s. We are not persuaded.

One of our sister courts, in Collinson v. Miller, 903 So.2d 221 (Fla. 2d DCA 2005), outlined the basis of our rejection of Husband’s argument. There, the decedent’s children also attempted to enforce a type of agreement that sought to evade taxes. Id. at 226. The court struck the arrangement down, explaining:

It seems odd, to say the least, that a court of equity would impose a constructive trust in favor of the Miller children ... against a third party, to enforce an oral agreement specifically designed to evade taxes. If the constructive trust were upheld, it appears the Miller children would successfully obtain this property without paying the federal taxes due and owing based upon the agreement they sought to enforce.

Id. The court subsequently did not impose a constructive trust over the property in question. Id. at 228. We too are loath to grant Husband’s request that we impose as an equitable remedy a resulting trust in the shares for his father. Instead, we hold that the shares were non-marital assets owned by Husband.

We accordingly reverse and remand for the trial court to reconsider and recalculate its determinations of the various forms of support with the understanding that the shares at issue are assets of Husband rather than of his father. See § 61.08(2)(d), Fla. Stat. (2014) (requiring consideration of the financial resources of both parties, including nonmarital assets, in determining alimony); § 61.16(1) Fla. Stat. (2014) (requiring consideration of parties’ financial resources in determining whether to award attorney’s fees); § 61.30(ll)(a)7. Fla. Stat. (2014) (allowing deviation from minimum child support based on the total available assets of relevant parties).

C. Equitable Distribution of Proceeds from the Sale of the Rental Property

We review de novo whether a trial court has jurisdiction in a marital dissolution action to adjudicate the rights of a third-party creditor. Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005).

As noted above, the trial court awarded Wife the choice of living in the rental property or receiving the gross rental income until the home is sold, either voluntarily or because of one of the triggering conditions already described. The dissolution judgment discussed the equitable distribution of the proceeds from the sale of the rental property, noting that “[u]pon sale of the rental home ... the net sale proceeds shall be divided 50% to the Petitioner [Husband] and 50% to the Respondent [Wife], after satisfying the $260,000 U.S. loan owed to Tsung [Husband’s father].” The trial court also ordered that “[t]he $260,000.00 Tsung debt shall be satisfied at the time that this property is sold.”

The trial court erred as a matter of law in directing the parties to repay Husband’s father upon sale of the rental property. “In [a] dissolution action, the trial court does not have jurisdiction to adjudicate property rights of nonparties.” Noormohamed v. Noormohamed, 179 So.3d 379, 380 (Fla. 5th DCA 2015) (alteration in original) (quoting Minsky v. Minsky, 779 So.2d 375, 377 (Fla. 2d DCA 2000)). Although a trial court in a dissolution judgment certainly can identify marital assets and liabilities, and allocate them to the parties pursuant to section 61.075(3), Florida Statutes (2014), it cannot adjudicate a debt. Here, by awarding part of the proceeds of the sale of the rental property to the father, the court essentially placed an equitable lien on the property to allow the father to secure repayment of the loan. The court thus converted him from an unsecured creditor into a secured one. On remand, the father can only pursue the debt, if he so chooses, by instituting a separate action. See Lobato v. Lobato, 433 So.2d 620, 621 (Fla. 4th DCA 1983) (holding the trial court impermissibly imposed an equitable lien on the property by adjudicating the rights of non-parties, but reversing without prejudice to allow the non-parties to institute a separate action).

D, Attorney’s Fees Aivard

We review a decision on a motion for attorney’s fees for an abuse of discretion. Henry v. Henry, 191 So.3d 995, 999 (Fla. 4th DCA 2016).

“An award of attorney’s fees and costs is based on each spouse’s respective need and ability to pay.” Fichtel v. Fichtel, 141 So.3d 593, 596 (Fla. 4th DCA 2014); see also § 61.16, Fla. Stat. (2014). In light of our reversal with respect to Husband’s ownership of the shares in DSC Holdings Limited and our remand of the alimony issue, it is appropriate that we also remand Wife’s request for Husband to pay her attorney’s fees and costs and direct the trial court to revisit this issue, making “specific findings of fact—either at the hearing or in the written judgment—supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded.” Arena v. Arena, 103 So.3d 1044, 1046 (Fla. 2d DCA 2013). “[V]ague findings present an obstacle to meaningful appellate review.” Id. at 1047.

Conclusion

We recognize the inherent difficulty for a trial court tasked with preparing a final judgment of dissolution in a situation in which the parties have significant assets but limited income. The instant case was certainly not “an ordinary divorce.”

As set forth above, we reverse the final judgment as to the support determinations affected by the ownership status of the DSC Holdings Limited shares and the treatment of the proceeds from the sale of the rental property. We further reverse and remand with instructions with respect to the awards of alimony and attorney’s fees. In revisiting these issues, the trial court must make explicit findings and conclusions and recalculate its equitable distribution award in light of Husband’s “economic circumstances” being different from those initially considered by the court. See § 61.075(l)(b), Fla. Stat. (2014).

Affirmed in part, reversed in part, and remanded.

Taylor and Conner, JJ., concur.

      . "The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” § 61,08(4), Fla, Stat. (2014).

      , The judgment stipulates that this property must be sold if Wife remarried, if Wife cohab-itated with another person, or when the youngest child attained majority, with the proceeds of that sale encumbered by a $260,000 loan, from Husband’s father that was made for the purchase of the home.

      . We take no view on the legality of Husband’s father's actions to circumvent foreign tax law. Our opinion is limited to noting that if the father had to place the shares in his son’s name to avoid a tax, which he claims he did at trial, then he cannot as a matter of estoppel disavow the consequences of his actions.

      . Wife conceded at trial, and made no argument to the contrary in her briefs on appeal, that the shares were nonmarital assets, gifted to Husband alone both prior to and during the marriage.