text:
    Freddie ODOMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1015
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.

AFFIRMED.'


source: Caselaw Access Project

license: Public Domain

text:
    Richard SULLINS, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D17-583
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Orange County, Christi L. Underwood, Judge.

AFFIRMED.


text:
    Emanuel RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4071
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   3.850 Appeal from the Circuit Court for Volusia County, Frank Marriott, Judge.

AFFIRMED.


text:
    Moriya MCNULTY, Appellant, v. Christine BOWSER, Appellee.
    Case No. 5D16-3330
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Bre-vard County, Nancy Maloney, Judge.

AFFIRMED.


text:
    Christopher J. CALLAWAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2210
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   3.850 Appeal from the Circuit Court for Marion County, Jonathan D. Ohlman, Judge.

AFFIRMED.


text:
    NORTH SHORE AT LAKE HART HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit Corporation, Appellant, v. FIRSTSERVICE RESIDENTIAL FLORIDA, INC., a Florida Corporation; Cheryl Chase; Daniel Ellis; and Rosemary Meister, Appellees.
    Case No. 5D17-1634
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

AFFIRMED.


text:
    Rayvond WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-85
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Marion County, Anthony M. Tatti, Judge.

AFFIRMED.


text:
    Robert SIELING and Phyllis Sieling, Appellants, v. FORD MOTOR COMPANY, Appellee.
    Case No. 5D16-3713
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Fla-gler County, Scott C. Dupont, Judge.

AFFIRMED.


text:
    H.P., Father of H.P., Jr., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-2373
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 25, 2017
   Appeal from the Circuit Court for Marion County, Gary L. Sanders, Judge.

AFFIRMED.


text:
    Anthony Wilson DIEBOLD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3870
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Bre-vard County, Morgan Laur Reinman, Judge.

AFFIRMED.


text:
    Corey Randy Jean IRIZARRY, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D16-4076, 5D16-4077
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Her-nando County, Daniel B. Merritt, Jr., Judge.

AFFIRMED.


text:
    HYUK SONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3701
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
   Appeal from the Circuit Court for Volu-sia County, Terence R. Perkins, Judge.

AFFIRMED.


text:
    Meegan KIDD n/k/a Meegan Hyatt Alphin, Appellant, v. Jon KIDD, Appellee.
    Case No. 5D17-1147
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Non-Final Appeal from the Circuit Court for Brevard County, Christina Serrano, Judge.

AFFIRMED.


text:
    David ALEXIS, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION as Trustee FOR the REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST SERIES 2006-NC2, ASSET-BACKED PASS-THROUGH CERTIFICATES, Appellee.
    Case No. 5D17-351
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Bre-vard County, John Dean Moxley, Jr., Judge.

AFFIRMED.


text:
    Jeffrey A. BRICKER, Appellant, v. Lourdes V. SAVINON, Appellee.
    Case No. 5D17-180
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Volu-sia County, Karen Adams Foxman, Judge.

AFFIRMED.


text:
    Raul TAMAYO, M.D., Michael Batson, Personal Representative of the Estate of Charles Lee Batson, Sr., and Miguel Burgos, M.D., Appellants, v. HYGEA HOLDINGS CORP. and Chaker Chuck Dahan, M.D., Appellees.
    Case No. 5D16-4218
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Non-Final Appeal . from the Circuit Court for Orange County, Alice Blackwell, Judge.

AFFIRMED.


text:
    EXCELLENCE HOLDING, LLC, Sarah Boughanmi Gomez, BMS Real Estate, LLC, and LD Group America, Inc., Appellants, v. Gennadi ZELDOVICH, Alexander Giller, Ellen Rachel Giller and Ralph Taxi Corporation, Appellees.
    Case No. 5D16-3694
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.

AFFIRMED.


text:
    Noel MATOS and Brunilda Matos, Appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, not individually but as Trustee FOR PRETIUM MORTGAGE ACQUISITION TRUST, Mortgage Electronic Registration Systems, Inc., etc., et al., Appellees.
    Case No. 5D16-3188
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Osceola County, Robert J. Pleus, Jr., Senior Judge.

AFFIRMED.


text:
    Renee RUFF, Appellant, v. Dr. Florin GADALEAN, Nephrology Associates of Central Florida, P.A., Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital East Orlando, Dr. Edwin Martinez and John Doe, Appellees.
    Case No. 5D16-1489
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

AFFIRMED.


text:
    Kenneth J. THOMAS, Appellant, v. Department of Revenue o/b/o Nifa E. RANDALL, Appellee.
    Case No. 5D16-548, 5D16-2870
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Orange County, Bob Leblanc, Judge.

AFFIRMED.


text:
    Anne Marie TOMPKINS, Appellant, v. BANK OF AMERICA, N.A., Countrywide, Law Offices of David J. Stem, Attorney Vivien Lurlene, Town & Country Realty of Deland, Inc., Realtor Jeff Bolza, Magma Recovery Services, Inc., Mickey Meredith, et al., Appellees.
    Case No. 5D16-3883
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 31, 2017
   Appeal from the Circuit Court for Volu-sia County, Randell H. Rowe, 111, Judge.

AFFIRMED.


text:
    Brian GEOGHEGAN, Appellant, v. DYCK-O’NEAL, INC., Appellee.
    Case No. 5D17-820
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Volu-sia County, Christopher A. France, Judge.

AFFIRMED.


text:
    Shequette THOMPSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-606
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Administrative Appeal from the Department of Children and Families.

AFFIRMED.


text:
    Kevin D. CLARK, Appellant, v. U.S. BANK NATIONAL ASSOCIATION Successor By Merger to the Leader Mortgage Company, Mortgage Electronic Registration Systems, Acting Solely as a Nominee for Citizens Home Loan, Inc., et al., Appellees.
    Case No. 5D16-2961
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Bre-vard County, Lisa Davidson, Judge.

AFFIRMED.


text:
    Jefferson D. LONG and Susan A. Long, Appellants, v. WELLS FARGO BANK, N.A. as Trustee FOR the MASTR ASSET BACKED SECURITIES TRUST 2007-NCW MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-NCW and Suncoast Schools Federal Credit Union, Appellees.
    Case No. 5D16-2757
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Her-nando County, Donald E. Scaglione, Judge.

AFFIRMED.


text:
    Wilson A. KNOTT, Derivatively as Shareholder of 11100 East Colonial, Inc., Appellant, v. Robert G. DELLO RUSSO, 11100 East Colonial, Inc., Howard C. Barton, Diane M. Dello Russo and Del-Air Heating, Air Conditioning & Refrigeration, Inc., Appellees.
    Case No. 5D17-132
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Orange County, Alice Blackwell, Judge.

AFFIRMED.


text:
    Alvin WOLLISTON and Barbara Wolliston, Appellants, v. Alecia READING, Appellee.
    Case No. 5D16-3446
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Osceola County, Kevin B. Weiss, Judge.

AFFIRMED.


text:
    Obdulla ANDERSON, as Personal Representative of the Estate of Herbert M. Anderson, Appellant, v. WOODLANDS EXTENDED CARE, INC. d/b/a Woodland Terrance Extended Care Center, Wecre Deland, LLC and Morris Esformes, Appellees.
    Case No. 5D16-2292
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2017
   Appeal from the Circuit Court for Volu-sia County, Sandra C. Upchurch, Judge.

AFFIRMED.


author: Levine, J.

text:
    BOARDWALK PROPERTIES MANAGEMENT, INC., a foreign corporation doing business in Florida, Appellant, v. EMERALD CLINTON, LLC, a Florida limited liability company and Emerald Palms GP, LLC, a Florida limited liability company, Appellees.
    No. 4D16-3818
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    John H. Pelzer and Richard W. Epstein of Greenspoon Marder, P.A., Fort Lauder-dale, for appellant.
    Stephen F. Rosenthal and Robert C. Josefsberg of Podhurst Orseck, P.A., Miami, for appellee Emerald Clinton, LLC.
   Levine, J.

