text:
    The BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee FOR CERTIFICATE HOLDERS OF CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2007-5, Appellant, v. Minerva DIAZ, Appellee.
    No. 4D16-1418
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      - Edward B. Cole of Cole, Law Firm, P.A., Palm Harbor, for appellant.
    Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for. appellee.
   Conner, J.

Our, opinion in. this case serves as a reminder of two principles: (1) the grant of involuntary .dismissal as a- sanction requires findings of facts and conclusions of law .compliant with case law; and (2) a trial court may not involuntarily dismiss a case during trial for insufficiency of evidence prior to the completion of presentation of evidence by the plaintiff. Because the order under review fails to explain the legal authority for dismissal, we are compelled to reverse and quash the order. If dismissal was granted as a sanction, the order of dismissal fails to include the requisite findings of facts and conclusions of law. If dismissal was granted due to insufficiency of evidence to establish a prima fade case at trial, the dismissal was premature. Because the reason for dismissal is ambiguous, we give alternative instructions on remand.

Background

The Bank filed the underlying foreclosure action against the appellee (“the title owner”) and junior lienholders. The title owner purchased the subject property at a prior foreclosure sale brought by a homeowner’s association. The title owner was not the borrower under the note and mortgage. The title owner filed two affirmative defenses which survived a motion to strike: lack of standing and failure to comply with conditions precedent. A judicial default was entered against the borrower, who made no appearance below.

During pre-trial discovery, the title owner moved to compel better responses to its first production request. The trial court sustained the Bank’s objections to production of various documents, such as any bailee letters and pooling or servicing agreements.

Pursuant to the pre-trial order instructing the parties to make all exhibits available for viewing in advance of trial, the Bank filed its exhibit list. Two days later, the title owner sought production of unre-dacted copies of all of the documents identified in the Bank’s exhibit list. The Bank objected on various grounds, including confidentiality. The title owner moved to compel better answers to its request for production, but later withdrew the motion.

The trial judge who tried the case was not the judge who presided over the pretrial proceedings. The trial transcript reflects that the Bank brought two witnesses to trial, one representing the current mortgage servicer, the other representing the prior servicer.

During direct examination of the Bank’s first witness, the title owner objected to testimony concerning the Bank’s status as owner and holder of the note and mortgage. The title owner argued that prior to trial, the Bank had objected to its request to produce various documents and the pretrial judge had sustained those objections. The title owner also argued that in preparing for trial, it requested copies of the Bank’s trial exhibits, which the Bank failed to produce in violation of the pretrial order requiring the Bank to provide access to all of its trial exhibits. The title owner explained that the only document the Bank provided pretrial was a power of attorney, thus, the title owner would be objecting to any other documents the Bank intended to rely upon that were not produced pretrial.

The trial court inquired as to the basis of the objections to the pretrial discovery sustained by the pretrial judge. The Bank explained that the title owner was not the borrower on the mortgage and that the objections were sustained because the only information that the title owner was entitled to obtain is the payoff amount for the loan. The Bank asserted that disclosure of information regarding its borrower account could subject it to a felony for violation of confidentiality. It also asserted that the title.owner had withdrawn its motion to compel the request for production of the items in the Bank’s trial exhibit list .and further contended that the two affirmative defenses regarding standing and conditions precedent were improper because the title owner lacked privity of contract. In response, the title owner maintained that, as a party at trial, it was entitled .to any document that the Bank intended to use during the trial as an exhibit. After, further arguments about other matters concerning notice, the lis pendens, and the prior foreclosure by the homeowner’s association, the title owner’s objection was overruled.

The Bank entered the note and mortgage into evidence. When the Bank elicited testimony concerning the bailee letter and sought to have it'admitted into evidence, the title owner again objected ■ and informed the court that it would be asserting prejudice and unfair surprise due to the Bank’s failure to comply with the order for trial preparation, which was a matter that had not been ruled upon. The trial court sustained the objection, noting that the document, should have been presented pri- or to trial. When the Bank attempted to introduce-■ the payment history into evidence,- the title • owner again raised the same objection.- The title owner clarified for the court that, while its first motion to compel better responses to its first request for production was denied because the Bank’s objections to that request were sustained, and while its subsequent motion to compel better responses to its second request to produce the Bank’s trial exhibits had been withdrawn, the second request, to produce the trial exhibits had yet to be ruled upon.-The trial court overruled the objection and admitted the payment history. The trial continued in the same manner, with the title owner objecting to the admission of several of the Bank’s documents for violation of the trial order and the prejudice caused thereby, and the trial court sustaining some of the objections and overruling some of the objections, seemingly based on documents pertaining to the title owner’s asserted affirmative defenses.

While still on direct examination of its first witness, the Bank asked the witness questions regarding the amounts owed. The title owner then once again objected to the Bank’s failure to provide it with any of the information, claiming unfair surprise and prejudice in not having been given the opportunity to review any of the documents introduced into evidence referencing the numbers calculating the amount due. Thereafter the following exchange ensued:

THE COURT: So are you making any other Motion?
TITLE OWNER’S COUNSEL: Your Honor, I’d like to make a Motion to Involuntarily Dismiss this case at this point, or sanctions for — or strike its pleadings or have them dismiss it.
And we’d like to make a Motion to receive all these documents, so that we have time to look at them and inspect them and review them properly.
We’re not opposed to [the Bank] taking a Voluntary Dismissal, and we’re not— actually, at this point, even willing to waive fees just to be done so this can be done properly.
BANK’S COUNSEL: Your Honor, as I stated previously—
THE COURT: There’s too much prejudice involved in this case. I’m granting your Involuntary Dismissal.

(emphases added). Thereafter, the trial concluded and the trial court issued a written order granting the title owner’s motion for involuntary dismissal. The written order simply stated that the title owner’s motion for involuntary dismissal was granted and directed the return of the original documents admitted into evidence to the Bank.

The Bank filed a motion for rehearing and argued that the involuntary dismissal was improper where the trial court failed to make the necessary findings under Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). In response, the title owner argued that the involuntary dismissal was not entered as a sanction requiring a Kozel analysis, and maintained instead that the trial court granted the dismissal because the Bank could not make a prima facie case at trial since several of the documents it needed to succeed were excluded from evidence as a result of the unfair prejudice caused by the Bank’s failure to produce documents in advance of trial. The trial court denied the title owner’s motion for rehearing without explanation.

The Bank gave notice of appeal.

Appellate Analysis

On appeal, sanctions orders are reviewed for an abuse of discretion. Chappelle v. S. Fla. Guardianship Program, Inc., 169 So.3d 291, 294 (Fla. 4th DCA 2016). An order granting an involuntary dismissal during trial is reviewed de novo. See 3618 Lantana Rd. Partners, LLC, v. Palm Beach Pain Mgmt., Inc., 57 So.3d 966, 968 (Fla. 4th DCA 2011).

Neither the verbal ruling nor the written order granting involuntary dismissal in this case explains the statutory, rule, or case law basis for dismissal.

The Bank’s first argument on appeal is that to the extent involuntary dismissal was granted as a sanction for the Bank’s failure to produce documents referenced in its exhibit list prior to trial, such dismissal was error where the trial court failed to make the requisite findings under Kozel. We agree that under the circumstances of this case, it appears most likely that the trial court dismissed the case as a sanction due to the prejudice caused by the Bank’s failure to provide the title owner with its listed trial exhibits. Perhaps the strongest support for this conclusion is that the trial transcript does not reflect any mention of the Bank’s ability to present a prima fade case in light of any precluded evidence. Instead, the title owner specifically argued for the sanction of involuntary dismissal for the Bank’s violation of the trial preparation order.

However, “[b]efore a court may dismiss a cause as a sanction, it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal.” Chappelle, 169 So.3d at 294 (quoting Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422, 426 (Fla. 4th DCA 2011))(citation omitted). Those factors are whether:

1. the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
2. the attorney has been previously sanctioned;
3. the client was personally involved in the act of disobedience;
4. the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
5. the attorney offered reasonable justification for noncompliance; and
6. the delay created significant problems of judicial administration.

Id. (quoting Kozel, 629 So.2d at 818). We have observed that “[a]fter considering these factors, if there is a less-severe sanction available than dismissal with prejudice, the court should use it.” Id. (quoting rel. Bennett, 67 So.3d at 427). “[A] trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id. (quoting Ham v. Dunmire, 891 So.2d 492, 500 (Fla. 2004)). “We have consistently required the record to show an express consideration of the Kozel factors.” Id. (quoting Vista St. Lucie Ass’n v. Dellatore, 165 So.3d 731, 735 (Fla. 4th DCA 2015)) (citation omitted) (internal quotation marks omitted). “While no ‘magic words’ are required, the trial court must make a ‘finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.’ ” Id. (quoting Ham, 891 So.2d at 495).

