author: Taylor, J.

text:
    Joseph VENTO, Appellant, v. BALBOA INSURANCE COMPANY, Appellee.
    No. 4D17-3342
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and David A. Neblett and James M. Mahaffey of Perry & Neblett, P.A., Miami, for appellant.
    Robert T. Vorhoff and Joseph Gelli of Garrison, Yount, Forte & Mulcahy, LLC, Tampa, for appellee.
   Taylor, J.

Joseph Vento appeals a final judgment dismissing with prejudice his amended complaint in one of two consolidated insurance cases because he failed to comply with a previous court order requiring him to file a second amended complaint as to that case. Because we find that the record does not support the extreme sanction of dismissal, we reverse.

This case arises out of two property damage claims that appellant asserted under a lender-placed homeowner's insurance policy issued by Balboa Insurance Company.

In September 2014, appellant filed a breach of contract action against Balboa in Broward Circuit Court under Case Number 14-18329, alleging that Balboa failed to pay a covered loss to his home occurring on September 12, 2011.

A few months earlier, appellant had filed a similar breach of contract action against Balboa in Miami-Dade Circuit Court, alleging that Balboa failed to pay a covered loss to his home occurring on May 1, 2011. That case was transferred to Broward Circuit Court and was assigned Case Number 14-22454.

The two cases were eventually consolidated. The consolidation order required that all papers submitted in Case Number 14-18329 "shall display a caption containing both case numbers and the parties in both cases."

Appellant filed a seven-count amended complaint in each case, adding appellant's mortgage lender, Bank of America, as a defendant. Counts I-IV were against Balboa, while Counts V-VII were against Bank of America. Balboa moved to dismiss multiple counts of the amended complaints.

In October 2016, the trial court entered an order granting Balboa's motion to dismiss Counts I and IV, abating Counts II and III, and giving appellant 20 days to amend.

In December 2016, Balboa filed a motion for entry of a final judgment dismissing appellant's amended complaints with prejudice. Balboa argued that the trial court should dismiss Counts I-IV with prejudice because appellant had failed to amend his operative complaint in either action within 20 days as required by the court's October 2016 order.

In February 2017, appellant filed a second amended complaint, asserting a count for breach of contract and a count for declaratory relief against Balboa and two counts against Bank of America. However, the second amended complaint contained the following errors: (1) it listed only Case Number 14-18329 in the caption; (2) it referenced only the September 12, 2011 date of loss related to Case Number 14-18329; and (3) it referenced only the claim number related to Case Number 14-22454. In other words, the second amended complaint failed to mention Case Number 14-22454 or the May 1, 2011 date of loss associated with that case number.

Balboa moved to dismiss the two counts against it in the second amended complaint, arguing that appellant failed to state a cause of action. In the alternative, Balboa requested the trial court to direct appellant "to provide a more definite statement to accurately reflect the appropriate claim number with the correct alleged date of loss so that [Balboa] can properly respond."

The trial court held a hearing on Balboa's motion for entry of final judgment and motion to dismiss the second amended complaint. At the hearing, Balboa argued that Case Number 14-22454 should be dismissed with prejudice because appellant did not comply with the court order requiring him to file a second amended complaint as to that case. However, Balboa presented no evidence in support of its argument that dismissal was warranted as a sanction for appellant's noncompliance with the court order.

Appellant's counsel then argued: "We did file a second amended complaint. I believe we didn't include the second case number, these cases had been consolidated, so when we filed the second amended complaint we believed that it was filed for both actions, as the actions had been consolidated together." Appellant's counsel added that "dismissal with prejudice for failure to amend is a very extreme standard."

Following the hearing, the trial court entered an order denying Balboa's motion for entry of final judgment and an order denying Balboa's motion to dismiss the second amended complaint. The orders gave Balboa 20 days to file an answer.

Balboa moved for reconsideration of the order denying its motion for entry of final judgment, arguing that the second amended complaint "references only a single claim number with a single date of loss" and "contains only a single count for breach of contract and a single count for declaratory relief against Balboa." Balboa asserted that it could not comply with the court's order because there was no second amended complaint in Case Number 14-22454 for it to answer. Balboa requested entry of a final judgment dismissing Case Number 14-22454 with prejudice due to appellant's failure to file a second amended complaint for that case in compliance with the court's October 2016 order.

Without holding a hearing, the trial court granted Balboa's motion for reconsideration and entered a final judgment dismissing appellant's amended complaint in Case Number 14-22454 with prejudice. The trial court made no findings concerning the factors set forth in Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993).

Appellant filed a motion for rehearing. In relevant part, appellant argued that the extreme sanction of dismissal with prejudice for failure to amend was improper for what amounted to a "technicality concerning the pleadings." He asserted that he was never on notice that dismissal with prejudice was a possibility, because he believed that the second amended complaint "did indeed satisfy the requirement for amendment based on the consolidated nature of the cases." Appellant maintained that there was a far less extreme remedy available-namely, granting him leave to amend to address the scrivener's error in the complaint and to accurately reflect the appropriate claim number with the correct date of loss. However, appellant did not specifically argue that the trial court erred in failing to consider the Kozel factors. After the trial court denied appellant's motion for rehearing, he appealed.

On appeal, appellant argues that the trial court reversibly erred by dismissing Case Number 14-22454 with prejudice where the trial court did not make the required finding of willfulness and failed to consider the Kozel factors. Further, appellant argues that the record does not support the ultimate sanction of dismissal with prejudice. Appellant maintains that there is no indication in the record that the defects in the second amended complaint were due to willful noncompliance with a court order.

The dismissal of a complaint for failure to comply with a court order is reviewed for an abuse of discretion. Bank One, N.A. v. Harrod , 873 So.2d 519, 520 (Fla. 4th DCA 2004).

In Kozel , the Florida Supreme Court explained that "the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience." 629 So.2d at 818. The court articulated the following factors to assist trial courts in determining whether dismissal with prejudice is warranted as a sanction:

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

Id. "Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative." Id. A trial court's decision to dismiss a case "based solely on the attorney's neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote." Id.

"The trial court's failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard." Ham v. Dunmire , 891 So.2d 492, 500 (Fla. 2004).

Here, while appellant's motion for rehearing arguably raised Kozel factual matters, appellant did not specifically mention Kozel or argue that the trial court erred in failing to consider the Kozel factors. Thus, although the trial court clearly erred by failing to make findings as to willfulness and the other Kozel factors, it is unclear whether appellant adequately preserved this error. Compare Shelswell v. Bourdeau , 239 So.3d 707, 709 (Fla. 4th DCA 2018) (holding that a trial court's failure to address the Kozel factors is an error that cannot be addressed on appeal unless it is preserved by raising the issue at the relevant hearing or in a motion for rehearing or reconsideration), with Heritage Circle Condo. Ass'n, Inc. v. State, Fla. Dep't of Bus. & Prof'l Regulation, Div. of Condos., Timeshares & Mobile Homes , 121 So.3d 1141, 1144 & n.1 (Fla. 4th DCA 2013)

(finding issue preserved where appellant had raised " Kozel factual matters" in a motion for rehearing even though the motion did not actually mention Kozel ).

Nonetheless, we find it unnecessary to decide the issue of whether appellant's motion for rehearing was adequate to preserve the error concerning the lack of Kozel findings. Regardless of the lack of Kozel findings, we conclude that on this record the ultimate sanction of dismissal with prejudice constituted an abuse of discretion.

The record facts simply do not warrant the severe sanction of dismissal with prejudice. At the hearing on Balboa's motion for entry of a final judgment, Balboa presented no evidence that the defects in the second amended complaint were due to willful noncompliance or deliberate disregard of a court order. The errors or omissions in the second amended complaint were easily correctible by a simple amendment. Appellant's attorney had not been previously sanctioned. Nor is there record evidence that appellant personally had any involvement in his attorney's negligent drafting of the second amended complaint. Balboa suffered no prejudice apart from pointing out that there was no second amended complaint in Case Number 14-22454 for it to answer. And there was a reasonable justification for appellant's counsel's noncompliance-namely, that he intended for the second amended complaint to apply to both consolidated cases, but neglected to include both of the underlying losses and claim numbers in that complaint. Finally, the delay at issue did not create significant problems of judicial administration.

