author: BILBREY, J. WINOKUR, J., OSTERHAUS, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Appellants, v. Andy R. ALLEN Sr., as Personal Representative FOR the ESTATE OF Patricia L. ALLEN, Appellee.
    CASE NO. 1D15-4197
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017.
    Rehearing Granted October 18, 2017

      Robert B. Parrish, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prich-ard,Parrish, Knight & Jones) Jacksonville, for Appellant R.J. Reynolds Tobacco Company.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for Appellant Philip Morris USA Inc.
    Celene H. Humphries, ■ Steven L.- Bran-nock, Philip J. Padovano, Maegen P. Luka, and Thomas J. Seider of Brannock & Humphries, Tampa; Gregory D. Prysock and Katy M. Massa of Morgan & Morgan, P.A., Jacksonville, for Appellee.
   ON MOTION FOR REHEARING

BILBREY, J.

We grant rehearing on the court’s own motion, withdraw our previous opinion issued February 24, 2017,. and substitute this opinion in its place. In this Engle-progeny case, Appellants raise four issues in their challenge to the final judgment which awarded Appellee $3,094,000 in compensatory damages, jointly and severally, and awarded Appellee $7,755,415 in punitive damages against each Appellant. Finding no error we affirm.

Allegations of Juror Misconduct

Appellants first contend that the trial court erred in not dismissing a juror during trial or for not.granting the Appellants' post-trial motion for new trial based on the juror’s alleged failure to disclose bias against tobacco companies during jury selection. The parties agree that the trial court’s denial of a motion to dismiss a juror and denial of new trial based on allegation of juror concealment of bias are reviewed for abuse of the trial court’s discretion. Villalobos v. State, 143 So.3d 1042, 1046 (Fla. 3d DCA 2013). “Indeed, Florida courts give great deference to such decisions because trial judges are in the unique position to evaluate the practices of the attorneys during voir dire and to determine what factors were material in jury selection.” Morgan v. Milton, 105 So.3d 545, 549 (Fla. 1st DCA 2012);

When jury selection began, the trial court explained the process to the panel of' prospective jurors; including explaining a juror questionnaire prepared by the Appellants. The court asked the jurors “to take seriously the questionnaire and answer the questions as truthfully and fully as you can.” Prospective juror Michael Taylor , completed his questionnaire. Mr, Taylor checked the areas in which he had worked or received training or education, including “Tobacco/Cigarette Industry,” “Addiction or substance abuse,” and “Smoking cessation.” In response to the request' to “explain,” Mr. Taylor wrote “Tobacco former smoker, substance tobacco” and “ex-smoker 28 years/5 clean.” In response to a question regarding his “smoking status,” Mr. Taylor circled “Former Smoker.” He gave details of his former smoking behaviors, including his start at age 13, the 28 years he was a smoker, and that he tried to quit “many” times. He also described his family’s history of smoking, including the particular relatives who smoked, what brands they smoked, and the heavy amounts that they smoked. Mr. Taylor indicated in the questionnaire that he thought his minor son suffered from smoking-related asthrna. When asked in question 30 , his. opinion , of smokers, Mr. Taylor wrote; “Addicted but accountable for tjieir choices.” In answer to question 31 about his opinion of “a lawsuit against a tobacco company,” Mr. Taylor wrote that he “piust know the facts to.judge.” When asked in question 32 his “opinion, if any, of cigarette companies,” Mr. Taylor wrote, “they are a business.”

Jury selection spanned three days. The parties point to only one excerpt in the transcripts of the jury selection showing Mr. Taylor being questioned individually. When asked by Appellee’s trial counsel about his smoking history, Mr. Taylor replied, “I smoked 28 years, addicted to nicotine, quit on Chantix 2008. Smoked a pack a day.” Mr. Taylor was never individually questioned by Appellants’ trial counsel. No preemptory or for cause challenges'were directed- at Mr. Taylor, and he was selected as a member of the jury.

On the fourth day of trial Appellants’ trial counsel raised the allegations of juror misconduct by 'Mr. Taylor in a written motion seeking to have him removed from the jury. The motion alleged “personal-and deep-seated antagonism and bias against Defendants” based on social media postings Mr. Taylor had purportedly made on the internet in the past. The trial continued, and a few days later counsel for Ap-pellee filed a written response. The trial court heard argument on the motion outside the presence of the jury, and after taking the matter under advisement, denied .the motion to dismiss Mr. Taylor from the jury. After the jury returned, verdicts for compensatory and then punitive damages for the Appellee, the trial court entered a detailed order setting forth the basis for denying the motion to remove Mr. Taylor.

After the jury verdicts, the Appellants moved for a new trial based on the same allegations raised in them motion to dismiss Mr. Taylor from the jury. After receiving a response from Appellee and holding a hearing on the motion for new trial, the trial court denied that motion. At no time did Appellants seek to further voir dire or interview Mr! Taylor regarding the allegations of bias.

The trial court thoroughly analyzed this issue in its orders denying the dismissal of Mr, Taylor and denying a new trial. The three-part standard the trial court correctly used was given in De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), In De La Rosa, the Florida Supreme Court stated the test for whether a new trial is warranted based on juror concealment, “First, the complaining party must establish that the information is- relevant and material -to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id. at 241. The first prong of the De La Rosa standard was undisputed below, and the trial court found that the postings were relevant and material to Mr. Taylor’s jury service.

As to the second prong of the De La Rosa standard, the trial court found that Mr. Taylor did not conceal any bias against the Appellants. In the order denying Appellants’ motion to dismiss Mr. Taylor, the trial court stated,

First, Juror Taylor’s response that cigarette smokers are “addicted but accountable for their choices” is not inconsistent with his social media posts. In both posts -Juror Taylor discussed his overcoming of smoking addiction. Similarly, his responses to the other two questionnaire questions are not contradictory of his social media posts. The Defendants appear to argue that Juror Taylor was requested to elaborate more in his response to the questionnaire. However, questions 30-32 of the juror questionnaire are subjective questions that are broad enough to summon a wide array of responses. The questions certainly do not clearly or squarely ask for the detailed level of information present in Juror Taylor’s social media posts. The questions do not specifically require the jurors to disclose whether they harbor .any negative feelings towards tobacco companies.

The questionnaire did not ask unequivocal questions regarding bias, and Mr. Taylor did not provide unequivocal answers, which distinguishes the facts here from Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), cited by Appellants. In Roberts, the Florida Supreme Court required a new trial where a juror failed to disclose that she had been involved in prior litigation when asked if she had ever been a party to a lawsuit. See also De La Rosa, 659 So.2d at 241. The questions and answers at issue here were not the clear, black or white, yes or no, type of questions at issue in Roberts. Mr. Taylor cannot be blamed for “not being more forthcoming given the very basic questions asked.” Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011); see also Hood v. Valle, 979 So.2d 961 (Fla. 3d DCA 2008). The trial court did not abuse its discretion in finding that the second prong of the De La Rosa standard was not met.

The trial court also found that there was insufficient due diligence exercised by Appellants to meet the third prong of the De La Rosa standard. As the Court explained in Roberts, “resolution of this ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and' counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information.” 814 So.2d at 343. In making the factual determination, in the order denying the dismissal of Mr. Taylor from the jury, the trial court found,

[Questions 30-32 of the juror questionnaire were broad enough to elicit a wide array of responses. Juror Taylor’s responses to these three questions raised numerous issues that would logically call for follow-up questions. Moreover, Juror Taylor indicated on the questionnaire that he was a former heavy smoker of twenty-eight years, and had been “clean” for the past five years. He also stated that his father and both grandfathers were lifelong heavy smokers, leading to health issues. Juror Taylor indicated on the questionnaire that he attributed his son’s asthma to smoking-related causes.

The trial court also mentioned Mr. Taylor’s verbal response detailing his smoking history.

The trial court found that due diligence required follow-up questions to Mr. Taylor, a long-time smoker now five years “clean,” to examine whether he “harbored no ill-feelings toward tobacco companies.” Due diligence is lacking when “at best, an, ambiguity may exist which was not explored.” Lugo v. State, 2 So.3d 1, 15 (Fla. 2008). The trial court noted that it did not impose time limits on the voir dire. The trial court concluded that Appellants’ likely strategic decision not to question Mr. Taylor did not satisfy due diligence.

Given Mr. Taylor’s disclosed personal and family history with cigarette smoking, along with .his answers to questions 30 through 32 in the questionnaire, we find no abuse of discretion in the trial court determining that Mr. Taylor should have been asked clear and direct questions during jury selection regarding any bias against tobacco companies. As two prongs of the De La Rosa standard are lacking, there was no error in the trial court’s refusal to dismiss Mr. Taylor or grant a new' trial based on his serving on the jury.

Comparative Fault

Appellants next argue that the trial court erred by not reducing the compensatory damages following the jury’s finding that the decedent' was seventy percent at fault. Although there is a split of authority among the Florida district courts, this court held in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), that apportionment of fault is not required by section 768.81, Florida Statutes, where a jury finds—as it found at trial- here— that a defendant committed intentional torts of fraudulent concealment and conspiracy to fraudulently conceal. In R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), rev. granted, Schoeff v. R.J. Reynolds Tobacco Co., 2016 WL 3127698 (Fla. May 26, 2016), the Fourth District held contrary to Sury that fault should be apportioned in what that court considered to be a products liability action. We are obligated to follow Sury and in doing so hold that the trial court did not err when it refused to apportion fault.

Punitive Damages

Appellants’.third issue is that the trial court applied the incorrect version of the punitive damages statutes resulting in an incorrect jury instruction on the standard-for awarding punitive damages and an award of punitive damages in excess of that permitted by law. Chapter 99-225, section 22, Laws of Florida, amended section 768.72(2)(b), Florida Statutes, to require a “conscious disregard” for the safety of others rather than the previous standard of “reckless disregard,” to allow for an award of punitive.damages. Chapter 99-225, section 23, amended section 768.73, Florida Statutes, to impose a stricter cap on punitive damages and to require findings by the jury to overcome that cap. Appellants contend the post-1999 version of the statute applies here and that the trial court committed error by applying the -earlier version of the statute.

