author: Taylor, J.

text:
    JBJ INVESTMENT OF SOUTH FLORIDA, INC., a Florida corporation, Appellant, v. SOUTHERN TITLE GROUP, INC., a Florida corporation, The Burgess Law Firm, P.A., a Florida professional corporation, and Frederick Burgess, an individual, Appellees.
    Nos. 4D16-1925 & 4D16-3974
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellant.
    Melinda S. Thornton and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for appellees.
   Taylor, J.

JBJ Investment of South Florida ("JBJ") appeals a final summary judgment entered in favor of Frederick Burgess, Esq., and the Burgess Law Firm, P.A., (collectively the "Burgess Defendants") on JBJ's claims for legal malpractice. The Burgess Defendants appeal the trial court's order denying their motion for attorney's fees pursuant to a proposal for settlement. We reverse the summary judgment in favor of the Burgess Defendants, rendering it unnecessary for us to reach the issue concerning validity of the proposal for settlement.

Facts

JBJ filed the underlying lawsuit against Southern Title for negligence and against the Burgess Defendants for legal malpractice. The gravamen of the claim against the Burgess Defendants is that they prepared a mortgage containing incorrect legal descriptions of properties that were to secure a loan made by JBJ. The summary judgment evidence established the following facts.

Incel Hernandez is the principal and sole employee of JBJ. One of JBJ's business activities is to lend money for real estate transactions. Luis Sotero, a personal friend of Mr. Hernandez, would refer borrowers to Mr. Hernandez. Mr. Sotero informed Mr. Hernandez of the opportunity to lend money to the Maslanka family.

In March 2011, JBJ agreed to loan $135,000 to the Maslanka family and its related family trusts. The loan was to be secured by a note and mortgage on five properties owned by the Maslanka family, including a commercial property in Osceola County known as the Modern Day Furniture Store. The Modern Day property was the most valuable of all the properties and was essential to JBJ's decision to make the loan.

The title agency handling the closing for the loan was Southern Title. JBJ decided to use Southern Title because one of its title agents, Ingrid Goenaga, was a friend of both Mr. Hernandez and Mr. Sotero.

Ms. Goenaga, who is not an attorney, performed title services and prepared customary documents in connection with the closing, such as the HUD statement and deeds. At some point, Ms. Goenaga was provided with the parcel identification numbers for the five properties that were to be used as collateral for the loan.

The summary judgment evidence is conflicting as to whether anyone on behalf of JBJ asked Ms. Goenaga to engage the services of a lawyer to work on the loan transaction. Ms. Goenaga testified that no agent or employee of JBJ specifically asked for a lawyer to work on the mortgage. By contrast, Mr. Hernandez testified that he told Ms. Goenaga he wanted an attorney to prepare and review all of the loan documents for accuracy.

In any event, it is undisputed that Ms. Goenaga hired the Burgess Defendants to prepare the note and mortgage. Mr. Hernandez gave his version of how Mr. Burgess became involved in the transaction: "I requested that I need an attorney. I requested that everything should be a hundred percent proof, and I told Southern Title that that's what I wanted and they are the ones who selected Burgess."

Ms. Goenaga testified that she sent the work to Mr. Burgess because she was a former employee of Mr. Burgess's law firm and they maintained a working relationship where he would engage her as a subcontractor to process his transactions. Ms. Goenaga explained that she would refer files to Mr. Burgess if "something legal" needed to be done, which in this case was preparing the mortgage and the note.

It is undisputed that Mr. Hernandez never met or communicated with Mr. Burgess. Mr. Hernandez admitted that there was no communication whatsoever between JBJ and Mr. Burgess on the issue of JBJ's expectations concerning Mr. Burgess's legal services. However, Mr. Hernandez claimed that JBJ "indirectly" hired Mr. Burgess, and that Ms. Goenaga communicated with Mr. Burgess on JBJ's behalf.

The Burgess Defendants prepared the note and mortgage. The mortgage stated that it encumbered the property legally described in Exhibit "A." Exhibit "A" was attached to the mortgage and contained the legal descriptions of five properties. However, the Burgess Defendants did not prepare Exhibit "A." Instead, Southern Title prepared Exhibit "A" and the legal descriptions contained therein.

Ms. Goenaga testified that she did not send Mr. Burgess the list of the properties to be included in Exhibit "A." She explained that the extent of Mr. Burgess's involvement in the transaction was preparing the note and mortgage. Ms. Goenaga alone created the final list of encumbered properties. She did not consider the list of legal descriptions to be something that needed to be done by an attorney.

The loan transaction closed in March 2011, and the documents were recorded the next month. A payment of $1,350 was made to the Burgess Law Firm for "Attorney Fees/Doc Prep." The attorney's fee was debited against the loan funds at closing.

The borrowers eventually defaulted on the loan, prompting JBJ to initiate foreclosure proceedings in 2013. When JBJ started foreclosure proceedings, however, JBJ learned that Exhibit "A" to the mortgage contained a duplicate legal description for one of the small properties and completely omitted the legal description of the Modern Day property, which was the most valuable property.

JBJ thereafter commenced the instant action against Southern Title and the Burgess Defendants, seeking to recover damages as a result of the erroneous legal descriptions in the mortgage. The Burgess defendants answered and raised as an affirmative defense that there was no attorney-client relationship.

The Burgess Defendants later moved for summary judgment, arguing in relevant part that: (1) there was no attorney-client relationship as a matter of law due to the "complete lack of communication and consultation" between JBJ and the Burgess Defendants; and (2) JBJ could not show that the Burgess Defendants' responsibilities included preparing Exhibit "A" to the mortgage.

The trial court granted the motion for summary judgment. For purposes of its ruling, the trial court assumed, for the sake of argument, that an attorney-client relationship existed, but concluded that the Burgess Defendants' role in the transaction did not include preparing the legal descriptions set forth in Exhibit "A."

Prior to the entry of final summary judgment, JBJ moved for rehearing or reconsideration and for leave to amend the complaint. The proposed amended complaint added an additional count against Mr. Burgess for legal malpractice.

The trial court entered a final summary judgment in favor of the Burgess Defendants. The trial court later entered an order denying the motion for rehearing and the motion for leave to amend the complaint.

Subsequently, the trial court found that the Burgess Defendants' proposal for settlement was not served in good faith, and entered an order denying the Burgess Defendants' entitlement to fees.

This consolidated appeal ensued.

JBJ's Arguments on Appeal from the Final Summary Judgment

On appeal, JBJ argues that genuine issues of material fact remain regarding: (1) whether an attorney-client relationship existed where there was evidence that JBJ entrusted the closing agent to communicate with Mr. Burgess on behalf of JBJ; and (2) whether the scope of Mr. Burgess's duties in preparing the note and mortgage encompassed the obligation to ensure the accuracy of the legal description of the properties that would be encumbered by the mortgage. We agree.

Standard of Review

The standard of review for orders granting summary judgment is de novo. Haber v. Deutsche Bank Nat'l Tr. Co. , 81 So.3d 565, 566 (Fla. 4th DCA 2012). A movant is entitled to summary judgment "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). "[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact." Albelo v. S. Bell , 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

Elements of a Legal Malpractice Action

A cause of action for legal malpractice has three elements: (1) the attorney's employment by the client; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence was the proximate cause of loss to the client. R.S.B. Ventures, Inc. v. Berlowitz , 211 So.3d 259, 263 (Fla. 4th DCA 2017).

Here, we find that there were genuine issues of material fact remaining as to whether an attorney-client relationship existed and whether the Burgess Defendants neglected a reasonable duty.

Whether an Attorney-Client Relationship Existed?

The test for determining the existence of an attorney-client relationship "is a subjective one and hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice." Bartholomew v. Bartholomew , 611 So.2d 85, 86 (Fla. 2d DCA 1992) (citation and internal quotation marks omitted). This subjective belief must be reasonable. Id.

