author: Levine, J. Taylor, J.,

text:
    Janis KELLY, as Personal Representative of the Estate of John K. Kelly, Appellant, v. GEORGIA-PACIFIC, LLC, Union Carbide Corp., Premix-Marbletite Manufacturing Co., and Imperial Industries, Inc., Appellees.
    No. 4D15-4666
    District Court of Appeal of Florida, Fourth District.
    February 22, 2017

      Paulo R. Lima, Juan P. Bauta II, and Amanda A. Kessler of The Ferraro Law Firm, P.A., Miami, for appellant.
    Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, and Stuart A. Weinstein and Laura E. Eggnatz of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, for appellee Georgia-Pacific, LLC.
    Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and Ryan S. Cobbs of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee Union Carbide Corporation.
   Levine, J.

The question presented for our review is whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the date of the decedent’s injury to recover damages for loss of consortium. Stated another way, did the legislative enactment, giving the estate’s representatives and survivors a remedy not found in the common law, “explicitly,” “clearly,” and “unequivocally” abrogate the common law requirements to recover consortium damages when those damages are awarded under the Wrongful Death Act. Because there can be no change in the common law unless the statute is “explicit and clear in that regard” and the Wrongful Death Act does not “explicitly,” “clearly,” and “unequivocally” abrogate the common law rule, we hold that a spouse who was not married to a decedent at the time of the decedent’s injury may not recover consortium damages as part of a wrongful death suit. Thus, we find that the trial court did not err in entering an order of dismissal, and subsequently entering a final judgment. We therefore affirm.

John Kelly and his wife, Janis Kelly, filed an action against appellees for negligence, strict liability, and for Janis Kelly’s loss of consortium. During the course of the litigation, the husband died, and the wife amended the complaint, dropping her loss of consortium claim and adding a wrongful death claim, which included a demand for loss of consortium damages.

The decedent worked in construction and was exposed to asbestos during the years of 1973 to 1974. The decedent and appellant did not marry until 1976. In 2014, the decedent was diagnosed with mesothelioma and alleged that his exposure to asbestos caused the disease. The decedent died from mesothelioma in 2015.

Appellees moved to dismiss the wife’s wrongful death claim, arguing that a spouse must be married to the injured party at the time of the injury for the spouse to bring a claim for loss of consortium and that the wrongful death claim sought damages for loss of consortium. Appellees argued it was undisputed that appellant was not married to the decedent when the decedent was injured. The trial court granted the motion to dismiss and dismissed that portion of appellant’s complaint seeking consortium damages under the Wrongful Death Act. Appellant then voluntarily dismissed the remaining claims for negligence and strict liability. The trial court entered a final judgment, and this appeal ensued.

The standard of review that we use is de novo. Solorzano v. First Union Mortg. Corp., 896 So.2d 847, 849 (Fla. 4th DCA 2005).

The tort of wrongful death did not exist at common law, and a personal injury claim did not survive the death of the injured party. Nissan Motor Co. v. Phlieger, 508 So.2d 713, 714 (Fla. 1987). As a result, the Florida Legislature created a cause of action, wrongful death, to allow for a claim that survived the death of the injured party. See § 768.16, Fla. Stat. (2015).

The purpose of the Florida Wrongful Death Act is to provide a “separate and independent” cause of action since the original cause of action for personal injury did “not survive” the death of the injured party. City of Pompano Beach v. T.H.E. Ins. Co., 709 So.2d 603, 605 (Fla. 4th DCA 1998). The passage of the Wrongful Death Act remedied this “anomaly.” Variety Children’s Hosp. v. Perkins, 445 So.2d 1010, 1012 (Fla. 1983). It is “thus clear that the paramount purpose of the Florida Wrongful Death Act is to prevent a tortfeasor from evading liability for his misconduct when such misconduct results in death.” Id. Thus, the statute explicitly, clearly, and unequivocally supersedes the common law by allowing the wrongful death cause of action to proceed even after the death of the injured party. See id.

Under the Wrongful Death Act, the decedent’s personal representative “shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (2015). Survivors are defined as

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

§ 768.18(1), Fla. Stat. (2015).

As to damages, the Wrongful Death Act provides:

(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.

§ 768.21, Fla. Stat. (2015). These damages “are inclusive of a spouse’s loss of consortium damages” and allows for a spouse to recover damages for loss of consortium even after the decedent’s death. See ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997) (stating that “the legislature did not intend for a spouse’s consortium claim to survive an injured spouse’s death from his or her injuries by the fact that the legislature has provided for wrongful death damages that are inclusive of a spouse’s loss of consortium damages”). Indeed, in this case, after the decedent died, appellant amended her complaint to replace her loss of consortium claim with a wrongful death claim that included a demand for the same exact damages as her prior loss of consortium claim.

Finally, the legislature announced that the public policy for the creation of the statute was to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015). The statute is “remedial” and “shall be liberally construed.” Id. Nevertheless, although the statute is “remedial,” “we cannot construe the statutory provisions so ‘liberally’ as to reach a result contrary to the clear intent of the legislature.” Stern v. Miller, 348 So.2d 303, 308 (Fla. 1977).

Appellant argues that the passage of the Wrongful Death Act, explicitly, clearly, and unequivocally superseded the common law relating to the damages resulting from “loss of consortium.” Under the loss of consortium tort, the plaintiff may recover damages for the loss of

the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

Gates v. Foley, 247 So.2d 40, 43 (Fla. 1971).

Significantly, under the common law of loss of consortium, the parties must have been married to one another at the time of the injury to recover damages for loss of consortium. Tremblay v. Carter, 390 So.2d 816, 817 (Fla. 2d DCA 1980). As the court in Tremblay explained, the rationale for the common law rule is that

[sjince a cause of action for personal injury and the derivative rights flowing therefrom ordinarily accrue when the tort is committed, the courts concluded that to permit an unmarried person to claim loss of consortium upon his marriage to an injured spouse would have the effect of allowing him to marry into the cause of action.

Id

In the present case, the decedent’s injury occurred when he was exposed to asbestos. See Am. Optical Corp. v. Spiewak, 73 So.3d 120, 129 (Fla. 2011) (“Here, a foreign substance—asbestos fibers—were inhaled and became embedded in the lungs of the plaintiffs without their knowledge or consent. This, like the electric shock suffered by the plaintiff in Clark [v. Choctawhatchee, 107 So.2d 609 (Fla. 1959)], constitutes an actual injury that has been inflicted upon the bodies of the plaintiffs.”). Thus, because the decedent was injured before appellant married him, for appellant to prevail in her claim, we must find that the Wrongful Death Act specifically supersedes the common law of loss of consortium.

We look to the language of the Wrongful Death Act. In interpreting a statute, “the plain meaning of the statutory language is the first consideration.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla. 1982). There is, of course, the rule of statutory interpretation stating that statutes in derogation of the common law are to be strictly construed. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla. 1977). But since the Wrongful Death Act is a remedial statute, “the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law.” BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 290 (Fla. 2003). See also Perkins, 445 So.2d at 1012 (basing its decision “upon the language contained in section 768.19, Florida Statutes (1981)”); Toombs v. Alamo Rent-A-Car, Inc., 833 So.2d 109, 118 (Fla. 2002) (holding that “the language of the Act” precluded the plaintiff from recovering).

Whether the legislature intended for the Wrongful Death Act to supersede the common law of loss of consortium “depends upon the legislative intent as manifested in the language of the statute.” Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). “The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard.” Id. Thus, “[u]nless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Id.

In Thomber, the “express language” of the statute in question made “no mention of whether it superseded the common law with regard to the circumstances” at issue. Id Thus, the statute did not “replace the common law completely.” Id. See also Honeywell Int'l., Inc. v. Guilder, 23 So.3d 867, 870 (Fla. 3d DCA 2009) (finding that the legislature clearly intended to create a child’s right to parental consortium). Indeed, changes to the common law must come through the legislature in the form of statutes. See Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla. 1997) (“[A] statute will not displace the common law unless the legislature expressly indicates an intention to do so.”).

Applying the principles of Thom-ber to the present case leads us to the conclusion that the statutory language of the Wrongful Death Act does not, directly or indirectly, abrogate or supersede the common law requirement that the spouse must be married to the injured party at the time of the injury to recover for loss of consortium. Here, the plain language of the statute shows that the legislature clearly intended that the Wrongful Death Act allow for a surviving spouse to recover “consortium-type” damages. See ACandS, 703 So.2d at 494. The legislature is presumed to know of the common law limitation for recovering loss of consortium damages. Williams v. Jones, 326 So.2d 425, 435 (Fla. 1975) (“[Tjhe Legislature is presumed to know the existing law when it enacts a statute .... ”). However, despite the clear intention that the Wrongful Death Act allow for the recovery of consortium damages after the decedent’s death, nothing in the statute abrogates the common law marriage before injury rule. Therefore, because the legislature did not explicitly and clearly overrule the common law limitation on loss of consortium when enacting the Wrongful Death Act, the common law marriage before injury rule was incorporated into the Act. See Dep’t of Rev. ex rel. Soto v. Soto, 28 So.3d 171, 172 (Fla. 1st DCA 2010) (holding that Florida’s child support statute should be read in light of settled common law precedents limiting the type of gifts that can be credited against retroactive child support obligations).