Typically, the applicable version of a statute is the one “in effect when the cause of action arose.” D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 n.9 (Fla. 2003) (citing Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002)); §§ 768.72(4) & 768.73(5), Fla. Stat. In many wrongful death actions, the cause of action accrues on the date of a decedent’s death. Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So.2d 1057 (Fla. 4th DCA 1994). However, Engle-progeny cases are different. Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006); see also R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028 (Fla. 2016) (applying manifestation rather than accrual of cause of action to establish membership in the Engle class).

To be a member of the Engle class and to take advantage of the findings in Engle, a plaintiffs (or plaintiffs decedent’s) “symptoms of a tobacco-related disease or, medical condition” must have manifested by November 21, 1996. Ciccone, 190 So.3d at 1030; see also Engle, 945 So.2d at 1275, The testimony at trial was that Mrs. Allen’s chronic obstructive pulmonary disease (COPD) manifested before November 21, 1996, so she qualified for the res judicata benefits of the Engle class. See Ciccone; Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1226-27 (Fla. 2016).

Here litigation commenced on September 18, 2007, when Mrs. Allen was still living. The initial complaint alleged that Mrs'. Allen was a member of the Engle class and entitled to benefit from the Engle findings. See Ciccone; Philip Morris USA, Inc. v. Douglas, 110 So.3d 419 (Fla. 2013). The initial complaint was filed within the one-year period daring which the Florida Supreme Court allowed individual claims following the decertification of the class in Engle, 945 So.2d at 1277. Mrs. Allen died on February 24, 2009, and Appellee continued the litigation which had been commenced before her death by filing a third amended complaint with the wrongful death claim.

Section; 768.20, Florida Statutes, provides guidance and states in part, “When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” When Mrs. Allen died, her personal injury case did not “self-destruct like the secret message on a rerun of ‘Mission Impossible.’ ” Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31, 33 (Fla. 2d DCA 2003), Instead it abated until a personal representative was.appointed and the existing suit was amended to add the wrongful death claim. Appellee was not required to file a new suit, but instead was allowed to proceed in the same suit initiated by Mrs. Allen. See Capone v. Philip Morris USA, Inc., 116 So.3d 363 (Fla. 2013). Just as the wrongful death action was allowed to relate back to date of the Engle class for statute of limitations purposes, the applicable statutory law also relates back to the Engle class. See In re: Engle Cases, 45 F.Supp.3d 1351 (M.D. Fla. 2014) (discussing relation back of wrongful death action following plaintiff/smoker’s death). This date had to be before November 21, 1996, so the post-1999 revisions to the punitive damages statutes do not apply.

In Schoeff, the Fourth District had occasion to consider which version of the comparative fault statute applied to the wrongful death action. 178 So.3d at 492 n.3. Although that case began as a wrongful death action, the Schoeff court held that the version of the statute in effect at the time the decedent was diagnosed with lung cancer was the applicable version, since that was when the cause of action accrued. Id. That logic is even more persuasive here where the case began with Mrs. Allen as a plaintiff and was converted to a wrongful death action after she died. After her causes of action accrued, Mrs; Allen had a substantive right to seek punitive damages under the then-existing'standard. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994). Application of the post-1999 amendments to the punitive damages statute to Appellee’s derivative claim would impair those substantive rights. Id.; see also Celotex Corp. v. Meehan, 523 So.2d 141, 147 (Fla. 1988) (“wrongful death action is derivative of the injured person’s right, while living, to recover personal injury”) (citing Variety Children’s Hospital v. Perkins, 445 So.2d 1010 (Fla. 1983)).

Due Process

Appellants’ final issue is raised only for preservation purposes, that the use of the Engle findings in the trial court violated due process. This argument has been definitively rejected by the Florida Supreme Court in Douglas, 110 So.3d at 430-31.

Conclusion

Having determined that no error was committed by the trial court, the judgment is affirmed.

AFFIRMED.

WINOKUR, J., CONCURS IN PART AND CONCURS IN RESULT ONLY WITH OPINION; OSTERHAUS, J., DISSENTS WITH OPINION.

WINOKUR, J.,

concurring in part and concurring in result only.

I concur in the majority opinion with respect to all issues except the juror misconduct issue. With regard to the juror misconduct issue, I concur in result only.

In their Motion for Rehearing En- Banc or Certification to the Florida Supreme Court, Appellants argue that the decision here “establishes an unreasonable standard for uncovering juror bias that would turn voir dire into a long series of hostile questions by counsel worried about being faulted for displaying insufficient precision and diligence.” This argument has impelled me to explain why I vote to affirm with regard to the juror concealment issue.

Prospective jurors were asked by questionnaire for their “opinion, if any of cigarette companies.” Juror Taylor gave a bland response: “they are a- business,” a fact'rather ' than an opinion.-After trial started,- Appellants uncovered social media postings from Taylor that reflected antagonism toward tobacco companies. One of these messages was five and- one-half years old, and the other was posted five months prior to trial. Appellants’ argument, and the dissenting opinion, rests sqüárely on the presumption that the posts reflected precisely the opinions of Taylor at the time of jury selection. And because those opinions-are inconsistent with Taylor’s answers at jury selection, Appellants conclude that he was guilty of concealing his “true opinions” of tobacco companies.

Experience concerning personal opinions belies this argument. Even if these messages accurately reflected Taylor’s opinion at the time he wrote them, nothing shows that they reflected his views at the time of trial, other than a presumption that his opinion was unchanged. “The foolish and the dead alone never change their opinion.” James Russell Lowell, My Study Windows 166 (Boston: J.R. Osgood & Company 1874).

. For this reason, I cannot subscribe to the view that cases where a. prospective juror has given false factual information during jury selection control here. For instance, the jurors in De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), were asked whether they or family members or close friends had been a party to a lawsuit. The answer to this question is either “yes” or “no,” and the answer is either true or false. A prospective juror who fails to answer this question truthfully is guilty of concealment. I respectfully disagree with the dissent that the question, “[w]hat, if any, opinion do you have of cigarette companies[?],” .is so “simple” and “straightforward” that it necessarily calls for the same type of certain, verifiable answer as the one to the question about prior lawsuits. I do not believe we should presume, as Appellants do, that any past, expression of opinion necessarily reflects a “true, opinion” and that, anything contrary to that past expression constitutes concealment of that true opinion.

The dissent finds the request for an opinion about tobacco companies to be a “simple, straightforward question” that “[e]ven grade-schoolers understand.” Infra at 695-96. To demonstrate, the dissent proposes responses to opinion inquiries such as “I love my job” or “I hate the Gators.” I do not share the dissent’s contention that personal opinions can always be expressed with such simplicity and certainty. It leaves no room for mixed feelings, evolving views, or even the possibility that a person might be more circumspect in expressing his opinions when giving sworn answers in jury selection than he is writing Facebook posts.

A juror can certainly be-dismissed for concealing an opinion during jury selection. But dredging up past communications, declaring them “true opinion,” and comparing the past communication with answers at jury selection does not necessarily demonstrate concealment. The surest way to determine whether Taylor continued to hold the views expressed in the online messages would have been to ask him. Appellants never asked to interview Taylor after they discovered his messages. Instead, they asked this Court to presume that the opinions expressed in these prior messages reflected Taylor’s views at the time of trial, and then fault him for concealing those views. I am unwilling to make this presumption.

Florida Rule of Civil Procedure 1.431(h) permits post-verdict juror interviews when the party has grounds for a legal challenge to a verdict. “Where there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview.” Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991). A court abuses its discretion in denying a juror interview when a party comes forward with information that a juror concealed relevant information at jury selection. See e.g. Westgate Palace, LLC v. Parr, 216 So.3d 747 (Fla. 5th DCA 2017). While Rule 1.431(h) specifically refers to post-verdict interviews, this procedure should have been employed here. See Villalobos v. State, 143 So.3d 1042, 1046 n.5 (Fla. 3d DCA 2014) (“In the more common scenario, the juror’s nondisclosure of information is not discovered until after the trial, resulting in a motion for new trial. Here, the nondisclosure was . discovered during the trial itself, and the issue is whether the court erred in not dismissing the juror upon discovery of the undisclosed information. Under either scenario, however, the analysis remains the same.”).

I find Appellants’ failure to attempt to confront Taylor after they discovered those online messages far more relevant in affirming the trial court than their failure to question him more thoroughly at voir dire. In order to allay any concerns that the opinion here places additional burdens on litigants during jury selection to uncover bias, I do not join Judge Bilbrey’s opinion on this issue. I do, however, vote to affirm on all issues.

OSTERHAUS, J.

dissenting.

I would reverse for a new trial beqause the foreman of the jury did not disclose his contempt for cigarette companies when asked directly during voir dire. When asked during voir dire, “What, if any, opinion do you have of cigarette companies, including [Defendants]?” the juror answered only: “[T]hey are a business.” What the juror didn’t reveal was his history of posting sharply negative' views about tobacco companies on social media. Online, he called them leeches and slaveholders who keep addicts in chains. Appellants only discovered the jury foreman’s strong views about them after the trial began. At which point, they immediately sought to remove him and empanel the juror alternate. But the trial court denied the motion, as well as Appellants’ subsequent motion for a new trial.

Parties have a constitutional right to an impartial jury. Every prospective juror has a duty to fully and truthfully answer questions asked of them during voir dire. Veni-re members must not falsify any fact or conceal material information. Because here, the foreman of the jury concealed his negative opinions of cigarette companies when directly asked for his opinion of them during voir dire, I would reverse and remand for a new trial. .