The issue presented for our review is whether the arbitrator exceeded the scope of the arbitration clause which was part of the operating agreement. The parties disagreed on whether to sell their property, so the matter was submitted to arbitration pursuant to their operating agreement. The arbitrator ordered the sale and also determined each party’s respective ownership interest in the property. We find that by determining the issue of ownership, the arbitrator exceeded his powers by going beyond the authority granted by the parties within the operating agreement.

Appellant, Boardwalk Properties Management, Inc., and appellee, Emerald Clinton, LLC, are members of Emerald Palms GP, LLC. Emerald Palms is the sole general partner of Emerald Palm Apartments Limited Partnership, which owns the Emerald Palms Apartments.

As members of Emerald Palms GP, the parties were subject to its operating agreement, which included the following relevant provisions:

3.1.2 Notwithstanding any provision of this Operating- Agreement ... to the contrary, any management or operational decision which has or may have a material effect upon the affairs, activities or business of the Company or the Partnership or the purpose for which it was formed shall require the unanimous consent of all Members. Such decisions shall include, but not be limited to, the following:
3.1.2(e) Making, executing or delivering any deed, long term ground lease, contract to sell or otherwise convey any Company or Partnership property, or any mortgage, assignment or encumbrance of Company or Partnership Property; ,
3.1.2(k) Any material or substantial matter affecting the business or operation of the Company or the Partnership or the interests of the Members.
In the event all Members cannot‘reach an agreement on such decision, any member may submit the decision to arbitration pursuant to Section 15.4.
15.4 Arbitration. In the event the Members are unable to agree upon any matter or matters arising under this Operating Agreement which require unanimous approval, the Members shall, within three (3) days, agree upon one Person to act as arbitrator. In the event the Members are unable to agree upon the Person to act as arbitrator, the Members shall submit or either Member may submit the matter to the American Arbitration Association for resolution in accordance with the commercial arbitration rules. The decision of an arbitrator shall be final and .binding on the Members. The costs and expenses of arbitration shall initially be paid by the Company. The prevailing party in the arbitration shall be entitled to receive compensation for its attorney fees and costs with respect to the arbitration from the other Member, and the other member shall also reimburse the Company for the costs of the arbitration. Any such arbitration shall be conducted in Broward County, Florida.

Emerald Clinton wanted to sell the partnership property, but Boardwalk did not and withheld its consent to sell.. Further, Boardwalk claimed to have a 50% ownership interest in the company, whereas Emerald Clinton claimed Boardwalk had only a 10% ownership interest.

Because there was not unanimous consent to sell the property, the matter was referred to an arbitrator. Boardwalk argued in pre- and post-arbitration memo-randa that any determination of ownership interest was outside the arbitrator’s jurisdiction. Despite these arguments, the arbitrator ordered the sale of the property and additionally concluded that Emerald Clinton was a 90% owner and Boardwalk was only a 10% owner of the company. The arbitrator found the issue of ownership was “inextricably intertwined” with the issue of the sale of the property. The arbitrator ordered the sale with the proceeds to be distributed in accordance with the parties’ ownership interests.

The arbitrator 'entered an order stating that “the Arbitrator, as well as the parties themselves, all recognize that the issues of the sale of the Property and a determination of the partiest’]. respective ownership interests in Emerald Palms GP are inextricably intertwined, Section 15.4 of the Operating Agreement clearly vests in the Arbitrator the right to order a sale .of the Property.” Within the same order, the arbitrator recognized that “Boardwalk, has repeatedly questioned the authority of the Arbitrator as part of this arbitration process to decide the percentage ownership of the Members of Emerald Palms GP, LLC in the subject property.” Further, the arbitrator ordered that 40% of the proceeds from the sale be held in escrow because there was a dispute regarding the arbitrator’s jurisdiction in this case.

Boardwalk subsequently filed a motion and petition to vacate the arbitral award in the circuit court. Boardwalk again argued that it never consented to'the arbitrator adjudicating the ownership interests; The circuit court entered an order denying Boardwalk’s motion to vacate and granted Emerald Clinton’s motion to confirm the arbitral award. •

We review de novo' the issue of whether the trial court correctly concluded that the 'operating agreement gave the arbitrator jurisdiction to decide the ownership interest. Am. Fed. of State, Cty. v. Miami-Dade Cty. Pub. Schs., 95 So.3d 388, 390 (Fla. 3d DCA 2012).

Generally, “[a] very high degree of conclusiveness attaches to an arbitration award. Courts do not review findings' of fact contained in an arbitration award or attempt to substitute their judgriient for that of the arbitrator.” Commc’ns Workers of Am. v. Indian River Cty. Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004) (citation omitted). “The trial court’s decision to confirm or vacate the arbitration award is reviewed for an abuse of extremely limited discretion.” Id.

Whether an arbitration award can be vacated is governed by section 682.18(1)(d), Florida Statutes (2016), which states, “Upon motion of a party to an arbitration proceeding, the court shall vacate an arbitration award if ... [a]n arbitrator exceeded the arbitrator’s powers ....” “[A]n arbitrator exceeds his or her power under subsection (c) when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration.” Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1329 (Fla. 1989).

Additionally, section 682.13(1)(e), Florida Statutes (2016), states, “Upon motion of a party to an arbitration proceeding, the court shall vacate an arbitration award if .,. [t]here was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under s. 682.06(3) not later than the beginning of the arbitration hearing ....”

We find Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999), to be instructive. In Seifert, the homeowners, a husband and wife, contracted with the defendant for the construction of a home, and the husband died as a result of carbon monoxide poisoning after his car was left running in the garage. The wife sued the defendant for wrongful death. The defendant sought to compel arbitration and argued that the contract required arbitration. The arbitration clause at issue stated, “Any controversy or claim arising under or related to this Agreement or to the’Property ... shall be settled and finally determine^ by mediation or binding arbitration ....” Id. at 635.

The Florida Supreme Court stated first that “arising under or related to” are broad arbitration clauses but there must be some “nexus between the dispute and the contract containing the arbitration clause.” Id. at 638. The court concluded that no nexus existed between the dispute and contract: the contract dealt with the “sale and purchase of a house” — not tort. Id. at 641. Thus, “[t]here is nothing within these provisions to indicate that either party intended to include tort- claims for personal injuries arising under the common law within the scope of either the contract in general or the arbitration provision in particular.” Id.

Similarly, in this case, nothing in the operating agreement indicated that either party intended to include percentage of ownership interests within the scope of the arbitration provision. Boardwalk’s percentage of ownership interest in the property was “not pertinent to the resolution of the issue submitted to arbitration,” that being whether to sell the property. See Schnurmacher, 542 So.2d at 1329. Since the operating agreement required the parties’ unanimous consent, whether Boardwalk had a 50%, a 10%, or even a 1% interest would be of no matter since if Boardwalk disagreed with the sale, the parties would not be in unanimity. Without unanimous consent, there could be no sale, and that issue — whether to sell or not — was explicitly agreed to in the operating agreement as one of the grounds within the jurisdiction of the arbitrator. Therefore, because the amount of ownership interest was.not pertinent to the decision whether to sell the property, the issues were not “inextricably intertwined.”

'In summary, we find that the trial court erred in not vacating that portion of- the arbitral award which excéeded the arbitrator’s authority by determining ownership interests. We reverse and remand with instructions to vacate those parts of.the arbitrator’s order in accordance with this opinion. We affirm the trial court’s order to the extent it denied vacatur as to the remaining portions of the arbitrator’s order.

Affirmed in part, reversed in part, and remanded with instructions. . ■

Warner and Damoorgian, JJ., concur.

      . This statute was amended in 2013. Prior to 2013, this provision was section 682.13(1)(c).


author: May, J. Conner, J.,

text:
    Heather IRIMI, as Personal Representative of the Estate of Dale Moyer, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees.
    No. 4D15-759
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]

      Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale, and Bard D. Rockenbach and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Jason T. Burnette of Jones Day, Atlanta, GA, and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellees.
   On Motion for Rehearing and Rehearing En Banc

May, J.

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

“The right to ask potential jurors questions during voir dire about bias remains one of the most important, and often overlooked, protections against jury discrimination.” Tania Tetlow, Granting Prosecutors Constitutional Rights to Combat Discrimination, 14 U. Pa. J. Const. L. 1117, 1143 (2012). That protection is challenged in this appeal from an order granting a new trial.

