author: PER CURIAM

text:
    FLORIDA PENINSULA INSURANCE COMPANY, Appellant, v. Catherine NEWLIN and Eric Newlin, Appellees.
    Case No. 2D17-2519
    District Court of Appeal of Florida, Second District.
    Opinion filed June 12, 2019
    Scot E. Samis and Jonathan S. Tannen of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg; Fredric S. Zinober and Michelle S. Sabin of Zinober Diana, P.A., St. Petersburg, for Appellant.
    Mark A. Nation and Paul W. Pritchard of The Nation Law Firm, Longwood; Matthew R. Danahy and Howard W. Weber of Danahy & Murray, P.A., Tampa, for Appellees.
   PER CURIAM

Although Mr. Newlin's unexpected testimony at trial raises legitimate concern, in considering the record, the arguments made by the parties, and the applicable standard of review, we conclude that the trial court did not abuse its discretion in allowing Mr. Newlin's testimony or denying the Appellants' motion for a new trial. See Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 260 (Fla. 2018) ("A trial court's admission of evidence is reviewed for an abuse of discretion."); Campbell v. Griffith, 971 So. 2d 232, 235 (Fla. 2d DCA 2008) ("The appropriate standard of review applied to a trial court's denial of a motion for a new trial is whether the trial court abused its discretion."); Pena v. Vectour of Fla., Inc., 30 So. 3d 691, 692 (Fla. 1st DCA 2010) ("Trial court rulings on motions for new trial are given great deference on appeal. The possibility of reasonable disagreement does not constitute an abuse of discretion." (citations omitted)).

Affirmed.

SILBERMAN, J., Concurs.

LUCAS, J., Concurs with separate opinion.

ATKINSON, J., Concurs with separate opinion.

LUCAS, Judge, Concurring separately with opinion.

Florida Peninsula Insurance Company (Florida Peninsula) has appealed the denial of its motion for new trial following an adverse verdict and judgment in a sinkhole coverage dispute. I agree that the circuit court did not abuse its discretion in denying Florida Peninsula's motion. Because my colleagues and I are traveling slightly different paths to resolve this appeal, and because the arguments on appeal touch upon an important vein of the law in civil litigation, I write this opinion to explain how I view these issues and why I feel an affirmance is appropriate here.

I.

In 2010, Catherine and Eric Newlin submitted a sinkhole claim to their insurer, Florida Peninsula, when they discovered cracking in the walls around the back of their home. After receiving an engineer's report which concluded that the cracking was not due to covered sinkhole activity under the Newlins' policy, Florida Peninsula denied the Newlins' claim. In 2014, the Newlins filed a lawsuit against Florida Peninsula, alleging their insurer breached their insurance contract by denying their claim. The litigation proceeded in a fairly uneventful fashion. Discovery was exchanged. Depositions were taken. Each side retained experts. Reports were prepared.

One point during discovery that is germane to the appeal before us bears mentioning. Near the conclusion of Mr. Newlin's deposition, Florida Peninsula's counsel asked Mr. Newlin about the property he owned adjacent to the home. Mr. Newlin testified he had owned the adjacent lot for "around ten years," and then he answered the following questions, which were the only questions he was asked concerning this property:

Q. Do you have any plans to develop on the lot?
A. It's already developed. We did it last year. We cleared it. It's cleared and -
Q. Ready to be built?
A. We won't build a house on it.
Q. Was there already a house on the property?
A. No.
Q. So when you say cleared it, were you just clearing it of vegetation?
A. Cleared the vegetation and put a fence.
Q. Does the fence include - I mean, is it inclusive of the home you're living now, so you're basically extending your yard?
A. Yes.
....
Q. Have you had the lot next door tested for sinkhole activity?
A. Me personally, no. I don't know who did anything, but, no, me personally, no.

Not long after Mr. Newlin's deposition, discovery concluded and the case went to trial. Both sides agreed that the factual dispute for the jury to resolve was a narrow one. They have reiterated the same point in this appeal: the Newlins' claim revolved entirely around whether there was limestone "rock" underneath the Newlins' home. If there was, then the cracking in their house walls could be said to be the result of "sinkhole activity" as defined by section 627.706(2)(i), Florida Statutes (2010). If there were no such rocks, then there would be no coverage under the applicable policy provision.

The Newlins and Florida Peninsula called expert geologists and engineers who, over the course of six days, endeavored to persuade the jury about what lies beneath the Newlins' home. We need not delve deep into the depths of the experts' dispute over whether the crumpled pieces of material their boring samples uncovered were truly limestone "rocks" or simply "sediment with limestone fragments." The appeal before us largely concerns what Mr. Newlin had to say on the matter.

Early in the trial, one of the Newlins' experts, Norton Nettles, had shown the jury a piece of Caloosahatchee marl, a kind of limestone rock, during his testimony as an example of what, in his opinion, the rock could look like beneath the foundation of the Newlins' house. Mr. Nettles admitted he had obtained the exemplar he was using from a mine pit approximately 3 to 4 miles away from the Newlins' home. However, when Mr. Newlin testified the next day, his attorney asked him if he had ever seen any rocks on his property like the one their expert had brought to trial. Mr. Newlin responded he had:

I actually have seen rocks like that on my property, yes .... I'm - I'm kind of a country boy. Country boy always wants to have his own fish ponds so he can fish at home. I dug a pond on my - we own the adjoining property, and I dug a pond there.

Florida Peninsula's counsel promptly objected. Specifically, Florida Peninsula challenged the relevancy of Mr. Newlin's anticipated testimony and the fact that it was coming as a surprise (inasmuch as the plaintiffs had not previously disclosed that Mr. Newlin claimed to have ever found examples of limestone rock on his adjacent property). The circuit court overruled the objection and Mr. Newlin went on to explain how he had once dug a deep hole about 30 to 40 feet from his house and found the same kind of rocks his expert had been "talking about." He still had the rocks he had dug up; Mr. Newlin said they were "in front of my home around one of the trees." Upon hearing this testimony, Florida Peninsula did not request a continuance of the trial, nor did it ask for a recess to depose Mr. Newlin on this aspect of his trial testimony. Instead, Florida Peninsula proceeded right into cross-examination of Mr. Newlin:

Q. [T]his business about you buying the lot next door and digging a hole, this is the first time you've ever said anything like that in any sort of court proceeding or to any expert or anything like that, correct?
A. Correct.
....
Q. You never said anything to him [the neutral evaluator who had previously inspected the Newlins' house] about, "Let me show you this rock on my driveway," did you, or anything like that?
A. I never thought the relevance of it.
Q. Okay. But you never told - you never told Mr. Nettles about that either, I assume, correct?
A. Again, I didn't even know about - understand anything until I was sitting in the proceedings yesterday, when he was explaining this layer of rock that supposedly doesn't exist.
Q. So, again, this is the first time you've ever mentioned that to anybody, right?
A. Correct.

Florida Peninsula continued cross-examining Mr. Newlin about other aspects of his claim and testimony. When the court recessed for a lunch break, Florida Peninsula made a motion for mistrial, which the circuit court reserved ruling upon and eventually denied. After the parties rested their respective cases, the attorneys presented their closing statements which, not surprisingly, revolved largely around the various experts' conflicting conclusions. Mr. Newlin's testimony about the rocks he claimed to have found was mentioned once by his attorney during an extensive closing statement; Florida Peninsula did not mention the point at all in its closing.

The jury returned a verdict in favor of the Newlins, and Florida Peninsula filed a motion for new trial. The circuit court denied Florida Peninsula's motion and entered a judgment based upon the jury's verdict. Florida Peninsula now appeals that judgment.

II.

Just as the factual dispute at the trial below was discrete, so too is the issue in this appeal. Did the circuit court abuse its discretion when it overruled Florida Peninsula's objection and allowed Mr. Newlin's unexpected testimony about the rocks he unearthed? Or, relatedly, did the circuit court abuse its discretion when it denied Florida Peninsula's motion for new trial?

This court summarized the review we are supposed to undertake when considering an appeal from the denial of a motion for new trial in Campbell v. Griffith, 971 So. 2d 232, 235 (Fla. 2d DCA 2008) :

The appropriate standard of review applied to a trial court's denial of a motion for a new trial is whether the trial court abused its discretion. See Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). Brown articulates the test for determining whether the trial judge committed an abuse of discretion and provides that:
[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

In a similar vein, "[a] trial court's admission of evidence is reviewed for an abuse of discretion." Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 260 (Fla. 2018) (citing Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1265 (Fla. 2014) ).

Although this appeal came to us as a review of discretionary decisions, the parties have framed their arguments almost entirely around the applicability of one case, Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). So it seems appropriate to begin the analysis there.

A.