Further, there appears to be no reason why the common law requirement—that the injured spouse and the surviving spouse be married prior to the date of injury—cannot coexist with the Wrongful Death Act. Nothing in the Wrongful Death Act is “so repugnant to the common law that the two cannot coexist.” Thomber, 568 So.2d at 918. The common law rule merely limits the circumstances for when the surviving spouse may recover “consortium-type” damages under the wrongful death statute for the “decedent’s companionship and protection and for mental pain and suffering from the date of injury.” § 768.21(2), Fla. Stat. (2015).

Additionally, we note that the plain language of the Wrongful Death Act indicates that the legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury. The definition of “survivor” in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of “injury.” §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

To read the statute to permit recovery of consortium damages where the injury occurs prior to marriage, as the dissent does, would allow for results not supported by the plain language of the statute. For example, two unmarried individuals could be living together and in a relationship where one individual is financially dependent upon the other. If one of them is injured and the two continued living under the same arrangement for several years, then, under the dissent’s view, so long as the couple is married a day before the injured party dies, the newly wedded surviving spouse could recover damages from all of the way back to when the decedent was first injured. However, given that the legislative definition of “survivor” is limited to familial relationships only, the legislature plainly did not intend for the surviving spouse to be able to collect consortium damages that proceeded the marriage.

Finally, it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act simply because his or her spouse has died when that same spouse would be prohibited from recovering the same damage under a loss of consortium claim had his or her spouse survived. We are required to interpret the Wrongful Death Act to avoid absurd results such as this. Allstate Ins. Co. v. Rush, 111 So.2d 1027, 1032 (Fla. 4th DCA 2000) (“In all, statutes must be construed as to avoid an unreasonable or absurd result.”).

Since the common law applies to our inquiry, we are next asked to not apply the marriage before injury rule in cases where the injury is a “latent injury” that does not reveal itself until after the parties many. Appellant argues there would be no risk, or at least a diminished risk, of a spouse “marrying into a cause of action.” Thus, appellant contends we should not apply the marriage before injury rule because one of the reasons for the rule is not present.

In Fullerton v. Hospital Corporation of America, 660 So.2d 389, 390 (Fla. 5th DCA 1995),

Fullerton’s cause of action arose as the result of his wife’s exposure to radiation when she was a student trainee studying radiation technology at the hospital. Fullerton married his wife several years after she was exposed to radiation. They did not realize that she was injured until three years after they had married when she developed cancer of the thyroid and had to have her thyroid removed.

The wife argued that the court should set aside the marriage before injury rule. However, the court concluded that “[i]n the absence of any statutory law on this point, Florida courts are required to follow the common-law rule.” Id. at 391. The court therefore held the wife could not recover. See also § 2.01, Fla. Stat. (2015) (“The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.”).

Like in Fullerton, appellant asks us to set aside the common law marriage before injury rule. However, we, like the court in Fullerton, “are required to follow the common-law rule” until the legislature passes a statute superseding this common law requirement. 660 So.2d at 391. Thus, we also affirm the trial court on this issue.

In conclusion, we affirm the trial court and hold that the Florida Wrongful Death Act does not clearly or explicitly abrogate or overturn the common law requirement that the decedent and surviving spouse be married prior to the date of injury to recover consortium damages. Although there may be persuasive policy reasons for superseding this common law rule, especially in the present case where the injury is latent, such a change may come only from the legislature by statutory enactment.

Affirmed.

Conner, J., concurs.

Taylor, J., dissents with opinion.

Taylor, J.,

dissenting.

I respectfully dissent. I would reverse the trial court’s order barring the plaintiff from recovering wrongful death damages after almost 40 years of marriage to the decedent. The trial court dismissed the plaintiffs wrongful death claim because she was not married to the decedent when he was exposed to asbestos-containing products in the early 1970⅛. It bears emphasizing, however, that the decedent was not diagnosed with any asbestos-related illness until 2014. In dismissing the plaintiffs claim, the trial court incorrectly applied a common law rule governing loss of consortium claims to a cause of action that arose under the Wrongful Death Act. This common law rule, which limits loss of consortium recovery to spouses who are married at the time of the injury, cannot coexist with the Wrongful Death Act as written.

Under the Wrongful Death Act, marriage at the time of injury is not a necessary element of the cause of action. A wrongful death cause of action did not exist at common law. Nissan Motor Co. v. Phlieger, 508 So.2d 713, 714 (Fla. 1987). It is purely statutory and- supersedes the common law. As the Florida Supreme Court has noted on numerous occasions, the Legislature intended to create an entirely new and independent cause of action for survivors of injured persons who subsequently died from their injuries. Id. Both the text of the Wrongful Death Act and Florida Supreme Court precedent demonstrate the Legislature’s clear intent to grant a decedent’s survivors a brand new cause of action not previously recognized at common law.

As the majority correctly points out, “[ujnless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” Thornber v. City of Ft. Walton Beach, 568 So.2d 914, 918 (Fla. 1990). Here, however, the Wrongful Death Act meets both tests of Thomber.

First, the Legislature unequivocally stated that the Wrongful Death Act is a “remedial” statute, and is designed “to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” § 768.17, Fla. Stat. (2015). This constitutes an unequivocal statement that the Wrongful Death Act is in derogation of the common law. By definition, a remedial statute is “designed to correct an existing law” or to give a party a “remedy for a wrong, where he had none, or a different one, before.” Adams v. Wright, 403 So.2d 391, 394 (Fla. 1981) (citation omitted).

Second, the Wrongful Death Act is so repugnant to the common law rule regarding consortium claims that the two cannot coexist where the plaintiff is asserting a claim for wrongful death. We have explained that the cause of action for wrongful death is “created and limited” by the Wrongful Death Act. Hess v. Hess, 758 So.2d 1203, 1204 (Fla. 4th DCA 2000). Applying the common law “marriage at the time of injury” rule to the facts of this case would require us to rewrite the Wrongful Death Act. The Wrongful Death Act sets forth the exclusive list of individuals who are entitled to recover damages as statutorily-designated “survivors.” It follows that the Wrongful Death Act is repugnant to any copimon law rule that would effectively modify the definition of the term “survivors” under the Act. Stated another way, applying the common law requirements of a consortium claim to a wrongful death claim would alter the category of “survivors” that may recover damages under the Wrongful Death Act, thereby limiting the class of “survivors” in a way that was not authorized by the Legislature. This result is wholly repugnant to the plain language of the statute.

As noted above, the “marriage at the time of injury” element of a common law loss of consortium claim simply does not apply to a -wrongful death action. Under the Wrongful Death Act, the decedent’s personal representatives “shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (2015). “Survivors” are defined as:

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

§ 768.18(1), Fla. Stat. (2015).

As for damages, a wrongful death claim is “brought on behalf of the survivors, not to recover for injuries to the deceased, but to recover for statutorily identified losses the survivors have suffered directly as a result of the death.” City of Pompano Beach v. T.H.E. Ins. Co., 709 So.2d 603, 605 (Fla. 4th DCA 1998). The statute provides that the surviving spouse may recover “for loss of the decedent’s companionship and protection and for mental pain and suffering” and “the value of lost support and services” from the date of the decedent’s injury to her or his death. § 768.21(l)-(2), Fla. Stat. (2015).

In interpreting a statute, we must first consider “[t]he plain meaning of the statutory language.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla. 1982). No language in the Wrongful Death Act states or even suggests that a surviving spouse must be married to the decedent at the time of injury to recover the delineated damages. The statute gives a right of action not had under common law and it must be limited strictly to the meaning of the language employed and not extended beyond its plain and explicit terms.

The statute defines “survivors” as including “the decedent’s spouse” without any other limitation. See § 768.18, Fla. Stat. (2015). Further, section 768.21, which governs recoverable damages, does not state that a spouse must be married to the decedent at the time of the decedent’s injury. Under the clear terms of the Wrongful Death Act, a cause of action for the recovery of wrongful death damages vests in favor of the surviving spouse on the date of death of the decedent. Thus, the only relevant time for the determination of an individual’s status as a survivor is the time of the decedent’s death. See, e.g., Powell v. Gessner, 231 So.2d 50, 51 (Fla. 4th DCA 1970) (“[T]he status of a child in respect to its right to sue for the wrongful death of a parent is determined at the time of the death of the parent.”).

