author: Jay, J. Makar, J., concurring.

text:
    SDI QUARRY a/k/a Atlantic Civil, Inc., Appellant, v. GATEWAY ESTATES PARK CONDOMINIUM ASSOCIATION, Appellee.
    No. 1D17-1086
    District Court of Appeal of Florida, First District.
    June 22, 2018 Rehearing Denied August 7, 2018
    Diane H. Tutt of Conroy Simberg, Hollywood, for Appellant.
    Dale C. Glassford of Dale C. Glassford, P.A., Miami, for Appellee.
   Jay, J.

Appellant seeks review of a final administrative order awarding compensatory damages to Appellee on the ground that blasting activities at Appellant's quarry caused damage to the shore of Appellee's lake. Appellant asserts that the order should be reversed because (1) Appellee's petition for damages was time-barred under section 552.40(1), Florida Statutes (2015) ; and (2) Appellee failed to prove that Appellant's blasting activities damaged Appellee's lake. We disagree and affirm.

I.

The administrative law judge's final order outlined the relevant facts of this case, many of which are undisputed and are recounted here. Specifically, Appellee is a condominium association that oversees a mobile home community consisting of 220 mobile homes and two vacant lots. Appellee holds title to a number of common elements, including a man-made lake-the South Lake-that was excavated sometime before 1975 when Appellee was organized.

In 2005, Appellant began blasting at three mines near the South Lake, the closest being located approximately 7000 feet from Appellee's property. This blasting continued without significant interruption from that time. Appellant performed twenty-five blasts between July 1, 2015, and October 17, 2016. Based on this figure, the administrative law judge drew the reasonable inference that the number of historical blasts affecting Appellee's property was in the range of 200 to 250.

In 2011, about five or six years after Appellee began its blasting activities, the shore of the South Lake began to destabilize, and saturated soil at the edge of the lake began to slough and slump into the water. This opened up fissures in the slope, which undermined the upward bank. In time, holes appeared in the bank, and pieces of the once level surface fell off, resulting in a narrowing of the horizontal area from roughly five feet to about a foot and a half. Residents observed the ground falling into the water in close temporal proximity to the blasting.

In late 2014 or early 2015, Appellee retained James McNew, the president and owner of a consulting business called Upper Keys Consulting, to give recommendations concerning restoration of the lake bank. On July 18, 2015, Upper Keys Consulting prepared a proposal in the amount of $840,000.00 for restoring the shore of the South Lake and installing preventive devices to protect the shoreline against erosion from further blasting.

On February 22, 2016, Appellee filed a petition pursuant to the Florida Construction Materials Mining Activities Administrative Recovery Act, alleging that Appellant had caused damage to the South Lake through the use of explosives in connection with construction materials mining. Appellee subsequently moved to amend the petition to allege that it was seeking damages pursuant to the proposal from Upper Keys Consulting dated July 18, 2015. Appellant opposed the motion on the ground that the alleged damages were based on an estimate prepared more than 180 days before the filing of the original petition, rendering the petition untimely under section 552.40(1), which required the petition to be filed within 180 days "after the occurrence of the alleged damage." The administrative law judge granted the motion to amend without prejudice to Appellant's right to present evidence at the final hearing that the amended petition was untimely.

At the final hearing, the administrative law judge addressed Appellant's motion to exclude Appellee's proposed expert, James McNew, on the ground that he was not competent to testify because he had no training or significant education in seismology, geotechnical engineering, or geology, other than one class taken in college in the early 1970s. The administrative law judge preliminarily denied the motion without prejudice to revisiting the issue when McNew was called as a witness.

Over Appellant's renewed objection, McNew was allowed to testify as an expert on causation. During direct examination, McNew stated that he consulted extensively with his colleague, Jack Altoff; that they produced a set of notes based on their conversations and extensive research of the literature; and that these conversations formed the basis of his opinion as to the causes of the slope stability failures around the lake. The administrative law judge allowed McNew to testify despite Appellant's objection that McNew "admitted that some of his opinion was going to be based on what another engineer told him."

McNew opined that vibrations from Appellant's blasting caused the problems at Appellee's lake. Specifically, he explained that these vibrations acted upon the soft layer of silt atop the shore and bank of the South Lake, causing the liquefaction of this saturated soil extending up to eight feet beneath the surface. This led to the compaction of the loose, wet soil around the edges of the lake, opening up cracks and holes and weakening the slope, which began to erode and fail. McNew conceded that there were no legal standards in Florida or elsewhere establishing thresholds above which lakeshore slope instability would be expected under the stress of blast-related vibrations. In formulating his opinion, McNew stated that he used Transit Authority Guidelines rather than mining guidelines because the transit guidelines provided a more realistic standard where the damages were not to buildings. McNew also ruled out other possible causes such as earthquakes or heavy truck hauling near the lake.

During Appellant's case, Appellant presented expert testimony from two Florida-licensed professional engineers, Steven Black and Eric Stern, who opined that erosion of the lakeshore was caused by the action of wind, waves, and rainwater percolating down and through the ground and pulling the silt from the bank. Both witnesses concluded that Appellant's blasting activities were not close enough to Appellee's property to impart sufficient energy to affect the soil around the South Lake. Black also ruled out heavy truck traffic as a cause, but conceded that heavy truck traffic could affect the silt layer of a lakeshore over a continuous period of time.

Appellant also presented expert testimony from Jeffrey Straw, who opined that soil consolidation would not occur at the "peak particle velocities" or PPV levels likely to have occurred at the lakeshore as a result of Appellant's blasting. Straw disagreed with McNew's opinion that mining guidelines were not applicable in this case.

In his final order, the administrative law judge found James McNew's opinion on causation to be more persuasive than the competing view offered by Appellant's experts. In doing so, he noted that Steven Black's categorical opinion that blasting could not be a cause of the damage to Appellee's lake was undercut by his concession that heavy truck traffic could affect the silt layer of a lakeshore over a continuous period of time. The administrative law judge also found that the circumstantial evidence supported McNew's opinion. Specifically, he noted that "the South Lake had existed for at least 35 years without experiencing the deterioration of the shore and bank that became noticeable within just five or six years after the start of the blasting, and which worsened over time as the blasting has continued." He also noted "the persuasive evidence that visible damage occurs in the wake of individual blasts."

Although the administrative law judge credited Steven Black's testimony to the extent it supported a finding that erosion from wind, wave, and rainwater was a natural cause of some of the bank erosion at the South Lake, he found that Appellant's blasting combined with natural forces and constituted a legal cause of the claimed property damage. He also accepted Jeff Straw's testimony concerning the PPV levels likely to have occurred at the lakeshore as a result of Appellant's blasting, but rejected Straw's opinion that soil consolidation would not occur at those levels, concluding that this testimony was unpersuasive because Straw merely conveyed the opinions of the authors of scientific literature that Straw had read; authoritative literature was supposed to be used on cross-examination, not to bolster Straw's opinion testimony; and Straw's testimony was inconsistent with Black's testimony that ground-borne vibration from heavy trucks could cause soil erosion at the lakeshore.

Finding that blasting was an ultra-hazardous activity for which strict liability was imposed, the administrative law judge concluded that Appellee was not required to prove that Appellant was negligent or that Appellant's blasting was the sole cause of Appellee's damage. He awarded $840,000.00 in damages as requested by Appellee based on the proposal from Upper Keys Consulting dated July 18, 2015, to restore and protect the shoreline against erosion from further basting. He rejected Appellant's claim that Appellee's petition was untimely, explaining that "as a matter of fact, the property damage at issue is present and continuing; the harm to the lakeshore is cumulative, indivisible, and inseparable." This appeal followed.