In Binger, the plaintiffs in a personal injury action had exchanged a pretrial witness list pursuant to a court order, which included several named witnesses along with a generic reference to "any and all necessary" impeachment or rebuttal witnesses. Id. at 1311. A month before trial was scheduled to commence, King Pest Control, the defendant, amended its witness list to disclose the identity of an accident reconstruction expert it intended to call at trial. Id. The plaintiffs took the deposition of this expert four days before trial-and then, at trial, called their own, previously undisclosed expert to impeach the testimony of King Pest Control's expert. Id. Noting conflicting opinions regarding the extent of pretrial disclosure of witnesses' names, the Fourth District reversed the Bingers' judgment and ordered a new trial. Id.

The conflict the Fourth District described concerned the tension between "well-settled" law in Florida that impeachment witnesses need not be disclosed prior to trial and the goal of eliminating surprise and gamesmanship embodied in the rules of civil procedure. Id. at 1311-12. In settling that conflict, the Binger court affirmed the Fourth District's decision to order a new trial and held:

Consistent with this rule [ Florida Rule of Civil Procedure 1.200(c) ], we now hold that a pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes.

Id. at 1312. The Binger court went on to explain that "a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order," but cautioned that the presiding trial judge ought not to exercise that discretion "blindly," but focus on the prejudice the use of the undisclosed witness would visit upon the objecting party. Id. at 1313-14. In addition to prejudice, Binger identified three other non-exclusive factors that may influence a trial court's discretionary decision of whether to allow an undisclosed witness to testify: (i) the objecting party's ability to cure the prejudice or that party's "independent knowledge of the existence of the witness"; (ii) whether calling the undisclosed witness was intentional, in bad faith, or in noncompliance with a pretrial order; and (iii) the possible disruption of the "orderly and efficient trial of the case." Id. at 1314. If after considering these and any other relevant factors, the trial judge concludes that the undisclosed witness would "not substantially endanger the fairness of the proceeding, " the witness should be allowed to testify. Id.

Binger observed that "[r]equiring reasonable compliance with a pretrial order directing witnesses' disclosure will help to eliminate surprise and avoid trial by 'ambush.' " Id. However, the court took care to set some boundaries for its decision, which are well worth noting. First, Binger did not set forth a categorical rule. It did not hold that a trial court must preclude an undisclosed witness from testifying when the factors the court described are established; rather, it held that a trial court "can" exclude the testimony of such a witness. To emphasize that point, the court remarked that the "ultimate control over witness disclosure problems" would be left "to the broad discretion of the trial judge," id. at 1312, and then it assured the local judiciary that the court "intentionally left room for the operation of local rules and customs within the broad parameters" of its decision, id. at 1314. Second, Binger expressly limited its holding to cases in which unknown, undisclosed witnesses are called to testify at trial in violation of a pretrial order. Twice, the court emphasized that limitation:

We do, however, limit our analysis to pretrial disclosure of witnesses. Although similar considerations may apply to the pretrial disclosure of nontestimonial evidence ... we are not prepared to say that other considerations may not be relevant in these situations.
....
Nothing in this concept of trial practice requires that one party disclose his case to the other in full. We are dealing only with an exchange of witnesses' names. It remains the obligation of each attorney to learn through interrogatories, depositions or any other means he selects, the nature of the testimony which will be offered and the extent to which he intends to meet or deal with it at trial.

Id. at 1312 n.5, 1313 n.7.

Now if the reader knew nothing else about Binger, he or she might pause here to wonder what the case at bar has to do with Binger and why the parties' arguments were so focused upon this holding. After all, Mr. Newlin was a party plaintiff and had been properly disclosed (and deposed) as a pretrial witness. Indeed, his is the second name listed in the plaintiffs' witness list. The "failure" to disclose Mr. Newlin's recollection of finding rocks on an adjoining piece of property would not seem to implicate Binger whatsoever. Cf. Southstar Equity, LLC v. Chau, 998 So. 2d 625, 628-29 (Fla. 2d DCA 2008) (applying Binger and affirming trial court's exclusion of an unnamed, undisclosed defense witness who had been "discovered" on the evening of the seventh day of a premises liability trial).

The short answer to the reader's query is that the holding Binger announced (which spoke solely in terms of pretrial nondisclosure of witness names) as well as the explicit limiting admonitions the Binger court expressed in two separate parts of its opinion (that its holding was limited to situations where the name of a testifying witness had not been timely disclosed in violation of a pretrial order) have come to be thoroughly overlooked. The district courts of appeal have gradually extended Binger's holding beyond the limited circumstances the Binger court took the trouble-in multiple places-to express in its opinion. See, e.g., Doctors Co. v. Plummer, 210 So. 3d 711, 718 (Fla. 5th DCA 2017) (holding that trial court should have prohibited plaintiff's experts from testifying about an alternative cause of death in medical malpractice case that had not been pled and that had not been disclosed in discovery and observing that "[t]he Binger analysis has subsequently been applied to cases where an expert changes his or her opinion or givens a new opinion, which results in surprise and prejudice to the opposing party" (citing Perryman, M.D. v. Crawford, 968 So. 2d 83, 85-86 (Fla. 4th DCA 2007) )); Kellner v. David, 140 So. 3d 1042, 1046, 1049 (Fla. 5th DCA 2014) (affirming exclusion of plaintiff's previously undisclosed testimony about measurements of an accident scene he had taken after discovery had concluded, and characterizing Binger as "guidance for analyzing a trial court's exclusion of testimony that should have been disclosed pursuant to a pretrial order"); Clair v. Perry, 66 So. 3d 1078, 1080 (Fla. 4th DCA 2011) ("This court has held that 'allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery' presents the same kind of 'surprise in fact' and should be analyzed using the same factors discussed in Binger." (quoting Menard v. Univ. Radiation Oncology Assocs., LLP, 976 So. 2d 69, 72 (Fla. 4th DCA 2008) )); Dep't of Health and Rehab. Servs. v. J.B. by and through Spivak, 675 So. 2d 241, 244 (Fla. 4th DCA 1996) ("Although Binger dealt with the failure to disclose a witness, its principles have been applied where the presentation of a changed opinion is tantamount to permitting an undisclosed adverse witness to testify."); Smith v. Univ. Med. Ctr., Inc., 559 So. 2d 393, 396-97 (Fla. 1st DCA 1990) (reversing for new trial and remarking, "[t]he surprise introduction of the long-requested map during recross examination presented appellant with no opportunity to, in the words of Binger, 'cure the prejudice ' " (quoting Binger, 401 So. 2d at 1314 )).

The justification for extending Binger beyond its stated limits appears to have originated from the Fourth District's case of Office Depot, Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991). In Miller, the appellate court affirmed a trial court's decision to grant a new trial where the defendant's expert neurologist had "reversed his opinion" about causation of the plaintiff's disc herniation after he had already issued his report and been deposed. Id. at 587-88. The trial court noted that without "the surprise recantation" of this expert there would have been no evidence in the record to support the jury's defense verdict. Id. at 589. The Fourth District agreed and observed that Binger supported the trial court's decision to grant a new trial:

We agree with the trial court that the spirit and purpose of Rule 1.360(b) requires the disclosure of a substantial reversal of opinion such as occurred here, if a party intends to offer that changed opinion at trial. Parties who fail to make such disclosure do so at their peril, depending on the circumstances of the particular case. In this case, allowing the presentation of the changed opinion was tantamount to permitting an undisclosed adverse witness to testify as in Binger.

Id. at 590-91 (emphasis added).

Certainly, there is an intuitive appeal to likening undisclosed or radically altered expert testimony to an undisclosed witness. Expert discovery in civil litigation can be a highly technical and costly undertaking that necessarily entails extensive pretrial disclosure. It is not uncommon for lawyers and their experts to expend substantial time and resources poring over an adverse expert's report, testimony, prior publications, and, in some cases, even prior testimony from other lawsuits in order to adequately prepare for that expert's anticipated trial testimony. This kind of preparation is critical to effective advocacy when a case turns on a scientific or technical point. To allow an adverse expert to sidestep an opponent's preparation for his or her trial testimony could indeed be "tantamount to permitting an undisclosed adverse witness to testify." Id. at 591 ; see also Grau v. Branham, 626 So. 2d 1059, 1061 (Fla. 4th DCA 1993) (applying Binger factors and concluding that trial court abused its discretion in allowing changed testimony of two experts, observing that "once the trial starts ... [n]either side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party").