The plaintiff argues the trial court erred in granting a new trial based on the court’s failure to allow the defendants to question several members of the jury venire before excusing them for bias. She also asks us to limit any new trial to the issue of entitlement to punitive damages in the event that we affirm the order granting a new trial. We disagree on both points and affirm.

At the start of jury selection, the court gave the venire an abbreviated statement of the ease informing them that the plaintiff claimed the decedent’s death was caused by smoking cigarettes, and that the tobacco defendants denied the claim. During voir dire, plaintiffs counsel asked:

And so we all come in with certain feelings about cigarettes, certain feelings about smokers; and what I would like to know is, without hearing anything more than that, is there anybody here — and I want to go in groups again — but by a show of hands, anybody who thinks that a person who smokes cigarettes for a long period of time, say 40 or 50 years, gets a disease and ultimately dies from that disease, is there anybody that thinks that their family should not be allowed to bring a lawsuit against the tobacco companies?

Several jurors raised their hands. Plaintiffs counsel then asked each juror individually if their belief was strongly held, and if they had a reasonable doubt whether they could set that feeling aside. Before the trial court recessed for lunch, defense counsel asked the court to “admonish the panel if they have a strongly held view about some of these issues, to raise their hand so that we can address it in private, as opposed to sharing it with the whole group[.]” The court took the matter under advisement, but later overruled the objection.

When jury selection resumed, and before defense counsel had an opportunity to question the jurors, the following transpired.

The Court: Counsel, I don’t know where we go from here, to be candid with you. The state of the law in Florida as I understand it, and you can correct me, I don’t see how you rehabilitate certain jurors.
And I know we’re trying to get a panel. We have a big panel here. I think, and I know the question was objected to. But I think it’s a fairly innocuous question when the juror is asked if they believe a smoker or a family of a deceased smoker has a right to sue, and it’s followed up by is that a strongly held belief, and is that something you can set aside.
I don’t see how you can rehabilitate those jurors. The flip side of the coin woujd be if the defense comes up and their question, you know, is that same type of question; how many of you believe that if a tobacco company is involved'selling cigarettes and somebody has a tobacco-related disease, you know, alleged from smoking, that it’s just a question of how much you would ask for damages.
I think the other side of the coin is fair game as well, and they would be excused automatically. I just don’t know how you can rehabilitate jurors who answer that question. And I know the defense hasn’t even asked one question of the jury. But I don’t know how you — assuming that you ask them if there’s a reasonable doubt in the mind of the Court, they’re going to be excused. I don’t see how you can rehabilitate those jurors. It would be my thought just to excuse them.
Defense Counsel: Well, Your Honor, first off, I think you’re right about your understanding of rehabilitation and the availability of it under Florida law.
Our position is pretty simple. We just want a shot to examine the whole panel. It’s not that we think Mr. Hammer may have succeeded in making a cause record for this morning could be rehabilitated. But it’s just the interplay of all the different individuals is something that helps our examination as a whole. I think you’re right, Your Honor, and there were certainly some people this morning who articulated views that cannot be rehabilitated. Our preference is to leave the whole panel intact so that we-get a chance at least to talk to the whole venire, with the acknowledgment that obviously some people have expressed views already for which a record has been made. They probably do have a bias that would result in exclusion.
Plaintiffs Counsel: If it please the Court, Your Honor, I understand defense counsel’s request, and I don’t disagree with his requesting the right to discuss this with the panel as a whole. I understand that. I’m only concerned with the Court’s interest in getting the jury.
As far as time is concerned, and the likelihood of having enough jurors in this panel, if we "can’t get a jury out of this panel, is there any way whére we can get another handful of jurors to back this group up?
Because by my counts, we’re treading on somewhere' under 50 remaining jurors right now, based on those that volunteered in a' way that is likely to be subject to cause.
And 'then with 18 challenges, assuming that some more folks will reveal themselves, I’m wondering if, Your Honor, should we be planning on getting more jurors? I don’t know what" Your Honor’s pleasure is in that regard.
The Court: So anyway:' So it’s not — I haven’t tried one of these in a-while, but I guess it’s not unexpected that you’re going to have issues with the selection process. So, you know, we’ll do as much as we can". I’m not trying to make you speed up, Mr. Hammer, on your questioning, but my thought also is that I can’t get this courtroom every day. And, you know, if we come back,'and having jurors questioned in ,my courtroom, I mean, we’re maxed out at about 46 to 50 jurors, depending how many we .put in there.
Plaintiffs Counsel: Judge, what I was thinking, because of that — and I agree with the Court. Under Florida law, there’s quite a few jurors that indicated they couldn’t be fair. Couldn’t set that aside.
I think out of abundance of caution,'you ought to excuse them for cause. Because it will move things along a lot faster. Because they won’t be answering questions, won’t be wasting time talking to them. Because we know they’re going to be excused anyway.
So I would request this Court to strike those individuals for cause, that we feel have risen to that level, and I counted roughly about 30 people. And I would be happy to go through those real quick, and I think it’s fair to strike those. Then that way I think I can move a lot quicker through the remaining papel. Because otherwise I’m going to be spending time talking to all them.
The Court: Why?
Plaintiffs Counsel: Because inevitably they’re going to answer a question. And I can’t just ignore them. And they’re going to add to the conversation. And, you know, - defense has already raised the point that we don’t want to poison the panel as a whole. I don’t want to risk that, because we are close to getting rid of an awful lot of people.
So rather than take the entire panel—
The Court: How much more questioning do you have? I know you only asked one — very few — the questioning so far has been very, very limited.
Plaintiffs Counsel: Judge, I’ve, gone a little over an hour. .1 understand that. And I asked a series of questions. I anticipate having a couple more hours to go. But, you know, I think if we eliminate some of the people, it’s going to streamline my voir dire quite a bit. Defense Counsel: Your Honor, just one observation. I don’t think there’s any way we finish voir dire today.
The Court: I know there’s not.
Defense Counsel: In fact, I would be surprised if Mr. Hammer is able to finish in the time we have this afternoon.
The Court: That’s my point. Let’s say Mr. Hammer is not — that’s what 1⅛ concerned about — he’s not able to finish today. It’s not going to come to your end. And I don’t really see why we should be keeping all. these people around.
Defense Counsel: I agree, Your Honor. Again, our position is we think that the defendants are entitled to examine the venire as a whole. They’re part of this. They’re part of this group. Sometimes they might chime in. It’s very easy to say “Thank you, juror number whatever, we’ve heard from you. I don’t mean to be rude, but we need to move on.”
So it’s not that we’re going to try to spend time with them, but we want to keep the whole group together.
The other thing is, if we come back and this group sees that 30 people are gone, that’s a pretty good invitation of people to just start saying things to go. We don’t have a good feel for it.
I think what we really want to do here is get through Mr. Hammer’s stuff. I can go, whenever he finishes, I will be shorter than him.' Mr. Woods, Ms. Ruiz, I think will be even shorter than I am. Then we will go through and do all the cause challenges..
I think we have a still good shot if we end up with 25, 30 remaining, and we can pick a jury. But we should know where we stand with this panel sometime Monday morning or by lunch on Monday. And if we need to bring in more jurors, we can do so at that time. But I’m worried — -so, one, I think we have the right to examine the panel as a whole. But, two, if we take 30 people out after one hour of questioning, we can very well encourage people to mass exodus -right out of here and not have anybody left.
So just for the record, our position would be that we keep going, we get as much as we can do this afternoon accomplished, and we can give you a better update on our timing once Mr. Hammer is done.
But for the record, I don’t intend to spend a significant amount of time-with people where everybody is in agreement that a cause record has been made.
The Court: I guess part of my concern is you’re suggesting we keep all these people here, and I understand why you’re concerned about it. And there may be some truth to it, that there’s an interplay. You can ask jurors questions.
But let’s say we come back on Monday, and I’m bringing all these people in so you can have that interplay that you want and I can’t get this courtroom: We have my — my courtroom holds 46 to 50 people. Are you suggesting that you want to leave the people here and bring them back, we’re going to do this in two sessions when you question the jurors? Because I can’t get a big courtroom?
Defense Counsel: I would have to confer with my colleagues over the logistics of it. If we have space limitations on Monday,, maybe we could, come up with a solution for you. But I think fundamentally if that’s what- we had to do, we might have to make arrangements to examine two panels.
-But again, I have not had an opportunity to talk with my colleagues about how we . would approach-the situation.
The Court: Why don’t you go ahead and talk to them now. We will be in recess.
Defense Counsel: Thank you, Your Honor, for the opportunity to let us confer back there in the side room. Our thought would be we get the jurors back in here, start the afternoon session.
Let’s see what Mr. Hammer accomplishes. If he finishes up, we can have a talk this afternoon about whether there is an opportunity to get some jurors out of here before Monday and if we need to make arrangements to be in a smaller courtroom on Monday.
But our thought would be at a minimum, it would be much less conspicuous if we let people go, to do so at the end of the day. I’m not sure we’re all on the same page with respect to the 30 or so people Mr. Hammer mentioned. We may need to argue some of those.
Our thought would be to bring the whole panel back in now, let Mr. Hammer keep going, and we confer again on this at 5:00, at the end of the day today.
The Court: Anything else ... ?
Plaintiff’s Counsel: Judge, our preference would be to go through and excuse those people that clearly meet the cause criteria.
The Court: Thank you. And Counsel, respectfully, that would be my suggestion as well. Let’s just go through this docket and get rid of these jurors who— basically indicated to your question, Mr. Hammer, that they had a strong feeling and that it’s not something they could set aside.
I have my own notes. I’m sure that I might have missed one or two, but I have my own notes.

