author: COHEN, C.J. EISNAUGLE, J., dissenting.

text:
    Clare J. GREENSHIELDS, Appellant, v. Mark GREENSHIELDS, Appellee.
    Case Nos. 5D18-400 & 5D18-1218
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Thomas H. Yardley, Cocoa, for Appellant.
    Francis Hannon, of Dewitt Law Firm P.A., Tampa, for Appellee.
   COHEN, C.J.

Clare Greenshields ("Former Wife") appeals two orders: the first discharged a lis pendens on property she owned but imposed a restriction on the proceeds of its sale, and the second denied her request to dissolve an injunction, or alternatively, to require Mark Greenshields ("Former Husband") to post a bond. We reverse the requirement of both orders enjoining Former Wife's use of proceeds from the sale of property.

The parties, who had three children together, divorced in 2011 while living in Merritt Island. After the divorce, Former Wife bought a house in Merritt Island, and Former Husband relocated to Orlando. In an attempt to bring the children closer to Former Husband, Former Wife agreed to relocate, and Former Husband agreed to loan Former Wife the money to purchase a house in Orlando. It is undisputed that in 2013, Former Husband loaned Former Wife $152,837.33 in principal for the purchase of the Orlando house. However, Former Wife retained ownership of her Merritt Island house. As part of the loan agreement, Former Wife gave Former Husband a power of attorney that provided:

My Attorney-in-Fact shall have full power and authority to act on my behalf. This power and authority shall authorize my agent to manage and conduct all of my affairs and to exercise all of my legal rights and powers. My agent's powers shall include, but not be limited to, the following:
....
To deal with any interest I may have in the real property at 912 Harbor Pines Drive, Merritt Island, Florida 32952 .... These powers include, but are not limited to, the ability ...:
....
iii. to direct or cause to direct on a first priority basis the proceeds of the sale of the property at 912 Harbor Pines in full repayment of all and any advances including interest, insurance, utilities or other charges incurred either with the ... loan for the purchase of 1333 Falling Star Orlando or the existing property at 912 Harbor Pines to ensure that Mark Greenshields is made completely whole and to act to direct any remaining funds after full repayment to Mark Greenshields to the bank account of my choice.
....
My Attorney-in-Fact will receive no compensation except for the reimbursement of all out-of-pocket expenses associated with the carrying out of my wishes in addition to 100% of the costs of loaning me the money to purchase my new property at 1333 Falling Star, Orlando, Florida, including interest paid by him on this loan and any other costs directly associated with it as well as any expenses incurred in the sale or maintenance of 912 Harbor Pines, Merritt Island, Fl 32952. Any money remaining from the sale of 912 Harbor Pines Drive, Merritt Island, Florida 32952 after reimbursing my Attorney-in-Fact and the payments made by him on my behalf will ... immediately be paid to me in cleared funds to the bank account of my choosing.

The relocation resulted in disharmony within Former Wife's home and consequently, she sold the Orlando house and moved back to Merritt Island. During this time period, Former Husband accrued arrearages for his court-ordered alimony payments. Upon selling the Orlando house in 2014, Former Wife repaid Former Husband $132,826.93 while an additional $20,000 of the proceeds was placed into Former Wife's lawyer's trust account to bring Former Husband's alimony arrearages current. The parties agreed to this course of action and subsequently entered into a mediated settlement agreement, which provided: "The funds remaining in the trust account of ... counsel for the Former Wife, shall be released to the Former Wife, and the Former Husband waives and relinquishes any and all claims he may have to these funds." The record does not reflect that Former Husband claimed Former Wife owed him any additional monies at that time or that he attempted to set off any additional monies allegedly owed from the $20,000. Thus, the mediated settlement agreement appeared to have resolved repayment of the loan for the Orlando house and Former Husband's alimony arrearages.

In 2017, Former Wife listed her Merritt Island house for sale. Days before the scheduled closing, Former Husband filed a verified complaint against Former Wife for breach of contract, declaratory judgment, and unjust enrichment, alleging that Former Wife did not intend to compensate him from the proceeds of the sale as detailed in the power of attorney. Former Husband contemporaneously filed a notice of lis pendens. Notably, Former Husband recorded the power of attorney immediately prior to filing his complaint.

In response, Former Wife filed an emergency motion to discharge the lis pendens, and the trial court held an evidentiary hearing. While his complaint did not break down the amount sought, at the hearing, Former Husband acknowledged that he loaned Former Wife $152,837.33 in principal for the purchase of the Orlando house and received $132,826.92 from the sale of the Orlando house but claimed that he incurred other costs associated with the loan that amounted to a total outlay of $162,157.30. He sought $20,000 from what he claimed was the original principal of the loan, as well as $9,319.97 in interest and other costs. Former Husband argued that the mediated settlement agreement that brought his $20,000 alimony arrearages current never waived repayment of the $20,000 in principal or the additional costs and interest upon the sale of the Merritt Island house. In total, Former Husband claimed that Former Wife owed him "about $30,000" plus interest on that amount. Former Wife argued that the mediated settlement agreement satisfied her obligation to repay the loan considering Former Husband's alimony arrearages. Thus, she contended that Former Husband sought repayment of the alimony arrearages paid out of the sale proceeds of the Orlando house, which he waived pursuant to the mediated settlement agreement.

Following the hearing, the trial court discharged the lis pendens and found that Former Husband was not entitled to injunctive relief but required Former Wife to keep $36,500 from the sale of the Merritt Island house in escrow until the resolution of Former Husband's claims. In response to the trial court's order, Former Wife moved to dissolve what she alleged was a temporary injunction or alternatively, to require that Former Husband post a bond to support escrowing the sale proceeds. The trial court denied Former Wife's requests, maintaining the restriction on the sale proceeds of her house.

Initially, we decline to rule upon the issue Former Wife spends the majority of her brief arguing-whether Former Husband could place a lien or file a lis pendens on her homestead property. The trial court properly discharged the lis pendens, rendering that issue moot for purposes of our review.

However, we agree with Former Wife that while the trial court found that Former Husband was not entitled to an injunction, the relief fashioned effectively enjoined Former Wife's use and benefit from the sale proceeds of her house while the parties disputed the status of the loan. We find that the trial court erred both in requiring Former Wife to place monies into escrow and in failing to require Former Husband to post a bond. Cf. Rosasco v. Rosasco, 641 So.2d 493, 494-95 (Fla. 1st DCA 1994) (finding error where trial court required former husband to deposit portion of sale proceeds into escrow pending resolution of former wife's claims for payment where former wife could not illustrate entitlement to injunctive relief).

Former Husband's characterization of the $20,000 sought as principal does not make it so. It is undisputed that three years after agreeing to repay his court-ordered alimony arrearages from the sale proceeds of the Orlando house, Former Husband was attempting to not only obtain repayment of the alimony but also interest on that payment. Thus, the majority of the monies the trial court required to be escrowed pertained to that $20,000 alimony payment which was entirely unrelated to the power of attorney. These are not the circumstances contemplated by Van Vorgue v. Rankin, 41 So.3d 849 (Fla. 2010), on which the dissent relies. In Van Vorgue, the parties agreed to escrow funds pending resolution of a suit alleging that a quitclaim deed was not properly witnessed and that a stock assignment was fraudulently induced. Id. at 849-50.

The record is not unclear on this issue. If simple math does not make this obvious, at numerous times, as well as in pleadings, Former Husband's attorney did. For example, at the emergency hearing to dissolve the lis pendens, counsel for Former Husband set out his contention:

THE COURT: Mr. Hannon, does she still owe your client some money?
MR. HANNON: Yes, she does, Your Honor.
THE COURT: How much?
MR. HANNON: At this point, with a baseline of $162,000 that's claimed in the affidavit, the plaintiff is seeking somewhere in the neighborhood of $40,000 to $50,000.
THE COURT: Why is that, if she paid him $152,837.33?
MR. HANNON: She paid us $132,000, Your Honor, respectfully.
THE COURT: Wait a minute. Wait a minute. She paid you the other $20,000, on top of that, for his alimony obligation, right?
MR. HANNON: The other $20,000 was withheld in escrow and never released to my client. Essentially, Your Honor, there's two separate issues here. The one covering the amounts given to the defendant pursuant to the subject Power of Attorney, the other in the context of the divorce case has to do with the alimony payments.
....
THE COURT: All right. And you acknowledge that you owed her-or your client owed her $20,000. Is that right?
MR. HANNON: We do acknowledge that, and moreover, that that is pursuant to the settlement agreement of 2015, by which that amount was agreed to be released.

The parties presented the trial court these issues in the form of an emergency motion to dissolve a lis pendens and subsequent rehearing. The court did a commendable job under the circumstances, and its decision to dissolve the lis pendens was correct. However, the requirement that Former Wife hold monies in escrow pending the outcome of the litigation effectively enjoined her use of the monies and was improper.

REVERSED AND REMANDED.

TORPY, J., concurs.