Our court appears to have followed the Fourth District up to this point. For example, in Semmer v. Johnson, 634 So. 2d 1123 (Fla. 2d DCA 1994), we held that a trial court should have granted a defendant's request for a continuance when a plaintiff and her expert were permitted to testify about additional lumps in the plaintiff's breast that she had found (after discovery had concluded) and that her testifying expert had confirmed (during trial). In so holding, we quoted the Fourth District's general pronouncement that "lawyers have a right to expect that once a trial commences, discovery and examinations must cease" and also included an unelaborated citation to Binger. Id. (quoting Grau, 626 So. 2d at 1061 ). Even here, though, we noted that "had the trial court afforded Semmer [the defendant] an opportunity to have his physician assess Cynthia's [the plaintiff] condition, or at least review the findings of Dr. Mandraccia's mid-trial examination, much of the prejudice occasioned by the surprise disclosure could have been avoided." Id. Our court has continued to cite Binger when considering the propriety of allowing or disallowing undisclosed expert testimony. See, e.g., Gaspar's Passage, LLC v. RaceTrac Petroleum, Inc., 243 So. 3d 492, 502 (Fla. 2d DCA 2018) ("But because the discovery issue was never properly noticed and because the trial court failed to consider whether RaceTrac would be prejudiced by the addition of the witnesses or by an expedited deposition of its own expert witness, the trial court denied Gaspar due process and abused its discretion."); State Farm Mut. Auto Ins. Co. v. Thorne, 110 So. 3d 66, 71 (Fla. 2d DCA 2013) (concluding trial court abused its discretion in limiting testimony of expert witness after late-filing amended expert witness list because Appellant "met its burden to show that it fulfilled the requirements that Binger outlined to effectively mitigate the late-filed disclosure of [the expert] and thereby curing any prejudice [Appellee] might encounter"); Moore v. Gillett, 96 So. 3d 933, 942-43 (Fla. 2d DCA 2012) (citing Binger and reversing new trial order that had been based upon expert's testimony); Louisville Scrap Material Co., Inc. v. Petroleum Packers, Inc., 566 So. 2d 277, 278 (Fla. 2d DCA 1990) (determining trial court abused its discretion in excluding expert testimony of expert whose name was disclosed at pretrial conference because adverse party was not prejudiced as it was able to depose expert witness prior to trial, and noting that "this is not a case where a party was taken by surprise regarding witness testimony, at the time of trial, or was not aware of what would be the subject matter of the testimony prior to trial"). But our court has never expressly embraced the expansion of Binger on either of the vectors Florida Peninsula urges in this appeal: that is, we have never applied Binger's factors as a substantive test for the admissibility of evidence or for motions for new trial; nor have we ever held that Binger must be applied beyond the contexts of undisclosed witnesses or undisclosed expert testimony.

I am not inclined to take that leap today. I explain why below.

B.

Florida Peninsula maintains that Mr. Newlin's testimony was a "textbook Binger violation." Which is a curious way of referring to Binger, since, again, Binger did not purport to set forth a categorical rule of admissibility that could be "violated." But it must be allowed that a few courts have, on occasion, effectively treated surprise evidence in a civil trial as if its admissibility turned on Binger's application. Thus, Florida Peninsula's argument that "undisclosed documents and witness testimony must be examined under the factors set forth in Binger to determine whether they are admissible" is not at all a specious one. Some courts have seemingly construed the " Binger factors" as a legal test for admissibility instead of as non-exclusive guiding principles of discretion. See, e.g., Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So. 3d 1230, 1233 (Fla. 1st DCA 2009) (identifying the Binger factors as "the test that trial courts should apply in determining whether undisclosed testimony should be excluded as prejudicial"); Menard, 976 So. 2d at 71-72, 75 (reversing judgment where medical provider's testifying doctor took a position contrary to that of the medical provider's corporate representative at deposition and observing that "allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery slants the field of justice to give unfair advantage to the party making such a change"); Gouveia v. Phillips, 823 So. 2d 215, 222 (Fla. 4th DCA 2002) ("As Binger and the cases cited above make clear, the test for exclusion of evidence for non-disclosure during pretrial discovery is whether the opposing party was prejudiced in his preparations for trial.").

1.

Applying Binger as if it were an immutable rule of evidentiary admission, however, is problematic, both conceptually and pragmatically. First, as covered in part II(A), Binger did not announce a substantive evidentiary rule; it simply fashioned guiding questions for a trial court to consider when exercising its discretion when a party attempts to call a previously undisclosed witness. One cannot even glean the kind of forceful application Florida Peninsula urges from Binger's dicta. In the district courts of appeal, the only rationale that has ever been proffered for any extension of Binger has been to liken undisclosed testimony or evidence as "tantamount" to an undisclosed witness. Florida Peninsula makes many claims in this appeal; but it does not go so far as to suggest that Mr. Newlin's suddenly remembered limestone rocks was the equivalent of not listing Mr. Newlin as a testifying witness.

Second, treating Binger like a de facto rule of evidence robs the trial court of the very discretion that Binger and Florida law have long affirmed. The decision to admit or exclude evidence is generally a discretionary one, subject to the established rules of evidence. See Kirkman v. State, 233 So. 3d 456, 467 (Fla. 2018) ("A trial court's determination that evidence is admissible will not be disturbed unless the trial court abused its discretion." (citing McGirth v. State, 48 So. 3d 777, 786 (Fla. 2010) )); Ray v. State, 755 So. 2d 604, 610 (Fla. 2010) ("Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion." (citing Alston v. State, 723 So. 2d 148, 156 (Fla. 1998) )); Hinojosa v. State, 857 So. 2d 308, 309 (Fla. 2d DCA 2003) ("A trial court has wide discretion in areas concerning the admissibility of evidence, and such rulings will not be disturbed absent an abuse of discretion." (citing Welty v. State, 402 So. 2d 1159, 1162-63 (Fla. 1981) )). When evidence is otherwise admissible but arguably undisclosed in violation of a pretrial order, the trial judge is faced with a decision concerning the enforcement of a pretrial order, which is also a discretionary judgment call. See Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla. 2018) ("A trial court's enforcement of its own pretrial order is reviewed for abuse of discretion, and reversal is appropriate only when the affected party can clearly show the abuse resulted in unfair prejudice." (citing Binger, 401 So. 2d at 1313 )). On some occasions, the revelation of unanticipated or undisclosed evidence might merit a short continuance or a recess to allow an adverse party to depose a testifying witness or explore the substance of the new evidence, yet another exercise of judicial discretion. See Fasig v. Fasig, 830 So. 2d 839, 842 (Fla. 2d DCA 2002) (observing that the standard of review for the denial of a motion for continuance is abuse of discretion and that "[t]o reverse the trial court's denial of a motion for continuance under normal circumstances, this court must find a 'clear showing of a palpable abuse of this judicial discretion' " (quoting Webb v. State, 433 So. 2d 496, 498 (Fla. 1983) )). What is left of a trial judge's "discretion" on any of these grounds if an appellate court is going to review, de novo, Binger's discretion-guiding factors as if they were a substantive rule of admissibility? Cf. Olesky ex rel. Estate of Olesky v. Stapleton, 123 So. 3d 592, 594 (Fla. 2d DCA 2013) (explaining that a trial court's discretion to admit or exclude evidence is limited by the evidence code and applicable case law; "[a] court's erroneous interpretation of these authorities is subject to de novo review" (quoting Sottilaro v. Figueroa, 86 So. 3d 505, 507 (Fla. 2d DCA 2012) )). The only answer that presents itself is one that distorts the notion of "discretion" into something so crimped it hardly resembles the word anymore.

Third, it is not at all uncommon for witnesses-sometimes even party litigants-to misremember, or expound upon, or forget, or invent, or embellish points and details that may have been covered in a prior deposition. A jury trial is hardly a scripted affair. In many instances where a witness has said something unexpected, cross-examination on that point will be adequate to keep the finder of fact properly oriented in the search for truth. As the Florida Supreme Court has observed, "the crucible of cross-examination is well-suited for gleaning meritorious from non-meritorious claims." Eppler v. Tarmac Am., Inc., 752 So. 2d 592, 595-96 (Fla. 2000) ; see also Burns v. Freund, 49 So. 2d 592, 595 (Fla. 1950) ("The purpose of the cross-examination is to test the truth of witness, to sift, modify, or explain what has been said, to develop new or old facts in a view favorable to the cross-examiner, or even to discredit the witness."); Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008) ("[A]llegations of inconsistency, nondisclosure, and even falseness, are best resolved by allowing the parties to bring them to the jury's attention through cross-examination or impeachment ...."). Applying Binger as an evidentiary rule (rather than as a guide to discretion) relegates the "powerful instrument" of cross-examination to an afterthought.

Finally, I would note that treating a " Binger violation" as a sept of admissibility in civil proceedings could conflict with Florida Rule of Civil Procedure 1.280(f), which states that "a party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired." The Binger court reminded the Bench and Bar of this point: "There is no continuing duty of disclosure under Florida's Rules of Civil Procedure, as there is under our criminal rules." Binger, 401 So. 2d at 1312 n.4. It could also lead to a markedly different form of civil trial practice-one that calls into question the finality of trials. Fla. Power Corp. v. Garcia, 780 So. 2d 34, 44 (Fla. 2001) ("The doctrine of decisional finality provides that there must be a 'terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein.' " (quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So. 2d 679, 681 (Fla. 1979) )); Moorman v. Am. Safety Equip., 594 So. 2d 795, 799 (Fla. 4th DCA 1992) (noting "the societal interest in furnishing only a single occasion for the trial of civil disputes"). To be sure, preventing "surprise, trickery, bluff, and legal gymnastics" is a laudable goal of civil discovery, see Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 111 (Fla. 1970), but we must take care not to confuse the stated purpose for civil discovery rules (to prevent surprises at trials) as if that goal were the very pronouncement of a substantive law (there shall be no surprises at trials). Otherwise, we may find a greater number of trials wind up as dress-rehearsals whenever a witness testifies "off script" from his or her deposition.