Having concluded that the trial court most likely dismissed the case as a sanction for the Bank’s failure to comply with the' trial preparation order, we agree with the Bank that the record reflects that the trial court failed to consider and make explicit findings as to the Kozel factors. In dismissing the case, the trial court merely stated, “there’s too much prejudice involved in this case” and then immediately granted the involuntary dismissal. Therefore, reversal and remand is required for the trial court to consider each of the factors articulated in Kozel in determining whether dismissal is appropriate for the asserted violation of the trial preparation order.

The Bank additionally argues that even considering the Kozel factors, the record would not support dismissal as a sanction. However, that argument is premature, and the trial court should rule on that issue before we review it.

Although the trial transcript supports the conclusion that the trial court entered the involuntary dismissal as a sanction, we address the- Bank’s second argument on appeal, disputing the propriety of the title owner’s assertion that the involuntary dismissal was granted because the Bank could not make a prima facie case at trial since several of the documents it needed to succeed were excluded from evidence. If that was the basis for dismissal, we agree with the Bank that involuntary dismissal was prematurely and erroneously granted during the middle of the Bank’s direct examination of its first witness, where it had a second witness waiting to testify and additional evidence still left to be presented in its case-in-chief. The title owner’s motion for involuntary dismissal, had it in fact been based on insufficient evidence pursuant to rule 1.420(b), should not have been made until after the Bank had completed the- presentation of all of its evidence in its case-in-chief. Fla. R. Civ, P. 1.420(b), Indeed, it is well established that a trial court may not involuntarily dismiss a case prior to the plaintiffs completion of its presentation of evidence. See Wachovia Mortg., FSB v. Montes, 156 So.3d 1105, 1106 (Fla. 4th DCA 2015) (finding that the trial court could not involuntarily dismiss mortgagee’s foreclosure action, due to the absence of the original promissory note, from the court file, before mortgagee had finished presenting evidence as part of its case-in-chief at bench trial); Deutsche Bank Nat’l Tr. Co. v. Santiago, 117 So.3d 1146, 1147 (Fla. 3d DCA 2013) (“[T]he trial court erred when it ordered an involuntary dismissal of the foreclosure action before the bank had rested its case. The governing rule of civil procedure provides for an involuntary dismissal for lack of evidence only ‘[ajfter a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence.’”) (quoting Fla. R. Civ. P. 1.420(b)); Sheldon Greene & Assocs. v. Williams Island Assocs., 550 So.2d 1142, 1143 (Fla. 3d DCA 1989) (“[I]t is error to direct a verdict before a plaintiff has completed presentation of his evidence.”); AN. v. M.F.-A., 946 So.2d 58, 60 (Fla. 3d DCA 2006) (“By denying appellants the opportunity to complete their case-in-chief, the trial court denied appellants their due process.”); see also SJS Enters. v. Cates, 547 So.2d 226, 227 (Fla. 4th DCA 1989) (holding that the • trial court could not “jump the gun” by granting a motion for an involuntary dismissal while the plaintiff was on its first witness). Therefore, the title owner’s - attempt to justify the trial court’s involuntary dismissal based on the inability make a prima facie case fails.

Likewise, the title owner’s reliance on Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), as support for dismissal fails because Binger addresses the exclusion of evidence, not flat out dismissal. In the instant appeal, the Bank challenges the abrupt dismissal of its case during its direct examination of its first witness. The Bank does not challenge the exclusion of any of its evidence or testimony. The Binger court held that “a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order.” Id. at 1313. Applying Binger, the exclusion of a witness for nondisclosure would justify dismissal at trial due to insufficient evidence only where a party had a single witness at trial. That was not the "situation in this case. Thus, reliance on Binger does not justify the dismissal in this case.

For the reasons discussed above, we quash the trial court order granting involuntary dismissal. Because the legal basis for the involuntary dismissal is unclear, we give .two instructions on remand. If the involuntary dismissal was granted as a sanction for noncompliance with, one or more court orders, we remand for the trial court to enter an appropriate order. If involuntary dismissal was granted due to insufficiency of 'evidence, we remand for a new trial. .

Reversed cmd remanded with instructions.

Ciklin'and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Roger E. CARUTHERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1567
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

Levine, J.

In a motion for rehearing, the state for the first time cites Dean v. State, 230 So.3d 420, 2017 WL 3774647 (Fla. Aug. 31, 2017), an opinion which issued before oral argument in this case. In a concurring opinion in. Dean, three justices stated that “where the evidence supports the charged offense as well as the requested instruction on a necessarily lesser included offense, any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon.” See id. (Polston, J., concurring). Because Dean did not involve, a majority, we are compelled to follow Daugherty v. State, 211 So.3d 29 (Fla. 2017). See Santos v. State, 629 So.2d 838, 840 (Fla. 1994) (“Under the Florida Constitution, both a binding decision and a binding prec-edential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision.”) (citing art. V, § 3(a), Fla. Const.) (footnotes omitted); Accordingly, the motion for rehearing is denied.

Gerber, C.J., and May, J., concur.


author: Warner, J.

text:
    DAVIE PLAZA, LLC, Appellant, v. Emmanuel IORDANOGLU, as personal representative of the Estate of Mikhael Maroudis, Appellee.
    No. 4D16-1846
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]

      Hinda Klein of Conroy Simberg, Hollywood, and Jan D. Langer of the Law Office of Hugh Behan, Hollywood, for appellant.
    Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and John F. Billera of Billera Law, PLLC, Boca Raton, for appel-lee.
   Warner, J.

Davie Plaza, LLC appeals a final judgment in a premises liability case involving the plaintiffs fall from a ladder. The plaintiffs estate claimed that the fall was due to defects in the premises. Davie Plaza contends that the court erred in denying its motion for directed verdict, when the evidence presented by the plaintiff failed to establish the cause of the fall or even precisely where the fall occurred. We agree that the circumstantial evidence was insufficient and the court erred in denying the motion. We reverse for a judgment in favor of Davie Plaza.

Davie Plaza owned a shopping center which included space leased by 84 Diner, its tenant. In 2007, Mikha'el' Maroudis, the plaintiff, worked for 84 Diner as a handyman. One night in June of that year, the supervisor of the diner asked Maroudis to go up on the roof to clear water, as the roof was leaking into the restaurant. The diner’s roof had two levels. In order to get to the area which was leaking, Maroudis had to ascend to the first level of the roof over part of the kitchen,. haul up the ladder, and then ascend to the upper part of the roof where the water was collecting. After clearing the water, Maroudis descended from the upper roof and then repositioned the ladder to descend from the lower roof to the ground. As he descended he fell backwards to the ground, causing serious injuries.

In 2011, Maroudis filed suit against Da-vie Plaza alleging his status as a business invitee on the property. The suit alleged that the property had a latent defect in the premises, namely “uneven, cracked and defective exterior walkway/parking lot located in the area where [Maroudis] placed his ladder.” Maroudis alleged the uneven area “collapsed underneath the foot of [Maroud-is’s] ladder, causing him to fall.” During the course of the proceedings, Maroudis testified regarding the incident at several depositions, and he also gave a recorded statement. The statement and depositions were used at trial, because Maroudis died of unrelated causes in 2013, and his estate was substituted as the party plaintiff.

At trial, through the depositions, Mar-oudis testified that when his supervisor directed him to go up on the roof to clear the water, it was dark and rain had started to fall. He went out the back of the restaurant to see how he could get up to the higher roof. He then used the diner’s twelve-foot A-frame ladder. Instead of opening it as he normally would, he leaned the ladder against the side of the building, and he ascended the ladder to the first roof. He then pulled up the ladder and leaned it against the wall leading to the second roof. He ascended both levels without incident. After completing his task, he descended the ladder to the first roof. From the first roof, he then repositioned the ladder on the ground, again leaning it against the building. As he descended it, he fell backwards landing on the cement, causing injuries.

Maroudis testified that he placed the ladder on' a concrete surface to the right side of the door as he exited, which would be the left side of the door as one faced it from the exterior. This corresponds to the testimony of his friend at trial, who went by the diner with him sometime after the fall. At that time Maroudis identified the area where he fell, which the witness pointed out was to the left of the door when viewed from the exterior. Pictures entered as exhibits also confirm that a concrete sidewalk is to the left of the door as viewed from the exterior. Maroudis did not look at the ground as he placed the ladder, but he made sure that it was secure by moving it left to right. Although he usually had spotters when he was. on a ladder, he did not use one that night. He did not open the A-frame ladder- and did not observe any defects in the ladder.

