author: Conner, J.

text:
    David WEINGRAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0446
    District Court of Appeal of Florida, Fourth District.
    September 27, 2017

      Carey Haughwout, Public Defender, and Kai Li Aloe Fouts, Special 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.
   Conner, J.

Appellant, David Weingrad, appeals his conviction and life sentence entered below for first degree murder. He argues that: (1) the trial court erred -in denying his motion to suppress his recorded confession, asserting that his Miranda warnings failed to convey his -right to have counsel' present during questioning; and (2) the prosecutor’s comment in closing argument that this was not a death penalty case improperly minimized the State’s burden of proof. However, for the reasons discussed below, we find no merit in Wein-grad’s arguments, and therefore affirm.

Background

Weingrad was charged' with first degree murder with a weapon. Pretrial, he filed a motion to suppress his statement to police in which he confessed to murdering the victim. Weingrad argued his statement should be suppressed because the Miranda warnings were insufficient to inform him of his right to have counsel present during questioning.

At' the hearing on Weingrad’s motion to suppress, the evidence reflected that he was advised of his Miranda rights as follows:

DETECTIVE: Okay. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have him or her with you before any questioning. Okay ? If you can’t afford an attorney, one will be appointed for you before I ask you any questions. If you — if you decide to answer questions now without an attorney present, you still have the right to stop answering at any time. Okay, do you understand that?
Okay. Knowing and understanding the rights as I’ve explained them to you, do — do you want to talk to me today?
APPELLANT: Yeah.

(emphases added). The trial court denied the motion to. suppress, finding that the words used by the detective adequately and reasonably conveyed to Weingrad that he could have a lawyer before and during questioning. The recorded statement was later admitted into evidence at trial.

Prior to the start of jury selection, the trial court advised the parties that it would read the indictment charging Weingrad with first degree murder, and asked the parties if it1 should further advise the jury pool that the State was not seeking the death penalty, to which both - parties agreed that it should do so. The jury was advised that the State was not seeking the death penalty.

Throughout the trial, the defense conceded that Weingrad had committed second degree murder, but disputed the first degree murder charge by arguing that .this was not a “planned premeditated crime,” and that he had “snapped,” and had acted with a depraved mind.

During the State’s closing argument, the State advised the jury that the trial court would instruct them on the law and that if the State made any changes to the meaning of the instructions in its argument, then to disregard same, reiterating that only the' trial judge instructs on the law, not the State. The prosecutor then noted that as the defense conceded to the murder, the issue was' whether this was a first or second degree murder, but more specifically, whether the State proved beyond a reasonable doubt the elements of first degree murder. The prosecutor specifically noted that the standard of proof for first degree murder was beyond a reasonable doubt, the same standard for all other crimes. In discussing the difference between first and second degree murder, the prosecutor stated:

STATE: [T]o believe that a person has to plan a murder for it to be first degree premeditated 'murder is not the law. You’re not, this is not a death penalty case. If it were a death penalty case we might discuss planning, heightened premeditation, cold, calculated and premeditated, but it’s not, there doesn’t have to be planning.

(emphasis added). Defense counsel did not object to this comment. The State then listed the elements required to prove first degree murder, and in discussing the element of premeditation, stated: “A premeditated intent to kill must be .., formed before the killing. We talked about this briefly, this is not a death penalty case, we don’t have to show that this was a plan.” (emphasis added). At this, defense counsel objected, stating that the repeated references to the death penalty in the State’s closing was not relevant and therefore improper, At side bar, the trial court indicated that the standard of proof was not different ’in a death penalty case, but''the prosecutor argued that he,was addressing the defense’s remarks about “planning” in its opening statement and distinguishing the “heightened premeditation” required for death penalty cases. The trial court sustained the objection. However, the defense did not request a curative instruction, nor did it move for a mistrial. Upon resuming his closing argument, the prosecutor stated multiple times that the standard of proof as to each element was for the jury to find beyond a reasonable doubt.

Ultimately, the jury found Weingrad guilty of first degree murder as charged, and he was sentenced to life in prison. He gave notice'of appeal.

Analysis

Motion to Suppress

In reviewing an order on a motion to suppress, we defer to the trial court’s findings of fact so long as they are supported by competent, substantial evidence, but review de novo the trial court’s application of law to the facts. Peterson v. State, 94 So.3d 514, 528 (Fla. 2012) (citing Ross v. State, 45 So.3d 403, 414 (Fla. 2010).

Weingrad contends that the trial court erred in denying the motion to suppress his recorded confession because the Miranda warnings he was .given, failed to convey that he had a right to have counsel present during questioning. Instead, he argues that the warnings he was given only advised him of his right to speak with counsel . before questioning. However, Weingrad’s argument lacks merit. Rather, as the State argues and as the trial court properly found, the rights read to Wein-grad reasonably conveyed that he had the right to the presence of an attorney during any questioning.

In Florida v. Powell (Powell II), 559 U.S. 50, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010), the Supreme Court considered the sufficiency of a Miranda warning advising a suspect that he had “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time.” Id. at 53, 130 S.Ct. 1195 (emphasis added). The Court held that the warning was adequate and that the two warnings in combination reasonably conveyed “the right to have an attorney present not only at the outset of the interrogation, but at all times.” Id. at 62, 130 S.Ct. 1195. In reaching this conclusion, the Court reasoned that:

In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the words employed “as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’” Duckworth, 492 U.S., at 203, 109 S.Ct. 2875 (quoting Prysock, 453 U.S., at 361, 101 S.Ct. 2806).

Id. at 60, 130 S.Ct. 1195 (alteration in original and emphasis added).

Similarly, in Rigterink v. State, 66 So.3d 866 (Fla. 2011), our supreme court reviewed the sufficiency of a Miranda warning to determine whether it reasonably conveyed the right to counsel before and during a custodial interrogation. Id. at 870. The warnings in that case advised the suspect that he had “the right to have an attorney present prior to questioning.” Id. at 892 (emphasis added and emphasis in original). The supreme court applied the reasoning in Powell II, as follows:

As with the synonymous warning in Powell II, when Rigterink’s learning is given a commonsense reading, it reasonably conveys to a suspect that he or she has the right to the presence of counsel both before and during an interrogation. This is because the use of the word “present,” along with the “before” and “prior to,” convey to a suspect that his or her right to counsel begins before the custodial interrogation and, as a result, will logically continue during the interrogation. The use of “prior to,” like the use of “before” in Powell II, is a mere temporal requirement providing when the right to counsel begins. As with the term “before,” nothing in the use of the phrase “prior to” indicates that the right to counsel’s presence ends when questioning begins.

Id. (emphases added). The court further explained that the warning in Rigterink reasonably conveyed the right to counsel with more clarity than in Powell II because Rigterink was advised he may have counsel “present” prior to questioning, indicating that if Rigterink wanted, an attorney would have been “present” with him both before and during the interrogation. Id. at 893. Thus, the court concluded that the right to counsel warning was sufficient under Miranda. Id.

In this case, the warning given to Weingrad mirrors that in Rigterink. Wen-grad was advised he could speak to an attorney and “have him or her with [him] before any questioning.” (emphasis added). Weingrad was also advised he could “decide to answer questions now without an attorney present,” and that he could stop at any time (emphasis added). As the State argues, a common sense reading of these warnings indicates that Weingrad was advised that he had the right to have an attorney imth him before speaking with the poliee, and that such right would logically continue during the interrogation. See Rigterink, 66 So.3d at 893 (“It is indefensible that Rigterink believed that the warnings stood for the proposition that he could have counsel present before questioning began and that, once questioning began, counsel must leave.”).

Weingrad’s contention that his warnings were deficient because they did not include a “catch-all” phrase indicating the right would continue through the interrogation “as was the case in Powell II,” fails. In fact, the Rigterink rejected this very argument, stating:

[T]he sufficiency of the warning in Powell II did not hinge on the catch-all phrase. Rathér, the catch-all phrase merely confirmed that the- defendant in Powell II could exercise his right to counsel during the custodial interrogation. See id. (stating that the catch-all phrase “confirmed that [the defendant] could exercise [the right to counsel] while the interrogation was underway”). The statement that the defendant had the right to counsel before the custodial interrogation, when taken alone in context, was sufficient to satisfy Miranda, as it, in and of itself, reasonably conveyed to the defendant that his right to counsel began before the custodial interrogation and logically continued throughout the interrogation. See id. (“In context, however, the term ‘before’ merely conveyed when Powell’s right to an attorney became effective — namely, before he answered any ■ questions at all. Nothing in the words used indicated’ that counsel’s presence would be restricted after the questioning commenced. Instead, the warning communicated that the right to counsel carried forward to and through the interrogation.... ”).

Id. at 892. (emphases added).

Therefore, as in Powell II and Rigterink, we conclude that the warnings given to Weingrad were sufficient to convey to’ him that he could have a lawyer both before and during questioning. As such, the trial court did not err in denying Wein-grad’s motion to suppress and the ruling is affirmed.

We note that, even had Weingrad’s recorded statement been obtained in violation of Miranda, any error in admitting the statement at trial was harmless where Weingrad did not contest committing the murder, but rather only contested premeditation. Additionally, as the State points out, witness testimony was admitted at trial from Weingrad’s co-defendant that he woke her, with a sledgehammer in his hands, and told her “I did it. I did it,” and that she then discovered the victim dead laying on her bed with her head misshapen and blood and tissue everywhere. There was also ample testimony of premeditation from multiple witnesses testifying to the nature of the strained relationship between Weingrad and the victim and that he had told them that he was trying to find a way to kill the victim and make it look like an accident.

Closing Argument

The trial court’s rulings regarding comments made during closing arguments are reviewed for an abuse of discretion. Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). “In order to preserve the issue for appellate review, a party must have made the same argument to the trial court that it raises on appeal.” Morrison v. State, 818 So.2d 432, 446 (Fla. 2002); see also Archer v. State, 613 So.2d 446, 448 (Fla. 1993) (stating the issue “must be presented to the lower court and the spe cific legal argument or' ground to be argued on appeal must be part of that presentation if it is to be considered preserved” (emphasis added) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985)). Notably, where a contemporaneous objection to a prosecutor’s improper closing argument is sustained, it should be followed by a motion for mistrial in order to be properly preserved for appeal. Holton v. State, 573 So.2d 284, 288 (Fla. 1990).