EISNAUGLE, J., dissents with opinion.

EISNAUGLE, J., dissenting.

I respectfully dissent because I find no meaningful distinction between the facts of this case and Van Vorgue v. Rankin, 41 So.3d 849 (Fla. 2010). In Van Vorgue, our supreme court made it clear that a trial court's order directing proceeds from the sale of real property in escrow is not an injunction where the funds were already "restricted" by agreement of the parties. Id. at 853.

As in Van Vorgue, the parties here entered into a loan agreement wherein Former Wife granted Former Husband the right "to direct or cause to direct on a first priority basis the proceeds of the sale of the [Merritt Island home]." Therefore, the trial court's order relates to "restricted" funds and, as Van Vorgue instructs, is not in the nature of an injunction.

Importantly, the trial court itself has not yet reached the merits of Former Husband's claims. Perhaps Former Husband is attempting to obtain relief to which he is not entitled, but I cannot conclusively determine as much based on the limited and undeveloped record before us. At a minimum, a bona fide dispute remains on the face of our record as to Former Husband's claim for a yet-to-be-determined amount of costs and interest.

Accordingly, Van Vorgue forecloses Former Wife's argument that the trial court was without authority to direct the funds to escrow, and she has not raised an alternative argument that the trial court erred in the amount directed. Therefore, on this record, I would apply Van Vorgue and allow the trial court to resolve the parties' claims after hearing all of the evidence.

      The $9,319.97 sought in interest included interest on the $20,000.

      At other times, Former Husband claimed that Former Wife owed him up to $60,000.

      Under Former Husband's theory, the mediated settlement agreement to repay his alimony arrearages was meaningless because Former Wife, effectively, was required to repay those arrearages to Former Husband upon sale of the Merritt Island property. Under this theory, Former Wife would be required to institute contempt proceedings to once again recover monies to which she was admittedly owed. Perhaps Former Husband's defense to that action would be that he had already paid those monies.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ST. LUCIE FCRD and PGCS, Appellants, v. FMIT, Florida Municipal Insurance Trust, Appellees.
    No. 1D17-4794
    District Court of Appeal of Florida, First District.
    December 10, 2018
    George A. Helm, III, Lake Mary, for Appellants.
    Alan D. Kalinoski, Lamar D. Oxford, and Eric J. Netcher of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
   Per Curiam.

In this workers' compensation case, St. Lucie Florida Council for Resource Development and their current workers' compensation insurance carrier, PGCS Claim Services, together appeal an order of the Judge of Compensation Claims (JCC) denying their motion for indemnification/contribution from St. Lucie's prior workers' compensation insurance carrier, Florida Municipal Insurance Trust (FMIT). We affirm because this case is clearly controlled by City of Clearwater v. Carpentieri , 659 So.2d 357 (Fla. 1st DCA 1995).

This case was prompted by an injured worker's second heart attack. At the time of his first heart attack (in 2015), Gerald Williams was a firefighter for St. Lucie County. FMIT provided workers' compensation coverage, and Williams went on workers' compensation leave, still employed and receiving full pay while he waited for approval of his disability pension.

By the time of Williams's second heart attack (in 2016), St. Lucie had changed carriers from FMIT to PGCS. When medical bills from the second heart attack were submitted to FMIT, FMIT declined to pay; when they were submitted to PGCS, PGCS began paying benefits under the pay-and-investigate provision of the Florida Workers' Compensation Law, section 440.20(4), Florida Statutes. PGCS later (within 120 days) denied compensability, arguing that the 2016 injury was not compensable because its compensability hinges on application of the presumption of occupational causation set forth in section 112.18, Florida Statutes, which does not apply if the employee was not a firefighter on the date of accident.

Appellants filed a motion for indemnification, seeking reimbursement from FMIT on the theory that Williams did not qualify as a firefighter for purposes of section 112.18 because he was not on "active duty status" on the 2016 date of accident. The JCC denied the motion, finding that Williams was indeed a firefighter on the 2016 date of accident, under Carpentieri .

Appellants now argue that they should not be on the risk for the 2016 injury because Carpentieri demands a consideration of "active duty status." We disagree. Simply put, Carpentieri refused to muddy the bright line drawn in Smith v. City of Miami , 552 So.2d 245 (Fla. 1st DCA 1989), wherein we held that the presumption does not apply to people who retired from firefighting before their date of accident. Relying on Smith , Carpentieri held that an injured worker was still a firefighter even though on the date of his heart attack he was already using his accumulated leave in anticipation of retirement and had already applied for retirement and pension. Carpentieri is indistinguishable from the case at bar.

AFFIRMED .

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    HANSEN AND ADKINS AUTO TRANSPORT and Gallagher Bassett Services, Appellants, v. James MARTIN, Appellee.
    No. 1D17-3339
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Barbara K. Case of Barbara K. Case, P.A., North Palm Beach, for Appellants.
    Cynthia L. Denker of Harrell & Harrell, P.A., Jacksonville, for Appellee.
   Per Curiam.

In this workers' compensation case, the Employer and Carrier appeal the Judge of Compensation Claims' order awarding the injured worker retroactive authorization of surgery performed by an unauthorized provider. In the order, the JCC found that the E/C wrongfully denied a recommendation for cervical fusion surgery by an authorized provider. In addition, the order concluded that a different surgical procedure, completed later by an unauthorized provider, was medically necessary to treat the compensable workplace injury. On appeal, the E/C raise issues of causation and medical necessity. We conclude that the originally recommended surgery was not wrongfully accepted by the JCC. However, we reverse as to the different surgery actually performed by the unauthorized provider in this case, because the JCC relied on inadmissible medical opinion evidence to find the surgery medically necessary.

Facts

On September 14, 2015, Claimant sustained a compensable workplace injury to his neck. Although a cervical MRI scan performed soon after the injury revealed significant preexisting degenerative changes, the E/C provided medical care for his neck pain including pain management, injections, and a surgery evaluation by Dr. Ero, an authorized orthopedic surgeon. When Dr. Ero recommended cervical fusion surgery at multiple levels, the E/C obtained an independent medical examiner's opinion that Claimant's workplace injury was a strain/sprain only and was not the major contributing cause of any condition for which the fusion surgery was recommended. Based on this opinion, the E/C denied Dr. Ero's request for authorization of the recommended surgery.

In his initial petition for benefits, Claimant sought authorization of the cervical fusion surgery recommended by Dr. Ero. But before that issue was tried, he went to an unauthorized provider and had a different, less intrusive surgical procedure. Claimant subsequently amended his petition for benefits to include a claim for the surgical procedure that had been performed. Although Claimant eventually abandoned the claim for the recommended cervical fusion surgery, the E/C raised a major contributing cause defense to both claims.

In the order now on appeal, the JCC correctly noted that an injured worker may obtain wrongfully denied medical treatment at the expense of the E/C under the self-help provisions of section 440.13(2)(c), Florida Statutes (2015). See, e.g. , Parodi v. Fla. Contracting Co. , 16 So.3d 958, 962 (Fla. 1st DCA 2009) (holding "where section 440.13(2)(c) applies, the [JCC] has the statutory authority to authorize a doctor for care provided during the period of wrongful denial"). In first determining that the E/C here wrongfully denied surgery, the JCC rejected the E/C's causation defense and found that Claimant satisfied his burden of showing that the workplace injury is the major contributing cause of the need for surgery as required by section 440.09(1), Florida Statutes (2015). The JCC then found that the surgery actually performed by the unauthorized self-help provider was sufficiently similar to that recommended by Dr. Ero and was medically necessary to treat the compensable injury.

Analysis

In finding the requisite causation, the JCC determined that the E/C accepted compensability of the whole of Claimant's cervical condition-including the preexisting degenerative changes-by providing benefits and by failing to timely deny compensability for any preexisting condition. The JCC found no evidence of a break in the chain of causation and also expressly accepted Dr. Ero's opinion regarding the major contributing cause. To the extent that the JCC determined that the compensable workplace injury was the major contributing cause of the cervical condition and the need for the surgery recommended by Dr. Ero, we find no reversible error. The record supports the JCC's conclusion that the E/C wrongfully denied the surgery recommended by Dr. Ero.

But Claimant's burden under the self-help provision of section 440.13(2)(c) was to show that surgery he actually received-a different surgery than Dr. Ero recommended-was compensable, reasonable, and medically necessary. See Parodi , 16 So.3d at 962. On this point, he presented no medical testimony concerning the cause and medical necessity of the less invasive surgery received from the unauthorized provider. Dr. Ero expressly testified that he could not state that this surgery was medically necessary. And the JCC only cited evidence of medical necessity based on the medical records from the self-help provider. This was error. Under section 440.13(5)(e), only medical opinions from authorized providers, independent medical examiners, and expert medical advisors are admissible in workers' compensation proceedings. This Court has held that "the medical opinions of an unauthorized self-help doctor are not admissible unless and until it is established-by other admissible evidence and medical opinions-that the care rendered by the self-help doctor was compensable and medically necessary." Hidden v. Day & Zimmerman , 202 So.3d 441, 442-43 (Fla. 1st DCA 2016) (first citing Miller Elec. Co. v. Oursler , 113 So.3d 1004, 1009 (Fla. 1st DCA 2013) ; then citing Parodi , 16 So.3d at 962 ) (holding that a self-help doctor's opinion on compensability and medical necessity cannot "bootstrap" itself into evidence). Here, the JCC appeared to "bootstrap" records of the self-help provider, because no other admissible evidence exists that Claimant's surgery was compensable and medically necessary. Without this evidence, Claimant failed to meet his burden of proof. We must, therefore, reverse the order below.