When he was placing the ladder on the ground to descend from -the roof, he again leaned it against the building and checked the security of the ladder with his hands. He went down two steps when he lost his balance and fell backwards and to the left side. He testified that he did not know what made him fall, “maybe the floor.” As to the ground, he noted that the area was not defective or broken but was not completely smooth and flat. Later in the same deposition, he looked at a picture and identified an area several feet from the door as covered in asphalt. He then testified that both feet of the ladder were on the asphalt. Then he stated that he placed the ladder on the dividing line between the asphalt and concrete. He said he placed his ladder within one foot of the door both going up and coming down. And after looking at the picture, he indicated that the area in the picture looked as though it had changed since the date of his fall.

At his deposition, the picture which he was viewing was not identified. Other pictures admitted into evidence showed a concrete sidewalk on the left side of the door and a sloping concrete pad which ends at a grate several feet from the door. The property manager for Davie testified in her deposition that asphalt covered the area where the grates were now pictured.

An expert on code violations testified for the Estate. He was asked to assume that the area in the vicinity of the accident had not changed since the time of Maroudis’s fall. He testified that he saw many uneven surfaces in the area which were code violations. However, he never testified as to the cause of the fall. During cross-examination, he admitted that he did not know where Maroudis placed the ladder, as Maroudis had testified to different places in his deposition, including on concrete, on asphalt, and on the dividing line between concrete and asphalt. The expert noted that there was no asphalt upon his inspection. While he did not think that Maroudis’s use of the A-frame ladder without opening it was necessarily improper, he also did not know the angle at which Maroudis would have placed the ladder. In his direct testimony he explained that the angle of the ladder would affect its stability. Further, he never saw the ladder, so he could not rule out a defect in the ladder. In sum, the expert did not give any opinion as to the cause of the fall. A defense expert testified that the use of the A-frame ladder was improper. He also determined that the area to the left of the door where Maroudis testified he placed his ladder was not an area of defective concrete, but if the feet were placed near the crack between the grate and the concrete, the ladder would have been at an improper angle.

Davie Plaza moved for directed verdict at the close of the Estate’s case and at the close of all the evidence, contending that the Estate’s case consisted of stacking inference upon inference. Because the Estate could not show precisely where Mar-oudis placed his ladder when descending from the roof, it could not show that he placed it in an area of the ground that was dangerous or uneven. Further, an equally reasonable inference was that the angle at which he leaned the unopened ladder against the building caused it to be unsteady. The court denied the motions. The jury returned a verdict in favor of the Estate, awarding an extraordinarily high amount of damages. Davie Plaza renewed its motion for directed verdict in post-trial motions, but it was again denied. From the final judgment, Davie Plaza appeals.

An order denying a motion for directed verdict is reviewed de novo. Geico v. Harvey, 208 So.3d 810, 814 (Fla. 4th DCA 2017). The “appellate court must view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant.” Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004).

The standard jury instructions set for the required elements of proof in a premises liability claim are:

[W]hether (defendant) - [negligently failed to- maintain [its] premises in a reasonably safe condition], [or] [negligently failed to correct a' dangerous condition about which (defendant) either knew or should have known, by the use of reasonable care,] [or] [negligently failed to warn (claimant) of a dangerous condition about, which (defendant) had, or should have.had, knowledge greater than that of (claimant) ]; and,. if so, whether such negligence was a legal cause of [loss] [injury] or [damage] to (claimant,.decedent or person for whose injury claim is made).

Fla. Std. Jury Inst. (Giv.) 401.20 (asterisk deleted). Davie claims that the Estate failed to prove that any negligence on its part was a legal cause of injury to Maroud-is; The Estate’s case was based on circumstantial evidence,- as Maroudis did -not know what made him fall.'

To prove a prima facie case of negligence and an ultimate fact, such as proximate cause, circumstantial evidence can be used “as effectively and as conclusively” as direct positive evidence, but if a party

depends upon. the inferences to be drawn from circumstantial evidence as proof of one fact, it. cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla. 1960). Davie Plaza argues that the initial inference that Maroudis placed his ladder on an uneven surface or defect in the premises was never proved to the exclusion of other reasonable inferences, because the Estate could not establish where Maroudis placed his ladder, and he did not know what made him fall. Other equally reasonable inferences could be made as to why he may have fallen.

We agree with Davie that the Estate did not and could not establish the initial inference to the exclusion of all other inferences precisely because of Maroudis’s conflicting testimony regarding where he placed the ladder when descending to the ground. At first, he testified that he placed it to the left of the exit door on concrete. Both the Estate expert as well as the defense expert agreed that the area was level, although the Estate expert contended that it was a very narrow area before it sloped away from the building. But later Maroud-is said both feet of the ladder were on -asphalt, which the experts discounted because they had seen -no asphalt and had assumed that there had been no changes to the property since the accident. However, the property manager testified that asphalt used to be in the place of where a grate appeared in the pictures exhibited to the jury. Maroudis himself noted that the pictures he was shown at his deposition appeared as though the area had changed. If he had placed both feet on where the grate was, which was formerly covered with asphalt, then the angle at which the ladder would have been placed would have been improper. Moreover, no one could testify that the asphalt, which was no longer present, was a-dangerous condition. Nor could anyone testify that the crack between the asphalt and the concrete, another place Maroudis said he placed his ladder, was defective. And no one, not even Maroudis, testified to the veracity of the allegation of the complaint that an uneven area “collapsed” under the foot of the ladder. Furthermore, Maroudis testified that he checked the ladder to determine that it did not move before descending, thus also negating the inference that he placed the ladder on an uneven surface, causing him to fall.

In short, the inference that Maroudis placed his ladder on a defect in the premises cannot be made to the exclusion of all other reasonable inferences. He could have placed his ladder on even concrete to the left of the door. Or he could have placed his ladder on asphalt but at an improper angle. In either case, no defect in the premises would be a cause of the fall. Absent clarity as to where Maroudis placed the ladder, one can only speculate where the ladder was placed, and thus, whether a defect in the premises at that location was even present. A finding of liability cannot be based on such speculation.

This case is somewhat similar to Miller v. Aldrich, 685 So.2d 988, 989 (Fla. 5th DCA 1997), where the plaintiff was injured when he fell off a ladder while working at a homeowner’s residence, there were no witnesses, and the plaintiff testi-' fied he had “no idea of what happened.” The Fifth District concluded the trial court correctly granted summary judgment for the defendants because “[t]he fact that an accident occurred does not, in an ordinary case, establish breach of a duty by another party, or causation.” Id. at 990. On the day before the accident, the defendant saw the plaintiff “shimmying the ladder side to side while standing on it, in order to move it,” and he warned the plaintiff to not use the ladder improperly. Id. at 989. The Estate argues Miller is distinguishable because, in that case, there was no evidence that the ladder was defective or that the homeowner was negligent in another way, whereas here, there is evidence of Davie Plaza’s code violations. However, a plaintiff must show both the defendant’s breach of a duty and how that breach proximately caused the plaintiffs injuries. Id. at 989-90. Without knowing that the ladder was placed upon a defective condition in the premises, causation cannot be established. See also Gelco Convention Servs. v. Pettengill, 710 So.2d 581, 582-84 (Fla. 4th DCA 1998); Hurst v. Astudillo, 631 So.2d 380, 381 (Fla. 3d DCA 1994).

The Estate most strongly relies on Ortiz v. Lorie, 921 So.2d 868, 869 (Fla. 4th DCA 2006), where the plaintiff fell off a ladder while cleaning the defendant homeowner’s roof and could not remember why the accident happened. The ladder had been supplied to him by the homeowner. Id. Plaintiff sued on a theory of negligence that a principal has a duty to assure that any instrumentalities which it provides to an independent contractor are reasonably safe for use. Id. at 870. An expert testified by way of affidavit that he could look at pictures of the ladder and conclude that it was improperly assembled, and thus, defective, Id. at 869. We reversed a summary judgment granted to the homeowner because of the evidence of defect in the ladder, despite the plaintiffs inability to remember the accident, where the circumstantial evidence showed that the ladder was defective, and the plaintiff fell while on the defective ladder. Id. at 870-71. For purposes of summary judgment, where it is the duty of the homeowner to either conclusively refute his own negligence or show that the plaintiffs negligence was the sole proximate cause of his injuries, the defendant had not carried that burden. Id. The Estate analogizes Ortiz to this case, contending that the mere fact that Mar-oudis did not know what made him fall does not defeat his cause of action. While we agree with that contention, in Ortiz the plaintiff showed that he had been supplied with a defective ladder and he fell, thus establishing the elements of the cause of action. The homeowner had not negated his own negligence nor shown that the fall was due solely to the plaintiffs own negligence. Here, on the other hand, while the Estate may have shown defects in the premises, it did not show that Maroudis placed the ladder on a defective condition in the premises. This initial inference was not proved to the exclusion of all other inferences.