17] Weingrad argues on appeal that reversible error occurred because the prosecutor minimized the burden of proof in closing argument by stating that “this is not a death penalty case.” Notably, Wein-grad acknowledges he did not object to the comments, the first time the State made it and that he failed to request a curative instruction or move for a mistrial after the trial court sustained his later objection, as. required to .properly preserve the argument for appeal. However, he argues on appeal that a curative instruction would not have been sufficient to cure the damage done, asserting that the “cat had beep let out of the bag.” This assertion lacks merit. This is not the case where some prejudicial fact was supposed to be kept from the jury and was blurted out so that the bell could not have been “unrung.” Rather, to the extent the State’s comment was arguably a misstatement of the law, a simple curative instruction directing the jury to disregard such and instead to apply the correct standard would have been sufficient to cure the comment. See Jackson v. State, 599 So.2d 103, 104 (Fla. 1992). (curative instruction was sufficient to dispel any harm done by erroneous instruction).

Nevertheless, Weingrad contends that the prosecutor’s comment enunciated an erroneous and misleading statement of the State’s burden on proof, improperly suggesting that the, burden was less in a case where the death penalty was not being sought. Weingrad argues that the standard for a conviction was the same either way, and that there was no purpose for the State to even mention the death penalty in this case. Rather, he argues that the State’s comments constituted fundamental error by minimizing its burden to prove every element beyond a reasonable doubt. We disagree.

As the State argues, the comments Weingrad challenges on appeal do not appear to have been impermissible, nor do they rise to the level of fundamental error. As discussed above, throughout the trial, the defense conceded to second degree murder, challenging instead the premeditation element required for first degree murder by arguing that this was not á “planned premeditated crime” in-its opening statement. Notably, any purported “[pjrdsecutorial - improprieties must be viewed in the context of the record as a whole to determine if a new trial is warranted.” Martinez v. State, 761 So.2d 1074, 1082 (Fla. 2000) (quoting Sireci v. State, 587 So.2d 450, 452 (Fla. 1991)).

Here, read in . context, it is evident that in making the challenged comments during its closing argument, the State was countering the. defense’s opening remarks that suggested that first degree murder required planning. In so doing, the prosecutor commented that this was not a . death penalty case and that the State was not required to show planning in order ■ to prove premeditation. This,was an accurate statement. See Porter v. State, 564 So.2d 1060, 1064 (Fla. 1990) (“The Court has adopted the phrase ‘heightened premeditation’ to distinguish this aggravating circumstance from the premeditation-element of first-degree murder. Heightened, premeditation can be demonstrated by. the manner of the killing, but the evidence must prove beyond a - reasonable doubt that the defendant planned or arranged to commit murder before the crime began.”) (emphasis added and internal citations omitted). Indeed, the remarks did not minimize the State’s burden of proof as to first degree murder. Instead, read in context, it is evident that the purpose of the comments was to clarify that premeditation did not require “planning” as suggested by the defense. Therefore, under the circumstances of this case, the State’s comment appears to have been fair comment on the defense’s opening remarks. See Pagan v. State, 830 So.2d 792, 809 (Fla. 2002).

Furthermore, in making this comment, the State did not argue that the reasonable doubt standard was inapplicable to the element of premeditation. On the contrary, the State repeatedly advised the jury that it bore the burden of proof and that the standard was beyond a reasonable doubt. Additionally, the prosecutor noted that the standard of proof for first degree murder was the same standard for proving other crimes and that any interpretation of its argument indicating otherwise should be disregarded and the jury should only follow the trial court’s instructions. Moreover, to the extent Weingrad argues that there should have been no mention of the “death penalty” in this case, such argument is waived,to the extent both parties agreed on the record that the trial court inform the jury from the outset that this was not a death penalty case.

Moreover, “[t]he law presumes that the jury has'followed all of the trial court’s instructions,- in the absence of evidence to the contrary.” Garzon v. State, 939 So.2d 278, 285 (Fla. 4th DCA 2006). Here, as the State points out, prior to closing arguments and several times during the proceedings, the trial judge instructed the jury- that the attorney’s statements were not evidence and. specifically stated that the attorneys’ statements were not the jury’s instructions on the law. Additionally, after closing arguments, the trial court specifically instructed the jury as to thé State’s burden of proof. Therefore, as there is no evidence to the contrary, we presume that the jury followed the judge’s instructions, and applied the correct standards and considerations to the evidence.

Having found no error in the denial of Weingrad’s motion to suppress or in the State’s comments in closing argument, we affirm.

Affirmed.

Taylor, May and Conner, JJ., concur.'

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: OSTERHAUS, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Robert David CROWLEY, Appellee.
    CASE NO. 1D16-3380
    District Court of Appeal of Florida, First District.
    Opinion filed September 29, 2017
    Rehearing Denied January 12, 2018

      Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellee.
   OSTERHAUS, J.

In this case we address whether a “No Soliciting” sign posted on a home’s front door prohibited law enforcement officers who lacked a search warrant from knocking and talking to the home’s occupant. We don’t think so, and thus reverse the trial court’s suppression order.

I.

After receiving an anonymous tip in 2015 that someone was growing and selling cannabis out of a Jacksonville home, officers from the Jacksonville Sheriffs Office decided to visit the home and try to talk to the home’s resident. From the street outside in front of the home, two plainclothes officers made an ordinary approach up the front walkway to the front door (there wasn’t any fence or gate), where they confronted a conspicuous “No Soliciting” sign mounted on the front door. The officers paid no attention to the sign and knocked on the door. No one answered. But later on, when another officer attempted a similar knock and talk, Appellee Robert David Crowley opened the door and spoke with the officer. Mr. Crowley did not order the officer to leave his property, and the officer proceeded to briefly ask Mr. Crowley about a supposed lost friend. At the same time, the officer smelled a strong marijuana odor coming out of the open door. After the conversation ended, the officers got a warrant to search the home and returned. Their search found seventy-seven marijuana plants, drug paraphernalia, and a firearm, leading to Mr. Crowley’s arrest and criminal charges.

After being charged, Mr. Crowley filed a motion to suppress the evidence seized from his home. He argued that the officers violated his Fourth Amendment rights by disregarding his “No Soliciting” sign and by gathering critical information at his front door to support the search warrant. The trial court agreed with Mr. Crowley. It ruled that the sign invalidated the officer’s license to remain within the curtilage of Mr. Crowley’s home: “Here, the posting of the No Soliciting sign was all that was required for Mr. Crowley to negate the license an ordinary citizen would have to knock on his front door without invitation.” On this basis, the trial court decided that the search warrant was invalid, and it suppressed the evidence. The State appealed.

II.

A.

Wp review a trial court’s ruling on a motion to suppress under a mixed standard of review, deferring to the trial court on factual issues, but considering the legal issues de novo. State v. Rand, 209 So.3d 660, 663 (Fla. 1st DCA 2017). The. Fourth Amendment to the United States Constitution establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See also art. I, § 12, Fla. Const. This right especially protects the home, which the United States Supreme Court has referred to as “first among equals.” Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). “At the Amendment’s. Very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Id. (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). Falling within the ambit of this Fourth Amendment protection is a home’s curtilage, that part of the home “immediately surrounding and associated with the home ... [which is regarded to be] part of the home itself for Fourth Amendment purposes.” Jardines, 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). A property’s front porch and door area generally fall within the constitutionally protected curtilage of the home. And so, persons entering someone else’s property to Irnock at the front door must have either express or implied approval to do so.

In most cases, according to the United States Supreme Court, approaching a home’s front door is impliedly approved “from the habits of the country.” Id. at 1415. Visitors may. approach the front door of a home “by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id.', see also Powell v. State, 120 So.3d 577, 584 (Fla. 1st DCA 2013) (“[T]he resident does not have a reasonable expectation of privacy in what is plainly viewed from the vantage point of a temporary visitor who walks along the pathway or stands at the doorway.”). This implied license to approach the front door extends to both neighborly visitors and law enforcement officers alike. Jardines, 133 S.Ct. at 1415-16; see also Kentucky v. King, 563 U.S. 452, 469-70, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); Powell, 120 So.3d at 584. With respect to law enforcement-related visitors, it doesn’t matter if their motivation for knocking at a front door includes the hope of discovering useful information:

[I]t is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that. The mere purpose of discovering information in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment.

Jardines, 133 S.Ct. at 1416 n.4 (internal citation and quotation marks omitted); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions.”). However, knock-and-talk activity by law enforcement that diverts from the customary path to a home’s front door, or that exceeds other objectively reasonable bounds, can present Fourth Amendment problems requiring the suppression of evidence. Jardines, 133 S.Ct. at 1416-17 (suppressing evidence where a drug-sniffing dog was walked to a home’s front door because the officer’s objective behavior “reveal[ed] a purpose to conduct a search, which [was] not what anyone would think he had license to do”); Powell, 120 So.3d at 587 (suppressing evidence where an officer spied contraband by peering through a home’s front window that was off the traditional path to the front door); State v. Adams, 378 So.2d 72, 74 (Fla. 3d. DCA 1979) (suppressing evidence where an officer stood on a chair on the front porch to look down through a window into an apartment),

B.

The- novel issue in this case is whether the presence of a “No Soliciting” sign negates the customary license of .visitors and .officers to knock at a home’s front door. The trial court concluded that it does. But we hold otherwise.