Under Florida law, an essential element of an attorney-client relationship is that there must be some sort of consultation between the lawyer and the putative client. For example, in The Florida Bar v. Beach , 675 So.2d 106, 107-09 (Fla. 1996), the Florida Supreme Court held that an attorney-client relationship was not established where: (1) the putative client entered into a contract with a paralegal firm to prepare legal documents, which were to be reviewed by an attorney; (2) the contract stated that the putative client would not be represented by the attorney unless she entered into a separate agreement with the attorney; and (3) the putative client never met with the attorney, though a paralegal passed on the attorney's advice concerning what legal action the putative client should pursue.

The Eleventh Circuit, applying Florida law, has stated that "[t]he subjective belief test is only applied after a putative client consults with an attorney, and is used to emphasize that, following a consultation , it is the belief of the putative client and not the lawyer's actions that determines whether a lawyer-client relationship has developed." Jackson v. BellSouth Telecomms. , 372 F.3d 1250, 1281 n.29 (11th Cir. 2004). The Eleventh Circuit explained: "Requiring a subjective belief to be reasonable makes sense, since the subjective belief of a 'client' that he has retained a lawyer whom he has never consulted-or even spoken to-cannot be an objectively reasonable one." Id. The Eleventh Circuit interpreted Beach as standing for the proposition that "regardless of a putative client's subjective beliefs, there can be no attorney-client relationship when the client does not consult with the attorney, especially when there is no contact between them." Id. at 1282. Thus, according to the Eleventh Circuit, "an actual consultation with a lawyer" is a prerequisite to forming an attorney-client relationship. Id. at 1281 n.29.

Nonetheless, "[a]lthough it is natural to think of this fundamental element as a consultation conducted personally between a party in need of legal assistance and an attorney, there are a number of situations in which the requirement can be met even though the individual initiating the consultation does not himself require legal advice or services." George A. Locke, Existence of Attorney-Client Relationship , 48 Am. Jur. Proof of Facts 2d 525 (1987). A sufficient consultation occurs for purposes of establishing an attorney-client relationship where the person consulting the attorney "is, for example, the spouse, parent, doctor, or insurer of the person in need of the attorney's services and is acting with at least implied authority given by that person." Id. (footnotes omitted).

The consultation requirement can therefore be met when an agent of the client consults with an attorney on the client's behalf. See In re McCall , 08-02-00071-CV, 2002 WL 1341104, at *2 (Tex. App. June 20, 2002) ("Under the present facts, we believe that an attorney-client relationship existed by virtue of Dolores consulting Cotton Bledsoe in her capacity as Linda's agent."); Clarke v. Ruffino , 819 S.W.2d 947, 949-50 (Tex. App. 1991) (holding that an attorney-client relationship existed where the client paid the attorney for legal services in connection with a refinancing, even though the client never asked the attorney to represent him and all contact was with the bank); cf. In re Lentek Int'l, Inc. , 346 Fed. App'x 430, 433 (11th Cir. 2009) (finding that no attorney-client relationship existed, but explaining that there was "no evidence in the record that anyone acting on behalf of the Debtor corporation consulted with Greenspoon or Blodig seeking legal advice for the Debtor") (emphasis added).

The threshold question in this case is whether there was an attorney-client relationship between JBJ and the Burgess Defendants. Although JBJ never directly consulted or met with Mr. Burgess, the consultation requirement may be satisfied by an agent of the client. Here, the evidence viewed in the light most favorable to JBJ showed that: (1) JBJ wanted an attorney to prepare the loan documents and review them for accuracy; (2) JBJ's title agent, Ms. Goenaga, contacted Mr. Burgess on JBJ's behalf and hired him to prepare the note and mortgage; (3) Mr. Burgess prepared the note and mortgage; and (4) Mr. Burgess accepted a fee for his legal services. Thus, a reasonable view of the evidence is that a consultation occurred when Ms. Goenaga, as JBJ's title agent, hired Mr. Burgess and assigned him the task of preparing the note and mortgage.

Cases like Jackson and Beach are distinguishable because in those cases there was no evidence that someone acting as an agent of the client hired the lawyer to render legal services on behalf of the client. Unlike Jackson , this is not a case where Mr. Burgess had "literally no basis to know" that JBJ would consider him its attorney. 372 F.3d at 1282. Similarly, although the attorney in Beach gave legal advice to the putative client through a non-lawyer conduit, Beach is nonetheless distinguishable because there the client's agreement with the paralegal firm specifically stated that the client would not be represented by the attorney. 675 So.2d at 109. Thus, in Beach it was clear that the client was not hiring the attorney through the paralegal firm. By contrast, in this case, Mr. Burgess was hired by JBJ's title agent, rendered legal services by preparing the note and mortgage, and billed for those services.

In short, a reasonable jury could find that an attorney-client relationship existed between JBJ and the Burgess Defendants by virtue of Ms. Goenaga consulting with Mr. Burgess in her capacity as JBJ's title agent and referring to him the work of preparing the note and mortgage.

Whether the Burgess Defendants Neglected a Reasonable Duty?

The question therefore becomes whether there is a genuine issue of material fact concerning the scope of the Burgess Defendants' duties in preparing the note and mortgage.

Once an attorney-client relationship is established, "[a]n attorney may not neglect to perform the services which he agrees to perform or which by implication he agrees to perform when he accepts employment." Atkin v. Tittle & Tittle , 730 So.2d 376, 378 (Fla. 3d DCA 1999) (citation, internal quotation marks, and brackets omitted). Thus, "[a]n attorney may not disregard matters that arise and reasonably signal potential legal problems," even if those matters do not fall precisely within the general rule governing the scope of an attorney's duties when representing a client in a real estate transaction. Id.

Here, Ms. Goenaga's testimony was insufficient to establish as a matter of law that the Burgess Defendants did not have a duty to review the legal descriptions of the properties. Certainly, Ms. Goenaga never asked the Burgess Defendants to prepare the legal descriptions of the properties to be encumbered by the mortgage, and never transmitted to Mr. Burgess the list of the properties to be included in Exhibit "A" to the mortgage. Ms. Goenaga explained that she alone created the final list of encumbered properties, and that she did not consider the list of legal descriptions to be something that needed to be done by an attorney.

Nonetheless, Ms. Goenaga's testimony as a title agent does not establish the standard of professional care applicable to a lawyer in this real estate transaction. On these facts, a reasonable jury could find that, once the Burgess Defendants undertook to prepare the mortgage, they agreed by implication to ensure that the mortgage encumbered the correct real estate. Even though the title agent agreed to prepare the legal descriptions, Mr. Burgess arguably had the ultimate responsibility to review that work product for accuracy where he was retained to prepare the mortgage and he charged a separate fee for this service. Notably, Exhibit "A" was incorporated by reference in the mortgage, and was therefore a part of the mortgage that the Burgess Defendants agreed to prepare. At a minimum, a genuine issue of material fact exists as to whether the Burgess Defendants neglected a reasonable duty by failing to review the legal descriptions prepared by the title agent.

Whether the Trial Court Abused its Discretion in Denying JBJ's Motion for Leave to Amend the Complaint?

JBJ next argues that the trial court abused its discretion in denying JBJ's motion for leave to amend the complaint.

The standard of review for an order denying leave to amend a complaint is abuse of discretion. Port Marina Condo. Ass'n v. Roof Servs., Inc. , 119 So.3d 1288, 1291 (Fla. 4th DCA 2013).

"Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile." Fields v. Klein , 946 So.2d 119, 121 (Fla. 4th DCA 2007). "A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment." PNC Bank, N.A. v. Progressive Emp'r Servs. II , 55 So.3d 655, 660 (Fla. 4th DCA 2011) (citation and internal quotation marks omitted).

Here, JBJ did not abuse the privilege to amend, as there were no prior amendments to the complaint. Moreover, under PNC Bank , JBJ's motion for leave to amend was not untimely, as a party may seek leave to amend a pleading even after a ruling on a motion for summary judgment.

