author: EISNAUGLE, J.

text:
    Oswald WOUDHUIZEN and Power Design, Inc. and Discover Property and Casualty Insurance Company, Appellants, v. Mary L. SMITH, Appellee.
    Case No. 5D17-575
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018 Rehearing Denied April 23, 2018
    Kimberly J. Fernandes, of Kelley Kronenberg, P.A., Tallahassee, and Sarah E. Wade, Christopher E. Brown, and Daniel S. Liebowitz, of Resnick & Louis, P.C., Orlando, for Appellants.
    Edward S. Rue, of Rue & Ziffra, P.A., Port Orange, for Appellee.
   EISNAUGLE, J.

Oswald Woudhuizen, et al., Defendants below, timely appeal a final judgment, following a jury verdict in Plaintiff Mary L. Smith's favor in the aggregate amount of $125,000. Defendants argue that the trial court erred by failing to apply collateral source setoffs to the judgment. We reverse on this issue, and otherwise affirm without further discussion.

Smith filed suit for injuries after a motor vehicle accident where she was rear-ended by Defendant Woudhuizen. As a result of the accident, Smith claimed neck, shoulder, low back and knee pain, as well as depression resulting from her injuries. In addition to her medical bills, Smith claimed that she was unable to work due to her injuries and had substantial lost wages and loss of future earning capacity. Defendants admitted negligence but contested causation and damages. A jury returned a verdict in favor of Smith as follows:

Past medical expenses $50,000
Future medical expenses $25,000
Past lost earnings $50,000
Future lost earnings $0

After trial, Defendants filed a motion for final judgment asking the trial court to set off certain collateral source payments pursuant to section 768.76, Florida Statutes (2010), and to reduce the jury award of $125,000 to a $25,000 net verdict. The trial court set off PIP payments received by Smith, but declined to set off $93,569.40 in Social Security disability payments. In so doing, the trial court found Defendants could not show that the collateral source payments duplicated the damages awarded by the jury. The trial court opined that it was likely that the jury awarded $50,000 for the first year after the crash, and concluded that any claim that the verdict actually duplicated the Social Security disability payments, which were paid later, was too speculative. This appeal followed.

Defendants contend the trial court erred in failing to apply a collateral source setoff to the judgment for the Social Security disability benefits received by Smith in the five years between the accident date and the trial. Specifically, they argue that section 768.76 does not require a party to present evidence matching the "period covered by the disability benefits" with the "period covered by the jury's award of past lost wages." We agree.

Section 768.76, Florida Statutes (2010), provides:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant's immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.
(2) For purposes of this section:
(a) "Collateral sources" means any payments made to the claimant, or made on the claimant's behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

According to the plain language of the statute, section 768.76 only requires evidence of a plaintiff's receipt of benefits from a collateral source for losses sustained. It does not require a claimant to further prove that each dollar of a collateral source was actually awarded by the jury. To hold otherwise would not only conflict with the plain meaning of the statute, but would also require a party to request an itemized verdict form in every case, potentially as detailed as each individual item of care or benefit received.

Notwithstanding, Smith argues that there should be no setoff because the legislative purpose behind section 768.76 is to avoid a "duplication of benefits." It is the statutory language that controls, however, not a purported legislative purpose. Here, the Legislature chose to accomplish its purpose by requiring a trial court to "reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant." § 768.76(1), Fla. Stat. (2010) (emphasis added). We have no authority to require a line by line itemization in every verdict before giving effect to section 768.76(1) where the Legislature has declined to do so.

AFFIRMED in part; REVERSED in part; and REMANDED.

BERGER and EDWARDS, JJ., concur.

      42 U.S.C.A. § 301 et seq.

      42 U.S.C.A. § 1395 et seq. and 42 U.S.C.A. § 1396 et seq.

      Smith has not asserted any exceptions, such as Title XVIII and Title XIX of the United States Social Security Act, or any other exception as "prohibited by federal law" or otherwise "expressly excluded by law as collateral sources." § 768.76(2)(a) 1., Fla. Stat. (2010).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thelonius PRINCE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4506
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Thelonius Prince, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely filed. See Fla. R. App. P. 9.141(d)(5).

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


text:
    Tarrus H. KELLY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2139
    District Court of Appeal of Florida, First District.
    Opinion filed September 26, 2017 Rehearing Denied November 16, 2017
    Tarrus H. Kelly, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See, e.g., Payne v. Jones, 183 So.3d 1130 (Fla. 1st DCA 2015) ; Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So.2d 1168, 1169-70 (Fla. 2d DCA 1984).

ROBERTS, KELSEY, and JAY, JJ., CONCUR.


author: NORTHCUTT, Judge.

text:
    Marcos CASIANO, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D17-4150
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018 Rehearing Denied April 19, 2018
    Kathleen A. Smith, Public Defender, and Marisa Boysen, Assistant Public Defender, Fort Myers, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Marcos Casiano is charged with drug possession offenses. At his first appearance hearing the court set bail, but it granted the State's request to order Casiano held pending a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966). In so doing, the court disregarded defense counsel's objection that the State had not filed a proper motion for pretrial detention under the rules of criminal procedure. Casiano petitioned us for a writ of habeas corpus, which we granted by a prior order that advised that an opinion would follow. We now explain that detaining an accused prior to trial pursuant to Nebbia is not authorized in Florida.

With increasing frequency, some courts in this district are placing so-called "Nebbia holds" on accuseds after setting bond at first appearance hearings. In Nebbia, the United States Second Circuit Court of Appeals held that after an accused posted a $100,000 bail in cash, the trial court had discretion to inquire into the source of the funds in order to ensure that the accused would appear in future proceedings. 357 F.2d at 304-05. The federal rules permit this on either the government's motion or the court's own motion. See Fed. R. Crim. P. 46(a) ; 18 U.S.C. § 3142(g)(4).

Similarly, in Parrino v. Bradshaw, 972 So.2d 960 (Fla. 4th DCA 2007), the Fourth District denied a petition for writ of habeas corpus, holding that a first appearance court could consider the State's motion for a hearing regarding the source of funds used by the petitioner to post the bail set by the first appearance court. Id. at 961. But we find no provision in Florida law authorizing the first appearance court to detain an accused pending a separate hearing to address the source of bail funds.

Indeed, the Florida Constitution guarantees the right to pretrial release.

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const. Thus, every accused has a constitutional right to pretrial release on reasonable conditions, with two-and only two-exceptions. First, a person charged with a capital offense or an offense punishable by life imprisonment has no right to pretrial release if the proof of the accused's guilt is evident or the presumption that he or she committed the crime is great. Second, any accused may be detained if no conditions of release can reasonably protect the community from physical harm to persons, ensure the accused's presence at trial, or ensure the integrity of the judicial process.

"This sentiment also resonates in Florida Rule of Criminal Procedure 3.131 [ (a) ] ...." State v. Blair, 39 So.3d 1190, 1192 (Fla. 2010). That rule, along with statutory sections 907.041 and 903.046, Florida Statutes (2016), effectuate the constitutional right by establishing procedures and criteria for prescribing reasonable conditions of pretrial release. Under rule 3.131, the conditions are to be devised by the first appearance court. See Fla. R. Crim. P. 3.131(a). One of the factors the court may consider in setting conditions is "the source of funds used to post bail." See § 903.046(2)(f) ; Fla. R. Crim. P. 3.131(b)(3).

Thus, we agree with Judge Warner's concurring opinion in Parrino. She noted that because in that case the petitioner's bail had already been set, the State should have requested a modification of bail by showing good cause pursuant to rule 3.313(d)(2); however, the petitioner had waived that issue by failing to raise it. Further, and more important, Judge Warner observed that "[t]o the extent that a court inquires at the first appearance hearing as to the source of the funds available to post bail, it is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant's appearance, not to deny him pretrial release. Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131." 972 So.2d at 962 (Warner, J., concurring). Indeed, continuing to hold an accused who has posted the bail set at first appearance is tantamount to pretrial detention, which may only be ordered after proceedings on a proper motion for pretrial detention filed by the State. See Fla. R. Crim. P. 3.131(b)(1) ("Unless the state has filed a motion for pretrial detention pursuant to rule 3.132, the court shall conduct a hearing to determine pretrial release.").

Accordingly, we hold that under our state's constitution, Florida courts lack authority to detain accuseds for the purpose of inquiring into the source of funds used to post bail. Moreover, any such inquiry "is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant's appearance, not to deny him pretrial release." Parrino, 972 So.2d at 962 (Warner, J., concurring).

Petition granted.

CASANUEVA and CRENSHAW, JJ., Concur.


author: SLEET, Judge.

text:
    Roy W. BRUCE, Jr., and Alice Bruce, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, successor by merger to LaSalle Bank, National Association Trustee for Washington Mutual Asset-Backed Certificates WMABS Series 2006-HE3 T, Appellee.
    Case No. 2D17-531
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018 Rehearing Denied April 4, 2018
    Roy W. Bruce, Jr., and Alice Bruce, pro se.
    Allison Morat and Teris A. McGovern of Pearson Bitman LLP, Maitland, for Appellee.
   SLEET, Judge.