While posting a “No Soliciting” sign seemingly prohibits would-be visitors from approaching the home in'order to sell stuff, seek contributions, and the like, it does not clearly'communicate an intention to exclude non-soliciting visitors. In fact', “No Soliciting” signs can be found in places where visitors are plainly welcome and expected, ineluding supermarkets, malls, neighborhoods, hospitals, and stadiums. See, e.g., Publix Super Markets, Inc. v. Tallahasseans for Practical Law Enforcement, No. 2004 CA 1817, 2005 WL 3673662 (Fla. 2d Cir. Ct. 2005) (supermarket); Salmon Run Shopping Ctr. LLC v. N.L.R.B., 534 F.3d 108, 112 (2d Cir. 2008) (shopping mall); Watchtower Bible & Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 156, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (neighborhood); Beth Israel Hosp. v. N.L.R.B., 437 U.S. 483, 486, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) (hospital); Int’l Soc’y for Krishna Consciousness, Inc. v. New Jersey Sports & Exposition Auth., 691 F.2d 155, 158 (3d Cir. 1982) (stadium); Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 883 A.2d 1008, 1011 (Md. Ct. Spec. App. 2005) (nursing home); Furman v. Call, 234 Va. 437, 362 S.E.2d 709, 711 (2017) (condominium complex). This isn’t a case where the sign on the property obviously intended to keep visitors 'away. See § 810.09, Fla. Stat. (2016) (defining trespassing partly upon the basis of whether specific signs have been posted); Bainter v. State, 135 So.3d 517 (Fla. 5th DCA 2014) (holding that officers violated the Fourth Amendment by entering a property surrounded by a barbed-wire fence with a chain-link push fence and several visible “No Trespassing” signs). Different from other more broadly restrictive signs — “Keep Out,” “No Visi.tors,” “No Trespassing,” etc. — a “No Soliciting” sign is more similar to “No Hunting,” “No Fishing,” and “No Swimming” signs that prohibit specific activities. Here, Mr. Crowley’s lone sign unquestionably warned away would-be solicitors from his door, but not non-soliciting visitors, The officers didn’t arrive at Mr. ■ Crowley’s front door in this case for the purpose of soliciting him, for instance, to buy tickets to a policeman’s ball, or to contribute to the police athletic league. Thus, the officers’ implied license to approach- Mr. Crowley’s front door, knock, and talk to him — as well as the implied license of other general visitors — remained intact. “Where no signs forbid entry, and there is a recognizable pathway to a front door, a limited license to enter the property on the pathway and knock on the door exists.” Powell, 120 So.3d at 584 (citing Nieminski v. State, 60 So.3d 521, 526-27 (Fla. 2d DCA 2011)).

Finally, we recognize that the trial court based its suppression order partly on a sentence in Powell, which stated that “homeowners who post ‘No Trespassing’ or ‘No Soliciting' signs effectively negate a license to enter the posted property.” 120 So.3d at 584. Powell wasn’t a sign case, so it does not- control the outcome here. But even so, we see no inconsistency between Powell and our holding. Similar to what Powell contemplates for “No Soliciting” cases like this one, our holding gives effect to the, terms of the sign at face value, recognizing that Mr. Crowley’s notice negated the license of solicitors to remain at his residence. In this case, however, the officers’ non-soliciting behavior was reasonable and consistent with the “No Soliciting” sign. The sign did not negate the implied license of non-soliciting visitors to knock at Mr. Crowley’s front door.

III.

For these reasons, we REVERSE the order granting the defendant’s motion to suppress and REMAND for further proceedings.

B.L. THOMAS, C.J., and WINSOR, J., CONCUR.

      . A local ordinance where Mr; Crowley lives defines "soliciting” and "solicitor” as follows:
      (a) Soliciting shall mean and include any one or more of the following activities:
      (1)Seeking to obtain orders for the purchase of goods, wares, merchandise, foodstuffs, services, of any kind, character or description whatever; for any kind of consideration whatever; or
      (2) Seeking to obtain prospective customers for application or purchase of insurance of any type, land or publication; or
      (3) Seeking to obtain subscriptions to books, magazines, periodicals,' newspapers and every other type or kind of publication; or
      (4) Seeking to obtain gifts or contributions of money, clothing or any other valuable thing for the support or benefit of any charitable or nonprofit association, organization, corporation, or project or for any other purpose.
      (e) Solicitor shall mean and include any person engaged in soliciting whether or not a registered solicitor.
      § 250.701, Jacksonville Ordinance Code (2016). See also Prior v. White, 132 Fla. 1, 180 So. 347, 348 (1938) (describing a no soliciting ordinance in the City of New Smyrna that banned “soliciting orders for the sale of goods, wares, and merchandise”).

      , The Jacksonville Ordinance Code confirms that no soliciting signs "exhibited upon or near [a home’s] main entrance door” are effective to give "[n]otice of the determination by the occupant(s) of ... the refusal of invitation to solicitors, to any . residence(s).” § 250.703(a) (emphasis added).


author: LEWIS, J.

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Gerald H. GRAY and Sabrina Gray King, Tracie Hessley, as Personal Representative of the Estate of Raivyn B. Summerfield, Deceased, Appellees.
    CASE NO. 1D16-3118
    District Court of Appeal of Florida, First District.
    Opinion filed September 29, 2017
    Rehearing Denied January 12, 2018
    Matthew C. Scarborough, Scarborough Attorneys at Law, Tampa, for Appellant.
    Stephen C. Bullock, Brannon Brown Haley & Bullock, P.A., Lake City, for Appel-lee Gerald H. Gray; No appearance for Appellees Sabrina Gray King and Trade Hessley.
   LEWIS, J.

Appellant, Florida Farm Bureau Casualty Insurance Company, appeals the. trial court’s Final Judgment Awarding Reasonable Attorneys’ Fees. Appellant raises three issues on appeal, only one of which merits discussion and reversal. Appellant contends that the trial court erred in applying a contingency risk multiplier to the attorney’s fees it awarded to Appellee, Gerald H. Gray, because the fee agreement between Appellee and his attorney was a non-contingent fee' agreement. We agree with Appellant and, therefore, reverse the judgment as to the application of the multiplier, but otherwise affirm.

After a wrongful death suit was brought against Appellee, Appellant filed a Complaint for Declaratory Judgment, requesting that the- trial court enter a judgment declaring that it had no duty to defend or indemnify Appellee. As a result of these actions, Appellee sought legal .representation.

Appellee’s attorney’s fee agreement with his counsel provided in part:

1. You have employed our firm to represent you. We appreciate your confidence in our firm and want to acquaint you with our method of handling your matters. This letter is intended to set forth our firm’s agreement with you as to the nature and scope of the legal services the firm.will be performing, the manner in which the firm’s fees for those services will be determined, and the terms upon which, payment will be made.
OUR BILLING RATES
2. Our normal legal services would be billed at the rate of $350.00 per hour for the firm’s, partner attorneys’ time and $250.00 for the firm’s associate attorneys. We use paralegals or legal assistants when possible, and their rates are $85 per hour. However, we may record higher hourly charges and in the event the Court were to award legal fees and costs then [sic] -any higher amount awarded by the Court, including any multipliers, will then be the amount of legal fees.
INITIAL PAYMENT
3.We require an initial lump sum payment of $5,000.00 at the signing of this Agreement to be applied toward the final attorneys’ fee amount billed and/or awarded by the Court in No. 2 above.

The fee agreement further provided that “[termination of our services by you or-by us shall nob relieve you from payment of any amounts owed for services rendered by us through the date of termination” and that Appellee would be “responsible for reasonable attorneys’ fees” in the event the “firm uses the services of an attorney to collect any sums owed on any account” of Appellee.

After Appellant admitted coverage, Ap-pellee moved for attorney’s fees, arguing in part that the trial court should apply a 2.5 multiplier given that the “fee agreement contained a contingency component for an amount to be awarded by the Court.” Appellee’s counsel sought $80,695 in attorney’s fees.

During the attorney’s fee hearing, Appellant’s counsel argued in part that the fee agreement was not a contingency fee contract “because basically no matter what the fee up to a certain amount of money, in this case $350 an hour, is to be recovered whether the client win[s] or lose[s].” He also argued that the fee agreement was not a partial contingency fee contract because Appellee’s counsel charged his normal hourly rate. Appellee’s counsel, Stephen Bullock, later testified that his normal hourly rate is $350 an hour. When asked if he was going to charge Appellee $350 an hour “even if you were to lose the coverage action for whatever reason,” Bullock replied, “What I said was that that’s our normal billable rate. And then I said, however, we may record a- higher hourly charge- in the event the Court were to award legal fees. We’re now at that juncture..., This was just if the court didn’t — listen, if we lost the case we’d be at 350 an hour.” He also testified, “If we lost the case we’d be at 350 an hour. But the agreement says if we don’t lose the case the Court is going to set the hourly rate .... ” When asked if he agreed that “this is ;not a full contingency fee agreement,” he replied, “it’s a hybrid.” When asked if he agreed -that it-was not a partial contingency fee contract, he replied, “It’s a hybrid, that’s what I said.” When asked if he was calling his fee agreement a “hybrid contingency, fee” contract, he replied, “My — no. It’s contingency only in the. sense that the Court is going to set the hourly .... That’s not what it says. Here’s what it says. It says is contingent on the Court setting the amount of the fee. That’s all. That’s the only thing that’s contingent.”

Following Bullock’s testimony, as well as the testimony of the parties’ expert witnesses as to a reasonable fee, the trial court entered a Final Judgment Awarding Reasonable Attorney’s Fees, wherein it characterized the fee agreement as a “hybrid partial contingency fee contract.” The trial court accepted the- testimony of Ap-pellee’s attorney and expert witness and found that Appellee’s potential success in the case was unlikely at the outset and it was through the efforts and legal skill of Appellee’s counsel that positioned him for “ultimate settlement.” After noting that it had considered several final judgments entered by other judges in the Third Judicial Circuit, the trial court concluded that seventy hours of time spent on the case was reasonable, as was $450 per hour for attorney Bullock and $350 per hour for an associate attorney in Bullock’s firm. The trial court decided that a multiplier of 2.0 was justified, for a total amount of-$72,000 in attorney’s fees. This appeal followed.

The trial court awarded Appellee attorney’s fees pursuant to section 627.428(1), Florida Statutes (2015), which provides:

Upon, rendition of a judgment or decree by any of the courts of this state against, an insurer and in favor of any named ... insured ..., the trial court or,, in the event of an appeal in which the insured ... prevails, the appellate court shall adjudge, or decree against, the insurer and in favor of the insured ... .a reasonable sum as fees or compensation for the insured’s .,. attorney prosecuting the suit in which the recovery is had.