II.

In 2003, the Florida Legislature enacted sections 552.32 - 552.44, Florida Statutes, collectively entitled the Florida Construction Materials Mining Activities Administrative Recovery Act. Ch. 2003-62, Laws of Fla. Section 552.36(1), Florida Statutes (2015), provides that "[t]he Division of Administrative Hearings has exclusive jurisdiction over all claims for damages to real or personal property caused by the use of explosives in connection with construction materials mining activities." In addition, section 552.40(1), Florida Statutes (2015), provides that "[a] person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction materials mining activities by filing a petition with the Division of Administrative Hearings ... within 180 days after the occurrence of the alleged damage." Section 552.40(7) further provides that "[i]f the administrative law judge finds that the preponderance of the evidence presented demonstrates that the petitioner's damages were caused by the respondent's use of explosives, the administrative law judge shall set forth in a final order precise findings as to the damages attributable to the respondent and shall direct the respondent to pay damages in an amount supported by the preponderance of the evidence presented within 30 days after the final order is issued, unless the matter is appealed in accordance with s. 552.42."

A.

Initially, Appellant claims that the administrative law judge erred in awarding damages to Appellee pursuant to section 552.40 because Appellee's petition was not filed "within 180 days after the occurrence of the alleged damage." Specifically, Appellant notes that Appellee filed its petition on February 22, 2016, seeking damages of $840,000.00 based on the written proposal dated July 18, 2015. However, the administrative law judge rejected Appellant's claim that the petition was time-barred concluding that "the property damage at issue is present and continuing; the harm to the lakeshore is cumulative, indivisible, and inseparable." In a continuing tort action, the statute of limitations runs from the time of the last tortious act. Millender v. State, Dep't of Transp. , 774 So.2d 767, 769 (Fla. 1st DCA 2000).

Although no Florida case law has addressed this precise issue, other jurisdictions have recognized that repeated blasting activities can constitute the continuing tort of trespass. See Haynie v. Howmedica Osteonics Corp., 137 F.Supp.2d 1292, 1294 n.5 (S.D. Ala. 2000) ; Oswald v. Metro. Life Ins. Co. , 968 F.Supp. 639, 645-46 (M.D. Ala. 1997) ; Moon v. Harco Drugs, Inc. , 435 So.2d 218, 220-21 (Ala. 1983) ; Donaldson v. Amerikohl Mining, Inc. , No. 1892 WDA 2014, 2015 WL 3938721 (Pa. Super. Ct June 9, 2015). The administrative law judge found that Appellant performed twenty-five blasts between July 1, 2015, and October 17, 2016, and drew the reasonable inference that the number of historical blasts affecting Appellee's property was in the range of 200 to 250. Furthermore, Appellant sought damages to repair and restore the lakeshore and to abate future erosion of the lakeshore. These constitute temporary damages, which are properly recovered in a continuing tort action for trespass. See Town of Miami Springs v. Lawrence , 102 So.2d 143, 146 (Fla. 1958) ; Baker v. Hickman , 969 So.2d 441, 443 (Fla. 5th DCA 2007) ; Carlton v. Germany Hammock Groves , 803 So.2d 852, 856 (Fla. 4th DCA 2002) ; Kulpinski v. City of Tarpon Springs , 473 So.2d 813 (Fla. 2d DCA 1985) ; see also Bisque Assocs. of Fla., Inc. v. Towers of Quayside No. 2 Condo. Ass'n, Inc. , 639 So.2d 997, 999 (Fla. 3d DCA 1994) (distinguishing between permanent damages, which are measured by diminution in the value of property, and temporary damages, which are measured by the cost of repairing or restoring the property to its original condition). Based on the above, we conclude that Appellee alleged a continuing tort such that each blast performed by Appellant gave rise to a new cause of action for which successive actions for damages might be brought.

Even if Appellee alleged a continuing tort, Appellant argues that Appellee can only recover damages from blasting activities that occurred less than 180 days before the filing of Appellee's petition. Because Appellee sought damages based on a written proposal dated July 18, 2015, Appellant asserts that Appellee sought damages for blasting activities occurring more than 180 days before the filing of Appellee's petition, which were timed barred by section 552.40(1). However, the administrative law judge awarded $840,000.00 based on the written proposal "for restoring the shore of the South Lake and installing preventative devices to protect the shoreline against erosion from future blasting." The one-page proposal does not break down the cost of restoring the lake to its original condition-which could be time-barred-and the cost of installing preventive devices to protect the shoreline against erosion from future blasting-which would not be time-barred. Testimony at the final hearing did not break down these costs in further detail.

Furthermore, Appellant has not established that damages for restoration of the lake are entirely untimely. James McNew testified at the final hearing that his proposal was current as of the date of the final hearing; Appellee presented testimony that the lakeshore continued to deteriorate after Appellant's blasting activities in 2016, which fell within the 180-day limitations period; and the administrative law judge found that "[t]he stability of the slope has continued to worsen, and, as of the final hearing, the deterioration of the lakeshore, like the blasting, was ongoing." To the extent that a portion of the damage award might be time-barred, Appellant has failed to meet its burden of showing what portion of the award was barred by the statute of limitations. See Town of Miami Springs , 102 So.2d at 146 (holding that the burden is on the pleader to prove the defense of the statute of limitations); State, Dept. of Envtl. Prot. v. Fleet Credit Corp. , 691 So.2d 512, 513 (Fla. 4th DCA 1997) ("Fleet's failure to controvert this evidence precludes its argument that the statute of limitations bars the instant action, as Fleet must carry the burden of proving a statute of limitations defense."); see also Hanano v. Petrou , 683 So.2d 637, 639 (Fla. 1st DCA 1996).

B.

Assuming that Appellee's petition was not untimely, Appellant claims that Appellee failed to prove that Appellant's blasting activities damaged Appellee's lake. In doing so, Appellant claims that James McNew should not have been accepted as an expert under the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which was adopted when section 90.702, Florida Statutes, was amended in 2013. Ch. 2013-107, § 1, Laws of Fla. Although the Florida Supreme Court declined to adopt this amendment to the extent it was procedural in In re Amendments to Florida Evidence Code , 210 So.3d 1231 (Fla. 2017), the amendment would still apply in administrative proceedings under Chapter 120, Florida Statutes, which are not governed by rules of procedure promulgated by the Florida Supreme Court. See § 120.54(5)(a)1., Fla. Stat. (2016) (providing that the uniform rules adopted by the Administration Commission shall be the rules of procedure for each agency subject to Chapter 120). However, even though the Daubert standard would apply, Appellant's claim is not preserved for appeal because Appellant never raised a Daubert objection or requested a Daubert hearing below. See Rojas v. Rodriguez , 185 So.3d 710 (Fla. 3d DCA 2016) ; Booker v. Sumter Cty. Sheriff's Office/N. Am. Risk Servs. , 166 So.3d 189, 192-93 (Fla. 1st DCA 2015). Accordingly, we cannot address Appellant's legal challenge to McNew's opinion to the extent Appellant alleges a flawed scientific foundation or methodology.