Roy W. Bruce, Jr., and Alice Bruce challenge the trial court's nonfinal order denying Mr. Bruce's motion to quash service against him individually in the foreclosure action brought by U.S. Bank National Association against the Bruces individually and in their capacities as trustees of the Roy W. Bruce, Jr., and Alice M. Bruce Revocable Living Trust dated December 2011. We affirm the trial court's order as to Mr. Bruce without further comment. We dismiss this appeal as to Mrs. Bruce because the order on appeal denied a motion brought only by Mr. Bruce. Thus the order did not affect her, and she does not have standing to challenge it on appeal. See generally Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla. 2006) ("Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly."); cf. Ghali v. Smith, 575 So.2d 1386, 1386 (Fla. 3d DCA 1991) ("[Appellant] lacks the requisite standing to appeal the denial of a nonparty's motion to quash substitute service of process.").

Affirmed in part; dismissed in part.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: MORRIS, Judge. KHOUZAM, J., Dissenting.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Meghan ANDERSON, Appellee.
    Case No. 2D16-616
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellant.
    Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood, for Appellee.
   MORRIS, Judge.

Citizens Property Insurance Corporation appeals a final judgment awarding attorneys' fees, including a 1.7 contingent fee multiplier, to Meghan Anderson. The fee award was based on the verdict rendered in Anderson's favor in her breach of contract action against Citizens for failure to pay for a sinkhole loss. After prevailing at trial, Anderson sought attorneys' fees and costs pursuant to sections 57.041, 92.231, and 627.428, Florida Statutes (2014). Following an evidentiary hearing that was conducted without a court reporter, the trial court awarded a total of $493,246.50 in attorneys' fees which included the 1.7 contingent fee multiplier. Citizens argues that the trial court's failure to make a finding as to whether the market required a contingent fee multiplier pursuant to Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), is an error apparent on the face of the record and, therefore, that the transcript of the evidentiary hearing is not required. We agree and reverse the trial court's order.

I. BACKGROUND

Because this appeal involves an attorneys' fees award-rather than the underlying civil judgment-a complete recitation of the facts underlying the breach of contract action is unnecessary. Rather, it is sufficient to note that there was a dispute between Anderson and Citizens as to whether cracking damage in her home was caused by a sinkhole. Ultimately, Citizens denied Anderson's sinkhole claim, and Anderson filed suit. The jury rendered a verdict in Anderson's favor and awarded her $84,000. Shortly thereafter, she filed her motion for attorneys' fees.

It is undisputed that Anderson did not testify at the fee hearing. The court did take testimony from counsel for both parties and from the parties' experts, but the hearing was not transcribed.

In the judgment awarding attorneys' fees, the trial court awarded $290,145 in base attorneys' fees which was the total amount of fees for four attorneys who represented Anderson with each being awarded the equivalent of $500-$600 per hour. On the issue of the 1.7 contingent fee multiplier, the trial court found the use of the multiplier was appropriate under the guidelines set forth in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Quanstrom. As a further basis for applying the multiplier, the court explained that "at the outset of the handling of the case, [Anderson's] chances of success were 50/50" and that out of all the sinkholes cases tried by the trial court, "there have only been two cases won by the policyholder." The total attorneys' fees award after application of the 1.7 contingent fee multiplier, but exclusive of costs and interest, came to $493,246.50.

After filing its appeal from the attorneys' fee judgment, Citizens moved to relinquish jurisdiction to the trial court so that Citizens could, pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), seek preparation of a statement of the evidence in lieu of a transcript of the fee hearing. However, the parties could not agree on the substance of such a statement, and the trial court judge indicated she had an insufficient memory of the witnesses' testimony. As a result, this appeal comes to us without a transcript, and the trial court's order on the proposed statement of the evidence lists only the names of the witnesses who testified and the documentary evidence that was presented.

II. ANALYSIS

We review an order applying a multiplier to a fee award for abuse of discretion. USAA Cas. Ins. Co. v. Prime Care Chiropractic Ctrs., P.A., 93 So.3d 345, 347 (Fla. 2d DCA 2012). We must reverse the application of a multiplier if it is not supported by competent, substantial evidence. Id. Reversal is also required if a trial court fails to include specific findings supporting the application of a multiplier. Speer v. Mason, 769 So.2d 1102, 1105 (Fla. 4th DCA 2000) ; Dep't of Agric. & Consumer Servs. v. Schick, 553 So.2d 361, 362 (Fla. 1st DCA 1989) (explaining that judgments are deficient if they fail to include specific findings to support an enhancement factor in attorneys' fees awards).

Citizens contends that there is insufficient evidence in the record regarding whether the market required the application of a contingent fee multiplier, and it argues that the final judgment is erroneous on its face because it fails to include a finding as to that factor. While the lack of a transcript or stipulated statement of the facts might require an affirmance in other cases, that rule is not applicable where a trial court order is fundamentally erroneous on its face for failure to make required findings. See Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000) (reversing and remanding attorneys' fees award despite lack of a transcript where court failed to explain its reasons for using a multiplier); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So.2d 938, 939-40 (Fla. 4th DCA 1997) (reversing and remanding attorneys' fees award despite lack of transcript where order failed to contain findings as to the hourly rate or the number of hours reasonably expended); Giltex Corp. v. Diehl, 583 So.2d 734, 735 (Fla. 1st DCA 1991) (reversing and remanding attorneys' fees award despite lack of a transcript where order failed to contain findings required by Rowe ).

The dissent would have us affirm based on Citizens' failure to provide a transcript or a stipulated statement of the facts, citing Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007), for the proposition that "[t]he most salient impediment to meaningful review of the trial court's decision is not the absence of findings, but the absence of a transcript." However, Esaw did not involve the issue of an award of attorneys' fees, and notably, we acknowledged

that there are circumstances in which a claim of inadequate findings can lead to reversal even in the absence of a transcript or appropriate substitute. In particular, an award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.

Id. at 1265 (emphasis added). This is the type of case referenced in Esaw.

In setting reasonable attorneys' fees, Florida courts use the federal lodestar approach which requires a determination of the number of hours reasonably expended multiplied by a reasonable hourly rate. See Rowe, 472 So.2d at 1150-51. Once the lodestar amount is determined, the trial court may add or subtract from that amount based upon a "contingency risk" factor and the "results obtained." Id. at 1151 ; see also Quanstrom, 555 So.2d at 831.

In determining whether a contingent fee multiplier is necessary in a contract case-such as this one-the trial court should consider

whether the relevant market requires a contingency fee multiplier to obtain competent counsel[, ] whether the attorney was able to mitigate the risk of nonpayment in any way[,] and ... whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Quanstrom, 555 So.2d at 834 ; see also Prime Care Chiropractic Ctrs., P.A., 93 So.3d at 347. "Evidence of these factors must be presented to justify the utilization of a multiplier." Quanstrom, 555 So.2d at 834 ; see also Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 410 (Fla. 1999) (recognizing that courts may consider applying multiplier "if evidence in the record supports the need for one"). "If there is no evidence that the relevant market required a contingency fee multiplier to obtain competent counsel, then a multiplier should not be awarded." Prime Care Chiropractic Ctrs., P.A., 93 So.3d at 347. And "[i]f the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction." Rowe, 472 So.2d at 1151 ; Wolfe, 758 So.2d at 733 ; Giltex Corp., 583 So.2d at 735. Indeed, Rowe holds that trial courts must make specific findings as to "the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors." 472 So.2d at 1151 (emphasis added).

Here, the final judgment awarding attorneys' fees states that the case was "appropriate for the use of a multiplier under the Rowe and Quanstrom guidelines." Beyond that conclusory statement, the only rationale provided by the trial court involved Anderson's chance of prevailing and a reference to the number of other sinkhole cases that the trial court had tried wherein the policyholder won. The dissent notes that the trial court also stated that "this case was by far the best tried sinkhole case [she had] ever seen." But that statement was made in the context of the trial court's determination of a reasonable hourly rate, not in the finding relating to the application of the contingent fee multiplier. Furthermore, it is merely an opinion, not a factual finding relating to whether the relevant market required the application of the contingent fee multiplier. There was simply no specific finding regarding any difficulty Anderson might have experienced in retaining counsel to handle the case, nor was there any other specific finding regarding the relevant market which would support application of the contingent fee multiplier. And it is undisputed that Anderson did not testify so she clearly did not provide testimony on this issue.