Appellant does not dispute Appellee’s entitlement to fees,-but argues that the trial court erred in awarding a' contingency fee multiplier where the fee agreement -was non-contingent in nature. For the following reasons, Appellant’s argument is well-taken, and reversal as to the multiplier is warranted.

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla. 1985), the supreme court discussed the “lodestar process” of determining attorney’s fees, the factors to be considered in determining a reasonable fee, and contingency risk factors. The supreme court explained, “Because the attorney working under a contingent does not prevail, he must charge a client more -thfee contract receives no compensation when his client an the attorney who is- guaranteed remuneration for his services.” Id, at; 1151. In determining whether a multiplier is necessary, a- trial ■ court is. to, consider: (1) whether the relevant market .requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990).

In this case, it is undisputed that the fee agreement was not a full contingency fee agreement. The trial court found that the fee agreement was a “hybrid partial contingency fee” contract, as argued by Appellee. In Lane v. Head, 566 So.2d 508, 510 (Fla. 1990), the supreme court explained that one of the purposes of Rowe was to encourage attorneys to take cases under contingency fee arrangements, “thereby making legal services more widely available to those who otherwise could not afford them.” The supreme court explained that a multiplier is within the trial court’s discretion in those instances in which the “contingency-fee arrangement is only partial” because “this policy also will encourage attorneys to provide services to persons who otherwise could not afford the customary legal fee.” Id. at 510-11. The supreme court held that the fee agreement at issue constituted a partial contingency fee arrangement because the fee agreement required the appellant to pay his attorney the greater of $100 an hour or twenty-five percent of the amount actually recovered, and the undisputed testimony established that the attorney’s customary reasonable fee was $150 an hour. Id. at 509. After noting that the attorney would have received only two-thirds of his usual fee had the appellant lost the cáse, the supreme court set forth, “We use the term ‘partial contingency-fee- arrangement’ to mean those instances in which an attorney is guaranteed a fee that is less than his or her customary reasonable fee if the client loses, but the opportunity for an enhanced fee if the client prevails.” Id. at 513 n.l. It concluded that .attorneys taking partial contingent cases are not entitled to the same enhancement of the customary reasonable fee that would be available if the fee arrangement were fully contingent. Id. at 511; see also Goodman v. Tectonics Unlimited, Inc., 861 So.2d 485, 485 (Fla. 4th DCA 2003) (holding that the appellee’s fee agreement with its attorney was a partial contingency fee. arrangement “ ‘where ‘an attorney is guaranteed a fee that is less than his or her customary reasonable fee if the client loses, but the opportunity for an enhanced fee if the client prevails’ ” and noting that the appel-lee agreed to pay its appellate attorney $1,500 as a “‘partial flat fee,”’ the fee agreement contemplated that if the appel-lee prevailed in the appeal, the attorney would seek a court-awarded'fee, and that if the attorney collected .the awarded fee from the appellants, the attorney would refund up to $1,500 to the appellee (citátion omitted)).

Here, in contrast to the fee agreement in Lane, where the attorney was guaranteed an hourly rate below his customary rate, Appellee’s attorney testified that his usual billing rate is $350 an hour. The “Our. Billing Rates” section of the fee agreement provided in part, “Our normal legal services would be billed at the rate of $350.00 per hour for the firm’s partner attorneys’ time and $250.00 for the firm’s associate attorneys.” The agreement' required an initial payment of $5,000 “to be applied toward the final attorneys’ fee amount billed and/or awarded by the Court ..,. ” When asked on cross-examination if he was going to “be charging” Appellee $350 an hour if he were to lose the coverage action, Bullock replied in part, “[I]f we lost the case we’d be at 350 an hour.” When asked if hfe was calling his contract a hybrid contingency fee agreement, Bullock replied, “It says [it] is contingent on the Court setting the amount of the fee. That’s all. That’s the only thing that’s contingent.” Based upon these facts, the trial court’s determination that the fee agreement is a partial contingency fee contract is erroneous.

Although Appellee argues on appeal that he “indicated [below] that he would not and could not pay any legal fees for the declaratory action,” we previously rejected a similar argument in the context of whether an inability to pay one’s contracted attorney’s fees transformed a fee agreement into a contingent fee agreement. See Superior Ins. Co. v. Cordle, 851 So.2d 207, 207 (Fla. 1st DCA 2003) (agreeing with the appellant that the trial court erred in applying a “ ‘contingent risk’ ” multiplier where the insured’s attorney “ ‘would have technically been entitled to recover his fee up to $200.00 per hour from the client, win or lose’” but agreed to a reasonable fee awarded by the court and holding that the “likelihood that the client will not pay the agreed-upon hourly fee is not the criterion upon which ‘contingency’ in this context is based”).

Accordingly, we reverse the final judgment as to the application of the multiplier, but otherwise affirm. On remand, the trial court is instructed to recalculate the attorney’s fee award without applying a multiplier.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

ROBERTS, J., CONCURS; WINSOR, J., CONCURS IN RESULT.


author: PER CURIAM.

text:
    Antoine T. WINSLETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1796
    District Court of Appeal of Florida, Second District.
    Opinion filed October 4, 2017
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006); Westberry v. State, 906 So.2d 1141 (Fla. 3d DCA 2005); Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002).

LaROSE, C.J., and CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Miriam HERNANDEZ, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 3D17-764
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017

      Miriam Hernandez, in proper person.
    Shapiro, Fishman & Gaché, Kimberly N. Hopkins and Ronald M. Gaché (Tampa), for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See PNC Bank, N.A. v. Clark, 211 So.3d 265 (Fla. 3d DCA 2017); Ortiz v. PNC Bank, N.A., 188 So.3d 923 (Fla. 4th DCA 2016); Clay Cty. Land Tr. No. 08-04-25-0078-014-27 v. JPMorgan Chase Bank, N.A., 152 So.3d 83 (Fla. 1st DCA 2014).


text:
    Gerald RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3180
    District Court of Appeal of Florida, Second District.
    Opinion filed October 11, 2017.
    Rehearing Denied December 13, 2017
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mr. Rodriguez appeals from the judgment and sentence entered following the revocation of probation for the 2012 count of manufacturing marijuana, for which the trial court originally accepted his plea and withheld adjudication while he served the probationary sentence. We affirm the revocation and the judgment and sentence that were entered without further comment, but because the order of revocation does not specify the conditions Rodriguez admitted violating, we remand for the entry of an order specifying those conditions. See Huggins v. State, 216 So.3d 785 (Fla. 2d DCA 2017).

Affirmed; remanded with directions.

NORTHCUTT, BLACK, and SALARIO, JJ., Concur.


text:
    Brenda WILLIAMS, et al., Appellants, v. Marye JOHNSON, et al., Appellees.
    No. 3D16-2898
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    Rehearing Denied November 8, 2017
    Law Offices of Robin Bresky, Daniel S. Weinger and Robin Bresky (Boca Raton), for appellants.

      Legal Services of Greater Miami, Inc., Jacqueline C. Ledón and Anna-Bo Emmanuel, for appellees.
    Before EMAS, LOGUE and LINDSEY, JJ. ' '
   PER CURIAM.

Appellants Brenda Williams and Epiphany Community Development Corp. appeal from the trial court’s entry of judgment 'in accordance with appellees’ motion for directed verdict in favor of appellees, Marye Johnson and Comprehensive Outreach Programs, Inc. Upon our de novo review, we hold that the trial court properly granted appellees’ motion and entered judgment in their favor. Appellants sought damages on a theory of unjust enrichment. However, given the existence of an express contract covering the same subject matter, “claims arising out of that contractual relationship will not support a claim for unjust enrichment.” Moynet v. Courtois, 8 So.3d 377, 379 (Fla. 3d DCA 2009), disapproved of on other grounds, Bank of New York Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So.3d 282 (Fla. 2015). See also Braham v. Branch Banking and Trust Co., 170 So.3d 844 (Fla. 5th DCA 2015) (citing Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So.2d 696 (Fla. 1st DCA 2008) for the proposition that plaintiff could.not pursue unjust enrichment claim where express contract existed concerning the same subject matter); Atlantis Estate Acquisitions, Inc., v. DePierro, 125 So.3d 889 (Fla. 4th DCA 2013); Kovtan v. Frederiksen, 449 So.2d 1 (Fla. 2d DCA 1984).

Affirmed.


text:
    AMERICAN TREE SERVICE, Clarendon National Insurance Company/Enstar, Petitioners, v. Eric BUNDSHUH, Respondent.
    CASE NO. 1D17-1197
    District Court of Appeal of Florida, First District.
    Opinion filed October 16, 2017.
    Robert B. Griffis of Jones, Hurley & Hand, P.A., Orlando, for Petitioners.
    Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa, for Respondent.
   PER CURIAM.

In this proceeding of original jurisdiction, Petitioners are the Employer/Carrier in a workers’ compensation case, and Respondent is the injured worker. Petitioners seek to prohibit any further action stemming from a show cause order entered against them by a Judge of Compensation Claims (JCC).

The petition is heréby dismissed as moot because no justiciable controversy remains. Even though Petitioners have responded to the JCC’s show cause order, the JCC who entered that show cause order has been recused, and the successor JCC has entered an order that he will not, at this time, act on or enforce the previous JCC’s order to show cause. Prohibition is not appropriate at this time, as there is no impending injury that cannot be reviewed by other means.

DISMISSED.

LEWIS, KELSEY, and M.K. THOMAS, JJ„ CONCUR.


author: ROTHENBERG, C.J.

text:
    Joshua Luther FULLER, Appellant, v. Shelby SANDLER n/k/a Shelby Kempler, Appellee.
    No. 3D17-76
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017.
    Marks & West, P.A., and Evan R. Marks and Carolyn W. West, for appellant.
    Berger Singerman LLP, and Kathleen S. Phang. and David Archer, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
   ROTHENBERG, C.J.

The former husband, Joshua Luther Fuller, appeals from an order denying his motion to vacate and for relief from a temporary stay away order. The denial was without prejudice to allow the trial court to conduct an evidentiary hearing on the former husband’s motion. Because the order appealed is a” non-final, non'-appeal-able order, we dismiss the appeal for lack of jurisdiction and remand to the trial court to conduct the evidentiary hearing. See Lamothe v. Sellars, 695 So.2d 1259, 1260 (Fla. 4th DCA 1997) (holding that stay away orders are not injunctions, but rather “protective or-case management orders being used by the court to controhthe proceedings before it,” and therefore, Stay away orders are not reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), which authorizes review of non-final orders granting injunctions).