The majority contends that the language of section 768.21(2) implies that the Legislature assumed the surviving spouse would be married to the decedent on the date of injury. Section 768.21(2) states that “[tjhe surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” However, the clause “from the date of injury” does not provide a limitation as to who may recover, but rather indicates what a surviving spouse may recover. Accordingly, the statute does not limit recovery to those surviving spouses who are married to the decedent at the time of injury.

While the Legislature may not have contemplated the unique facts of this particular case, the term “survivors” is unambiguous. As our supreme court has explained, “[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694 (1918)).

Although the common rule governing consortium claims and the Wrongful Death Act providing “consortium-like” damages have been around for decades, the issue of whether the common law “marriage at the time of injury” rule should be incorporated into the Wrongful Death Act appears to be a matter of first impression in Florida. This is not, however, an issue of first impression in the United States. Courts addressing this issue in other states- have rejected outright the argument that the common law “marriage before injury” rule deprives surviving spouses of their right to maintain statutory actions for wrongful death. These jurisdictions support the spouse’s right to recover for consortium-like damages where such damages are provided by statute, regardless of whether the spouse and decedent were married at the time of the initial injury that resulted in death. Moreover, to my knowledge, no other appellate court in the history of American jurisprudence has come to the conclusion reached by the majority.

In Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974), for example, the Georgia Supreme Court held that the husband’s right of action for tortious homicide of his wife under the wrongful death statute accrued at the time of the wife’s death from the injuries inflicted by the defendant— thus, because the husband and wife were married at the time of the wife’s death, the husband was entitled to bring a wrongful death action even though the husband and wife were not married at the time the injuries were inflicted.

The Lovett court wrote that “[sjince the [wrongful death statute] gives a right of action not had under common law, it must be limited strictly to the meaning of the language employed and not extended beyond its plain and explicit terms.” Id. at 840. The court went on to explain that:

Nothing in the language of this statute states or implies that the husband must be married to the wife at the time the injuries from which she subsequently dies are inflicted. Therefore, we agree that the right of action accrues at the time of the death of the wife. Since at the time of the decedent’s death here she was lawfully married to the plaintiff, he was entitled to bring an action for damages against the defendant for her wrongful death under the law of this state.

Id.

Similarly, in DeVine v. Blanchard Valley Medical Associates, Inc., 103 Ohio Misc.2d 40, 725 N.E.2d 366 (Ct. Comm. Pls. Ohio 1999), a case where the husband brought a wrongful death action against health care providers for their negligent failure to properly diagnose and treat his wife’s cancer, the Ohio court held that the husband was not precluded from seeking damages for loss of consortium in his wrongful death action although the husband and wife were not married when the wife was diagnosed with cancer.

After acknowledging the common law rule that a spouse must be married at the time of injury to recover for loss of consortium, the DeVine court noted that the Ohio wrongful death statute was an independent cause of action and that nothing in the statute limited recovery. The court concluded that a claim for wrongful death differs significantly from a claim for loss of consortium, stating as follows:

A claim for loss of consortium has been recognized at common law for many years. Conversely, an action for wrongful death is statutory in nature and operates as an exception to the common law. A cause of action brought under R.C. Chapter 2125 provides a single and distinct cause of action, involving multiple elements of damages. This right of action is independent from any right or cause that may be brought by the injured person.

Id. at 369 (internal citations omitted).

Likewise, in Du Bois v. Community Hospital of Schoharie County, Inc., 150 A.D.2d 893, 540 N.Y.S.2d 917 (N.Y. App. Div. 1989), a New York appellate court affirmed the trial court’s denial of the hospital’s motion to dismiss a widow’s wrongful death action. There, the appellate court drew a distinction between a common law loss of consortium claim and wrongful death damages sought by a spouse. The court stated that although a claim for loss of consortium is not permitted unless the surviving spouse was married to the injured person at the time of the actionable conduct, “that is not the case with a wrongful death cause of action.” Id. at 918. The court held that the widow’s rights as a beneficiary of the decedent are not affected by when the marriage occurred as long as the parties were married at the time of the decedent’s death. Id.

Finally, in Corley v. State, Department of Health & Hospitals, 749 So.2d 926, 942 (La. App. 2d Cir. 1999), the court explained that for purposes of a wrongful death action, “it is irrelevant what the relationship between the claimants and the decedent was at an earlier time, such as at the time of the act or omission which caused or set in motion the death[.]”

These decisions illustrate that courts across the country have routinely rejected the appellees’ argument. In fact, as far as I am aware, the majority’s decision is the first time any court has held in a reported opinion that the common law requirements of a consortium claim barred a spouse from asserting a statutory claim for wrongful death where the injury occurred before the marriage. See Wade R. Habeeb, Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046 (2011 update) (collecting cases that uniformly reject the appellees’ argument).

Under Florida’s Wrongful Death Act, the surviving spouse is entitled to maintain a claim for all those statutorily identified losses that he or she has suffered directly as a result of the death of the decedent. This includes the bundle of services and benefits specified in the act which we commonly call “consortium.” The Legislature, by including these damages without basing their recoverability on the surviving spouse’s relationship to the decedent at the time of injury, clearly intended that such damages be recoverable in a wrongful death action. Here, the plaintiffs wrongful death claim is not a common law claim for loss of consortium deriving from her late husband’s claim for personal injury, but is a claim based on a wholly independent and distinct cause of action authorized by the Legislature. According to the statute, her rights vested upon the death of her husband. The date of their marriage is immaterial.

In sum, I would reverse the trial court’s dismissal of the plaintiffs wrongful death consortium claim. The trial court incorrectly applied the common law rule concerning consortium claims in personal injury cases to the plaintiffs statutory claim for wrongful death. In doing so, the court barred the plaintiff from recovering a significant portion of the damages provided by the Legislature for surviving spouses of those who died from injuries caused by the negligence of others.

      . Although the dissent claims that the opinion of this court is the only one of its kind in the United States, we must emphasize that exceedingly few courts have ever even considered this issue and none have interpreted Florida's Wrongful Death Act or Florida's common law specifically. See Wade R. Ha-beeb, Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046 (2011 update) (noting that there is "little authority” for the proposition that a wrongful death statute abrogates the marriage before injury rule).

      . Additionally, we note that other jurisdictions have prohibited a loss of consortium claim from proceeding in so-called "latent injury” cases. See, e.g., Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, S80 N.Y.S.2d 168, 588 N.E.2d 66, 67-68 (1991); Doe v. Cherwitz, 518 N.W.2d 362, 362 (Iowa 1994); Gross v. Sauer, No. 37 83 58, 1992 WL 205277, *2 (Conn. Super. Ct. Aug. 14, 1992).

      . We do not express any comment regarding other damages recoverable under the Wrongful Death Act such as recovery for medical and funeral expenses and other damages recoverable by an estate’s personal representative. See § 768.21(3)-(6), Fla. Stat.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    D.H., mother of S.R., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D16-3435
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2017
    Elliott Ambrose, Brooksville, for Appellant.
    Deborah A. Schroth, of Children’s Legal Services, Department of Children & Families, Jacksonville, for Appellee.
    Laura J. Lee, for Guardian ad Litem Program, Sanford.
   PER CURIAM.

The mother, D.H., appeals the final judgment terminating her parental rights as to her two-year old daughter, S.R. Concluding that the trial court erred in finding that the Department of Children and Families (“DCF”) proved by clear and convincing evidence that D.H.’s parental rights should be terminated under section 39.806(l)(b), Florida Statutes (2016), for abandoning the minor child, we strike that provision from the final judgment. See L.K. v. Dep’t of Child. & Fams., 62 So. 3d 1241, 1242 (Fla. 4th DCA 2011) (“ ‘To reverse a trial court’s determination that’ a child was abandoned, the appellate court must find that the determination was not ‘supported by clear and convincing evidence.’” (quoting In re E.D., 884 So.2d 291, 294 (Fla. 2d DCA 2004))).

We nevertheless affirm the final judgment because the trial court’s termination of D.H.’s parental rights on the other statutory grounds set forth in section 39.806 as described in the judgment is supported by the evidence presented at trial. See M.D. v. State, Dep’t of Child. & Fams., 187 So.3d 1275, 1277 (Fla. 4th DCA 2016) (“[S]o long as the trial court’s ruling on one of the statutory grounds set forth in section 39.806, Florida Statutes, is supported by the evidence, the court’s decision [to terminate parental rights] is affirmable.” (first alteration in original) (quoting J.E. v. Dep’t of Child. & Fams., 126 So.3d 424, 427-28 (Fla. 4th DCA 2013))). Lastly, the trial court correctly concluded that DCF presented clear and convincing evidence at trial that the termination of parental rights was in the manifest best interests of the minor child and that it is the least restrictive means of protecting the child from serious harm. See R.A. v. Dep't of Child. & Fams., 30 So. 3d 722, 724 (Fla. 5th DCA 2010) (holding that an order terminating parental rights must be supported by clear and convincing evidence that there is a ground for termination under section 39.806, the termination is in the manifest best interest of the child pursuant to section 39.810, and the termination of the parental rights is the least restrictive means of protecting the child from serious harm).