We acknowledge that Anderson presented witnesses at the hearing, though we do not know the substance of their testimony due to the lack of a transcript or a more thorough statement of the evidence. We further acknowledge that the First District has held that expert testimony can be sufficient to support the application of a multiplier. See Massie v. Progressive Express Ins. Co., 25 So.3d 584, 585 (Fla. 1st DCA 2009). Anderson asks us to affirm based on the assumption that the expert testimony provided at the hearing could have supported the application of the multiplier, and Anderson cites to a case wherein the appellate court affirmed based on lack of a transcript after refusing to speculate as to whether the trial court made oral findings at a hearing. Cf. Nunes v. Nunes, 112 So.3d 696, 700-01 (Fla. 4th DCA 2013). But as we have already explained, because the trial court awarded attorneys' fees pursuant to Rowe and Quanstrom, it was required to make specific findings on any enhancement factors, including the issue of the contingent fee multiplier. Esaw, 965 So.2d at 1265. And under the unusual circumstances here, we simply cannot affirm due to lack of a transcript or a more thorough statement of the evidence. The trial court itself was unable to remember the testimony presented at the fee hearing. If the trial court itself cannot remember the basis for its award, then we will not assume Anderson presented sufficient evidence or that the trial court made any oral findings regarding whether the relevant market required application of the contingent fee multiplier.

The dissent suggests that we are concluding that there was insufficient evidence presented to the trial court on the issue of the contingent fee multiplier. We make no such conclusion. Rather, we simply refuse to make an assumption that competent, substantial evidence was presented in these unusual circumstances where the trial court's inability to recall any of the testimony has prevented us from otherwise concluding that the trial court considered the issue of whether the relevant market required the application of the contingent fee multiplier and where the order is deficient on its face for failing to contain the required finding on that issue. Cf. Speer, 769 So.2d at 1104-05 (concluding that where trial court approved a statement of the evidence that included some facts specifically recalled by the judge, the judge's inability to have total recall of the entire proceedings did not "render the record inadequate" because the appellant conceded the record was "nonetheless sufficient to justify entitlement to a multiplier" (emphasis added) ).

The dissent also argues that the findings in the order were sufficient because the trial court indicated that it had expressed its reasoning in further detail at the hearing. However, that reference was made in the portion of the trial court's order entitled "Hourly Rate" wherein the trial court explained that after "[c]onsidering [the] factors [set forth in Rowe ], and for the reasons expressed at the hearing, the Court finds that the following hourly rates are reasonable for Plaintiff's counsel in this case." In another portion of the order separately entitled "Contingent Fee Multiplier," the trial court makes no reference to any findings it previously made on this issue. Thus, contrary to the dissent's assertion, we are not speculating about the substance of the trial court's oral findings. Rather, we merely refer to the order itself to determine whether the trial court made the required findings relating to the contingent fee multiplier. Yet even if that statement related to the application of the contingent fee multiplier, we would be constrained to reverse. A trial court's generic reference to "reasons expressed at the hearing" is not the equivalent of a specific finding that the relevant market required the application of a contingent fee multiplier. Indeed, there could be any number of "reasons" on any number of topics that a trial court orally expresses at a hearing. Rather than improperly exceeding the scope of our review, we are simply holding the trial court to its responsibility to include specific findings on an enhancement factor pursuant to Rowe and Quanstrom and we are refusing to speculate on what might have occurred at the fee hearing where the trial court itself is unable to remember what testimony was presented.

The trial court's inability to recall any of the testimony presented in this case leaves us in the same review posture as the court in Wolfe, where no testimony was provided. 758 So.2d at 733. And though Rosenbloom did not involve the application of the multiplier, it supports our conclusion that a reversal is required, even in the absence of a transcript, where an order fails to contain specific findings pursuant to Rowe. While we acknowledge that the order here contains minimal findings relating to the reasonable hourly rates and reasonable hours expended, Rowe also requires specific findings on the "appropriateness of the reduction or enhancement factors." 472 So.2d at 1151. Thus the principle espoused in Rosenbloom is applicable here, particularly where the Rosenbloom court implied that findings relating to the multiplier enhancement are even more critical than findings on the other factors. The dissent asserts that it is important for the contingent fee multiplier to be considered "any time the requirements for a multiplier are met," and we do not disagree with that proposition. However, in this case, under these facts, we cannot determine whether the requirements were met. And it is precisely because of the important nature of the contingent fee multiplier that Florida law requires a specific finding on that issue. The dissent's conclusion that the findings and reasoning provided by the trial court here are sufficient because the trial court determined a reasonable hourly rate and the number of hours reasonably expended stops short of the Rowe requirements as clarified by Quanstrom.

The order under review is fundamentally erroneous on its face because it fails to contain a specific finding regarding whether the relevant market required the application of the contingent fee multiplier. And under the unique facts of this case, we are unable to determine what, if any, evidence was presented on that issue or even whether the trial court considered it. Cf. In re Guardianship of Ansley, 94 So.3d 711, 714 (Fla. 2d DCA 2012) (reversing and remanding fee award which failed to contain meaningful factual findings pursuant to Rowe thereby leaving us "unable to determine the basis for the circuit court's award" as well as unable to "determine whether there is competent, substantial evidence in the record to support the award").

In concluding that a reversal is required, we are not radically shifting the law or extending the holding of Rowe and Quanstrom to require written findings in all instances. We acknowledge that a trial court can make oral findings in support of a fee award. Yet in this case there is simply nothing to indicate that the trial court made oral findings on the issue. There is no transcript of the hearing, there is no reference in the order to even an oral finding on the issue of whether the market required the application of the contingent fee multiplier, and the trial judge conceded that she did not remember what transpired at the hearing. It is the combination of these unusual facts that requires us to reverse in this case. But we do not mean to suggest that a reversal would be required in any case where a trial court fails to include a written finding on a factor in awarding attorneys' fees. This is simply a case where the lack of a transcript does not preclude reversal because the order is insufficient on its face. See Esaw, 965 So.2d at 1265.

Finally, we note that we have not overlooked the recent Florida Supreme Court decision in Joyce v. Federated National Insurance Co., 228 So.3d 1122 (Fla. 2017). We acknowledge that the court clarified that the contingent fee multiplier is not limited to rare and exceptional circumstances and that it should be considered whenever the requirements for its application are met. Id. at 1131-32. In reversing the order here, we are not, as the dissent suggests, applying a stricter standard for application of the multiplier than is required by Rowe and Quanstrom. Rather, we are refusing to presume-under the unusual facts of this case-that the required specific findings were or were not made below. And we note that our reversal does not mean that Anderson will not ultimately prevail in obtaining an award of attorneys' fees that includes a contingent fee multiplier. The reversal simply remands the case back to the trial court to consider the issue anew.

We therefore reverse the attorneys' fees award and remand for further proceedings in conformance with this opinion.

Reversed and remanded.

BLACK, J., Concurs.

KHOUZAM, J., Dissents with opinion.

KHOUZAM, J., Dissenting.

I respectfully disagree with the majority's analysis and result. The fee judgment on its face shows no error, and without a transcript Citizens simply cannot demonstrate that the trial court erred in its findings and conclusions. By holding otherwise, the majority extends the Florida Supreme Court's holdings in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), beyond their actual language to impose a new requirement that all findings supporting an attorneys' fee award must be reflected in the court's written judgment. In doing so, the majority radically shifts well-established jurisprudence regarding an appellant's burden on appeal and this court's scope of review. I would affirm.

It is undisputed that the trial judge conducted a three-hour fee hearing, during which she listened to the examination and cross-examination of six witnesses, including both parties' experts. Documents were received into evidence, and counsel made legal arguments. The fee hearing was before the same trial judge who presided over the jury trial, which lasted six days. The trial judge made factual determinations and resolved the issues concerning the application and amount of a multiplier based on the evidence she received. She was in the best position to observe what was presented at trial and at the fee hearing.

The written order set forth specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of the enhancement factors. The order made clear that these findings were based on the expert testimony presented and that the court had expressed its reasoning in further detail at the hearing. The order clearly stated that the court applied a 1.7 contingent fee multiplier based on the factors set forth in Florida Rule of Professional Conduct 4-1.5(b)(1)(A)-(H), Rowe, and Quanstrom. The order also indicated that plaintiff's chances of success were 50/50 and noted that of the many sinkhole cases tried before the court, only two cases were won by the policyholder. Finally, the judge stated that she had tried many sinkhole cases and that "this case was by far the best tried sinkhole case [she had] ever seen."

Our review of the fee award in this case is limited. The award of attorneys' fees is a matter committed to sound judicial discretion and will not be disturbed on appeal unless a clear abuse of discretion is shown. DiStefano Constr. Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla. 1992). Our review of an order applying a multiplier to a fee award is also one of abuse of discretion. USAA Cas. Ins. Co. v.Prime Care Chiropractic Ctrs., P.A., 93 So.3d 345, 347 (Fla. 2d DCA 2012).

Our review here is hampered because Citizens has the burden to demonstrate error on appeal yet failed to provide this court with a transcript of the evidentiary hearing, which would have included the court's reasoning as was noted in the order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). By not providing a transcript or a proper substitute, Citizens has thwarted this court's ability to meaningfully review the trial court's reasoning; for that reason, the lack of a transcript is generally a fatal flaw in an appellant's case. Id."In the absence of a transcript, the trial court's factual findings are presumed correct, and our review is limited to errors apparent on the face of the judgment." O'Connor v. O'Connor, 184 So.3d 1149, 1149 (Fla. 2d DCA 2015) (citing Mobley v. Mobley, 18 So.3d 724, 725 (Fla. 2d DCA 2009) ).