Plaintiffs counsel began by listing his objected-to venire members. As plaintiffs counsel listed the jurors, defense counsel objected that he should be able to question them first. The trial court excused thirty-one jurors without providing the defense an opportunity to question them. The defense accepted the jury with the exception of its continued objection to the process employed to excuse thirty-one jurors without providing the defense an opportunity to question them.

The trial proceeded. The tobacco defendants argued the trial court was required to instruct the jury that punitive damages are only available for intentional torts— not negligence and strict liability claims. The court agreed. The trial court followed defense counsel’s recommendation and did not include a question concerning whether punitive damages were warranted if the jury found no reliance.

The jury returned a verdict in favor of the plaintiff. It found the plaintiff did not prove the decedent relied on a statement or omission after May 5, 1982, but that he relied on a statement before that date. The jury apportioned the responsibility for the decedent’s death as follows: 14.5% to R.J. Reynolds, 14.5% to Lorillard, 1% to Lig-gett Group, and 70% to the decedent.

The tobacco defendants filed several post-trial motions, including a motion for new trial. They argued the court should grant a new trial because it had “erroneously dismissed jurors for cause in each panel immediately after plaintiffs counsel’s questioning, thus (i) depriving [defendants of the opportunity to orally question the entire venire; and (ii) tainting the remaining jurors’ answers to the [defendants’ voir dire questioning.”

The plaintiff also moved for a new trial to allow the jury to decide the issue of entitlement to punitive damages. The trial court granted the defendants’ motion for new trial based on its dismissal of thirty-one members of the venire without allowing the defense to question them. The court denied all other motions from both parties. From the order granting the new trial, the plaintiff now appeals. The tobacco defendants cross-appeal to preserve issues concerning the use . of the Engle findings.

The plaintiff argues the trial court erred by ordering a new trial on all issues when the court had not erred in dismissing the thirty-one venire members for cause. She claims no party has. an absolute right to examine prospective jurors once the trial court has concluded the jurors cannot be impartial or rehabilitated.

The defendants respond that Florida case law holds that a trial court reversibly errs when it dismisses jurors for cause without allowing the attorneys to conduct voir dire. They argue the trial court erred in dismissing thirty-one jurors for bias without allowing defense counsel to examine them.

We review the trial court’s order granting a new trial for an abuse of discretion. Reffaie v. Wal-Mart Stores, Inc,, 96 So.3d 1073, 1075 (Fla. 4th DCA 2012). We have emphasized that our review is even more limited where the trial court grants a motion for new trial. Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008) (emphasis added) (internal citation and quotation omitted) (“A trial court’s discretion to grant a new trial, is of such firmness that it.would not be disturbed except on a clear showing of abuse.”). For who is in a better position to review an error than the one who makes it?

A trial court should grant a new trial where an examination of the entire case indicates that the error resulted in a miscarriage of justice. § 59.041, Fla. Stat. (2015). When a trial court is deciding whether to excuse a juror for bias, “[t]he test is-whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Matarranz v. State, 133 So.3d 473, 489 (Fla. 2013). While the court may ask questions of the panel members,' “the right of the parties to conduct a reasonable examination of each juror orally must be preserved.” Fla. R. Civ. P. 1.431(b). That right requires counsel for each side to orally examine the panel members' during voir dire. Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002).

“A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses,”. Jackson v. State, 213 So.3d 754, 770 (Fla. 2017) (internal citations omitted).

In its order granting new trial, the trial court cited O’Connell v. State, 480 So.2d 1284 (Fla. 1985). There, the supreme court held the trial court erred in excluding prospective jurors when it first allowed the prosecutor — but not defense counsel — to question them. Id. at 1286-87. This amounted to a due process violation, and warranted a new trial. Id. at 1287; see also Green v. State, 575 So.2d 796, 797 (Fla. 4th DCA 1991) (applying O’Connell and holding the trial court erred in striking two venire members, who doubted their ability to be impartial, without first giving the defendant an opportunity to question them).

The trial court also cited two of our opinions in its order. See Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997); Sisto v. Aetna Cas. & Sur. Co., 689 So.2d 438 (Fla. 4th DCA 1997). Melendez is instructive.

There, we held that trial courts have considerable discretion in determining the extent of venire examination.

[But, t]he court’s failure to allow counsel to inquire into a prospective juror’s potential biases amounts to an abuse of discretion warranting reversal unless it becomes “conclusively clear to- the court after questioning, that there was no reasonable basis to anticipate that the, juror -could return a verdict against the defendant.”

Melendez, 700 So.2d at 792 (quoting Fleckinger v. State, 642 So.2d 35, 37 (Fla. 4th DCA 1994)).

Here, at the outset of the discussion, the trial judge stated: “I don’t' see how you can' rehabilitate those jurors. It would be my thought just to excuse them.” While defense counsel agreed “there were certainly some people .. i who articulated views that cannot be rehabilitated,” it did not acquiesce in the court’s procedure and requested an opportunity to question the venire as a whole. And, the court did not find that it was “conclusively clear” the thirty-one potential jurors could not be impartial.

.. The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.

With that said, we disagree with the tobacco defendants to the extent that their right to question the venire encompassed the use of that process to taint the entire venire. The better procedure would have been to allow the defense to question the thirty-one venire members outside the presence of the entire venire once it became apparent that some or all of them might possess a bias that could not be undone. In this way, the court could ensure that biased members were excused without tainting the entire venire with the bias of those members.

Because a new trial has been granted, we need not address the punitive damage issues raised. Subsequent case law has provided much needed guidance on these issues. See, e.g., Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219 (Fla. 2016). And lastly, we affirm the cross-appeal without further comment,

For the reasons expressed, we affirm the order granting a new trial.

Affirmed.

Gross, J., concurs.

Conner, J.,

concurring in part and dissenting in part.

I concur with the majority to affirm the cross-appeal. However, I respectfully dissent from the affirmance of the trial court’s, order granting a new trial. My review of the record leads me to conclude the trial court did not err in dismissing the potential jurors without affording the defendants the opportunity to ask questions, and the grant of a new trial on a legal issue, rather than a factual issue, was error.

The majority correctly points out that a new trial should be granted to cure a miscarriage of justice and our review of a grant of a new trial is more limited than a denial, requiring a clear showing of abuse. However, we have also said:

While ordinarily the granting of a new trial is within the sound discretion of the trial judge, reversible Only on showing of 'an abuse of discretion, if the ruling is grounded on a question of law, unconta-mindted with factual conflict, the area of discretion in granting a new trial is drastically limited,[ land the appellate court is on the same footing as the trial judge in determining the correct law to be applied.