Makar, Osterhaus, and Jay, JJ., concur.


text:
    Joshua HODGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2377
    District Court of Appeal of Florida, First District.
    December 11, 2018
    Joshua Hodge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Makar, Osterhaus, and Winsor, JJ., concur.


text:
    Alexander C. BROOKS, Petitioner, v. Kristine N. WILLIS, Respondent.
    No. 1D18-3525
    District Court of Appeal of Florida, First District.
    December 11, 2018
    Alexander C. Brooks, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002).

Makar, Osterhaus, and Winsor, JJ., concur.


author: PER CURIAM.

text:
    Dimitry TELAMOUR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3396
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Dimitry Telamour, Daytona Beach, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the trial court's November 16, 2017 final order denying Telamour's motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), rendered in Case No. 2008-CF-008205, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY and EISNAUGLE, JJ., concur.

EDWARDS, J., concurs in result only.


text:
    Corinthian JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4615
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Corinthian Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Lewis, Winokur, and Jay, JJ., concur.


text:
    Jerry B. SLEDGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2618
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018 Rehearing Denied December 18, 2018
    Jerry B. Sledge, Doral, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This court issued an order on November 13, 2018, directing Appellant to show cause why sanctions should not be imposed against him in view of his having instituted numerous repetitive, meritless proceedings in this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999). We have reviewed Appellant's response and determined it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his conviction and sentence imposed in Brevard County case numbers 05-1977-CF-00709-A, 05-1977-CF-00710-A, and 05-1977-CF-00711-A. The Clerk of this Court is directed to not accept any filings in this case unless they are signed by a member in good standing of the Florida Bar.

Additionally, we find this appeal is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2017). We direct the Clerk to forward a certified copy of this opinion to the appropriate institution or facility within the Florida Department of Corrections for disciplinary procedures pursuant to department rules.

Future Pro Se Filings PROHIBITED.

COHEN, C.J., EISNAUGLE AND GROSSHANS, JJ., concur.


author: PER CURIAM

text:
    Alfonso EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2539
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Alfonso Edwards, Trenton, pro se.
    No Appearance for Appellee.
   PER CURIAM

Alfonso Edwards appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Edwards timely filed his postconviction motion, raising two claims for relief. His first claim alleged that a scoresheet error rendered his plea involuntary. The postconviction court failed to rule on this claim, which warrants a remand for the court to address that claim. See Purse v. State, 185 So.3d 627, 627 (Fla. 5th DCA 2016).

In his second claim, Edwards asserted ineffective assistance of counsel in that his trial counsel did not discover the scoresheet error prior to the entry of his plea. Edwards argued that, as a result of this oversight, he experienced a harsher sentence than was legally required. The postconviction court properly found this claim to be facially insufficient because Edwards failed to allege that he would not have entered his plea but for counsel's error. Although this claim is facially insufficient, Edwards should be given notice and an opportunity to correct the deficiency within a specified time consistent with Florida Rule of Criminal Procedure 3.850(f), provided he can do so in good faith. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007) ; see also Boule v. State, 86 So.3d 1185, 1186 (Fla. 5th DCA 2012).

Accordingly, we reverse the summary denial, and remand for the postconviction court to consider claim one and to strike claim two with leave to amend.

REVERSED AND REMANDED.

EVANDER, EDWARDS, and GROSSHANS, JJ., concur.


author: HARRIS, J.

text:
    STATE of Florida, Appellant/Cross-Appellee. v. Travis A. ARCHER, Appellee/Cross-Appellant.
    Case No. 5D17-2423
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Aaron David Delgado, of Delgado & Romanik PLLC, Daytona Beach, for Appellee/Cross-Appellant.
   HARRIS, J.

The State of Florida appeals the trial court's order granting a motion to suppress, arguing that the trial court erred in partially suppressing evidence found in plain view after law enforcement officers entered Travis Archer's house and backyard due to exigent circumstances. Archer cross-appeals, arguing that the trial court erred in concluding that the officers had the authority to enter his home based on exigent circumstances. We affirm that part of the order upholding the initial entry based upon exigent circumstances and reverse that part of the order which suppressed the evidence obtained after re-entry of the premises.

On April 8, 2017, the Ponce Inlet Police Department ("PIPD") received a call concerning possible animal abuse. The caller specifically described sounds of a dog yelping and being beaten, provided dispatch with an address, and stated he had a confrontation with the person who lived there. Officer Bines was one of two officers to respond to the scene. Upon arrival, Bines, wearing a body camera, noticed an individual pacing behind a nearby fence and recalled hearing the person behind the fence saying something to the effect of "sit, get down, [or] lay down" and the sound of what could have been striking flesh. No other sounds were heard. After noticing the individual move from the fenced area to the back of the house, Bines proceeded to the front door. When Bines knocked on the front door, Archer answered, stepped out and closed the door behind him, speaking to the officers through the screen door.

Bines told Archer that he was there because the PIPD received a complaint in reference to possible animal abuse. Archer responded, "Yeah, my dog bit me, and I hit him a couple of times." Archer then offered, "I can show you the mess he made in the house. I tried to discipline him, and he bit me. So I hit him." Bines asked Archer if he and the other officer could come in and take a look around, but Archer refused. Instead, Archer invited the officers to observe the mess in the home that the dog created by allowing them to look through the glass from the officer's current location outside the screen door.

Officer Bines advised Archer that he had "probable cause" to enter his house, and that Archer could either let them in voluntarily or the officers can "go another route" which would not "end up being good" for Archer. Bines testified that at that time of morning, obtaining a search warrant would have taken several hours and in light of what he had already seen and heard, obtaining a warrant was not feasible. Bines followed Archer towards the backyard of the residence. When they approached the rear of the house, Archer pointed towards the dog, that was in a corner consistent with where Bines had heard the noises when he was outside the residence. The dog was tied up in the corner against the fence with his tongue hanging out and bloodied. It was then when Bines determined that the dog was dead. Bines asked Archer, "Seriously?" to which Archer responded, "He bit me." Bines then instructed Archer to turn around, handcuffed Archer, and advised Archer of his Miranda rights. After being read his Miranda rights, Archer made several incriminating statements. After securing Archer in the police car, the officers re-entered Archer's home and yard and took pictures of the crime scene. At some later point, police secured the dog's body.

Archer was charged by information with violating section 828.12, Florida Statutes (2017) ("Cruelty to Animals"). Archer moved to suppress any and all evidence seized from his home including, but not limited to, the canine remains, photographs of the interior of the home, and any statements he made. Archer argued that there was no exigent circumstances allowing a warrantless entry into his home and there was no legal basis to extend the "medical emergency" exception to justify the warrantless entry out of concern for the animal.

The trial court granted in part and denied in part Archer's motion to suppress. The court found that there were exigent circumstances to allow the initial warrantless entry into Archer's home. However, the court reasoned that the exigency was over once it was determined that the dog was dead. Therefore, the court held that the police officers had no justification to re-enter and search the residence or yard without a warrant. Consequently, the court suppressed all evidence obtained after police re-entered the home including the photographs taken, any related bodycam footage, and the canine remains. In his cross-appeal, Archer argues that the trial court erred by not suppressing all evidence obtained after the initial warrantless entry into his home because the State failed to show the existence of exigent circumstances.

While warrantless searches of a home are presumed illegal, Anderson v. State, 665 So.2d 281, 283 (Fla. 5th DCA 1995), an officer may enter a private home or property when there are exigent circumstances for the entry. Durham v. State, 174 So.3d 1074, 1075 (Fla. 5th DCA 2015). Exigent circumstances is a well-established exception to the warrant requirement. Riggs v. State, 918 So.2d 274, 278 (Fla. 2005). In order for this exception to apply, the State must "demonstrate a 'grave emergency' that 'makes a warrantless search imperative to the safety of the police and of the community.' " Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 191, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ). "An entry is considered 'imperative' when the government can show a 'compelling need for official action and no time to secure a warrant.' " Id. at 279 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) ). The reasonableness of a warrantless entry based upon exigent circumstances is measured by the totality of existing circumstances. Zeigler v. State, 402 So.2d 365, 371 (Fla. 1981). The Florida Supreme Court explained the exception this way:

The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, as well as the safety of police. Of course, a key ingredient of the exigency requirement is that the police lack time to secure a search warrant .... Moreover, an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists.