I.

A.

Our tradition of trial by jury “necessarily contemplates an impartial jury drawn from' á cross-section of the community.” State v. Silva, 259 So.2d 153, 160 (Fla. 1972). “[Ajnything less than an impartial jury is the functional equivalent of no jury at all,” City of Miami v. Cornett, 463 So.2d 399, 402 (Fla. 3d DCA 1985), dismissed, 469 So.2d 748 (Fla. 1985), and impinges a party’s due process rights. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (“The Due Process Clause entitles a person, to an impartial and disinterested tribunal in both civil and criminal cases, ... safeguarding] the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process.”).

Courts and parties routinely vet prospective jurors with questions before the trial to “assure the right to a fair and impartial trial by qualified jurors.” McCauslin v. O’Conner, 985 So.2d 558, 560 (Fla. 5th DCA 2008); Fla. R. Civ. P. 1.431. This process is called “voir dire.” During voir dire, potential jurors have a “duty ... to make full and truthful answers ... neither falsely stating any fact, nor concealing any material matter.” Roberts ex rel. Roberts v. Tejada, 814 So.2d 334, 342 (Fla. 2002) (quoting Loftin v. Wilson, 67 So.2d 185, 192 (Fla. 1953)). “Trial counsel and their clients are entitled to assume that a prospective juror will truthfully answer the questions posed by the court or by the parties’ counsel,” McCauslin, 985 So.2d at 560. Concealment or failing to answer truthfully amounts to misconduct that can be extremely prejudicial to a party’s procedural rights. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995) (quoting Loftin, 67 So.2d at 192 (“full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause.”)).

A nondisclosure during a voir dire exam warrants a new trial under Florida law if: (1) the undisclosed information is “relevant and material to jury service in the case”; (2) the juror “concealed the information during questioning”; and (3) the juror’s failure to disclose the information isn’t “attributable to the complaining party’s lack of diligence.” De La Rosa, 659 So.2d at 241. The failure to grant a new trial under these circumstances is reversible error. See Kelly v. Cmty. Hosp. of Palm Beaches, Inc., 818 So.2d 469, 476 (Fla. 2002).

B.

Appellants moved to dismiss Juror Michael Taylor in this case after discovering, four days into a three-week trial in 2015, that he’d published social media comments in 2009 and 2014 .expressing contempt for cigarette companies. He posted:

I quit smoking after 28 years.... All the time the government taxed the crap out of me to pay for dumb sh—I never agreed to. Their excuse to avoid making tobacco companies to stop. These companies arid the government are best buddies. They are both le[e]ches on the same people ... addicts like me. Why the h—do the uppity intellectuals think they are better than the guy at the bottom and thus tax his weakness? I think it is a sick way of easing their conscience too!!
⅝ * ⅜
Set yourself free from the people who have you addicted. Stop paying their fees just to feel normal. You do not have to quit alone. ... The only thing you are giving up is being a slave to some rich guy who sells tobacco products. Break the chains.

(Emphasis added). Appellants argued to the trial court that Juror Taylor had concealed his posted contempt for them during voir dire despite being asked directly in a juror questionnaire. Every panel member was asked directly in a juror questionnaire for their opinion of cigarette companies. In addition, the Court admonished jurors during voir dire to “ ‘be honest’ and identify whether they had ‘bad feelings .., against [the companies]’ that would affect the ‘ability to be fair and impartial.’ ” Appellants claimed that they’d have stricken Juror Taylor for cause because of his hostility toward them, or exercise^ a .strike (they had left one preempto-ry strike on the table) had they known his true views.

The trial court held a hearing on Appellants’ motion to remove Juror Taylor and denied it. The trial court found that Juror Taylor’s posts suggested bias against the tobacco parties. Arid no one disputed that his posts were both relevant and material to his jury service. But the trial court declined to 'dismiss Juror Taylor because it thought clear quéstions hadn’t been asked about his opinion of cigarette companies during voir dire; Appellants’ counsel hadn’t beén diligent about asking the right questions. After denying the motion, Juror Taylor became the foreman of the jury. The jury found Appellants liable. And the jury awarded an eight-figure verdict to the plaintiff. ...

The .trial court later denied Appellants’ motion for a new-trial, which they based not only upon the previous nondisclosures, but new online material. Post-trial posts from- Juror Taylor’s Facebook account gloated about the verdict, urged that news be spread about it, and called tobacco companies “liable as Satan and deserving of] consequences for their actions.”

II.

This appeal focuses on the last two prongs of De La Rosa’s three-prong test for determining when a juror .should be dismissed mid-trial for concealing information during voir dire. De La Rosa, 659 So.2d at 241. Appellants satisfied the first De La Rosa prong when the trial court recognized that Juror Taylor’s, pre-trial, social media posts showed material bias against tobacco companies relevant to his service on the jury. No one challenged that particular finding and the evidence supports it.

The trial court denied Appellants’ motion to remove Juror Taylor based on De La Rosa’s second and third prongs. The trial court ruled that Juror Taylor did not conceal his opinions during voir dire. And it faulted Appellants for not diligently asking for Juror Taylor’s negative opinions of them. But these conclusions aren’t supported by the record. A juror “conceals” information where he fails to provide information “squarely asked for.” Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000). Here, Question 32 of the juror questionnaire asked: “What, .if any, opinion do you have of cigarette, companies, including [Defendants]?” This question asked-“squarely” for Juror Taylor’s opinion of cigarette companies. But the trial court didn’t think so. It. found Question 32 ambiguous gnd “not specifically requir[ing] the jurors to disclose whether they harbor[ed] any negative feelings toward .tobacco companies”; needing “[m]ore specific follow-up questions ... for Juror Taylor to elaborate on his views regarding ... tobacco companies”; and as not reasonably “understood ... to encompass the scope and type of information that Juror Taylor provided in his sqcial media posts.”

But this is sheer applesauce. “What is your opinion of _?” is a simple, straightforward question that is asked, understood, and answered by virtually everyone, everyday; as in:- “What is your opinion of/what do you think of [fill in the blank]-—your job; your teacher; your lunch; President Trump; Lady Gaga; Justin Bieber; iPhone 7; Windows- 10; Hollywood; Wall Street; the .Gators; the Hurricanes; the Seminóles; and so on. Even grade-schoolers understand this question, no problem, Everyone knows that it calls for a subjective personal response about the question’s subject, whatever that opinion might be; as in “I love my job,” “I hate the [Gators, Hurricanes, or Seminóles] .(you pick ’em),” or “School was ehh.” This question is particularly effective and easy to answer for someone with strong opinions about a subject, like Juror Taylor. The disclosures of other venire members prove this very point. See Roberts, 814 So.2d at 346 (“The information disclosed by other prospective jurors may be as important in any particular inquiry by counsel, because the dynamics and context of the entire process may define the parameters of that which should be disclosed.”). They gave opinions of cigarette companies like: “all Evil”; “They are all predators”; “To say they are the lowest form of capitalism is an insult to capitalism”; “They are responsible for pushing the sales of a deadly product”; “Deserve what the[y] get”; “They should not be able to . produce such bad products that will cause harm to a human being”; “I believe they knowingly misled the public about effects of smoking that they knew were evident”; and “Big business that does not care the damage they do to those that are addicted to their product.” Appellants could effectively evaluate the fitness and prejudice of these prospective-jurors because of their truthful answers. Juror -Taylor possessed similarly strong negative opinions, but he concealed them. He didn’t answer Question 32 as due process demanded and his performance cannot credibly be blamed on the question.

Juror Taylor had a responsibility to give his opinion of cigarette companies truthfully and fully, without “concealing any material matter.” Roberts, 814 So.2d at 342 (quoting Loftin v. Wilson, 67 So.2d 185, 192 (Fla. 1953)). See also Minnis v. Jackson, 330 So.2d 847, 848 (Fla. 3d DCA 1976) (“The well established rule is that the failure of a juror to honestly answer material questions propounded to him on voir dire constitutes bad faith requiring his disqualification from serving on the jury in the case.”). The trial court had instructed the venire to answer all questions “as truthfully and fully” as possible. It had also explained that it was “looking for” prospective jurors with ill feelings toward tobacco companies or other “preexisting” biases. At one point, the trial court also interrupted defense counsel between questions to individual members of the venire to make sure that prospective jurors knew exactly the sort of information they were required to' disclose. The trial court explained that the “whole idea is to find out if you have preexisting views ... in your background [that] would affect your ability to be fair and impartial.” For example, “if you [have] some real bad feelings that you’ve had for a long time against [cigarette] companies [that will always] be in the back of your mind.”

Against this backdrop, Appellants were “entitled to assume” that Juror Taylor gave his “opinion ... of cigarette companies” fully and truthfully, just as he was asked. McCauslin, 985 So.2d at 560. But he didn’t. Tobacco companies weren’t just “a business” to Juror Taylor, as he answered at voir dire. His online readers knew, that he really thought of them as slaveholders and leeches, essentially as businesses that owned, consumed, and sucked the blood of other people for their own advantage. His aspersion easily ranks among the worst opinions one can have of something. And courts have found juror concealment in much closer cases than this one. See, e.g., Nicholas v. State, 47 So.3d 297, 301 (Fla. 2d DCA 2010) (finding juror concealment where a juror knew two witnesses but didn’t respond when the court said, “If there’s something you think that we need to know about your background or your life experience, let us know so that we can ask that question”); Wilson v. State, 608 So.2d 842, 843 (Fla. 3d DCA 1992) (finding juror concealed material information by not responding to question “whether [she] could be impartial” when she had “ill feelings against the State Attorney’s Office”). Due process required Juror Taylor to reveal his contemptuous opinions of Appellants, so parties could assess his fitness for service as an impartial factfinder and protect the integrity of the trial. Whether Juror Taylor’s concealment was intentional or not, the process required him to give full and frank answers. Roberts, 814 So.2d at 343 (noting that “a juror’s nondisclosure need not be intentional to constitute concealment”). For these reasons, I cannot agree with my colleagues’ conclusion that Juror Taylor didn’t conceal anything.