Based on the foregoing, we reverse the dismissal in Case Number 14-22454 and remand for further proceedings.

Reversed and Remanded.

Conner and Kuntz, JJ., concur.

      This argument was preserved in appellant's motion for rehearing, as appellant specifically argued below that the sanction of dismissal with prejudice was an extreme sanction that was improper under the circumstances.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    TALCOTT RESOLUTION LIFE INSURANCE COMPANY, f/k/a Hartford Life Insurance Company, and Talcott Resolution Comprehensive Employee Benefit Service Company, f/k/a Hartford Comprehensive Employee Benefit Service Company, Appellants, v. NOVATION CAPITAL LLC, Eisbock Funding, LLC, and Justin Brannen, Appellees.
    No. 4D17-3762
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Jeffrey M. Landau of Shutts & Bowen LLP, Miami, and Peter Vodola of Rearson Scanlon, LLP, West Hartford, Connecticut, for appellants.
    Scott J. Topolski of Cole Schotz P.C., Boca Raton, for appellees.
   Warner, J.

This is an appeal from a judgment on the pleadings in a declaratory judgment action to determine which party is entitled to a future payment from a structured settlement agreement. Based upon the pleadings, the trial court determined that the appellee Novation had purchased the right to the future payment from the original payee and had assigned it to appellee Eisbock Funding, LLC, who was entitled to the future structured settlement payment.

We reverse, because the pleadings do not establish that Novation, as transferee of the structure settlement payment, complied with the provisions of the Structured Settlement Protection Act, section 626.99296, Florida Statutes (2012). There remained a question of fact as to whether the transfer had been approved in advance by a trial court. The court erred in granting judgment on the pleadings.

"Structured settlements are settlements of tort claims involving physical injuries ... under which settlement proceeds take the form of periodic payments, including scheduled lump sum payments." Daniel W. Hindert & Craig H. Ulman, Transfers of Structured Settlement Payment Rights , 44 No. 2 JUDGES' J. 19, 19 (2005). During the 1990's, specialized financing companies, known as factoring companies, "began persuading structured settlement recipients ... to trade future payments for present cash," but they often exploited the payees. Id. at 19-20. Thus, many states enacted structured settlement protection acts (SSPAs) that require advanced court approval of the sale and transfer of settlement payment rights. Id. at 20. Most SSPAs require the transferee to make disclosures to the payee regarding the future payments' values, and the court must find that the transfer is in the best interests of the payee and his or her dependents. Id . In 2001, Florida enacted its own SSPA to safeguard payees' rights. § 626.99296, Fla. Stat. (2001).

This case involves a structured settlement payment which was transferred to appellee, Novation. In 2005, Justin Brannen, the payee, entered into a structured settlement agreement and release of all claims with an underinsured motorist carrier regarding his injuries in a car accident. Under the agreement, he was entitled to a lump sum payment of $37,007.72 in 2028. The structured settlement was approved by the circuit court of the Tenth Judicial Circuit.

The insurer assigned its payment obligations under the settlement to appellant, Hartford Comprehensive Employee Benefit Service Company ("Hartford CEBSCO"). Hartford CEBSCO purchased an annuity from Hartford Life Insurance, the second appellant, to fund its obligation to make the 2028 settlement payment.

In 2012, appellee Novation filed a petition in the Broward County Circuit court, seeking approval of a transfer of Brannen's right to the future settlement payment in exchange for a cash payment to Brannen of $6,000. This petition was filed by counsel for Novation, Jose Camacho, Jr. The petition stated that Novation proposed to assign its rights to the future payment to Eisbock upon the court's approval of the transfer. Attached to the petition was the agreement for sale of the structured settlement payment on Novation's letterhead and disclosures required by the Structured Settlement Act. Brannen also submitted an affidavit stating his need for the money to pay bills associated with his new baby. He testified that he had received the required disclosures. Hartford and Brannen were served with the petition.

After filing the petition for approval of the transfer, counsel for Novation, Camacho, sent Hartford an "Agreed Final Order Approving Transfer" with a stamped filing date of April 10, 2012, on Novation's "unopposed Petition for Court Approval of a Transfer of Structured Settlement Payment Rights ...." The document looked like a valid order and had the same case number as that for the above petition in the SSPA proceeding. It was signed by a judge. The order directed Hartford to make the future settlement payment to Novation's assignee, Eisbock. At the time that Hartford received notice of the order, believing it to be valid, it updated its records to reflect that the future settlement payment was due to Eisbock.

Subsequently, in 2016, Hartford became aware that attorney Camacho had been indicted on fourteen counts of forgery related to the signatures of various Broward County Circuit Court judges on approximately 100 to 115 documents purporting to be orders approving transfers of structured settlement payment rights under Florida's SSPA. While the order which is the subject of this case was not listed as one of the forged documents, Hartford reviewed the Broward Clerk's website, and there were no docket entries in the SSPA petition proceeding for the April 2012 order approving the transfer of rights. Instead, the docket showed that the SSPA proceeding was dismissed in early 2013 for failure to prosecute. Thus, because the 2012 order was possibly forged, Hartford was unsure of its contractual obligation to send the future payment to either Brannen or Novation/Eisbock, and it was exposed to double liability. If there was no valid order authorizing the transfer, then Novation had not complied with the unwaivable provisions of the SSPA to effectuate the transfer. See § 626.99296 (5)(a), Fla. Stat. (providing that the provisions of the SSPA "may not be waived").

In 2017, to determine its responsibility for payment, Hartford filed a declaratory judgment action against Novation, Eisbock, and Brannen. It alleged the foregoing facts and attached relevant documents, including the disputed order and docket entries. It also alleged that Brannen claimed a right to the future payment. It served both Brannen and Novation. Brannen did not file an answer, but no default has been entered against him. Novation and Eisbock jointly filed an answer, claiming that Eisbock was entitled to the future payment through the transfer. They denied the allegations that the order appeared to be invalid and that Brannen claimed a right to the payment. For affirmative defenses, appellees alleged that Brannen was making no claim to the future payment, nor had Brannen made any appearance in the complaint. Furthermore, he had received payment for the transfer. Novation also contended that Hartford changed its position in reliance on the transfer by updating its records as to the future payee. Thus, through the doctrines of estoppel, waiver, and reliance, Novation and Eisbock were entitled to a declaration that Eisbock was entitled to the future payment from Hartford.

Appellees then filed a motion for judgment on the pleadings, alleging that based upon the pleadings, both Hartford and appellees desired a declaration as to who was the proper payee of the future settlement payment. Eisbock was the only party who asserted the right to the payment, as Brannen had failed to file any pleading. In response, Hartford filed a motion for summary judgment, arguing that because Novation acknowledged in its answer that the disputed 2012 order approving the transfer of structured settlement payment rights may not be in the court records, the court should enter a declaratory judgment finding that Brannen was entitled to the payment. It contended that the affirmative defenses of estoppel, waiver, and reliance were not applicable because the requirements of the SSPA were non-waivable. As there was no valid court order approving the settlement in advance, a non-waivable requirement under the SSPA, Novation had failed to comply with the statute. Thus, the transfer was ineffectual.

The court granted the motion for judgment on the pleadings. It determined that in its answer, Novation alleged that it had paid Brannen for the transfer, and Brannen was not before the court either claiming that he was not paid or demanding that he no longer was bound by the transfer agreement. It then directed Hartford to irrevocably change the payee of the future payment to Novation's assignee, Eisbock, and ordered that Brannen had no further right to request changes to the payee. From this order, Hartford appeals.