Furthermore, allowing the amendment would not procedurally prejudice the Burgess Defendants, as they would still be afforded sufficient opportunity to prepare a defense against the amended complaint. See Marquesa at Pembroke Pines Condo. Ass'n v. Powell , 183 So.3d 1278, 1281 (Fla. 4th DCA 2016) ("Furthermore, Appellee is unlikely to be unduly prejudiced by the addition of this count. While the addition of the contract claim may prevent Appellee from prevailing at summary judgment, he would still be afforded sufficient opportunity to prepare a defense for the breach of contract claim.").

Finally, because we conclude that there were genuine issues of material fact remaining as to whether an attorney-client relationship existed, we likewise conclude that JBJ's proposed amendment would not have been futile.

In sum, we conclude that the trial court abused its discretion in denying JBJ leave to amend its complaint where there were no prior amendments to the complaint, the record does not show that the Burgess Defendants would have been prejudiced, and the amendment would not have been futile.

Fee Appeal

Because we are reversing the summary judgment in favor of the Burgess Defendants, we vacate the order denying the Burgess Defendants' motion for attorney's fees. We do not express any opinion as to the validity of the Burgess Defendants' proposal for settlement. See Emergency Servs. 24, Inc. v. United Prop. & Cas. Ins. Co. , 165 So.3d 756, 757 (Fla. 4th DCA 2015) ("Because we are reversing the summary judgment in favor of the insurer, the question of whether the insurer is entitled to attorney's fees is premature. We therefore reverse and vacate the order denying attorney's fees without expressing any opinion as to the validity of the proposal for settlement.").

Conclusion

We reverse the final summary judgment and the order denying JBJ's motion for leave to amend its complaint, and we remand for further proceedings consistent with this opinion. We also vacate the order on the Burgess Defendants' Motion for Entitlement to Fees and Costs, as that issue is premature in light of our reversal of the summary judgment.

Reversed and Remanded .

Warner and Gross, JJ., concur.

      Mr. Hernandez testified that he was the only person with "any authorization to do business" on behalf of JBJ, and that Mr. Sotero was not an employee or independent contractor of JBJ. Nevertheless, Mr. Sotero handled the communications regarding the loan with the title agency and the Maslanka family.

      At another point in his deposition, however, Mr. Hernandez seemed to admit that he did not have any conversations with anyone at Southern Title regarding his expectations for Mr. Burgess's legal work. Nonetheless, Mr. Hernandez emphasized that he expected "someone to look over [his] paperwork and make sure it was right." Mr. Hernandez explained: "I don't think I should [have to] tell anybody that they need to look over and make sure that things are right."

      Although the trial court assumed for purposes of its summary judgment ruling that an attorney-client relationship existed between JBJ and the Burgess Defendants, the Burgess Defendants argue that summary judgment could be affirmed on the alternative basis that no attorney-client relationship existed. Thus, we find it necessary to address this issue.

      Southern Title might have been allowed to prepare the mortgage in this case without the involvement of a lawyer, but even that is unclear under the facts of this case. Under Florida law, "title insurers are permitted to prepare deeds, mortgages, satisfactions and other documents affecting the legal title to be insured," so long as this is done as a mere necessary incident to honor a title insurance commitment. Preferred Title Servs., Inc. v. Seven Seas Resort Condo., Inc. , 458 So.2d 884, 886 (Fla. 5th DCA 1984). However, such conduct is unauthorized "if a charge was made for such services separate and apart from the 'regular title insurance premium' which the insurer is authorized to charge." Id. Here, the Settlement Statement for the transaction indicated that it was Chicago Title Insurance Company-not Southern Title-that issued the title insurance. But even assuming Southern Title could have prepared the mortgage without Mr. Burgess, he arguably had the duty to ensure that the mortgage was prepared correctly when he agreed to prepare it and made a separate charge for such services.


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE COMPANY, INC., Appellant, v. Sanjay KUWAS, Appellee.
    No. 4D17-2383
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Plantation, for appellant.
    Gray R. Proctor of Fox & Loquasto, P.A., Richmond, Virginia, and John Salcedo and Lidor Kantor of The Mineo Salcedo Law Firm, P.A., Davie, for appellee.
   Conner, J.

Homeowners Choice Property & Casualty Insurance Company, Inc. ("HCI"), appeals the trial court's final judgment entered in favor of Sanjay Kuwas ("Kuwas") and the order denying HCI's post-trial motions. HCI contends the trial court erred by: (1) denying its motion for new trial grounded on Kuwas's improper arguments and questioning of HCI's litigation manager; (2) allowing Kuwas to offer improper impeachment evidence; (3) denying its motion to strike the jury foreperson and motion for new trial on the same ground; and (4) denying its motion for directed verdict and motion to set aside the verdict. Additionally, HCI argues cumulative error as a basis for new trial, if the individual grounds are not sufficient. We reverse on the first issue and remand for a new trial. We affirm as to the second issue (concerning improper impeachment evidence) without discussion. We do not address the remaining issues, as they are rendered moot by our reversal for new trial.

Background

Kuwas sued HCI alleging two counts of breach of contract in connection with the insurance company's denial of coverage for two insurance claims he filed in 2011 and 2015 for property damage as a result of water loss.

HCI asserted affirmative defenses based on the following exclusions to coverage for losses caused by: (1) sewer backups; (2) "neglect of the 'insured' to use all reasonable means to save and preserve the property at and after the time of a loss"; (3) constant or repeated seepage or leakage; and (4) inadequate maintenance of the property. Subsequently, HCI withdrew its affirmative defense alleging an exclusion for sewer backups, apparently, not contesting Kuwas's argument that the exclusion did not apply. HCI proceeded to trial on its remaining affirmative defenses.

During the trial, HCI raised objections to various questions posed by Kuwas during the testimony of HCI's litigation manager, as well as various opening and closing arguments by Kuwas.

The jury entered a verdict in favor of Kuwas for a substantial sum. HCI's post-trial motions were denied. HCI gave notice of appeal.

Appellate Analysis

Denial of a motion for new trial based on improper argument is reviewed for abuse of discretion. Las Olas Holding Co. v. Demella , 228 So.3d 97, 107 (Fla. 4th DCA 2017).

HCI argues that the trial court erred in denying its motion for new trial based on improper arguments and witness questioning: (1) implying HCI's bad faith; (2) emphasizing Kuwas's payment of premiums; and (3) disparaging HCI's defense of the claims. HCI contends that such arguments and questioning were so inflammatory and prejudicial that each alone, or combined, denied HCI a fair trial. We discuss each alternative argument below.

The standard applicable to preserved issues of improper argument is "whether the comment was highly prejudicial and inflammatory." Murphy v. Int'l Robotic Sys., Inc. , 766 So.2d 1010, 1012 n.2 (Fla. 2000).

Bad Faith

HCI argues that a new trial is warranted because Kuwas presented his theory of the case in such a way as to improperly imply HCI's bad faith in the handling of the claims in this case and other cases in general. In particular, HCI points to Kuwas's remarks that HCI was "playing the odds" in deciding to deny a claim "in the hope that the party who is seeking to be paid under a policy will not sue them." HCI argues that Kuwas improperly used this phrase in his opening statement, closing argument, and his examination of HCI's litigation case manager.

Review of the record confirms HCI is correct concerning allusions to HCI's purported bad faith. In opening statement, Kuwas said that HCI "decided to play the odds. The odds being that no one will make a claim if they say we're not paying." On direct examination of HCI's litigation manager, Kuwas again used the phrase, stating: "Now then, you would agree with me that if [HCI] is playing the odds, that would be a breach of the policy?" In explaining what he meant by "playing the odds," Kuwas stated: "Well, when I say playing the odds, if [HCI] has made a decision to deny a claim or deny claims in the hope that the party who is seeking to be paid under a policy will not sue them, that would be the wrong thing for [HCI] to be doing." There were multiple other instances during the examination of the litigation manager in which Kuwas used the phrase "playing the odds" or some variation in reference to HCI. Some of HCI's objections were sustained; others were overruled. Finally, Kuwas began his closing argument by stating of HCI that:

"Everything that one needed to know was stuff that they knew from day one. And what they did was, they decided to play the odds. Right? We'll talk a little bit about that. They decided, we're going to play the odds. And we're just going to disregard responsibilities that they have, personal responsibility. "

(emphasis added). HCI objected to this argument as improper, but was overruled.