Accordingly, we affirm the final judgment terminating D.H.’s parental rights to S.R., but we remand with directions for the entry of an amended final judgment striking any language from the judgment regarding section 39.806(l)(b) being one of the grounds for the termination of the parental rights.

AFFIRMED; REMANDED with directions.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.


text:
    FLORIDA INVEST CONSULTANTS CORP., Appellant, v. CATALONIA PLAZA, LLC, Catalonia Real Estate Florida Corp., Maner, LLC and Francisco Javier Garcia, Appellees.
    Case No. 5D15-4206
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    F. Scott Fistel, of Fistel Law Group, P.A., Ft. Lauderdale, for Appellant.
    Alberto E. Lugo-Janer, of CPLS, P.A., Orlando, for Appellees.
   PER CURIAM.

Florida Invest Consultants Corp. (“Appellant”) appeals the order granting Appel-lees’ motion to enforce the settlement agreement previously executed by the parties that fully resolved the underlying litigation. Appellant also appeals the separate order granting Appellees’ motion for recovery of attorney’s fees incurred in seeking to enforce the agreement.

Reduced to its basic terms, the parties’ settlement agreement provided that Appellant would pay the sum of $80,000 to Ap-pellees and that Appellees would convey certain real property to Appellant by quitclaim deed. The agreement required Appellant to pay Appellees an initial $10,000 upon the “date of sale and delivery of the quitclaim deed,” with the remaining monies to be paid in specified lump sum installments over the ensuing twelve months. Pertinent to this appeal, the settlement agreement also provided that in the event that a valid quitclaim deed was not delivered or the agreed upon payments were not made, requiring additional litigation to enforce the agreement, attorney’s fees shall be awardable to the prevailing party.

Not long after executing the settlement agreement, each party believed that the other was not complying with the agreement, and they separately moved to enforce it. Appellant asserted that it did not receive a valid quitclaim deed from Appel-lees, while Appellees argued that they had not received all payments that had come due. Following a hearing, the trial court entered the order now under review and this appeal ensued.

Based upon our de novo review of the record containing largely undisputed material facts, we conclude that the trial court erred in granting Appellees’ motion to enforce the settlement agreement because Appellees failed to deliver to Appellant a valid quitclaim deed. Accordingly, we vacate the order on appeal and remand this case to the trial court for further proceedings.

As to the separate issue of attorney’s fees, although we have now vacated the order which provided the basis for the award, because the amount of attorney’s fees was not determined in the attorney’s fee order, we lack jurisdiction to review what amounts to a nonappealable, nonfinal order. See Sanders v. Palmieri, 849 So.2d 417 (Fla. 5th DCA 2003) (“[A]n award of attorneys’ fees does not become final, and, therefore, appealable until the amount is set by the trial court .... ” (citing Montanez v. Montanez, 697 So.2d 184 (Fla. 2d DCA 1997))).

ORDER GRANTING ENFORCEMENT OF SETTLEMENT AGREEMENT VACATED; CAUSE REMANDED. APPEAL OF ORDER FOR RECOVERY OF ATTORNEY’S FEES DISMISSED.

TORPY, LAMBERT and EDWARDS, JJ., concur.

      . At the time of the appeal, Appellant had paid $30,000 of the $80,000 that it owed to Appellees under the settlement agreement, We express no position as to the resolution of the case on remand but observe that this appeal could have readily been avoided simply by the execution of a valid quitclaim deed as Appellant requested at the hearing.


text:
    Kendrick MARCLAIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3784
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Kendrick Marclain, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kendrick Marclain appeals the summary denial of his “Motion to Correct Illegal Sentence” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Marclain alleged that his -written sentence conflicted with the trial court’s oral pronouncement. The postconviction court attached the court minutes to its order, but failed to attach the sentencing hearing transcript. The court minutes were insufficient to refute Marclain’s claim. Although Marclain had the burden to demonstrate an entitlement to relief on the face of the record, the trial court should have afforded him the opportunity to file an amended motion attaching the sentencing transcript. See Williams v. State, 957 So.2d 600, 604 (Fla. 2007) (“If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript.”).

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Kevin DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2738
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based upon our independent review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm Davis’s judgment and sentence. We remand only for correction of a scrivener’s error in the judgment. See Taylor v. State, 120 So.3d 213 (Fla. 5th DCA 2013) (“Despite affirmance, we remand the judgment and sentence on Count 2 for correction of a scrivener’s error in the written sentencing documents.” (citation omitted)). On remand, the trial court is directed to include in the judgment the total amount of $250.00 for attorney’s fees, as orally pronounced at sentencing.

AFFIRMED; REMANDED FOR CORRECTION OF A SCRIVENER’S ERROR.

TORPY, BERGER and WALLIS, JJ., concur.


text:
    Angel COLON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1789
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    James S. Purdy, Public Defender, and Kristen D. Dukes, Assistant Public Defender, Daytona Beach, for Appellant.
    Angel Colon, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

In this Anders appeal, Appellant, who was convicted in 1997 of the crime of first-degree murder committed when he was a juvenile, challenges his present sentence of fifty years in prison with a review hearing under the new juvenile sentencing statutes to take place after twenty-five years.

We affirm on all issues raised by Appellant. However, consistent with our recent opinion in Williams v. State, 724 So.2d 724 (Fla. 5th DCA 2017), we certify the following question to the Florida Supreme Court as one of great public importance:

DOES ALLEYNE v. UNITED STATES, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) , REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE FACTUAL FINDINGS UNDER SECTION 775.082(l)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

AFFIRMED; QUESTION CERTIFIED.

EVANDER and LAMBERT, JJ., and JACOBUS, B.W., Senior Judge, Concur.

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

      . §§ 775.082, 921.1401, 921.1402, Fla. Stat. (2016).

      . Appellant was previously sentenced to life in prison without the possibility of parole; however, based upon his motion and the recent decisions in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Falcon v. State, 162 So.3d 954 (Fla. 2015), the lower court granted his request for postcon-viction relief, vacated his life sentence, and ordered a resentencing.


text:
    Kelly Elizabeth LOUDERMILK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-728
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kelly Elizabeth Loudermilk appeals her judgment and sentence for trafficking in oxycodone and conspiracy to traffic in oxy-codone. Loudermilk contends that the trial court erred in: 1) denying her motion for continuance to secure the testimony of two codefendants that she alleged would support an entrapment defense; and 2) applying the incorrect legal standard to her motion for new trial. We affirm as to the first issue without further discussion but reverse and remand as to the second.

The proper standard to address a defendant’s motion for new trial is the weight of the evidence. See Lee v. State, 117 So.3d 848, 849 (Fla. 5th DCA 2013); Santiago v. State, 874 So.2d 617, 625 (Fla. 5th DCA 2004). In this ease, the trial court incorporated its order denying Loudermilk’s motion for judgment of acquittal, in which it appliecj a sufficiency of the evidence standard, into its order denying her motion for new trial. Accordingly, these orders suggest that the trial court also utilized a sufficiency of the evidence standard when considering Loudermilk’s motion for new trial. We therefore reverse and remand on this issue for the trial court to consider Louderrailk’s motion for new trial pursuant to the weight of the evidence standard. See King v. State, 183 So.3d 1071, 1072 (Fla. 5th DCA 2015).

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, TORPY and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Moiz A. GODIL, Appellee.
    Case No. 5D16-488
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State challenges the sentence imposed in this felony drug case in which the trial court withheld adjudication of guilt without placing Appellee on probation in violation of Florida Rule of Criminal Procedure B.670. Although Appellee properly concedes error on this point, he nevertheless argues that the judgment must be affirmed because the alteration of the sentence would violate constitutional double jeopardy principles. We reject Appellee’s double jeopardy argument. Because Appel-lee had no legitimate expectation of finality in the sentence, the double jeopardy clause does not bar the correction of the illegal sentence. Dunbar v. State, 89 So.3d 901, 905 (Fla. 2012).

On remand, the trial judge shah either adjudicate Appellee guilty or impose probation.

REVERSED AND REMANDED.