A party may move for a judgment on the pleadings after all pleadings are closed. Fla. R. Civ. P. 1.140(c). This Court reviews a judgment on the pleadings de novo. Miller v. Finizio & Finizio, P.A. , 226 So.3d 979, 982 (Fla. 4th DCA 2017). Such a motion tests the legal sufficiency of the cause of action:

The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts . A motion for judgment on the pleadings is similar to a motion to dismiss and raises only questions of law arising out of the pleadings. Where a defendant moves for judgment on the pleadings, a court must take as true all of the material allegations in the plaintiff's complaint and must disregard all of the denials in the defendant's answer.

Id. (emphasis added) (internal citations and quotation marks omitted); see Tanglewood Mobile Sales, Inc. v. Hachem , 805 So.2d 54, 55 (Fla. 2d DCA 2001) (holding that when ruling on a defendant's motion for judgment on the pleadings, the court must assume as true all of the allegations in the complaint and must accept as false all of the allegations in the answer, and it is improper to grant such a motion if factual questions remain).

"Transfer of settlement payment rights are regulated by statute [ section 626.99296 ] and court approval is required before a transfer may go forward." Rapid Settlements, Ltd. v. Dickerson , 941 So.2d 1275, 1276 (Fla. 4th DCA 2006) (alteration added). Indeed, section 626.99296(3)(a), Florida Statutes (2012), provides that:

A direct or indirect transfer of structured settlement payment rights is not effective and a structured settlement obligor or annuity issuer is not required to make a payment directly or indirectly to a transferee of structured settlement payment rights unless the transfer is authorized in advance in a final order by a court of competent jurisdiction ....

(emphasis added). Assuming the truth of the allegations of Hartford's complaint, the order approving the transfer of the settlement pursuant to the SSPA may have been a forgery. If it were, then it was ineffective to authorize the transfer. Because both parties conceded that the validity of the 2012 order was disputed, there was an issue of fact regarding the validity of the transfer of payment rights that precluded the entry of a judgment on the pleadings. See Lutz v. Protective Life Ins. Co. , 951 So.2d 884, 888-90 (Fla. 4th DCA 2007) (finding the trial court improperly granted defendant insurer's motion for judgment on the pleadings in a declaratory judgment action where the insured stated a valid claim for a declaratory judgment and set forth uncertainty as to his rights under an insurance contract; the insured alleged that his out-of-state health insurance group's policy was subject to the Florida Insurance Code because the insurer failed to comply with statutory requirements for an exemption, and there was an actual dispute with the insurer concerning those rights); Swim Indus. Corp. v. Cavalier Mfg. Co., Inc. , 559 So.2d 301, 302 (Fla. 2d DCA 1990) (noting court must consider as true all of the material allegations by the party opposing the motion, and a court improperly grants a defendant's motion when "material issues of fact remain").

The SSPA was intended to protect the payee's interests. § 626.99296(1), Fla. Stat. (stating the SSPA's purpose "is to protect recipients of structured settlements who are involved in the process of transferring structured settlement payment rights."). The trial court, however, entered judgment, determining that because Brannen had not contested the payment to Novation, Hartford was required to pay Novation's assignee, ignoring the statutory requirements. However, even if Brannen did not contest the payments to Novation, section 626.99296(5), Florida Statutes, prohibits the payee (Brannen) from waiving the provisions of the SSPA. Thus, whether Brannen consented to the transfer or failed to appear in these proceedings, he could not waive the requirement that Novation comply with the provisions of the SSPA, including advanced approval of the transfer in a valid court order.

Novation and Eisbock also contend that all parties reasonably relied on the 2012 order, and thus, Hartford should not be allowed to complain. "[A] party who accepts the benefit of an order is estopped from urging error upon the same order. While estoppel does not validate an otherwise invalid decree, it prevents a party who sought and benefitted from an order from questioning its validity." In re Adoption of D.P.P. , 158 So.3d 633, 639 (Fla. 5th DCA 2014) (internal citations omitted). There was no allegation in any of the pleadings that Hartford benefitted from the order. The fact that it changed its records to reflect Novation as the new payee does not confer any benefit on Hartford.

The validity of the 2012 order was a material issue of fact which could not be determined on the motion for judgment on the pleadings. If it were not a valid order, the transfer would not have been authorized under the SSPA, which provisions could not be waived. The court erred in determining that Eisbock was entitled to payments without first determining the validity of the 2012 order. We thus reverse and remand for further proceedings on the declaratory judgment action.

DAMOORGIAN and KUNTZ , JJ., concur.

      Following appeal, both appellants changed their names. Hartford CEBSCO is now Talcott Resolution Comprehensive Employee Benefit Service Company, and Hartford Life Insurance Company is now Talcott Resolution Life Insurance Company. Throughout this opinion, we will refer to the parties collectively as "Hartford."

      Although not raised by either party or addressed by the trial court, we note that a motion for judgment on the pleadings may have been unauthorized in this case, because the pleadings were not closed. Brannen had not answered the complaint seeking a declaratory judgment, nor had a default been entered against him. As Brannen could plead until a default was entered, the pleadings were not closed. Fla. R. Civ. P. 1.500(c) ("A party may plead or otherwise defend at any time before default is entered.") Because this was not raised in the lower tribunal, we do not predicate our decision on this ground.


author: Hilal, Jennifer, Associate Judge. Forst, J., dissenting.

text:
    Desmond Eugene OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3504
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Hilal, Jennifer, Associate Judge.

The defendant was found guilty after a jury trial of fleeing or attempting to elude a law enforcement officer with lights and sirens activated while driving recklessly or at a high speed pursuant to section 316.1935(3)(a), Florida Statutes. The defendant appeals his judgment and sentence on the basis that the court erred in: (1) denying his motion for judgment of acquittal; (2) overruling his objection regarding the prosecutor's misstatement of law in closing argument; and (3) overruling his objections to the troopers' testimony characterizing the defendant's driving maneuvers as "fleeing." We affirm as to issue one and reverse and remand on issue two. We decline comment on issue three.

Background

At trial, two Florida Highway Patrol troopers testified that they were conducting a traffic detail on the Florida Turnpike. They were both in uniform and stood approximately ten to fifteen feet behind their marked vehicles.

Trooper one noticed a black Chevy sedan, later known to be driven by the defendant, make a very erratic and abrupt lane change from the center to the outside lane. Trooper two indicated that the Chevy was trying to pass slower moving traffic, but it did so in an unsafe manner without a turn signal. They both estimated the Chevy's speed to be approximately 90 miles per hour and clocked him driving 89 miles per hour using their laser guns. The posted speed limit was 65 miles per hour.

As the Chevy approached where the troopers were standing, both troopers stated they made eye contact with the driver. Trooper one got into his vehicle, activated his lights and siren, and attempted to catch up to the Chevy to issue a speeding ticket. Trooper one accelerated to 120 miles per hour in an effort to reach the speeding vehicle to no avail. He observed the Chevy go from the right-hand lane to the center lane, and from the center lane back to the right-hand lane, and then to the exit ramp.

Over defense objection, Trooper one testified that this driving pattern was consistent with "[f]leeing" and "[t]rying to get away from [him]." He further testified over the defendant's objection, "he attempted to flee from me" when the defendant sideswiped two vehicles and hit a concrete barrier at the exit ramp.

Trooper two also observed the driver's maneuvers and "evasive action[s]" and testified over defense objection that unlike this motorist, drivers "usually step on the brakes to slow down." The prosecutor proceeded to ask Trooper two if the defendant, in his opinion, was fleeing and eluding, to which she replied "yes." However the court sustained this objection.

After the crash, the defendant got out of his vehicle, looked back at Trooper one, who was now on foot, and proceeded to jump over the guardrail of the exit ramp. Trooper one was able to detain the defendant about a quarter of a mile away from the crash.