Even where the court's written order lacks findings, "[t]he most salient impediment to meaningful review of the trial court's decision is not the absence of findings, but the absence of a transcript." Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007). This is because the trial court may have orally pronounced its findings at the hearing. See Nunes v. Nunes, 112 So.3d 696, 700-01 (Fla. 4th DCA 2013). This court should "not speculate to the contrary" or "assume that the trial court committed reversible error during the course of a hearing that we cannot review." Id.

Under this extremely narrow standard, Citizens cannot show any error, much less fundamental error. In addition to those findings reflected on the face of the order, the court made oral findings regarding the fee award and, in the order, specifically noted that she had made such findings and incorporated them by reference. Without the benefit of a transcript reflecting the oral findings, this court cannot meaningfully review the trial court's findings and must defer to the court's judgment.

The majority suggests that the reference to the judge's oral findings made at the hearing related only to the question of whether the attorneys' hourly rates were reasonable. This is pure speculation unsupported by anything in this record. Without the transcript of the hearing, the majority simply assumes that the judge's oral findings or reasons were so limited in order to reach its result. And even if the trial court's order is construed as reflecting findings related only to the question of whether the attorneys' hourly rates were reasonable, this issue is intertwined and overlaps with the question of whether the contingent fee multiplier was appropriate. See Rowe, 472 So.2d at 1150-52. We therefore cannot guess-as the majority essentially does-that the trial court failed to make any oral findings regarding the contingent fee multiplier. To suggest otherwise, through parsing of the trial court's written order, is to erode the bedrock presumption of correctness that clothes the trial court's order. Accordingly, without a transcript, we simply cannot second guess what oral findings the court made or did not make at the hearing. Nor should we fault the trial court for being unable to remember the testimony that was presented at the hearing when the parties are responsible for producing the transcript. Indeed, that is the very reason why an appellant has the burden to provide an adequate record to support its arguments.

The majority's approach also extends the holdings in Rowe and Quanstrom to require written findings to support all aspects of a fee award. Neither these cases nor any of the other cases that the majority has cited delineate such a requirement. Rather, these cases stand for the proposition that findings supporting an award of attorneys' fees must be express and specific, regardless of whether they are oral or written. Indeed, this court has specifically held that such factual findings may be made orally at the hearing or set forth in the written judgment. Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012) ; see also Ortiz v. Ortiz, 227 So.3d 730, 733 (Fla. 3d DCA 2017) (quoting Perez with approval).

Creating this additional requirement radically shifts well-established jurisprudence that the trial court's decision comes to the appellate court with a presumption of correctness, that it is the appellant's burden to demonstrate error, and that this court is unable to meaningfully review the trial court's reasoning without a transcript or a proper substitute. See Applegate, 377 So.2d at 1152. It would also undermine the foundational principle that the appellate court must defer to the factfinder on questions of fact; it is axiomatic that it is not the function of the appellate court to reweigh the evidence or speculate about what may or may not have happened below. See, e.g., Gunsby v. State, 574 So.2d 1085, 1090 (Fla. 1991) ("The resolution of factual conflicts is solely the responsibility and duty of the trial judge, and, as the appellate court, we have no authority to reweigh that evidence.").

I am also troubled that the majority appears to ignore the recent Florida Supreme Court decision in Joyce v. Federated National Insurance Co., 228 So.3d 1122 (Fla. 2017). In Joyce, the supreme court clarified that under Florida law there is no presumption that the lodestar amount represents the reasonable fee and the contingency fee multiplier has never been limited to rare or exceptional circumstances. Id. at 1131-32. Rather, Florida courts should consider the contingency fee multiplier any time the requirements for a multiplier are met. Id. at 1132. Indeed, it is important for the contingency fee multiplier to be considered where appropriate because

"[I]t assists parties with legitimate causes of action or defenses in obtaining competent legal representation even if they are unable to pay an attorney on an hourly basis. In this way, the availability of the multiplier levels the playing field between parties with unequal abilities to secure legal representation."

Id. at 1130 (quoting Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla. 1999) ).

Despite the supreme court's recent decision in Joyce, the majority appears to incorrectly presume that the lodestar amount represents the reasonable fee in this case and assume that the contingency fee multiplier is limited to rare or exceptional circumstances that it contends are not present here. Without the majority's unfounded presumptions, it becomes even clearer that the trial court's decision should be affirmed because it is entirely appropriate for Florida courts to consider the contingency fee multiplier any time the requirements for a multiplier are met.

Accordingly, for all of the aforementioned reasons, I would affirm.

      Although this enhancement is frequently referred to as a contingency fee multiplier, we refer to it in the manner used by the trial court.

      Although Citizens generally asserts that the trial court's order was deficient for failing to mention any of the Quanstrom criteria, Citizens primarily focuses on the first factor pertaining to whether the relevant market requires the application of a contingent fee multiplier. "A primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it." Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla. 1999).

      Whether the party seeking fees testifies regarding the difficulty in obtaining competent counsel is a factor to consider when determining whether to apply the contingency fee multiplier. Cf. Eckhardt v. 424 Hintze Mgmt., LLC, 969 So.2d 1219, 1223 (Fla. 1st DCA 2007) (explaining that where party seeking fees did not testify at hearing, "there was no evidence to suggest that the [party] had difficulty in securing competent counsel").

      In analyzing the trial court's failure to make findings relating to the hourly rate or number of hours reasonably expended, the court in Rosenbloom explained that "[w]ere we writing on a clean slate, we might consider this error harmless, particularly as the award does not involve a multiplier enhancement." 698 So.2d at 940 (emphasis added).

      We note that the trial court also failed to specifically make findings on the other two factors discussed in Quanstrom. However, we do not base our decision on those omissions as they were not the issues in dispute.


text:
    Irving FLORES, DOC #C04283, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1220
    District Court of Appeal of Florida, Second District.
    Opinion filed March 2, 2018 Rehearing Denied April 9, 2018
    Irving Flores, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Irving Flores appeals the denial of his motion for postconviction relief. See Fla. R. Crim. P. 3.850. In the first ground of his motion, Mr. Flores sufficiently alleged that trial counsel was ineffective for failing to call a witness at trial. See Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004). Because the record relied upon by the postconviction court did not conclusively refute Mr. Flores' claim, see Jones v. State, 71 So.3d 193, 195 (Fla. 4th DCA 2011) ; Yarbrough v. State, 871 So.2d 1026, 1031 (Fla. 1st DCA 2004), we reverse the summary denial of the first ground and remand for an evidentiary hearing, see Nolan v. State, 794 So.2d 639, 641 (Fla. 2d DCA 2001). We affirm the order in all other respects.

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

CASANUEVA, SLEET, and LUCAS, JJ., Concur.

      Mr. Flores raised nine grounds in his motion for postconviction relief. The postconviction court denied the second and fourth grounds after an evidentiary hearing, and summarily denied the remaining grounds. On appeal, Mr. Flores only challenges the postconviction court's summary denial of the first and eighth grounds.


text:
    Richard A. WASHINGTON, Petitioner, v. STATE of Florida and Julie Jones, Secretary, Florida Department of Corrections. Respondents.
    No. 1D17-4873
    District Court of Appeal of Florida, First District.
    February 28, 2018 Rehearing Denied April 6, 2018
    Richard A. Washington, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Sapp v. Crosby , 917 So.2d 905 (Fla. 1st DCA 2005) ("Because the circuit court has nothing before it on which to rule, we deny the petition for writ of mandamus.").

Ray, Bilbrey, and Winokur, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Joshua GIVENS, Appellant, v. Willmin Andrew HOLMES, Appellee.
    Case No. 2D17-444
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018 Rehearing Denied April 13, 2018
    Joshua Givens, pro se.
    No appearance for Appellee.
   LaROSE, Chief Judge.

Joshua Givens appeals a final judgment for protection against stalking entered in favor of his neighbor, Willmin Andrew Holmes. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).

We affirm as to the first and second issues raised by Mr. Givens. See Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) ("Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking."); Thoma v. O'Neal, 180 So.3d 1157, 1159 (Fla. 4th DCA 2015) ("A trial court's order granting a permanent injunction is reviewed for competent substantial evidence.") (citing McMath v. Biernacki, 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001) ) ). As to his third issue, we reverse the portion of the final judgment enjoining Mr. Givens from coming within five hundred feet of Mr. Holmes' house.

The trial court conducted a hearing at which the parties presented diametrically opposed descriptions of the events prompting Mr. Holmes' suit. We will not reweigh the trial court's resolution of the conflicting evidence. Cf. I.R. v. State, 385 So.2d 686, 687-88 (Fla. 3d DCA 1980) ("Where the evidence is in conflict, it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue.... The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction." (citations omitted) ).