State Farm Mut. Auto. Ins. Co. v. Gage, 611 So.2d 39, 40 (Fla. 4th DCA 1992) (emphasis added, footnote omitted and citations omitted). Acknowledging a stronger showing is required to reverse a grant of new trial, the Second District has said that “the point being one strictly of law uncontaminated with factual conflict, the area of discretion is drastically diminished if not entirely eliminated.” Florida Power Corp. v. Smith, 202 So.2d 872, 875 (Fla. 2d DCA 1967)) (emphasis added) (quoting Brown v. Fawcett Publ’ns, Inc., 196 So.2d 465, 466 (Fla. 2d DCA 1967)). In Florida Power, the Second District reviewed the grant of a new trial on the contention that a juror gave misleading information during jury selection. Id. Additionally, the court wrote:

The rule is that there must be a reason in law for a trial Judge’s setting aside a verdict and granting a new trial, otherwise the Judge invades the province of the jury.
It is concededly true that a trial Court has broad judicial discretion in the matter of setting aside a verdict -and granting a new trial but it must be predicated upon the proposition that error is shown to have been committed during the trial or some injustice done to the moving party.
A new trial should be granted only when substantial rights have been so violated as to make it reasonably clear that a fair trial ivas not had.

Id. at 878 (emphasis added and citations omitted).

The majority quotes a significant portion of the trial transcript regarding a bench conference discussion of the responses of multiple prospective jurors to the group question posed by plaintiffs counsel. But the details of what happened prior to and after that discussion and the trial judge’s decision to excuse biased potential jurors before giving the defense an opportunity to ask questions are important to the analysis.

Before the . portion of the transcript quoted above, as to each potential juror excused, plaintiffs counsel asked the same series of three questions along the following lines:

. Is your belief a strongly held belief?
Is your belief something you could set aside?
Are your feelings so strong that you have a reasonable doubt as to whether or not you could set asjde those feelings ,in a case like this?

As to the first and third questions, each excused potential juror answered affirmatively, and each answered negatively to the second question.

After the portion of .the transcript quoted above, the trial judge had the plaintiff discuss one-by-one . the potential jurors who responded as such to the three questions posed above. With the first potential juror discussed, the trial court acknowledged that the defense was objecting, to the procedure, but-wanted to know if there were any further objections. As each prospective juror was discussed, defense counsel gave one of-three responses: “no objection,” “same position,” or “same objection.” After hearing, “same objection” a few times, the judge sought clarification:

The Court: When you say “same objection,”- so the record is' clear, I know you are objecting to the procedure, but- you’re not indicating that these jurors — you think these jurors can be ' rehabilitated or anything like that?
Defense Counsel: Correct.
The Court: Thank you.

In other words,,; defense counsel agreed with plaintiffs counsel assertion that each potential juror excused gave responses indicating bias which could not be rehabilitated. The defendants admitted the same at oral argument.

Reviewing the discussion quoted by the majority, defense counsel said the following as the basis for objecting to the procedure:

Again, our position is we think that the defendants are entitled to examine the venire as a whole. They’re part of this.
They’re part of this group.
[W]e want to keep the whole group together.

Additionally, defense counsel expressed concern regarding releasing so many prospective jurors early on in the selection process: “if we come back and this group sees that 30 people are gone, that’s a pretty good invitation of people to just start saying things to go. We don’t have a good feel for it.”

The majority correctly notes that a new trial should be granted to correct a miscarriage of justice. By rule, “the right of the parties to conduct a reasonable examination of each juror orally must be preserved.” Fla. R. Civ. P. 1.431(b). The majority is correct that the right preserved by the rule requires counsel for each side to orally examine the panel members during voir dire. Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002). However, our supreme court has recently reaffirmed that “[a] trial court must excuse a juror where there is reasonable doubt whether the juror is impartial.” Jackson v. State, 213 So.3d 754, 770 (Fla. 2017) (emphasis added) (citing Banks v. State, 46 So.3d 989, 995 (Fla. 2010)). The majority interprets “must excuse” to mean only after both sides have an opportunity to ask questions. But our jury system is so loathe to allow bias and prejudice to seep into the process, that it appears to me that there is no error in dismissing a biased potential juror, once both sides agree the bias exists and cannot be rehabilitated, regardless of whether opposing counsel has an opportunity to question further.

The majority’s reliance on Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997), is puzzling in that it uses a quote from the opinion, which in turn quotes our earlier opinion in Fleckinger v. State, 642 So.2d 35 (Fla. 4th DCA 1994). Fleckinger is actually more controlling for the disposition of this case. In Fleckinger, the trial court excused a prospective juror after questioning by the court but without allowing defense counsel to examine the juror. Id. at 36. The prospective juror stated under questioning by the court that she could not serve because of her religious beliefs. Id. After several questions by the court to see if she would budge from her position, the State moved to excuse her, which the court granted. Id. The defense moved for mistrial, objecting to the procedure. Id. After observing that the record made it “absolutely and unambiguously clear that [the prospective juror] was incapable of reaching a verdict for the state,” we concluded that “[o]nce it became conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant, it was not an abuse of discretion to excuse her.” Id. at 36-37. It appears a parallel situation occurred in this case.

On appeal, as they did below, the defendants argue that they were deprived of the ability to use “group dynamics” to assist in being able to intelligently use peremptory and cause challenges. However, the defendants, in my view, have not sufficiently explained how keeping the excused jurors until they were able to ask questions would have facilitated some group dynamic that would have made questioning more effective in determining which of the remaining jurors should be excused for cause or peremptorily. The trial judge was correctly concerned that keeping biased jurors on the venire ran the risk that one of those jurors could have said something so biased as to be grounds to dismiss the entire venire.

Other than some nebulous and speculative theory that they were deprived of the opportunity to work off “group dynamics,” the defendants have failed to show what harm was suffered. The concern that releasing so many potential jurors early on would invite the remaining potential jurors “to just start saying things to go” did not pan out and was offset by negating the risk that biased potential jurors could pollute the entire venire. It is clear the trial judge would have allowed further questioning if the defendants thought any excused juror could have been rehabilitated. If further questioning would have been requested to determine if rehabilitation was possible, I agree with the majority that individual questioning would have been the better course. However, the record simply does not support the conclusion that the defendants were deprived of a fair trial or that a miscarriage of justice occurred.

Although I am satisfied that the trial judge had second thoughts about the procedure he employed, in my view he did nothing wrong, given the agreement by the defendants that the,, excused jurors were biased and could not be rehabilitated. Having done nothing wrong during the trial, it was an invasion of the province of the jury sworn to try the case, to then take their verdict away after trial.

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


author: Ciklin, J.

text:
    Robert J. BAEHREN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-364
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]

      Carey Haughwout, Public Defender, and Erika-Follmer, Assistant.Public Defender, West Palm Beach-, for appellant,
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee. ■
   Ciklin, J.

Robert Baehren appeals sentences imposed for multiple convictions. Because we agree with his assertion that the trial court impermissibly considered a pending and unresolved charge in making its sentencing determination, we reverse and remand for resentencing before a different judge.

The sentences on appeal correspond to charges brought in December 2013. The defendant pled no contest to most of the charges and was released on his own recognizance until the sentencing, hearing, which was set for three months later in April 2014. The defendant failed to appear for his sentencing hearing and the trial judge ordered a bench warrant to issue. In October 2015, the defendant was apprehended-on the bench warrant. Additionally, the state charged the defendant with one count of-felony failure to appear.

The sentencing hearing took place in January 2016, at which time the felony failure to appear charge was still pending. After some discussion of whether it was permissible, the defendant gave an un-sworn allocution and requested a sentence of one year in the county jail followed by six months in a rehabilitative facility. Despite the fact that the. state requested a five-year prison sentence for the sixty-four year old defendant, the trial court adjudicated the defendant guilty and imposed a ten-year sentence. In pronouncing sentence, the trial court explained:

[T]his is what I believe to be the appropriate sentence given everything involved in your case, including what happened after you entered the plea with regard to the not shomng up. And limiting it to that. But the primary justification is your conduct in this case, your age, your history of convictions, who you are, whether you need to be removed from society.