Second, I see no support for the trial court’s finding that Juror Taylor’s nondisclosure was Appellants’ fault, attributable to their lack of diligence. Appellants asked the right question. Question 32 asked for Juror Taylor’s “opinion ... of cigarette companies.” In responding, Juror Taylor had an obligation to disclose his material, negative opinion about cigarette companies. Again, the trial court is incorrect that Appellants’ questions needed to specifically ask for “negative feelings” about tobacco companies or ask “[m]ore specific followup questions.” Only a single clear question needed to be asked to require truthful and. complete responses from Juror Taylor and the 100+ other members of the venire in this case (Juror Taylor was panel member #99), not repeated questions or magic words. See Villalobos v. State, 143 So.3d 1042, 1047 n.6 (Fla. 3d DCA 2014) (due diligence doesn’t require further inquiry after a clear question is asked); Dery v. State, 68 So.3d 262, 255 (Fla. 2d DCA 2010) (finding no obligation to inquire further after a question is squarely asked). Question 32’s straightforward request for an “opinion, if any, of cigarette companies” was perfectly adequate to obtain Juror Taylor’s full and truthful opinion of cigarette companies (just as his fellow venire members disclosed).

And so, I would reverse because the trial court’s conclusions regarding concealment and diligence aren’t supported by the record. Decisions based upon findings unsupported by competent, substantial evidence constitute an abuse of discretion. See, e.g., Russenberger v. Russenberger, 654 So.2d 207, 217 (Fla. 1st DCA 1995). Juror Taylor concealed his views of Appellants, casting reasonable doubt about his ability to be fair and impartial. He should have been dismissed and the alternate juror empaneled, even if the trial court considered the issue a close call. See Nicholas, 47 So.3d at 304 (“it is appropriate to remove a juror who has been less than candid during voir dire”); Bell v. Greissman, 902 So.2d 846, 847 (Fla. 4th DCA 2005) (close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality).

III.

Because Appellants were denied a proper jury, I would quash the final judgment and remand for a new trial.

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

      , How the trial court knew the postings were Mr. Taylor’s, as opposed to someone else’s, without interviewing him is therefore not an issue for our consideration. Additionally, the remoteness in time of the postings, one over a year and the other over five years before the trial, and whether they remained material is not for our consideration. Cf. Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000) (holding non-disclosure of an,over ten year old claim not .material). Finally, the post-trial postings mentioned in the dissent do not alter the test. Even if the post-trial postings were relevant and material, the other two prongs of the De La Rosa test must be met.

      . If Mr. Taylor had intended to be a stealth juror leading a runaway jury, he did a poor job of concealing it by providing answers in the questionnaire that he was a 28-year former smoker now "clean” for five years, mentioning his many attempts to quit smoking, and acknowledging his family members who smoked or who he believed were adversely affected by smoking. Cf. John Grisham, The Runaway Jury (1996) (a work of fiction where a prospective juror actively hid his past and hid strongly held beliefs in order to be selected as a juror and influence a substantial verdict against a tobacco company).

      . We also distinguish the situation here from R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473 (Fla. 1st DCA 2014), Unlike in Hiott, the jury here was not misled by the trial court or counsel regarding the reduction of compensatory damages. In fact the jurors here were repeatedly told that if they returned a verdict on the two fraud counts then damages could not be reduced by the percentage of fault attributed to the decedent.

      . Even using the typical test for accrual of a cause of action for a latent or "creeping disease," the cause of action here likely accrued by September or October 1996, when Mrs. Allen was diagnosed with early COPD and recommended to undertake smoking cessation treatment. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936-37 (Fla. 2000); Ciccone, 190 So.3d at 1042-46 (Polston, J., dissenting). A follow-up exam on November 18, 1996, specifically fied her early COPD to continued tobacco use.

      . Other than the adoption of gender neutral language in 1997, this statute has not been altered since it was, adopted in Chapter 72-35, Laws of Florida; so the applicable year of section 768.20 is not at issue.

      . Additionally it would arguably be inequita- ' ble to subject the Appellee to the higher burden and potentially lower damages of the revised punitive damages statutes, when Mrs. Allen would have proceeded under the old statutes had she survived.- The Florida Supreme Court’s holding in Martin v. United Security Services, Inc., 314 So.2d 765 (Fla. 1975), one of the first cases interpreting the then new Wrongful Death Act, is instructive, there the Court allowed punitive damages in a wrongful death case holding, “We see no reason why United Security should escape possible liability for punitive damages merely because its employee killed rather than injured her.” Id. at 772.

      . Of course, one can argue based on the available circumstantial evidence that Taylor’s questionnaire answers did in fact conceal his "true opinion.” But given the capricious nature of personal opinions, a party asserting that new information casts doubt on a juror's expression of opinion at jury selection should be required to interview the juror.

      . I recognize that the trial court did not rely on this basis in denying Appellants’ motion to dismiss Taylor, but we are obligated to affirm "if there is any basis which would support the judgment in the record.” Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999). And the fact that Allen has never made this argument on appeal does not alter this conclusion. See State v. Pitts, 936 So.2d 1111, 1133 (Fla. 2d DCA 2006) (explaining that "tipsy-coachman” rule applies “even if the specific basis for affirmance has not been articulated by the appellee”).

      . The posts specifically read:
      I have finally been released from jury duty. I was the foreman November 3 thru 26th. Tobacco trial, Awarded $18,6M to the plaintiff, (please share and inform others) .,. Tobacco companies have lied to the public- for over 60 years about how bad their products are.... For anyone who doesn’t understand how the tobacco companies can be held responsible, please reread the above facts.... Those who lead others to temptation are as liable as Satan and deserve consequences for their actions as well.

      . ‘‘Ehh’’ is slang and has been defined as “[t]he end all be all word used by teenage males when, speaking to their parents. Used as a response to questions which they do not wish to answer.
      Parent: how was school?
      Son: ehh
      Parent: did you have fun eating with your girlfriend after school?
      Son: ehh.”
      Http://www.urbandictionary.com/defíne.php? term=ehh (last visited Feb. 7, 2017).

      . See Meriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/ leech (last visited Feb. 7, 2017) (defining leeches as - carnivorous • or bloodsucking worms).


source: Caselaw Access Project

author: WINSOR, J.

license: Public Domain

text:
    Lori Michele HOYT, f/k/a Lori Michele Opry-Huber, Appellant, v. Brian Andrew CHALKER, Appellee.
    CASE NO. 1D17-545
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017

      Mark V. Murray, Tallahassee, for Appellant.
    Terry D. Bork, Law Offices of Terry D. Bork, Jacksonville, and H. Matthew Fu-qua, Fuqua & Milton, P.A., Marianna for Appellee.
   WINSOR, J.

Circuit judges constantly face tough choices in family law cases. Among their more difficult decisions is how to allocate timesharing between parents. In this case, a mother appeals one of those difficult decisions. The mother, appellant Lori Hoyt, argues that the trial court should have allowed her to move her two young sons from Florida to Virginia, where the mother and her new husband now live. The trial court refused, finding it was not in the sons’ best interests. Because we conclude the trial court acted within the limits of its broad discretion, we affirm. See Raulerson v. Wright, 60 So.3d 487, 489 (Fla. 1st DCA 2011) (noting application of abuse-of-discretion standard).

Andrew Chalker and Lori Hoyt’s ten-year marriage produced three children. Early on, the family lived in Hawaii, where Chalker served in the Navy. The family was still there in 2010 when the marriage ended. The Hawaii court’s divorce decree provided that the couple’s two sons would live with their father (Chalker) but spend half their summers and alternating major holidays with their mother. The father and the sons later moved to Marianna, Florida, and the mother moved to Virginia with the couple’s daughter. The Hawaiian judgment was eventually domesticated in Florida, where the mother filed the petition at issue.

The mother argued below that a move to Virginia was in the boys’ best interests. She claimed that the father neglected the boys’ unique medical needs- by allowing one son’s condition to relapse and refusing to provide the other son with appropriate medication. She also suggested that Virginia offered better educational opportunities than Marianna, and she offered testimony that the boys indicated they would prefer life in Virginia. •

The trial court ultimately rejected Hoyt’s arguments. It concluded relocation was not in the boys’ best interest, relying in large part on expert testimony that the children were well cared for in Florida and that relocation would harm their relationship with their father. The court also concluded that the boys would benefit from the stability their life in Ma-rianna provided. The court considered the appropriate factors in evaluating the boys’ best interests, and its detailed findings were supported by competent, substantial evidence. See Arthur v. Arthur, 54 So.3d 454, 459 (Fla. 2010) (“[A] best interests determination in petitions for relocation ... must be supported by competent, substantial evidence.”). As in many ' other cases, reasonable judges might have ruled differently, but "our task is only to determine whether the trial court acted outside of the broad discretion the law gives it. See Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003) (“It is well settled that a trial court has broad discretion in child custody matters, and its decision in that regard is reviewed for an abuse of discretion.”). We find no abuse of discretion.

AFFIRMED.

BILBREY and M.K. THOMAS, JJ., CONCUR.

      . The daughter is now an adult and was not part of the proceedings below,

      . The trial court did grant the mother’s separate request for decision-making authority on healthcare issues. Neither party has challenged that aspect of the order.,


author: Klingensmith, J.

text:
    Kandace M. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2111
    District Court of Appeal of Florida, Fourth District.
    October 18, 2017

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Kandace Williams (“appellant”) was charged with burglary of a structure. He appeals the trial court’s order accepting his plea of no contest and imposing a prison sentence. Prior to his plea, appellant was given the right to proceed pro se with the appointment of standby counsel. While the record reflects that appellant utilized the assistance of standby counsel when entering his plea, the court should have renewed the offer of counsel before sentencing. Therefore, we reverse.