Dismissed and remanded.


text:
    Othlone RUSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2677
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017.
    Rehearing Denied November 6, 2017
    Othlone Russ, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole-Hiciano, Assistant Attorney General, for appellee.

      Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   PER CURIAM.

Othlone Russ appeals the summary denial of his postconviction motion under Florida Rule of Criminal Procedure 3.850. His claim addresses the constitutionality of his sentence following United States Supreme Court and Florida decisions relating to juvenile non-homicide offenders. See, e.g., Henry v. State, 175 So.3d 675 (Fla. 2015).

We directed the State to file an answer brief in the present case, and the State has conceded that this case should be remanded for consideration of the resentencing provisions of chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. The State has requested that this case be held in abeyance, however, pending resolution of Franklin v. State, No. SC14-1442, in the Florida Supreme Court.

As we did in Miller v. State, 208 So.3d 834 (Fla. 3d DCA 2017), and Ortiz v. State, 225 So.3d 309 (Fla. 3d DCA July 19, 2017), we reverse and remand with direction that the trial court is to apply the resentencing provisions identified above. We acknowledge that the State has sought discretionary review of Miller and that the Florida Supreme Court has stayed proceedings in that case pending disposition of Franklin. We decline to abate this appeal, but do so recognizing that the State may seek review and a stay, as in Miller, in the Florida Supreme Court pending disposition of Franklin.

Reversed and remanded for resentenc-ing.

      . Review granted November 28, 2016, 2016 WL 9454209, from Franklin v. State, 141 So.3d 210 (Fla. 1st DCA 2014). The Florida Supreme Court docket discloses that the Court dispensed with oral argument and that merits briefs were complete in March 2017.

      . State v. Miller, No. SC17-325 (stayed pending disposition of Franklin May 3, 2017).


author: MORRIS, Judge.

text:
    Elizabeth A. WALKER n/k/a Elizabeth W. Leskovich, Appellant, v. David J. WYRICK, Appellee.
    Case No. 2D17-287
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017
    Jeffrey A. Rapkin, Punta Gorda, for Appellant.
    No appearance for Appellee.
   MORRIS, Judge.

The former wife, Elizabeth Walker n/k/a Elizabeth Leskovich, appeals from a supplemental final judgment modifying parenting plan/timesharing. We affirm the modification of timesharing without further comment. We dismiss the portion of the appeal challenging the trial court’s ability to modify child support as the trial court has not rendered a final order on that issue and it is therefore not yet ripe for our review.

Affirmed in part; dismissed in part.

LaROSE, C.J., and SILBERMAN, J., Concur.


text:
    Willie F. HALE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D16-4988
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017.
    Willie F. Hale, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DENIED, Respondent’s motion, filed on August 7, 2017, is granted, and the petition for writ of certiorari is dismissed as moot.

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


author: LaROSE, Chief Judge.

text:
    Christine HERENDEEN, as trustee of the bankruptcy estate of Christopher X. Hutchins, Appellant, v. Samuel R. MANDELBAUM, Esq.; Kevin J. Fitzsimmons, Esq.; John N. Cain, Esq.; and Mandelbaum, Fitzsimmons & Hewitt, P.A., Appellees.
    Case No. 2D15-4300
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017

      Scott A. Arthur and Lee D. Gunn, IV, of Gunn Law Group, P.A., Tampa, for Appellant.
    Scott A. Cole and Melinda Thornton of Cole, Scott & Kissane, P.A., Miami; and Joseph T. Kissane and Paula A. Post of Cole, Scott & Kissane, P.A., Jacksonville, for Appellees.
   LaROSE, Chief Judge.

Christine Herendeen, the trustee for Christopher Hutchins’ bankruptcy estate, appeals a final sumniary judgment entered in favor of Samuel Mandelbaum, Kevin Fitzsimmons, John Cain, and Mandelbaum, Fitzsimmons '& Hewitt (collectively, “Man-delbaum”). Mr. Hutchins retained Mandel-baum to defend him in a wrongful death lawsuit, Ms. Herendeen later sued Mandel-baum for legal malpractice, claiming that Mandelbaum failed to defend against a punitive damages claim asserted against Mr. Hutchins.

Ms, Herendeen maintains that the trial court improperly granted summary judgment. She argues that, as trustee, she can seek- damages for the bankruptcy estate caused by a negligent lawyer. She also argues that the discharge of the wrongful death judgment by the bankruptcy court did not extinguish her cause of action for legal malpractice.

The trial court erred in concluding that the bankruptcy discharge' extinguished a debt so as to preclude Ms. Herendeen’s lawsuit. The trial court also erred in con-eluding that public policy barred Ms. Her-endeen’s effort to recover damages. Ms. Herendeen should be allowed to pursue her cause of action for legal malpractice against Mandelbaum. Accordingly, we reverse. '•

Standard of Review

A trial court should grant a motion for summary judgment only if there are no genuine issues as to,any material fact and the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). We review a summary judgment de novo. See Volusia Cty v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

Background

Mr. Hutchins accidentally shot and killed Jessica Leigh Fraccalvieri. He pleaded guilty to manslaughter by culpable negligence. The trial court sentenced him to fifteen years in prison.

Ms. Fraccalvieri’s estate sued Mr. Hutchins for wrongful death. He hired Mandelbaum to represent him. Because Mr. Hutchins was in prison, Mandelbaum decided not to have him' attend the trial. Apparently, the defense was “to be as contrite and as apologetic as possible because [there was] no other way to defend this case. He killed a young mother.” Man-delbaum presented no evidence about Mr. Hutchins’ net worth. Nor did Mandelbaum move for a directed verdict as to punitive damages based on Mr. Hutchins’ inability to pay. The jury returned a hefty verdict against Mr. Hutchins that -included $500,000 in punitive damages. Belatedly, Mandelbaum sought relief from the punitive damages award, arguing that Florida law prohibits an award against a financially drained wrongdoer. The trial court refused to remit the award. It entered a final judgment against Mr, Hutchins.

A few months later, Mr. Hutchins filed for 'Chapter 7* bankruptcy protection. See 11 U.S.C.'§ 301 (2012). The bankruptcy court appointed Ms. Herendeen as the trustee of the' bankruptcy estate. The bankruptcy court eventually discharged Mr. Hutchins’ debts, including the wrongful death final judgment.

Although Mr, Hutchins never complained about Mandelbaum’s representation, Ms. Herendeen sued the lawyers. She alleged that Mandelbaum failed to defend Mr. Hutchins properly against the punitive damages claim in the wrongful death case. Mandelbaum moved for summary judgment. The lawyers contended that affirmative defenses eight and nine barred Ms. Herendeen’s claims. At the hearing on Mandelbaum’s motion, the parties agreed that the issue of breach of duty was not then before the trial court. The trial court granted Mandelbaum’s motion. This appeal follows. ‘

Analysis

A Discharged Judgment Does Not Bar the Trustee’s Claim

We begin by discussing whether a judgment discharged in bankruptcy can be considered “damage” to support a legal malpractice cause of action brought by the bankruptcy trustee. Mandelbaum’s ninth affirmative defense is not legally sound. Thus, the trial court erred in entering summary judgment on that basis.

At the time he filed for bankruptcy, Mr. Hutchins had a potential legal malpractice claim against. Mandelbaum. This claim became the property of the bank-ruptey estate. As the Fifth Circuit explained:

Such an estate comprises all “legal or equitable interests [of the debtor] in property as of the commencement of the [bankruptcy] case,” which includes any “causes of action belonging to the debtor at the time the case is commenced.” [In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001) ] (citing 11 U.S.C. § 541(a)(1) and La. World Exposition v. Fed. Ins. Co., 858 F.2d 233, 245 (5th Cir. 1988)).... The trustee of a debtor’s bankruptcy estate may pursue any claims that are property of the bankruptcy estate. 11 U.S.C. § 323; Wieburg v. GTE Sw. Inc., 272 F.3d 302, 306 (5th Cir. 2001) (“Because the claims are property of the bankruptcy estate, the Trustee is the real party in interest with exclusive standing to assert them.”).

Stanley v. Trinchard, 500 F.3d 411, 418 (5th Cir. 2007) (first and second alternation in original). “The law is well established that under § 541(a) of the Bankruptcy Code, ‘[a] bankruptcy trustee stands in the shoes of the debtor.’ ” O’Halloran v. PricewaterhouseCoopers LLP, 969 So.2d 1039, 1046 (Fla. 2d DCA 2007) (quoting Official Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1150 (11th Cir. 2006)). “The Bankruptcy Code provides that property of the debtor estate includes ‘all legal or equitable interests of the debtor in property as of the commencement of the case.’ ” Official Comm. of Unsecured Creditors of PSA, Inc., 437 F.3d at 1149 (quoting 11 U.S.C. § 541(a)(1)). Ms. Herendeen could pursue the malpractice claim because it belonged to the estate upon filing of the Chapter 7 petition.

Mandelbaum asserts that Mr. Hutchins was not damaged by the punitive damages award because the bankruptcy court discharged that debt. However, the discharge of Mr. Hutchins’ personal liability under the wrongful death judgment did not eliminate the debt of the bankruptcy estate. See Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12, 15 (Fla. 1993); Stanley, 500 F.3d at 425 (holding that bankruptcy discharge eliminates only a debtor’s personal liability and not the debt itself and that a bankruptcy trustee stands in the shoes of the debtor and can bring a legal malpractice claim as trustee).

But, Mandelbaum asserts, the bankruptcy estate has no assets other than the potential recovery from this legal malpractice suit and a bad faith settlement lawsuit filed by special counsel for the bankrupt estate. Noting that the judgment debt was discharged without objection, Mandelbaum argues that the only person who could have brought a claim against the bankruptcy estate was Ms. Fraccalvieri’s estate. Mandelbaum presses that there is no “competing body of creditors” with an interest in the assets, save for the trustee and her attorneys. .