Shifting the focus to Florida Peninsula's motion for new trial amplifies these concerns. Because even if it could be said that Mr. Newlin's testimony was improperly admitted, the issue of whether improper evidence merits a new trial has long been held to be a decision uniquely suited to the presiding trial judge's discretion. See Van v. Schmidt, 122 So. 3d 243, 253 (Fla. 2013) ("Once the trial court fulfills its functions in evaluating the motion for a new trial, this Court has emphasized that the highly deferential abuse of discretion standard applies on appellate review, because of the trial court's favored vantage point." (citing E.R. Squibb & Sons, Inc. v. Farnes, 697 So. 2d 825, 826 (Fla. 1997) )); Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145, 146 (Fla. 1980) ("The trial judge is granted this discretionary power because it is impossible to establish a strict rule of law for every conceivable situation which could arise in the course of a trial."). That is so because these are matters that trial courts can consider from a far superior vantage than what a reviewing appellate court may perceive from a cold record.

2.

All of this is to say that the principles the trial courts must balance when undisclosed testimony comes before a jury are variable and highly contextual. They do not lend themselves to bright-line factorial resolution. If they did, the Binger court would not have needed to repeatedly emphasize the role of the trial court's discretion in making these decisions. I write today because I am concerned with preserving discretion where discretion has been given. I am not suggesting that ambush tactics or trickery in the presentation of evidence should be countenanced in civil trials. That is a matter for the presiding trial judge to thoughtfully consider in his or her discretion. If, in the reasonable exercise of that discretion, the trial court determines that cross-examination of the unanticipated testimony remains a suitable tool to challenge the altered or unremembered testimony in a trial, an appellate court should be hesitant to second-guess that assessment. See Klose v. Coastal Emergency Servs. of Ft. Lauderdale, Inc., 673 So. 2d 81, 84 (Fla. 4th DCA 1996) ("[D]ecisions made by the trial court addressing the admissibility of evidence, the scope of examination of witnesses, or the appropriate subjects of inquiry in cross-examining witnesses are within the trial court's sound discretion."); S. End Imp. Group, Inc. By & Through Bank of N.Y. v. Mulliken, 602 So. 2d 1327, 1333 (Fla. 4th DCA 1992) (finding no error in trial court allowing expert to testify "given the broad discretion granted the trial court under Binger"); see also Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So. 2d 608, 617 (Fla. 3d DCA 2008) (affirming trial court's denial of new trial, noting that "the trial court gave HOI the opportunity to cure whatever prejudice might have resulted from the [surprise] testimony"). If the presiding trial judge reasonably determines that a continuance will assuage the harm from undisclosed evidence, we should not cabin that discretion by mechanically applying factors from a discretionary test as if they were a rule of evidence.

Returning, then, to what was the analytic point of origin for Binger and its progeny, I can only review the reasonableness of the trial judge's discretionary decision in the case at bar. Having performed that review, I cannot say that no reasonable trial judge would have allowed Mr. Newlin's testimony or that no reasonable jurist would have denied Florida Peninsula's motion for new trial, not on the record before us. My colleagues and I have no way of knowing how Mr. Newlin's testimony about finding rocks in a hole came across at trial, how it was perceived, what effect it could be said to have had on the jury. The trial court watched it happen. To the extent this testimony should have been disclosed before trial-a point I do not necessarily accept-the impact of its admission is one that only the presiding trial judge was in a position to gauge.

III.

In sum, I read Binger to have meant what it said: that "ultimate control over witness disclosure problems" is left "to the broad discretion of the trial judge." Binger, 401 So. 2d at 1312. Neither Binger nor any case from our court construing Binger has purported to supplant the role of discretion that underlies the inquiry of what to do when surprise testimony arises in a civil trial. Thus, the Binger holding is not a mechanical, four-part test that mandates exclusion of previously undisclosed evidence or a new trial whenever that evidence is presented to a jury. That is not how discretion works.

The law vests our colleagues in the circuit and county courts with broad discretion to prevent "evidentiary ambushes" in trials, and mitigate the harm if they occur. The role of our court is to review-not substitute our judgment for-these kind of discretionary decisions. Cf. Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959) (explaining the scope of appellate review regarding a motion for new trial, noting "[i]nasmuch as such motions are granted in the exercise of a sound, broad discretion the ruling should not be disturbed in the absence of a clear showing that it has been abused"); Kelley v. Schmidt, 613 So. 2d 918, 922 (Fla. 5th DCA 1993) (Goshorn, C.J., dissenting) ("We, as appellate judges, should not look at the cold record and substitute our subjective opinions of what we might have done if we were the trial judge, for the opinions of the judge who has an obligation to adjudicate the cases on his or her docket in an orderly and timely manner."). For that reason, I believe affirmance is appropriate.

ATKINSON, Judge, Concurring separately with opinion.

I concur with our majority opinion but write separately because I would not foreclose the possibility that the Binger analysis could be applied "beyond the contexts of undisclosed witnesses or undisclosed expert testimony." See Lucas, J., concurring, supra Section II.A. This court has already expanded the application of Binger beyond its original context of undisclosed expert witnesses. See Moore, 96 So. 3d at 941-43 (applying the Binger analysis to new opinion testimony from a disclosed expert witness); Semmer, 634 So. 2d at 1123-24 (citing Binger and holding that the trial court erred in allowing introduction of undisclosed testimony from a disclosed expert witness without granting a continuance). And other courts have already applied Binger to surprise fact witness testimony and surprise nontestimonial evidence under circumstances that are tantamount to the surprise at issue in Binger-the calling of an undisclosed expert witness at trial. See, e.g., Menard, 976 So. 2d at 74 ("We see no reason why the requirement of pretrial disclosure for a change in testimony should be any different for historical fact witnesses."); Smith, 559 So. 2d at 396-97 (applying Binger to the surprise introduction of a map).

Withheld testimony, opinion or fact, in the face of a requirement that it should have been disclosed prior to trial is tantamount to the problem addressed by Binger. Cf. Dep't of Health & Rehab. Servs. v. J.B., 675 So. 2d 241, 244 (Fla. 4th DCA 1996) ("Although Binger dealt with the failure to disclose a witness, its principles have been applied where the presentation of a changed opinion is tantamount to permitting an undisclosed adverse witness to testify."); Menard, 976 So. 2d at 73 ("[I]n some respects" a change in "historical fact" testimony "is even more significant" than "a change in an expert's opinion": "It is conceivable that, given new information, an expert may honestly change an opinion. But historical fact is not-or should not be-mutable in that way.").

Judge Lucas expresses understandable concern that if this court should explicitly extend, "without elaboration," application of Binger from undisclosed expert testimony to other types of surprise testimony under the rationale that the latter are "tantamount" to the former, we would be guided by no limiting principle. However, such an extension need not be without explanation or limiting principle if a reviewing court asks the following question: To what in Binger is the surprise in this case tantamount?

Under Binger, "a trial judge's discretion in determining whether an unlisted witness can testify should be guided primarily by whether" the objecting party would suffer "prejudice," described to mean that "the objecting party might well have taken some action to protect himself had he timely notice." Binger, 401 So. 2d at 1311 (quoting King Pest Control v. Binger, 379 So. 2d 660, 663 (Fla 4th DCA 1980) ). Thus, if there was nothing of which the objecting party could have been notified, then there was no prejudice that the Binger analysis was intended to prevent. See id. at 1312 ("leav[ing] ultimate control over witness disclosure problems to the broad discretion of the trial judge and focus[ing] on prejudice in the preparation and trial of a lawsuit"). That is true of this case, where nothing indicates the plaintiff, much less his lawyers, was cognizant of the relevance of the rock he had discovered under his adjacent property until the proverbial light went on in his head during trial. In other words, if the nonobjecting party could not have done anything about the surprise ahead of time-if they did not fail to disclose something they should have, whether, e.g., in compliance with a pretrial order or in response to a discovery request-then it is not the type of surprise to which the Binger analysis applies. Cf. id. at 1314 ("Since the Bingers knew the name of King Pest Control's expert witness and the substance of his testimony approximately four days before the trial, they knew or reasonably might have known that that they would call their own expert as a witness. They knew, of course, who he was and what he would say." (emphasis added)); Doctors Co., 210 So. 3d at 717-18 (finding surprise testimony inadmissible under Binger where, "[p]rior to trial," the party "failed to disclose" her "intent to present" the testimony) (emphasis added); Kellner v. David, 140 So. 3d 1042, 1046, 1049 (Fla. 5th DCA 2014) (affirming exclusion of plaintiff's previously undisclosed testimony about measurements of an accident scene he had taken after discovery had concluded).