HCI correctly argues that implications of bad faith should not form a basis to determine liability in a first party insurance coverage action. See Carvajal v. Penland , 120 So.3d 6, 10 (Fla. 2d DCA 2013) (testimony and argument that uninsured motorist insurer shirked its responsibilities and otherwise acted in bad faith warranted new trial where the statements were inappropriate plea to juror's sympathies and focus of trial was injuries and damages, not claims handling and bad faith). "[T]he determination of the existence of liability and the extent of the insured's damages" are prerequisites to a bad faith action. See Cammarata v. State Farm Fla. Ins. Co. , 152 So.3d 606, 612 (Fla. 4th DCA 2014) (emphasis added). We have specifically maintained that "where the insurer's liability for coverage and the extent of damages have not been determined in any form, ... [such] must be determined before a bad faith action becomes ripe." Id. at 613 (first emphasis added).

HCI argues that shifting the focus to bad faith in claims handling denied it a fair trial. See Carvajal , 120 So.3d at 10. Additionally, HCI specifically argues that criticism of its claims handling practices as a business practice, which was not based on matters in evidence, was improper. See Mercury Ins. Co. of Fla. v. Moreta , 957 So.2d 1242, 1251 (Fla. 2d DCA 2007) ("[O]pposing counsel's criticism of [insurer]'s alleged litigation tactics and practices was not based on matters in evidence.... Because there was no evidence before the trial court to support these claims, it was improper for counsel to make them."). HCI points out that "properly preserved improper witness testimony which is highly prejudicial and inflammatory warrants a new trial, particularly where the damaging testimony is compounded by improper argument." Carvajal , 120 So.3d at 9. HCI argues that Kuwas used the questioning of HCI's litigation manager as an opportunity to paint HCI as a carrier that denies policyholders' claims for any or no reason, thereby shifting the focus inappropriately to HCI's claims handling and bad faith, which were not issues before the jury. We agree with HCI's arguments and reject Kuwas's reliance on claims handling case law in the context of uninsured motorist benefits as counterargument. The reliance on such case law is misplaced because the issues in those cases sound more in tort than in contract.

Payment of Premiums

HCI argues that a new trial is also warranted because Kuwas improperly emphasized Kuwas's payment of his premiums during opening statement and closing argument. HCI points to the following comment made by Kuwas's counsel in opening statement:

There was talk yesterday about reading what you sign. What happened in this case was my client had an agreement with [HCI], you see. And let me explain. This is not a contract where two people sit down and negotiate, come to an agreement, and sign it. No. No.
[HCI] says, here's the deal. If you pay us X, we will provide you with an insurance policy. So my client paid X year, after year, after year, after year from back in the '90s, all right, paid X , and they sent him an insurance policy. So what happens? What happens is, we have an insurance company that decided to play the odds. The odds being that no one will make a claim if they say we're not paying.

(emphasis added). HCI objected to this comment as improper, but was overruled. In closing argument, Kuwas's counsel argued that Kuwas "deserves his house back because he paid not to be in this position ." (emphasis added). HCI's objection to that argument was overruled, allowing Kuwas, over a renewed objection, to argue that Kuwas "paid not to be in this position ." (emphasis added).

HCI argues that it was improper for counsel to emphasize Kuwas's payment of premiums in this manner because the length of time that Kuwas paid his premiums was irrelevant to whether HCI breached its policy when it denied his claims. In support the argument, HCI relies on Government Employees Ins. Co. v. Kisha , 160 So.3d 549, 552-53 (Fla. 5th DCA 2015) (determining references to length of time insured had been insured by automobile insurer constituted an impermissible plea for sympathy that impeded jury's ability to fulfill its duty of impartiality, and thus references denied insurer's right to a fair trial in litigation involving personal injury protection benefits; insured's attorney referenced "all the years of" and "thousands of dollars of" payments insured had made and argued that insurer left her "out in the cold" upon her first claim, and attorney argued that insurer owed it to insured to provide coverage after all those years.).

HCI further argues that the parties in this case had already stipulated that they had a contract for insurance on the property for both pertinent policy periods, and that therefore, opposing counsel's comments that Kuwas paid his premiums "from back in the 90's" and "paid not to be in this position" were irrelevant, improper, and solely calculated to garner sympathy for Kuwas. HCI contends that it would have been one thing for Kuwas to testify that he paid his premiums for the policy periods at issue, but that his counsel's portrayal of Kuwas as a long-term customer , suggesting that HCI owed him something, was impermissible.

While it does appear that Kuwas's comment that he had been paying his premiums year after year was irrelevant to the dispute at issue, and the trial court therefore should have sustained HCI's objections to these comments, it is questionable whether the objected-to comments alone were so "highly prejudicial and inflammatory" to warrant a new trial when viewed in context of Kuwas's argument as a whole. HCI points to three preserved instances where references were made to Kuwas's payment of premiums. This is unlike the situation in Kisha , where plaintiff's counsel referenced and specifically emphasized the length time the claimants were "good customers" in at least ten instances throughout the trial. Kisha , 160 So.3d at 553-54.

Unlike the facts of Kisha , in this case, the three preserved instances complained of on appeal, while improper, arguably do not alone demonstrate that Kuwas's long relationship with HCI became a centerpiece of the trial. We note that two of the comments do not even reference the length of time Kuwas had been making premiums. The only preserved instance that did indicate he made payments for "year after year," while improper, was in the context of explaining how the parties came to their agreement and shifting the focus to what did become one of the centerpieces of Kuwas's case-that HCI decided to "play the odds" to see if Kuwas would sue but for no good faith reason.

Disparagement of HCI's Defense of the Claims

HCI argues that Kuwas made comments which improperly denigrated its defenses. HCI correctly argues that "[t]he law is clear that it is improper for an attorney to disparage an opposing party's defense of a case or to suggest that a party should be punished for contesting a claim." Fasani v. Kowalski , 43 So.3d 805, 809 (Fla. 3d DCA 2010). Specifically, HCI argues that the trial court erred in overruling its objection to the following improper comment made by Kuwas's counsel during his closing argument:

And you know, this case was filed last year. And we're litigating for-it's an early case, the number 500 case last year probably is 14 months old. We're litigating for 14 or 15 months. And we're fighting like the dickens over whether or not a sewer backup is excluded. And then we come to court after all this litigation, after all of this depositions, and motions, and whatnot-... Right? After depositions and whatnot, and [HCI] comes in and says oh, by the way, we just were kidding about that one. We're just kidding about that. That one doesn't apply. You know the plaintiff's right, that doesn't apply, okay, but let's try something else, right ?

(emphasis added).

It appears this comment was in reference to HCI's pre-trial withdrawal of its affirmative defense for the sewer backup exclusion. HCI asserts that this comment denigrated its defense and implored the jury to punish it for exercising its rights to conduct discovery and litigate motions in connection with the case, and suggested that HCI knew the application of its policy exclusions lacked merit and evidentiary support, but chose them anyway to avoid responsibility at all costs, altering its selection of exclusions as the facts of the case unfolded in discovery.

HCI points out that arguments which denigrate an opponent's defenses by implying they are pretextual are improper. See, e.g., Allstate Ins. Co. v. Marotta , 125 So.3d 956, 960-61 (Fla. 4th DCA 2013) ("[C]omments such as Allstate 'made up issues' and 'manufacture[d]' a defense improperly denigrated Allstate's defense and counsel." (second alteration in original) ); Chin v. Caiaffa, 42 So.3d 300, 309 (Fla. 3d DCA 2010) (improper for counsel to comment to the jury that opposing counsel was "try[ing] to fool you"); Sanchez v. Nerys, 954 So.2d 630, 632 (Fla. 3d DCA 2007) (argument that defense counsel was "pulling a fast one" and "hiding something" was improper argument requiring a new trial). HCI argues that Kuwas pressed this same improper theme in rebuttal, stating that if this was a health insurance case, that HCI would have been "up here with the policy saying, look, it's preexisting, and its old, and it's this, and it's that." HCI's objection to this comment was also overruled.