At the end of the hearing, the trial court announced its ruling: "I'm going to grant it, at this point, for a period of 10 years. All right?" That was all. Although the parties' homes are in the same neighborhood, no inquiry was made and no evidence was made concerning how far apart they live. Instead, the trial court signed a standardized order granting relief, with the final judgment containing a five-hundred-foot buffer zone.

Mr. Givens contends that the portion of the final judgment enjoining him from coming within five hundred feet of Mr. Holmes' house prevents him from accessing and using his property. Mr. Givens tells us that "the parties live approximately 90 feet from each other." He contends that any restriction beyond that distance would render him "unable to access his yard and residence." Additionally, he contends that "it interferes with his ability to use ... public roads to access his home." Therefore, he now asserts, the buffer zone provision is overbroad and violates his fundamental right under article I, section 2, of the Florida Constitution to acquire, possess, and protect property. See Dep't of Law Enf't v. Real Prop., 588 So.2d 957, 964 (Fla. 1991) ("Property rights are among the basic substantive rights expressly protected by the Florida Constitution." (citing Art. I, § 2, Fla. Const.) ). We agree. However, we must address two preliminary issues before we reach the merits of Mr. Givens' third issue.

First, Mr. Givens made no contemporaneous objection to the five-hundred-foot provision. See Barile v. Gayheart, 80 So.3d 1085, 1086-87 (Fla. 2d DCA 2012) ("We decline to reach the first two issues because Mr. Barile has failed to preserve them for review by contemporaneous objection."); Achurra v. Achurra, 80 So.3d 1080, 1082 (Fla. 1st DCA 2012) (holding that the husband's argument that the trial court relied on testimony and evidence from a prior proceeding without proper judicial notice was not preserved for appellate review because the husband did not object at the hearing). As explained later, Mr. Givens had no opportunity to do so before the trial court. Because the trial court abruptly ended the hearing without articulating any findings or announcing the particular terms of the final judgment, Mr. Givens was unaware of the five-hundred-foot buffer zone. Cf. Village Inn Rest. v. Aridi, 543 So.2d 778, 779 (Fla. 1st DCA 1989) (holding that the appellant's failure to object to the award of future medical benefits did not prevent a challenge to the award on appeal as "there was nothing before the [appellant] to which an objection could be made").

Alternatively, the buffer-zone issue is properly before us as a failure of proof. As Mr. Givens points out, "the trial court failed to take testimony regarding the distance between the homes lived in by Mr. Holmes and Mr. Givens." Florida Rule of Civil Procedure 1.530(e) provides:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

The trial court had no evidence before it concerning the distance between the parties' homes. Thus, this part of the final judgment lacks adequate record support.

Second, and more troubling, our record contains inconsistent final judgments. Mr. Givens asserts that he first learned of the five-hundred-foot buffer zone from the courtroom clerk as he left the hearing. He explained to her that the buffer would prevent him from accessing and using his residence. He claims that "the clerk crossed out the number '500' and wrote in the number '200.' Mr. Givens still disagreed ... and the clerk advised Mr. Givens to write the word 'disagree' next to his signature on the final order." Mr. Givens contends that the initials affixed near the hand-written modification are those of the courtroom clerk.

The record supports Mr. Givens' account. Our record contains a standard, form-order final judgment setting the five-hundred-foot buffer zone. However, in another record version of the final judgment, the five-hundred-foot space is crossed out with the number two hundred written above. Adjacent to the hand-written amendment are initials matching those of the courtroom clerk.

We agree with Mr. Givens that this modification "was not set by the trial court." Nothing in the record reflects that the change to the final judgment was made at the behest of the trial court. The trial court's succinct oral ruling simply granted a ten-year injunction. The trial court announced no other injunctive terms.

"In Florida, the clerk is a quasi-judicial officer." Zoba v. City of Coral Springs, 189 So.3d 888, 890 (Fla. 4th DCA 2016). "The office of the clerk of the circuit court derives its powers and authority from ... the Florida Constitution .... Article V, section 16, establishes the office of clerk of the circuit court within the judicial framework." Times Pub. Co. v. Ake, 645 So.2d 1003, 1004-05 (Fla. 2d DCA 1994). The clerk cannot conceive or, as in this case, modify judicial orders of her own volition. To the extent that the courtroom clerk unilaterally modified the buffer-zone provision of the final judgment, she exceeded her authority.

The trial court entered a final judgment with injunctive provisions that were not adapted to the parties' circumstances. This was error. See Brower v. Hubbard, 643 So.2d 28, 30 (Fla. 4th DCA 1994) ("Injunctions must be specifically tailored to each case; they should not infringe upon conduct that does not produce the harm sought to be avoided.").

In granting a final judgment for protection against stalking, the trial court may "[r]estrain[ ] the respondent from committing any act of stalking" and order "such other relief as the court deems necessary for the protection of a victim of stalking." § 784.0485(6)(a)(1), (6)(a)(4), Fla. Stat. (2016). "An injunctive order should never be broader than is necessary to secure the injured party, without injustice to the adversary, relief warranted by the circumstances of the particular case. The order should be adequately particularized, especially where some activities may be permissible and proper." Clark v. Allied Assocs., Inc., 477 So.2d 656, 657 (Fla. 5th DCA 1985) (citing Moore v. City Dry Cleaners & Laundry, Inc., 41 So.2d 865, 871 (Fla. 1949) ).

In Smith v. Wiker, 192 So.3d 603, 604-05 (Fla. 2d DCA 2016), this court reversed a portion of a stalking injunction prohibiting the appellant, the appellee's neighbor, from lingering on his own driveway:

Here, the prohibition that Smith not linger on his driveway is overbroad because it encompasses conduct that could constitute stalking by harassing the neighbor but could also encompass activity that is perfectly legal. For instance, Smith asserts that he is required to maintain his yard and his driveway and control plant growth. Or he could simply choose to sit on his driveway and read a book. Because the challenged language broadly prohibits Smith from engaging in legal activity on his property, we reverse the portion of the injunction prohibiting Smith from lingering on his driveway and remand with directions for the trial court to more narrowly tailor the provision to prevent harassment of the neighbor.

Id. at 604-05.

Although the overbroad provision in Smith concerned a prohibition of particular conduct on a segment of private property, the buffer zone before us seemingly deprives Mr. Givens of the lawful use of all his property, including his right of ingress and egress from the neighborhood.

Because the final judgment appears broader than necessary to protect Mr. Holmes, we reverse and remand with directions for the trial court to more narrowly tailor the buffer-zone provision to prevent harassment of Mr. Holmes.

Affirmed, in part; reversed, in part; and remanded.

KELLY and MORRIS, JJ., Concur.

      This record evidence supports our conclusion concerning preservation, as it reflects that Mr. Givens lodged an objection at his earliest opportunity, albeit the judge had exited the courtroom and was not privy to the objection. Cf. Achurra, 80 So.3d at 1082 ("[T]his issue was not preserved for appellate review, in that Mr. Achurra never brought this matter to the trial court to afford a reasonable opportunity to correct the deficiency.") (emphasis added).


text:
    Robert MOORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3678
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 6, 2018 Rehearing Denied April 23, 2018
    Robert Moore, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

PALMER, BERGER, and EDWARDS, J.J., concur.


author: LUCAS, Judge.

text:
    Michael DASKALOPOULOS, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Case No. 2D17-371
    District Court of Appeal of Florida, Second District.
    Opinion filed March 9, 2018 Rehearing Denied March 29, 2018
    Michael V. Laurato of Austin & Laurato, P.A., Tampa, for Appellant.
    Angela C. Flowers of Kubicki Draper, Ocala, for Appellee.
   LUCAS, Judge.

Michael Daskalopoulos appeals the final judgment entered in favor of his homeowners insurance carrier, Citizens Property Insurance Corporation (Citizens), following a jury trial on Mr. Daskalopoulos'

breach of contract complaint against Citizens. Because Citizens' counsel improperly interjected an irrelevant and unpled issue into the trial, both in his opening statement and during its cross-examination of the plaintiff, we must reverse the court's judgment. Mr. Daskalopoulos is entitled to a new trial.

Mr. Daskalopoulos filed the underlying action seeking damages against Citizens under a property insurance policy. He claimed that his house in Tampa had sustained sinkhole damage that was covered under the terms of his policy. In 2012, Citizens had denied Mr. Daskalopoulos' claim, contending that the damage to this property-which consisted primarily of cracking in the driveway, floor, and walls-was not because of a sinkhole, but the result of some other excluded cause under the policy. In its answer to the complaint, Citizens generally denied Mr. Daskalopoulos' allegations of causation. It later raised six amended affirmative defenses, including that it did not breach its policy as a matter of law; that Mr. Daskalopoulos' mortgage lender, which had initiated a foreclosure action against the property, was an indispensable party; and that any property damage was the result of various other factors. Citizens never asserted a defense sounding in fraud, or misrepresentation, or unclean hands on the part of Mr. Daskalopoulos. Thus, from the pleadings, the issues to be tried between these litigants were quite discrete: was there sinkhole activity that affected this house, and, if so, were the damages Mr. Daskalopoulos claimed in his lawsuit the result of that activity?