During closing argument, the prosecutor stated:

Most everyone looked back at me with these kind of dumbfounded faces saying what do you mean how did we know? The lights go on, the sirens go on, they're right behind you. It's very obvious when a law enforcement officer is trying to pull you over. Everybody knows.
You have a feeling in your stomach, you know when someone has seen you doing something wrong you know right away you've been caught. There's no question about it.
How did this come about? They said they were doing speed detail. Let's be frank about what it is, it's a speed trap and you've all been there. They're sitting on the side of the highway, they're just looking all day for people that are speeding. And it sucks. Everyone's got caught in that.
The problem is that they see you from far, far away. They know you're coming from far, far away and that you're speeding. That's why they talked about pointing the laser gun, they get the readout. It magnifies the image and they know right away you've been speeding, their attention is caught on you.
So what does a reasonable person do in that situation? Everybody sees the officer on the side of the road. Crap, I'm speeding. Slams on the brakes right away. Everybody slows down because [y]ou know the law enforcement officer has seen [y]ou. You don't continue to speed, continue to erratically make lane changes, trying to get away from the officer. That's not what a reasonable person does and that's what the standard is, what would a reasonable person in that circumstance do?

Defense counsel objected that this was a "misstatement of the law." The objection was overruled. The prosecutor continued:

Of course he's going to try to exit off. This isn't someone who's past their exit, oh, my gosh, I'm quickly go past my exit, what am I going to do? I'm going to first go over to the center lane and then I'm going to go all the way back over to the exit ramp. That's not what you do. That's not what the reasonable person does.

The prosecutor then addressed the four elements of the crime and told the jury that the only element at issue was whether the defendant knew he had been directed to stop.

Analysis

We review trial court rulings regarding the propriety of comments made during closing argument for an abuse of discretion. Cardona v. State , 185 So.3d 514, 520 (Fla. 2016).

Where the comments were improper and the defense objected, but the trial court erroneously overruled defense counsel's objection, we apply the harmless error standard of review. This standard involves placing the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Id.

The defendant argues the State misstated the law in closing argument. Specifically, the prosecutor told the jury that because the defendant did not drive in a manner a reasonable person would drive when seeing troopers conducting a speed detail, he was driving recklessly by fleeing them. Further, the defendant contends that relating him to a reasonable person who sees a speed detail or who is trying to exit the highway eliminates the State's burden to prove that he knew he was being directed to stop, and this was a crucial element that the State needed to prove.

The State responds that the "reasonable person" reference did not refer to the standard used to determine whether the defendant drove recklessly. Rather, the reference was "a tool for the jury to infer" that the defendant knew the trooper was attempting to stop him. Moreover, the State argues that the prosecutor explained in closing how the evidence proved each element of the crime, which corrected any potential error.

"It is error for a prosecutor to misstate the law during closing arguments." Evans v. State , 177 So.3d 1219, 1235 (Fla. 2015) (finding error when the prosecutor misstated the law in closing argument); see also Charriez v. State , 96 So.3d 1127, 1127 (Fla. 5th DCA 2012) (misstating the standard of reasonable doubt with no objection was one of three improper comments which cumulatively amounted to fundamental error).

The prosecutor here misstated the law. The reasonable person standard is the incorrect standard in determining reckless driving, knowledge and fleeing. Although the State may utilize different tools to infer knowledge, the prosecutor expressly told the jury that the applicable standard was a reasonable person standard, which is a misstatement of law. The trial court erred in overruling defense counsel's objection. See Warmington v. State , 149 So.3d 648, 655 (Fla. 2014) (finding error when counsel misstated the law and there was a timely and proper objection that was overruled). We must next determine if the error was harmless. Id.

The improper statement here was not harmless because the State cannot show beyond a reasonable doubt that the prosecutor's misstatement of law did not affect the verdict. See State v. DiGuilio , 491 So.2d 1129, 1138 (1986). As the prosecution recognized, "the only thing at issue is [element] number two," and the misstatement of law went directly to the only element at issue-whether defendant knew that he was being directed to stop. See Young v. State , 137 So.3d 532, 535 (Fla. 4th DCA 2014) (unable to find harmless error when a misstatement of law went directly towards the "hotly contested" issue "critical to the state's case"). Thus, it cannot be said that the State's comment had no impact on the jury.

We reverse and remand the case to the trial court for a new trial.

May, J. concurs.

Forst, J. dissents with opinion.

Forst, J., dissenting.

Because I do not believe that the prosecutor's comment was improper when viewed in context, I respectfully dissent as to the issue addressed by the majority.

The subject comment was made in closing argument where attorneys are afforded wide latitude in arguing to the jury. See, e.g. , Thomas v. State , 748 So.2d 970, 984 (Fla. 1999). Furthermore, "[w]hen evaluating a prosecutor's comment, the comment 'should be examined in the context in which it was made.' " Jackson v. State , 89 So.3d 1011, 1018 (Fla. 4th DCA 2012) (quoting Lubin v. State , 963 So.2d 822, 824 (Fla. 4th DCA 2007) ).

The prosecution's reference to a "reasonable person" standard was not a misstatement of the law, as the State was not articulating a legal standard. Rather, the "reasonable person" reference was a tool to assist the jury in making a factual inference regarding the knowledge element of the crime charged.

Moreover, as noted by the majority, after making the "reasonable person" comment, the prosecutor addressed the four elements of the crime and told the jury that the only element at issue was whether the defendant knew he had been directed to stop by law enforcement officers. The burden was on the State to present evidence and argument that would permit the jury to infer that the defendant had this knowledge. It was in that context that the prosecutor earlier referenced how a "reasonable person" would know that law enforcement was trying to pull him over. The prosecutor made no further reference to the "reasonable person."

Viewed in context, I find the comment complained of to be within the bounds of a proper closing argument. Accordingly, I would affirm the trial court's final judgment.

      To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt: 1) the defendant was operating a vehicle upon a street or highway in Florida; 2) the defendant knowing he had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer; 3) the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with the lights and sirens activated; and 4) during the course of the fleeing or attempting to elude, the defendant drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property. Fla. Std. Jury Instr. (Crim.) 28.8.


author: Damoorgian, J.

text:
    Valentin RODRIGUEZ, P.A., Appellant, v. Richard ALTOMARE, Appellee.
    No. 4D18-0785
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
    Peter Ticktin and Kendrick Almaguer of The Ticktin Law Group, Deerfield Beach, for appellee.
   Damoorgian, J.

Appellant, Valentin Rodriguez, P.A. ("Attorney"), appeals an order entering a directed verdict in favor of Richard Altomare ("Client"). The issue on appeal is whether Attorney was required to present expert testimony to establish the reasonableness of the fees in his breach of contract action against Client for unpaid legal fees. We reverse.

Client entered into a retainer agreement with Attorney for representation in a mail and securities fraud case in federal court. Under the agreement, Client was required to pay: $50,000 as an initial, non-refundable retainer; an additional $50,000 if the case went to trial, for a trial lasting no more than four days; an additional $3,000 per day if the trial lasted longer than four days; and an additional $5,000 for sentencing.

Client's federal case proceeded to a five day trial. At the conclusion of the case, Attorney billed Client a total of $111,334 in fees and expenses for his services. Client paid $22,500, leaving a balance of $83,834 after certain other adjustments were made. Thereafter, Client executed a promissory note in favor of Attorney for the unpaid balance. Receiving no further payments from Client, Attorney sued Client for breach of the retainer agreement and sought compensatory damages in the amount of $83,834. Client responded to the complaint, but did not challenge the reasonableness of the flat fees charged by Attorney. The matter ultimately proceeded to a jury trial.

At trial, Client stipulated that he entered into the retainer agreement and did not pay Attorney the entire amount due. Accordingly, the only issue at trial concerned the amount of damages. To establish the amount of damages, Attorney introduced into evidence the retainer agreement, the invoice sent to Client listing the flat fees billed, and the promissory note. Aside from a best evidence objection regarding the promissory note, Client did not object to this evidence. Attorney also testified about his legal training and experience, the work he performed on Client's behalf, and the balance due by Client.