On appeal, the defendant argues that the trial court erred in considering his failure to appear since it was a pending charge for which a conviction had not been obtained. We agree.

Generally, a sentence within the permissible statutory range is not subject to review, but an exception is made “when the sentence is based on constitutionally impermissible factors, such as unsubstantiated allegations of wrongdoing.” Williams v. State, 193 So.3d 1017, 1018 (Fla. 1st DCA 2016). Whether a trial court violates a defendant’s due process,rights by considering impermissible factors in sentencing is a question of law subject to de novo review. Norvil v. State, 191 So.3d 406, 408 (Fla. 2016).

Our analysis of this issue is straightforward. In Norvil, the Florida Supreme Court adopted a “bright line rule” that “a trial court may not consider a subsequent arrest without conviction during .sentencing for the primary offense.” Id. at 410. “The State has the burden ‘to show that the trial court did not rely on the pending charge resulting from the subsequent arrest.’ ” Fernandez v. State, 212 So.3d 494, 497 (Fla. 2d DCA 2017) (quoting id. at 409).

Because the defendant’s failure to appear was charged as a new substantive crime in a separate case which was still pending at the time of his sentencing, the trial court erred by factoring, in the unresolved charge.

The state asserts that “[fjorcing a trial court to ignore a fact which occurred directly before it such as a defendant’s failure to appear would force a trial judge, to ignore the reality of the defendant before the court for sentencing.” As compelling as the state’s argument may be, we are bound by the bright line rule announced in Norvil. Consequently, we reverse the defendant’s sentences and we remand for re-sentencing before a different judge. See Guerra v. State, 212 So.3d 541, 542 (Fla. 4th DCA 2017) (reversing for sentencing before a different judge where sentence was based on improper, considerations),

We additionally take this opportunity to reiterate “that a criminal defendant prior to sentencing has the opportunity to make an. unsworn statement to the sentencing judge in allocution,” Jean-Baptiste v. State, 155 So.3d 1237, 1242 (Fla. 4th DCA 2015).

Like the receipt of unsworn letters, the opportunity of the defendant to “allo-cute” gives the defendant, a chance to express to the sentencing court any additional information to aid the court in making a sound and reasoned judgment on the most important matter upon which it is called to judge, that is, the appropriate sentence to be meted out to the convicted criminal defendant.

Id.

The defendant was properly afforded the opportunity to make an unsworn allocution below. He argues, however, that the trial court erred in affording his allocution diminished weight because it .was un-sworn. We are unaware of any authority requiring a trial court to assign the same weight to an unsworn statement as it would to testimony given under oath and subject to cross examination and potential perjury charges.

We find the remainder of the arguments raised by the defendant to be without merit.

Reversed and remanded with instructions.

Gerber, C.J., and Levine, J., concur.


author: Per Curiam.

text:
    Daniel N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee.
    No. 4D16-4317
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.
    Robert C. Schermer of Greene Hamrick Quinlan & Schermer, P.A., Bradenton, for appellee.
   ON CONFESSION OF ERROR

Per Curiam.

Appellant Daniel White appeals from a summary judgment of foreclosure to Ap-pellee Planet Home Lending, LLC. Based on Appellee’s confession of error and our own review of the record, we reverse the grant of summary judgment and remand for further proceedings.

Appellant’s mortgage provided that, in the event of a default, the debt could be accelerated, “except as limited by regulations of the Secretary ... of Housing and Urban Development.” Appellant’s answer to Appellee’s foreclosure complaint denied that Appellee had performed all conditions precedent to bringing the foreclosure action. His affirmative defenses contended that Appellee failed to comply with federal housing regulations incorporated into the mortgage, including Appellant’s right to a “face-to-face” interview with the lender, “at least thirty days before foreclosure is commenced.” 24 C.F.R. § 203.604(b) (2016). Appellant alleged in his affidavit submitted in opposition to summary judgment that he never attended a face-to-face interview.

“Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) (quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)). Here, Appellant sufficiently pleaded his affirmative defense.

Appellee denied incorporation of the federal regulations in its summary judgment motion, but now confesses error in light of Palma v. JPMorgan Chase Bank, 208 So.3d 771, 773, 775 (Fla. 5th DCA 2016) (finding identical language in a mortgage had incorporated the federal regulations, including the face-to-face interview requirement, as a condition precedent to filing suit). Appellee further concedes that it failed to refute Appellant’s denial of an interview taking place.

Accordingly, entry of summary judgment was error. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

May, Levine and Forst, JJ., concur.

      . Absent evidence that Appellee engaged in a face-to-face interview with Appellant before the former filed its foreclosure complaint or that any exception to the interview requirement applied, it would be appropriate to enter an involuntary dismissal of Appellee’s foreclosure complaint. See McIntosh v. Wells Fargo Bank, N.A., 226 So.3d 377, 379 (Fla. 5th DCA 2017); Palma, 208 So.3d at 775.


author: Gerber, C.J.

text:
    Silvio COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees.
    No. 4D17-1255
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]

      Robert C. Buschel of Buschel Gibbons, P.A., Fort Lauderdale, and Grant J. Smith of Strategysmith, P.A.,- Fort Lauderdale, for appellant.
    No appearance for appellees.
   Gerber, C.J.

The defendant appeals from the circuit court’s order denying his Florida Rule of Civil Procedure 1.540 motion to vacate the final default judgment entered against him. The'defendant’s motion primarily argued that the final default judgment was void because the plaintiffs service on the defendant through the Florida Secretary of State under section 48.181(1), Florida Statutes (2014), was insufficient. We agree with the defendant’s argument and reverse.

The plaintiffs complaint alleged, in pertinent part, as follows. The defendant is a Michigan resident who is the majority owner, managing member, and president of a Michigan corporation which provides health care services. The defendant’s corporation entered into -several agreements with two financing companies. Under the agreements, in exchange for an immediate advance of funds from the financing companies to the defendant’s corporation, the defendant’s corporation would repay the financing companies using its account receivables collected over time. The face of the agreements bear no relation to Florida.

The financing companies later entered into agreements with the plaintiff whereby the financing companies assigned to the plaintiff the right to be paid from the account receivables of the defendant’s corporation. The assignment agreements directed that payments were to be made to the plaintiff in Florida. However, the defendant’s corporation was not a party to those assignment agreements.

When the defendant’s corporation allegedly failed to pay its account receivables to the plaintiff, the plaintiff filed suit in Florida against the defendant and the defendant’s corporation. The complaint alleged counts for breach of contract, unjust enrichment, conversion, and breach of the duty of good faith and fair dealing. The complaint alleged that the defendant was a Michigan resident “doing business in Florida.” However, the complaint did not contain any specific facts indicating how the defendant allegedly was “doing business.in Florida.”

The plaintiff was able to obtain service on the defendant’s corporation. However, the plaintiff was unable to obtain service on the defendant in Michigan after several attempts. The plaintiffs Michigan process servers filed affidavits opining that the defendant was avoiding service.

The plaintiff , obtained from the clerk of court an alias summons directing that service upon the defendant be made upon the Florida Secretary of State pursuant to section 48.181(1), Florida Statutes (2014), which provides, in pertinent part:

The acceptance by any person or persons .,. who are residents of any other state ... and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business ventare in the state, or to have an office or-agency in the state, constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons ... that the process against them which is so served is of the same validity as if served personally on the persons ....

After the plaintiff served the alias summons upon the Florida Secretary of State, the plaintiff obtained a clerk’s default against the defendant. The plaintiff then obtained a final default judgment against the defendant.