Ortiz relied on Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959), also a summary judgment case, where the plaintiff fell while descending stairs at a dog track, although she did not remember the cause of the fall. An architect testified that the stairs were of varying height which an architect opined created a dangerous condition. Id. at 532. In reversing a summary judgment, the supreme court determined that the fact that the plaintiff could not remember the fall would not defeat her claim. Id. at 533-34. Evidence that she was descending stairs which the expert opined constituted a dangerous condition was sufficient to state a prima facie case. Id. at 534. Just as the plaintiff in Ortiz was descending the defective ladder, the plaintiff in Majeske was descending the stairs which were in the dangerous condition. In contrast, the inference that Maroudis placed the ladder on a defect in the premises cannot be made to the exclusion of other equally reasonable inferences.

For the foregoing reasons, we conclude that the trial court erred in denying the motion for directed verdict. We reverse and remand for entry of judgment for appellant Davie Plaza. Because of our disposition on the directed verdict, we do not address the remaining issues raised.

Levine, J., and Buchanan, Laurie E., Associate Judge, concur.


author: Per Curiam.

text:
    Melissa V. COUTANT and Andrew T. Coutant, Appellants, v. Randall R. LUCE, William L. Foreman, Leda L. Schroder, n/k/a Leda L. Foreman, and Karen Luce n/k/a Karen Bookout, Appellees.
    No. 4D17-1051
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2017]
    Melissa V. Coutant, Covington, LA, pro se, and Andrew T. Coutant, North Haven, CT, pro se.
    No áppearance for appellees.
   Per Curiam.

Appellants, Melissa Coutant and Andrew Coutant, challenge the trial court’s dismissal of their complaint with prejudice and subsequent denial of a rule 1.540 motion in this suit for damages based on allegations of malicious prosecution, false imprisonment, defamation, and intentional infliction of emotional distress. We affirm on all issues, except one.

As to defendant Karen Luce n/k/a Karen Bookout, we find that the trial court erred in summarily denying Andrew Coutant’s rule 1.540(b) motion for relief from judgment, which alleged that a notice of voluntary dismissal had been mailed to Karen Bookout prior to the court’s order dismissing the case with prejudice. See Schleger v. Stebelsky, 957 So.2d 71, 73 (Fla. 4th DCA 2007) (“A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief,” (citation omitted)); see also Pino v. Bank of New York, 121 So.3d 23, 40 (Fla. 2013) (“Under a plain reading of rule 1.420(a)(1), the trial court now has no authority ,or discretion to deny a plaintiffs service.of a notice of voluntary dismissal, as the dismissal is effective upon service.”). The motion’s allegation that the notice was mailed to Karen Bookout asserted a colorable entitlement to relief insofar as the voluntary dismissal would have been effective upon being mailed. This would have stripped the trial court of jurisdiction as to that particular defendant before the court entered its order of dismissal with prejudice. Appellants concede that the notice was never mailed to the remaining defendants.

Accordingly, we reverse the trial court’s summary denial of the motion to vacate solely as to Karen Bookout and remand for an evidentiary hearing. See Schleger, 957 So.2d at 73.

Affirmed, in part; Reverse in part; and Remanded.

Warner, Gross and Taylor, JJ., concur."


text:
    Martha GOMEZ, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D16-2406
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2017]
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant,
    Kimberly Si Mello and Danielle M. Diaz of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed. See Wells Fargo Bank, N.A. v. Sheikha, 221 So.3d 657 (Fla. 4th DCA 2017).

Gross, Ciklin and Klingensmith, JJ.,. concur.


author: PER CURIAM.

text:
    LLANO FINANCING GROUP, LLC, Appellant, v. David NYITRAY, Kamphaus Nyitray & Associates, Appellees.
    No. 4D16-3866
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]

      Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.
    Alex Tirado-Luciano of Lydecker Diaz, Miami, for appellees.
   PER CURIAM.

Affirmed. See Llano Financing Group, LLC v. Yespy, 228 So.3d 108 (Fla. 4th DCA 2017).

Gross, Ciklin and Klingensmith, JJ., concur.


text:
    Stephen BREWSTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2714
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2017.
    Stephen Brewster, pro se.
   PER CURIAM.

Stephen Brewster appeals an order striking as successive his claims in his motion for postconviction relief filed with the clerk on December 4, 2015, in twelve separate cases below. Without commenting on the merits of Mr. Brewster’s claims or any other procedural bar that may exist to his claims, we reverse and remand for further proceedings for the reasons expressed in Brewster v. State, 203 So.3d 956 (Fla. 2d DCA 2016). On remand, the postconviction court shall reconsider each of Mr. Brewster’s claims in accordance with our decision in Brewster, 203 So.3d 956.

WALLACE, MORRIS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: WALLACE, Judge.

text:
    James S. DUNCAN, DOC #165332, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2625
    District Court of Appeal of Florida, Second District.
    Opinion filed April 21, 2017.

      Lisabeth J. Fryer of Lisabeth J. Fryer, P.A., Winter Park; and William R. Ponall, Ponall Law, Maitland, for Appellant.
   WALLACE, Judge.

- James Duncan appeals from the summary denial of his motion for postconviction relief filed under 'Florida Rule of Criminal Procedure 3.850. Because Mr. Duncan’s newly discovered evidence claim was not conclusively refuted by-the record and the postconviction court relied upon evidence outside the record to deny the claim, we reverse and remand for an evi-dentiary hearing.

Mr. Duncan was convicted of thirteen counts of aggravated child abuse on March 27,1996, and sentenced to a total of seventy years in prison. This court affirmed Mr. Duncan’s judgment and sentences in 1997. See Duncan v. State, 696 So.2d 359 (Fla. 2d DCA 1997) (table decision).

On December 22, 2015, Mr. Duncan filed a motion for postconviction relief raising a single claim. Mr. Duncan’s claim of newly discovered evidence was based on a scientific article in a peer-reviewed medical journal published in January 2014, together with an affidavit and a report, from the article’s co-author prepared on Mr. Duncan’s behalf. Mr. Duncan alleged that these materials not only discredited the scientific theory relied upon by the State at his trial, but also proved that he did not abuse the victim. Specifically, Mr. Duncan and the.article’s author asserted that the victim’s injuries were caused by a metabolic bone disease, not child abuse. They .also asserted that such evidence was unknown at the time of trial, could not have been discovered by the exercise of due diligence, and would probably produce an acquittal on retrial.

After considering the State’s response, the postconviction court summarily dismissed the claim as untimely. The postcon-viction court ruled that Mr. Duncan’s claim was untimely because he could have “obtained an expert to diagnose metabolic bone disease more than two years before he filed [his] motion.” The postconviction court further found that the new scientific article merely “eriticize[d]” the State’s scientific theory at trial. Further, in reaching its conclusion, the postconviction court relied upon other scientific articles that were attached as exhibits to the State’s response to demonstrate that Mr. Duncan could have brought this claim long before Mr. Duncan discovered the new article. Finally, in the alternative, the postconviction court ruled that even if Mr. Duncan’s claim were timely filed, it would be denied as meritless because the new scientific article, affidavit, and report could not constitute newly discovered evidence. This appeal followed.

We review the postconviction 'court's summary denial of a rule 3.850 motion de novo. Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (citing Willacy v. State, 967 So.2d 131, 138 (Fla. 2007)). “On appeal from a summary denial of a motion for postconviction relief, this court must reverse ‘unless the record shows conclusively that the appellant is entitled to no relief.’ ” Perez v. State, 118 So.3d 298, 300-01 (Fla. 3d DCA 2013) (quoting Fla. R. App. P. 9.141(b)(2)(D)). If the postconviction court fails to conduct an evidentiary hearing, we “must accept the defendant’s factual allegations as true to the extent they are not refuted by the record.” Id. at 301 (quoting Mason v. State, 976 So.2d 80, 80 (Fla. 3d DCA 2008)).

To prevail on a claim of newly discovered evidence, a defendant must meet two requirements.