After Attorney rested, Client moved for a directed verdict on the grounds that Attorney failed to present independent expert testimony to establish the reasonableness of the attorney's fees. Attorney countered that no such expert testimony was required in a breach of contract action involving a flat flee. Moreover, Attorney argued that there was more than enough record testimony to justify the flat fees charged in the federal case. The court granted the motion for directed verdict on the grounds that Attorney was required to present independent expert testimony to establish the reasonableness of the fees. This timely appeal follows.

It is well established "that where a party seeks to have the opposing party in a lawsuit pay for attorney's fees incurred in that same action, the general rule in Florida is that independent expert testimony is required." Sea World of Fla., Inc. v. Ace Am. Ins. Cos. , 28 So.3d 158, 160 (Fla. 5th DCA 2010). Similarly, "case law throughout this state has adhered to the requirement of an independent expert witness to establish the reasonableness of fees, regardless of whether a first or third party is responsible for payment." Robin Roshkind, P.A. v. Machiela , 45 So.3d 480, 481 (Fla. 4th DCA 2010). Such a requirement exists "because attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement." Id. at 481-82.

If, however, a party is seeking to recover previously incurred attorney's fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees. Sea World , 28 So.3d at 160-61 ; see also Schwartz v. Bloch , 88 So.3d 1068, 1072 (Fla. 4th DCA 2012) (" Roshkind does not require independent expert testimony to establish the reasonableness of professional fees, including attorney's fees, when those fees are an element of compensatory damages.").

In the present case, Attorney sought the previously incurred attorney's fees as an element of compensatory damages in his breach of contract action against Client. Accordingly, Attorney was not required to present an independent expert witness to establish the reasonableness of the fees. Schwartz , 88 So.3d at 1072 ; Sea World , 28 So.3d at 160-61.

Moreover, because Attorney sought to recover flat fees and Client not only acknowledged the obligation when he executed the promissory note but also failed to raise any substantive objections to the evidence at trial, Attorney was not required to establish the overall reasonableness of the fees in his breach of contract action. See Gossett & Gossett, P.A. v. Mervolion , 941 So.2d 1207, 1209 (Fla. 4th DCA 2006) (holding that the court erred in reducing the amount of attorney's fees contractually billed, which the client did not dispute or otherwise question, to an amount the court found reasonable, explaining that "[a] charging lien is contractual in nature and is to be based upon the amount agreed with the client, not an amount to be determined by the trial court"); Universal Beverages Holdings, Inc. v. Merkin , 902 So.2d 288, 290 (Fla. 3d DCA 2005) (holding that the attorney was not legally required to provide a detailed accounting of the number of hours expended and services rendered in his breach of contract action because "[t]he matter of a fee agreement between a lawyer and his client is a question of contract," and the attorney therefore was only required "to show the existence of an oral contract and its terms"); see also Matter of Innkeepers of New Castle, Inc. , 671 F.2d 221, 230 (7th Cir. 1982) (holding that because the fee contract expressly provided that the attorney would recover fifty percent of any net recovery, it was error for the court "to use a 'reasonable fee' standard in lieu of the valid fee contract as the basis for determining the extent of [the attorney's] lien").

Accordingly, the trial court erred in entering a directed verdict in favor of Client. In light of the stipulations at trial, we reverse and remand for a new trial on the issue of damages only.

Reversed and remanded for new trial.

Warner and Kuntz, JJ., concur.


author: Forst, J.

text:
    E.T., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees
    No. 4D18-2165
    District Court of Appeal of Florida, Fourth District.
    [January 2, 2019]
    Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Andrew Feigenbaum of Children's Legal Services, West Palm Beach, for appellee Department of Children and Families.
    Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee, Appellate Counsel, Tallahassee, for appellee Guardian ad Litem Program.
   Forst, J.

E.T. ("the mother") appeals a final judgment terminating her parental rights to her child. We affirm as to all issues raised by the mother, writing to discuss two of the issues raised.

Background

The child was sheltered three times, beginning in May 2015, when she was six months old. The primary reason for the shelter orders was the parents' drug abuse. After the first and second shelter orders, the mother was given a reunification case plan and ultimately achieved reunification. However, following the third shelter order in February 2017, the case plan goal was changed from reunification to adoption.

For the most part, during the shelter periods, the child was placed with the paternal great-grandmother. The great-grandmother, with whom the child has a strong bond, wishes to adopt the child.

In March 2017, the Department of Children and Families ("the Department") petitioned to terminate parental rights ("TPR") on multiple grounds. The mother contested the petition. The father surrendered his rights, and testified for the Department at trial.

The trial lasted six days, and the evidence established the mother's long history of substance abuse. The trial court found that she began using opiates in 2009 when she was eighteen years old. The mother moved to Florida in 2013 to attend a drug rehabilitation program, and met the father while living at a halfway house. Their relationship resulted in the birth of the child in 2014. The trial court's order referenced the father's testimony that, during his relationship with the mother, he "observed [her] abuse heroin, cocaine, crack, Xanax, methamphetamine, benzodiazepine and ecstasy, taken orally and by injection."

The Department received a report in early 2015 that both parents were abusing their then-four-month-old child. It commenced an investigation. Over the course of the next three years, the mother was in and out of drug treatment programs. She completed some of the programs, but her periods of sobriety always ended with relapse. One relapse involved a four-day "meth binge." The mother has overdosed a number of times and been involved in several instances of domestic violence.

Shortly after the third shelter order, the parents entered an addiction treatment center in Palm Beach County. They left the facility early and against medical advice and traveled to the Betty Ford Center in California. On the way to California, they used drugs together. They completed their treatment at Betty Ford in May 2017 and returned to Florida. By that time, the Department had filed its TPR petition and adoption case plan. In June 2017, a little over a month after her discharge from Betty Ford, the mother twice overdosed on drugs, each time requiring hospitalization. She continued to abuse drugs into 2018, and was convicted on the charge of domestic assault against the father based on an incident in February 2018.

On July 6, 2018, the trial court entered its final judgment terminating both parents' rights. The court concluded that termination was warranted on five statutory grounds. The court also found that termination was in the child's manifest best interests and the least restrictive means of protecting the child from serious harm. The mother's appeal followed.

Analysis

A. Whether the trial court's active participation during the termination trial violated the mother's due process rights.

The mother's first argument on appeal is that the trial court violated her due process rights by actively participating in the proceeding to the point of exceeding the role of neutral arbiter. We have de novo review of this issue. A.M. v. Dep't of Children & Families , 223 So.3d 312, 315 (Fla. 4th DCA 2017).

A trial judge shall exercise reasonable control over the mode and order of the interrogation of a witness so as to: (1) facilitate the discovery of the truth, and (2) avoid needless consumption of time. § 90.612(1)(a), (b), Fla. Stat. (2018). "When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party." § 90.615(2), Fla. Stat. "Such questioning may be appropriate, in the court's discretion, to seek clarification of an issue and in an effort to ascertain the truth." R.W. v. Dep't of Children & Families , 189 So.3d 978, 980 (Fla. 3d DCA 2016). "However, a trial judge must ensure that he or she does not become an active participant or an advocate in the proceedings and should not by words or actions make it 'appear that his [or her] neutrality is departing from the center.' " Id. (quoting Riddle v. State , 755 So.2d 771, 773 (Fla. 4th DCA 2000) ); see also Watson v. State , 190 So.2d 161, 165 (Fla. 1966) ("Error is committed only when it appears that the judge departs from neutrality or expresses bias or prejudice in his [or her] comments").