HCI further argues that Kuwas's comment that the parties were "fighting like the dickens," and HCI was participating in depositions and litigating motions, implied that the jury should punish HCI for defending itself against Kuwas's claims. HCI contends this comment was calculated to attract the jury's attention to irrelevant pretrial conduct and implied that HCI should be penalized for requiring Kuwas to take the actions necessary to prove his case.

In response, Kuwas argues that because the jury learned that HCI withdrew its defense regarding the sewer backup exclusion, the comments were made to point out the differences between the reasoning in the denial letters and the defenses. However, review of the actual comments do not support that assertion. Contrary to Kuwas's contention, the comments did not merely point out the differences in the denial letters and HCI's defenses at trial. Rather, they implied that HCI was wasting Kuwas's time litigating the case for 14 or 15 months and "fighting like the dickens" litigating motions and attending depositions and conducting discovery, only to say prior to trial, "just kidding," "that one doesn't apply," "but let's try something else," suggesting HCI would try anything to avoid paying its claim. Furthermore, despite the fact that HCI withdrew one of its defenses prior to trial, this did not authorize Kuwas to emphasize HCI's litigation conduct before the jury in such a manner as to chastise HCI for exercising its right to defend.

HCI is correct that "[a] plaintiff may not suggest to the jury that a defendant is somehow acting improperly by defending itself at trial or that a defendant should be punished for contesting damages." R.J. Reynolds Tobacco Co. v. Robinson , 216 So.3d 674, 681 (Fla. 1st DCA 2017), reh'g denied (May 17, 2017), rev. denied , SC17-1130, 2017 WL 5986208 (Fla. Dec. 4, 2017) ; see also State Farm Mut. Auto Ins. Co. v. Thorne , 110 So.3d 66, 74-75 (Fla. 2d DCA 2013) (declaring improper plaintiff's "contention in closing that the defendants' evidence and argument were an attempt 'to avoid responsibility' and, as a result, the defendants exhibited shameful conduct"); Intramed, Inc. v. Guider , 93 So.3d 503, 507 (Fla. 4th DCA 2012)

("Counsel's arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper."); Carnival Corp. v. Pajares , 972 So.2d 973, 978 (Fla. 3d DCA 2007) ("The arguments made by Pajares' counsel, denigrating Carnival's defense of Pajares' claim and suggesting that Carnival should be punished for contesting liability, are the type of arguments previously condemned by this Court, and are equally condemned in the instant case."). We agree that a new trial is warranted because the comments made by Kuwas in closing argument improperly denigrated HCI's defenses and were so highly prejudicial and inflammatory such that it was denied its right to a fair trial.

Finally, we conclude the errors in this case are not harmless. In civil cases, "the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict." Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014). For the foregoing reasons, we reverse the judgment and remand the case for a new trial.

Affirmed in part, reversed in part, and remand for new trial.

Ciklin, J., and Roberts, Kathleen H., Associate Judge, concur.


author: May, J.

text:
    Richard B. WEBBER, II, as the Chapter 7 Trustee FOR Frederick J. KEITEL, III, and FJK IV Properties, Inc., a Florida corporation, Jointly and Severally, Appellant, v. Thomas B. D'AGOSTINO, Appellee.
    No. 4D17-3007
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Kevin P. Robinson of Zimmerman Kiser Sutcliffe, Orlando, for appellant.
    Eric C. Christu and Jonathan P. Hart of Shutts & Bowen LLP, West Palm Beach, for appellee.
   May, J.

A dispute over an attorney's fees and cost judgment brings this case to our court once again. The trustee appeals the final judgment after years of litigation in a foreclosure action. He raises two primary arguments: (1) none of the three bases upon which the trial court awarded fees supports the judgment; and (2) the amount awarded is not supported by the record. The lender responds that the extensive litigation that ensued, challenging the underlying judgment even after payment of the debt, warranted the fee and cost award. We agree with the lender and affirm.

About ten years ago, the lender loaned the borrower $1.4 million. The note was secured by a pledge of the borrower's stock in FJK IV Properties, Inc. ("stock"). When the borrower failed to repay the loan, the lender filed a two-count complaint seeking to foreclose. Subsequently, the borrower transferred the stock to an out-of-state friend.

On December 2, 2014, the trial court entered a final judgment of foreclosure in favor of the lender for $3,062,832.12. The borrower appealed.

On June 29, 2015, the borrower filed a suggestion of bankruptcy, which was dismissed a month later. On July 17, 2015, the trial court reversed the out-of-state stock transfer, finding it "was made to delay, hinder and/or defraud." On September 3, 2015, the borrower moved for relief from judgment under Florida Rule of Civil Procedure 1.540.

On October 21, 2015, the court ordered the lender's attorney-in-fact to deliver the stock to the Palm Beach County Sheriff to sell at auction. On December 7, 2015, the borrower assigned and transferred the stock to the lender's attorney-in-fact. The next day, the borrower filed a second suggestion of bankruptcy. On February 5, 2016, the borrower paid the lender in full.

We then affirmed the underlying foreclosure judgment. See Keitel v. D'Agostino , 212 So.3d 372 (Fla. 4th DCA 2016). We also unconditionally granted appellate attorney's fees to the lender. Following our opinion and order, the lender moved for attorney's fees and costs in the trial court, asserting three grounds for recovery: (1) the note; (2) section 57.115, Florida Statutes ; and (3) section 56.29, Florida Statutes.

On August 4, 2017, the trial court heard the lender's motion for attorney's fees and costs. The trustee argued the lender was not entitled to fees "[b]ecause the judgment ha[d] been paid." The trial court disagreed and awarded fees and costs for work done in both the state and bankruptcy courts on all three bases.

From that judgment, the trustee now appeals. He continues to argue that the lender was not entitled to fees under any of the three bases because the judgment had been paid.

We review fee and cost awards under a mixed standard of review. See Klinow v. Island Court at Boca W. Prop. Owners' Ass'n, Inc. , 64 So.3d 177, 180 (Fla. 4th DCA 2011). "[F]actual findings must be supported by competent, substantial evidence, while legal findings are reviewed de novo." Id. We review the trial court's determination as to the amount of attorney's fees and costs for abuse of discretion. Centex-Rooney Constr. Co., Inc. v. Martin Cty. , 725 So.2d 1255, 1258 (Fla. 4th DCA 1999).

The trustee first argues the trial court improperly determined the lender was entitled to attorney's fees and costs under the note because the note merged into the final judgment. Alternatively, the trustee contends that, even if the note provided a basis for the post-judgment award, the plain language of the note does not allow for the award. The lender responds that the trustee never raised the merger doctrine in the trial court, thereby waiving the argument, or any error was invited. See Oliver v. Oliver , 133 So.3d 563, 564 n.2 (Fla. 5th DCA 2014) ("An argument not raised at trial is waived for purposes of appellate review.") Here, however, the trustee raised the merger doctrine twice through his expert witness. We therefore find the issue preserved.

On the merits, we disagree with the trustee that the merger doctrine prevents the note from providing a basis for the attorney's fee award. That doctrine provides "that when a valid and final judgment is rendered in favor of a plaintiff, the original debt or cause of action upon which an adjudication is predicated merges into the final judgment, and, consequently, the cause's independent existence terminates." Weston Orlando Park, Inc. v. Fairwinds Credit Union , 86 So.3d 1186, 1187 (Fla. 5th DCA 2012).

However, we have previously held that a contract providing for a prevailing-party's entitlement to "all reasonable attorney's fees and costs" was "broad enough to encompass fees for execution on the judgment." Fed. Auto Ins., Inc. v. Bus. Acquisitions Brokerage, Inc. , 839 So.2d 767, 767 (Fla. 4th DCA 2003) ("If the losing party persists in requiring the expenditure of attorney's time even after the court has entered judgment on the arbitration award, there is no apparent reason to us why the broad scope of this fee provision should not be invoked here as well.").