Mandelbaum misses the mark. The trustee and professionals acting for the estate are entitled to compensation. See 11 U.S.C. § 330. Ms. Herendeen, as trustee of the bankruptcy estate, stands in the shoes of Mr. Hutchins as to claims existing on the date of filing. She is entitled to pursue such claims so as to maximize the assets of the bankruptcy estate. To achieve that goal, Ms. Herendeen can pursue any claim that Mr. Hutchins could have pursued pri- or to filing bankruptcy.

Public Policy Does Not Bar Recovery From Mandelbaum

Ms. Herendeen argues that the bankruptcy trustee can seek damages caused by Mandelbaum’s failure to defend Mr. Hutchins against a punitive damages claim. In the eighth affirmative defense, Mandelbaum “affirmatively allege[d] that [the] action is barred as a matter of public policy regarding recovery for punitive damages from a non-party to a punitive damage award.” In Mandelbaum’s view, the punitive damages award rests with Mr. Hutchins, alone; after all, he killed Ms. Fraccalvieri. The position is too facile. Mandelbaum ignores the fact that the lawyers’ alleged malpractice exposed Mr. Hutchins to punitive damages. The parties have directed us to no Florida statutory or case, law on point. We are chary to conclude that Florida public policy insulates the lawyers from the consequences of the misconduct alleged by Ms. Herendeen.

“In a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery.” Jones v. Law Firm of Hill & Ponton, 223 F.Supp.2d 1284, 1287 (M.D. Fla. 2002) (citing Sure Snap Corp. v. Baena, 705 So.2d 46, 48 (Fla. 3d DCA 1997)). “For a party'to recover for legal malpractice, three elements must be proven: (1) the attorney was employed by or in privity with the plaintiff(s); (2) the attorney neglected a reasonable duty to the client(s); and (3) the negligence proximately caused any loss to the plaintiffs).” Gresham v. Strickland, 784 So.2d 578, 580 (Fla. 4th DCA 2001) (citing Dadic v. Schneider, 722 So.2d 921, 923 (Fla. 4th DCA 1998)).

In trying to avoid a public policy bar, Ms. Herendeen relies on Ging v. American Liberty Insurance Co., 423 F.2d 115 (5th Cir. 1970). There, the Fifth Circuit held that summary judgment for the insurer was inappropriate where an insurer- allegedly breached its duty to defend its client in a lawsuit seeking compensatory and punitive damages. Ms. Herendeen argues that an attorney who breaches its duty to defend a client against a punitive damages claim should be treated no differently than the insurer. Mandelbaum observes that Ging is an insurance bad faith case and, thus, inapposite. Mandelbaum’s point is well taken.

Ging, 423 F.2d at 116, involved an insurer who undertook the complete defense of its insured in a case arising out of a deadly automobile accident. The plaintiff sought compensatory and punitive damages from the insured. Id. Indisputably, the insurer owed a duty to act in good faith' toward its insured. Id. Upon assuming the defense, the insurer advised its insured that “the suit sought recovery for punitive damages which were not covered 'by the policy of insurance.” Id. at 117. It advised that the insured could retain separate counsel. Id. As the case progressed, the insurer failed to apprise the insured of repeated settlement offers. Id at 117-18. Significantly, the insurer did not relay to its insured its concerns about a likely award of punitive damages. Id. at 117. The insurer also failed to timely report the outcome of the trial to its insured. Id. at 118. The trial resulted in an award of compensatory damages of $14,695, later reduced to $11,195, and punitive damages of $25,000. Id at 117. Being left in the dark by the insurer, the insured was personally liable for-the punitive damages. Id. at 118.

Ging does not hinge on the award of punitive damages. Nor does it find foundation as a legal malpractice case. It is a case where questions of material fact remained as to the insurer’s duty to act in good faith in trying to resolve the lawsuit within policy limits. At its core, Ging centers on the insurer’s failure to keep its insured apprised of developments in the case. The insurer failed to notify the insured of settlement opportunities, to warn about the actual difficulties litigation posed to the insured, to advise the insured of the outcome of the litigation, and to conduct the settlement negotiations in good faith. Id. at 120-21. Ging does not stretch as far as Ms. Herendeen would like.

But Mandelbaum fares, no better in asserting that Lohr v. Byrd, 522 So.2d 845 (Fla. 1988), .is dispositive. Unfortunately for the lawyers, that case does not fit nicely here. In Lohr, the supreme court refused to allow a punitive damages award to be taken from the deceased tortfeasor’s estate. The purpose of punitive damages is to punish the offender, not to compensate the victim. Id. at 846-47- Taking money from the estate would punish the innocent and make the estate an indemnitor of the guilty tortfeasor. Obviously, upon the death of the tortfeasor, taking money away from the estate’s beneficiaries would serve no, purpose to which punitive damages are addressed.

Florida law does not allow indemnification against punitive damages. Queen v. Clearwater Elec., Inc., 555 So.2d 1262, 1266 (Fla. 2d DCA 1989) (“Florida public policy prohibits liability insurance coverage for punitive damages assessed against a person because of his wrongful conduct.” (citing U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla. 1983))). But that is not what Ms. Herendeen seeks. She correctly observes that no public policy absolves Mandelbaum from the toll of the lawyers’ alleged malpractice.

This makes sense. Punitive damages “operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing.” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1262 (Fla. 2006) (quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)). But, it is equally clear that punitive damages should not financially cripple the tortfeasor. Thus, “evidence of defendant’s financial ability to pay punitive damages is admissible, that is to say that it is permissible when considering punitive damages to allow the introduction of evidence of financial worth.” Rinaldi v. Aaron, 314 So.2d 762, 763 (Fla. 1975). “If defendant’s financial worth is meager, it would be to his advantage to introduce such evidence in order to mitigate the damage award.” Id. at 765.

Ms. Herendeen alleges ‘ that Mandel-baum failed to properly defénd the suit. By not presenting any evidence of Mr: Hutch-ins’ financial wherewithal, Mandelbaum arguably exposed him to $500,000 in punitive damages. See, e.g. Hunt v. Dresie, 241 Kan. 647, 740 P.2d 1046, 1057 (1987) (holding that client was not barred from recovering all damages in legal malpractice suit assessed against him in previous case); Scognamillo v. Olsen, 795 P.2d 1357, 1361 (Colo, App. 1990) (same); Picadilly, Inc. v. Raikos, 555 N.E.2d 167, 169-70 (Ind. Ct. App. 1990) (same but client failed to prove essential elements of legal malpractice claim) (vacated on other grounds, 582 N.E.2d 338, 345 (Ind. 1991) (holding that legal malpractice claims are not assignable)). If a lawyer is hired to represent someone in a lawsuit and negligently fails to raise a meritorious defense causing harm to this client, the client should have recourse against the negligent lawyer. “But for the legal malpractice, the client would have had no judgment against him.” Hunt, 740 P.2d at 1057.

As the Kansas Supreme Court held,

[t]he damages [the client] had to pay ■under the [previous] judgment included damages called punitive damages from the vantage point of that lawsuit. From the vantage point . of this lawsuit, should Hunt be successful, all the damages are simply those which proximately resulted from his attorneys’ negligence; they are no longer .properly called punitive damages. If they were called punitive damages and the trial court’s decision ■properly , denied their recovery, then any attorney representing a client who might be assessed punitive damages in a lawsuit could rest easy, secure in the knowledge that any improper handling of the suit, even intentional actions, could not subject the attorney to any malpractice liability at all.

Id. (emphasis added). Similarly, a Colorado appellate court held that “the punitive damages assessed in the underlying case are part and parcel of the damages plaintiffs suffered as a result of defendants’ alleged negligence.” Scognamillo, 795 P.2d at 1361 (“In a legal malpractice action based on an attorney’s breach of his duty to represent his client in a prior case, it.is the defendant attorney’s conduct and its consequences, rather than the conduct of the client that resulted in the underlying case, which governs the analysis of damages. Thus, if the defendant attorney’s negligence results in entry of a judgment when there otherwise would have been no judgment, the proper measure of damages is the entirety of the prior judgment regardless of the theory upon which the prior judgment was entered or the nature of the damages assessed thereunder.” (citing Hunt, 241 Kan. 647, 740 P.2d 1046)).

Admittedly, the Georgia Court of Appeals has held that allowing the tortfeasor to shift its liability for punitive damages .to former counsel “would be contrary to the public policy of Georgia, even, if former counsel were found liable for legal malpractice in the action in which punitive damages were awarded.” Paul v. Smith, Gambrell & Russell, 267 Ga.App. 107, 599 S.E.2d 206, 211 (Ga. Ct. App. 2004). We' think Paul is'out of step with other jurisdictions. Moreover, the reasoning underlying its holding is not enlightening.

Although the awarded punitive damages were intended to punish Mr. Hutchins, allowing Ms. Herendeen to proceed with the malpractice claim will not improperly shift punitive damages to Mandelbaum or make Mandelbaum an indemnitor. Rather, Mandelbaum may have to respond to the results of the alleged legal malpractice.

Conclusion

The trial court erred in concluding'that the bankruptcy trustee could not pursue a claim on a discharged debt and in concluding that public policy barred Ms. Heren-deen’s claim against Mandelbaum. Therefore, we must reverse the final judgment and remand for further proceedings. We caution the parties that our decision is in no way intended to decide whether Man-delbaum enjoys “judgmental immunity.” See Crosby v. Jones, 705 So.2d 1356, 1358 (Fla. 1998). Nor do we express any view of whether Mandelbaum breached a duty owed to Mr. Hutchins that caused him damages.

Reversed and remanded.

WALLACE and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . The eighth affirmative defense alleged that Ms. Herendeen’s action was barred as a matter of public policy regarding recovery for punitive damages from a nonparty. The ninth affirmative defense alleged that Ms. Heren-deen had not been damaged by the judgment because the debt was discharged in the bankruptcy proceeding.


author: LUCAS, Judge.

text:
    STATE of Florida, Appellant, v. James BATTLE, Appellee.
    Case No. 2D16-640
    2D16-1541
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017.
    Rehearing Denied December 13, 2017

      Pamela Jo Bondi, Attorney General, .Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellee.
   LUCAS, Judge.