ORFINGER, TORPY and BERGER, JJ., concur.


text:
    Charleston Kareem LARRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3247
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    James S. Purdy, Public Defender, and Robert Jackson Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant raises two points on appeal, only one of which merits discussion. Immediately prior to sentencing, the trial court speculated about Appellant’s past behavior for which there was no record basis. Moreover, the subject matter of the past behavior was not relevant to the sentence. Under these circumstances, the sentence must be reversed and remanded for re-sentencing before a different judge.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: Gerber, J.

text:
    C.D.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4227
    District Court of Appeal of Florida, Fourth District.
    March 1, 2017

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The juvenile appeals from his disposition after being found guilty of sexual battery on a person twelve years old or older. He argues the trial court violated his right to due process by conducting a disposition hearing in his absence, in violation of Florida Rulé of Juvenile Procedure 8.100(a) (2015), which states: “Unless otherwise provided, the following provisions apply to all hearings ... [t]he child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.” We agree with the juvenile’s argument. The exception does not apply in this case, and the error was not harmless. We reverse for a new disposition hearing.

We present this opinion in three parts:

1) the procedural history;
2) why we agree with the juvenile’s arguments; and
3) why we disagree with the state’s arguments.

1. Procedural History

After the court found the defendant guilty of sexual battery on a person twelve years old or older, the court scheduled a disposition hearing, but the juvenile was not transported to the courthouse. The juvenile could not be transported until the following Monday. However, the victim’s mother and the Department of Juvenile Justice (DJJ) representative who prepared the pre-disposition report would not be available to testify on that Monday.

The trial court suggested taking statements from the victim’s mother and the DJJ representative. Defense counsel objected, arguing the juvenile was not present. The trial court overruled defense counsel’s objection. The victim’s mother then testified and asked the trial court for the “stiffest penalty possible.” The DJJ representative recommended a non-secure treatment program and explained how the DJJ reached that recommendation. At the end of the hearing, the trial court did not decide upon a disposition.

Instead, the trial court convened another disposition hearing three days later. The juvenile was present at this hearing. The state recommended a maximum risk residential program for the juvenile and argued the DJJ’s recommendation was legally insufficient. At the end of this hearing, the trial court found the DJJ’s predisposition report did not “enlighten” the trial court as to the basis for its recommendation. The trial court then found the defendant a danger to the community and deviated from the DJJ’s recommendation by placing the juvenile in a high risk residential program followed by post-commitment probation. The trial court also designated the juvenile as a sex offender.

This appeal followed. The juvenile argues the trial court violated his due process right to be present during his disposition hearing when the trial court heard testimony from the victim’s mother and the DJJ representative in his absence. In support, the juvenile cites to Florida Rule of Juvenile Procedure 8.100(a) (2015), which states: “Unless otherwise provided, the following provisions apply to all hearings ... [t]he child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.” Our review is de novo. See S.M. v. State, 138 So.3d 1156, 1159 (Fla. 4th DCA 2014) (applicability of rule 8.100 is reviewed de novo).

2. Why We Agree with the Juvenile’s Argument

We agree with the juvenile’s argument based on S.M. In S.M., the trial court ordered the juvenile to leave the courtroom while it discussed the disposition with the juvenile’s grandmother, legal guardian/therapist, probation officer, and attorneys. Id. at 1158. The trial court then ordered the juvenile back into the courtroom and announced the disposition. Id. We reversed, concluding the trial court committed fundamental error “[bjecause the court excluded the juvenile from part of the hearing and did not give the juvenile an opportunity to comment on the issue of disposition.” Id. at 1160. We relied upon rule 8.100(a), which “has been construed to mean that, with very limited exceptions, the accused child is required to be physically present at all hearings, ... except when there has been a waiver of the right to be present.” Id. (emphasis added; internal citations and quotation marks omitted). “This waiver must be personal, not one by the juvenile’s counsel.” Id. (citation omitted).

The instant case is slightly distinguishable from S.M. because, in the instant case, the trial court held another disposition hearing where the juvenile was present. Nevertheless, rule 8.100(a) clearly states: “Unless otherwise provided, the following provisions apply to all hearings ... [t]he child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.” (emphasis added).

No exception to rule 8.100(a) applies on these facts. The juvenile did not waive his right to be at the disposition hearing. Also, the trial court did not make any finding under rule 8.100(a) “that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.” Rather, it appears the trial court proceeded with the disposition hearing in the juvenile’s absence due to the unavailability of the victim’s mother and the DJJ representative on the following Monday.

3. Why We Disagree with the State’s Arguments

The state raises two arguments seeking affirmance. First, the state argues the trial court did not err because the testimony of the victim’s mother and the DJJ representative did not occur at a critical stage of the proceedings. See S.M., 138 So.3d at 1159 (Fla. 4th DCA 2014) (“Like criminal defendants, juveniles have a constitutional right to be present at all critical stages of the proceedings.”) (citation omitted). Second, the state argues that if error occurred, it was harmless. See Hurst v. State, 202 So.3d 40, 68 (Fla. 2016) (“Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence.”).

We disagree with both of the state’s arguments. On the state’s first argument, rule 8.100(a)’s plain language does not limit the requirement of the juvenile’s presence to only critical stages of the proceedings, but rather to “all hearings” unless otherwise provided. In any event, the testimony of the victim’s mother and the DJJ representative occurred at a critical stage of the proceedings, because the court apparently considered their testimony in determining the disposition, based on the fact that the court disregarded the DJJ recommendation and imposed a higher risk level upon the juvenile as the victim’s mother requested.

On the state’s second argument, we cannot say no reasonable possibility exists that the error did not contribute to the sentence. Again, it appears the trial court, in determining the disposition, considered the testimony of the victim’s mother and the DJJ representative from the hearing during which the juvenile was absent.

Conclusion

Based on the foregoing, we reverse the disposition and remand to the trial court to conduct a new disposition hearing complying with rule 8.100(a).

Reversed and remanded for a new disposition hearing.

Warner and Kuntz, JJ,, concur.


author: Warner, J.

text:
    Robert D. WILLSON, Carl Ferrero and CR Investments of Okeechobee, Inc., a Florida Corporation, Appellants, v. BIG LAKE PARTNERS, LLC, a Kentucky Limited Liability Company, doing business in the State of Florida as Palm Creek Developers, LLC, Appellee.
    No. 4D15-1782
    District Court of Appeal of Florida, Fourth District.
    March 1, 2017

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., and Alan C. Espy of Alan C. Espy, P.A., Palm Beach Gardens, for appellants.
    Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellee.
   ON MOTION FOR REHEARING

Warner, J.

We grant appellants’ motion for rehearing and clarification, vacate our prior opinion, and substitute the following in its place.

Robert Willson, Carl Ferrero, and OR Investment of Okeechobee, Inc., appeal a final judgment for breach of contract, slander of title, and cancellation of notes and mortgages, as well as denying their claims for unjust enrichment. The court had originally ruled in their favor on some of the counts but reversed itself on a motion for rehearing by considering evidence it had excluded during trial. We conclude that in doing so, the court erred. We reverse and remand for a new trial on damages on the counts alleging breach of contract and slander of title.

Big Lake Partners, LLC, was a group of investors, mostly residing out of state, who were developing land in a community in Okeechobee called Palm Creek. Willson was retained to manage the development in 2000. He signed an operating agreement which delineated his managerial powers. Article IX, section 9.2 of the agreement contained limitations on his powers as manager, including limiting the power to “[ijncur indebtedness for borrowed money in excess of $5000” and limiting the power to “[pjlace a mortgage or other lien on the assets of the Company.” Willson hired Ferrero as the construction manager for the project. The development continually had problems and did not generate much in the way of sales. Willson complained that the investors did not respond to calls for working capital, but the investors never saw any profit from the sales that were made. In 2006, Willson and Ferrero made “deposits” to the company, which they referred to as loans, all in excess of the $5,000 limitation in the operating agreement. When it appeared that the relationship between Willson and the investors was souring, Willson executed mortgages on the property to secure his and Ferre-ro’s loans.

After Willson resigned, the investors took over the operation and discovered the executed mortgages, which caused a delay in further sales. They also discovered other expenses and what they deemed irregularities in Willson’s operation of the development, including excessive expenditures and commissions paid to Willson in excess of his compensation agreement.

Big Lake filed suit against Willson, Fer-rero, and CR Investments in 2008. Counts 1 and 2 sought rescission of mortgages (in favor of CR Investments and Ferrero) which secured the alleged notes, because the mortgages had not been authorized. Count 3 sought damages for Willson’s breach of the agreement. Count 4 alleged slander of title. Count 5 alleged breach of fiduciary duty against Willson. Willson, Ferrero, and CR Investments filed a counterclaim and amended counterclaim. Counts 1 and 2 sought foreclosure of the mortgages. Counts 3 and 4 were claims for money lent ($123,342.90 for CR Investment and $40,000 for Ferrero). Counts 5 and 6 sought damages in equity for unjust enrichment based on the loans. Count 7 was for indemnification.