Riggs, 918 So.2d at 279 (quoting Rolling v. State, 695 So.2d 278, 293 (Fla. 1997) ). This exception is premised on the notion that "[t]he right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law." Davis v. State, 834 So.2d 322, 326-27 (Fla. 5th DCA 2003) (citing Zeigler, 402 So.2d at 371 ).

The "feared medical emergency" is a particular kind of exigent circumstance. This Court, in an en banc opinion, addressed the feared medical emergency exception to the warrant requirements articulated in Riggs and the now well-recognized community caretaking function of the police officers. Ortiz v. State, 24 So.3d 596, 597 (Fla. 5th DCA 2009). In Ortiz, this Court upheld the trial court's denial of the motion to suppress, finding that the officer had reasonable grounds to believe medical attention was needed and the officer had reasonable grounds to connect the feared emergency to the house that was entered. Id. at 602-03.

Although both Riggs and Ortiz involved feared medical emergencies of persons, this Court in Brinkley v. County of Flagler, 769 So.2d 468 (Fla. 5th DCA 2000), held that law enforcement's warrantless entry onto a defendant's property to check on the well-being of animals was justified based on the emergency exception to the warrant requirement. Brinkley involved a citizen complaining that a large number of animals were being kept in unhealthy conditions by the defendants. Id. at 469. Upon arriving at the defendant's farm, a deputy and animal cruelty investigator were overwhelmed by a nauseating smell of animal waste. Id. After calling out loudly and receiving no response, they entered through the unlocked front gate of the property. Id. at 470. This Court held that "entry onto the defendant's property under these circumstances was constitutionally permitted." Id. at 472 (citing Wisconsin v. Bauer, 127 Wis.2d 401, 379 N.W. 2d 895 (Wis. Ct. App. 1985) ). This Court found that law enforcement did not enter the property with an intent to either arrest or search, and "any reasonable person would also have concluded that an urgent and immediate need for protective action [for the animals] was warranted." Id. While Brinkley was a civil forfeiture case, the Fourth Amendment principles are no different in this case.

Archer's attempt to distinguish Brinkley from the facts in this case is unpersuasive. Archer argues that, unlike in Brinkley, here there were no sounds from an injured animal, no signs of blood or a fight, and no alarming odor to justify the warrantless entry into his home. Archer further argues that the single sound heard by Bines did not signify a grave emergency or that a dog needed immediate protection.

The trial court's findings to the contrary were supported by the totality of the circumstances. Archer's neighbor called to report possible animal cruelty in progress, advising that he heard a dog "yelping" and possibly being beaten. The responding officers found the house the caller had described, as evidenced by the presence of a man in the back of a house, after midnight, pacing behind the fence. Bines heard the man say "get down [or] lay down," and heard what appeared to be something striking flesh. When Bines contacted Archer, Archer advised Bines that he had a dog, that the dog had bitten him, and that he struck the dog twice. The trial court found at that point, prior to their entering the residence, the officers had reasonable grounds to believe that there was an urgent and immediate need to check on the safety and well-being of the dog and to connect the feared emergency to the house that they entered. Additionally, the trial court found that at that point, the officers had no intent to arrest Archer or search his home or yard. The trial court's findings are supported by competent, substantial evidence. Applying this Court's ruling in Brinkley, the exigent circumstances exception applies to animals, and entry onto Archer's property under these circumstances was constitutionally permitted.

In its appeal of the suppression order, the State argues that the trial court erred in suppressing the evidence found in plain view after the officers' initial entry into Archer's house and backyard. First, the State argues that the canine remains in plain view were properly seized. Second, the State argues that the photographs, bodycam footage, and canine remains in plain view were part of the same continuous episode and thus, it was lawful for the officers to re-enter the home to take photos and video. The trial court found that any exigency dissipated after the dog was dead, and at that point, the officers were not entitled to search Archer's home without a warrant. On this point, we find that the trial court erred and reverse.

Entry into a residence based on exigent circumstances must be limited in scope to its purpose; therefore, police may not continue their search once it is determined that the exigency no longer exists. Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003) (citing Rolling, 695 So.2d at 293 ). "If the police enter a home under exigent circumstances and, prior to making a determination that the exigency no longer exists, find contraband in plain view, they may lawfully seize the illegal item." Id."The plain view doctrine provides that items in plain view may be seized when (1) the seizing officer is in a position where he has a legitimate right to be, (2) the incriminating character of the evidence is immediately apparent, and (3) the seizing officer has a lawful right of access to the object." Pagan v. State, 830 So.2d 792, 808 (Fla. 2002).

The first item that the trial court suppressed was the canine remains. The incriminating nature of the dog's condition was plainly evident to Bines before he determined the dog was dead. It was lying down in the corner of the backyard next to the fence where Bines had heard Archer saying "Sit" and heard what sounded like something hitting flesh. It was lying listless in an odd position. The dog appeared to be bound and gagged and had a bloodied tongue. Bines made these observations while the exigency still existed and before he determined that the dog was dead. It was not necessary to further investigate-the dog's body was incriminating in nature and immediately apparent to the officers. The trial court improperly applied the plain view doctrine to the canine remains, and the order granting the suppression of those remains is reversed.

The trial court further erred in suppressing the photographs and bodycam footage obtained after Archer was placed in the patrol car. The officers re-entered Archer's home to take photographs, video, and gather additional evidence. As with the canine remains, the trial court found that the exigency was over once Bines determined that the dog was deceased and placed Archer under arrest. The trial court reasoned that at that time, the police officers had no justification to re-enter or search the residence or yard without a warrant. Contrary to the trial court's conclusion, even if the exigency was over when the officers re-entered the house, no warrant was required where the evidence ultimately seized was first observed and discovered in plain view.

In Anderson, this Court concluded that once the exigency that justified the warrantless search was over, law enforcement could not conduct any further search of the apartment or its content. 665 So.2d at 281. However, this Court noted that the officer was entitled to examine what was in plain view while on the premises. Similarly, in Davis, this Court reversed a trial court's denial of a motion to suppress and held that once the exigency ended, there was no further excuse for the police to be in the residence and seize the items they did not have probable cause to believe were involved with criminal activity. 834 So.2d at 328.

Unlike in Anderson and Davis, here, the evidence seized by the officers was already in plain view when the exigency was occurring. The exigency began once the officers arrived on scene and continued until the moment the responding officer realized the dog was dead. Up until that moment, the officer had observed holes in the wall which Archer admitted to throwing his dog against, debris on the floor which Archer admitted was the reason for punishing his dog in the first place, and the body of the dog itself. The officers' re-entry into Archer's house was a continuation of police presence for the limited purpose of photographing the incriminating evidence already found in plain view while the exigency was still ongoing, and seizing the deceased animal. The officers did not search an area other than where the incriminating evidence was in plain view during the exigent circumstances. Therefore, the canine remains, photographs, and bodycam footage are admissible under the plain view doctrine.

AFFIRMED IN PART; REVERSED IN PART

EVANDER and EDWARDS, JJ., concur.

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

      Although the United States Supreme Court has described the exception to the warrant requirement in terms of protecting people, other courts have held that the exception reasonably extends to the protection of animals under certain circumstances. See, e.g., Suss v. Am. Soc'y for Prevention of Cruelty to Animals, 823 F.Supp. 181, 187 (S.D.N.Y. 1993) ("Real immediacy may allow emergency entries to preserve animal life that is threatened because of cruelty."); People v. Williams, 222 Cal.Rptr.3d 806, 816-18 (Cal. Ct. App. 2017) (explaining that conduct of animal control officers in looking into windows of defendants' attached garage and walking into and inspecting fenced backyard was justified by exigent circumstances where officers heard puppies barking, a dog whining, and there were strong odors of excessive fecal matter and thus, it was reasonable for officers to be concerned that dog was in distress and possibly in need of immediate aid under the circumstances); Tuck v. United States, 477 A.2d 1115, 1120-21 (D.C. 1984) (upholding warrantless search and seizure based on exigency even though exigency involved protection of animal life rather than human life); Morgan v. State, 289 Ga.App. 209, 656 S.E.2d 857, 860 (2008) (holding that an exigency exception to the warrant requirement exists "where a police officer reasonably believes that an animal on the property is in need of immediate aid due to injury or mistreatment"); People v. Thornton, 286 Ill.App.3d 624, 222 Ill.Dec. 60, 676 N.E.2d 1024, 1028-29 (1997) (finding "the totality of the circumstances known to the officers at the time of their entry into defendant's apartment was sufficient for the officers to reasonably believe that an emergency was at hand to rescue dog"); Davis v. State, 907 N.E.2d 1043, 1050 (Ind. Ct. App. 2009) ("[C]ircumstances of animal cruelty may create exigent circumstances to permit a warrantless search of the curtilage."); State v. Stone, 321 Mont. 489, 92 P.3d 1178, 1184 (2004) (holding that "prevention of needless suffering and death of animals on defendant's property created exigent circumstances justifying warrantless search"); State v. Dicke, 258 Or.App. 678, 679, 310 P.3d 1170 (2013) (finding a warrantless seizure of defendant's horse was justified under Fourth Amendment to render aid or assistance to horse) (citing Brinkley, 769 So.2d at 472 ); State v. Bauer, 127 Wis.2d 401, 379 N.W.2d 895, 899 (Wis. Ct. App. 1985) ("Exigent standard test applies to situations involving mistreatment of animals.");Pine v. State, 889 S.W.2d 625, 631 (Tex. App. 1994) (applying the emergency doctrine to an emergency involving saving the life of an animal).


text:
    STRONG PORTFOLIO HOLDINGS, LLC, Appellant, v. GMAC MORTGAGE, LLC, Samuel Carlile, Heritage Key Association, Inc. and Bayview Loan Servicing, LLC, Appellees.
    Case No. 5D18-796
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Richard H. Weisberg, of Law Offices of Richard H. Weisberg, P.A., Sanford, for Appellant.
    Adam M. Topel, of Liebler, Gonzalez & Portuondo, Miami, for Appellee, Bayview Loan Servicing, LLC.
    No Appearance for other Appellees.
   PER CURIAM.