During his opening statement, Citizens' counsel began, appropriately enough, by summarizing the issues for the jury's consideration (and in a similarly succinct fashion as we have in the preceding sentence). But then the presentation took an unexpected turn:

The evidence, interestingly, is also going to tell you that around the same time Mr. Daskalopoulos reported this claim to Citizens for the alleged sinkhole activity, alleged sinkhole damage, he stopped paying his mortgage on his house.
....
These things coincide. Stopped paying the mortgage and hasn't paid the mortgage since that time back in 2012. Around the same time, he also owned another property.

Mr. Daskalopoulos promptly objected to this line of argument as irrelevant and not within any of the defenses Citizens had pleaded. The trial court sustained Mr. Daskalopoulos' objection, but when Citizens' counsel resumed his opening remarks, he continued to press the same point, leaving it only when the trial court interrupted him:

Okay. Around the same time, Mr. Daskalopoulos stopped paying the mortgage on his house and hasn't paid the mortgage since then. That coincides with him making this claim to Citizens that there is sinkhole activity-

At the conclusion of Citizens' opening statement, Mr. Daskalopoulos moved for a mistrial, which the trial court denied.

But the matter of Mr. Daskalopoulos' mortgage default and the timing of his insurance claim did not end there. Over objection, the theme emerged again during Mr. Daskalopoulos' cross-examination:

Q. Isn't it true that before you got your attorneys involved and you came out and filed a claim with Citizens, you had already stopped paying your mortgage?
A. I believe it was around the same time.
Q. Okay. You don't recall whether it was before or after?
A. It was like, right around the same time. Exactly, I'm not really positive if it was a week before or a week after.

After Mr. Daskalopoulos was confronted with his prior deposition testimony, he allowed (again, over objection) that he might have stopped paying his mortgage payments prior to filing his insurance claim with Citizens but that he was not exactly sure of the sequence of those events.

When his testimony concluded, the jury posed its only question to Mr. Daskalopoulos, asking whether Mr. Daskalopoulos' policy with Citizens was "an upgrade" from the prior policy he had when the house was purchased in 2006. The court declined to allow the question, but the question prompted Mr. Daskalopoulos' counsel to again move for a mistrial, noting: "Now the juror's asking about whether he got more insurance or whether he upgraded the coverage.... This is turning into a case about why he filed for foreclosure. It has nothing to do with the sinkhole case. Nothing." The trial court again denied his motion for mistrial.

Ultimately, the jury returned a verdict in favor of Citizens, finding that there was no damage of any kind to the house during the applicable policy period. The jury never reached the only question presented on Citizens' affirmative defenses, which was whether the house's damage was a result of sinkhole activity or some excluded peril under the policy. Mr. Daskalopoulos filed a motion for new trial, again arguing that the insertion of Mr. Daskalopoulos' mortgage foreclosure as an issue before the jury deprived him of a fair trial. The trial court denied Mr. Daskalopoulos' motion and entered the final judgment in favor of Citizens, which Mr. Daskalopoulos now appeals.

We generally review a trial court's denial of a motion for mistrial or motion for new trial for abuse of discretion. See Campbell v. Griffith, 971 So.2d 232, 235 (Fla. 2d DCA 2008) ; Manhardt v. Tamton, 832 So.2d 129, 131 (Fla. 2d DCA 2002) ; Philip Morris USA, Inc. v. Ledoux, 230 So.3d 530, 537-38 (Fla. 3d DCA 2017). However, we have observed that "[t]he showing necessary to overturn the denial of a motion for new trial is not as great as that necessary to overturn an order granting such a motion." Manhardt, 832 So.2d at 131. Our review here is also guided by the general principle that the issues determined in a civil trial should be limited to those set forth in the parties' pleadings. See Bank of Am., Nat'l Ass'n v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) ("Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are."); Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination.").

In this case, Mr. Daskalopoulos' nonpayment of his mortgage and his bank's foreclosure complaint had nothing to do with any relevant issue to be adjudicated. This was an insurance coverage dispute that revolved around whether a sinkhole had caused cracks in a house. The verdict form in this case-which comprised two questions-reflected the narrow field of issues the parties had framed for determination, and neither of those questions remotely pertained to Mr. Daskalopoulos'

nonpayment of a debt. So the fact that Mr. Daskalopoulos may have been in arrears on his house's mortgage was no more relevant to this sinkhole dispute than the house's paint color. Cf. Riedel v. J.R. Watts & Sons, 118 Fla. 285, 158 So. 890, 891 (1935) ("The evidence submitted, if it tended to prove any defense, was one of accord and satisfaction. That was not pleaded, and, therefore, such evidence was irrelevant and immaterial and should have been excluded on timely objection being made."); Barrett v. State, 605 So.2d 560, 561 (Fla. 4th DCA 1992) ("[R]elevancy is founded on materiality, the nexus between a fact being proved and a disputed issue , and probativeness, the effect this evidence would have on the existence of that fact." (emphasis added)).

Both at trial and in this appeal, Citizens attempts to bridge the divide between the geological activity underneath Mr. Daskalopoulos' house and the house's foreclosure by arguing that Mr. Daskalopoulos' financial straits reflected a "motive" or "personal interest" on his part to file an insurance claim. As Citizens puts it, "[t]he fact that Plaintiff stopped paying his mortgage ... logically calls his integrity into question within the circumstances of this case." But Mr. Daskalopoulos' financial interest in the outcome of his civil lawsuit against Citizens was a point that needed no proving, and certainly not through the insertion of an unpled, irrelevant, and inadmissible issue. See generally Valdez v. State ex rel. Farrior, 142 Fla. 123, 194 So. 388, 394 (1940) ("While the allegations of the answer alleging improper motives behind the institution ... are voluminous and in strong and impressing language, they are not sufficient to constitute a defense to the suit here .... It is generally established that the courts will not inquire into motives which actuate plaintiff in bringing suit."); Midtown Enters. v. Local Contractors, Inc., 785 So.2d 578, 580-81 (Fla. 3d DCA 2001) (holding that evidence of "pattern of cheating" by contractor in qualifying as a minority-owned business enterprise constituted irrelevant, inadmissible character evidence that was highly prejudicial where "[t]he issues as framed by the pleadings all relate to breach of contract and the claim of lien"); Jacobs v. Westgate, 766 So.2d 1175, 1181 (Fla. 3d DCA 2000) (finding error in action for negligent disposition of personal property to admit evidence that the plaintiff had been a bad roommate who bounced checks); SEB S.A. v. Sunbeam Corp., 148 Fed.Appx. 774, 790 (11th Cir. 2005) ("A party's motive is irrelevant to a breach of contract claim under Florida law."); Kobashigawa v. Silva, 300 P.3d 579, 599-600 (Haw. 2013) (holding that the circuit court erred in ruling evidence of a plaintiff's bias, interest, or motive could be used by the jury in considering the plaintiffs' motives in filing their lawsuit because "it is a long-standing principle of law that a plaintiff's motive in filing a lawsuit is otherwise immaterial to resolving the merits of the dispute"); DeMarco v. Univ. of Health Scis./Chicago Med. Sch., 40 Ill.App.3d 474, 352 N.E.2d 356, 362 (1976) ("A party pursuing his legal rights in a legal manner cannot be challenged with respect to the motives which prompt him into action."). And to the extent an equivalency can be drawn between paying one's debts and one's personal integrity, it was plainly an issue of Mr. Daskalopoulos' character that Citizens tried to frame before the jury, an issue that is ordinarily inadmissible in civil cases. See Pino v. Koelber, 389 So.2d 1191, 1193 (Fla. 2d DCA 1980) ("In most civil cases, the majority of courts follow the general rule of refusing to permit character evidence when character is not an issue in the case." (citing J. Wigmore, 1 Evidence § 64 (3d ed. 1940))); Charles W. Ehrhardt, Florida Evidence § 404.3, at 240 (2015 ed.) ("In civil actions, character evidence is inadmissible to prove that a person acted in conformity with his or her character, i.e., to prove the person's conduct."). If Citizens believed that its insured was pursuing a fraudulent insurance claim-and it all but told this jury it did-then it should have raised that as an affirmative defense before going to trial. See Fla. R. Civ. P. 1.140(h)(1) ("A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2)."); Heartwood 2, LLC v. Dori, 208 So.3d 817, 821 (Fla. 3d DCA 2017) ("It is well-settled law in Florida that affirmative defenses not raised are waived."); Airport Plaza Ltd. v. United Nat'l Bank of Miami, 611 So.2d 1256, 1257 (Fla. 3d DCA 1992) ("[I]t was improper to introduce at trial issues not previously raised in the pleadings.").