In its motion to exclude McNew's testimony, Appellant simply claimed that although McNew had a bachelor's degree in mechanical engineering in 1972, he was neither trained nor experienced in the fields of seismology, geotechnical engineering, or geology, which was necessary for the witness to express an opinion on the causal relationship between Appellant's blasting activities and Appellee's alleged damages. Appellant repeated this claim during the final hearing without further elaboration. The administrative law judge denied Appellant's motion and addressed the issue in his final order as follows:

Although Mr. McNew is not licensed as a professional engineer, he holds a bachelor's degree in mechanical engineering, awarded in 1972, and during the course of a 50-plus-year career has been involved as a consultant or project manager on a number of marine projects, including the construction of 27 bridges in South Florida, all of which had earthwork abutments and adjoining bodies of water. Some of the projects Mr. McNew supervised involved drilling and blasting operations. As a result, Mr. McNew has acquired specialized knowledge relating to the use of explosives in and around saturated and submerged soils from long practical experience, which in addition to his formal education and training qualified him to testify as an expert on causation in this case.

Based on these findings-which are supported by competent substantial evidence-the administrative law judge did not abuse his discretion in finding McNew qualified to testify as an expert on causation in this case. See Chavez v. State , 12 So.3d 199, 205 (Fla. 2009) ("A witness may be qualified as an expert through specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge. An expert witness may acquire this specialized knowledge through an occupation or business or frequent interaction with the subject matter."); Brooks v. State , 762 So.2d 879, 892 (Fla. 2000) ("It is within the trial court's discretion to determine a witness's qualifications to express an opinion as an expert, and the trial court's determination in this regard will not be reversed absent a clear showing of error.").

Appellant also objected below to McNew's testimony on the ground that McNew "admitted that some of his opinion is going to be based on what another engineer told him." Specifically, McNew testified that he consulted extensively with his colleague, Jack Altoff; that they produced a set of notes based on their conversations and extensive research of the literature; and that these conversations formed the basis of his opinion of the causes of the slope stability failures around the lake. In Linn v. Fossum , 894 So.2d 974 (Fla. 1st DCA 2004), this court held that the trial court did not err in admitting the expert opinion testimony of a urologist, who testified that she consulted with other urologists in formulating her opinion, noting that "[i]t is proper for an expert witness to consult with other experts in the same field in formulating an opinion." Id. at 977. Although the Florida Supreme Court quashed this decision, it did so on the narrower ground that the trial court erred in allowing an expert to testify on direct examination that she consulted with colleagues, approving the Fourth District's decision in Schwarz v. State , 695 So.2d 452 (Fla. 4th DCA 1997). Linn v. Fossum , 946 So.2d 1032 (Fla. 2006). In Schwartz , the Fourth District held that "while there was nothing improper about Dr. Burton consulting with other experts in his field , he should not have been allowed to testify that he did so on direct examination." 695 So.2d at 455 (emphasis added). Accordingly, while it may have been potentially improper for McNew to testify on direct examination that he consulted with a colleague in arriving at his opinion, McNew's consultation with a colleague was not a basis for excluding McNew's testimony in its entirety. See Schoenwetter v. State , 931 So.2d 857, 870-71 (Fla. 2006) (holding that the trial court did not abuse its discretion by allowing a medical examiner-who did not perform the subject autopsies-to testify about the cause and manner of death based, in part, on discussions with the medical examiner who did conduct the autopsies); Univ. of Fla. Bd. of Trs. v. Stone ex rel. Stone , 92 So.3d 264, 272 (Fla. 1st DCA 2012) ; G.V. v. Dep't of Children & Families , 795 So.2d 1043, 1048-49 (Fla. 3d DCA 2001).

Even if the administrative law judge did not abuse his discretion in admitting McNew's testimony, Appellant asserts that the administrative law judge should not have relied on it because McNew did not specifically state his opinion within a reasonable degree of scientific probability or certainty. However, when asked for his final opinion, McNew testified-without equivocation-that Appellant's "blasting and the vibrations created from the blasting caused this problem[,]" rendering the testimony competent evidence that the administrative law judge could consider on the issue of causation. See Brown v. Glade & Grove Supply, Inc. , 647 So.2d 1033, 1036 (Fla. 4th DCA 1994) ; see also Miami-Dade Cty. Sch. Bd. v. A.N., Sr. , 905 So.2d 203, 206 (Fla. 3d DCA 2005) ("We hold that the substance of the psychologist's testimony when considered in its entirety meets the threshold of 'reasonable probability' ...."); cf. Buenoano v. State , 527 So.2d 194, 197-98 (Fla. 1988) ("Expert medical testimony as to the cause of death need not be stated with reasonable certainty in a homicide prosecution and is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death.").

In addition to McNew's expert testimony, the administrative law judge relied on circumstantial evidence to find a causal connection between Appellant's blasting activities and the damage to Appellee's lake. Causation can be established by both expert testimony and circumstantial evidence. See Gant v. Lucy Ho's Bamboo Garden, Inc. , 460 So.2d 499 (Fla. 1st DCA 1984) ; see also Brown , 647 So.2d at 1036. Generally, the issue of proximate causation is to be resolved by the trier of fact. Coker v. Wal-Mart Stores, Inc. , 642 So.2d 774, 778 (Fla. 1st DCA 1994). A finding of causation will be sustained on appeal if it is supported by competent substantial evidence. See State, Dep't of Children & Family Servs. v. Amora , 944 So.2d 431, 435-36 (Fla. 4th DCA 2006). We conclude that competent substantial evidence supports the administrative law judge's finding that Appellant's blasting activities were a contributing cause of the damage to Appellee's lake. The administrative law judge correctly concluded that this was sufficient to subject Appellant to strict liability because blasting is an ultra-hazardous activity. See Poole v. Lowell Dunn Co. , 573 So.2d 51, 52 (Fla. 3d DCA 1990) (holding that defendant engaged in blasting activities, which the trial court found to be ultra-hazardous and subject to strict liability, was liable for the consequences of his conduct even though some other cause contributed to the same damage).

C.

Finally, Appellant claims that the trial court erroneously rejected the expert testimony of Jeffrey Straw. The decision to accept or reject expert testimony is reviewed under an abuse of discretion standard. Beach Cmty. Bank v. First Brownsville Co. , 85 So.3d 1119, 1121 (Fla. 1st DCA 2012). However, discretion in rejecting expert testimony cannot be exercised arbitrarily and requires some reasonable basis in the evidence. Id. The administrative law judge did not reject Straw's testimony in its entirety, but only his opinion that soil consolidation would not occur at the PPV levels likely to have occurred at the lakeshore as a result of Appellant's blasting. The administrative law judge found this testimony unpersuasive because Straw merely conveyed the opinions of the authors of scientific literature Straw had read; authoritative literature was supposed to be used on cross-examination, not to bolster Straw's opinion testimony; and Straw's testimony was inconsistent with Black's testimony that ground-borne vibrations from heavy trucks could cause soil erosion at the lakeshore. Contrary to Appellant's assertions, the administrative law judge's rejection of this testimony was not arbitrary and had some reasonable basis in the evidence.

III.

Because Appellant failed to establish that any of the administrative law judge's rulings constituted reversible error, we affirm the final administrative order in its entirety.

AFFIRMED .

Wetherell, J., concurs; Makar, J., concurs with opinion.

Makar, J., concurring.