The Binger court limited "reviewing courts to reversals only in cases of a clear showing of abuse prejudicial to the affected parties." Binger, 401 So. 2d at 1313. Here, the surprise testimony did not cause prejudice as it was defined in Binger-elimination of the objecting party's opportunity to take "some action to protect himself" from the evidence of which he had no "timely notice"-because there was nothing of which plaintiff or plaintiff's counsel could have put the defendant on notice until such time as it was revealed at trial. See id. at 1311 (quoting Binger, 379 So. 2d at 663 ). There was no testimony given during discovery that was contradicted by the testimony sought to be excluded at trial. Indeed, there was nothing to indicate that plaintiff or plaintiff's counsel understood that the plaintiff had pertinent knowledge of the condition of subsurface soil within a relevant proximity to the insured house. There was no change in "the essential import of pretrial testimony ... without prior disclosure in discovery," because the plaintiff had not previously testified about his knowledge of what was under his property during discovery. See Menard, 976 So. 2d at 72. And there was no discovery request that should have elicited a truthful response from plaintiff regarding whether he had ever uncovered rocks under his adjacent property.

This is not to say defense counsel was deficient in questioning the plaintiff during deposition. After all, there was extensive expert testimony adduced on both sides of the central debate over whether what was under the plaintiff's house was the same as what was under the exemplar property approximately three to four miles away. As such, it would not be intuitive to suspect that, all this time, the plaintiff himself had intimate knowledge of the type of soil directly under his own property. However, just because it was surprising to hear at trial that the plaintiff did know something about what was under his property does not mean the situation was tantamount to what the holding in Binger aimed to prevent. See, e.g., Clair, 66 So. 3d at 1080 ("This court has held that 'allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery' presents the same kind of 'surprise in fact' and should be analyzed using the same factors discussed in Binger." (quoting Menard, 976 So. 2d at 72 )); cf. Menard, 976 So. 2d at 74 n.3 (limiting its holding by explaining it would not apply to "a bona fide change by a fact witness as to past memory" such as "having one's memory honestly refreshed" or "a real gap in memory later filled by spontaneous recollection").

Binger did not set forth a rule to eliminate any and all surprise during trial. Rather, Binger addressed preventable surprise-the type of surprise that could have been avoided by the party who stands to benefit from it. See Menard, 976 So. 2d at 74 (lamenting that the "orderly use of discovery by [one party] to discover the other party's case came to nothing" when the other party was allowed "to wait until after trial started to change a key piece of evidence");

Grau v. Branham, 626 So. 2d 1059, 1061 (Fla. 4th DCA 1993) (applying Binger factors to changed testimony of two experts and observing that "once the trial starts ... [n]either side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party"). Despite the dramatic nature of plaintiff's surprise testimony and its potentially deleterious effect on the defendant's case, there is nothing in the record to indicate that it could have been prevented.

      In its sole issue raised on appeal, Florida Peninsula argues that reversal is warranted under Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), and its progeny because of Mr. Newlin's aforementioned testimony and because of an unexpected use of a diagram by one of the Newlins' experts during trial. Florida Peninsula's argument about the effect of this diagram's use is without merit. In the interest of brevity, I have confined my analysis in this opinion to Mr. Newlin's testimony.

      In particular, the Binger court's holding focused on Florida Rule of Civil Procedure 1.200(c), which provides that a trial court's pretrial order "shall control the subsequent course of the action unless modified at the trial to prevent injustice."

      Perhaps the limits the Binger court tried to fashion were doomed by their placement within the Binger opinion. They were tucked away in the footnotes. Cf. Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647, 649 (1999) ("Many legalists insist that footnotes are part of the opinion and entitled to full faith and credit; others insist that they are just footnotes."); Mark E. Steiner, Without Precedent: Footnotes in Judicial Opinions, 12 App. Advoc. 3, 6 (1999) ("Things that are important appear in the text; things that are not important appear in footnotes.").

      On one occasion, our court remarked that the Department of Transportation's use of an undisclosed, unauthenticated letter to "impeach" a landowner's testimony in an eminent domain action constituted "the ambush method of civil litigation" and included a citation to Binger. See Claussen v. State, Dep't of Transp., 750 So. 2d 79, 82 (Fla. 2d DCA 1999). The observation, along with the citation, could properly be construed as dicta since we had already concluded that the letter should not have been admitted as a matter of substantive evidence law. On another occasion, in a footnote, we cited Binger first in a string citation of cases for the following proposition: "The trial court refused to admit the checks on the grounds of authenticity and because the checks were not revealed at the pretrial conference. This evidentiary ruling was within the trial court's discretion." See Zaleznik v. Gulf Coast Roofing Co., Inc., 576 So. 2d 776, 778 n.1 (Fla. 2d DCA 1991).

      Again, our court has accepted that rationale in cases that involved undisclosed expert testimony. Even on its own terms, we should be cautious about any further extension on this basis because simply construing a different condition as "tantamount" to a preceding one, without elaboration, is an enterprise that invites no discernible limiting principle. It can also be a hard habit to break, as the Fourth District's case law, following its Miller decision, has perhaps illustrated. See., e.g., Menard, 976 So. 2d at 73 ("Obviously the testimony permitted in this case does not involve a change in an expert's opinion. But in some respects, it is even more significant because it involves historical fact: who said what; what did the parties agree.").

      See State v. Eddon, 8 Wash. 292, 36 P. 139, 142 (1894) ("It is the experience of every court and every lawyer that cross-examination is the most powerful instrument known to the law in eliciting truth or in discovering error in statements made in chief, whether that error arise from mistaken judgment and careless observation and expression, or from a corrupt desire and intention to pervert the truth.").

      Florida Peninsula's term here (perhaps intentionally) alliterates to the "Brady violation" found in criminal law. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). Florida Rule of Criminal Procedure 3.220(b)(4), which imposes a duty on the part of the State to supplement material, exculpatory discovery to an accused defendant "was no doubt strongly influenced by the United States Supreme Court's decision in Brady." See State v. Hall, 509 So. 2d 1093, 1096 (Fla. 1987) ; accord Binger, 401 So. 2d at 1312 n. 4 ("There is no continuing duty of disclosure under Florida's Rules of Civil Procedure, as there is under our criminal rules.").

      If I were called upon to apply Binger's factors as decisive of the appeal before us, I would still affirm the judgment below. In a case that both parties have described as a "battle of experts" concerning the technical composition of soil underneath a house, the "prejudice" of Mr. Newlin stating he once found some rocks like the one his expert had been showing when he dug a pit on an adjoining property rests on the assumption that the persuasive force of Mr. Newlin's testimony was powerful indeed (an assessment which, of course, we cannot make on this record). Florida Peninsula's counsel did not request a continuance or a recess after hearing Mr. Newlin's unearthed limestone rock testimony, from which one could reasonably infer that it was a point Florida Peninsula anticipated being able to sufficiently rebut through cross-examination. As to the second factor, Florida Peninsula's ability to cure its purported prejudice or its independent knowledge of this evidence, I would point out that Mr. Newlin was never asked in his deposition or in an interrogatory about what connection, if any, his adjoining land had to his coverage claim. That is a simple question and, had it been asked, would have pertained directly to the subject of his "surprise" testimony. Cf. Binger, 401 So. 2d at 1313 n.7 ("Nothing in this concept of trial practice requires that one party disclose his case to the other in full. It remains the obligation of each attorney to learn through interrogatories, depositions or any other means he selects, the nature of the testimony which will be offered and the extent to which he intends to meet or deal with it at trial."). Third, there has been no argument that Mr. Newlin's testimony was an intentional breach of the trial court's pretrial order or that it came about from bad faith. And finally, there is no argument that Mr. Newlin's testimony disrupted the orderly and efficient trial of the case, which, again, Florida Peninsula did not ask to continue once the testimony was elicited.


source: Caselaw Access Project

author: Winokur, J.

license: Public Domain

text:
    William H. FLETCHER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1867
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Ashley Moody, Attorney General, and Steve Edward Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Winokur, J.

William H. Fletcher seeks a writ of prohibition, claiming that the trial court erred in denying him immunity from prosecution under section 776.032, Florida Statutes. We grant the petition.

I.

Fletcher was charged with one count of aggravated battery with a firearm, alleging that he shot the victim, Randy Parker, in the leg. Fletcher moved to dismiss the charge, asserting immunity from prosecution pursuant to section 776.032, Florida Statutes, the "Stand Your Ground" law.

During the immunity hearing, Fletcher, a bail bondsman with a concealed weapons permit, testified that the shooting constituted justifiable use of force. Fletcher testified that he and his brother had driven to Parker's home out of concern for their sister who was in a troubled relationship with Parker. Fletcher believed that Parker was violent and that Parker almost always carried a firearm on his person.