First, the evidence must not have been known' by the trial' court, the party, or counsel at the time of trial, and it must appear that the defendant' or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Coley v. State, 74 So.3d 184, 185 (Fla. 2d DCA 2011) (quoting Preston v. State, 970 So.2d 789, 797 (Fla. 2007)). Additionally, “a claim of newly discovered evidence must be raised ‘within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.’ ” Russell v. State, 100 So.3d 202, 203 (Fla. 2d DCA 2012) (quoting Fla. R. Crim. P. 3.850(b)(1)).

Here, there is nothing in the record to conclusively show that Mr. Duncan’s facially sufficient motion was untimely filed. Mr. Duncan filed his motion within two years of the publication of the new scientific article. He alleged that this article contained “newly developed science” that not only disproves the State’s theory at trial, but also demonstrates that the true cause of the victim’s injuries was a rare bone disease, not child abuse. He further asserted that he could not have discovered this “newly developed science” with the exercise of due diligence because it .was not published until January 2014. Accordingly, although the postconviction court found that Mr. Duncan could have obtained an expert to diagnose the possibility of a bone disease and that some in the scientific community acknowledged the possibility that a certain condition could indicate a metabolic bone disease instead of child abuse years before, such findings do not conclusively refute Mr. Duncan’s claim. Nor do they decisively establish that Mr. Duncan and his counsel, with due diligence, could have discovered the new article and its “newly developed science” earlier than its publication date. Indeed, there is no conclusive record evidence to demonstrate that this “newly developed science,” which allegedly discredits the scientific theory employed by the State at trial, had been fully developed or known before the publication of the article in January 2014. Therefore, we disagree with the postcon-viction court’s conclusion that it was not required to hold an evidentiary hearing on Mr. Duncan’s claim.

Our conclusion that an evidentiary hearing is required is bolstered by the postcon-viction court’s reliance upon other scientific articles attached to the State’s response to deny Mr. Duncan’s claim. Such reliance was error because the exhibits were neither a part of the original record nor properly admitted at an evidentiary hearing. See Forte v. State, 189 So.3d 1043, 1044 (Fla. 2d DCA 2016) (holding that the post-conviction court erred in relying upon the transcript from a co-defendant’s evidentia-ry' héaring, which was attached to the State’s response, to summarily deny the defendant’s rule 3.850 motion because it was outside the scope of the record). Finally, we disagree with the postconviction court’s conclusion that scientific evidence in the form of articles and studies cannot constitute newly discovered evidence. See Clark v. State, 995 So.2d 1112, 1113 (Fla. 2d DCA 2008) (holding that scientific evidence to the form of medical studies, reports, and articles could be considered newly discovered evidence), cited with approval in Smith v. State, 23 So.3d 1277, 1278 (Fla. 2d DCA 2010); see also Zamarippa v. State, 100 So.3d 746, 747 (Fla. 2d DCA 2012) (reversing and remanding for an evidentiary hearing because a scientific organization’s report on comparative bullet-lead analysis could constitute newly discovered evidence); Murphy v. State, 24 So.3d 1220, 1222 (Fla. 2d DCA 2009) (same); cf. Henry v. State, 125 So.3d 745, 750-51 (Fla. 2013) (leaving open the possibility -that scientific articles based on new data and scientific information as opposed to a compilation of “previously existing” data may constitute newly discovered evidence).

For the foregoing reasons, we reverse the postconviction court’s summary denial of Mr. Duncan’s motion. We express ho opinion on the merits of Mr. Duncan’s claim of newly discovered evidence. On remand, the postconviction court shall conduct an evidentiary hearing oh that claim.

Reversed and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.

      . Although the postconviction court entitled its order as a summary dismissal of Mr. Duncan’s motion for postconviction relief, the postconviction court also stated that it was summarily denying his claim. Accordingly, we treat Mr. Duncan’s motion as if it were summarily denied below.

      . The State did not file an answer brief.


author: CASANUEVA, Judge.

text:
    Ulysses TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3249
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Rehearing Denied July 7, 2017

      Howard L. Dimmig, II, Public Defender, and Caroline Joan S. Pieart, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Ulysses Taylor appeals the judgments and sentences imposed following a jury verdict finding him guilty of battery on a law enforcement officer and resisting officers with violence. Mr. Taylor asserts seven claims of error by the trial court. After review, we find no reversible error and affirm. We write to discuss the issues created by the State’s request to amend the charging information after it announced that it had rested its case.

The information filed by the State to institute its prosecution alleged in the battery count that the officer struck was Officer Garza. The allegation was incorrect; the record from the outset indicates that the correct officer to identify as the alleged victim was Officer Tomblin. It is within this context that the claim of error is addressed.

Following a traffic infraction occurring on August 16, 2014, two officers, Garza and Tomblin, came into contact with Mr. Taylor. The situation deteriorated and the officers sought to arrest Mr. Taylor, resulting in a struggle. Consistent with earlier reports, Officer Tomblin testified at trial that Mr. Taylor struck him intentionally during the . struggle. He testified that he was struck by a closed fist in the area of his chin and lip. In response, he delivered three knee strikes. -

Officer Garza testified at trial regarding the same incident. He testified that he did not see Officer Tomblin being' struck by Mr. Taylor. Further, he testified that Mr. Taylor did not strike him.

After the State rested, counsel for Mr. Taylor moved for a judgment of acquittal asserting correctly that the State had failed to prove that Mr. Taylor had battered Officer Garza. In fact, the evidence brought forth by the State established that Mr. Taylor had not struck or hit the officer. In response, the State asked the court for leave to reopen its case for the purpose of amending the identity of the victim alleged in the battery count from Officer Garza to Officer Tomblin. Over objection by the defense, the trial court granted the State’s motion.

To complete the full picture occurring at trial, two other matters are clearly demonstrated by the record before this court. First, the correct identity of the victim was known from the inception of the case. The trial court noted that the arrest report, depositions, and a photo of the injury all correctly identified Officer Tomblin as the officer alleged to have been battered. Second, we note that the defendant offered a witness at trial who testified as to the events surrounding the arrest and, critically, that any touching of the officer was accidental and not intentional. The defense witness claimed that it was Officer Tom-blin who had been struck inadvertently.

Florida Rule of Criminal Procedure 3.140(a)(2) provides that, in circuit court, prosecutions shall be made by indictment or information. Here, the State elected- to bring charges by information. Each count of the information “shall allege the essential facts constituting the offense charged.” Fla. R. Crim. P. 3.140(d)(1). One of the essential facts is the identity of the victim. Holborough v. State, 103 So.3d 221, 223 (Fla. 4th DCA 2012) (“It is well established in Florida law that for crimes against persons, the name of the person victimized is an essential element of the crime that the State must prove beyond a reasonable doubt in a criminal prosecution.”). Subsection (o) of the rule provides, in-pertinent part, that no information or count is to be dismissed or judgment arrested because of a defect unless the information is so vague or indistinct as to mislead the accused in the preparation of a defense.

In State v. Anderson, 537 So.2d 1373, 1375 (Fla. 1989), the supreme court discussed the procedure to be followed when addressing a proposed amendment to an information. Quoting from Lackos v. State, 339 So.2d 217, 219 (Fla. 1976), the court noted:

The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing'upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to' a fair trial, not a perfect trial.

Anderson, 537 So.2d at 1375. Accordingly, the supreme court concluded “that the state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the- substantial rights of the defendant.” |d. This is especially true where the accused did not argue, and the court did not find, that the accused did, in fact, suffer any prejudice. See id.

The rule set forth in Anderson was again addressed in State v. Clements, 903 So.2d 919 (Fla. 2005). Writing for the supreme court, Justice Bell reiterated:

We held in, Anderson that “the state ■may substantively amend an information, during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.” 537 So,2d at 1375 (emphasis added). While we noted that we had abandoned the very technical and highly formalistic conventions of the past concerning the filing of amended informations, we recognized that .a defendant’s due process and double jeopardy rights necessarily place limits upon the State’s ability to amend an information. Particularly after the jury has been sworn and the trial has commenced, the State’s ability to amend an information is not unfettered.

Id. at 921.

Thus, the analytical key is prejudice. The State may amend its information during trial, whether the proposed amendment is substantive or nonsubstantive, provided there is no prejudice to the accused. Two areas where prejudice may be demonstrated by the accused are a violation of due process and exposure to a double jeopardy violation. Id.

In Clements, the trial court properly denied the State leave to amend the information midtrial, having found that the defendant would be prejudiced by the amendment. There, the State sought by amendment to introduce a second and new charge of capital sexual battery alleged to have taken place in a time period different from that alleged in the information upon which the State had commenced trial, implicating due process and double jeopardy concerns. Clements, 903 So.2d at 922.