This case involves seismological liability-science, in which dueling experts tried to explain whether the heavily-regulated South Florida underground mining detonations of SDI Quarry, Inc., commenced in 2005, caused the edge of a man-made lake located over 1.25 miles away to slowly degrade about one yard landward starting six years later. I reluctantly concur because our review is confined to accepting the science and lay testimony as presented, which was not subject to scrutiny under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), leaving vast discretion as to causation in the fact-finder's hands.

South Lake is one of two man-made lakes owned by a condominium association that oversees a mobile home community known as Gateway Estates, located in Miami-Dade County, Florida. The lake-excavated sometime before 1975-is narrow and dog-bone shaped, approximately 800 feet long and between 50-120 feet wide. It lies about 200 feet south of the community's other artificial lake, which is rectangle-shaped and aptly named North Lake.

?

Since 2005, SDI Quarry conducted underground blasts no closer than 7,000 feet east of South Lake, averaging about 20 times per year. Each was closely monitored and their vibrations were recorded. All were within lawful levels established by state law (the limit is a peak particle velocity (PPV) of 0.5 inches per second); none exceeded 0.2 PPV at South Lake (most being 0.1 PPV). No damage to South Lake was evident for five to six years of blasting until 2011, when its shore first began to show signs of destabilization, resulting in this litigation under Florida's Construction Materials Mining Activities Administrative Recovery Act, which provides a "specific administrative remedy" for claims of damages from explosive use in construction materials mining activities. §§ 552.32 -40, Fla. Stat.

The issue of whether the detonations caused harm to South Lake's shoreline was the focal point of the proceedings. The property owners' expert-a marine construction consultant who had no training/education in seismology, geology, or related disciplines-and based his opinion on consultations with a colleague and Internet research-claimed that vibrations from the underground explosions traveled over 1.25 miles (as the mole bores), resulting in liquefaction of deep-seated muck and ultimately a weakened and eroding lake bank; he ruled out earthquakes and heavy trucks driving nearby as causes. A few property owners said they noticed damage to the lakeshore after individual blasts had occurred (though no one felt the vibrations at the time). The mining company's experts-both experienced and licensed professional engineers, one specializing in geotechnical soil conditions and the other specializing in measuring vibration in blasting, pile driving, and heavy construction-countered that the dissipated seismic energy at that distance would not cause any harm; they also pointed out that erosion of the lakeshore was likely due to rainwaters, wind, and wave action causing the bank's silt to flow downward via gravity. The blasts were all within state standards, which doesn't negate potential liability, but no generally accepted scientific standard exists as to relevant threshold PPV levels for when man-made lakeshores would be affected adversely by vibrations from afar. Scientific standards exist for buildings, but the lack of standards for artificial lake banks forced the experts to conjecture as to what levels were likely to trigger physical degradation like that at South Lake.

Given these competing narratives of scientific causation, the administrative law judge-as finder-of-fact in this category of cases-said it was a "close case" but favored the property owners' version, supplementing his legal conclusion as to causation with his "common knowledge and ordinary experience" as to how vibrations from nearby trucks compare vis-a-vis underground blasts, which he used to discredit one of the company's experts. Because no seismic standards for waterbody shores were established by the evidence, the administrative law judge resorted to "inferring" that vibration from nearby traffic on a major highway would be less than that of the blasting, again discrediting the company's expert. Notably, the property owners' expert wasn't subject to a Daubert objection or hearing, which might have resulted in the exclusion of portions of his testimony for lack of a scientific foundation that only experts in seismology and geotechnical soil conditions could provide. Other than the opinion testimony of the property owners' expert, no scientific evidence existed that the lake banks were adversely affected by the distant underground blasts (lay testimony merely supported his testimony). But we take the case as presented, which provides no preserved basis for reversal as to causation.

The result in this case harkens back fifty years, to pre- Daubert days, when the federal government was sued for its sonic boom test program, which resulted in liability for seismic damage to homes near Oklahoma City. United States v. Gravelle , 407 F.2d 964 (10th Cir. 1969). The six-month program, consisting of 1,253 test flights at altitudes of 21,000-50,000 feet, was intended to "gain information probing the feasibility of developing supersonic commercial aircraft and the particular purpose was to measure structural response to sonic booms as well as 'determine the normal reaction of ground population over a significant period of time to sonic boom pressures.' " Id. at 966. On appeal, the "questions presented [were] very limited and the principal issue probe[d] the quality and quantity of evidence necessary to sustain an affirmative finding of causation of damages occasioned by the government's wilful [sic] tort." Id. at 965-66.

Much like this case, the sonic boom trial involved the same competing narratives of causation: the (arguably) high quality/quantity of scientific evidence presented by the defense experts establishing no possibility of causation versus the (arguably) lesser quality scientific testimony of the plaintiffs' expert (overlaid with lay testimony of property owners) who opined that sonic boom vibration was the cause of the damage to their homes (most of which consisted of the "formation of new cracks; glass breakage; the reopening of old cracks which had been repaired prior to the booms; and the popping of nails in plasterboard"). Id. at 966.

Indeed, the federal government, in Gravelle , put on massive amounts of scientific evidence (the appellate court characterized it as "impressive"), but the legal standard on appeal was not who provided the highest quality and greatest quantity of scientific input; instead, the only inquiry was whether the district judge's finding of causation was "clearly erroneous." The appellate court, noting that the "quality of proof under such circumstances [sonic boom testing] can only be, and need only be, minimal," a "standard [that] was met by the experts' opinion that the subject damage, viewed in the light of the homeowners' account of their properties' history, was 'likely' caused by the sonic booms." Id. at 969.

Notably, the causation question was not exclusively (and perhaps predominantly) a scientifically-driven inquiry in Gravelle ; nor was it one in this case. Given two narratives as to scientific causation, a potential tie-breaker of sorts is the non-scientific testimony of the affected property owners when used to buttress their expert. In Gravelle , for example, the homeowners "testified in some instances that particular items of damage occurred in front of their eyes at the instant of a boom; more often this testimony was to the effect that defects in the homes were not present in the structures before the booms and were found for the first time after the booms or worsened during the progress of the continuing program." Id. at 966-67. The federal government "emphatically attack[ed] both the legal competency and the value of this lay testimony to in any way probe the ultimate issue of causation." Id. at 967. Rejecting this argument, the appellate court said:

Such testimony, if deemed credible, may be considered by the fact-finder as establishing a circumstance which in turn is pertinent to the issue of causation. The lay witnesses could not, of course, competently testify as to the forces that sonic booms create for such a subject requires specialized knowledge and understanding. However the desirability or need for expertise in testimony probing an ultimate fact does not preclude, as a matter of law, all other evidence for 'expert evidence does not foreclose lay testimony concerning the same matter which is within the knowledge and

comprehension of the lay witness.' ... Although the judgments in the case at bar are dependent on acceptance of the testimony of the lay witnesses by both the fact-finder and the expert witnesses called by [plaintiffs], we hold that such acceptance is legally proper in both instances.

Id. at 967 (citations omitted). Stated differently, non-scientific lay testimony that logically bolsters the testimony of the scientific expert is permissible, even if it independently lacks a scientific basis.