During the plea colloquy, appellant stated that he was entering his plea freely and voluntarily. Appellant confirmed that he had an opportunity to discuss the plea with his standby counsel and submitted a plea form signed by appellant, as a pro se defendant, and his standby counsel. After the plea colloquy, the trial court asked appellant, “do you know of any legal reason why I cannot pronounce sentence on you today?” Appellant and State responded, “[n]o.” The trial court immediately moved into the sentencing stage without renewing the offer of assistance of counsel.

“We review appellant’s claim that the trial court failed to renew the offer of assistance of counsel for abuse of discretion.” Birlkey v. State, 220 So.3d 431, 433 (Fla. 4th DCA 2017). “However, case law also suggests that a violation of a defendant’s right to counsel at a critical stage of sentencing is per se reversible error, not subject to a harmlessness analysis.” Id.

“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” Fla. R. Crim. P. 3.111(d)(5). Sentencing is a critical stage requiring the renewal of the offer of counsel. Neal v. State, 142 So.3d 883, 889 (Fla. 1st DCA 2014). Prior to sentencing, “even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.” Hardy v. State, 655 So.2d 1245, 1248 (Fla. 5th DCA 1995); see also Traylor v. State, 596 So.2d 957, 968 (Fla. 1992) (“Any waiver of this right must be knowing, intelligent, and voluntary, and courts generally will indulge every reasonable presumption-against waiver of this fundamental right.”).

Here, the record does not reflect that appellant intended to rely on standby counsel during his sentencing hearing. Therefore, the trial court erred by failing to renew the offer of counsel. See Kepner v. State, 911 So.2d 1256, 1258 (Fla. 4th DCA 2005) (“[T]he court’s failure to renew the offer of counsel prior to sentencing was error requiring reversal and resentencing.”); Bowman v. State, 550 So.2d 544, 544 (Fla. 4th DCA 1989) (“[W]e reverse appellant’s sentence since it was error not to renew the offer of assistance of counsel to him at sentencing.”). As we said in Birlkey:

Sentencing is a critical and often complicated part of the criminal process involving subtleties that may be beyond the appreciation of the average layperson. A defendant who is unfamiliar with the post-conviction process may inadvertently waive a meritorious argument that he or she might otherwise have raised on appeal. Given these intricacies, it is particularly important that a sentencing court be certain that a defendant understands the perilous path he or she traverses by proceeding to sentencing without the benefit of counsel.

Birlkey, 220 So.3d at 435-36.

We cannot presume that appellant would likely have maintained his decision to proceed pro se for his sentencing after a proper colloquy by the trial court. Given that he relied on standby counsel to assist him in understanding and entering his plea, we cannot say there was no reasonable possibility appellant would have declined a renewed offer of counsel for sentencing. See, e.g., C.D.C. v. State, 211 So.3d 357, 360 (Fla. 4th DCA 2017) ("[W]e cannot say no reasonable possibility exists that the error did not contribute to the sentence.”).

Because the trial court failed to renew the offer of counsel to-appellant prior to sentencing, we reverse and remand for the trial court to conduct a new sentencing hearing that includes the offer of counsel at the outset.

Reversed and remanded for resentenc-ing.

Conner and Forst, JJ., concur.


author: PER CURIAM.

text:
    IN the INTEREST OF N.K., a child. S.M.K., Sr., Appellant, v. Department of Children and Families and Guardian ad Litem Program, Appellees.
    Case No. 2D17-3352
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017
    S.M.K., Sr., pro se.
    Meredith K. Hall of Children’s Legal Services, Bradenton, for Appellee Department of Children and Families.
    Sara E. Goldfarb and Wendie M. Cooper, Sanford, for Appellee Guardian ad Litem Program.
   PER CURIAM.

S.M.K., Sr. (“S.M.K.”), appeals an order dismissing a petition for writ of habeas corpus, which this court transferred to the trial court (case number 2D17-423) to determine whether S.M.K. is entitled to a belated appeal from a dependency order that was entered with respect to one of his children, N.K. Because the trial court failed to determine whether S.M.K. is entitled to a belated appeal of the dependency order, we reverse the order dismissing the petition for writ of habeas corpus and remand for further proceedings.

Reversed and remanded.

KHOUZAM, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    PHILIP MORRIS USA INC., Appellant, v. Phyllis BARBOSE, Personal Representative of the Estate of John Barbose, Appellee.
    Case No. 2D16-619
    District Court of Appeal of Florida, Second District.
    October 20, 2017
   BY ORDER OF THE COURT:

Upon consideration of Appellant’s motion for a written opinion/citation filed on August 2i, 2017,

IT IS ORDERED that Appellant’s motion for a written opinion is granted. The decision dated August 18, 2017, is withdrawn and the attached opinion is substituted therefor. Appellee’s opposition to Appellant’s motion is noted. Appellant’s motion for leave to file a reply?-is denied as moot.

No further motions for-rehearing will be entertained in this appeal. .

Attachment

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

PHILIP MORRIS USA INC., Appellant,

v.

PHYLLIS BARBOSE, Personal Representative of the Estate of John Barbóse, Appellee.

Case No. 2D16-619

Opinion filed October 20,2017.

Appeal from the Circuit Court for Pasco County; James R. Stearns, Judge.

Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for Appellant.

George A, Vaka of Vaka Law Group, Tampa; Brent R. Bigger of Knopf Bigger, Tampa; Hendrik Uiterwyk, Paul E. Berg, Andrew Bennett, and Anna Frederiksen-Cherry of Abrahamson & Uiterwyk, Tampa, for Appellee.

PER CURIAM.

We find no merit in the issues raised in this appeal and affirm the judgment below accordingly. With respect to Philip Morris USA Inc.’s. comparative fault argument (raised at § V. B. of Philip Morris USA Inc.’s initial brief), we affirm based on our decision in Philip Morris USA Inc. v. Boatright, 217 So.3d 166 (Fla. 2d DCA 2017), and once again certify conflict with R.J. Reynolds Tobacco Co. v. Grossman, 211 So.3d 221 (Fla. 4th DCA 2017), R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753 (Fla. 4th DCA 2016), and R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015).

KHOUZAM and LUCAS, JJ„ and CAR'ROLL, HUNTER W., Associate Judge, Concur.


author: LUCAS, Judge.

text:
    Freeda Mary SCUDDER, Appellant, v. Rahul SCUDDER, Appellee.
    Case No. 2D16-5655
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017.
    Philip D. Parrish of Philip D. Parrish, P.A., Miami and Lawrence S. Katz of Lawrence S. Katz; P.A., Miami, for Appellant.
    Andrew S, Berman of Young, Berman, Karpf &. Gonzalez, P.A., Miami, for Appel-lee,
   LUCAS, Judge.

. This case raises the occasionally thorny question of subject matter jurisdiction in a divorce proceeding where a family has lived abroad. On May 26, 2016, Rahul Scudder, a commercial airline pilot, filed a petition in the Collier County Circuit Court to dissolve his marriage with Freeda Mary Scudder. In his petition, Mr. Scud-der alleged that he had been a resident of Florida for six months prior to its filing and requested the circuit court to take jurisdiction over the parties and their three, minor children and enter a final judgment dissolving the parties’ marriage and incorporating a marital settlement agreement and parenting plan Mr. and Ms. Scudder had previously executed, u Ms. Scudder filed an answer admitting the alie-gations of Mr. Scudder’s petition and consenting to the entry of the requested final judgment. On July 12, 2016, the circuit court entered a succinct final judgment of dissolution of marriage, in which the court found that it had jurisdiction over the parties and their children and adopted the parties’ proposed marital settlement agreement and parenting plan. In the judgment, the circuit court reserved jurisdiction to enforce the terms of the parties’ agreement and parenting plan.

As it turned out, and in spite of Mr. Scudder’s representations, the threshold question of subject matter jurisdiction was not at all clear at the time the circuit court entered its final judgment. First, although Mr. Scudder alleged in his petition that he was a resident of Florida and filed a copy of his Florida driver’s license as proof, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit Mr. Scudder included with his filings reflected that all three of the couple’s children had resided in the United Arab Emirates (UAE) for the two years immediately prior to the filing of his petition. Indeed, it appears from his UCCJEA affidavit that these children have lived much of their lives in foreign nations—Saudi Arabia, India, the UAE—and had only ever resided in Florida between June and August of 2014. Moreover, many of the documents Mr. and Ms. Scudder filed in the early stages of this Florida divorce proceeding were notarized in the UAE by a United States vice consul. Finally, notwithstanding that the final judgment the circuit court entered referenced that the court took the parties’ testimony, both parties have acknowledged to this court that neither one ever appeared for a hearing prior to the entry of the final judgment; nor does it appear from the record before us that such a hearing was ever noticed or scheduled.

The present controversy began (or, arguably, came to light) in September 2016 when Ms. Scudder removed the minor children from the UAE to New York and thereafter initiated a separate custody action in Nassau County, New York, in which she sought to relocate the children to New York to live with her and her family. From this, a slew of filings in New York and Florida courts commenced. Pertinent to this appeal, Ms. Scudder filed a motion to transfer jurisdiction in the Collier County case to facilitate the New York court’s acceptance of jurisdiction over the parties’ minor children. Mr. Scudder opposed that motion and separately filed a verified motion to enforce the parenting plan in the Collier County case on November 16, 2016. Ms. Scudder then filed a “Verified Petition to Vacate Final Judgment and/or Relinquish Jurisdiction in Response to Motion to Enforce Parenting Plan” in the Collier County case on December 15, 2016. In this verified petition, Ms. Scudder stated that neither she, nor her husband, nor any of their children had ever established a residence in the State of Florida. At all material times, she stated, the family had lived in the UAE. She challenged the circuit court’s initial acquisition and continued assertion of subject matter jurisdiction over the children, arguing that Florida was never the minor children’s “home state” under Florida’s UC-CJEA. See § 61.503(7), Fla. Stat. (2015) (defining “home state” for purposes of jurisdiction as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding”).