The circuit court granted James Battle’s dispositive pretrial motion to suppress in two related cases. Because the vehicle Mr. Battle was driving had indeed been parked illegally, the stop and search of his vehicle was valid, and we are compelled to reverse the circuit court’s ruling.

The facts underlying the State’s appeal come to us following a fairly succinct suppression hearing. Hillsborough County Sheriffs Deputy Frederick Mezzatesta was looking for a suspect in an unrelated criminal investigation when he observed Mr. Battle lounging around a parked vehicle near an apartment building in Tampa. The car was, as Mr. Battle acknowledged in his motion to suppress, “parked facing east on the westbound side of the street”; in other words, it was parked on the wrong side of the road. Deputy Mezzatesta testified that he observed Mr. Battle handling a shotgun in the presence of individuals whom the deputy happened to know were convicted felons (none of these felons actually handled the shotgun, apparently). Deputy Mezzatesta did not know who Mr. Battle was or anything else about him, but he saw Mr. Battle place the shotgun into the car’s trunk and get into the driver’s seat of the illegally parked car. The deputy then called in marked units.

Deputy Sarah Ernstes was one of the law enforcement officers who responded to Deputy Mezzatesta’s call. She testified that Deputy Mezzatesta informed her that an individual of Mr. Battle’s description had displayed a weapon to two known, convicted felons. When Deputy Ernstes arrived at the scene, she said that Mr. Battle’s car was still parked on the wrong side of the road. After observing Mr. Battle pull out and perform a U-turn to get into the correct flow of traffic, Deputy Ernstes proceeded to conduct a stop of Mr. Battle’s car at gunpoint. When asked why she conducted such a stop, she replied that it was because of the parking infraction. Through a computer check, it was discovered that Mr. Battle was, himself, a convicted felon. The car was searched and the shotgun was recovered, as was a clear baggie of white powder that tested positive for the presence of cocaine.

Mr. Battle was charged in these cases with possession of a firearm by a convicted felon and possession of cocaine. He moved to suppress the physical evidence obtained as a result of the search, arguing that the stop of the vehicle he was driving was unlawful. As Mr. Battle argued, there is no crime against peacefully showing other people — even felons — a shotgun in the manner cursorily described by Officer Mezzatesta; “he walked back to the trunk, opened it, pulled out a shotgun, turned toward the three [felons]. [I]t looked like ... he was showing it to them. He was kind of tilting it, doing that type of stuff. He had it maybe less than a minute. He then put it back in the trunk.” Cf. Wright v. State, 19 So.3d 277, 294 (Fla. 2009) (“[M]ere possession of a firearm by a non-felon is not a crime.”). Thus, he contended, Deputy Mezzatesta’s observations of his nonthreatening display of .the firearm could not have constituted a lawful basis for the traffic stop that led to the subsequent discovery of his being a felon in possession of the firearm.

The circuit court agreed. In its’amended order granting Mr. Battle’s motion to suppress, -the court concluded that Mr. Battle’s mere handling of a shotgun in the presence of others was not, in itself, probable cause to justify the subsequent traffic stop. The circuit court was apparently troubled by what it described as “conflicting” testimony on the part of Deputy Ernstes, who conducted the stop. As we read the court’s ruling on this point, the circuit court judge appeared to either: (1) disbelieve the deputy’s testimony that the car had been illegally parked, or (2) accept the testimony that the car was parked on the wrong side of the road but reject the deputy’s stated basis — the parking violation — as the motivating reason for why she initiated the traffic stop. As we will explain, the ruling was erroneous under either reading.

“When reviewing a trial court’s ruling on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo.” Hicks v. State, 929 So.2d 13, 15 (Fla. 2d DCA 2006) (quoting State v. D.D.D., 908 So.2d 1180, 1181 (Fla. 2d DCA 2005)). On appeal, such a ruling will be upheld if there is any theory or principle of law in the record which would support the ruling, State v. Adderly, 809 So.2d 75, 77 n.2 (Fla. 4th DCA 2002) (Taylor, J., dissenting) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)), but only “so long as [the theory] is consistent with the facts on which the decision was based,” Hicks, 929 So.2d at 16 n.2 (citing Aberdeen Golf & Country Club v. Bliss Constr., Inc., 932 So.2d 235, 239 n.6 (Fla. 4th DCA 2005))). So we must address both legal theories that the circuit court’s ruling may have employed.

The first theory under which this order might be upheld is that no parking infraction in fact occurred to support the stop. Without the justification of a parking-violation, there would have been no lawful basis for the deputies to have stopped and detained Mr. .Battle,, and the shotgun and white powder would have to be suppressed as the product of an illegal search. See Musallam v. State, 133 So.3d 568, 569 (Fla. 2d DCA 2014) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). But the occurrence and observation of the parked vehicle in the wrong direction of traffic was never a disputed fact in the suppression hearing. Both deputies testified, without contradiction, that the car was parked’on the wrong side of the road. And Mr. Battle specifically conceded within his motion’s “general statement of the facts on which the motion is based,” that the car had been illegally parked. See Cartwright v. State, 920 So.2d 71, 74 (Fla. 3d DCA 2006) (holding that where defendant conceded in his motion to suppress that an individual owned an apartment building, the State did not have to then prove'that individual’s authority to grant permission to enter the building’s common area). To be sure, in the hierarchy of public offenses, parking a car on the wrong side of á public road could be characterized as a relatively minor infraction. It was still an illegal act, however; and since it occurred in the presence of the sheriffs deputies, it served as probable cause which authorized their intervention to stop the vehicle and issue a citation. See State v. Nelson, 183 So.3d 1074, 1076 (Fla. 5th DCA 2015) (“Traffic violations that may justify a stop include non-criminal traffic violations.” (citing State v. Arevalo, 112, So.3d 529, 531 (Fla. 4th DCA 2013))). To the extent the circuit .court’s decision rested upon a finding that no such infraction .occurred, that finding conflicts with the unrefuted testimony at the hearing and Mr. Battle’s concession in his motion, and so we must reject such a finding as a basis to support the court’s ruling. See State v. Ross, 209 So.3d 606, 610 (Fla. 2d DCA 2016) (noting that a circuit court’s findings must be accepted by the appellate^ court only when the evidence supports those findings (citing State v. Navarro, 464 So.2d 137, 140 (Fla. 3d DCA 1985) (en banc))).

As .to the. second theory upon which the circuit court may have based its ruling — that Deputy Ernstes’ stop and search of the vehicle had nothing to do with the parking infraction but was motivated by the report that Mr. Battle had been handling a firearm in the presence of known felons — that subjective determination, even if it were accurate, would not support the suppression of this evidence as a matter of law. Simply put, a pretextual stop (such as the one that' may very well have occurred here) can still serve as a valid basis to stop and detain an individual so long as there is an objective basis for the law enforcement officer’s intervention (such as there was here). See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary,‘probable-cause Fourth Amendment analysis,”); Holland v. State, 696 So.2d 757, 759 (Fla. 1997) (“In determining whether the suppression order in the instant case should be reversed, we are constrained to review the record under the objective test of Whren. When applying the objective test, generally the only determination to be made is whether probable cause existed for the stop in question.”); State v. Thomas, 714 So.2d 1176, 1177 (Fla. 2d DCA 1998) (“The United States Supreme Court in Whren eliminated the reasonableness inquiry regarding an officer’s stop of a vehicle and substituted a strict objective test which asks only whether any probable cause for the stop exists.”). The circuit court’s finding that Deputy Ernstes. was not credible concerning her subjective motivation for why she stopped the car was simply irrelevant to the issue at hand. The ear was parked illegally. The deputy had probable cause to stop the car to issue a citation to Mr. Battle. Mr, Battle’s Fourth Amendment rights were not violated when she did so. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; Holland 696 So.2d at 759; Thomas, 714 So.2d at 1177.

Accordingly, we reverse the- circuit court’s order and remand this case for further proceedings.

Reversed and remanded.

KELLY and SALARIO, JJ., Concur.

      . See § 316.195(2), Fla. Stat. (2015) (requiring that vehicles parked on public roadways face the direction of authorized traffic movement; a violation of this section is a noncriminal traffic infraction).

      . Mr. Battle’s argument in his motion to suppress was confined to the propriety of the initial stop; he did not challenge the scope or extent of the detention or the ensuing search.

      .We relinquished jurisdiction for the entry of an amended order to resolve ambiguities in' the circuit court’s initial ruling, and the parties furnished supplemental briefing following the amended order’s entry.

      . See Fla. R. Crim. P. 3.190(g)(2).


text:
    Maria Tereza de Castelo Branco Ferreira CLEARY, aka M. Teresa Cleary, Appellant, v. Robert W. CLEARY, Appellee.
    Case No. 2D16-4691
    District Court of Appeal of Florida, Second District.
    Opinion filed November 3, 2017
    Rehearing Denied December 21, 2017

      Arnold D. Levine and Robert H. Mackenzie of Levine & Sullivan, P.A., Tampa, for Appellant.
    Lorena L. Kiely, Tampa, for Appellee.
   LUCAS, Judge.

In Cleary v. Cleary, 872 So.2d 299 (Fla. 2d DCA 2004), an opinion that provides the backdrop for the present appeal, we reversed part of the circuit court’s equitable, distribution and retroactive alimony award in a final judgment of dissolution of marriage and remanded the case for further proceedings so that the circuit court could fashion an appropriate adjustment. We do not know why, but the parties chose not to pursue the matter further in the circuit court for more than a decade. In 2014 and 2016, however, the litigants brought the dispute back before the court, seeking what was, in essence, an accounting of all the payments and transactions that had transpired which they contended should be considered in the wake of this court’s 2004 opinion and remand. On August 30, 2016, after the conclusion of evidentiary hearings in which the parties presented numerous financial documents and the testimony of accountants, the circuit court entered a final judgment. The final judgment incorporated findings from a prior omnibus order and money judgment that had been entered on October 5, 2016. Among its rulings and determinations, the circuit court’s .final judgment awarded $94,482.25 of attorney’s fees and costs to Robert W. Cleary, the Former Husband. Maria Tere-za de Castelo Branco Ferreira Cleary, the Former Wife, now appeals that ruling.