After arriving at Parker's home, Fletcher called 911 and walked to a nearby stop sign to inform police of the location. Fletcher then approached Parker's home and encountered his brother having a physical confrontation with Parker. Fletcher observed Parker reaching for his waistband. Fletcher brandished his firearm and warned Parker to stop. Parker made an aggressive move towards Fletcher's brother, causing Fletcher to fire a shot that struck Parker in his leg. After injuring Parker, Fletcher helped him back into his home. Fletcher then drove to the police station, waived his rights, and agreed to be interviewed.

Fletcher's sister testified that she was in an abusive relationship with Parker and that she wanted to leave Parker's home when her brothers arrived. Parker would not let her leave and confronted Fletcher's brother on the front lawn. Fletcher's sister also testified that she believed Parker was armed.

Parker and his mother, who both resided at the home where the shooting occurred, testified that Parker and Fletcher's sister were at home when someone knocked on the door, and when Parker answer it, Fletcher and his brother were standing outside. Parker testified that Fletcher's brother was confrontational with him and that when he saw Fletcher with a firearm, attempted to knock it out of his hand. Parker denied threatening to kill Fletcher's brother. Parker's mother also testified that Fletcher was behind Parker holding a gun to his head.

The trial court denied immunity. The court noted that the testimony of Parker and his mother conflicted with the testimony of Fletcher, his sister, and the 911 recordings. The court concluded that the 911 recording provided "the most credible recounting of the events" and, as a result, Fletcher was not present during the "initial scrum" between Parker and Fletcher's brother. The court also stated that it was "clear that [Fletcher] issued a warning before firing his weapon." The court credited Fletcher and his sister's testimony regarding Parker's "violent and threatening behavior." Moreover, the court found that Parker "had a loose fitting shirt that could have hidden a gun." Thus, the court concluded that "[t]he fact that [Parker] did not actually have a firearm is irrelevant to the issues here, as all that is required was a reasonable fear that such a weapon was present and was about to be used."

Even though the trial court found that Fletcher "appear[ed] to have a viable claim for immunity for his actions," it denied immunity because it determined that Fletcher was trespassing on Parker's property when the shooting occurred. As a result, Fletcher was not where he was legally allowed to be, and was therefore not entitled to Stand Your Ground immunity:

[Fletcher] and his brother were not invitees on that property, and had no right to remain therein. Even if the Court assumes they had a justification for trespassing on the property because they were concerned for their sister's safety, that justification would not excuse their trespass. They could have waited for the police to arrive before making contact at the house, and their concern for their sister's safety would not justify remaining on the property after she appeared at the door and her safety was confirmed. [Fletcher] and his brother Rashad had no right to be on the property at the time of the shooting, and were therefore engaged in criminal activity-a trespass-in a place where they had no right to be. They had an obligation to retreat, and could not simply stand their ground against a potential threat of deadly force. There is no right to immunity under such circumstances.

(citation omitted).

II.

This Court has recognized that a writ of prohibition may be sought to challenge a trial court's denial of immunity under Florida's Stand Your Ground law. Peterson v. State , 983 So. 2d 27 (Fla. 1st DCA 2008). A trial court's denial of pre-trial self-defense immunity involves a mixed standard of review. Hair v. State , 17 So. 3d 804, 805 (Fla. 1st DCA 2009). The trial court's factual findings must be supported by competent substantial evidence. Id. Legal conclusions, however, are reviewed de novo. Id.

Florida's Stand Your Ground law confers immunity from prosecution if an individual uses deadly force in accordance with section 776.012(2), Florida Statutes. § 776.032(1), Fla. Stat. Section 776.012(2), allows an individual to use or threaten to use deadly force "if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony." An individual has no duty to retreat and "has the right to stand his or her ground," but only "if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be." Id.

III.

At the outset, it is worth noting that the trial court discredited Parker's testimony, as well as the testimony of his mother, in favor of the testimony adduced from Fletcher and his sister because the latter testimony was corroborated by the 911 recordings. More importantly, the trial court found that Fletcher had objectively reasonable fear that Parker was about to use a firearm on his brother. The only reason the trial court denied immunity was its belief that the evidence showed that Fletcher was trespassing on Parker's property and therefore, not where he had a right to be. As a result, this Court's analysis is limited to whether there was competent, substantial evidence to support the trial court's finding that Fletcher was trespassing on Parker's property when the shooting occurred.

The only evidence adduced that indicated that Fletcher was trespassing at the time of the shooting came from the testimony of Parker and his mother. The trial court generally discredited their testimony. They both stated that Fletcher was with his brother when the physical altercation between Parker and Fletcher's brother began. This version of events is contradicted by the 911 recordings, which the trial court found supported Fletcher's testimony that he was away from the property when the altercation began. Parker's own testimony that Fletcher was in front of him during the incident also undermines his mother's testimony since she stated that Fletcher was behind Parker holding a gun to his head.

The State relies on Fletcher's testimony during cross-examination that he was not invited to Parker's property. Immediately after stating this, however, Fletcher testified that he was not on the property until he thought Parker was going to shoot his brother. Fletcher added that before this occurred he was on the street. Fletcher's testimony is also bolstered by the testimony of his accident reconstructionist expert witness, who opined that based on the location of the street sign relative to Parker's driveway, Fletcher was on the public sidewalk and approximately five feet away from Parker when the shooting occurred. Moreover, Parker's own testimony that Fletcher was approximately three to five feet away from him supports the expert testimony.

Most importantly, the trial court's order seems to conflate the actions of Fletcher and his brother as it relates to its finding that Fletcher was trespassing. Specifically, the order uses the word "they" in explaining why Fletcher was not allowed to be on the property:

Even if the Court assumes they had a justification for trespassing on the property because they were concerned for their sister's safety, .... [Fletcher] and his brother Rashad had no right to be on the property at the time of the shooting, and were therefore engaged in criminal activity-a trespass-in a place where they had no right to be. They had an obligation to retreat and could not simply stand their ground ....

(emphasis added).

While it is undisputed that Fletcher's brother was on Parker's property since he was the one who knocked on the door, Fletcher is not precluded from claiming immunity even if his brother had been trespassing. The trial court seems to have imputed the actions of Fletcher's brother onto Fletcher when it made its factual determinations. Because the record demonstrates that Fletcher was not on the property when he determined that his brother was in danger of death or great bodily harm, it was error to treat him as a trespasser.

IV.

The court found that Fletcher's use of deadly force was objectively reasonable under the circumstances. Thus, the only issue remaining is whether Fletcher had a duty to retreat because he was not where he was legally allowed to be. We find that the court erred in concluding that Fletcher was trespassing when he believed that his brother was in danger of death or great bodily harm. Accordingly, we find that Fletcher was entitled to immunity, grant Fletcher's petition, and quash the order below.

GRANTED .

Wolf and Jay, JJ., concur.

      In 2017, the Legislature amended the Stand Your Ground statute, putting the burden of proof on the State to prove that a defendant is not entitled to immunity by clear and convincing evidence. § 776.032(4), Fla. Stat. Since the incident here occurred prior to the statute's amendment, the State argues that this case is subject to the old burden requiring Fletcher to prove that he is entitled to immunity by a preponderance of the evidence. See Peterson , 983 So. 2d at 29. This Court, however, has held that the change in the burden of proof applies retroactively. Commander v. State , 246 So. 3d 1303, 1304 (Fla. 1st DCA 2018). Regardless, burden of proof is irrelevant here because the trial court explicitly ruled that "it need not reach the issue of whether the former [standard] or amended [standard] applies [because] [t]he result would be the same under either version of the statute."

      It is not necessarily clear to us that Fletcher's brother was actually trespassing on Parker's property when he began fighting with Parker. However, we do not address this question because Fletcher never raised it as a reason to support his immunity claim, either below or in his petition.

      To be clear, section 776.012(2) permits deadly force if the person reasonably believes that using such force is necessary to prevent imminent death or great bodily harm to another, but adds that "[a] person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be." In other words, a person who was not in a place where he had a right to be is still entitled to use deadly force in the defense of another, but has a duty to retreat. In the defense of another situation, it is unclear whether the person who uses deadly force, or the person who is facing death or great bodily harm, bears the duty to retreat. The court seemed to recognize this, when it concluded that "[t ]hey had an obligation to retreat." However, it seems nonsensical that a person who is not facing death or great bodily harm but is merely protecting someone who is facing such a threat has a duty to retreat. Because such a person can almost always retreat (as they are not facing death or great bodily harm) imposing this duty would gut the defense-of-another claim. While this seems to be an issue with the order below, we will not address it further because Fletcher never argued this claim.


author: PER CURIAM.

text:
    Aaron ROGERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-782
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019
    Aaron Rogers, Clermont, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, 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 August 30, 2018, judgment and sentence rendered in Case No. 2017-300370-CFDB in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, C.J., ORFINGER and COHEN, JJ., concur.


text:
    Aaron ROGERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-784
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019
    Aaron Rogers, Clermont, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, 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 August 30, 2018 judgment and sentence rendered in Case No. 2017-304677-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, WALLIS and SASSO, JJ., concur.


author: CASE, Associate Senior Judge.

text:
    Kunta Kinte HOLLEY, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, Appellee.
    Case No. 2D17-2407
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2019
    Debra J. Sutton of Sutton Law Firm, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tampa, for Appellee.
   CASE, Associate Senior Judge.