In Green v. State, 728 So.2d 779 (Fla. 4th DCA 1999), a case somewhat similar to the instant proceeding, an amendment-of the information was found to. be reversible error. In that case, the trial court initially denied the State’s at-trial motion, to amend the information, to assert a charge of battery on a law enforcement officer oñ Depu-, ty Gore rather than the initially named Deputy Parrish, having found that the amendment would be prejudicial to the defendant. When the State renewed .its motion at the conclusion of its case, however, the trial court granted the motion. Id. at 780.

Analyzing whether amendment was appropriate, the Fourth District observed that “[t]he common , thread discernable in this line of cases is that the amendment is permissible when it merely clarifies some detail of the existing charge and could not reasonably have caused the defendant any prejudice.” W. at 781. The facts in that case supported a battery charge against both Deputy. Gore and Deputy. Parrish. Yet, for reasons unknown, the State initially chose to charge Mr. Green with battery on Deputy Parrish and not Deputy Gore.

The Fourth District concluded that the midtrial amendment changing the charge from a battery on Deputy Parrish to a battery on Deputy Gore resulted in prejudice.

This is not a case of an amendment which merely clarified or corrected a simple misnomer, i.e., changing the name of the officer from Joe Parrish to Josiah Parrish or Joe Parish. Nor is it a case of .simply correcting the name of the victim where only a single officer was involved and no one, including the defendant, reasonably could have been misled as to the identity of the victim. This is a case, purely-and simply, of.a mid-trial decision ,by the state to charge appellant with a separate offense ....

Id.

Following the rule . set. forth in Anderson and Clements, we.affirm based on the lack of prejudice to Mr. Taylor on this record. It is clear that all parties knew only one officer — ^Officer Tomblin — 'was the claimed victim. Distinguishable from Green, this is a case of simply correcting the name of a law enforcement .victim where only a single officer was involved at the relevant time and no one, including Mr. Taylor, was misled as to the identity of the victim. In fact, our record demonstrates that Mr. Taylor presented a witness to the event, and that witness identified only one potential victim — Officer Tomblin. The defense presented no argument as to how it was prejudiced by the error, and nothing in the record indicates that the error caused confusion as to the identity of the alleged victim. There was neither a due process violation nor an implication of a double jeopardy violation. Therefore, we conclude that no error has been established.

We make two other observations. First, because this record demonstrates that the accused was well aware of this error, a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) was available. The decision not to file was likely a tactical decision. If granted before trial, the State would have been alerted to the eiTor in the information and would have likely amended the information before trial.

Next, our record is silent as to the reason'why this error was not noted by the State and corrected before trial. The result is obvious. It was left to the trial court and to this court to review the impact of the omission. A review by the State during the pretrial-to-trial process likely would have discovered and corrected the error, preventing it from being an issue on appeal.

Affirmed.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Nehemie FONTAGNE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-942
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla. 2007); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Allen v. State, 976 So.2d 1189 (Fla. 5th DCA 2008); Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005); Williams v. State, 907 So.2d 1224 (Fla. 5th DCA 2005); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


author: MORRIS, Judge.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Cindy EVERS, as Personal Representative of the Estate of Jacqueline Loyd, Appellee.
    Case No. 2D16-1603
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017.
    Rehearing Denied January 3, 2018

      Gregory G. Katsas and John M. Gore of Jones Day, Washington, D.C. (withdrew after briefing); John M. Walker of Jones Day, Atlanta, Georgia; Troy A. Fuhrman and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellant.
    Hendrick Uiterwyk of Abrahamson & Uiterwyk, Tampa; Michael J. Trentalange of Trentalange & Kelley, P.A., Tampa; Celene H. Humphries, Maegen P. Luke, and Thomas Seider of Brannock & Hum-phries, Tampa, for Appellee.
   MORRIS, Judge.

R.J. Reynolds Tobacco Company (R.J. Reynolds) appeals a second amended final judgment entered in favor of Cindy Evers, in her capacity as personal representative of the Estate of Jacqueline Loyd. Evers’ wrongful death action was predicated on claims that Loyd was an Engle class member and that Loyd’s lung cancer was, at least in part, caused by R.J. Reynolds and Lorillard Tobacco Company (for whom R.J. Reynolds is the successor in interest).

In bifurcated proceedings, a jury determined that Evers was entitled to both noneconomic compensatory damages and punitive damages (as against R.J. Reynolds only). The trial court subsequently directed a verdict in favor of R.J. Reynolds on certain claims, and as a result, the punitive damages award was vacated and the compensatory damages award was reduced. Evers appealed and R.J. Reynolds cross-appealed. See Evers v. R.J. Reynolds Tobacco Co., 195 So.3d 1139 (Fla. 2d DCA 2015).

In the first appeal, we reversed the directed verdict, thereby reinstating the punitive damages award. Id. at. 1141. However, we declined to reach certain issues pertaining to the punitive damages award because those issues had not been ruled on by the trial court. Id. at 1141 n.2. On remand, the trial court entered the second amended final judgment, finding that the pre-1999 version of the punitive damages statute applied and that there was clear and convincing evidence supporting a punitive damages award in excess of the statutory cap.' The trial court also concluded that the action was' based on an intentional tort making the compensatory damages award ineligible for a comparative fault reduction. Finally,, upon Evers’ motion, the trial court concluded that interest on the judgment accrued from May 15, 2013, the date of the original judgment.

Although R. J. Reynolds raises numerous arguments on appeal, the issue of whether the compensatory damages award must be reduced by the percentage of Loyd’s comparative fault is controlled by 'our recent opinion in Philip Morris USA Inc. v. Boat-right, 217 So.3d 166 (Fla. 2d DCA 2017), appeal filed, SC17-894 (Fla. May 12, 2017). Therefore we will not address it further. However, as in Boatright, we certify conflict with R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), and the line of cases relying on it to the extent that they hold that the core of these types of actions are grounded in negligence and that the comparative fault statute is applicable to reduce the verdict by the smoker’s comparative fault. R.J. Reynolds also asks this court to revisit two arguments raised in the prior appeal regarding. improper closing arguments made by Evers’ counsel and the trial court’s failure to give a jury instruction on a conspiracy claim. We decline to do so. R.J. Reynolds also argues that allowing res ju-dicata to apply to the phase I Engle findings violates R.J. Reynolds’ due process rights, but it acknowledges that issue has already been determined by case law, and it wishes to preserve the issue for further review. See Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 436 (Fla. 2013) (holding that the acceptance of the Engle findings as res judicata does not violate an Engle defendant’s right to due process).

Instead, we affirm the decision of the trial court in all respects, and we write only to address the issues of the application of the pre-1999 version of the punitive damages statute and the evidence offered in support thereof and the award of interest dating back to the date of the original final judgment.

BACKGROUND

Evers sued R.J; Reynolds in 2007, alleging that her mother had been a member of the class prospectively certified in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The Engle class comprised all Florida residents who, as of November 21,1996, suffered or had died from diseases caused by an addiction to cigarettes. See id. at 1274. Evers’ amended complaint alleged claims of negligence, strict liability, fraudulent concealment, and conspiracy to commit fraudulent concealment. Prior to trial, the trial court ruled that Evers could only seek punitive damages on her claims for concealment and conspiracy.

At the end of the first phase of the trial, the jury determined that Loyd was an Engle class member and that Evers was entitled to recover on all of her claims. The jury allocated thirty-one percent of the fault to Loyd, sixty percent to R.J. Reynolds, and nine percent to Lorillard, and the jury awarded $2,950,000 to Evers for non-economic compensatory damages. At the end of the second phase of the trial, the jury awarded $12,360,024 in punitive damages as they related to Evers’ conspiracy and concealment claims. The trial court subsequently directed a verdict in R.J, Reynolds’ favor on the concealment and conspiracy claims, thereby, vacating the punitive damages award. The trial court also reduced the compensatory damages award to $2,035,500 to reflect the jury’s allocation of comparative fault.

After this court reversed the directed verdict on appeal and the case was remanded, Evers moved' for entry of judgment in the full amount of the jury’s compensatory and punitive damages amounts. R.J. Reynolds opposed the motion, arguing in relevant part that the post-1999 statutory cap on punitive damages applied to this case. Ultimately, the trial court entered the second amended final judgment, awarding Evers the original compensatory and punitive damages award amounts. After Evers filed a' subsequent motion to amend, the trial court awarded interest accruing from the date of the original final judgment.