Here, while the court actively questioned witnesses during the six-day trial, the questions reflect the court's intent to clarify witness testimony, and to ascertain the truth. For example, during the father's direct testimony, the following exchange took place:

Q ... During the time that [the mother] was in Parkwood Behavioral Health and the two [of] you were living together, do you have personal-any personal knowledge of [the mother] drug screening?
THE COURT: Can you say when this was?
[DEPARTMENT'S COUNSEL]: Excuse me? Oh, the dates? ... From October 6th, 2017 through November, 2017, do you have knowledge of [the mother] drug screening for Parkwood
Behavioral Health?
A For Parkwood Behavioral Health she was, as far as I know just requested to take drug tests whenever the Department asked through there. It's not something they normally do, they don't normally give drug tests as part of the -
....
Q Do you have personal knowledge of her drug screening?
A Yes.
THE COURT: You do. Okay, I thought you were saying they didn't have drug screens.
THE WITNESS: Well, she had requested it on her own, so to comply with the Department.
THE COURT: Were you there or this is what she told you?
THE WITNESS: I was sitting there during a few phone calls.
THE COURT: Okay.

At this time, the mother's counsel objected generally "to any further questioning from [the court] ... anything that's eliciting testimony that-from questions that [the Department's counsel] is not asking." The judge responded that she "was actually trying to figure out if [the father] was changing his testimony," because the court "thought the answers were in conflict."

Later, during the direct testimony of the Department's dependency case manager, the following colloquy occurred:

Q This case, was [the mother] obligated to continue with random drug screens after reunification?
A Yes, as part of her case plan.
Q And continue in whatever requested treatment was as a result of the Mental Health Evaluation?
[MOTHER'S COUNSEL]: Objection; leading.
[DEPARTMENT'S COUNSEL]: Was [the mother] obligated to continue to comply with her mental health?
[MOTHER'S COUNSEL]: Objection; leading.
THE COURT: What else was she required to continue to comply with?
THE WITNESS: The services that were in place at the time of reunification.
THE COURT: Yes, ma'am.
THE WITNESS: Substance abuse, random drug screens, mental health.
THE COURT: So wherever she was in that process at the time of reunification she just had to follow through with it?
THE WITNESS: Yes.

At this time, the mother's counsel raised the "same objection to [the court] eliciting testimony." The judge responded:

You know, here's the thing, this, as you know, is very important proceeding, and I'm just trying to understand the testimony and you do have the right to object, but this is not about gotcha tactics or, you know, technical errors or anything like that, I don't see these kinds of cases as being about that. I agree there's a line beyond which the Court should not go , for example, if I'm sitting here and thinking of a question that should have been asked and wasn't asked, I probably wouldn't ask the question, sometimes I do, but since I'm the finder of fact and I would add that in trials, every juror gets a notebook and a piece of paper, and they can ask the witness whatever questions they want, so I'm the finder of fact and I have to be sure that I understand the evidence and I agree that the attorneys should be held to task, but when the witness's answer is close enough and it's gonna save time for me to just intervene and ask the question, that's what I do because we're already here on the second day of a one day trial and there's just no other way for me to try to manage this process , so I feel that's where I'm coming from. I've told you before, I encourage you to make these kinds of objections , and I-because, you know, part of your job is to watch what I do, and, you know, I wanna be told, but I so far don't believe I've crossed the line . You might be able to convince me otherwise, but so far you haven't, other than just saying, Your Honor, please don't ask the questions.

No further objections were made to the court's questioning of witnesses. Accordingly, the mother failed to preserve any objection she might have unless she can establish fundamental error-which she cannot. See R.W. , 189 So.3d at 979-80 ("At the final hearing, ... R.W. failed to object to virtually all of the questions [she] now relies upon .... [W]e find no fundamental error or deprivation of due process"); see also Mathew v. State , 837 So.2d 1167, 1170 (Fla. 4th DCA 2003) ("[N]ot every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error.").

We note that, while the trial court suggested to the Department's counsel that she reword a question asked of a witness-which the mother mischaracterizes as "coaching" -the court provided similar support to the mother and Guardian ad Litem Program. The court also asked questions that were favorable to the mother and to which the Department objected.

In short, this was not a criminal trial, but a TPR proceeding in which the best interest of the child was paramount. The transcript reflects that the court appropriately questioned witnesses where necessary during the six-day trial, to manage time, understand the evidence and ascertain the truth. We therefore affirm with respect to this issue. We also find the mother's other due process argument (regarding the father testifying by telephone) to be without merit, and we affirm on that issue without comment.

B. The legal requirements for termination of the mother's parental rights were satisfied.

The mother argues that termination under section 39.806(1)(e)1., (e)3., and (j), Florida Statutes was not proven by competent, substantial evidence. We have held:

"While a trial court's decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whether competent substantial evidence supports the trial court's judgment." J.G. v. Dep't of Children & Families , 22 So.3d 774, 775 (Fla. 4th DCA 2009). "[S]o long as the trial court's ruling on one of the statutory grounds set forth in section 39.806, Florida Statutes, is supported by the evidence, the court's decision is affirmable." J.E. v. Dep't of Children & Families , 126 So.3d 424, 427-28 (Fla. 4th DCA 2013).

M.D. v. State, Dep't of Children & Families , 187 So.3d 1275, 1277 (Fla. 4th DCA 2016).

The trial court found the Department proved by clear and convincing evidence five statutory grounds for a TPR: section 39.806(1)(c), (e) 1., (e)3., (j), and (l ). The mother challenges the court's findings only as to subsections (1)(e)1., (e)3., and (j). She failed to brief and argue any legal issue related to subsections (1)(c) and (l ), although the trial court determined that the Department proved, by clear and convincing evidence, that the parental rights of the mother should be terminated based on (1)(c) (parent engaged in conduct toward the child "that demonstrates that the continuing involvement of the parent or parents threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services") and (l ) ("On three or more occasions the child or another child of the parent or parents has been placed in out-of-home care pursuant to this chapter ... and the conditions that led to the child's out-of-home placement were caused by the parent or parents").

Because the mother fails to challenge the other two grounds for termination, she has waived any argument with respect to these holdings of the trial court. See In re J.W. , 210 So.3d 147, 152 (Fla. 2d DCA 2016) (holding that, because the mother was put on notice by the answer briefs that she had waived the issue of termination based on section 39.806(1)(d)(3), because of her failure to argue the point in her initial brief and failure to move for leave to file an amended initial brief to address the issue, "[the mother] has waived the point about the sufficiency of the evidence to support termination"); see also Coolen v. State , 696 So.2d 738, 742 n.2 (Fla. 1997) (stating that a failure to fully brief and argue points on appeal "constitutes a waiver of these claims"). The mother also failed to challenge the trial court's determination that granting the TPR was in the child's manifest best interests and the least restrictive means of protecting the child from serious harm. Accordingly, we need not reach the merits of the second issue.

Conclusion

The child has spent most of her four years living with the paternal great-grandmother. The mother has spent most of this period either using illegal drugs or in rehab. The trial court did not deny the mother due process and instead patiently and exhaustively heard and addressed the testimony and arguments of both parties before concluding, correctly, that it is in the "manifest best interests" of the child that the parental rights of both the mother and the father be terminated, and "that termination is the best restrictive means of protecting the child from serious harm." We therefore affirm.

Affirmed.

Gerber, C.J., and Klingensmith, J., concur.

      When the Department's counsel asked a witness "Why are you here today to testify, what is it ... that you believe you're adding to this case today?" the following discussion took place:
      THE COURT: Hold on, you're getting a little .... First of all, were you subpoenaed to be here today? Were you served with a subpoena?
      THE WITNESS: No, ma'am.
      THE COURT: Okay, you were asked to come and testify and you're doing it voluntarily?
      THE WITNESS: Yes, Your Honor.
      THE COURT: Okay. So I think you're gonna have to narrow it to make it a little more specific of a question. Like what do you want the judge to know today as a result of your testimony?
      The Department then rephrased its question as: "What is it that you want the judge to know today as a result of your testimony?

      As in In re J.W. , the mother here did not seek leave to file an amended initial brief after the Department argued waiver in its answer brief. Nor did she file a reply brief. See In re J.W. , 210 So.3d at 152 n.8.


author: Kuntz, J.

text:
    Erskine James MCKINLEY Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2822
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Erskine James McKinley, Jr. appeals his convictions for two counts of attempted first-degree murder with a firearm. He raises four issues on appeal, and we affirm three without comment. For the final issue, McKinley argues the court erred in failing to respond to his requests to represent himself. We agree and reverse.