Kunta Kinte Holley appeals from a final administrative support order entered by the Department of Revenue, Child Support Enforcement Program. He argues, and the Department concedes, that the Department erred in computing his retroactive child support obligation. See § 61.30(17), Fla. Stat. (2017) (limiting the time period for recovery of retroactive child support to twenty-four months prior to filing the petition). The Department also acknowledges that it incorrectly used evidence related to Holley's current income to calculate his retroactive support obligation despite having information regarding his monthly income during the retroactive time period. See Salters v. Dep't of Revenue ex rel. Mobley, 32 So.3d 777, 778-79 (Fla. 2d DCA 2010) (stating that the Department must calculate the retroactive support due using income information in its possession from the retroactive time period). Therefore, we affirm Holley's current support obligation but reverse his retroactive support obligation and remand for recalculation. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

SALARIO and ATKINSON, JJ., Concur.


text:
    Bradley Allen WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1204
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019
    Bradley Allen Williams, Indiantown, pro se.
    Ashley Moody, 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 January 31, 2019 order denying Petitioner's pro se motion for postconviction relief filed in Case No. 2012-CF-000349, Fifth Judicial Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, COHEN, and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    James L. KEENE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D19-776
    District Court of Appeal of Florida, First District.
    June 18, 2019
    James L. Keene, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

Because the proceeding below was a civil matter, the petition for belated appeal is denied. See Powell v. Fla. Dep't of Corrections , 727 So. 2d 1103 (Fla. 1st DCA 1999).

Roberts, Ray, and Winsor, JJ., concur.


text:
    Oscar Grey TURBERVILLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-1330
    District Court of Appeal of Florida, First District.
    June 18, 2019
    Oscar Grey Turberville, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is dismissed as untimely. See Fla. R. App. P. 9.141(c)(5)(A).

Rowe, Makar, and Kelsey, JJ., concur.


text:
    Jeremy LIFFICK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4087
    District Court of Appeal of Florida, First District.
    June 17, 2019
    Jeremy Liffick, pro se, Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Wetherell, and Makar, JJ., concur.


text:
    Ronald KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4684
    District Court of Appeal of Florida, First District.
    June 18, 2019
    Ronald Kirkland, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Hart v. State , 255 So. 3d 921 (Fla. 1st DCA 2018), petition for review pending , Fla. S. Ct. Case. No. SC18-1241; Davis v. State , 214 So. 3d 799 (Fla. 1st DCA 2017).

Wolf, Wetherell, and Makar, JJ., concur.


text:
    James FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-5199
    District Court of Appeal of Florida, First District.
    June 18, 2019
    James Frazier, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This is an appeal from the summary denial of Appellant's successive motion for postconviction relief. We affirm the summary denial of Appellant's inconsistent verdict claim. However, we reverse and remand for an evidentiary hearing on Appellant's newly discovered evidence claim. See Utile v. State , 235 So. 3d 1045, 1048 (Fla. 5th DCA 2018) ; Simpson v. State , 100 So. 3d 1258, 1260 (Fla. 4th DCA 2012) ; Coley v. State , 74 So. 3d 184, 185 (Fla. 2d DCA 2011).

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

Ray, Bilbrey, and Jay, JJ., concur.


text:
    Brent James SMITH-PICKFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2881
    District Court of Appeal of Florida, First District.
    June 20, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon review pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no error with Appellant's judgment or sentence, and affirm. We write only to correct a scrivener's error on Appellant's judgment. See Ashley v. State , 850 So.2d 1265, 1268 n. 3 (Fla. 2003) (defining a scrivener's error as a written clerical error that is not "the result of a judicial determination or error"). Appellant's written judgment reflects that attempted robbery armed with a firearm is a first-degree felony. However, attempted robbery armed with a firearm is a second-degree felony. See §§ 812.13(2)(a); 775.087(2); 777.04, Fla. Stat. (2018). On remand, the trial court shall correct the error.

Wolf, Wetherell, and Makar, JJ., concur.


text:
    Calvin L. POWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0333
    District Court of Appeal of Florida, First District.
    June 20, 2019
    Calvin L. Powell, pro se, Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Wetherell, and Makar, JJ., concur.


text:
    Thomas W. PICKERING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0359
    District Court of Appeal of Florida, First District.
    June 20, 2019
    Thomas W. Pickering, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Makar, and Kelsey, JJ., concur.


author: Per Curiam. Makar, J., dissenting.

text:
    Rick SWEARINGEN, individually and in his official capacity, and Florida Department of Law Enforcement, Petitioners, v. Christopher PRETZER, an individual; Mark L. Wood, an individual; Richard A. Barsky, an individual; Richard Chamnes, an individual, Edward Henry, an individual, Florida Carry, Inc., a Florida not-for-profit corporation; and U.S. Law Shield Legal Expense Insurance Corp., a Florida for-profit corporation, Respondents.
    No. 1D19-2053
    District Court of Appeal of Florida, First District.
    June 24, 2019
    Robert J. Sniffen and Jeffrey D. Slanker of Sniffen & Spellman, P.A., Tallahassee, for Petitioners.
    No appearance for Respondents.
   Per Curiam.

Petitioners having failed to demonstrate entitlement to either certiorari relief or prohibition relief, the petition for writ of certiorari and for writ of prohibition is dismissed.

Wolf, J., concurs; Wetherell, J., concurs in result with opinion; Makar, J., dissents with opinion.

Wetherell, J., concurring in result.

I concur in the dismissal of this case because the order challenged in the petition is properly reviewed by appeal under rule 9.130(a)(3)(B) and this case is duplicative of the earlier-filed and still-pending appeal filed by these same petitioners challenging the same order.

Makar, J., dissenting.

Because the Department's emergency petition establishes a basis for relief, I would require that a response be filed in opposition.


text:
    Rasean MARCELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4517
    District Court of Appeal of Florida, First District.
    June 20, 2019
    Rasean Marcell, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition for belated appeal is denied on the merits.

Rowe, Makar, and Kelsey, JJ., concur.


text:
    Donald FURTYS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3547
    District Court of Appeal of Florida, First District.
    July 3, 2019
    Donald Furtys, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Wetherell, and M.K. Thomas, JJ., concur.


text:
    IN RE: Cristine Y. VOELKEL
    NO. 2019-B-0480
    Supreme Court of Louisiana.
    May 20, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Christine Y. Voelkel, an attorney licensed to practice law in Louisiana, but currently on interim suspension for threat of harm to the public. In re: Voelkel , 19-0344 (La. 3/8/19), 265 So.3d 759.

FORMAL CHARGES

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 15-DB-031 and 16-DB-099. Respondent failed to answer the formal charges in 15-DB-031 but did file an answer in 16-DB-099. The matters were then considered by separate hearing committees.

Upon respondent's failure to answer the charges in 15-DB-031, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration. With respect to the charges in 16-DB-099, although respondent filed an answer, she failed to appear for the formal hearing.

In May 2018, the two sets of formal charges were consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

15-DB-031

On March 10, 2014, respondent incurred an overdraft in her client trust account in the amount of $ 1,325. By letter dated March 21, 2014, the ODC requested that respondent provide an explanation for the overdraft, along with six months of bank statements for the period prior to the overdraft and supporting documentation for the activity therein. Respondent received the correspondence on March 28, 2014. Nevertheless, she failed to respond. By letter dated August 14, 2014, the ODC made a second request for the information.

On August 18, 2014, the ODC received a response from respondent, in which she indicated that she was delayed in responding and unable to get the requested materials because of financial and emotional difficulties. Specifically, respondent indicated that she recently moved from her home and her office due to her separation from her spouse. Respondent also indicated that she had recently suffered a miscarriage. Regarding the overdraft, respondent explained that it was caused by the bank placing a hold on a deposit. She further stated that the account had a sufficient balance at the time the check was presented.

The ODC attempted to serve respondent with a subpoena to appear for a sworn statement and to produce the requested documents. However, the ODC's investigator was not able to locate her. Thereafter, respondent called the ODC, indicating she would waive service because she was homeless and would appear for the sworn statement on October 29, 2014. Thereafter, respondent failed to communicate or cooperate with the ODC.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons) and 8.1(c) (failure to cooperate with the ODC in its investigation).

Hearing Committee Report

After considering the ODC's deemed admitted submission in 15-DB-031, the hearing committee made factual findings consistent with the factual allegations in the formal charges that were deemed admitted and proven by clear and convincing evidence. Based on these findings, the committee determined that respondent violated Rules 1.15 and 8.1(c) of the Rules of Professional Conduct as alleged in the formal charges. The committee also determined that respondent violated Rules 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority) and 8.4(a) (violation of the Rules of Professional Conduct) even though the ODC did not charge her with same.