ANALYSIS

I. The trial court properly applied section 768.73(l)(a) and (b), Florida Statutes (1995), to the punitive damages award.

We first address R.J. Reynolds’ argument that the jury’s punitive damages award should be capped at an amount that is three times the compensatory damages award amount; R.J. Reynolds contends that the post-1999 version of section 768.73 is applicable because Evers’ wrongful death action is based on Loyd’s death in 2007. See Ch. 99-225, § 23(5), at 1418, Laws of Fla. (explaining that 1999 amendments apply only to “all causes of action arising after the effective date of this act,’.’ which was October 1, 1999). And R.J. Reynolds argues that in order to exceed the statutory cap pursuant to the post-1999 .version, the jury was required to make findings regarding certain aggravating circumstances, which did not occur in this case. In the alternative, R.J. Reynolds argues that even if the pre-1999 version of the statute applied, the same three-to-one cap applied unless Evers proved by clear and convincing evidence that the award was not excessive, and R.J. Reynolds asserts that she failed to do so.

“Typically, the applicable version of a statute is the one ⅛ effect when the cause of action arose.’ ” R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D491, D493, — So.3d —, 2017 WL 729817 (Fla. 1st DCA Feb. 24, 2017), (first quoting D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 n.9 (Fla. 2003); and then citing §§ 768.72(4) & 768.73(5), Fla. Stat.), reh’g granted (June 15, 2017). And “[i]n many wrongful death actions, the cause of action accrues on the date of a decedent’s death.” Id. (citing Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So.2d 1057 (Fla. 4th DCA 1994)). “However, Engle-progeny cases are different.” Id. (citing Engle, 945 So.2d 1246).

In order for a case to qualify as an Engle-progeny case, “a plaintiffs (or plaintiffs decedent’s) ‘symptoms of a tobacco-related disease or medical condition’ mus.t have manifested by November 21, 1996.” Id. (citing R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1030 (Fla. 2016)). Here, Evers’ amended complaint alleged that Loyd suffered from or was diagnosed with one or more of the diseases enumerated in Engle on or before November 21, 1996. And there is no dispute that the jury determined that Loyd was an Engle class member.- Thus, Evers, as the personal representative of Loyd’s estate, “qualified for the res judicata benefits of the Engle class.” Id.; see also Toombs v. Alamo Rent-A-Car, Inc., 833 So.2d 109, 118 (Fla. 2002) (quoting Celotex Corp. v. Meehan, 523 So.2d 141, 147 (Fla. 1988), for the proposition that “[a] wrongful death action is derivative of the injured person’s right, while living, to recover for personal injury”); Schoeff, 178 So.3d at 492 n.3 (concluding, in an Engle-progeny case, that plaintiffs cause of action in a wrongful death case accrued in 1994 when her husband was diagnosed with lung cancer).

Although it was Evers who sought damages in this case—rather than Loyd— Evers’ wrongful death action, like all En-gle-progeny complaints, relates back to the 1994 Engle class-action complaint. Consequently, “the applicable statutory law [regarding punitive damages] also relates back to the Engle class.” Allen, 42 Fla. L. Weekly at D493, — So.3d at-. This is because “a claim for punitive damages is not a separate, free-standing cause of action,” but is instead “actually dependent on the underlying cause of action.” Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1229-30 (Fla. 2016). To the extent that R.J. Reynolds’ argument could be construed to suggest that the post-1999 version of the statute applies because Ev-ers filed an, independent wrongful death action rather than amending a prior personal injury action brought by Loyd herself, we do not agree. Cf. id., at 1222 (involving Engle-progeny wrongful death action brought by widow many years after her husband’s death wherein the court recognized widow’s right to seek punitive damages); Schoeff, 178 So.3d at 488-89 (involving an Engle-progeny wrongful death action brought by widow based on her husband’s death from lung cancer caused by his addiction to cigarettes). While Evers did not file the wrongful death action until 2007 when Loyd died, her right to do so was based on Loyd’s status as an Engle class member, i.e., Loyd’s manifestation of a tobacco-related disease or medical condition prior to November 21, 1996. See Toombs, 833 So.2d at 118.

Accordingly, because Evers was entitled to the res judicata effect of the Engle class, her cause of action was not controlled by the-1999 amendment to the punitive damages statute. -Indeed, “[ajpplication- of the poste-1999 amendments to the punitive damages statute to [Evers’] claim[s] would impair those substantive rights.” Allen, 42 Fla. L. Weekly at D493, — So.3d at — (citing Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994)).

II. R.J. Reynolds waived the issue of applying a three-to-one cap under the pre-1999 version of the statute, but even if the cap applied, Evers met her burden of proving that the punitive damages award was not excessive.

Having determined that, the trial court properly applied the 1995 version of section 768.73(l)(a) and (b),. we must next address R.J. Reynolds’ : contention that even under the pre-1999 version of the statute, there was a three-to-one cap that could not be exceeded unless Evers established by clear and convincing evidence that the award was not excessive in light of the facts and circumstances that were presented to the jury. R.J. Reynolds contends that Evers failed to meet her burden.

The first problem with this argument is that it is proeedurally barred. R.J. Reynolds did not- specifically argue that the pre-1999 version of the statute imposed a cap on- the punitive damages award amount until the February 1, 2016, hearing on Evers’ motion to enter final judgment, which occurred after this court reversed the original final judgment and remanded the case to the trial court. Indeed, Evers objected, and the trial court below questioned the propriety of R.J. Reynolds’ raising the issue so late. However, in an abundance of caution, Evers asked the trial court to rule on the merits of the issue for purposes of appellate review in the event that this court deemed the argument properly raised. The trial court ultimately concluded that Evers met her burden of proving by clear and convincing evidence that the award was not excessive.

We agree with Evers that R.J. Reynolds should have raised this issue in its motion for remittitur, which must be served within ten days after the jury verdict. See Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002) (recognizing that motion for remittitur must be served within ten days after return of jury verdict). But nowhere in R.J. Reynolds’ motion for new trial, which included the request for a remittitur, did it argue that under the pre-1999 version of the statute, a three-to-one cap applied.

Although R.J. Reynolds argues in its reply that it presented evidence and arguments on this issue to the jury, it has failed to point to any specific document within the voluminous record that supports that assertion. Further, we are not persuaded that R.J. Reynolds sufficiently preserved the issue by making brief references in its briefs filed in the prior appeal and on remand to the trial court to cases that applied the pre-1999 statutory cap.

However, even if this claim was properly addressed on the merits, R.J. Reynolds is not entitled to relief. The cap under the pre-1999 version of the statute can only be exceeded if the plaintiff establishes by clear and convincing evidence that the award was not excessive. We generally review a trial court’s award of punitive damages for abuse of discretion. See Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 488 (Fla. 1999). But we conduct de novo review of -a trial court’s determination as to whether a punitive damage award violates due process. See Engle, 945 So.2d at 1263. As part of the due process analysis, we must determine whether there is a reasonable relationship between the compensatory damages award and the punitive damages award, which includes consideration of the defendant’s conduct and harm to the plaintiff. Id. ■ at 1264-65 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424-26, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)).

In arguing that Evers failed to meet her burden of proving that the punitive damages ‘award was not excessive, R.J. Reynolds argues that the trial court improperly relied upon Evers' mischarac-terizations of the Engle findings and failed to explain how any of its findings regarding the punitive damages were related to the facts of Evers’ case. R.J. Reynolds also contends the award was erroneous because: (1) it [R.J. Reynolds] is subject to cumulative awards against it for the same conduct, (2) a punitive award above the cap is unnecessary for punishment or deterrence, (3) the conduct that served as the basis for the award happened decades ago and could not possibly recur, and (4) the trial court ignored substantial mitigating evidence.'

In the trial court’s order, it explicitly states that it “reviewed the record,” and attached to Evers’ supplemental memorandum in support of her second amended motion for entry of judgment were trial testimony excerpts that included expert opinion on how Loyd was personally affected. Thus it is clear to this court that the trial-court had before it the record evidence presented at trial, including a portion that Evers submitted specifically in support of her argument that she was entitled to the punitive damages as awarded by the jury. In light of the voluminous trial record, we are not surprised that the trial court elected not to detail all of the factual evidence upon which it relied nor are we convinced that the summary reference to a review of the record indicates that the trial court failed to consider anything other than Evers’ arguments or- that it ignored R.J. Reynolds’• mitigating evidence. R.J. Reynolds takes issue with the trial court’s failure to identify the Conduct that the trial court determined was “exceptionally egregious, targeted, lacking in confusion, and substantial,” arguing that In re Standard Jury Instructions (Civil Cases 89-1), 575 So.2d 194, 196 (Fla. 1991), defines “clear and convincing evidénce” as “precise” and “explicit.” But the Florida Supreme Court’s use of-such a definition does not equate -to a requirement that a trial court explicitly list the factual evidence upon which it relied.