During voir dire, McKinley stated to the court: "Judge, I want to represent myself." The transcript does not show that the court, or counsel, responded to his request. Later, after the jury was empaneled but before opening statements, McKinley again asked to represent himself: "Pro se, man. Can I go pro se? I don't want him by me." After some dialogue, the court asked McKinley if he was requesting the court to represent himself. McKinley responded, "[Y]eah." McKinley also stated: "I will represent myself," and "I will represent myself because I ain't got my witness." Despite these statements, the court found McKinley had not made an unequivocal request for self-representation and proceeded to trial.

The Sixth Amendment to the United States Constitution protects a criminal defendant's right to self-representation. Amend. VI, U.S. Const.; Faretta v. California , 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "When a defendant indicates that he wishes to waive his right to counsel and represent himself, the trial court is obligated to conduct a[n] ... inquiry to determine if he is knowingly and intelligently waiving his right to counsel and is 'aware of the dangers and disadvantages of self-representation.' " Davis v. State , 10 So.3d 176, 178 (Fla. 5th DCA 2009) (quoting Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ).

The State argues that McKinley failed to make an unequivocal request to represent himself. We disagree. McKinley stated several times that he wished to represent himself, and his request was unequivocal. See Hooker v. State , 152 So.3d 799, 801 (Fla. 4th DCA 2014) (noting that the Defendant's statement "I'd like to exercise my sixth amendment right to go pro se ...." was unequivocal (omission in original) ).

"Under Faretta ..., once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel." Tennis v. State , 997 So.2d 375, 378 (Fla. 2008). Failure to hold a hearing in the face of an unequivocal request is reversible error. Id. at 380 ; see also Laramee v. State , 90 So.3d 341, 344 n.6 (Fla. 5th DCA 2012) ("Florida law is clear that a trial court's failure to hold a Faretta hearing is not subject to a harmless error analysis, and is per se reversible error." (citations omitted) ).

Because McKinley made an unequivocal request to represent himself, a Faretta hearing was required. Without a Faretta hearing, we are compelled to reverse McKinley's convictions and remand for a new trial.

Reversed and remanded.

Warner and Damoorgian, JJ., concur.


author: Per Curiam.

text:
    RECOVERY RACING, LLC, d/b/a Maserati of Ft. Lauderdale and New Country Motor Cars of Palm Beach, LLC, d/b/a Maserati of Palm Beach, Appellants, v. MASERATI NORTH AMERICA, INC., Appellee.
    Nos. 4D18-1020 4D18-1021
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Russell P. McRory and Charles A. Gallaer of Arent Fox, LLP, New York, New York, and Elias C. Schwartz of Elias C. Schwartz, PLLC, Great Neck, New York, for appellant Recovery Racing, LLC, d/b/a Maserati of Ft. Lauderdale.
    Robert D. Cultice, Felicia H. Ellsworth and Matthew C. Tymann of Wilmer Cutler Pickering Hale and Dorr, LLP, Boston, Massachusetts, and James Andrew Bertron, Jr., of Nelson Mullins Riley & Scarborough, LLP, Tallahassee, for appellee.
   Per Curiam.

In administrative proceedings, two motor vehicle dealers challenged certain policies implemented by a manufacturer and the fairness of a proposed franchise agreement. By this appeal and cross-appeal, the dealers and the manufacturer contest aspects of the agency's final order. We reverse the agency's determination that the dealers were entitled to section 320.641 fairness hearings on the challenged policies; we affirm the agency's determination of the fairness of the proposed franchise agreement in all respects.

Maserati North America, Inc. ("Maserati") is a manufacturer of automobiles. Recovery Racing, LLC d/b/a Maserati of Ft. Lauderdale and New Country Motor Cars of Palm Beach, LLC d/b/a Maserati of Palm Beach (collectively "the dealers") are dealers that sell Maserati automobiles to the general public.

Both dealers are parties to franchise agreements with Maserati which give them the non-exclusive right to purchase vehicles and parts from Maserati at wholesale for resale to the general public at their facilities. The franchise agreements expressly grant Maserati the right to set the invoice price for vehicles and to do so "upon such terms and conditions as it may establish from time to time." As found by the Administrative Law Judge, under the franchise agreements the dealers

generate revenue on the sale (or lease) of Maserati vehicles based on: (1) the retail price paid by customers; and (2) bonuses, rebates, incentives, and other benefit programs offered by [Maserati] that are calculated or paid on a per-vehicle basis ("Program Payments").

The Program Payments are not specified in the franchise agreements or any other contractual arrangement between the parties and may change from time to time in response to market and industry conditions.

For various business reasons, Maserati decided to replace its 2016 Program Payments with a new program (the "2017 program"). On October 25, 2016, Maserati unveiled the 2017 program to its dealers at a national meeting. A comprehensive PowerPoint presentation explained the reasons behind the implementation of the 2017 program and detailed its elements. Dealers who did not attend the meeting received a hard copy of the presentation by e-mail.

The 2017 program reduced holdback payments to the dealers by 2%, but provided the dealers with incentive programs, giving them the ability to receive bonus payments worth up to 3.5% of MSRP per vehicle sold at retail. These bonus payments were to be paid out quarterly upon a dealer's meeting certain performance standards. For example, dealers were, on average, unable to complete the repair of a Maserati vehicle until three and a half days after a customer dropped the vehicle off for service; this delay was due in part to dealers not having the required parts in stock to complete the repair. To incentivize dealers to stock more parts, the 2017 program provided that dealers would receive a bonus of .5% of MSRP per retailed vehicle if they purchased a preset volume of parts and accessories in a calendar quarter.

Maserati began the 2017 program with a transition period from November 1, 2016 through March 31, 2017. During this transition period, every dealer received the maximum 5.5% bonus payment upon shipment of new vehicles to the dealer, whether or not the dealer met any of the program's performance standards.

The dealers challenged the 2017 program under section 320.641, Florida Statutes (2017). They argued that Maserati did not comply with the 90-day notice requirement of subsection 320.641(1)(a), so that the 2017 program was "voidable" at their option pursuant to subsection 320.641(1)(b). The ALJ ruled that the dealers were entitled to a hearing under section 320.641(3), that Maserati substantially complied with the notice provision, and that the 2017 program was fair and not prohibited under subsection 320.641(3). In its final order, the Department of Highway Safety and Motor Vehicles adopted the ALJ's recommended order as its final order.

In its cross-appeal, Maserati contends that neither the 90-day notice nor a fairness hearing was required because the 2017 program did not amount to a modification of the dealers' franchise agreement.

As to the standard of review in this case, we have written that

[i]n an appeal from final administrative action, this court reviews the administrative agency's findings of fact to determine whether they are supported by competent, substantial evidence. This court will not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. We review the agency's conclusions of law de novo.

Dorcely v. State Dep't of Bus. & Prof'l Reg. , 22 So.3d 834, 836 (Fla. 4th DCA 2009) (citations omitted). We must set an administrative order aside or remand to the Department for further proceedings if we determine that "[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action." § 120.68(7)(d), Fla. Stat. (2017).

The contractual relationship between an automobile manufacturer and its dealers falls under sections 320.60 - 320.70, Florida Statutes (2017). The legislature has expressly described the legislative intent behind the statute:

It is the intent of the Legislature to protect the public health, safety, and welfare of the citizens of the state by regulating the licensing of motor vehicle dealers and manufacturers, maintaining competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers.

§ 320.605, Fla. Stat. (2017).