The defendant later learned of the final default judgment and filed a motion to vacate the judgment pursuant to Florida Rule of Civil Procedure 1.540(b) (“On motion and upon such terms as are just, .the court may relieve a party ... from a final judgment ,... for the following reasons: ... (4) that the judgment or decree is void .... ”). In the motion, the defendant alleged, in pertinent part:

[A]t no point in time did either [the defendant] (or [the defendant’s corporation] ) conduct any business in the State of Florida. More specifically, at no point in time did [the defendant] (or [the defendant’s corporation]) accept the privilege extended by the laws of the State of Florida to operate, conduct, engage in, or carry on a business or business venture in the State of Florida, or to have an office or agency in the State of Florida. To the contrary, the medical services [the defendant’s corporation] provided that led to the accounts receivable subject to the Assignment Contracts were provided in the State of Michigan. And, neither [the defendant] nor [the defendant’s corporation] has ever conducted any business other than in the State of Michigan. As such, [the defendant] meets none of the conditions precedent to permit service through the Secretary of State, and as such there was no service on [the defendant],, and the Court never had jurisdiction over him. .
Given these undisputed facts, § 48.181, Florida Statutes, could not be applied to [the defendant], or complied with by the Plaintiff. As such,, the law on this topic is simple. Without service on a defendant, the court has no jurisdiction over the defendant and any -judgment against that defendant must be vacated,

(internal -citations omitted). The defendant’s supporting affidavit alleged, in pertinent part:

I am a resident of the state of Michigan and I‘ am a practicing Chiropractor in Birmingham, Michigan. At no point in time have I provided chiropractic services in any state other than Michigan. Further, I have never provided chiropractic services, operated, conducted, engaged in, or carried on a business or business venture in the State of Florida, or had an office, agent or agency in the State of Florida.

Both the defendant’s motion" and his affidavit also argued that he had not been avoiding service. At the evidentiary hearing on the defendant’s motion, the.defendant testified consistent with’ his motion and affidavit.

In response, the plaintiff did not present any evidence to counter the defendant’s affidavit and testimony. Instead, the plaintiff argued that it properly obtained substituted service on the defendant through the Florida Secretary of State in accordance with section 48.181(1) merely because its complaint alleged that the defendant was a nonresident conducting business in Florida.

The circuit court entered a written order denying the defendant’s motion to vacate the final default judgment. In the order, the court made the finding of fact that “Defendant is conducting business within the State of Florida, based upon the assignment agreements entered into with Plaintiff and requiring payment in Florida.” Based on that finding of fact, the court concluded that the judgment was not void for want of service.

This appeal followed. The defendant argues that he provided sworn unrefuted testimony that he is not conducting business in the State of Florida and is not avoiding service, and therefore substituted service on him through the Florida Secretary of State under section 48.181(1) was insufficient. Because service was insufficient, the defendant argues, the final judgment against him is void and should be vacated.

Based on this argument, our task is to determine whether competent substantial evidence supports the circuit court’s finding of fact that the defendant was conducting business in Florida. See P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855, 857 (Fla. 2d DCA 1978) (upon proper contention of the assertion that a defendant is doing business in Florida, “a question of fact is presented which the trial court must resolve. As in all such factual determinations the conclusion of the trial court must be supported by competent substantial evidence.”).

Having reviewed the record, we conclude competent substantial evidence does not support the circuit court’s finding of fact that the defendant was conducting business in Florida. See Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So.2d 892, 894 (Fla. 3d DCA 1982) (“[T]he plaintiff’s bare allegation that the defendant was ‘doing business in Florida’ is insufficient to render the defendant amenable to substituted service of process under Section 48.181 .... ”).

Instead, as the defendant argues, he provided sworn unrefuted testimony that he is not conducting business in the State of Florida. The face of the agreements between the financing companies and the defendant’s corporation bear no relation to Florida. Although the assignment agreements between the financing companies and the plaintiff directed that payments were to be made to the plaintiff in Florida, the defendant’s corporation was not a party to those assignment agreements. The defendant also provided sworn unrefuted testimony that he is not avoiding service.

Because substituted service on the defendant through the Florida Secretary of State under section 48.181(1) was insufficient, the final default judgment against the defendant was void, and the circuit court should have granted the defendant’s motion to vacate the judgment. We reverse and remand for the circuit court to vacate both the judgment and the default against the defendant. See Ardt v. America’s Senior Fin. Servs., Inc., 885 So.2d 918, 919 (Fla. 4th DCA 2004) (reversing denial of defendants’ motion to set aside final judgment under rule 1.540(b) where defendants were served in another state under section 48.181 by substituted service on the Florida Secretary of State, but section 48.181’s requirements were not met).

Reversed and remanded.

Klingensmith and Kuntz, JJ., concur.


text:
    Bobby Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-160
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2018]

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   Gerber, C.J.

The defendant appeals from his conviction for burglary of a dwelling while wearing a hood or mask. The defendant argues, among other things, that the trial court erred when it denied his motion for judgment of acquittal on the “hood or mask” enhancement, because the evidence showed that the defendant’s shirt was pulled over only the back of his head, and did not cover his face. We disagree with the defendant’s argument, because under the plain language of section 775.0845, Florida Statutes (2016), it is not necessary that the hood, mask, or other device cover an offender’s face. Instead, under the statute, the factfinder simply considers “if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his or her identity.” (emphasis added). We affirm the conviction.

We present this opinion in three parts:

1. the state’s trial evidence; •
2. the trial court’s denial of the defendant’s JOA motion; and
3. our review.

1. The State’s Trial Evidence

On the night of the incident, the victim’s neighbor heard the victim’s home security alarm sounding. The neighbor knew that the victim was not home because the victim was at the hospital visiting her husband. The neighbor yelled to her family about the alarm and ran outside.

Once the neighbor was outside, she heard the victim’s front side door shut and saw the defendant exit from the door. The defendant had a shirt pulled over the back of his head. The shirt did not cover the defendant’s face. As the- defendant walked away from the victim’s home, he removed the shirt from his head. The neighbor noted that the victim had a security camera positioned over the door from which the defendant exited.

As the defendant walked down the victim’s. driveway, the neighbor’s daughter’s boyfriend came up to the victim’s home. The neighbor told the defendant to stop, and the boyfriend told the defendant he already was calling 911. The defendant continued walking across the street towards an apartment complex. The boyfriend followed the defendant until the defendant reached an apartment, where the defendant began banging on a door. When the door opened, the defendant went inside. The boyfriend waited outside the apartment complex until the police arrived.

When the police arrested the defendant, he had several cuts on his body. During the investigation at the victim’s home, an officer' found blood -On- shattered window glass and swabbed it for DNA testing. The DNA matched the defendant.

' The victim testified that she' knew the defendant because he frequently did odd jobs for her husband. However, the defendant had never been inside the victim’s home and he'did not have permission to enter. On the day of the burglary, the defendant came to the victim’s home and asked about the victim’s husband. The victim told the defendant that she was on her way to visit her husband at the hospital. Shortly after the defendant left, the victim locked her doors and weht to the hospital. The victim’s front window was intact when she left. After the victim was at the hospital, she received a call from her alarm company. She left the hospital and returned home. When she arrived home, she saw her front window was shattered and the window’s screen was tom. • ■■

The state introduced the surveillance video from the camera located over the victim’s front side door: The video shows the defendant walking away from the door with his shirt pulled over the back of his head.

2. The Trial Court’s Denial of the Defendants’ JOA Motion

After the state rested its case-in-chief, the defendant moved for a judgment of acquittal on the “hood or mask” enhancer ment. The defendant , argued the state failed to present a prima facie,- case that the defendant wore a hood, mask, or other device to conceal his identity, because the evidence showed the defendant’s face was not covered.

The trial court denied the motion. In reaching its decision, the court pointed out that the defendant used his shirt such that he would be concealed from the camera’s view. According to the trial court, the camera would not have captured the defendant’s-face because he was walking away, but the camera would have captured the back of--his head had the defendant not covered it. The trial court did not believe that the defendant’s failure to conceal his face from the neighbor was a dispositive fact. The trial court further observed:

It’s what his intent is at the time that he conducts that maneuver with the shirt and I think you brought out in the case that [the maneuver] was done at the time and the location that is critical to the camera’s eye. In other words, where the camera was located. Because certainly when he got away from the camera, he took [the shirt] down.