The court held a lengthy trial on all issues. Big Lake’s main witness was its forensic accountant, Mikel Spraker. He testified regarding the misuse of funds by Willson, including damages of lost profits on sales lost due to the mortgages placed on the property by Willson and Ferrero. The accountant started to testify that in 2008, 2009, and 2010, there were no sales because of the improper mortgages clouding the title. But when Big Lake’s counsel asked the accountant if these mortgages hindered the sale of the property, defense counsel objected that this was speculative. The court sustained the objection. Plaintiffs’ counsel then asked the accountant if he was able to analyze sales that occurred in other subdivisions in Okeechobee County. Defense counsel objected that this was also too speculative. The court overruled the objection and allowed the testimony. The accountant then testified that from 2001 to 2006 there were forty-three home sales in a nearby development called Blue Heron. He then compared Blue Heron’s sales to Big Lake’s sales.

At this point, defense counsel objected again, stating that “these opinions” were not contained in the expert’s report. Counsel had not been on notice that the accountant was going to testify “about this,” and asked that the testimony be stricken and the accountant not be allowed to go further. The court asked why it was not disclosed, and Big Lake admitted that it was something that the accountant had just looked at in preparation for trial. The court asked defense counsel if he had a comparable witness. Defense counsel admitted that he did not. The court determined that while the accountant could proffer his testimony, the court would not consider it because of the late disclosure. Big Lake then proffered the accountant’s testimony that Big Lake had sold ten fewer homes than Blue Heron, and that Big Lake’s historical average gross profit was $16,528 per house, which would have constituted lost profits of $165,280.

The defense then put on its case, which mainly consisted of Willson’s testimony regarding his efforts to develop the property and the difficulties he had getting the investors to provide monies. He related that he and Ferrero had loaned the company substantial sums.

After trial, the court entered an order making findings of fact and conclusions of law. The court found that the operating agreement prohibited Willson from encumbering the development with the mortgages, and the court cancelled both the notes and mortgages. It reviewed the various items of damage, as testified to by the accountant, but found that no damages had been proven. As to the counts for breach of contract and slander of title based upon the recorded mortgages, the court found that no damages were proven because of the exclusion of the expert’s untimely report. It also found for the plaintiffs on other claims but found no damages. As to the defense counterclaims, the court ruled that Ferrero had loaned $40,000 to Big Lake, and that CR Investments had loaned $100,000 to fund construction and paid $23,342.90 to satisfy an IRS obligation. The court found for the defendants on their claims for unjust enrichment, determining that $38,800 was owed to Ferrero, $20,400 to Willson, and $86,642 to CR Investments.

The parties moved for rehearing, and the court eventually entered an amended final order which substantially changed the prior rulings with respect to damages for breach of contract and unjust enrichment. The court at length explained what the accountant had testified to with respect to lot sales and noted that defense counsel had not objected until after the accountant had presented substantial evidence on the losses. When defense counsel did object and move to strike, the court found that it had simply granted the objection to forthcoming testimony regarding the dollar amount but it did not strike the testimony already presented. The court pieced together from various statements made by the accountant that the expert’s testimony was not a prejudicial surprise and should have been admitted. The trial court then used the expert’s calculations from his previously-excluded report to determine that Big Lake had suffered $165,280 in losses as a result of the breach of contract and slander of title created by the recorded mortgages. It awarded $165,280 on the breach of contract count. To avoid double recovery, it awarded $1 on the slander of title count, as the measure of damages for the two counts was the same. On the counterclaim, the court reversed itself and determined that the evidence did not support a finding of unjust enrichment.

Willson, Ferrero, and CR Investments moved for rehearing of the amended judgment, arguing that the trial court’s abrupt change of its mid-trial ruling to admitting the accountant’s proffered evidence of lost profits was error and prejudicial to them. They contended that they had not presented evidence or argument regarding lost profits based on the court’s earlier ruling. Big Lake responded in opposition. The trial court denied rehearing of the amended judgment, prompting this appeal.

Although they have raised numerous issues, we find only one merits reversal. Appellants argue that the trial court denied them due process by abruptly changing its earlier trial ruling. The court had ruled mid-trial that it would exclude the accountant’s testimony regarding the amount of damages. Four-and-a-half months after the end of the trial, the court reversed itself, admitted the proffered testimony regarding lost profits, and awarded appellees damages based upon it, Appellants argued in their motion for rehearing that had they known the evidence was going to be admitted, they would have offered evidence to refute it.

The admission or exclusion of evidence is generally governed by the abuse of discretion standard. Blanco v. State, 452 So.2d 520, 523 (Fla. 1984), receded from on other grounds, Puglisi v. State, 112 So.3d 1196 (Fla. 2013); Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA 1985). The trial court abused its discretion in reversing itself on rehearing and, in essence, admitting the excluded evidence without providing for a new hearing on damages.

Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), eschews trial by ambush where an opposing party suffers prejudice. “Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Id, at 1314. In this case, the trial court adhered to that principle by refusing to consider the portions of the report which were not divulged to defense counsel until the day of trial. However, on rehearing, contrary to that principle, the court admitted the excluded evidence without considering the “surprise in fact” to the defense by doing so. Id. The court failed to consider the defense’s ability to cure the prejudice. See id. (“Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness”).

By excluding the testimony at trial, the court lulled the defense into a position where it did not present evidence on damages for the breach of contract and slander of title counts. Although in its order on rehearing, the court noted that it had not stricken the testimony preceding the defense objection, the record is not so clear as to what was being excluded by the court. The defense objected to “these opinions” which were only recently formed, and the court asked if the defense had a comparable witness, to which the defense responded negatively. The court then stated that the opinion could be proffered but would not be considered. When the court made its first findings of fact, it believed that the entire opinion had been stricken and awarded no damages. Thus, it was also reasonable for the defense to believe that the court had ruled that it was not considering the accountant’s entire testimony with respect to the lost profit damages.

Appellants rely on Garcia v. Emerson Electric Co., 677 So.2d 20 (Fla. 3d DCA 1996), which provides an analogous situation. The Garcias sued a ladder manufacturer for injuries suffered in a fall from the ladder. Id. at 20. They deposed a defense expert who had not yet completed all of his tests. Id. After the deposition, the expert sent the Garcias’ attorney videotapes of the completed tests which could not be reviewed by Garcia’s expert until the day trial began. Id. at 20-21. Prior to commencement, the trial court ruled that the videos of the tests which were not received until the day of trial would be excluded. Id. at 21. However, during the trial, after the Garcias had completed their presentation of evidence, the court reversed its earlier ruling and allowed the admission of the videotaped evidence. Id. The Garcias asked that their expert be allowed in the courtroom to hear the testimony so that he could respond but the judge denied that request also. Id. The Garcias argued on appeal that their expert could not respond to the additional testing. Id. The Third District reversed, ruling that the trial court abused its discretion by changing its ruling midway through trial. Id. It relied on Gran v. Branham, 626 So.2d 1059, 1061 (Fla. 4th DCA 1993), in which this Court noted: “It is not enough that the defendant simply know what a witness may say before he testifies. Prejudice also exists by the fact that appellant is unable to counter the offered testimony.” Thus, Garcia stands for the proposition that a mid- or post-trial change in the admission of evidence is an abuse of discretion where the affected party is prejudiced and unable to counter the offered testimony. That is exactly what occurred here.

While the trial court may have concluded that it erred in excluding the evidence, the remedy should have been a new trial on damages on that issue. That way the defense could counter the newly-admitted testimony. The court should not have simply considered the excluded evidence and reached a different result based upon that evidence without giving the defense the opportunity to present its own evidence on the issue.

As to the court’s denial of appellants’ claim for unjust enrichment, we find no error in the court’s final ruling. The court concluded that Willson and Ferrero had not proved their claim. The elements of a cause of action for unjust enrichment are:

1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). The court found that appellants had failed to prove elements two through four. Because there was competent substantial evidence to support its findings, we affirm. We also affirm on the remaining issues raised without further comment.

Accordingly, we affirm the final judgment, except for the award of damages for breach of contract and slander of title. We reverse for a new trial on damages on those counts.

May, J., and Artau, Edward L., Associate Judge, concur.


author: JACOBUS, B.W., Senior Judge.

text:
    Janet TRAINOR, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, Kirby Bros. Construction, Inc. and Lee Williams & Associates, Inc., Appellees.
    Case No. 5D15-4536
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017

      David M. Russell, of Pappas & Russell, P.A., Daytona Beach, for Appellant.
    T’anjuiming A. Marx and Robert J. Rubin, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, for Kirby Bros. Construction, Inc., Appellee.
    Daniel S. Liebowitz and Kelley Kronen-berg, of the Law Firm of Kelly Kronen-berg, Orlando, for PNC Bank, National Association, Appellee.
    Derek J. Angelí and Ryan P. Scordato, of O’Connor & O’Connor, LLC, Winter Park, for Lee Williams & Associates, Inc., Appellee.
   JACOBUS, B.W., Senior Judge.