In sum, thrusting Mr. Daskalopoulos' foreclosure proceedings into the opening statement of this civil lawsuit about a sinkhole claim was improper. Cf. Music v. Hebb, 744 So.2d 1169, 1172 (Fla. 2d DCA 1999) (observing that the "limited purpose" of opening statements is "to set out the relevant, and only the relevant, facts of the case"); Collins Fruit Co. v. Giglio, 184 So.2d 447, 449 (Fla. 2d DCA 1966) ("Although it is axiomatic that the arguments of counsel are not evidence, it would be naive to suppose that they do not have a profound effect upon the jury."). Expounding upon that unpled issue at length in Mr. Daskalopoulos' cross-examination under the pretense that it was some form or impeachment or evidence of bias was equally improper. Cf. Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008) (holding that "[i]mpeachment on collateral issues is clearly impermissible" and explaining that "when evidence 'neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness,' it constitutes collateral, impermissible evidence" (quoting Strasser v. Yalamanchi, 783 So.2d 1087, 1095 (Fla. 4th DCA 2001) )). Taken together, we conclude that Mr. Daskalopoulos was deprived of a fair trial in this case. Accordingly, we must reverse the final judgment and remand this case for a new trial.

Reversed and remanded.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Citizens also filed a counterclaim for declaratory relief that it later voluntarily dismissed. By the time the case proceeded to trial, Citizens' affirmative defenses pertaining to excluded causes had become the principal issue in dispute.

      Citizens also argues that any error was invited by Mr. Daskalopoulos because his counsel broached the issue of Mr. Daskalopoulos' foreclosure during his direct examination. We are not persuaded by that argument, as our review of the record shows that Mr. Daskalopoulos' decision to raise this line of questioning on direct was prompted entirely by the trial court's prior ruling to allow Citizens to pursue this line of inquiry. See Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla. 2001) (recognizing that, "once the party is faced with the knowledge that the jury will hear the evidence, it is legitimate trial strategy to introduce the evidence in an attempt to mitigate the harm and diffuse the prejudicial impact of the evidence" and holding "that once a court makes an unequivocal ruling admitting evidence over a movant's motion in limine, the movant's subsequent introduction of that evidence does not constitute a waiver of the error for appellate review"); see also Saleeby v. Rocky Elson Const., Inc., 3 So.3d 1078, 1085-86 (Fla. 2009) (applying Sheffield and holding that litigant's decision "to minimize the impact of ... evidence by admitting it himself ... did not waive his objection [to the evidence], and his presentation of the contested evidence did not constitute invited error"). We are similarly unpersuaded by Citizens' reliance upon Concepcion v. State, 188 So.3d 5 (Fla. 3d DCA 2016), Graves v. State, 937 So.2d 1286 (Fla. 4th DCA 2006), and Barows v. State, 805 So.2d 120 (Fla. 4th DCA 2002), which, in different contexts, addressed the admissibility of nonparty witnesses' financial motivation to provide testimony against criminal defendants. None of those cases dealt with a civil plaintiff's purported "motivation" for filing a lawsuit, which, again, is usually irrelevant and inadmissible. And as the Graves court explained, "A defendant in a criminal case has considerable latitude in cross-examination to elicit testimony showing the bias of a witness." 937 So.2d at 1290.


author: Per Curiam.

text:
    Bobby D. BIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0837
    District Court of Appeal of Florida, First District.
    March 22, 2018 Rehearing Denied May 3, 2018
    Bobby D. Biggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Florida Rule of Appellate Procedure 9.141(d)(5).

Wolf, Lewis, and Jay, JJ., concur.


text:
    Juan Ines BARRIERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3317
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 20, 2018 Rehearing and Rehearing En Banc Denied May 4, 2018
    Juan Ines Barriera, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Burdick v. State , 594 So.2d 267, 271 (Fla. 1992) (holding that a defendant convicted of armed burglary, a first-degree felony punishable by a term of years not exceeding life imprisonment is subject to enhancement under the habitual offender statute).

ORFINGER, BERGER and LAMBERT, JJ., concur.


author: PALMER, J.

text:
    Jammie Jerome BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2192
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Jammie Jerome Brown, Jr., Bonifay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Jammie Jerome Brown, Jr. (the defendant) appeals the trial court's order summarily denying his motion filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We reverse and remand for reconsideration of the defendant's first and fifth grounds for relief.

The defendant timely filed a rule 3.850 motion. The motion raised five grounds for relief, arguing, among other things, that trial counsel had rendered ineffective assistance of counsel by failing to call material witnesses, Melvin Beasley and Toby Durham (ground one), and by failing to object to a jury instruction on the lesser-included offense of attempted second-degree murder which did not include an independent recitation of excusable and justifiable homicide (ground five). The trial court entered an order summarily denying all five grounds for relief.

The defendant challenges this order, claiming that the trial court erred in summarily denying ground one and failing to rule on ground five. We agree.

Claims of ineffective assistance of counsel require satisfying the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that trial counsel's performance was deficient, which requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 694, 104 S.Ct. 2052. Second, the defendant must show that counsel's deficient performance prejudiced his defense, which requires showing that counsel's errors were so serious as to create "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id."A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Reiterating the proper framework for addressing Strickland claims raised in post-conviction motions, the Florida Supreme Court explained:

[U]nder rule 3.850, a movant is entitled to an evidentiary hearing unless the motion, files, and record conclusively show that the movant is not entitled to relief. Fla. R. Crim. P. 3.850(d) ; e.g. Provenzano v. Dugga[e]r, 561 So.2d 541, 543 (Fla. 1990) ; Harich v. State, 484 So.2d 1239, 1240 (Fla. 1986) ; O'Callaghan v. State, 461 So.2d 1354, 1355 (Fla. 1984). To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion. Hoffman v. State, 571 So.2d 449, 450 (Fla. 1990).

Anderson v. State, 627 So.2d 1170, 1171 (Fla. 1993).

As to ground one, the defendant alleged in his motion that he informed his trial counsel of Beasley before trial and that Beasley was available to testify during trial. The motion further alleged that Beasley would have testified that he was with the defendant when the crime was committed and that he left with the defendant before the crime took place. The motion alleged that trial counsel never contacted or subpoenaed Beasley.

The trial court summarily denied this claim for relief, concluding that the record established a reasonable explanation for counsel's failure to call Beasley as a witness because the transcript of a Nelson hearing, which was contained in the record, demonstrated that defense counsel acted within the broad range of competent performance. The transcript of that hearing demonstrated that trial counsel stated that she did not know who Beasley was and that she had no notes on him. Counsel also stated that she had directed her investigator to speak with every witness supplied to her. The defendant argues that this evidence was insufficient to support summary denial of this claim for relief. We agree. Trial counsel's ignorance regarding Beasley meant that the trial court could not determine counsel's efficacy regarding him as a witness.

The trial court alternatively relied on the following exchange held at the conclusion of the trial to support summary denial of ground one:

THE COURT: Is there any witness you wanted her to call that she has not called?
THE DEFENDANT: No. No, sir.

We have previously disapproved of relying on such statements, as they may indicate the defendant's belief that it was too late to call further witnesses. See, e.g., Law v. State, 847 So.2d 599, 600 (Fla. 5th DCA 2003). Such would appear to be the case here:

THE DEFENDANT: There was only one thing, but it doesn't matter now.
THE COURT: Tell me now.
THE DEFENDANT: Um, few people that I told you I wanted her to-
THE COURT: You mean you wanted her to depose Toby Durham, Melvin Beasley and Cortez Bouey?
THE DEFENDANT: Yeah.
THE COURT: We've already addressed those issues. Anything else?

Accordingly, as no reasonable trial strategy or tactic is apparent on the face of the attached record, we reverse the summary denial of ground one. On remand, the trial court must either attach those portions of the record conclusively refuting this ground for relief or hold an evidentiary hearing. See Leo v. State, 959 So.2d 1284, 1285 (Fla. 4th DCA 2007).

In closing, the State has properly conceded that the trial court erred in failing to address ground five of the defendant's motion. Accordingly, we remand so the trial court can properly address this ground for relief. See Lahens v. State, 204 So.3d 982, 984 (Fla. 5th DCA 2016). As to all other grounds, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY and EISNAUGLE, JJ., concur.

      Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Robert Thomas POTCHEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D14-4336
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018 Rehearing Denied May 2, 2018
    Robert Thomas Potchen, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Robert Potchen was convicted, after a jury trial, of several offenses including armed burglary of a structure with a firearm (count II) and aggravated assault with a firearm (count V). We affirm as to all issues raised on appeal except one. We conclude that the trial court erred in imposing consecutive mandatory minimum sentences on counts II and V. See, e.g. , Walton v. State , 208 So.3d 60, 64 (Fla. 2016) (reiterating that consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if offenses arose from same criminal episode and firearm was merely possessed but not discharged).