From our review of thé record, we find no error in the court’s factual determinations, including its conclusion that the attorney’s fees and costs the Former Wife incurred after a December 1, 2014, meeting between the parties’ respective accountants were not reasonable. We also agree with the circuit court’s observation in the final judgment that the Former Wife’s “pursuit of her claims [was] completely. without merit, unjustified[,] and caused attorney’s fees 'and costs for [the] Former Husband that should not have been incurred.”

What we find problematic is that the final judgment never described what legal basis supported an attorney’s fee award in favor of the Former Husband, whether it might be section 61.16, Florida Statutes (2016), Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), or the court’s “inherent authority” to sanction egregious conduct or bad faith litigation. See Moakley v. Smallwood, 826 So.2d 221, 226 (Fla. 2002); Myrick v. Myrick, 214 So.3d 769, 772 (Fla. 2d DCA 2017). Although otherwise thorough and detailed, the final, judgment is silent on this point.

In his briefing and at oral argument, the Former Husband disclaimed inherent authority as a basis for the circuit court’s ruling, instead arguing that we should simply construe the circuit court’s findings within the framework of section 61.16(1) and Rosen. We are prevented from doing so, however, because the final judgment included findings that the Former Wife was entitled to have her attorney’s fees paid for by the Former Husband (up to December 1, 2014), and that the Former Husband had an ability to pay those fees for her. Those findings preclude premising a fee award to the Former Husband under section 61.16 and Rosen. See Rogers v. Wiggins, 198 So.3d 1119, 1121 (Fla. 2d DCA 2016) (holding under section 61,16(1) and Rosen that “[wjhile the trial court may take into account the manner & which the mother litigated a case, that factor ‘does not, however, abrogate the requirement that [the mother] have the ability to pay.’ ” (second alteration in original) (quoting Zanone v. Clause, 848 So.2d 1268, 1271 (Fla. 5th DCA 2003))); Hahamovitch v. Hahamovitch, 133 So.3d 1020, 1024-25 (Fla. 4th DCA 2014) (“Rosen cannot be applied to allow an award of attorney’s fees in favor of a spouse with the greater financial ability to pay.”). Were we to categorize the final judgment’s fee award as an exercise of inherent authority — which, again, the Former Husband does not believe we should do — we would still be constrained to reverse that part of the judgment, as the disputed accounting issues concerning credits and payments between these litigants do not present the kind of “extreme case” that would give rise to this “rarely applicable” common law sanction. See Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla. 1998); Hallac v. Hallac, 88 So.3d 253, 259 (Fla. 4th DCA 2012) (“Such awards are rarely applicable and should be reserved for extreme cases ... .”).

Accordingly, we must reverse the portion of the final judgment that awards the Former Husband his attorney’s fees from the Former Wife. We affirm the judgment in all other respects. On remand, the circuit court shall enter an amended final judgment striking the fee award in favor of the Former Husband.

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

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . It is quite clear that the circuit court found the Former Husband’s expert accountant far more credible and persuasive than the Former Wife's accountant, a determination that the circuit court was free to make and that was amply supported by the record.

      . We would also observe that, although detailed in their recitation of the evidence the court considered, neither the final judgment nor the omnibus order recite factual findings of bad faith conduct with the requisite “high degree of specificity” necessary to invoke the court’s inherent authority to impose sanctions. See Moakley, 826 So.2d at 227.


author: KHOUZAM, Judge.

text:
    Haji TEHRANI, Appellant, v. 1ST SOURCE INSURANCE, INC., an Indiana corporation; Strayer Surveying & Mapping, Inc., a Florida corporation; and Robert B. Strayer, Jr., Appellees.
    Case No. 2D16-1020
    District Court of Appeal of Florida, Second District.
    Opinion filed November 3, 2017
    Rehearing Denied December 21, 2017

      George A. Vaka and Nancy A. Lauten of Vaka Law Group] P.L., Tampa, for Appellant.
    Jessica Kirkwood Alley of Freeborn & Peters, LLP,. Tampa, and Raquel Ramirez Jefferson of Phelps Dunbar, LLP, Tampa, for Appellee 1st Source Insurance, Inc., an Indiana, corporation.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

. Haji Tehrani appeals the final judgment entered in favor of 1st Source Insurance, Inc. Because the trial court erred in. granting summary judgment on Tehrani’s intentional misrepresentation claim, we reverse that portion of the final judgment. As to Tehrani’s-other claims, we affirm the final judgment without comment.

Tehrani’s complaint alleged that in late 2007, he was considering purchasing a home on Casey Key Road in Osprey, Florida. In early 2008, Tehrani entered into a contract to purchase the property contingent upon the condition of the property and its carrying costs, including the cost of flood insurance. The cost of flood insurance was dependent upon whether the home was located in a costal barrier resource area (CBRA), Tehrani asked 1st Source Insurance, his insurance broker, to advise him .as to the insurability of the Casey Road Property as well as the cost of any.available flood insurance.

Because real property located in CBRAs is not eligible for federally backed flood insurance through the National Flood Insurance Program (NFIP), 1st Source advised Tehrani to obtain an elevation certificate which would determine whether the Casey Road Property was in a CBRA. If the property was located in a CBRA, private flood insurance would be available, but at drastically increased rates. Tehrani hired Strayer Surveying and Mapping to conduct an elevation survey, and Strayer generated an elevation certificate that incorrectly provided that the Casey Key Property was not located in a CBRA.

Based on the incorrect elevation certificate, 1st Source advised Tehrani that NFIP flood insurance was available and provided quotes. Tehrani alleged that he relied on these representations and insurance quotes in deciding to close on the Casey Key Property. 1st Source ultimately represented that it had obtained a flood insurance policy on the property, and Teh-rani paid premiums for the policy.

In February 2010, the mistake in Stray-er’s original elevation certificate was discovered, and Strayer issued a corrected certificate. The corrected. certificate showed that the Casey Key property was actually located in a CBRA.

Tehrani filed suit against Strayer in May 2011 but did not add 1st Source to the suit until it filed its third amended complaint in March 2013. In the intentional misrepresentation claim against 1st Source, the complaint alleged that on multiple occasions, 1st Source represented that flood insurance was available or had been procured at certain rates for the Casey Key property. Tehrani specifically identified these statements and attached the emails to the complaint. He insisted he justifiably relied on these representations in deciding to. close on the property. Teh-rani further alleged that 1st Source was on notice that the insurance quotes it provided were false and that flood insurance was not available at the quoted rates for the Casey Key property. The complaint further alleged that contrary to 1st Source’s representations, a flood insurance policy was never -issued for the Casey Key property. Tehrani claimed that he was misled into believing that the property was insurable and, as a result, suffered damages because he was exposed to inordinately high flood insurance premiums and the property’s location in a CBRA reduced its value.

The trial court applied Indiana law to Tehrani’s claims. On appeal, neither party disputes that Indiana law applies. The court granted summary judgment in favor of 1st Source on Tehrani’s intentional misrepresentation claim, applying a two-year statute of limitations. See Ind. Code § 34-ll-2-4(a) (2009).

After the trial court entered a final judgment, Tehrani timely appealed. On appeal, Tehrani maintains that the trial court erred in applying a two-year statute of limitations to his intentional misrepresentation claim. He argues that the trial court should have applied the six-year statute of limitations applicable to claims for “relief against frauds” to this cause of action; See Ind. Code § 34-11-2-7(4). We agree.

This court reviews a trial court’s order granting summary judgment de novo. Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007). It is undisputed that Indiana law applied to this action. Under Indiana law, claims sounding in negligence are subject tó a tworyear statute of limitations. Ind. Code § 34-11-2-4(a). However, claims for “relief against frauds” are subject to a six-year statute of limitations. Ind. Code § 34-11-2-7(4). This latter six-year' period “applies to those eases involving fraud when the immediate and primary object of the, suit is to obtain relief from fraud. It does not apply to actions which fall within some other class even though questions of fraud may arise incidentally.” Martin v. Rinck, 491. N.E.2d 556, 558 (Ind. Ct. App. 1986). However, “[wjhere either of two statutes of limitations may apply to a claim, any doubt should be resolved in favor of applying the longer limitation.” Wells v. Stone City Bank, 691 N.E.2d 1246, 1249 (Ind. Ct. App. 1998). In ascertaining the applicable statute of limitations, Indiana courts examine “the substance of the cause of action by inquiring into the nature of the alleged harm.” Whitehouse v. Quinn, 477 N.E.2d 270, 274 (Ind. 1985). Merely using labels like “fraud” to characterize a claim is insufficient to bring it into the scope of the six-year statute of limitations. See, e.g., Small v. Centocor, Inc., 731 N.E.2d 22, 29 (Ind. Ct. App. 2000).

Under Indiana law, in order to state an action for fraud, the plaintiff must allege

1) that there was a material misrepresentation of past or existing fact; 2) that the representation was false; 3) that the representation was made with knowledge or reckless ignorance of its falsity; 4) that the complaining party relied on the representation; and 5) that the representation proximately caused the complaining party’s injury.

Wells, 691 N.E.2d at 1250. Here, Tehrani specifically stated a claim for fraud by alleging (1) that 1st Source made certain representations as to the availability of flood insurance; (2) that these representations were false; (3) that 1st Source knew these representations were false because they were on notice that the Casey Key property was in a CBRA; (4) that Tehrani relied on these representations; and (5) that the misrepresentations were the proximate cause of the harm sustained by Teh-rani. Moreover, the trial court was obligated to resolve any doubt in favor of the longer statute of limitation. See id. at 1249. Thus, the trial court should have applied a six-year statute of limitations to Tehrani’s intentional misrepresentation claim.

Accordingly, the trial court erred in granting summary judgment in favor of 1st Source on Tehrani’s intentional misrepresentation claim; we hereby reverse that portion of the summary judgment and remand for further proceedings consistent with this opinion. We otherwise affirm.

Affirmed in part; reversed in part; remanded.

CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Tehrani is a resident of Indiana, and 1st Source is an Indiana corporation.

      . Martin interpreted Indiana Code section 34-1-2-1, a prior version of section 34-11-2-7(4).