Strong Portfolio Holdings, LLC, appeals two final orders on its supplemental motion to intervene and vacate the final judgment of foreclosure and cancel sale. We reverse and remand for further proceedings.

Two different trial judges entered conflicting orders on Strong Portfolio's supplemental motion to intervene. The original trial judge considered the matter at a hearing, took it under advisement, and ordered the parties to submit memoranda of law. While the matter was under advisement, the original trial judge was transferred to a different division. Nonetheless, shortly thereafter, the original trial judge entered an order indicating an evidentiary hearing was necessary on Strong Portfolio's supplemental motion to intervene. The next day, not realizing that the original trial judge had entered an order setting the matter for an evidentiary hearing, the trial judge now assigned to the case denied the supplemental motion to intervene. Before the trial court could sort out the matter, Strong Portfolio filed its notice of appeal in order to preserve its appellate rights.

It is clear that the orders are in conflict. Hence, we reverse both orders and remand the cause with instructions for the trial court to resolve the conflict. In doing so, we express no opinion on the merits of the underlying dispute.

REVERSED and REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    Thomas Steve BURKE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3361
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Thomas Steve Burke, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 5, 2018, order denying Petitioner's pro se amended petition for writ of habeas corpus, filed in Case No. 2015-CF-201, Fifth Judicial Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EVANDER and GROSSHANS, JJ., concur.


text:
    Krista Marie TAYLOR, Appellant, v. DEPARTMENT OF REVENUE O/B/O Jack Grayson LOONEY, Appellee.
    Case No. 5D18-2411
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Krista Marie Taylor, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Office of the Attorney General Child Support Division, Tallahassee, for Appellee.
   PER CURIAM.

A trial court's decision comes before the appellate court with a presumption of correctness. Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979). Here, without a hearing transcript or proper substitute, Appellant is unable to meet her burden to demonstrate error. Id.

AFFIRMED.

EVANDER, EDWARDS and HARRIS, JJ., concur.


author: ORFINGER, J.

text:
    E.P. and P.P., as Individuals and on Behalf of Their Minor Child, M.P., Appellants, v. Barton HOGREVE, Appellee.
    Case No. 5D17-3171
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Brett M. Halsey and Aaron Blynn, of Genovese, Joblove & Battista, Miami, for Appellants.
    Lisa L. Hogreve, of Bogin, Munns & Munns, P.A., Cocoa, for Appellee.
   ORFINGER, J.

E.P. and P.P., individually and on behalf of their minor child, M.P. ("Appellants"), appeal a final judgment dismissing with prejudice their second amended complaint, alleging professional negligence (legal malpractice) against attorney Barton Hogreve ("Appellee"). Appellants argue that contrary to the trial court's order, their second amended complaint sufficiently stated a cause of action. We agree and reverse.

This suit arose out of Appellee's alleged failure to properly handle the proceedings related to terminating the parental rights of M.P.'s biological father. According to their second amended complaint, Appellants retained the services of Home at Last Adoption Agency, Inc. (the "Agency") and Appellee in connection with the placement and eventual adoption of M.P. Shortly after birth, the Agency placed M.P. with Appellants in Massachusetts. At the time of the placement, the biological mother had falsely represented that she was single, when in fact, she was married to M.P.'s biological father. This interrupted the adoption because the biological father refused to consent to the adoption. As a result, the Agency, with Appellee's assistance, sought to terminate the biological father's rights, resulting in four years of litigation. After the trial court denied the Agency's second amended termination petition against M.P.'s biological father, Appellants hired other trial and appellate counsel to continue the termination proceedings against M.P.'s biological father. Ultimately, with their new counsel's assistance, the trial court terminated the biological father's parental rights. That judgment was affirmed on appeal. V.M. v. Home at Last Adoption Agency, Inc., 145 So.3d 864 (Fla. 5th DCA 2014). Appellants were then able to successfully adopt M.P.

Although Appellants were ultimately successful in the adoption, they sued Appellee, among others, complaining that he negligently handled the termination proceedings. Appellee moved to dismiss, arguing, in part, that Appellants had not stated a cause of action for professional negligence because they were not in privity with Appellee. The trial court agreed and dismissed Appellants' professional negligence claim with prejudice.

Our review of a trial court's order dismissing a complaint with prejudice is de novo. Dingle v. Dellinger, 134 So.3d 484, 487 (Fla. 5th DCA 2014). In assessing the adequacy of a complaint, we take the factual allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Jordan v. Nienhuis, 203 So.3d 974, 976 (Fla. 5th DCA 2016) ; Ray Coudriet Builders, Inc. v. R.K. Edwards, Inc., 157 So.3d 484, 485 (Fla. 5th DCA 2015). We do not look beyond the complaint and its attachments when considering a dismissal motion. Mohan v. Orlando Health, Inc., 163 So.3d 1231, 1233 (Fla. 5th DCA 2015).

To properly state a cause of action against an attorney for professional negligence, three elements must be alleged: (1) the attorney's employment or privity with the plaintiff; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence as the proximate cause of any loss to the plaintiff. See Dingle, 134 So.3d at 487 ; Gresham v. Strickland, 784 So.2d 578, 580 (Fla. 4th DCA 2001). "An attorney's liability for professional negligence is generally limited to clients with whom the attorney shares privity of contract." Dingle, 134 So.3d at 487. "If the parties are not in privity, to bring a legal malpractice action, the plaintiff must be an intended third-party beneficiary of the lawyer's services." Id. at 487-88.

To establish the attorney's employment, it must be asserted that an attorney-client relationship existed with respect to the acts or omissions that form the basis of the legal malpractice claim. Kates v. Robinson, 786 So.2d 61, 64 (Fla. 4th DCA 2001). However, the establishment of the attorney-client relationship does not always require a written agreement or evidence that fees have been paid or agreed upon. Mansur v. Podhurst Orseck, P.A., 994 So.2d 435, 438 (Fla. 3d DCA 2008). In the absence of a formal agreement, the test for an attorney-client relationship "is a subjective one and hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice. However, this subjective belief must ... be a reasonable one." Id. (quoting The Fla. Bar v. Beach, 675 So.2d 106, 109 (Fla. 1996) ).

Here, Appellants alleged sufficient facts to demonstrate their reasonable belief that they were consulting with Appellee to obtain legal advice. Appellants alleged in their second amended complaint that they wrote to, telephoned, and met with Appellee seeking legal advice on the termination proceedings against M.P.'s biological father. According to the second amended complaint and its attachments, in his responses to Appellants, Appellee repeatedly referred to himself and Appellants as "we" and "us" and to the termination proceeding as "our case." Appellee also gave Appellants legal advice and counseled Appellants on the status of the legal proceedings, legal filings, and legal strategy and asked Appellants whether they wanted to appeal any adverse ruling in the termination proceedings. Likewise, in an email, Appellee seemingly acknowledged an attorney-client relationship with Appellants, stating "As for your request for me to CC everyone, as an attorney and with confidentiality issues I will send my emails/responses only to you and [the Agency], as I'm sure you can understand." Appellee also billed Appellants directly for his services and referred to Appellants as his "clients" in those billings. And, Appellee allegedly prepared and delivered to Appellants a "Legal Opinion Letter on Status of Termination of Parental Rights in Florida." As such, we conclude the second amended complaint sufficiently alleged an ongoing attorney-client relationship and that the legal malpractice action arose out of Appellee's legal services in the termination and related adoption proceedings.