The verified motion to enforce was scheduled to be heard on December 20, 2016, and Ms. Scudder attempted to cross-notice her petition for hearing at that same time. Counsel for Ms. Scudder and Mr. Scudder appeared at the hearing without either of their respective clients. No witnesses testified, and the attorneys proffered no evidence beyond referencing what was attached'to their various filings. At the outset of the hearing, Ms. Scudder’s attorney pointed out that the circuit court should first resolve her petition as it raised a jurisdictional issue before proceeding to adjudicate the merits of any controversy. The circuit court initially indicated that it would reserve ruling on the issue of its jurisdiction until a later time, but it would still hear arguments on the motion to . enforce subject to its later determination about its jurisdiction. Both parties proceeded to argue the merits of Mr. Scud-der’s motion to enforce under the assumption that there would be a subsequent hearing on the issue of jurisdiction. But by the end of the hearing, the circuit court apparently became convinced that the parties’ marital settlement agreement and parenting plan sufficiently established its subject matter jurisdiction over the parties’ minor children. Over Ms. Scudder’s objection, and without convening an evi-dentiary hearing, the circuit court entered the order now before us, which granted Mr. Scudder’s motion to- enforce parenting plan and denied Ms. Scudder’s petition. With respect to the issue of jurisdiction Ms. Scudder had broached in her petition, the order stated simply, “The Court finds' that it has Jurisdiction over the Parties and the Minor children.”

In her appeal, Ms. Scudder argues that the circuit court- improperly denied her petition challenging the circuit court’s subject matter jurisdiction. Mr. Scudder concedes that the circuit court committed a procedural error when it denied Ms. Scud-der’s petition without first affording her an evidentiary hearing on her petition. However, he believes that he could present evidence and arguments that would show the' Collier County circuit court was properly vested with subject matter jurisdiction over these proceedings. In his briefing and at oral argument, Mr. Scudder urged us to reverse but to remand this case back to the Collier County Circuit Court to convene an evidentiary hearing so that he can advance his arguments below.

Ms. Scudder asks us to go a step beyond that concession. She argues that the evidence below proved conclusively “that the only State which could exercise jurisdiction over the children’s custody issues is the State of New York.” According to Ms, Scudder, there was no evidence that could have established a Florida residency for the parties or their children under sections 61.021, 61.503(4), and 61.514. Therefore, the Collier County Circuit Court could not have had jurisdiction to adjudicate any part of this family’s divorce proceeding as a matter of law. She maintains that we should not only reverse the circuit court’s order but vacate the judgment of dissolution of marriage in its -entirety, as the evidence would show that the circuit court never had jurisdiction, over any aspect of this marriage or these minor children and its judgment was void ab initio.

She may-prove to be right. It would seem from the limited evidentiary record we have that Mr. Scudder’s assertions, about the Collier County Circuit Court’s initial subject matter jurisdiction—essentially, that notwithstanding anyone’s residency, the parties agreed to it; that Ms, Scudder should be estopped from denying it; and that the alternative of submitting their familial disputes to a court in the UAE was mutually unpalatable—are likely going to prove untenable, Cf. In re D.N.H.W., 955 So.2d 1236, 1239 (Fla. 2d DCA 2007) (holding that because minor child was not a resident of Florida at any point during the six months prior to the filing of the child custody proceeding, the Florida circuit court had no jurisdiction over the child and its orders were void); Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (observing in a custody proceeding that subject matter jurisdiction “cannot be conferred by waiver, acquiescence, or agreement of the parties”); Ruble v. Ruble, 884 So.2d 150, 151-52 (Fla. 2d DCA 2004) (ruling that in spite of wife’s admission- in her counter-petition for dissolution of marriage, Florida circuit court did not have jurisdiction over couple’s child who had resided with wife in California; “although the court may have had personal jurisdiction over the husband and the wife to grant the divorce, the court did not havé subject matter jurisdiction over the custody proceedings under the UCCJA”); Schaffer v. Ling, 76 So.3d 940, 941 (Fla. 4th DCA 2011) (“With limited exceptions, a Florida court has jurisdiction to make an initial child custody determination ‘only if Florida is the child’s home state on the date of the commencement of the custody proceeding' or was the child’s home state within six months before commencement of the proceeding and a parent or person acting as a parent continues to live in the state.’ ” (first quoting Lande v. Lande, 2 So.3d 378, 381 (Fla. 4th DCA 2008); then citing § 61.514(1)(a), Fla. Stat. (2010))).

Nevertheless, those arguments, and the evidence the parties were entitled to present to buttress those arguments, have yet to be given a hearing. Mr. Scudder concedes, and we agree, that the denial of Ms. Scudder’s challenge to the circuit court’s subject matter jurisdiction without affording the parties an evidentiary hearing was error that requires reversal. See Minda v. Minda, 190 So.3d 1126, 1128 (Fla. 2d DCA 2016) (holding that former wife’s motion for relief from default judgment dissolving her marriage in which, she challenged-the circuit court’s subject matter jurisdiction was facially sufficient and remanding “for a formal evidentiary hearing on the motion” (citing In re Guardianship of Schiavo, 800 So.2d 640, 644 (Fla. 2d DCA 2001))); Hirsch v. Hirsch, 136 So.3d 622, 623 (Fla. 2d DCA 2013) (“Because it is not clear from the record whether the trial court had subject matter, jurisdiction to order the Former Husband to change the beneficiary designation of his life insurance policy, we reverse that portion of the order and remand for the trial court to conduct an evidentiary hearing addressing the issue and for further proceedings if necessary.”); Douglas v. Johnson, 65 So.3d 605, 606 (Fla. 2d DCA 2011) (“We must reverse and remand for a full evidentiary hearing 'because the Mother was denied procedural due process—the circuit court did not give her the opportunity to raise and develop the issue of lack of subject matter jurisdiction.”). But we can go no further into the resolution of this jurisdictional quandary because as an appellate court we cannot render the initial factual determinations that still need to be made. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”); Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009) (“Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance.”); see also Cave v. State, 661 So.2d 1213, 1215 (Fla. 1995) (Kogan, J., dissenting) (“At the most fundamental level, it is not an appellate court’s function to engage in belated fact-finding that the trial court has neglected to do”).

Accordingly, we reverse the circuit court’s order and remand for the court to convene, as expeditiously as possible, an evidentiary hearing oh Ms. Scudder’s jurisdictional challenge. See § 61.508 (“If a question of existence or exercise of jurisdiction under [the UCCJEA] is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.”).

Reversed and remanded with instructions.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . For purposes of this appeal, we treat Ms. Scudder's petition as a motion for relief from judgment under Florida Family Law Rule of Procedure 12.540. Cf. Mannino v. Mannino, 980 So.2d 575, 577 (Fla. 2d DCA 2008) (holding that in order to attack a custody judgment collaterally, a litigant must seek relief pursuant to rule 12.540).

      . The order Ms. Scudder appeals was entered the same day as the. hearing and was drafted from a civil form order (followed by two pages of notebook paper) in which the circuit court handwrote its findings and added the word “Agreed” immediately before the form's caption “ORDER.” With respect to the finding we address in this appeal—that is, the’ circuit court’s jurisdiction-—both Mr. and Ms. Scudder acknowledge that the order was not, in fact, agreed to by Ms. Scudder. We would take this opportunity to once again, discourage the use of fill-in-the-blank form orders to resolve substantive controversies such as this one. See Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr., 202 So.3d 939, 941 n.3 (Fla. 2d DCA 2016), That said, and in faimess to the circuit court, it is apparent that the presiding judge was endeavoring to put some kind of a temporary parenting plan in place so that these children would not be subjected to further upheaval as a result of their parents’ disputes. That concern, as commendable as it may be, must still yield to the principle that a court cannot act without subject matter jurisdiction. Cf. Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st DCA 1974) (acknowledging that it is “[ujnquestionably ... the policy of the law of Florida to keep children together in one family circle if at all feasible” but nevertheless affirming order denying custody of oldest child to father where “the oldetst] child was not subject to the jurisdiction of the Florida courts”).


author: SILBERMAN, Judge

text:
    Gerren Joseph WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3036
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bairtow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. •

   SILBERMAN, Judge

In this Anders appeal, we affirm the revocation of Gerren Joseph Washington’s community control and resulting sentence. We remand only to correct two scrivener’s errors in the revocation order.

First, Washington’s appellate counsel pointed out in her Anders brief that the revocation order incorrectly reflects that Washington admitted to the violation of community control instead of accurately reflecting that the trial court found him to be in violation after an evidentiary hearing.

Second, the affidavit of violation alleges a violation of condition 15 of Washington’s community control for failure to remain at his approved residence. However, condition 16 requires him to remain at his approved residence; condition 15 requires him to report to his officer as directed. The affidavit of violation described a violation of condition 16 for failing to be at his approved residence but merely cited the wrong condition number. The State presented evidence that proved and the trial court found that Washington was away from his approved residence in violation of his community control, a violation of condition 16.

A violation of supervision need not be alleged with the same specificity necessary for an information charging an offense, see Hollingshead v. State, 846 So.2d 627, 629 (Fla. 4th DCA 2003), and even a charging document’s error in citation “shall not be ground for dismissing the count or for a reversal of a conviction based. thereon if the error or omission did not mislead the defendant to the defendant’s prejudice.” McMann v. State, 954 So.2d 90, 91 (Fla. 1st DCA 2007) (quoting Fla. R. Crim. P. 3.140(d)(1)). It was clear in this case to all parties and the court that the alleged violation was for Washington being away from his approved residence, a violation of condition 16.