The committee determined that the overdraft of respondent's trust account was the result of an oversight and negligence and that there was no evidence of actual harm. The committee also determined that respondent knowingly and intentionally violated her duty to cooperate with the ODC's investigation.

The committee then noted that respondent indicated she was abandoned by her spouse, evicted from her home, homeless, and suffered a miscarriage. However, the committee found no evidence that these factors related to or caused the trust account overdraft or respondent's failure to cooperate. Nevertheless, the committee found respondent's separation from her spouse, homelessness, miscarriage, and the related emotional consequences to be mitigating factors. However, these mitigating factors may be interpreted as very good reasons why respondent is unfit to continue to practice law without some type of intervention, mentoring, or monitoring. In aggravation, the committee referenced respondent's bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, fully deferred, subject to a two-year period of probation with the following conditions:

1. Respondent shall submit to the ODC quarterly audits of her trust account performed by an ODC-approved CPA;
2. Respondent shall complete at least six hours of her mandatory continuing legal education requirements in the area of law practice management/client trust account management; and
3. Respondent must successfully complete the Louisiana State Bar Association's ("LSBA") Ethics School and Trust Accounting School.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

16-DB-099

Count I

On July 1, 2015, the ODC received notice from the clerk of the 22nd Judicial District Court that respondent filed several pleadings while she was ineligible to practice law. Respondent failed to cooperate with the ODC's investigation of the complaint.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment), 5.5 (engaging in the unauthorized practice of law), and 8.1(c).

Count II

In April 2013, Nicholas Harper hired respondent to represent him in a civil lawsuit against the City of Covington Police Department. Mr. Harper initially paid respondent $ 2,000, and the Louisiana Fraternal Order of Police paid respondent additional fees on Mr. Harper's behalf. In December 2015, respondent stopped communicating with Mr. Harper. Respondent then failed to cooperate with the ODC in its investigation of Mr. Harper's complaint.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 8.1(c).

In her answer to the formal charges, respondent indicated that, in December 2015, Mr. Harper told her he no longer wanted to proceed with the matter. She also indicated that she should have handled the end of the representation more formally by putting something in writing to Mr. Harper.

Count III

In June 2016, the ODC received notice of an overdraft in respondent's client trust account. In August 2016, the ODC received notice of a second overdraft in respondent's trust account. Respondent failed to cooperate with the ODC's investigation of the matter.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15, 8.1(c), and 8.4(a).

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found that the ODC's witness Barbara Pierpont, who works in the 22nd Judicial District Court clerk's office, testified that respondent filed three pleadings in June 2015 while she was ineligible to practice law. Ms. Pierpont also testified about her staff's frustration at a year-long inability to contact respondent for routine and necessary communications regarding pleadings and cases. In nearly every instance, the clerks were unable to reach respondent at addresses and/or telephone numbers provided. One such complaint came from the court's customer service counter, which could not reach respondent regarding files she had checked out and not returned for more than a year. In response to continued complaints, Ms. Pierpont consulted the LSBA website to get the most recent contact information for respondent. In doing so, she learned that respondent was ineligible and immediately conferred with the Louisiana Attorney Disciplinary Board for further guidance. In addition to this witness testimony, the ODC offered a certificate from the LSBA, which revealed that respondent was indeed ineligible from June 1, 2015 until August 3, 2015 for non-compliance with mandatory continuing legal education requirements and was again ineligible from September 9, 2015 until September 22, 2015 for non-payment of the disciplinary assessment and bar dues. The committee also found that no evidence was heard to substantiate or corroborate the charges in Count II relative to complainant Nicholas Harper. With respect to Count III, the committee found the ODC offered letters from Capital One Bank that included statements showing overdrafts on checks written on respondent's trust account on June 3, 2016 and June 13, 2016.

Based on these facts, the committee determined that respondent violated Rules 1.1(b), 1.1(c), 1.15. 5.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct. The committee also determined that there was insufficient evidence to prove respondent violated Rules 1.3 and 1.4 with respect to Count II because Mr. Harper did not testify at the hearing.

The committee then determined that respondent negligently violated duties owed to the legal profession. Her conduct did not cause actual harm but did have the potential to cause harm. The committee further determined that the baseline sanction in this matter is suspension. Regarding aggravating and mitigating factors, the committee noted only respondent's conduct in the pending formal charges in 15-DB-031 as an aggravating factor.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, with all but two months deferred. The committee also recommended that, prior to being reinstated to the practice of law, respondent be required to meet the following conditions:

1. Respondent shall submit to the ODC quarterly audits of her trust account performed by an ODC-approved CPA;
2. Respondent shall complete at least six hours of her mandatory continuing legal education requirements in the area of law practice management/client trust account management; and
3. Respondent must successfully complete the LSBA's Ethics School and Trust Accounting School.

The ODC filed an objection to the hearing committee's report, arguing that the recommended sanction was too lenient.

Disciplinary Board Recommendation

15-DB-031 and 16-DB-099

After reviewing the consolidated matters, the disciplinary board determined that, with respect to 15-DB-031, the factual allegations in the formal charges were deemed admitted and proven. The board also adopted the hearing committee's additional factual findings as they are supported by the record. With respect to 16-DB-099, the board determine that the committee's factual findings are not manifestly erroneous and are supported by the record. Thus, the board adopted same. However, unlike the committee, the board found sufficient evidence to prove respondent failed to cooperate with the ODC's investigation in Count II. Regarding Count III, the board also made an additional factual finding that an overdraft also occurred in respondent's trust account on August 1, 2016.

Based on these facts, the board agreed with the committee that respondent violated Rules 1.15 and 8.1(c) of the Rules of Professional Conduct with respect to 15-DB-031; however, unlike the committee, the board did not find a violation of Rules 8.1(b) and 8.4(a) because those rule violations were not alleged in the formal charges. With respect to 16-DB-099, the board agreed with the committee that respondent violated Rules 1.1(b), 1.1(c), 1.15, 5.5, 8.1(c), and 8.4(a) but not Rules 1.3 or 1.4.

The board then determined that respondent negligently, knowingly, and intentionally violated duties owed to her clients and the legal profession. Specifically, the trust account overdrafts were negligent, and respondent knowingly practiced law while ineligible to do so. Furthermore, her failure to cooperate with the ODC in its investigations was both knowing and intentional. The board agreed with the committee that the baseline sanction is suspension.

In aggravation, the board found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, deceptive practices during the disciplinary process, and substantial experience in the practice of law (admitted 2004). In mitigation, the board found an absence of a prior disciplinary record and personal or emotional problems.

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence.

In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

The evidence in the records of these consolidated matters supports a finding that respondent overdrew her client trust account on several occasions, practiced law while ineligible to do so, and failed to cooperate with the ODC in its investigations. As such, she has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

Respondent acted negligently in overdrawing her trust account. She acted knowingly in practicing law while ineligible to do so, and she acted knowingly, if not intentionally, in failing to cooperate with the ODC in its investigations. Her conduct violated duties owed to her clients and the legal profession. Respondent caused no actual harm, but the potential for harm was present. Under the ABA's Standards for Imposing Lawyer Sanctions , the applicable baseline sanction is suspension. The record supports the aggravating and mitigating factors found by the board.

Turning to the issue of an appropriate sanction, we take guidance from In re: Krake , 14-1760 (10/24/14), 149 So.3d 1223, wherein an attorney practiced law while ineligible to do so and failed to cooperate with the ODC's investigation. For this misconduct, we suspended the attorney from the practice of law for one year and one day. The case of In re: Johnson , 17-1011 (La. 9/6/17), 225 So.3d 1057, also provides guidance. In Johnson , an attorney negligently failed to timely remit funds owed to a client, failed to account for funds belonging to a client, allowed his client trust account to become overdrawn, and took cash withdrawals from his client trust account. For this misconduct, we imposed a fully deferred one year and one day suspension, subject to a two-year period of supervised probation with conditions.

In light of the above, we agree with the board that a one year and one day suspension is appropriate. This sanction will require respondent to apply for reinstatement and demonstrate to our satisfaction that she has remedied the problems that caused her misconduct. Accordingly, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Christine Y. Voelkel, Louisiana Bar Roll number 29469, be and she hereby is suspended from the practice of law for one year and one day. 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.

CRICHTON, J., concurs in part and dissents in part and assigns reasons.

CRICHTON, J., concurs in part and dissents in part and assigns reasons.

I agree with the per curiam that respondent has violated the Rules of Professional Conduct as charged. However, in my view, the respondent's conduct is worthy of a more hefty actual suspension from the practice of law.

      Respondent's interim suspension was not only based on the misconduct at issue here but also on several disciplinary complaints recently filed against her.


author: PER CURIAM:

text:
    STATE of Louisiana v. Armonta Daquon HADNOT
    No. 2018-KH-1409
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, applicant's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172. As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE of Louisiana v. Tracy WALKER
    No. 2018-KH-1653
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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