Further, Appellants have also sufficiently alleged that they were intended third-party beneficiaries of the legal services agreement between Appellee and the Agency. The primary purpose of Appellee's professional relationship with the Agency was to secure M.P.'s adoptive placement into Appellants' family-i.e., a direct benefit for M.P and Appellants. "To assert a third-party beneficiary claim, the complaint must allege: (1) a contract; (2) an intent that the contract primarily and directly benefit the third party; (3) breach of the contract; and (4) resulting damages to the third party." Dingle, 134 So.3d at 488. In Florida, the rule of privity in professional negligence actions is relaxed in very narrow circumstances where it can be demonstrated that the intent of the client in engaging the services of the lawyer was to benefit a third party. See Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So.2d 192, 194 (Fla. 1987) ("The only instances in Florida where this rule of privity has been relaxed is where it was the apparent intent of the client to benefit a third party.... Florida courts have refused to expand this exception to include incidental third-party beneficiaries."); Rushing v. Bosse, 652 So.2d 869, 873 (Fla. 4th DCA 1995) ("We do not read Oberon as creating an exception to the privity requirement limited solely to the area of will drafting."); see also Dingle, 134 So.3d at 491 ("While the general rule in Florida is that an attorney owes a duty of care only to his client and not to third parties, an attorney owes a duty to a third party if the attorney was hired for the purpose of benefitting a third party. Because the intended benefit rule requires the specific intent to benefit the third party, it is accepted that an attorney is not liable to the third party for malpractice alleged to have occurred during adversarial proceedings on the rationale that adversaries would never desire to benefit one another.") (citations omitted).

Appellants alleged sufficient facts to show that the contract between the Agency and Appellee was entered into "primarily" and "directly" to benefit M.P.

and them. The Agency contracted with Appellants to place M.P. with them for adoption and hired Appellee to facilitate the adoption by terminating the biological father's parental rights. In adoption proceedings, the intended beneficiary of the termination proceeding is the child to be adopted, and Appellants, as the adoptive parents, clearly intended to benefit M.P. through adoption. See Rushing, 652 So.2d at 873 (stating that child to be adopted was not only intended third party beneficiary of contract but defendants were attorneys for adoptive parents, "who evidently intended to benefit child by adopting her"); see also § 63.022, Fla. Stat. (2010) ("It is the intent of the Legislature to protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life ...."). However, that does not mean that the child is the only intended beneficiary. In this case, Appellants sufficiently alleged that they were also the intended beneficiaries of the contract because the parties' post-contract actions established Appellee's intent to benefit Appellants and M.P. in successfully terminating the biological father's biological rights to allow Appellants to adopt M.P. See Dingle, 134 So.3d at 488 (explaining that pre-or post-contract actions may establish requisite intent).

Appellants have also plausibly alleged the other two basic elements of legal malpractice, i.e., Appellee neglected a reasonable duty to Appellants and his negligence proximately caused a loss to Appellants even though the adoption was eventually successful. See, e.g., Doe v. Hughes, Thorsness, Gantz, Powell & Brundin, 838 P.2d 804, 806-07 (Alaska 1992) (indicating that important part of attorney's duty to client is duty to advise client of action that client should take in given set of circumstances, and noting that although clients' adoption decree was upheld on appeal, challenge to it was "costly affair," a redressable harm); Laird v. Blacker, 2 Cal.4th 606, 7 Cal.Rptr.2d 550, 828 P.2d 691, 696 (1992) (noting that client sustains injury as soon as he or she is forced to incur costs pursuing appeal, and concluding that although appeal may correct judicial error and thus reduce client's damage, "appeal does not necessarily exonerate the attorney, nor does it extinguish the client's action against him for negligence in the conduct of trial"); Petrowsky v. Family Servs. of Decatur, 165 Ill.App.3d 32, 116 Ill.Dec. 42, 518 N.E.2d 664, 667 (1987) (explaining that adoption agency had implied duty to carry out terms of adoption agreement reasonably and in good faith, and even though plaintiffs were ultimately successful in adoption, adoption agency could be held liable for mental suffering caused by its mishandling of adoption).

For these reasons, we conclude the trial court erred in dismissing the professional negligence claim in Appellants' second amended complaint. We reverse this matter for reinstatement of this cause of action against Appellee.

REVERSED and REMANDED.

BERGER and EISNAUGLE, JJ., concur.

      The facts, involving the litigation that followed, are fully set out in Home at Last Adoption Agency, Inc. v. V.M., 126 So.3d 1236 (Fla. 5th DCA 2013).

      Appellants also challenge the trial court's dismissal of their common law negligence claim without prejudice in their amended complaint. However, an original pleading is superseded by an amended pleading that does not indicate an intention to preserve any portion of the original pleading. Downtown Invs., Ltd. v. Segall, 551 So.2d 561, 562 (Fla. 3d DCA 1989). In this instance, the amended complaint was superseded by the second amended complaint, which failed to reassert or mention the negligence claim against Appellee. Hence, Appellants have abandoned that claim and it cannot be resurrected in this appeal. See Arthur v. Hillsborough Cty. Bd. of Criminal Justice, 588 So.2d 236, 237 (Fla. 2d DCA 1991).

      Appellee argues that this Court can also affirm on tipsy coachman grounds-that the second amended complaint shows on its face that the action is barred by the two-year statute of limitations and the exhibits attached to the second amended complaint conflict with the allegations in the second amended complaint. Inasmuch as the trial court declined to dismiss on those grounds, we decline to do so as well. See generally HSBC Bank USA, Nat'l Ass'n v. Nelson, 246 So.3d 486, 489 (Fla. 2d DCA 2018) ("As an initial matter, we note that the trial court expressly declined to address this argument, and this court 'cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.' ") (quoting Salazar v. Hometeam Pest Def., Inc., 230 So.3d 619, 622 (Fla. 2d DCA 2017) ).


text:
    USAA GENERAL INDEMNITY COMPANY, Petitioner, v. FLORIDA HOSPITAL MEDICAL CENTER A/A/O Raymond Rivera, Respondent.
    Case No. 5D18-3356
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    Douglas H. Stein, of Association Law Group, P.L., Miami, for Petitioner.
    Robert J. Hauser, of Pankauski Hauser PLLC, West Palm Beach, for Respondent.
   PER CURIAM.

USAA General Indemnity Company ("USAA") petitions for second-tier certiorari relief regarding an order issued by the circuit court sitting in its appellate capacity in favor of Florida Hospital Medical Center ("Florida Hospital") a/a/o Raymond Rivera. The circuit court affirmed the final judgment of the county court determining the proper methodology in the application of the deductible authorized under section 627.739(2), Florida Statutes (2016), when personal injury protection ("PIP") benefits are sought by an insured. We deny the petition.

This case is identical to our recent decisions in Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Melendez , --- So.3d ----, ----, 43 Fla. L. Weekly D2463 (Fla. 5th DCA Nov. 2, 2018) ; Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Sanchez , 249 So.3d 779 (Fla. 5th DCA 2018) ; Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Parent , 236 So.3d 1183 (Fla. 5th DCA 2018) ; and Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Pena , 236 So.3d 1182 (Fla. 5th DCA 2018). In each of these cases, we certified the following question as one of great public importance:

WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA STATUTES, REQUIRE THAT THE DEDUCTIBLE BE SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL CHARGES BEFORE APPLYING THE REIMBURSEMENT LIMITATION UNDER SECTION 627.736(5)(a)1.b., OR MUST THE REIMBURSEMENT LIMITATION BE APPLIED FIRST AND THE DEDUCTIBLE SUBTRACTED FROM THE REMAINING AMOUNT?

E.g. , Parent , 236 So.3d at 1192. The Florida Supreme Court has accepted jurisdiction. Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr., No. SC18-278, 2018 WL 2064894, at *1 (Fla. Mar. 20, 2018). At the time of this opinion, it has not yet rendered its decision.

After we issued our opinions in Parent and Pena , the Fourth District Court reached a contrary result in several of its cases and certified conflict with our decisions. State Farm Mut. Auto. Ins. Co. v. Care Wellness Ctr. a/a/o Bardon-Diaz , 240 So.3d 22, 24, 31 (Fla. 4th DCA 2018) ;

USAA Gen. Indem. Co. v. Gogan a/a/o Ricks , 238 So.3d 937, 937 (Fla. 4th DCA 2018) ; Progressive Select Ins. Co. v. David A. Blum, M.D., P.A. a/a/o Moreno , 238 So.3d 852, 853 (Fla. 4th DCA 2018). We accordingly certify conflict with Care Wellness Center , Gogan , and Blum and certify the same question that we have previously certified in our above four cases as one of great public importance.

PETITION DENIED; CONFLICT CERTIFIED; QUESTION CERTIFIED.

ORFINGER, LAMBERT, and HARRIS, JJ., concur.


author: Hughes, J., dissenting.

text:
    Patricia J. GONZALEZ v. Monty MONTELONGO and The State of Louisiana, Department of Public Safety and Corrections, Office of the State Police
    No. 2019-CC-32
    Supreme Court of Louisiana.
    January 7, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ application granted in part.
    CLARK, J., would grant and reverse.
    HUGHES, J., dissents and assigns reasons.
    CRICHTON, J., would grant and reverse.
   Hughes, J., dissenting.