Applied here, the administrative law judge had broad discretion to construct a conclusion as to causation. He could have sided with the company, concluding that its experts were more credible and that no causation was proven; he could have sided with the property owners' expert, concluding that causation was proven; or he could have made variegated findings (as he did, siding with each side's experts and evidence to some extent) and found or denied causation; he also could have found that the blasting was one of a number of man-made and natural factors (e.g., tropical storms and hurricanes) that contributed to causing the property damage (as he did) and decided that it was significant or not. Different administrative law judges could reach different conclusions. On this record, limited by no Daubert review, most any finding as to causation or lack thereof would be deemed legally supportable under appellate review; the administrative law judge said as much, noting that "there is competent, substantial evidence on both sides."

Some people will deem it scientifically far-fetched to believe that lawful underground blasting in the range of 0.1 to 0.2 PPV over 1.25 miles away caused a man-made lake to gradually degrade over a decade for which $840,000 in compensation is owed; others will see it as entirely possible, and the damage award as a just result for an ultra-hazardous activity. Some will decry reliance on testimony by property owners that blasting was coincident with their damages, citing self-interest and bad science; others will applaud that such testimony and the administrative law judge's reliance on "common knowledge and ordinary experience" provide a necessary dose of reality to counter lifeless scientific data that lacks context. A skeptical few might go so far as to say that a Magic-8 Ball would be just as accurate in deciding causation, perhaps justifying greater scientific standards or a court-appointed expert to assist the judges. See, e.g. , Rule 706, Fed. R. Evid. (2018) ("Court Appointed Expert Witnesses"). Such is the current state of debate about causation and seismological liability-science, which hasn't changed much in fifty years.

      There is nothing in the statutory language of the Florida Construction Materials Mining Activities Administrative Recovery Act expressing an intent to modify the common law regarding strict liability for ultra-hazardous activities. Accordingly, we presume that the Act was not intended to alter that particular aspect of the common law. See Ady v. Am. Honda Fin. Corp. , 675 So.2d 577, 581 (Fla. 1996) ("A court will presume that ... a statute was not intended to alter the common law other than by what was clearly and plainly specified in the statute.").

      The record contains no reference to whether North Lake or nearby lakes, retention ponds or the like (e.g., water hazards on a golf course by the blast site) suffered a similar fate.

      The three issues raised were: "1. Whether, as a matter of law, plaintiffs failed to sustain their burden of proving that sonic booms generated by Government aircraft caused damage to their properties. 2. Whether the district court's determination that the sonic booms caused the damage is clearly erroneous. 3. Assuming that the sonic booms did cause the damage, whether the district court erred in not finding that the damage caused was de minimis." Id. at 966.

      The court in Gravelle , much like the administrative law judge here, injected a dose of "common knowledge" in rejecting the defendant's experts. In Gravelle , the experts pointed out that "the threshold of human irritation from auditory and motion stimuli is much lower than the irritability threshold for structures," such that homeowners experiencing sonic booms might think their homes were "about to fall apart, when in fact no structural damage was occurring" particularly because they were "forewarned, as here, of the occurrence of sonic booms and the expressed willingness of the government to pay for resultant damages, if any." 407 F.2d at 967. Though finding the premise of this point "to be indisputable as a matter of common knowledge," the court nonetheless deemed it a credibility issue for jurors, rather than an appellate court, to adjudge. Id.


source: Caselaw Access Project

author: SALARIO, Judge.

license: Public Domain

text:
    Suk C. KIM, Appellant/Cross-Appellee, v. JUNG HYUN CHANG, Appellee/Cross-Appellant.
    Case No. 2D16-4063
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018. Rehearing Denied August 1, 2018
    Laura H. Howard and Mark S. Howard of Mark S. Howard, P.A., Tampa (withdrew after briefing); Daniel A. Nicholas of Litchfield Cavo LLP, Tampa (substituted as counsel of record), for Appellant/Cross-Appellee.
    Brian P. Rush of Woodlief & Rush, P.A., Tampa, for Appellee/Cross-Appellant.
   SALARIO, Judge.

Suk Kim appeals from a final judgment that, among other things, awarded Jung Chang $15,000 on a counterclaim for battery and $165,000 on a counterclaim for intentional infliction of emotional distress. Ms. Chang cross-appeals the same judgment insofar as it denied her both a recovery on a counterclaim for breach of an oral loan agreement with Mr. Kim and an award of punitive damages. Because Ms. Chang failed to introduce legally sufficient evidence that she suffered severe emotional distress, we reverse the judgment entered against Mr. Kim on the intentional infliction counterclaim. As to Mr. Kim's appeal on the battery counterclaim and Ms. Chang's cross-appeal, we affirm the judgment without comment.

I.

A.

The evidence taken in the light most favorable to the judgment reflects the following. Born in South Korea, Ms. Chang moved to the United States in 1999. Her sister, Sook Chang, was married to Mr. Kim and lived in Tampa. Mr. Kim and Sook Chang had a grocery store on Hillsborough Avenue. Ms. Chang and her son moved in with Mr. Kim and Sook Chang, and Ms. Chang worked at the store. Mr. Kim and Sook Chang adopted Ms. Chang's son so that he could remain in the United States legally.

In 2001, Ms. Chang agreed to lend Mr. Kim money for repairs and improvements to the grocery store. Like many deals between family members, this one was not clearly spelled out. For example, Mr. Kim and Ms. Chang did not agree on a specific interest rate or time for repayment but seem to have understood that interest would accrue at the "commercial bank rate" and that Mr. Kim planned to repay the loan when he obtained a new loan from an actual bank. All in all, Ms. Chang advanced $164,050 to Mr. Kim, which came from the proceeds of a life insurance policy that were paid to Ms. Chang when her husband died. There is no question that Mr. Kim used the money to make improvements to his store.

In February 2002, Mr. Kim got a bank loan from the Bank of Tampa. Ms. Chang did not then demand repayment of the loan. This may have been because Ms. Chang was concerned about making demands of Mr. Kim before she had become a legal permanent resident of the United States. In September 2007, Ms. Chang asked Mr. Kim why he had not repaid the loan and whether he then had the money to repay it with interest. Ms. Chang says that as a result, she and Mr. Kim orally agreed to extend the due date of the note; Mr. Kim denies it.

In 2008, Ms. Chang tried to get Mr. Kim to repay the loan, which he declined to do. In addition, Ms. Chang says that while she was working in the kitchen at Mr. Kim's home, Mr. Kim approached her, "groped her," and pressed his body against hers. Two months later, Ms. Chang and her son moved out of Mr. Kim's home and into an apartment. Mr. Kim cosigned the papers necessary for her to get the apartment and gave her furniture for it. In 2009, Ms. Chang, Mr. Kim, and Sook Chang entered into a contract whereby Mr. Kim and Sook Chang bought a home that Ms. Chang and her son moved into and gave Ms. Chang the option to buy the property before 2012.

In May 2012, after an extended visit to South Korea, Ms. Chang moved back in with Mr. Kim and Sook Chang. Shortly thereafter, Ms. Chang and Mr. Kim had an argument. Ms. Chang demanded that Mr. Kim pay back the $164,050. Tempers flared. Mr. Kim said he would never pay Ms. Chang back. Mr. Kim pushed Ms. Chang down three stairs and when she attempted to get up pushed her down again. Mr. Kim called the police to evict her without giving her time to collect her belongings. He told the police that Ms. Chang should be arrested and deported to Korea. Ms. Chang suffered pain and a bruise to her leg. Shortly thereafter, Sook Chang sought a divorce from Mr. Kim and both Ms. Chang and Sook Chang filed for injunctions against domestic violence. This litigation swiftly followed.