Thus, we affirm the revocation of community control and sentence but remand to correct the scrivener’s error in-the revocation order to properly reflect that the trial court found Washington in violation after a hearing. See Mitchell v. State, 190 So.3d 1135, 1135 (Fla. 2d DCA 2016). In addition, on remand the trial court shall correct the scrivener’s error to show in the revocation order that Washington was actually found in violation of condition 16.

Affirmed and remanded.

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Willie WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3651
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017.
    Willie Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Ed COX, Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2286
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017

      Ed Cox, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, JAY, and M.K. THOMAS, JJ„ CONCUR.


text:
    Jason Bradley SIMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3800
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017
    Jason Bradley Sims, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, JAY, and M.K. THOMAS, JJ., CONCUR.


author: VILLANTI, Judge.

text:
    IN RE ESTATE OF Paula X. ASSIMAKOPOULOS, deceased; and In re Trust Administration of the Paula X. Assimakopoulos Trust U/T/A 4/15/2008. Eva Lana, Appellant, v. Nicolle Assimakopoulos-Panuthos, individually and as personal representative of the estate and as cotrustee of the trust; Gary M., Fernald, as curator of the estate; Alexander P. Alexander; and Plato J. Alexander, Appellees.
    Case No. 2D15-4205
    District Court of Appeal of Florida, Second District.
    October 20, 2017

      Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.
    George J. Felos of Felos & Felos, Dunedin, for Appellees Alexander P. Alexander and Plato J. Alexander.
    Jeffrey A, Eisel and Hamden H. Baskin, III, of Baskin Fleece, Clearwater, for Ap-pellee Nicolle Assimakopoulos-Panuthos.
    No appearance for Gary M. Fernald.
   BY ORDER OF THE COURT:

The “Motion for Rehearing' or in the alternative Motion for Clarification” filed by Appellees Alexander P. Alexander and Plato J. Alexander is denied in all respects. The “Motion for. Clarification and/or Rehearing and for Written Opinion and Certification” filed by Appellant Eva Lana is granted to the extent that the prior opinion dated June 23, 2017, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

VILLANTI, Judge.

In this probate proceeding, Eva Lana appeals the probate court’s order awarding sanctions against her pursuant to section 57.105, Florida Statutes (2015), and two other judgments against her awarding expert witness fees to another party’s attorney and to the curator of the estate. While Lana challenges the sanctions judgment on numerous grounds, we find merit only in her contention that judgment improperly includes an award of expert witness fees. We also find merit in her contention that the expert witness fees awarded to the personal representative’s attorney, Ham-den Baskin, and to the court-appointed curator of the estate, Gary Fernald, were awarded in violation of due process. We therefore reverse the sanctions judgment in 'part-and the judgments in favor of Baskin and Fernald in total. In all other respects, we affirm.

Facts

.While a recitation of the long, contentious, and convoluted history of this, case is unnecessary to our resolution of this case, some background is necessary .to understand our .ruling. The death of Paula X. Assimakopoulos ignited numerous disputes between her two daughters, Lana and Ni-colle Assimakopoulos-Panuthos, and their uncle and cousin, Alexander P. Alexander and Plato J. Alexander. The first dispute centered on where Assimakopoulos’s estate, would be probated. Ultimately, after some not insignificant wrangling, Lana agreed that the Florida courts had jurisdiction to probate the estate. Probate was opened in Pinellas County, Lana and Pa-nuthos were appointed as co-personal representatives, and probate proceedings began. Later, after proceedings became bogged down due to disagreements between the co-personal representatives, Lana was removed as a co-personal representative, although she remained active in the case as a beneficiary.

As the family disputes continued three years after the estate was opened, Lana filed a petition to revoke probate, alleging that the documents initially used to; establish Assimakopoulos’s domicile in Florida were incomplete and falsely presented and that a full review of all of her documents and affairs would show that probate jurisdiction was properly in New York rather than Florida. In response to this petition, the Alexanders and Panuthos filed motions to dismiss, which were granted after an evidentiary hearing. Hence, the petition to revoke probate was denied.

Lana initially appealed the probate court’s order denying her petition; however, shortly after the notice of appeal was filed in this court, Lana filed a motion asking this court to relinquish jurisdiction so that the probate court could entertain a motion to vacate the denial of the petition under Florida Rule of Civil Procedure 1.540. This court granted that motion and relinquished jurisdiction. Lana then filed her rule 1.540 motion, and the probate court held an evidentiary hearing on it. At the conclusion of the hearing, the probate court denied the motion.

Shortly thereafter, the Alexanders filed a motion for sanctions in the probate court under section 57.105(1) based on Lana’s filing of the above rule 1.540 motion, which they asserted was not supported by either the facts or the law, and they noticed their motion for hearing. In preparation for the hearing on this motion, Lana subpoenaed Baskin as the attorney for the personal representative, Femald .as the court-appointed curator of the estate, and her own former attorneys. In response to Lana’s subpoena, Baskin filed a notice of intent to seek an expert witness fee, to which Lana objected. Baskin did not 'file a motion actually seeking a fee, and his “notice” was not set for hearing.

Despite having subpoenaed witnesses for the hearing on the Alexanders’ sanctions motion, Lana did not appear for that hearing. However, since the hearing- had been properly noticed, the probate court went forward, first taking testimony from George Felos, who was counsel for the Alexanders. The Alexanders also presented the- testimony of expert fee witness Deborah Bushnell. When the Alexanders finished their presentation, the court asked Baskin whether he wanted to be heard. At that point, Baskin argued that he was entitled to an expert witness fee for his appearance that day, contending that the “only way” that he could have been subpoenaed was to present expert testimony on fees. The probate court then asked Femald whether he had anything to add. Femald then made an ore tenus “me too” motion for an award of an expert witness fee. The probate court subsequently granted the Alexanders’ motion for sanctions, entered a sanctions judgment in their favor, and -included an expert witness fee for Bushnell in that judgment. The probate court also entered separate judgments in favor of Baskin and Fernald for expert witness fees. Lana has appealed each of these judgments.

Award of Expert Witness Fees to the Alexanders

Lana argues first that the probate court’s decision to include an expert wit-mess fee for Bushnell in the sanctions judgment was improper because the plain language of section 57.105(1) does not authorize such an award. We agree.

Section 57.105(1) provides as follows:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense When initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts. .

As is clear from the plain language of the statute, the sanction permitted, is an award of attorney’s fees only. Costs are. not included. This is in contrast to the plain language of section 57.105(2), which provides for a sanction -of “damages,” measured as the “reasonable expenses incurred in obtaining the order,” when the court finds that an action taken by the opposing party was taken primarily for the purpose of unreasonable' delay. Under subsection (2), costs could be included as part of damages; however, this language is absent from subsection (1), which provides only for an award of attorney's fees.

And indeed, several courts, including this one, have specifically held that an award of sanctions under section 57.105(1) may not include costs. See, e.g., Heldt-Pope v. Thibault, 198 So.3d 650, 652 (Fla. 2d DCA 2015) (affirming award of attorney’s fees under section 57.105(1) but reversing the award of costs because “section 57.105(1) does not provide for the award of costs”); Siegel v. Rowe, 71 So.3d 205, 210 n.2, 214 (Fla. 2d DCA 2011) (reversing cost award under section 57.105(1) against attorneys as unauthorized but affirming it against the party under section 57.041(1)); Jackmore v. Estate of Jackmore, 145 So.3d 170, 170 (Fla. 1st DCA 2014) (reversing award of costs under section 57.105 because such an award “is not authorized”); Ferere v. Shure, 65 So.3d 1141, 1145 (Fla. 4th DCA 2011) (stating that an award of costs is not permitted under section 57.105(1)); Santini v. Cleveland Clinic Fla., 65 So.3d 22, 36 (Fla. 4th DCA 2011) (same); Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (same). Hence, to the extent that the sanctions judgment against Lana includes an award of costs, it was patently improper.

And, as Lana properly points out, expert witness fees are taxed as costs. Section 92.231(2), Florida Statutes (2015), provides, in pertinent part:

Any expert or skilled witness who shall have testified in any 'cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs.

(Emphasis added.) Further, the Florida Supreme Court has specifically held that “expert witness fees ... may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney’s fees.” Travieso v. Travieso, 474 So.2d 1184, 1186 (Fla. 1985) (second emphasis added). Hence, the fee charged by a lawyer to appear as an expert witness is considered a cost, not an attorney’s fee, and it is awardable only when costs are properly awarded.

Here again, as noted above, section 57.105(1) provides only for an award of attorney’s fees—not costs. Therefore, the sanctions judgment awarding attorney’s fees and costs to the Alexanders must be reversed to the extent that it purports to award $2770 in expert witness fees to Bushnell because that award constitutes an award of costs, which is impermissible under section.57.105(1).

In defense of the trial court’s award, the Alexanders point to several cases in which it appears. that an award of costs was affirmed under section 57.105, However, several of the cases to which they point do not clearly hold that costs are recoverable under section 57.105(1). For example, in Wells v. Halmac Development, Inc., 184 So.3d 620, 622 (Fla. 3d DCA 2016), the issue on appeal was whether prejudgment interest should have been awarded on the attorney’s fee award—not whether costs were properly awarded. While the attorney’s, fees had apparently been awarded under section 57.105, the opinion notes that $1409.77 in costs and $7200 in expert witness costs were also included in the judgment. Id. However, the discussion- of the award under section 57.105(1) does not mention the costs or expert witness fees, and the party recovering the' fees and costs was also the prevailing party in the appeal and so would have been entitled to an award of costs under section 57.041(1). Id. at 622-23. Therefore, it is not clear that the Wells decision truly stands for the proposition that costs are recoverable under section 57.105(1).