I respectfully dissent. The opinion of the U.S. Supreme Court in Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), as well as the opinions of this court in Mathieu v. Imperial Toy Corp. , 94-0952 (La. 11/30/94), 646 So.2d 318, and Kyle v. City of New Orleans , 353 So.2d 969 (La. 1977) are controlling, without qualification. The issue in this case is not plaintiff's level of intoxication, but what happened at the time of the incident.

According to this court's order, if plaintiff does not testify about her "level of intoxication," the defense may not open this door by asking leading questions on cross examination.

The officer's observations and the results of the field sobriety test are admissible. But the uncertified intoxilyzer results from two hours later cannot be used to prejudice the plaintiff in the eyes of the jury under the guise of impeaching her credibility on what happened at the time of the incident.


author: Hughes, J., concurring.

text:
    STATE of Louisiana v. Merton BAILEY
    No. 2018-KH-2084
    Supreme Court of Louisiana.
    January 3, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   Hughes, J., concurring.

Relator alleges he has been incarcerated since July, 2015. Compliance with the order of the court of appeal is desirable.


text:
    IN RE: David Cartan Loker GIBBONS, Jr.
    NO. 2018-B-1793
    Supreme Court of Louisiana.
    January 8, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent neglected a client's legal matters, some of which had prescribed, failed to communicate with his client and timely disclose his malpractice, and misled his client regarding the status of the matters. Respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David Cartan Loker Gibbons, Jr., Louisiana Bar Roll number 25394, be and he hereby is suspended from the practice of law for a period of one year and one day, with all but six months deferred.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: David W. ARDOIN
    NO. 2018-B-1810
    Supreme Court of Louisiana.
    January 8, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into respondent's arrest for driving while intoxicated. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David W. Ardoin, Louisiana Bar Roll number 24282, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    Lou A. BABINEAUX v. The BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM
    NO. 2018-CC-1663
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRIT TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM

Granted. The case is remanded to the court of appeal for briefing, argument and full opinion, with due consideration of its earlier holding in Washington v. the Board of Supervisors for the University of Louisiana System , 2018-0008 (La. App. 1 Cir. 5/14/18), 2018 WL 2202309.

WEIMER, J., would grant and docket.


text:
    IN RE: Sean P. MOUNT
    NO. 2018-B-1823
    Supreme Court of Louisiana.
    January 8, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into respondent's arrest for driving while intoxicated. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sean P. Mount, Louisiana Bar Roll number 27584, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of his diagnostic monitoring agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


author: Johnson, C.J., would deny.

text:
    Joel ORELLANA v. 24TH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, State of Louisiana
    No. 2018-KK-1603
    Supreme Court of Louisiana.
    January 8, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ Granted. Respondent has exhausted his right to state collateral review and his claim raised herein is time barred as a matter of La. C.Cr.P. art. 930.8. See State ex rel. Joel Orellana v. State of Louisiana, 2016-1610 (La. 1/12/18), --- So.3d ----, 2018 WL 459744. Therefore, the judgment of the court of appeal ordering the district court to provide Respondent with a copy of his Boykin transcript free of charge is reversed. See State ex rel. Brown v. State of Louisiana, 2003-2568 (La. 3/26/04), 870 So.2d 976. Additionally, La. C.Cr.P. art. 930.4 bars the filing of successive post-conviction applications unless respondent can show an exception applies.
   Johnson, C.J., would deny.

Genovese, J., would deny.


author: PER CURIAM:

text:
    STATE EX REL. Rosheed GUILLORY v. STATE of Louisiana
    No. 2017-KH-0945
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

Writ granted in part. The district court is ordered to provide relator with the court's judgment denying his post-conviction application, which he is entitled as of right. La.C.Cr.P. art. 930.1. Upon receipt of those documents, relator shall have a reasonable opportunity to file an application for supervisory writs in the court of appeal.

CLARK, J., would deny.


text:
    SUCCESSION OF Alta Salone POLK
    NO. 2018-CC-1774
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Karsten OLIVER
    NO. 2018-KK-2093
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Kerric BROWN
    NO. 2019-KK-0019
    Supreme Court of Louisiana.
    January 7, 2019
    Stay denied. Writ denied.


author: JOHNSON, C.J., recused.

text:
    Sandra Vicknair MELANCON and Lynn M. Melancon v. LAMORAK INSURANCE COMPANY, et al.
    NO. 2018-CC-2091
    Supreme Court of Louisiana.
    January 7, 2019
    Denied.
   JOHNSON, C.J., recused.

HUGHES, J., would grant.

GENOVESE, J., would grant.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Dondi TYLER
    NO. 2018-KK-1707
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    IN RE: JUDICIARY COMMISSION NO. 18-187
    NO. 2018-O-1773
    Supreme Court of Louisiana.
    January 8, 2019
    Leave to appeal denied.


text:
    Kayla ARCENEAUX v. LAFAYETTE GENERAL MEDICAL CENTER, et al.
    NO. 2018-C-0951
    Supreme Court of Louisiana.
    January 8, 2019
    Reconsideration denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE EX REL. Glenn YOUNG v. STATE of Louisiana
    NO. 2017-KH-1958
    Supreme Court of Louisiana.
    January 8, 2019
    Denied. Relator has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Young v. State, 14-2603 (La. 10/30/15), 178 So.3d 135.
   JOHNSON, C.J., would grant.


text:
    Keithian GREENHOUSE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017-CI-2122
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Dajuan A. ALRIDGE
    NO. 2018-K-1046
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: WEIMER, J., recused.

text:
    LAFOURCHE REALTY COMPANY, INC. and The Allan Company v. ENTERGY LOUISIANA, INC., Entergy Louisiana Holdings, Inc., Entergy Services, Inc., Irby Construction Company, Irby Construction Company of Mississippi, Highlines Construction Company, Inc., and Frogco, Inc.
    NO. 2018-C-1516
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.

GENOVESE, J., would grant.


author: GENOVESE, J., would grant in part.

text:
    Phyllis Price THURSTON, Wife of, and John L. Thurston v. Louis J. PROVENZA, Richard J. Schunior, Laurie Bishop and Ochsner Clinic Foundation
    NO. 2018-CC-1539
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., would grant in part.


author: GENOVESE, J., would grant.

text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Billy GUIDROZ, Jr., et al.
    NO. 2018-CC-1580
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Timrek ANDREWS
    In re: Timrek Andrews
    NO. 2018-KK-1695
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    SUCCESSION OF Johnye Mae MADDEN
    NO. 2018-CC-1701
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Doris STOGNER v. OCHSNER CLINIC FOUNDATION
    NO. 2018-C-1723
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Eugene R. GUILBEAUX v. LUPO ENTERPRISES, L.L.C. and United Fire & Casualty Indemnity Company
    NO. 2018-CC-1738
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Timothy Deshun KELLY
    NO. 2018-KO-0988
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-034
    NO. 2018-OB-1784
    Supreme Court of Louisiana.
    January 8, 2019
    Leave to appeal denied.


text:
    Therese M. SEARS, Her Husband, Frank Sears Sr., and Her Daughter, Summer Sears v. Zachary AGURCIA, Mario Agurcia, Allstate Insurance Company, the State of Louisiana Through the Department of Safety and Corrections Office of State Police, and Louisiana State Trooper Sam Capaci
    NO. 2018-CC-1548
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. Timrek ANDREWS
    In re: Timrek Andrews
    NO. 2018-K-1694
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Clifford ABSHIRE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0048
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. DeMarcus Daniel JAMES
    NO. 2018-KO-0419
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    Linda MOUTON, et al. v. AAA COOPER TRANSPORTATION, et al.
    Cory Mouton v. AAA Cooper Transportation, et al.
    NO. 2018-C-1697
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STEMCOR USA INCORPORATED v. CIA SIDERURGICA DO PARA COSIPAR, et al.
    NO. 2018-CQ-1728
    Supreme Court of Louisiana.
    January 8, 2019
    Certification granted.


text:
    Donna Jean WILSON v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE D/B/A LSU Medical School of New Orleans
    NO. 2018-CC-1736
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Kevin DEUBLER
    NO. 2018-KO-0457
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Robert SINEGAL aka, Robert Senegal
    NO. 2018-K-0451
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant in part.


text:
    Dennis FORD v. LINCOLN PARISH FIRE PROTECTION DISTRICT NO. 1
    NO. 2018-C-1737
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.


text:
    STATE of Louisiana v. James LOLLIS
    NO. 2019-KK-0045
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   HUGHES, J., would grant.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Melba IRVIN
    NO. 2018 KA 0098
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Ricky L. Babin, District Attorney, Donaldsonville, LA, Attorneys for Appellee, State of Louisiana
    Donald D. Candell, Lindsey D. Manda, Assistant District Attorneys, Gonzales, LA, Christopher A. Aberle, Mandeville, LA, Attorney for Defendant-Appellant, Melba Irvin
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

The defendant, Melba Irvin, was charged by bill of information with four offenses: (Count 1) monetary instrument abuse, a violation of La. R.S. 14:72.2 ; (Count 2) bank fraud, a violation of La. R.S. 14:71.1 ; (Count 3) forgery, a violation of La. R.S. 14:72 ; and (Count 4) theft of the assets of a person who is aged, valued at $1,500.00 or more, a violation of La. R.S. 14:67.21 (prior to repeal by 2017 La. Acts, No. 281, § 3). Counts 1 and 3 were subsequently nol-prossed by the State. The defendant entered a plea of not guilty to the remaining two counts and, following a jury trial, was found not guilty on count 2 and guilty as charged on count 4. The defendant filed a motion for new trial, which was denied, and then she was sentenced to five years at hard labor. The district court suspended the sentence and ordered the defendant to serve five years on supervised probation and to pay a $1,000.00 fine, court costs, fees, and $31,650.00 in restitution. The defendant now appeals, challenging the sufficiency of the evidence presented by the State.