B.

In November 2012, Mr. Kim filed a seven-count complaint against Ms. Chang for declaratory relief and money damages on various theories. The nub of his complaint was that Ms. Chang falsely stated that Mr. Kim was indebted to her, that Ms. Chang's allegations in her petition for an injunction against domestic violence-which at that point had been dismissed for insufficient evidence-were false, and that Ms. Chang had converted funds from and attempted to embezzle Mr. Kim. Ms. Chang responded with eleven counterclaims against Mr. Kim and Sook Chang. As amended, nine counterclaims sought monetary relief on contract, tort, and equitable theories related to the loan from Ms. Chang to Mr. Kim and were asserted against both Mr. Kim and Sook Chang. The remaining two were for battery and intentional infliction of emotional distress, each arising out of the May 2012 incident in which Mr. Kim pushed Ms. Chang down the stairs and lodged only against Mr. Kim.

The case was later tried to a jury on Ms. Chang's counterclaims for breach of an oral loan agreement and unjust enrichment (both based on the loan from Ms. Chang to Mr. Kim) and battery and intentional infliction of emotional distress (both based on the May 2012 incident). The trial was almost entirely focused on Ms. Chang's claims related to the loan. The parties disputed whether a loan agreement existed, what its terms were, what the interest rate was, whether the loan had been modified, what the damages were, whether any action based on the loan was barred by the statute of limitations, and whether Mr. Kim was estopped from asserting the statute of limitations as a defense to Ms. Chang's loan-based claims. Depending on the legal theory, the recovery on those claims was argued to the jury to be as much as $900,000 or more. The claims for battery and intentional infliction were only a small part of the evidence presented during a six-day trial-much of the testimony had to be translated from Korean to English-and were not argued by Ms. Chang in either her opening statement or closing argument to the jury, except very briefly in a reply to a defense argument on whether Mr. Kim's May 2012 conduct was outrageous.

The jury returned a verdict in Mr. Kim's favor on Ms. Chang's claims for breach of an oral loan agreement and unjust enrichment. In answers to special interrogatories, the jury found that there was an oral agreement between Ms. Chang and Mr. Kim pursuant to which she loaned him $164,050 but that Ms. Chang's claims for breach and unjust enrichment based on that loan were barred by the statute of limitations. The jury returned a verdict in Ms. Chang's favor on the claims for battery and intentional infliction of emotional distress, awarding Ms. Chang $15,000 on the battery claim and $165,000 on the intentional infliction claim. The $150,000 difference between the damage award on the claim for battery and the damage award on the claim for intentional infliction is one of the puzzles of this case. Each claim arose from the same incident, and the jury was instructed that emotional distress was a compensable component of damages for each claim. Yet the awards were wildly divergent.

II.

Mr. Kim argues that the trial court erred by denying his motion for directed verdict on Ms. Chang's counterclaim for intentional infliction of emotional distress. In particular, he asserts that the evidence was insufficient to prove both that his conduct was "outrageous" and that Ms. Chang suffered "severe emotional distress" as required by the elements of the tort of intentional infliction. Assuming for argument's sake that Ms. Chang sufficiently proved outrageous conduct, we hold that she failed to present sufficient evidence that she suffered severe emotional distress.

A trial court's decision on a motion for directed verdict presents a question of law-the sufficiency of a party's evidence-that we review de novo. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009). The law here is settled:

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005) (citations omitted). We now apply that standard to the intentional infliction claim at hand.

Our supreme court first recognized the tort of intentional infliction of emotional distress in 1985 and, in so doing, adopted section 46 of the Restatement (Second) of Torts (Am. Law Inst. 1965) to define the cause of action. Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985) ; see also E. Airlines, Inc. v. King, 557 So.2d 574, 575 (Fla. 1990) ("In McCarson we approved the adoption of section 46, Restatement (Second) of Torts ...."). Section 46 states that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement (Second) of Torts § 46 (Am. Law Inst. 1965). Breaking that statement into its parts, we have held that the elements of intentional infliction are (1) intentional or reckless conduct (2) that is "outrageous" in that it is "beyond all bounds of decency" and "utterly intolerable in a civilized community" (3) and that causes the victim emotional distress (4) that is "severe." Winter Haven Hosp., Inc. v. Liles, 148 So.3d 507, 515 (Fla. 2d DCA 2014) ; see also Liberty Mut. Ins. Co. v. Steadman, 968 So.2d 592, 594 (Fla. 2d DCA 2007).

This case concerns the third and fourth elements, which require that the defendant's conduct has caused the plaintiff severe emotional distress. Unlike the element of outrageousness, which has been discussed and refined in a substantial number of appellate decisions, the requirements of causation and severity are not well developed in our state's law. It seems appropriate, however, to begin with understanding what severe emotional distress is because that ultimately is what the defendant's conduct must cause. On that point, the little authority we have points to the conclusion that "severe emotional distress means emotional distress of such a substantial quality or enduring quality[ ] that no reasonable person in a civilized society should be expected to endure it." Kraeer Funeral Homes, Inc. v. Noble, 521 So.2d 324, 325 (Fla. 4th DCA 1988) (affirming judgment on jury verdict based on instructions containing this language); see also Fla. Std. Jury Instr. (Civ.) 410.5 ("Emotional distress is severe when it is of such intensity or duration that no ordinary person should be expected to endure it."). This definition of severe emotional distress parallels the commentary to Restatement section 46-the section adopted by the supreme court-which contemplates that the element of severe emotional distress involves distress that "is so severe that no reasonable man could be expected to endure it" and that "[t]he intensity and the duration of the distress are factors to be considered in determining its severity."

Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965).

Requiring that the character of the distress suffered by a plaintiff claiming intentional infliction be so severe that a reasonable person could not be expected to endure it comports with the nature of that tort. The cause of action permits recovery for purely emotional injury without necessity of physical impact or manifestation. See R.J. v. Humana of Fla., Inc., 652 So.2d 360, 363 (Fla. 1995) ("We expressly recognized the tort of intentional infliction of emotional distress under which emotional distress is recoverable even if no physical impact is present." (emphasis omitted) ). The fact remains, however, that significant feelings of fright, shame, worry, and humiliation-and others besides-occasioned by the acts of others are, even if regrettable, an unavoidable part of living in society. They are experienced by all of us. Thus, courts that have tackled this issue have recognized that a high standard for determining what kind of emotional distress is remediable in a claim for intentional infliction is necessary to prevent the tort from becoming a venue for litigation over every emotional injury. See, e.g., Rogers v. Louisville Land Co., 367 S.W.3d 196, 209 (Tenn. 2012) ("[S]ome degree of emotional disturbance, even significant disturbance, is part of the price of living in a complex and interactive society." (quoting Restatement (Third) of Torts § 45 cmt. i (Am. Law Inst., Tentative Draft No. 5, 2007) ) ); Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22, 27 (N.C. 1992) (finding "[s]upport for a high standard of proof on the severe emotional distress element" founded on similar concerns). And it is for exactly these reasons that the commentary to Restatement section 46 contemplates that recovery for the intentional infliction of emotional distress is permitted only where the emotional distress inflicted is so severe that no reasonable person could be expected to endure it. See Waddle, 414 S.E.2d at 27-28 ("Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people." (quoting Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965) ) ).