‘ The fact that the trial court paraphrased the Engle findings and cited to them as part of the dear and convincing evidence supporting the punitive damages ’ award does not change the result. Notably, in listing the paraphrased findings, the trial court stated that the evidence upon which it rélied’was not limited to those' findings. While 'there is no res judicata effect of the Engle findings as applied to claims for punitive damages, Softer, 187 So.3d at 1227, there is nothing prohibiting a trial court’s use of the findings as a frame of reference when deciding whether a plaintiff has proven his or her individual punitive damages.

R.J. Reynolds also argues that the trial court erroneously shifted the burden of proof to it based on the trial court’s finding that R.J. Reynolds failed to refute Evers’ evidence. However, we do not agree with that interpretation. Rather, we conclude that that finding was merely one factor supporting the trial court’s conclusion that Evers’ presented clear and convincing evidence to establish that the punitive damages award was not excessive. Indeed, in other contexts, both the Florida Supreme Court and this court have referred to evidence being “clear and convincing” where unrebutted testimony was presented. See, e.g., Conahan v. State, 118 So.3d 718, 733 (Fla. 2013); Dep’t of Children & Family Servs. v. L. McC., 820 So.2d 1064, 1066 (Fla. 2d. DCA 2002) (“The record reflects that the evidence presented ... was generally unrebutted and met the clear and convincing standard.”).

Based on the fact that the trial court had the trial record before it, including testimony that linked R.J. Reynolds’ conduct to the harm suffered by Loyd, and' based on the trial court’s acknowledgement that it reviewed the record and did not limit itself to consideration of the Engle findings, we cannot say that no reasonable judge would have reached the same conclusion as the trial judge in this case. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Nor can we say that the punitive damages award was so excessive so as to violate due process where it is clear to this court that it was based “upon the facts and circumstances of [R.J. Reynolds’] conduct and the harm to [Loyd].” Engle, 945 So.2d at 1265. Consequently, we conclude that the trial court properly determined that the punitive damages award was not excessive under the 1995 version of section 768.73 and that clear and convincing evidence supported a punitive damages award in excess of the statutory cap.

III. The trial court properly awarded interest' accruing from the date of the original judgment.

Finally, R.J. Reynolds argues that the trial court erred in awarding-interest on the judgment from the date of the original final judgment entered on May 15, 2013. R.J. Reynolds argues that interest can only be -awarded from the date of a first judgment where the original judgment is merely modified on appeal, rather than reversed. R.J. Reynolds notes that this court, .in the initial appeal, declined to reach certain issues regarding the punitive damages award because the trial court had not ruled on them. R.J. Reynolds also notes that in the prior appeal, this court did not address R.J. Reynolds’ argument concerning the application of comparative fault to the compensatory damages award, despite its request that this court do so. Based on those assertions, R.J. Reynolds contends that further judicial labor was required below and, therefore, that interest should have been'awarded from the date of the second amended final judgment.

We review de novo a trial court’s decision regarding judgment interest. See Santini v. Cleveland Clinic Fla., 65 So.3d 22, 34 (Fla. 4th DCA 2011).

Generally, interest on a money judgment begins accruing on the date of judgment. See § 55.03(3), Fla. Stat. (2012); Amerace Corp. v., Stallings, 823 So.2d 110, 114 (Fla. 2002); Shoemaker v. Sliger, 187 So.3d 863, 865 (Fla. 5th DCA 2016). Where a party appeals a final judgment and only the amount of the award is modified after the appeal, the accrual date for interest does not change and the interest accrues from the date of the original judgment as modified. See Shoemaker, 187 So.3d at 865-66; St. Cloud Utils. v. Moore, 355 So.2d 446, 447-48 (Fla. 4th DCA 1978).

R.J. Reynolds relies heavily on Guy v. Eight, 431 So.2d 653, 656 (Fla. 5th DCA 1983), arguing that our reversal in the first appeal necessarily required further judicial labor below, thereby requiring that any award of interest had to accrue from the date of the second amended final judgment. But Kight does not control this case.

Admittedly, this court “reversed” the original final judgment in the prior appeal. See Evers, 195 So.3d at 1140-41. However, the effect of our reversal was to reverse the directed verdict on the concealment and conspiracy claims, reinstate the jury verdicts on those claims, and reinstate the punitive damages award (which was tied only to those two claims). Id. In doing so, we declined to address “certain issues” related to the punitive damages award because they had not yet been addressed by the trial court due to the entry of the directed verdict (which nullified the punitive damages award). Id at 1141 n.2.

However, R.J. Reynolds asserts that those “certain issues” were the arguments concerning the applicability of the statutory cap and the reduction for comparative fault. Notably, those issues only relate to the amount of the final judgment. While the trial court had to decide whether the damage awards were subject to reduction based either on comparative fault or due to a statutory cap, the underlying jury verdicts — entered in favor of Evers — were not disturbed. Even if R.J. Reynolds had prevailed on the comparative fault and statutory cap arguments below, the only difference between the original final judgment and the second amended final judgment would have been the amount. The fact that we used the word “reversed” in the prior appeal is not dispositive because our reversal only extended to the amount of the award and otherwise amounted to an affir-mance in all other respects. See Moore, 355 So.2d at 448 n.1 (explaining that interest should run from the date of the original judgment because although the appellate court had previously reversed the trial court judgment based on the improper application of comparative negligence and directed the trial court to enter a new judgment, the reversal only went to the amount of the award and otherwise acted as an affirmance on other issues (relying on Smith v. Goodpasture, 189 So.2d 265, 267 (Fla. 4th DCA 1966))). Accordingly, the trial court properly awarded interest accruing from the date of the original final judgment.

CONCLUSION

The trial court properly determined that the 1995 version of section 768.73 applied to this case. Although we conclude that R.J. Reynolds waived its argument that the 1995 version of the statute still required imposition of a three-to-one cap on the punitive damages award, we alternatively hold that the trial court properly determined that clear and convincing evidence supported the punitive damages award that exceeded the cap and that the award was not excessive. Finally, we hold that the trial court properly awarded interest as accruing from the date of the original final judgment.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

      . Engle v. Liggett Grp., inc., 945 So.2d 1246 (Fla. 2006).

      . Philip Morris USA Inc. v. McKeever, 207 So.3d 907 (Fla. 4th DCA 2017); R.J. Reynolds Tobacco Co. v. Grossman, 211 So.3d 221 (Fla. 4th DCA 2017), appeals filed, SC17-688 (Fla. Apr. 13, 2017) and SC17-706 (Fla. Apr. 18, 2017); R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753 (Fla. 4th DCA 2016), review denied, No. SC16-1937, 2017 WL 1023712 (Fla. Mar. 16, 2017).

      . In Engle, the Florida Supreme Court approved various findings relating to tobacco companies’ liability to Engle-progeny plaintiffs. These findings include; (1) "that smoking cigarettes causes” many specifically listed diseases and conditions; (2) "that nicotine in cigarettes is .addictive”; (3) “that the defendants placed cigarettes on the market that were defective and unreasonably dangerous”; (4) "that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material .fact concerning the health effects or addictive nature of smoking cigarettes or both”; (5) "that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment”; (6) “that all of the defendants sold or supplied cigarettes that were defective”; (7) "that all of the defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants”; and (8) "that all of the defendants were negligent.” 945 So.2d at 1276-77.

      . RJ. Reynolds also argued below that the compensatory damages award should be reduced based on Lloyd's comparative fault, an argument that we will not address as explained previously herein.

      . RJ. Reynolds filed a notice of supplemental authority in this appeal informing this court that its motion for rehearing en banc filed in Allen has been granted. While we acknowledge that the disposition of Allen could change on en banc review, we also note that the motion filed in Allen raised more than one issue. Thus it is also possible that the resolution of the issue of which version of the punitive damages statute is applicable could remain the same. Moreover, as of the date of this opinion, Allen and the holdings contained therein remain good law.

      . We note that R.J. Reynolds also made the argument that under both the pre-1999 or post-1999 versions of section 768.73, Florida Statutes, the three-to-one cap on punitive damages should be measured by the compensatory award as reduced for comparative fault. However, because this court has recent; ly rejected the argument that a compensatory award should be reduced in that manner, this argument too fails. See Boatright, 217 So.3d at 171-72.