At the close of all evidence, the defendant, renewed his motion for judgment of acquittal on the “hood or mask” enhancement, based upon the same argument he made earlier.

The trial court denied the motion, reasoning as follows:

• So if we look at the enhancement statute, of course it makes no reference to covering the face. So that’s not required..-.. [T]he Fifth District [in Fletcher v. State, 472 So.2d 537 (Fla. 5th, DCA 1985) ]... used some language which is helpful to me here. [“T]he statute is[ ] aimed at criminals who employ devices either to make witnesses’ identifications of them difficult or to otherwise facilitate the commission of a crime. This may include covering up one’s facet;] [or] altering one’s appearance by disguise or costume. [”] Id. at 540. So is it a concealment that is used to facilitate the commission of the crime. And then [in footnote 4] they talk about concealment which, of course, is the operative term, and they go to Webster’s dictionary ... it’s [“]to prevent disclosure or recognition [of:] avoid revelation [of:] refrain from revealing[:] withhold knowledge [of:] draw attention from[: treat] as- to be so unnoticed ... ”] and here, [“]to place out of sight[:] withdraw from being observed[:] shield from vision or notice. [” Id. at 540 n.4J To shield from vision or notice. And that is the definition of conceal and it’s a broad definition.
So let’s look at the facts of .this case with those concepts in mind. First,, [the defendant] is absolutely known to the homeowners.... But at the same time, that familiarity is the reason why [the defendant] can’t be seen on the video, even his features, as he is leaving, the house. So people are recognized who know each other by many things .... It doesn’t have to be your face. It can be your gait. It can be your voice. It can be the top of your head. In this case, [the defendant] ... is bald and there are many features about his physical make-up that a person who knew him well could readily recognize if it was seen on a video.... So in order for [the defendant] to hide or conceal from view physical features of himself from those people, he decided that he needed .to cover his head....
So the Fletcher case is very instructive in that regard. It doesn’t have to be your face. It can be covering certain physical items of you that make it apparent to who you are ... but in this case it’s the covering of his head and the covering of, you know, ears, backs of the head, things of that, nature, that someone could easily recognize, So ... I do find that the government has made not only a prima facie case, but that a jury, a reasonable finder of fact, could find that when [the defendant] ... is putting the shirt over the- top of his head for that moment while he was under the camera view as he was leaving the house, that he did so with the intent to conceal his identity from people who otherwise would have known who he was. And therefore ... I am denying the motion for judgment of acquittal on that enhancement ground.

3, Our Review

This appeal followed. The defendant argues that the trial court erred when it denied his motion for judgment of acquittal on the “hood or mask” enhancement, because the evidence showed that the defendant’s shirt was pulled over only the back of his head and did not cover his face.

Our standard of review was set forth in Pagan v. State, 830 So.2d 792 (Fla. 2002):

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.' If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find, the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted).

Section 775.0845, Florida Statutes (2016), states, in pertinent part:

The felony or misdemeanor degree of any criminal offense ... shall be reclassified to the next higher degree as provided in this section if,- while committing the offense, the offender was wearing a hood, mask,, or other device that concealed his or her identity.

(emphasis added).

“[T]he statute is aimed at criminals who employ devices either to make witnesses’ identifications of them difficult or to otherwise facilitate the commission of a crime. This may include covering up one’s face;. or altering one’s appearance by disguise or costume.” Fletcher v. State, 472 So.2d 537, 540 (Fla. 5th DCA 1985) (emphasis added). The statute does not require that the offender be successful in his or her .attempt to avoid -identification through use of a mask, hood, or device. See generally L.D.H. v. State, 212 So.3d 387, 390-91 (Fla. 4th DCA 2017) (juvenile violated section 775.0845 even .though juvenile used his shirt to cover his-face for only a brief amount of time). “Instead, the factfin-der simply considers the totality of the evidence to determine whether the person personally wore a hood, mask, or other device to conceal their identity.” Id. at 390.

Here, the defendant pulled a shirt over the back of his head as he walked away from the victim’s home, under the view of the victim’s surveillance camera. Viewing this evidence in the light most favorable to the state, it is reasonable to conclude that the defendant took this action to conceal his identity. As the trial court observed, many ways exist to identify an offender, particularly when the offender is known to a witness. Herb, the victim personally knew the defendant because the defendant helped the victim’s husband with odd jobs around their home. The defendant; likely knowing the surveillance camera’s location from his earlier visits to the home, attempted to cover the only area of his body which would be visible in the camera’s view — the back of his head. As the trial court observed, a person like the victim who knew him well could readily recognize him on á video. So the defendant, in order to conceal his identity from the victim, used his shirt to cover the back of his head. Such action constitutes. competent, substantial evidence that the defendant violated section 775.0845.

Conclusion.

As we noted in L.D.H., “With the growing use of home security video technology as a crime prevention measure, it is not unreasonable to conclude that a person intending to burglarize a dwelling would wear a hood, mask, or other device to conceal their identity.” 212 So.3d at 391. That appears to have been the case again here. Based on the foregoing, we affirm the trial court’s denial of the defendant’s motion for judgment of acquittal. On the defendant’s other two arguments, we affirm without further discussion.

Affirmed.

Ciklin and Levine, JJ., concur.


author: PER CURIAM.

text:
    Ray MATOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-446
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017.
    Ray Matos, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. Baker v. State, 878 So.2d 1236 (Fla. 2004).


author: PER CURIAM. B.L.THOMAS, C.J:,

text:
    Antwann L. TIGNER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2854
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017
    Rehearing Denied February 5, 2018
    Antwann L. Tigner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF and WINOKUR, JJ., CONCUR; B.L. THOMAS, C.J., SPECIALLY CONCURS WITH OPINION.

B.L.THOMAS, C.J:,

SPECIALLY CONCURRING.

Appellant rejected the State’s plea offer of two years in state prison for the offense of burglary of a dwelling. Relying on the inaccurate and misleading advice of counsel, who informed Appellant he was likely to receive a similar sentence if he entered an open guilty plea, Appellant pled guilty to the offense and was informed by the trial court that he could impose a sentence of up to fifteen years in state prison. At a later sentencing hearing, rather than imposing a similar or more-lenient sentence, despite the State’s unchanged position in recommending a similar sentence to the trial court, and despite that Appellant, who was then 20 years old, had no felony record, the trial court imposed a sentence of twelve years in state prison.

I must join in affirming the denial of relief, because Appellant cannot show that the trial judge would have accepted the two-year prison sentence offered by the State which Appellant rejected. See Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013) (holding that to prove ineffectiveness where defendant rejected plea offer upon advice of counsel, defendant must show he would have accepted the offer had counsel advised correctly, the State would not have withdrawn its offer, the court would have accepted the offer, and the resulting sentence would have been less severe). But defense counsel ill served Appellant by failing to advise him that by rejecting the State’s plea offer, he was likely to receive a harsher sentence, which he did.

While it was obviously Appellant’s decision. to reject the State’s plea offer, because he did not want to serve any prison time, defense counsel should have warned Appellant, in the firmest manner possible, that by rejecting the State’s plea offer, Appellant was very likely to receive a harsher sentence. To advise a criminal defendant that a trial court would ordinarily give a defendant the same or similar sentence which the defendant had just rejected in a plea offered by the State is simply not accurate legal advice, without some objective basis in fact or law.


text:
    Terrence LOONEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3033
    District Court of Appeal of Florida, First District.
    Opinion filed December 18, 2017
    Rehearing Denied February 5, 2018
    Terrence Looney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, ROWE, and MAKAR, JJ., CONCUR.


text:
    Larry BARBER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D17-1376
    District Court of Appeal of Florida, First District.
    Opinion filed December 19, 2017
    Rehearing Denied January 31, 2018
    Larry Barber, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied because the lower court’s denial of the mandamus petition did not constitute a departure from the essential requirements of law. To- the extent petitioner challenges the lower court’s imposition of a lien on his inmate trust account, that claim is not preserved because petitioner failed to raise it below. See Kemp v. McDonough, 955 So.2d 635, 637 (Fla. 1st DCA 2007).

WOLF, WINOKUR, and JAY, JJ., CONCUR.