Having determined what severe emotional distress is, we must consider it alongside the element of causation. Taken together, the elements of causation and severe emotional distress require that a factfinder answer both a subjective question and an objective question. The subjective question is whether the plaintiff in fact suffered emotional distress as a consequence of whatever the defendant did. Cf. Alderwoods Grp., Inc. v. Garcia, 119 So.3d 497, 506 (Fla. 3d DCA 2013) (holding that the question of whether a defendant's conduct caused severe emotional distress was not amenable to class action treatment because it involves "highly individualized determinations which cannot be established through common proof"). As explained above, the objective question is whether the emotional distress the plaintiff suffered was so intense or so long-lasting that no reasonable person should be expected to endure it. See Fla. Std. Jury Instr. (Civ.) 410.5. Thus, to prove a claim of intentional infliction at trial, the plaintiff's evidence must sufficiently establish both the existence of emotional distress and the quality of that emotional distress such that a factfinder may reasonably infer both that the distress in fact happened and that the quality of that distress was too much for a reasonable person to be expected to bear.

Ms. Chang's trial evidence was insufficient to establish the quality of the distress she claims to have suffered. Although she testified at length at the trial, Ms. Chang was never asked and never said how Mr. Kim's conduct made her feel, how long the incident affected her, whether the incident left her emotionally unable to do or enjoy things she had done or enjoyed before, whether she had any psychological or physiological problems or symptoms (anxiety, depression, stress, etc.) as a result of what Mr. Kim did, whether she sought professional help, or anything else that might have enabled a jury to make a reasonable inference that Ms. Chang's claimed emotional distress was severe in the sense the law requires. There was no testimony from any fact witness as to what Ms. Chang said or did or how Ms. Chang behaved after the incident from which the jury could have drawn such an inference. Nor was there any expert testimony from which a jury could have found that Ms. Chang suffered distress so intense that no reasonable person could be expected to endure it.

None of that should be understood as a holding as to whether any particular type of evidence or any particular type of mental suffering is necessary to prove severe emotional distress-a matter about which other courts have expressed varying opinions. Compare, e.g., Peterson v. City of Plymouth, 945 F.2d 1416, 1421 (8th Cir. 1991) (holding that allegations of "illness, sleeplessness, humiliation, anxiety, mental anguish, and loss of reputation" were insufficient under Minnesota law, which construes the severity requirement "very restrictively"), with Haverbush v. Powelson, 217 Mich.App. 228, 551 N.W.2d 206, 235-36 (Mich. Ct. App. 1996) (affirming judgment on intentional infliction claim where the plaintiff testified that he was fearful, concerned that the defendant would interfere with his wedding, and worried about his reputation and that the defendant's conduct affected the way he did his work). We do not need to express an opinion on that to decide this case. Here, there was no evidence at all to enable a jury to assess the quality of the emotional distress Ms. Chang claims to have suffered. Because the trial evidence was insufficient to permit the jury to make that assessment, it could not have reasonably inferred that any emotional distress Ms. Chang experienced was so intense or enduring that no reasonable person should be expected to bear it. See, e.g., Pizzimenti v. Oldcastle Glass, Inc., 666 F.Supp.2d 839, 848 (N.D. Ohio 2009) (granting summary judgment where, among other things, the record contained no evidence other than a conclusory assertion of "significant stress" to show severe emotional distress); Rogers, 367 S.W.3d at 211 (finding evidence insufficient to prove severe emotional distress where the plaintiff produced "no evidence, by her own testimony or of anyone else, that she suffered physiological or psychological symptoms, sought medical or professional treatment, or incurred any significant impairment in her daily functioning resulting from the defendants' conduct"). That could be because this case was not really tried as a tort case. It was tried as a case for breach of an oral loan contract and for unjust enrichment.

Ms. Chang's principal argument is not that there was testimony or evidence that bore specifically on her emotional state but rather that Mr. Kim's conduct itself is sufficient to create a jury question on the element of severe emotional distress. Stripped to essentials, the argument is that Mr. Kim's battering a sixty-four-year-old woman after he refused to pay a loan she made to him years prior and then calling the police to have her removed was so awful that a jury could reasonably infer both that Ms. Chang suffered emotional distress and that the distress was of an intensity or duration that no reasonable person should endure.

To be sure, the outrageous nature of the defendant's conduct is relevant evidence in determining whether the defendant caused the plaintiff severe emotional distress. See Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965) ("Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed."). But saying that the defendant's conduct is relevant to the elements of causation and severity is not the same as saying that it is legally sufficient to prove them. "Outrageous" conduct that is "atrocious, and utterly intolerable in a civilized community" is an element of intentional infliction; so awful conduct is necessarily at issue in every such case. Matsumoto v. Am. Burial & Cremation Servs., Inc., 949 So.2d 1054, 1056 (Fla. 2d DCA 2006) (quoting Ponton v. Scarfone, 468 So.2d 1009, 1011 (Fla. 2d DCA 1985) ). But just about any conduct that qualifies as "outrageous," "atrocious," and "utterly intolerable in a civilized community" would seem to be capable of producing severe emotional distress in a person subjected to it. To hold that the outrageousness of the defendant's conduct standing alone is sufficient to prove both causation and severity as to a particular plaintiff is to have the separate and important elements of causation and severity gobbled up by the element of outrageousness. Here, for example, the evidence concerning Mr. Kim's conduct may warrant a reasonable inference that it was of a type that could cause severe emotional distress to some people, but without any evidence bearing on the actual effect of that conduct on Ms. Chang's emotional state in particular, one cannot reasonably say that she in particular suffered such distress. Cf. Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 959 (Fla. 1st DCA 1979) (holding that evidence of the outrageousness of the defendant's conduct taken together with the plaintiff's testimony concerning his emotional state was sufficient to submit an intentional infliction case to a jury).But see Kloepfel v. Bokor, 149 Wash.2d 192, 66 P.3d 630, 635 (Wash. 2003) (en banc) (stating that severe distress can be "presumed" once intentional conduct and outrageousness are proved). Handing this case to a jury on the issues of causation and severity based solely on the awfulness of Mr. Kim's conduct did nothing but grant it a license to speculate that the conduct caused Ms. Chang severe emotional injury. Jury speculation is not a permissible basis for a civil judgment. See Shartz v. Miulli, 127 So.3d 613, 620-21 (Fla. 2d DCA 2013) (holding, in a medical malpractice case, that the trial court should have granted a directed verdict where, on the plaintiff's evidence, "[t]he jury was necessarily left to speculate" about causation); Wilson v. Winn-Dixie Stores, Inc., 559 So.2d 263, 264 (Fla. 2d DCA 1990) (affirming judgment notwithstanding the verdict where the plaintiffs' evidence left the jury to "speculate that appellee should have known of a dangerous condition").

Because the evidence was not legally sufficient to prove that Mr. Kim's conduct caused Ms. Chang to suffer severe emotional distress, the trial court should have granted Mr. Kim's motion for directed verdict on that counterclaim.

III.

For the foregoing reasons, we reverse the judgment on Ms. Chang's counterclaim for intentional infliction of emotional distress and remand for entry of an amended judgment in Mr. Kim's favor on that claim. We affirm the judgment in all other respects.

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

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Mr. Kim voluntarily dismissed his affirmative claims prior to trial. Mr. Kim and Sook Chang asserted crossclaims for contribution against one another which were also resolved at the trial, but those crossclaims are not relevant to this appeal.