On remand, the trial court shall order the mandatory minimum sentences imposed on counts II and V to run concurrently.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

EVANDER, BERGER and EDWARDS, JJ., concur.


author: SILBERMAN, Judge.

text:
    Harleme L. LARRY, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D13-4610 2D16-2562
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018
    Howard L. Dimmig, II, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Harleme L. Larry appeals his judgment and forty-year sentence for murder in the first degree that was committed during a robbery when he was fourteen years old. Larry raises issues regarding the denial of the motion to suppress his statements, incomplete jury instructions, and the exclusion of evidence the defense sought to admit at trial. Because Larry was denied his right to a fair trial by the exclusion of evidence that another person confessed to the murder, we reverse and remand for a new trial. We also direct the trial court on remand to instruct the jury on robbery, the underlying felony for felony murder. We have determined that no error occurred regarding the remaining issues and do not address them.

This charge arose after four Hispanic men were robbed while they were sitting on the steps outside a home on Oak Street shortly after midnight on July 10, 2010. The men had only a few dollars, and the perpetrator shot one of the men in the chest. That individual died as a result of the shooting. The gun was never recovered. Witnesses testified that the perpetrator was wearing a dark bandanna, possibly black, and carrying a black bag.

About two days later, Larry went to the sheriff's office. He confessed that he shot the man but stated that he was not robbing the men and that he acted in self-defense. But at trial, Larry testified that he was "taking the rap" for his older friend, Derrick Wright. His defense was that Wright committed the robbery and shooting and that Wright had talked Larry into giving a false confession. Wright and his aunt had taken Larry to the sheriff's office so that Larry could make his confession.

After Larry confessed, a black bag was found in his residence, and the bag had gunshot residue in it. At trial, Keith Cheatum testified that he saw a black male walking near Oak Street in the early morning of July 10, 2010. The male had a red bandanna on his face and was carrying a black bag. The male asked Cheatum what he was looking at, and Cheatum responded that he was not looking at anything. Cheatum identified the bag found in Larry's residence as looking like the bag he saw the male carrying. Cheatum was later recalled and testified that he had known Wright since he was a young child and knew his voice. Cheatum was certain that the man he encountered on the street that night was not Wright.

Larry sought to introduce Edner Dely's testimony that Wright had admitted to committing the crime. Larry proffered Dely's testimony, but the trial court excluded it after considering the factors set out in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Larry also proffered Wright's testimony in which he denied killing the victim and stated that he had never seen or spoken to Dely until the day of trial. Larry sought to impeach Wright with his out-of-court statement to Dely. The trial court prohibited the impeachment, stating that the defense could not impeach Wright with a statement that it knew he was not going to admit to making and that the defense could not call Dely to confront Wright with the statement. Based on the ruling, the defense chose not to call Wright as a defense witness.

On appeal, Larry recognizes that Wright's alleged confession to Dely is not admissible as a hearsay exception for a declaration against penal interest under section 90.804(2)(c), Florida Statutes (2013), because Wright was available to testify at trial. Larry instead argues that his due process right to a fair trial was violated.

In Lightbourne v. State, 644 So.2d 54, 57 (Fla. 1994), the court observed that in Chambers the United States Supreme Court determined that due process concerns can overcome hearsay rules. Thus, "a trial judge may be required to admit a third-party confession under constitutional principles, even if it does not qualify as a declaration against penal interest under the state law of evidence." Bearden v. State, 161 So.3d 1257, 1265-66 (Fla. 2015). The Chambers Court considered four factors in determining when an out-of-court statement is admissible:

(1) the confession or statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the confession or statement is corroborated by some other evidence in the case; (3) the confession or statement was self-incriminatory and unquestionably against interest; and (4) if there is any question about the truthfulness of the out-of court confession or statement, the declarant must be available for cross-examination.

Bearden, 161 So.3d at 1265 (citing Chambers, 410 U.S. at 300-01, 93 S.Ct. 1038 ). The main consideration is whether the statement has sufficient indications of reliability. Id. at 1265 n.3. The Florida Supreme Court pointed out that a defendant's statement can serve as corroboration and that Chambers required corroboration by "some other evidence in the case." Id. at 1266 (quoting Chambers, 410 U.S. at 300, 93 S.Ct. 1038 ).

In Bearden, several days after the murder a third party named Ray Allen Brown made a statement to a woman named Angela Tyler who knew Bearden as well as the Brown family. Id. at 1261. In the statement, Brown implicated himself and his cousin in the murder for which Bearden was on trial. Id. Bearden had made a pretrial statement to police implicating Brown in the murder. Id. at 1266. The Florida Supreme Court determined that the defendant's own statement made days after the murder and introduced into evidence by the State was adequate corroboration under Chambers . Id. at 1266-67. The court also determined that the trial court should have allowed the defense to recall Brown and impeach him with his alleged confession to Tyler and that the exclusion of the evidence deprived Bearden of due process. Id. at 1267.

Here, the trial court found that Wright's alleged statement was against his penal interests but that the statement was not spontaneous. In doing so, the court described the conversation as two young men bragging about criminal activities in a bar. A person's explicit admission to committing a murder is certainly against a person's penal interests. But with respect to spontaneity, it appears to have been a spontaneous conversation in a social setting rather than, for instance, one that was the subject of interrogation. We recognize that bragging about criminal activity may lessen the reliability somewhat. For instance, a confession to a police officer was deemed reliable in Curtis v. State, 876 So.2d 13, 21 (Fla. 1st DCA 2004), but the court mentioned that it would have been more concerned if the declarant "had been bragging to his friends."

Larry proffered Dely's testimony. Dely testified that he knew both Wright and Larry. About a week after the murder, Dely was in a bar with Wright. Wright told him that "he had killed the Mexican behind Lock street, that he had his auntie take Harleme [Larry] to the police department and confess to the murder." The conversation came up when Dely and Wright were "hanging out" and "[m]ostly like bragging about things that [they] do." Dely explained that the things were "[c]riminal-wise."

Larry presented evidence to corroborate Dely's proffered testimony. Two days after the murder, Larry went to the sheriff's office and told two detectives that he shot the man in self-defense. Wright's aunt drove Larry to the sheriff's office. Although Wright did not mention to Dely that Wright accompanied his aunt and Larry, the omission of that detail does not render the statement unreliable.

At trial, Larry testified that Wright asked him to "take the rap" for the murder. Wright told Larry that if he said he acted in self-defense he would get only two years because he was young. Wright led Larry to believe that because Wright was eighteen he would get a lot more. Larry further testified that Wright talked him into going to the sheriff's office and told Larry to confess to the murder, so Larry "guess[ed] he had something to do with it."

We note that there was evidence that was contrary to the theory that Wright committed the murder. In addition to Larry's confession at the sheriff's office, a black bag that looked like the one the perpetrator was carrying was found in Larry's residence and had gunshot residue in it. Cheatum, the witness who had known Wright since he was a young child and knew his voice, testified that the man he encountered on the street that night was not Wright.

However, the Chambers test only requires that the defendant show corroboration by "some other evidence in the case." Bearden, 161 So.3d at 1266 (quoting Chambers, 410 U.S. at 300, 93 S.Ct. 1038 ). A defendant's statement can serve as that corroboration. Id. Here, Larry's statement to the detectives and testimony at trial provided that corroboration. We note that the State argued in its brief that Wright's statements to Dely were not corroborated, but the State failed to address Larry's statements as corroboration. And the fact that Wright's aunt drove Larry to the sheriff's office provides some further corroboration of Wright's statement to Dely.

The circumstances show that a spontaneous statement was made against penal interest, that the statement was corroborated with some evidence, and that Wright was available to testify at trial. See id. at 1265. Based on Bearden, we conclude that the statement had sufficient indicia of reliability and that Larry was denied his right to a fair trial by the exclusion of the statement. Thus, we reverse and remand for a new trial to allow evidence of Wright's statement that he committed the murder and got Larry to confess to it.

In addition, Larry also proffered Wright's testimony in which he denied killing the victim and stated that he had never seen or spoken to Dely until that day at trial. A party may not normally call a witness for the primary purpose of impeaching him, but in some instances this may deprive a defendant of due process. See id. at 1267. As in Bearden, the defense should be allowed to call Wright as a witness and impeach him with his statements because they are "central to the defense theory." Id.

In summary, we reverse and remand for a new trial because Larry was denied his right to a fair trial by the exclusion of evidence that Wright confessed to the crime. For purposes of remand, we briefly address the jury instructions. When instructing the jury on felony murder, it is essential that the underlying felony "be defined sufficiently to ensure the accused a fair trial." Spagnolo v. State, 116 So.3d 599, 604 (Fla. 5th DCA 2013) (quoting State v. Jones, 377 So.2d 1163, 1164 (Fla. 1979) ); see also Tubman v. State, 633 So.2d 485, 485 (Fla. 1st DCA 1994) (recognizing error in failure to instruct on the underlying crime of robbery in connection with the offense of felony murder). Thus, on remand, the trial court must instruct the jury on robbery, the underlying felony for felony murder.

Reversed for new trial and remanded with instructions.

VILLANTI and BADALAMENTI, JJ., Concur.

      This court has consolidated the appeal of the judgment and sentence and the appeal of the order denying Larry's motion for new trial that alleged juror misconduct, but Larry does not raise any issues on appeal regarding the denial of his motion for new trial.