As it applies to this case, the 90-day notification provision of subsection 320.641(1)(a) applies where the manufacturer intends to "modify a franchise or replace a franchise with a succeeding franchise" and such a franchise modification "will adversely alter the rights or obligations of a motor vehicle dealer under an existing franchise agreement" or "will substantially impair the sales, service obligations, or investment of the motor vehicle dealer." § 320.641(1)(a), Fla. Stat. (2017). Thus, if the 2017 program is not a modification of a franchise, the statute requires neither a 90-day notice nor a fairness hearing. If the 2017 program is a franchise modification, the 90-day notice is required only if it "adversely alter[s]" a dealer's "rights or obligations" under the existing franchise agreement or "substantially impair[s]" the dealer's "sales, service obligations, or investment." Id.

A dealer's "franchise" is the creation of a "franchise agreement." Section 320.641 is entitled "Discontinuations, cancellations, nonrenewals, modifications, and replacement of franchise agreements." For the purpose of section 320.641, the term "franchise agreement" is unambiguously defined as,

a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer ... and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to transact business pertaining to motor vehicles of a particular line-make.

§ 320.60(1), Fla. Stat. (2017).

As Maserati argues, for a manufacturer's action to amount to a modification of a franchise, it must modify the contractual franchise relationship between the manufacturer and that dealer, not a policy or program external to the contract. Contrary to the dealers' argument, the statute's use of the language "any other terminology used to describe the contractual relationship" does not expansively include every incentive program within the definition of the franchise agreement. Rather, it is a reference to the various ways a written franchise agreement might be titled.

We agree with Maserati that the 2017 program is not subject to the notice and fair hearing provision of section 320.641 because it did not modify the existing contractual relationship between Maserati and the dealers.

Only two provisions of the existing franchise agreements between Maserati and the dealers arguably relate to the policies implemented by the 2017 program. Those provisions establish the broad scope of Maserati's business judgment in setting policies that apply to the dealers. One provision states that Maserati has the right to sell products to the dealers consistent with "reasonable policies and practices established from time to time" by Maserati. The other provides that Maserati may sell its vehicles to the dealers "at such prices and upon such terms and conditions as it may establish from time to time."

Nothing in the existing franchise agreement incorporates the 2016 program which the 2017 program replaced. Nothing in the existing franchise agreement addresses the details of the 2017 program-nothing about holdback payments, nothing about a guaranteed trading margin, nothing about incentive payments. The 2017 program does not modify the existing franchise agreement; its provisions fit within the ambit of Maserati's discretion to establish policies and practices as set forth in that agreement.

To the extent that the Department relied on the "course of dealing and practice between these parties over the years" to peg the meaning of a "franchise," it impermissibly expanded the language of subsection 320.60(1); that statute relies on language and "terminology" to define the parameters of a franchise agreement, not course of conduct or implication.

The Department erroneously concluded that "it is the broader, multi-faceted franchise business relationship," rather than the written contractual relationship, "that defines the parameters of the franchise agreement between the parties." In so doing, the Department impermissibly rewrote the plain language of subsections 320.60 and 320.641. The term "franchise" in subsection 320.641(1)(a) refers to a contractual relationship, not a "broader, multi-faceted business relationship."

Selling motor vehicles is not like selling corn flakes and milk. The industry is sensitive to external factors-competitors, interest rates, gasoline prices, and tariffs, to name a few-and the existing franchise agreement gives manufacturers the flexibility to quickly respond to changes in the marketplace without having to pass through a gauntlet of administrative proceedings. Nothing in subsections 320.641 or 320.60 so handcuffs motor vehicle manufacturers.

Because the dealers failed to show that the 2017 program modified their franchise agreements with Maserati, we reverse that portion of the final order directed at the implementation of that program and remand with directions to dismiss the dealers' petitions.

A second aspect of this appeal concerns the Department's evaluation of Maserati's proposed new franchise agreement. The dealers challenged some of the provisions as being unfair modifications of the franchise. The Department concluded that all but three of the provisions of the proposed new agreement were fair. On appeal, the dealers challenge three provisions found to be fair and in a cross-appeal Maserati is contesting the Department's conclusion as to two of the three provisions found to be unfair. We affirm the Department's evaluation of the fairness of the proposed new agreement in all respects.

Affirmed in part, reversed in part and remanded .

Gross, May, JJ., and Caracuzzo, Cheryl, Associate Judge, concur.

      Because we hold that the dealers were not entitled to fairness hearings for which notice is required, we do not reach the question of whether the notice in this case satisfied the 90-day notice provision of section 320.641.

      We reject the dealers' argument that the intent of sections 320.60 -320.70 is to protect dealers from powerful manufacturers. Here, the legislature has declared its intent and has said nothing about protecting dealers. The focus of section 320.605 appears to be primarily to protect "citizens of the state" and to promote fair dealing in the motor vehicle sales industry.


text:
    CHETU, INC., Petitioner, v. KO GAMING, INC., Respondent,
    No. 4D18-1551
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Paul D. Turner, Benjamin L. Reiss, and Joey M. Lampert of Perlman, Bajandas, Yevoli & Albright, Fort Lauderdale, for petitioner.
    No appearance for respondent.
   Kuntz, J.

Chetu, Inc. petitions for a writ of certiorari and asks that we quash an order allowing discovery of Chetu's and its non-party employees' private financial information. We grant the petition and quash the order.

Chetu filed a complaint against respondent KO Gaming, Inc. for failure to pay for services rendered and asserted claims of (1) breach of written contract, (2) open account, (3) account stated, (4) quantum meruit, and (5) unjust enrichment. Chetu later dismissed the quantum meruit and unjust enrichment claims. KO Gaming asserted affirmative defenses and brought two counterclaims.

During discovery, KO Gaming served a notice of taking deposition duces tecum of various areas of inquiry, including Chetu's "profit margin, estimates, projections, cost analysis or formula to determine profit for agreement." KO Gaming also requested Chetu to produce various documents at the deposition, including "all documents related to profit margin, estimates, projections, cost analysis or formula to determine profit for agreement." Chetu sought a protective order and, at a hearing on the motion, counsel for KO Gaming argued the requested discovery was relevant to a counterclaim asserting Chetu understaffed the project.

After the court denied a motion for protective order, Chetu filed this petition for writ of certiorari. We issued an order directing KO Gaming to show cause why the petition should not be granted. KO Gaming did not respond.

Here, as below, Chetu argues the private financial information sought by KO Gaming is not discoverable because it is irrelevant to the issues pending in the lawsuit. In essence, Chetu asserts that financial information, including profit projections and the salary and compensation of its employees, is not relevant to this breach of contract action. We agree.

"[T]he disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant." Friedman v. Heart Inst. of Port St. Lucie, Inc. , 863 So.2d 189, 194 (Fla. 2003) (quoting Straub v. Matte , 805 So.2d 99, 100 (Fla. 4th DCA 2002) ). Thus, the law "strikes the proper balance between allowing appropriate discovery and protecting litigants' privacy and equitable interests." Id.

That balance allows discovery relating to personal financial information when it is relevant to the pending action. Id. (citing Epstein v. Epstein , 519 So.2d 1042, 1043 (Fla. 3d DCA 1988) ). But if it is not relevant to the pending action, that balance precludes the discovery of personal financial information unless it is in aid of execution after judgment. Id. (citing Gruman v. Bankers Tr. Co. , 379 So.2d 658, 659 (Fla. 3d DCA 1980) ; Cooper v. Fulton , 117 So.2d 33, 35-36 (Fla. 3d DCA 1960) ).

KO Gaming hired Chetu to provide computer software programing services in exchange for an hourly rate. Chetu claims KO Gaming did not pay for services rendered under the contract. On the other hand, KO Gaming claims Chetu failed to perform as required by the contract.

The trier of fact will decide whether either party breached the contract. To prove a breach of contract, a party must establish a valid contract, a material breach, and damages. See Friedman v. N.Y. Life Ins. Co. , 985 So.2d 56, 58 (Fla. 4th DCA 2008). The private financial information of Chetu and its non-party employees is not relevant to that determination. Thus, we quash the order.

Petition granted; order quashed.

Damoorgian and Forst, JJ., concur.