Here, the note provided that "[e]ach person liable hereon ... agrees to pay all costs, including a reasonable attorney's fee, whether suit be brought or not, if, after maturity of this note or default thereunder, counsel shall be employed to collect this note." This language is also broad enough to encompass the extended litigation pursued by the borrower and trustee after payment of the judgment. Thus, the merger doctrine does not prevent the note from serving as a basis for the fee award.

Next, focusing on the words "collect this note," the trustee contends that the note provides for fees "only when a party is engaged in collection actions-which could either include the acts necessary to obtain a judgment or ... the acts necessary to collect a judgment." We disagree. The lender's subsequent action to defend the final judgment in motions in state court, on appeal, and in bankruptcy court was in fact to "collect" on the note.

As for the statutory provisions providing a basis for the judgment for attorney's fees and costs, the trustee attacks the trial court's reliance on section 57.115 because the borrower satisfied the note by payment on February 5, 2016. And, because the statute is limited to an award of attorney's fees and costs incurred "in connection with execution on a judgment," it was inapplicable here. The lender responds that even though the borrower satisfied the note, he continued to litigate the merits of the underlying judgment and incurred fees in collecting the note and the judgment. We agree with the lender.

Section 57.115(1) provides: "The court may award against a judgment debtor reasonable costs and attorney's fees incurred thereafter by a judgment creditor in connection with execution on a judgment." The continued litigation over the final judgment in state courts and in the bankruptcy court were in connection with execution on the judgment. Even the trustee's expert testified that the borrower continued with legal proceedings after payment was made, and that time was compensable. This section supports the trial court's award.

The trustee then argues that the trial court erred because it did not consider whether the borrower attempted to avoid or evade paying the judgment. See § 57.115(2)(a), Fla. Stat. ("In determining the amount of costs, including attorney's fees, if any, to be awarded under this section, the court shall consider [w]hether the judgment debtor had attempted to avoid or evade the payment of judgment.").

This argument lacks merit. First, whether the borrower attempted to avoid or evade paying the judgment is a consideration for the court as to the amount of fees and costs-not entitlement. See id. Second, the court did consider this factor. In its order, the trial court expressly found "that [the lender] was required to engage in extensive litigation due to [the borrower's] deliberate efforts to delay and hinder [the lender's] collection." To the extent the trustee argues that it paid the outstanding debt, payment only occurred because the bankruptcy court mandated it.

And last, the trustee argues the trial court failed to properly analyze and identify the basis for awarding attorney's fees and costs in state court for time spent litigating in federal bankruptcy court. The lender responds that expert testimony explained why and how the bankruptcy litigation related to the state proceedings and why those fees were recoverable. Once again, we agree with the lender.

"Although the fee applicant has the burden of establishing its entitlement to an award of attorneys' fees, the opponent of the fee has the burden of pointing out with specificity which hours should be deducted." Centex-Rooney , 725 So.2d at 1259 (internal citation omitted). The trial court specifically determined that fees and costs incurred in the bankruptcy litigation were recoverable because the borrower continued to challenge the final judgment even after having paid it. The trial court also noted that the trustee's expert conceded the point.

The trustee was required to specifically identify fees and costs that should have been excluded. See id. He failed to do so. And, the trial court's findings are supported by competent, substantial evidence. We therefore affirm the award of attorney's fees and costs based upon the note and section 57.115(1), Florida Statutes.

Affirmed.

Damoorgian, J., and Fahnestock, Fabienne, Associate Judge.

      The trustee also argues the trial court improperly determined the lender was entitled to attorney's fees and costs under section 56.29, Florida Statutes. The lender does not respond to this argument. While we find merit in the trustee's argument on this issue, it simply means the trustee "wins this battle, but loses the war." Because the two other bases for the award support the trial court's judgment, we affirm the judgment despite this error.


author: Per Curiam.

text:
    Mitchell STUKEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-600
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Mitchell Stukel, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The circuit court treated appellant's rule 3.800(a) motion as a rule 3.850 motion and then dismissed it as untimely filed. The court erred in doing so because rule 3.800(a) is available to address an oral versus written sentencing disparity. See Williams v. State , 957 So.2d 600 (Fla. 2007).

Affirmance without prejudice is nonetheless appropriate because appellant's motion failed to attach the sentencing hearing transcript, the portion of the record necessary to address the claim in his rule 3.800(a) motion. See Zill v. State , 162 So.3d 83, 84 (Fla. 4th DCA 2014) (affirming denial of rule 3.800(a) motion claiming sentencing discrepancy without prejudice to appellant's right to refile motion with supporting documentation of transcript and written sentences); see also Ayala-Laies v. State , 16 So.3d 244 (Fla. 4th DCA 2009).

We reject the state's argument that there was no sentencing disparity here because there is no difference in this case between a statutory "life" sentence and a "natural life" sentence. See Holt v. State , 82 So.3d 898, 899 (Fla. 4th DCA 2011) (recognizing that a sentence to natural life did not conform to the statutory sentence of life in prison with a 25-year mandatory minimum).

On remand, if appellant refiles the rule 3.800(a) motion, he is also entitled to be heard on his claim of failure to consider a scoresheet. See Paul v. State , 735 So.2d 572 (Fla. 3d DCA 1999).

Affirmed without prejudice to appellant's filing of an amended rule 3.800(a) motion.

Gerber, C.J., Gross and Forst, JJ., concur.


author: Gerber, C.J.

text:
    Ronald E. D'ANNA and Goede, Adamczyk, DeBoest & Cross, PLLC, Appellants, v. Amber Mandy ACKERMAN, Appellee.
    No. 4D17-2791
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Ronald E. D'Anna of Goede, Adamczyk, DeBoest & Cross PLLC, Boca Raton, for appellant.
    Ronald P. Ponzoli, Jr., Leslie Arsenault Metz, and John G. White, III, of Gray|Robinson, P.A., West Palm Beach, for appellee.
   Gerber, C.J.

The wife's former attorneys appeal from the circuit court's order granting the wife's motion to strike the former attorneys' charging lien. The former attorneys raise several issues, but we need address only three: (1) whether the wife's motion was moot at the time of the hearing on the motion; (2) whether the motion required an evidentiary hearing; and (3) whether the proper forum for adjudicating the charging lien was with the family division before which the underlying action is pending. We conclude that the wife's motion was moot at the time of the hearing, that an evidentiary hearing may be required on remand, and that the proper forum is with the family division before which the underlying action is pending. We reverse and remand as directed below.

The wife's motion was directed to the former attorneys' original charging lien. However, by the time of the hearing on the wife's motion to strike the original charging lien, the former attorneys had filed an amended charging lien. That amendment rendered moot the wife's pending motion to strike the former attorneys' original charging lien. Thus, the circuit court's post-amendment order granting the wife's motion was error. Cf. Barlow v. Molloy , 773 So.2d 93, 94 (Fla. 5th DCA 2000) (where homeowner filed suit seeking discharge of contractor's original lien, and contractor timely filed an amended lien, trial court properly refused to discharge the amended lien because the homeowners' suit had yet to attack the amended lien); Vanderberg v. Rios , 798 So.2d 806, 807 (Fla. 4th DCA 2001) (reversing the dismissal of an action, because the legal sufficiency of the original complaint was rendered moot by the filing of the amended complaint).

Having reversed the order on appeal, what remains pending is the former attorneys' amended charging lien. Based on the parties' briefs, we presume that, on remand, the former attorneys will seek the circuit court's disposition of their amended charging lien, and the wife will seek to nullify the former attorneys' amended charging lien, in whole or in part.

In either event, based on the arguments raised in the parties' briefs, any hearings on any such proceedings shall be evidentiary in nature, unless the circuit court determines that the amended charging lien is insufficient as a matter of law. See Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC , 180 So.3d 1198, 1200 (Fla. 2d DCA 2015) (court erred in addressing entitlement to a charging lien on its merits at a hearing on a motion to strike, where both parties agreed that evidence should be taken if the court determined that the lien was not insufficient as matter of law; "[B]ecause a motion to strike only tests the legal sufficiency of a claim, it is reversible error for a court to grant a motion to strike where the pleading presents a bona fide issue of fact that may be supported by evidence.").