Janet Trainor appeals final summary judgments granted to PNC Bank, National Association (PNC), Kirby Brothers Construction, Inc. (Kirby) and Lee Williams & Associates, Inc. (Williams), collectively Ap-pellees, in her action for damages for the alleged injuries she suffered when she stepped into a pothole in a parking lot serving customers of PNC Bank. We reverse after concluding that the obvious danger doctrine does not discharge an owner’s or possessor’s duty to maintain its premises in a reasonably safe condition, and that material issues of fact remain precluding summary judgment.

Ms. Trainor drove to a nearby PNC branch location intending to make a deposit with the drive-through teller on June 20, 2012. She arrived to a closed bank and opted to make her deposit through the bank’s outdoor ATM. After parking her car, Ms. Trainor discovered that the area was under construction, as there was a barricade in front of the ATM and, according to her, a sign with an arrow and red lettering, directing customers to walk around. Ms. Trainor complied and began to walk around the barricade. While walking through the parking lot, she stepped in what she described as a pothole. The unexpected drop in pavement levels caused her foot to get caught and twist, resulting in a fall that fractured her left foot and leg and injured her neck and back. Although she did not see the pothole before she stepped in it, Ms. Trainor acknowledges that there was nothing prohibiting her from looking down and seeing the pothole.

Ms. Trainor filed a complaint against PNC and Kirby, PNC’s general contractor, presenting two theories of liability— breach of the duty to warn and breach of the duty to maintain. Kirby filed a third-party complaint against Williams, the company that actually performed the construction, alleging counts for common law indemnity and/or contribution, negligence, and equitable subrogation. PNC moved for summary judgment, joined by Kirby and Williams, claiming that they were entitled to a judgment as a matter of law pursuant to the obvious danger doctrine. Ms. Trai-nor responded that the condition was not open and obvious and that the doctrine did not absolve PNC of its duty to maintain. After hearing argument, the trial court concluded that Appellees were entitled to summary judgment as to all counts based on the obvious danger doctrine.

This court reviews de novo the grant of summary judgment. Volusia Cty. v. Aber deen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000), In order to determine the propriety of a summary judgment, this court must resolve whether there is any “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact.” Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001) (citing City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, and if the slightest doubt exists, the summary judgment must be reversed. Id. at 492.

The first inquiry in a negligence action is whether the defendant owed a duty to the plaintiff. Id. Under the facts of this ease, Ms. Trainor occupies the status of an invitee. “This court has consistently held that the duty owed to invitees is 1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier.” Id. at 492-93 (citations omitted). The duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property. Brown v. Suncharm Ranch, Inc., 748 So.2d 1077, 1078 (Fla. 5th DCA 1999); see generally 41 Fla. Jur 2d Premises Liability § 5 (2017). Thus, ownership of the property is not the determining factor. Rather, it is the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contractor, or other possessor with authority or control) to use due care to warn or to exclude licensees and invitees from areas known to the possessor to be dangerous because of operations, activities, or conditions. Haynes v. Lloyd, 533 So.2d 944, 946 (Fla. 5th DCA 1988). Accordingly, PNC, as owner of the parking lot in question, Kirby, as PNC’s general contractor, and Williams, who performed the construction, may all be jointly liable. Notwithstanding, Kirby and Williams contend that they did not owe a legal duty to Ms. Trainor under a premises liability theory. However, this ground was not raised below in any motion for summary judgment. Accordingly, we decline to affirm summary judgment on such ground. Loranger v. State, Dep’t of Transp., 448 So.2d 1036, 1038-39 (Fla. 4th DCA 1984) (declining, on rehearing, to affirm summary judgment on ground not raised below, ground being an absence of legal duty); see Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So.2d 1311, 1315, n.3 (Fla. 3d DCA 1985) (“[A]s Loranger v. State, Department of Transportation, 448 So.2d 1036, 1039 (Fla. 4th DCA 1983), makes clear, the ‘right for the wrong reason’ appellate maxim does not apply in summary judgment proceedings where the issue was never raised in the motion for summary judgment.”).

The only issue raised in PNC’s motion for summary judgment, to which Kirby and Williams filed joinders, was whether Appellees were entitled to judgment as a matter of law pursuant to the obvious danger doctrine. “The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their own senses.” Krol, 778 So.2d at 493 (footnotes, citations omitted). However, while the open and obvious nature of a hazard may discharge a landowner’s or possessor’s duty to warn, it does not discharge the landowner’s or possessor’s duty to maintain the property in a reasonably safe condition. Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204, 206 (Fla. 6th DCA 2012) (citation omitted); see also Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012) (“Florida courts have long held that a landowner’s duty to warn is separate and distinct from the duty to maintain the premises in a reasonably safe condition. ‘Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.’ ” (quoting Lomack v. Mowrey, 14 So.3d 1090, 1092 (Fla. 1st DCA 2009)); Aaron v. Palatka Mall, LLC, 908 So.2d 574, 577 (Fla. 5th DCA 2005) (“We have noted that in addition to alleging negligence based on breach of the duty to warn of the alleged dangerous condition, Aaron also alleges that Palatka Mall breached its duty to keep the premises in a reasonably safe condition. The fact that Aaron alleges breach of both duties is significant because the courts generally agree that the obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.”); Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624, 632 (Fla. 5th DCA 2003) (“The fallacy is in the premise that the discharge of the occupier’s duty to warn by the plaintiffs actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from recovery by negating a landowner’s or occupier’s duty to invitees to maintain his premises in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), that liability should be apportioned according to fault.” (citation omitted)); see generally Benjamin Jilek, The “Open and Obvious” Defense and Summary Judgment in Premises Liability Claims, 25 Trial Advoc. Q. 36, 37 (2006) (“The [other] duty owed by a landowner or occupier to an invitee is to use reasonable care to maintain the premises in a reasonably safe condition. In contrast to popular belief among many trial attorneys and judges, the duty to maintain is not related to, or discharged along with, the duty to warn. Instead, it is a distinct duty that does not depend on whether or not the condition was open and obvious: A plaintiffs knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.” (footnotes, citations and internal quotations omitted)).

Further, “[w]hen an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.” Aaron, 908 So.2d at 578 (citing Lotto v. Point E. Two Condo. Corp., 702 So.2d 1361, 1362 (Fla. 3d DCA 1997)). The length of time the pothole may have existed, whether the pothole had existed for a sufficient length of time to put Appellees on actual or constructive notice of its existence, such as might constitute negligence for the Appellees’ alleged failure to make timely repairs are material issues of fact that remain. Turner v. Winn-Dixie Food Stores, Inc., 651 So.2d 827, 828 (Fla. 5th DCA 1995) (citing Barrett v. State Dep’t of Transp., 546 So.2d 1175 (Fla. 4th DCA 1989); Martin v. Consol. City of Jacksonville, 483 So.2d 804 (Fla. 1st DCA 1986)). Accordingly, the trial court erred in entering summary judgment in regards to the theory alleged by Ms. Trainor that Appellees breached their duty to maintain the premises in a reasonably safe condition. Cf. Aaron, 908 So.2d at 578 (“[W]e do not think that the obviousness of the condition relieved the condominium association of the duty to repair it .... We think there remains a factual issue whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby.” (quoting Lotto, 702 So.2d at 1362)); accord De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013) (“When an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.” (quoting Aaron, 908 So.2d at 578)). “Moreover, when the failure to maintain premises is alleged, the obvious nature of the danger creates an issue of fact regarding the plaintiffs own comparative negligence.” De Cruz-Haymer, 117 So.3d at 888 (citing Burton, 78 So.3d at 735; Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007) (“A plaintiffs knowledge of a dangerous condition ... simply raises the issue of comparative negligence and precludes summary judgment.”)).

For the reasons stated herein, we reverse the final summary judgments entered in favor of PNC, Kirby and Williams and remand this case for further proceedings.

REVERSED AND REMANDED.

SAWAYA and EDWARDS, JJ., concur.


author: PALMER, J.

text:
    Warren FOLEY, Appellant, v. Gina Marie FOLEY, Appellee.
    Case No. 5D16-1710
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017

      Gary S. Israel, of Gary Israel, P.A., Orlando, for Appellant.
    Andrew J. Chmelir, of Jacobson, Chme-lir & Ferwerda, Winter Springs, for Appel-lee.
   PALMER, J.

Warren Foley (the father) appeals two post-dissolution orders, one denying his request to modify his child support obligation and the other denying his request for an award of attorney’s fees. We affirm the order regarding attorney’s fees without discussion, but we reverse the order regarding child support.