Similarly, in Indemnity Insurance Co. of North America v. Chambers, 732 So.2d 1141, 1142 (Fla. 4th DCA 1999), the trial court granted defendant Tetra Pak’s motion to dismiss and found that it was entitled to an award of‘“attorney’s fees under section 57.106(1).” The trial court also awarded Tetra Pak its expert witness fees, but the basis for this award is not identified in the opinion. As in Wells, Tetra Pak was the prevailing party and would have been entitled to an award of costs under section 57.041(1). Thus, the court’s opinion does not clearly affirm an award of costs under section 57.105(1).

Likewise, in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66, 68-69 (Fla. 1st DCA 2006), the trial court awarded “costs and fees” under section 42 U.S.C. § 1988 and also granted “57.105 fees.” The issue -on appeal was whether the award was proper under section 57.105 when no twenty-one-day notice was given. Id. at 69. The First District first-discussed the “award of-section 57,105 fees.” Id. at 70. It found that the award under section 57.105 was supported by the record, but the opinion, did not specify whether it was an award of fees only or both fees and costs. Id. In its conclusion, the court reversed the “award of attorney’s fees and costs under 42 U.S.C. § 1988” and affirmed “the award under section 57.105(1).” Id. at 72. Hence, it is not entirely clear .from the text of the opinion .whether any award .of costs was actually made under 57.105(1).

Importantly, none of these nonbinding cases from our sister courts clearly award costs in violation of the plain language of section 57.105(1). Instead, it is unclear in each case whether the costs were imposed under section 57.105(1) or on some other basis. Therefore, we do not beliéve that our ruling conflicts with the actual result in any of those cases.

However, two cases cited by the Alexanders do contain language that appears to affirm an award of costs under section 57.105(1). In Martin County Conservation Alliance v. Martin County, 73 So.3d 856 (Fla. 1st DCA 2011), the appellate court dismissed an appeal and then, on its own initiative, awarded sanctions under section 57.105(1).. While the decision repeatedly states that Martin County is entitled to recoup its attorneys’ fees under section 57.105(1), see id. at 857, 858, at the end of the opinion, the court awards both attorneys’ fees and costs under the authority of section 57.105(1), id. at 865. This award is at odds with the plain language of the statute as well as the First District’s subsequent decision in Jackmore.

Likewise, in Smith v. Viragen, Inc., 902 So.2d 187, 191 (Fla. 3d DCA 2005), the court affirmed an award of both attorney’s fees and costs, noting that it need not distinguish between the amounts awarded under section 895.01, Florida Statutes, and section 57.105 “because the entire award could have been made pursuant to section 57.105 alone.” As in Martin County, the award of costs on this basis conflicts with the plain language of section 57.105.

While we recognize the decisions in Martin County and Viragen, neither of these cases leads us to conclude that an award of costs is proper under section 57.105(1). Instead, we follow the plain language of section 57.105(1), as well as our own prior binding decisions in Heldt-Pope and Siegel, and hold that the award of expert witness fees as a cost under section 57.105(1) was improper. Accordingly, we reverse the sanctions judgment in favor of the Alexanders to the extent that it awards expert witness fees as a cost. We also certify conflict with Martin County and Viragen on this point.

Award of Expert Witness Fees to Baskin and Fernald

Lana also argues that the probate court erred by awarding “expert witness fees” in separate judgments to both Baskin and Férnald in violation of due process. We agree and reverse both of these judgments for several reasons.

First, entry of these, judgments violated due process because neither Lana nor anyone else was notified that these claims would be considered at the sanctions hearing. While it is true that Baskin filed a “notice of intent” to seek an expert witness fee under Florida .Rule of Civil Procedure 1.390, that rule requires .that all parties “be served with notice, of any hearing to determine the fee.”- It is undisputed that there was never any notice that Bas-kin’s fee “notice” would be considered at the hearing on the Alexanders’ motion for sanctions. And when a court considers issues not noticed for hearing, the court denies the litigant due process, and any ensuing order or judgment must be reversed. See, e.g., Barile v. Gayheart, 80 So.3d 1085, 1087 (Fla. 2d DCA 2012); Minda v. Ponce, 918 So.2d 417, 421-22 (Fla. 2d DCA 2006) (holding that due process was violated when the court considered issues not noticed for hearing in addition to those issues that were properly noticed); Golden v. Bass, 194 So.3d 1080, 1082 (Fla. 1st DCA 2016) (holding that a court violates due process when it considers issues not noticed for hearing). For this reason alone, the probate court erred by hearing, considering, and disposing of Baskin’s “notice of intent to seek expert witness fees,” which had not been noticed or set for hearing.

Likewise, the court’s consideration of Fernald’s ore tenus “me too” motion for an expert witness fee violates due process. Not only was such motion not noticed for hearing, but it had not even been made before the hearing. Entry of judgment bn a motion never made, never served upon the opposing party, and never noticed for hearing .patently violates due process. See, e.g., Herman v. Herman, 565 So.2d 835, 835 (Fla. 3d DCA 1990) (“Fundamental concepts of due process require a party seeking [affirmative relief] to file a written pleading and provide appropriate notice to all parties concerned.”); Clearvalle, Inc. v. Cohen, 561 So.2d 1354, 1354 (Fla. 4th DCA 1990) (holding that order granting an ore tenus, ex parte motion for default made with no prior notice to any party violated due process). Hence, the judgment in favor of Fernald on this ore tenus, ex parte motion must too be reversed.

Second, in addition to reversal on due process grounds, the judgments in favor of Baskin and Fernald must be reversed because rule 1.390—under which Baskin explicitly and Fernald implicitly proceeded—does not authorize an award of fees under the circumstances presented here. Rule 1.390 is entitled “Depositions of Expert Witnesses,” and it provides for a fee to an expert witness whose deposition is taken. Neither Baskin nor Fernald were deposed. Therefore, neither was entitled to an expert witness fee under this rule.

In this appeal, Baskin argues for the first time that his judgment should be affirmed because he was entitled to the fee under section 92.231, Florida Statutes (2015). Notably, this was not the basis asserted for the award in Baskin’s “notice of intent” to seek a fee, nor was it argued at the hearing. Further, section 92.231(2) permits an áward of an expert witness fee only to an expert who “shall have testified in any cause,” and it is undisputed that neither Baskin nor Fernald testified at the sanctions hearing. Therefore, even if section 92.231(2) had been raised as a basis for the award in the probate court, the court could not have properly awarded expert witness fees on that basis since the statutory prerequisites were not met. For this reason as well, the expert witness fee judgments in favor of Baskin and Fernald must be reversed.

Conclusion

In sum, the probate court erred by including Bushnell’s expert witness fees as part of the sanctions judgment entered in favor of the Alexanders under section 57.105(1). To the extent that the final judgment on sanctions in favor of the Alexanders includes this award, it is reversed. The probate court also erred by awarding expert witness fees to Baskin and Fernald in violation of due process and the rules of civil procedure and without any valid statutory basis for such an award. Therefore, we reverse the judgments in favor of Baskin and Fernald in their entirety. We also certify conflict with Martin County and Viragen to the extent that they appear to hold that costs may properly be awarded under section 57.105(1).

Affirmed in part, reversed in part, and conflict certified.

SLEETand SALARIO, JJ., Concur.

      . In her appeal, Lana also challenged numerous other rulings of the trial court related to the entry of the sanctions judgment against her. This court has carefully considered all of those arguments, arid we reject them without discussion:

      . In paragraph 7(d) of the sanctions judgment, the trial court found that Bushnell had testified that her fee for services in this matter . was $2700, However, in paragraph 20 of the sanctions judgment, the trial court ordered that the Alexanders were entitled to recover a "reasonable expert witness fee of .$2,770.” While the amount in paragraph 20 is supported by Bushnell’s testimony at the sanctions hearing, the award of her expert witness fees—whether they be $2700 or $2770—is improper under section 57.105(1). No expert witness fee for Bushnell in any amount should be included in the corrected judgment entered on remand.

      . In their motion for rehearing, the Alexanders urge this court to affirm the award of expert witriess fees for Bushnell by applying the tipsy coachman doctrine to' find that they were the prevailing parties in the proceedings below and thus entitled to an award of costs under section 57.041(1). However, the Alexanders never sought an award of costs in the trial court under section 57.041(1), and the trial court made no factual finding that the - Alexanders were the prevailing parties in these proceedings. Hence, the tipsy coachman doctrine is unavailable in this instance to affirm the award of expert witness fees. See Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (holding that the tipsy coachman doctrine will permit the appellate court to affirm "if there is any theory or principle of law in the record which would support the ruling” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999))); see also Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue.”); Bryant v. Fla. Parole Comm’n, 965 So.2d 825, 825 (Fla. 1st DCA 2007) (same).

      . No such due process concerns affect the judgment on the Alexanders’ sanctions motion, which was properly noticed for hearing. Due process requires notice and an opportunity to be heard. J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060, 1063 (Fla. 2000); Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007). A voluntary absence from a properly noticed hearing does not implicate due process.


text:
    Carol HOLNESS, Appellant, v. AMERICAN AIRLINES and Sedgwick/CMS, Appellees.
    CASE NO. 1D16-5256
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
    Clinton C. Lyons, Jr., of Moran Kidd Lyons Johnson, P.A., Orlando, for Appel-lees.
   PER CURIAM.

Upon review of the parties’ responses to this Court’s order to show cause why this appeal should not be dismissed as moot based on the Court’s resolution of case number 1D16-2438, this appeal is hereby DISMISSED.

ROBERTS, RAY, and OSTERHAUS, JJ., CONCUR.


text:
    Eric BERGIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3956
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017.
    Luke Newman of Luke Newman, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.