Further, any such hearings shall be set in the family division from which this appeal arose. See , e.g. , CK Regalia, LLC v. Thornton , 159 So.3d 358, 360 (Fla. 3d DCA 2015) ("[T]he case law has consistently held that the proper forum for adjudicating the validity, enforceability and amount of a charging lien is with the trial judge before whom the underlying action is pending ....").

We make no comment on whether the former attorneys' amended charging lien is meritorious, in whole or in part. All other arguments which the parties raise in their briefs, having yet to be addressed by the circuit court, are not ripe for this court's appellate review.

Reversed and remanded for further proceedings consistent with this opinion.

Gross and Ciklin, JJ., concur.


text:
    Daniel Duane SLAUGHTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1744
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Fahnestock, Fabienne E., Associate Judge.

Daniel Duane Slaughter appeals his convictions and sentences for three charges involving the lewd or lascivious molestation of a child under the age of twelve. Appellant raises two points on appeal. First, Appellant argues that the trial court abused its discretion in overruling defense counsel's objection to the prosecutor's alleged misstatement of the law during closing argument. Second, Appellant argues that the cumulative effect of improper prosecutorial comments made throughout the trial gave rise to fundamental error requiring reversal. We disagree, and affirm on both issues, but write only to further encourage the prosecution to exercise caution in closing argument and avoid injecting emotion and fear into the jury's deliberations.

At trial, the victim testified she was a friend of Appellant's step-daughter and had slept over at Appellant's house on several occasions. The victim explained that Appellant had touched her while she pretended to be asleep and, on one occasion, he placed her hand on his exposed penis. In addition to the testimony provided by the victim, the State called two Williams Rule witnesses who both testified that Appellant had also touched them when they had slept over at Appellant's house.

During rebuttal closing argument, the prosecutor stated:

I was watching a Smithsonian thing last night it had lions and it said that lions attack their prey when they're handicapped by darkness. That's what this Defendant did. He attacked M.D., he attacked L.M., he attacked S.H. when they were isolated in the room. He came in when they were supposed to be sleeping and he got-did what he wanted to do to them, touching them in a lewd or lascivious manner.

Defense counsel did not object to this comment. The jury found Appellant guilty of two counts of lewd or lascivious molestation of a child under the age of twelve and one count of the lesser included battery.

"A failure to object to improper prosecutorial comment will preclude review, unless the comments were so prejudicial as to constitute fundamental error." Pacifico v. State , 642 So.2d 1178, 1182 (Fla. 1st DCA 1994). "Fundamental error in closing argument is error that reaches down into the validity of the trial itself to the extent that the verdict of guilty could not have been obtained without the assistance of the alleged error." Augustine v. State , 143 So.3d 940, 941 (Fla. 4th DCA 2014) (quoting Thompson v. State , 88 So.3d 322, 324 (Fla. 4th DCA 2012) ).

The Florida Supreme Court has consistently cautioned against prosecutors injecting "elements of emotion and fear into the jury's deliberations ...." Urbin v. State , 714 So.2d 411, 419 (Fla. 1998) (quoting King v. State , 623 So.2d 486, 488 (Fla. 1993) (further quotations omitted) ); accord Victorino v. State , 127 So.3d 478, 494 (Fla. 2013) ; Delhall v. State , 95 So.3d 134, 169 (Fla. 2012) ; Carroll v. State , 815 So.2d 601, 622 (Fla. 2002). "Arguments that have no purpose but to inflame the minds or jurors are prohibited, as are general attacks on the defendant's character." Petruschke v. State , 125 So.3d 274, 279 (Fla. 4th DCA 2013).

Here, Appellant argues that the prosecutor's attempt to demonize and dehumanize Appellant by characterizing him as a wild animal constitutes fundamental error. While the prosecutor's statement indeed analogizes Appellant's predatory actions to the predatory actions of a lion, the analogy refers to the scenario in which the victims, or prey, are vulnerable. Furthermore, this statement fails to inflame into the hearts and minds of the jury. This comment does not reach the egregious level of the prosecutorial comments that amount to fundamental error.

Affirmed.

Damoorgian and Kuntz, JJ., concur.


text:
    Darold Motley TIBBETTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-160
    District Court of Appeal of Florida, Fourth District.
    [July 18, 2018]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from the circuit court's summary denial on the merits of his "motion to withdraw plea based on newly discovered evidence and request for evidentiary hearing." The defendant primarily argues that the circuit court erred in summarily denying his motion on the merits without first holding an evidentiary hearing. We disagree with the defendant's argument, and therefore affirm.

Procedural History

The defendant was charged in 1989 with first-degree murder and other crimes arising from the same incident. If convicted, he was facing the possibility of the death penalty. The state's evidence, from multiple witnesses placing the defendant at the scene of the crime, and showing the defendant's consciousness of guilt through his post-crime actions and statements, was overwhelming.

In 1991, the defendant avoided the possibility of the death penalty by pleading guilty to second-degree murder and the other related crimes, in exchange for thirty-year concurrent sentences.

In 2014, the defendant learned that one piece of evidence against him, a hair comparison analysis, which identified the defendant as the likely source of a pubic hair found on the victim, may not have been conducted according to scientifically acceptable practices, and it could not be presently determined whether support existed for the analysis.

In 2016, within two years of learning of this information, the defendant timely filed his motion to withdraw plea based on newly discovered evidence and request for evidentiary hearing. The defendant claimed that withdrawal of his plea was necessary to correct a manifest injustice, because his decision to plead guilty was based on "look[ing] at each piece of evidence in his case and determin[ing] what weight, if any, the jury will give it," and the "microscopic hair analysis was critical to [his] decision whether to accept a plea of guilty."

The state's response argued three reasons why no reasonable probability existed that the defendant would have gone to trial rather than plead, even if he had known that the hair comparison analysis was subject to question. First, the state detailed the evidence as to why it had a strong case against the defendant, even without the hair comparison analysis, and therefore the defendant was unlikely to be acquitted. Second, the state argued that the defendant's guilty plea was voluntary given what he knew at the time. Third, the state argued that the disparity between the possibility of the death sentence and the ultimate thirty-year sentence made it unlikely that the defendant would have proceeded to trial, even if the defendant had known that the hair comparison analysis was subject to question. For those reasons, the state requested the circuit court to summarily deny the defendant's motion without an evidentiary hearing.

Per the state's request, the circuit court summarily denied the defendant's motion without an evidentiary hearing. In doing so, the court adopted the state's response to the defendant's motion, as well as the attachments, as its own findings of fact and conclusions of law. The court indicated its decision to deny the defendant's motion was on the merits.

Our Review

This appeal followed. The defendant primarily argues that the circuit court erred in summarily denying his motion on the merits without holding an evidentiary hearing. Based on that argument, our task is to determine whether the record conclusively refutes the defendant's claim that, based on the newly discovered evidence, he would have decided to go to trial and faced the possibility of the death penalty, rather than pleading guilty to receive a thirty-year sentence. See Fla. R. Crim. P. 3.850(f)(5) ("If the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of law or by reliance upon the records in the case, the motion shall be denied without a hearing by the entry of a final order."). Our review is de novo. See Walker v. State , 223 So.3d 388, 389 (Fla. 5th DCA 2017) (appellate court reviews de novo an order summarily denying a motion for postconviction relief to determine whether the record conclusively refutes the movant's claims or if movant's claims fail as a matter of law).

Applying the foregoing standards of review, we conclude the record conclusively refutes the defendant's claim that, based on the newly discovered evidence, he would have gone to trial and faced the possibility of the death penalty, rather than pleading guilty to receive a thirty-year sentence.

We reach this conclusion by applying, from Long v. State , 183 So.3d 342 (Fla. 2016), our supreme court's two-part test as to whether a defendant may withdraw a guilty plea based on a newly discovered evidence claim.