The father argues that the trial court reversibly erred in denying his request to modify his child support obligation. Specifically, he asserts that the trial court’s ruling was erroneous because (1) the trial court incorrectly stated that no financial affidavits were admitted into evidence during the modification hearing, and (2) the court failed to recognize that the issue was tried by consent. We agree.

In 2006, the parties’ marriage was dissolved and, among other things, Gina Foley (the mother) was granted primary custody of their son. In 2014, the father filed a petition seeking to modify the parties’ time-sharing arrangement. Along with the petition, the father filed a financial affidavit which, in pertinent part, stated that “this case involves the establishment or modification of child support.” In response, the mother filed a pro se “Counter Supplemental Petition of Modification of Child Support,” which also sought modification of the parties’ time-sharing arrangement. She also filed a financial affidavit that stated that “this case involves the establishment or modification of child support.” Thereafter, during the modification hearing, counsel for the father stated:

I’ve prepared child support guidelines based on every other weekend with mom. We keep the same holiday schedule as has been previously ordered by the [cjourt. The child support needs to be recalculated.

Both parents identified their financial affidavits, and the trial court admitted them into evidence. The father also identified a child support guideline document which had been prepared by his counsel.

The court entered an order that modified the parent’s time-sharing arrangement and stated that child support “will be modified based upon a new child support guidelines worksheet to be prepared by [the father’s counsel].” However, upon subsequent review, the trial court entered an order stating that the court lacked the “authority to modify child support where the matter was not plead or tried by consent and where no financial affidavits were submitted.” Contrary to the trial court’s ruling, the financial affidavits were admitted into evidence during the modification hearing, and the record demonstrates that both parties were on actual notice that child support modification was at issue in the proceedings below. Accordingly, the trial court’s order on child support is reversed, and this matter is remanded for the trial court to consider the father’s child support modification request.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA and ORFINGER, JJ„ concur.


text:
    Brittany HANEY, Appellant, v. Leslie SLOAN, Appellee.
    CASE NO. 1D16-1326
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017.
    Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A., Miami, for Appellant.
    Dennis R. Schutt and Cindy K. Kinslow-Coats of Schutt, Schmidt & Noey, Jacksonville, for Appellee.
   PER CURIAM.

This appeal arises from the final judgment awarding attorneys’ fees and costs to the appellee, Leslie Sloan, in litigation that was separately appealed to this Court. See Haney v. Sloan, 1D15-3905.

Because the appellant, Brittany Haney, has prevailed in the main appeal, the trial court’s award of attorneys’ fees and costs in Ms. Sloan’s favor must also be reversed. See Panama City Bay County Airport & Indus. Dist. v. Kellogg Brown & Root Services, Inc., 136 So.3d 788 (Fla. 1st DCA 2014); see also § 768.79(1), Fla. Stat. (an attorneys’ fees award under the offer of judgment statute is predicated on a valid final judgment).

This decision is without prejudice to either party seeking an award of attorneys’ fees after a new valid final judgment has been entered.

REVERSED AND REMANDED.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


text:
    James L. HENSON, Appellant, v. Jeniece CARTER-HENSON, Appellee.
    CASE NO. 1D15-5202
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017.
    Gerald L. Wilkerson of Gerald Wilkerson, P.A., Jacksonville, for Appellant.
    Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The appellant/former husband raises four issues in this appeal from a final judgment modifying the parties’ consent final judgment of dissolution of marriage and parenting plan. We affirm the final judgment on appeal in all respects, but write to address the former husband’s Issue IV, in which he argues the trial court erred by not conforming its rulings in the final judgment to the evidence and its oral pronouncements specifically with regard to the temporary nature of the long-distance guidelines imposed as well as how the child was to be exchanged between the appel-lee/former wife and the stepmother. On these points, we agree. However, the former husband’s argument that the trial court stated it would take his time sharing suggestion (“Option 3”) into consideration and then failed to include any mention of it in the written final judgment is without merit. The trial court’s remark that it would take Option 3 into consideration was not a ruling.

Accordingly, we REVERSE and REMAND with instructions to conform the written final judgment to the trial court’s oral pronouncements.

ROBERTS, C.J., LEWIS and RAY, JJ., CONCUR.


text:
    Barbara Lynne MCDOWELL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3227
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017
    William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges her fifteen-year prison sentence for DUI manslaughter. She argues that the trial court committed fundamental error in suggesting that her sentence may have been different had she cooperated and admitted guilt at an earlier stage of the case. The State appropriately concedes that Appellant is entitled to relief. Accordingly, we VACATE the sentence and REMAND with instructions for Appellant to be resentenced before a different judge. See Dumas v. State, 134 So.3d 1048, 1048 (Fla. 1st DCA 2013); Ritter v. State, 885 So.2d 413, 414-15 (Fla. 1st DCA 2004).

MAKAR and WINSOR, JJ., and BROWN, JOHN T., ASSOCIATE JUDGE, CONCUR.


text:
    Keflyn Dale RICE, Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0514
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017.
    Matt Shirk, Public Defender, Elizabeth H. Webb and Tricia Rado Rover, Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on November 15, 2016, in Duval County Circuit Court case number 2016-CF-008588, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner on appeal.

WOLF, LEWIS, and WETHERELL, JJ„ CONCUR.


text:
    William Kirk ANDERSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4656
    1D16-4657
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore and Jason W. Rodriguez, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

We sua sponte consolidate these appeals for disposition. Appellant seeks review of orders revoking his probation and sentencing him to prison. He argues in each case and the state properly concedes that by failing to conduct an appropriate plea colloquy before revoking appellant’s probation and sentencing him, the trial court reversibly erred and violated the requirements of Florida Rule of Criminal Procedure 3.172(c). See Haug v. State, 151 So.3d 560 (Fla. 1st DCA 2014). Accordingly, we REVERSE the orders revoking probation and the judgments and sentences entered thereon, and REMAND for further proceedings.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.


text:
    James Patrick BONIFAY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D12-2859
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Andy Thomas, Public Defender; Amanda Edge and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General; Virginia Chester Harris and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Atwell v. State, 197 So.3d 1040 (Fla. 2016); Kelsey v. State, 206 So.3d 5 (Fla. 2016).

ROBERTS, C.J., B.L. THOMAS and WINOKUR, JJ., CONCUR.


text:
    Robert Patrick GOZIA, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5305
    District Court of Appeal of Florida, First District.
    Opinion filed March 24, 2017
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Robert Patrick Gozia, appeals the “Order of Judgment and Sentence” that was entered following the revocation of his probation. Because we conclude that it was fundamental error to revoke Appellant’s probation for failure to complete his community service hours when the Order of Modification of Probation gave him until August 15, 2017, to either perform his ordered community service hours or to buy out his remaining hours, we reverse and remand for the reinstatement of his probation. See Hendricks v. State, 34 So.3d 819, 828 (Fla. 1st DCA 2010) (discussing an appellate court’s duty to correct fundamental error on appeal); Bishop v. State, 21 So.3d 830, 832 (Fla. 1st DCA 2008) (same).

REVERSED and REMANDED with directions.

ROBERTS, C.J., LEWIS, and WINSOR, JJ., CONCUR.


author: PER CURIAM:

text:
    STATE EX REL. Cornell WASHINGTON a/k/a Horace Washington v. STATE of Louisiana
    No. 2015-KH-1878
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

11 Denied. Relator shows no error in the District Court’s refusal to reconsider his motion to withdraw his guilty plea because a district court may not “reconsider” a post-conviction application on which it has earlier ruled. See La.C.Cr.P. art. 930.6 cmt. (“An application for supervisory writs is the petitioner’s sole method of seeking review of the trial court’s disposition of an application for post conviction relief.”); see generally State v. Ford, 96-2919 (La. 5/30/97), 694 So.2d 917; see also State v. Clayton, 96-1658 (La. 2/7/97), 687 So.2d 996; State ex rel. Lewis v. Cr.D.C., 571 So.2d 659 (La. 1990) (“There are no provisions for the trial court’s reconsideration of its judgment on an application for post conviction relief in the Code of Criminal Procedure.”). Moreover, relator’s successive pleading was not timely filed in the District Court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the District Court’s ruling declining to consider the filing.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-|2conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr,P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

Attachment


text:
    STATE EX REL. Rontrell WISE v. STATE of Louisiana
    No. 2015-KH-0224
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

| /Writ granted. In light of the Supreme Court’s holding in Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) that Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we vacate relator’s sentence and remand this case to the 23rd Judicial District Court for further proceedings consistent with the views expressed in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, and for resentencing pursuant to La.C.Cr.P. Art. 878.1. We further note that, after defendant is resentenced, that judgment is included by statute among those which defendant may appeal. See La.C.Cr.P. art. 912(C)(1).