FACTS

In March 2015, Ascension Parish Sheriff's Office Detective Charles Naquin spoke with Nellie LeBlanc, the victim, who was in her late eighties and who informed him that the defendant had written multiple checks from the victim's account, most without her approval, in 2014 during the months of July through October. The victim informed the detective that she initially loaned money to the defendant to cover nursing home expenses incurred by the defendant's mother, who was the victim's best friend. The initial loan was in the amount of $4,100.00 and included a check for $2,500.00 dated July 14, 2014, and a check for $1,600.00 dated July 21, 2014, both withdrawn from the victim's Capital One Bank checking account. Checks in the amounts of $2,800.00, $7,850.00, $4,200.00, and $7,650.00 were also withdrawn from the victim's Capital One Bank account. The victim had another checking account with Regions Bank, and checks in the amounts of $3,500.00, $5,500.00, and $2,000.00 were withdrawn from that account. A cash withdrawal of $950.00 was also drawn from the Regions Bank account on December 31, 2014. According to the detective, the victim only recalled approving the first two checks, which she considered the amount loaned. She did not recall writing or signing any other checks, which totaled $34,450.00.

Detective Naquin continued his investigation by interviewing the defendant on June 3, 2015, and June 29, 2015. The defendant explained that all of the checks were part of a loan from the victim. She claimed that the victim had trouble filling out checks properly, so the defendant filled out the checks and the victim signed them. The defendant would drive to the victim's house, and the victim would come outside, sit inside of the defendant's vehicle, and sign the checks. According to the defendant, the victim did not want any family members to know about their arrangement. The detective testified that the defendant had several explanations for the $950.00 withdrawal from Regions Bank. At one point, the defendant claimed that the cash was used to pay for her mother's caretakers. She also claimed that the cash was payment for items that she sold to the victim, including a generator. The actual withdrawal slip stated that the withdrawal was for "home repairs." At the conclusion of the detective's investigation, the defendant was placed under arrest.

SUFFICIENCY OF THE EVIDENCE

In her sole assignment of error, the defendant argues that the evidence presented by the State was insufficient. Specifically, the defendant contends that the State failed to prove that her conduct involved the use or attempted use of a fraudulent scheme. According to the defendant, the victim voluntarily loaned all of the money withdrawn from her accounts. In support of this contention, the defendant claims that the victim's signature appears on each of the nine checks in question; the defendant made reimbursement payments; and days before trial, the victim acknowledged that she met the defendant to give her more checks than the two initial checks.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B) ; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statute 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

At the time of the offense, Louisiana Revised Statute 14:67.21(B)(3) provided that theft of the assets of a person who is aged is the "intentional use, consumption, conversion, management, or appropriation of the funds, assets, or property of a person who is aged ... through the execution or attempted execution of a fraudulent or deceitful scheme designed to benefit a person other than the person who is aged[.]" The statute defined a "[p]erson who is aged" as any person sixty years of age or older. La. R.S. 14:67.21(A)(2). Theft is a specific intent crime. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 195, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson , 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.

Detective Naquin spoke with the victim a second time, one week prior to trial. At that time, the victim stated that she "had given some of [the other checks]" to the defendant. However, the detective also testified that when the victim made that statement, "she seemed a little confused at the time." The detective further explained that the victim "seemed to be having trouble remembering specific things and conveying ideas" and that she was unable to "clearly recall all of the events surrounding the whole case."

The victim, who was ninety-one years old at the time of trial, testified that she loaned money to the defendant in order to help with the release of the defendant's mother, who was the victim's best friend, from a nursing home. She testified that she lent $800.00 to the defendant. The victim recalled reporting to detectives that she also gave checks for $2,500.00 and $1,600.00 to the defendant. The victim did not recall giving any other checks to the defendant or giving the defendant permission to withdraw money from her account. She acknowledged that her name was written in the signature lines of the checks, but stated that she did not remember signing the checks and that the signatures were not in her handwriting. The victim further testified that it was not her intent to loan such a substantial amount of money to the defendant. According to the victim, the defendant reimbursed her in the amount of $400.00 or probably "a little more than that," but that she was unsure of the total amount because when she returned from a hospital stay, she was unable to find the tablet on which she was recording the payments as the defendant gave them to her.

The victim's daughter, Monique LeBlanc, testified that she lives with the victim and knows the defendant. LeBlanc testified that she overheard the defendant tell the victim that the defendant was borrowing money, she just did not tell the victim that she was taking it from the victim's account. LeBlanc also testified that the defendant told her that she did not take as much money as was reported.

Laura Patureau testified that the victim contacted her in 2014 and stated she was having financial problems with the defendant. According to Patureau's testimony, the victim was aware of four checks written to the defendant, but not any others. The victim also told her that the defendant had reimbursed her $800.00. Patureau testified that she spoke to the defendant and that the defendant admitted to her that she withdrew approximately $40,000.00 from the victim's account.

The defendant testified that she "borrowed" $34,450.00 dollars from the victim between July 2014 and October 2014, but that she reimbursed the victim $11,000.00. The defendant agreed that she owed the victim $23,450.00. According to her testimony, she first asked the victim for a loan in order to get her mother out of a nursing home and to pay an attorney for her mother's interdiction proceeding. The defendant also testified that she needed money to pay sitters for her mother and to maintain two households, hers and that of her mother. The defendant explained that she was selling land and planned to reimburse the victim out of the proceeds from the sale of her property. After she received $32,000.00 from the sale of her property, she reimbursed the victim $8,000.00.

The defendant's son, Adam Irvin, testified that he signed a "receipt" showing that his mother paid the $8,000.00 to the victim on January 16, 2015, as well as three other payments, for a total of $11,000.00. However, Irvin testified that he only witnessed the $8,000.00 payment and one of the "other" payments, which was for $600.00. The receipt also bears the victim's name and that of Melanie Darville, who is a cousin of the defendant's son. Darville did not testify at trial.

The defendant acknowledged that when she spoke to Detective Naquin about this case prior to trial, she did not remember if she mentioned the receipt. Explaining the $950.00 withdrawal from Regions Bank, the defendant testified that the withdrawal was payment for a generator that she sold to the victim. The defendant confirmed that in 2016, she purchased a new Cadillac SUV, but claimed that she did not use any funds from the victim for the purchase. At the conclusion of her testimony, the defendant explained that she did not participate in the District Attorney Probation Program because she disagreed with her probation officer about the amount of restitution owed. The defendant's former probation officer, Jody Simmons, confirmed that in order for the defendant to participate in the District Attorney Probation Program, she had to agree to the amount of restitution. According to Simmons, the defendant did not present any documentation confirming that she paid $ 11,000.00 to the victim, and the victim told Simmons that she had not received any reimbursement.

The jury heard the testimony and viewed the evidence, and notwithstanding any inconsistencies, found the defendant guilty on count four. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). The defendant maintains that there was no theft because the victim loaned the money to her. The verdict returned in this case indicates that the jury rejected the defendant's theory of innocence. The evidence was sufficient to establish the "intentional use, consumption, conversion, management, or appropriation of the funds, assets, or property of a person who is aged ... through the execution or attempted execution of a fraudulent or deceitful scheme designed to benefit a person other than the person who is aged" as to count four. See La. R.S. 14:67.21(B)(3). The guilty verdict reflects the reasonable conclusion that the defendant cashed checks from the victim's accounts by means of fraudulent conduct and, in using that money for her personal benefit, deprived the victim of her money. After a thorough review of the record, we find that the evidence supports the jury's verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of theft of the assets of a person who is aged.

This assignment of error is without merit.

CONCLUSION

For the stated reasons, we find the evidence is sufficient to support the jury's verdict of guilty as to Count 4. Thus, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      The amount of restitution was set after a hearing.

      Testimony established that the victim suffered a stroke after the incident and her initial meeting with Detective Naquin, but prior to trial, and was "[s]till having problems" at the time of trial.