First, "the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence." Id. at 346. The state concedes that the defendant's motion satisfied this first prong.

Second, "the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial." Id. When making this second determination, the court must consider the "totality of the circumstances surrounding the plea," including but not limited to "whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." Id. (citation omitted).

The record conclusively refutes this second prong. If the defendant had decided to go to trial, his defense at trial presumably would have been that another person committed the murder. The overwhelming evidence in this case from multiple witnesses, placing the defendant at the scene of the crime, and showing his consciousness of guilt through his post-crime actions and statements, indicates that such a defense was not likely to succeed at trial. Although the newly discovered evidence - that the hair comparison analysis was subject to question - may ultimately have been presented to a jury, we still conclude, based on the other overwhelming evidence, that the presumed defense was not likely to succeed at trial.

Given the age of this case, the record does not include the colloquy between the defendant and the circuit court at the time of the plea, but merely the standard waivers which the defendant signed at the time of the plea. However, the fact that such waivers exist is not insignificant.

More significant is the difference between the sentence imposed under the plea, thirty years, and the maximum possible sentence the defendant faced at a trial, death. Given the overwhelming evidence of guilt, the record conclusively refutes any reasonable possibility that, but for the newly discovered evidence, the defendant would not have pleaded guilty in exchange for a thirty-year sentence, and would have decided to go to trial and faced the possibility of the death penalty.

Based on the foregoing, we affirm the circuit court's summary denial on the merits of the defendant's motion to withdraw plea and request for evidentiary hearing.

Affirmed .

Damoorgian and Kuntz, JJ., concur.


text:
    Terry Lee BENTZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2877
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction of (1) possession of hydromorphone and (2) possession of drug paraphernalia. He argues the trial court abused its discretion by failing to question him about the circumstances surrounding his request for private counsel and failing to make requisite findings supporting the denial of his request. We disagree and affirm.

The State charged the defendant with possession of hydromorphone and possession of drug paraphernalia. At his first hearing, he was appointed a public defender, waived speedy trial, and moved for a continuance. The court granted the motion, and two subsequent defense motions for continuance.

The matter proceeded to trial. Just before jury selection, defense counsel announced he was ready for trial, but advised the court that the defendant "indicated to me this morning that he wished to hire private counsel, uh, so that's-that's where we stand. But I am ready if necessary." Defense counsel told the court that he knew the defendant "wanted to hire private counsel."

THE DEFENDANT: Your Honor, I just wanted a new fresh set of eyes to look at my situation that I have.
THE COURT: Your case is 217 days old, that's the problem.
THE DEFENDANT: I spoke to a couple of attorneys over the last couple of weeks -
THE COURT: Yeah.
THE DEFENDANT: And they said that they would do their best to get in and get everything taken care of as rapidly as possible. They said that -
THE COURT: The Florida Supreme Court on felonies still has it in their mind that I'm supposed to resolve all of them within six months and you're beyond that, so you're well beyond where the case should be at this time, so we're ready to try the case. We'll be picking a jury this morning and trying the case tomorrow. All right, so let me temporarily pass that case and we'll come back to the other cases.

Without further comment, the parties proceeded to jury selection and a jury was sworn. When court reconvened the next day, the defendant failed to appear. The court found the defendant had voluntarily absented himself and proceeded with the trial, pursuant to Florida Rule of Criminal Procedure 3.180(c)(1)-(2). The jury found the defendant guilty on both counts. The trial court sentenced him in absentia to 43 months imprisonment.

The defendant now appeals and argues the court erred in handling his request for private counsel by failing to: (1) inquire about his request for private counsel; and (2) make the requisite findings to support the denial. The State responds that the trial court properly denied the request for new counsel because it was last-minute-the case had been pending for 217 days. It also suggests the court conducted a sufficient inquiry, and made the appropriate findings on the record. The State further argues that because the defendant failed to request a continuance, he failed to preserve the issue.

We review the denial of the defendant's request to discharge his court-appointed attorney and substitute private counsel of his choice for an abuse of discretion. Foster v. State , 704 So.2d 169, 172 (Fla. 4th DCA 1997).

The State argues the defendant failed to preserve the issue because he did not move for a continuance to "finalize the retention of counsel," citing Guillen v. State , 189 So.3d 1004 (Fla. 3d DCA 2016). There, the Third District held that the denial of a motion for a continuance was not preserved because defense counsel failed to renew the motion at the start of trial and expressed he was ready to proceed. Id. at 1008. Because Guillen only addressed preservation of the denial of a motion for continuance, it does not support a lack of preservation here.

In fact, we previously reviewed the denial of a request for private counsel without the defendant having moved for a continuance. See Evans v. State , 741 So.2d 1190, 1191 (Fla. 4th DCA 1999). There, we affirmed the denial of defendant's request to substitute private counsel. Id. at 1192. We discussed our prior decision in Foster , where we noted that the defendant "had failed to raise any specific deficiency in counsel's performance, that appointed counsel was ready for trial, and that the defendant had given no reason for waiting until the morning of trial before bringing his dissatisfaction to the trial court's attention." Foster , 704 So.2d at 173.

In short, the defendant did not fail to preserve the issue for review by failing to request a continuance.

On the merits, the defendant argues the trial court's insufficient inquiry and findings on his request for private counsel warrant a reversal. The State responds that the last-minute nature of the request, the length of time the case had been pending, and the court's reference to the Rules of Judicial Administration warrant an affirmance. We agree with the State.

The Sixth Amendment's right to counsel creates a presumption favoring a defendant's choice of counsel. Wheat v. United States , 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). But, this right is not absolute. Id. at 159, 108 S.Ct. 1692. "[T]he essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id.

When ruling on a request for substitution of counsel, a trial court should focus on balancing "the defendant's right to discharge his attorney and obtain another against the court's interest in judicial administration and avoiding unreasonable delay." Jackson v. State , 979 So.2d 442, 444 (Fla. 4th DCA 2008). The presumption favoring a defendant's choice of counsel is rebutted when the latter interest outweighs the former. Id.

Generally, a court should conduct an adequate inquiry into the surrounding circumstances and make findings to ensure that its denial of the request is not arbitrary. Valcarcel v. State , 201 So.3d 795, 797-98 (Fla. 4th DCA 2016).

In balancing the defendant's right to counsel of choice against the court's interest in judicial administration, the court should consider if:

(1) the request was made in bad faith or as a delay tactic;
(2) the State will suffer prejudice; and (3) the court's schedule will allow a continuance.

Id. at 798 ; see also Deal v. State , 145 So.3d 212, 214 (Fla. 4th DCA 2014).

The court's inquiry should be extensive enough to ascertain the surrounding circumstances and "make a clear finding that [the defendant's] constitutional rights were not arbitrarily denied." Valcarcel , 201 So.3d at 798. The court may question the defendant or defense counsel to determine the reason for making the request. See id. ; Deal , 145 So.3d at 213, 215.

Although requests for substitution of counsel on the eve of trial are disfavored, we have held that this fact alone does not dispose of the balancing test to be undertaken. Alvarez v. State , 75 So.3d 420, 422 (Fla. 4th DCA 2011). Admittedly, the trial court's inquiry here was de minimus. When the court was advised of the defendant's preference to investigate private counsel, the trial court simply reminded him that 217 days had passed and his counsel was ready for trial.

From the record, we can detect that the defendant made his request for private counsel on the day of trial. He had not retained a lawyer, but simply indicated that he wanted another set of eyes to review his case. He suggested that the lawyers he had talked to would hurry to be ready for trial quickly. He did not identify a specific lawyer, did not suggest the public defender's representation was inadequate, and did not indicate he could not work with the public defender. The court identified three prior defense continuances, and the Florida Supreme Court's goal of resolving felony cases within six months as reflected in the Rules of Judicial Administration. And, the next day, the defendant failed to appear for trial.

We affirm because even though the trial court's inquiry could certainly have been more thorough and the findings more specific, this last-minute attempt to postpone his trial without more detail did not warrant the granting of such a motion.

Affirmed.

Warner and Forst, JJ., concur.