      Mr. Kim also argues that the trial court erred by denying his motion for a remittitur of the damages on that counterclaim. Because we reverse as to liability, it is unnecessary for us to reach that argument.

      As a case in point, Ms. Chang argues on appeal that her testimony that Mr. Kim groped and leaned on her in 2008 establishes that she was susceptible to severe emotional distress in 2012 and that Mr. Kim knew it. But the testimony on this issue was so fleeting-because both the defense and the trial court immediately raised concerns about its relevance-that no judgment can be made about how severe that conduct was or whether and to what extent it affected Ms. Chang's emotional state four years later. In fact, Ms. Chang did not argue at trial that her testimony about the 2008 incident was relevant at all to the claim of intentional infliction. Both in response to the court's questions about relevance and in her closing argument to the jury, Ms. Chang argued only that the testimony related to her claim for breach of a loan agreement-in particular, that it undermined Mr. Kim's statute of limitations defense because it showed, contrary to Mr. Kim's theory, that Ms. Chang did not leave the house in 2008 because Mr. Kim had refused a demand for repayment but rather because he had groped her. Further, although Ms. Chang could have requested a special jury instruction that might have allowed her to argue Mr. Kim's special knowledge of her emotional distress based on the 2008 incident, which is suggested by the notes to the standard instruction on severe emotional distress, our record does not reflect that she either asked for or received such an instruction.


author: FERNANDEZ, J.

text:
    Antonio ROBERTS, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D17-1833
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    Teri Guttman Valdes, Coral Gables, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and William X. Candela and Eric A. Rodriguez, Assistant County Attorneys, for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   FERNANDEZ, J.

The plaintiff, Antonio Roberts (Roberts), appeals the trial court's order granting the defendant, Miami-Dade County's, motion for summary judgment. We affirm. See Bello v. Miami-Dade County, 167 So.3d 464 (Fla. 3d DCA 2015).

Roberts was a Miami-Dade County (County) police officer. He was also a member of the law enforcement bargaining unit represented by the Dade County Police Benevolent Association (PBA). The PBA has a collective bargaining agreement (CBA) with the County that governs the terms and conditions of employment of law enforcement personnel, including a police officer such as Roberts.

Roberts was arrested and indicted in 2008 on federal charges. He was notified of his dismissal via a letter dated September 18, 2008, signed by Miami-Dade Police Director Robert Parker. The letter advised Roberts that he was dismissed from employment with the Miami-Dade Police Department, effective September 26, 2008. The September 18, 2008 dismissal letter also notified Roberts that he had fourteen days from receipt of the letter to request in writing an appeal pursuant to Section 2-47 of the Miami-Dade County Code.

On September 25, 2008, Miami-Dade Police Sergeant Lorenzo Gilbert spoke with Roberts by phone about the termination letter signed by Police Director Parker, and Roberts confirmed that he was aware of his termination date but was unavailable to meet with Sergeant Gilbert that day. Sergeant Gilbert eventually met Roberts on September 27, 2008 and gave him the letter.

On October 8, 2008, Roberts's criminal defense attorney sent a letter to the County appealing Roberts's termination pursuant to Section 2-47 of the Miami-Dade County Code. This letter was received by the County on October 10, 2008 and date-stamped with this date. The County's Labor Management Division denied the request for an appeal hearing and advised Roberts that his request was untimely. Roberts did not file a grievance as required by the CBA.

On October 27, 2009, a Judgment of Acquittal was issued by the federal court in the federal criminal case in which Roberts was a defendant. Still, no grievance had been filed by Roberts regarding the denial of the appeal hearing. On March 19, 2010, Roberts's new counsel wrote to the County requesting temporary reinstatement and back pay for Roberts as a result of his acquittal. On April 14, 2010, a County Labor Management Specialist wrote to Roberts's new counsel and advised that the request for an appeal hearing under Section 2-47 of the Code would be processed for a hearing before a Hearing Examiner, but the only issue that would be considered was the timeliness of Roberts's request for an appeal.

The hearing took place in October 2010. In November 2010, the Hearing Examiner issued his decision to the parties. In the decision, the Hearing Examiner noted that the CBA makes the refusal to process an appeal or follow time limits expressly grievable. The Hearing Examiner concluded that the date of notice of termination to Roberts was September 25, 2008, and thus, Roberts's request for a hearing received by the County on October 10, 2008 was untimely, as the hearing must be requested within fourteen days. Roberts did not file a grievance after the Hearing Examiner's determination.

In 2011, Roberts's counsel filed a complaint for declaratory and injunctive relief in state court seeking compliance with the temporary reinstatement provision of section 2-47 of the Code. During the remainder of 2013 and 2014, Roberts did not file a grievance under the CBA.

Roberts thereafter filed a motion for summary judgment in the trial court. A hearing was held in July 2017 on Roberts's motion. The trial court entered summary judgment for the County and against Roberts on all counts, finding that Roberts failed to exhaust his administrative remedies.

On appeal, Roberts contends that the County waived and/or should be estopped from arguing that Roberts had to file a grievance under the CBA because the County decided the issue of timeliness would be determined by the Hearing Examiner. Thus, Roberts contends, due to the election of remedy provision in the CBA, he could not appeal via a Section 2-47 hearing under the Code, then file a grievance under the CBA because he had to pick one or the other. We disagree with Roberts's position.

Article 3 E of the CBA provides that "refusal to (1) process an application or appeal, (2) follow time limits, (3) permit an employee a right to representation, or (4) denial of a right to receive a reply, are expressly grievable." We believe that our opinion in Bello applies, as the facts of Bello are virtually indistinguishable from those in the case before us.

In Bello, a Miami-Dade County employee was dismissed in connection with criminal charges filed against him. Bello, 167 So.3d at 466. The charges were eventually dismissed, but the County refused to conduct a hearing upon the employee's request, citing the employee's agreement not to seek further employment with the County in exchange for dismissal of the charges. Id. The employee in Bello, like Roberts, did not file a grievance attacking the County's refusal to hear his appeal. Id. at 466-67. The trial court held that the employee failed to exhaust his administrative remedies. Id. On appeal, this Court agreed and affirmed. Id. at 468-69.

We thus find Bello directly on point with the case before us. Like the employee in Bello, Roberts has failed to exhaust his administrative remedies. Id. at 469 (citing Public Health Trust v. Hernandez, 751 So.2d 124, 125 (Fla. 3d DCA 2000) ("It is a well settled principal [sic] that a party, when bound by a collective bargaining agreement, must exhaust any administrative remedy prior to litigating in court.") ). Roberts was bound by the terms of the applicable CBA, and when the Hearing Examiner determined that Roberts's notice of appeal had been filed out of time, Roberts's claim that the County was estopped from asserting the exhaustion defense was unavailing. At that point, Roberts was required to file a grievance under the CBA, which he never did. See City of Miami v. Fraternal Order of Police Lodge No. 20, 378 So.2d 20 (Fla. 3d DCA 1979). We therefore affirm the trial court's order granting the County's motion for summary judgment.

Affirmed.


author: Per Curiam.

text:
    Joshua Brian NIBBELINK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4531
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied August 15, 2018
    Joshua Brian Nibbelink, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Rowe, and Winokur, JJ., concur.


author: PER CURIAM.

text:
    Larry S. WHITELY and Sherri C. Whitely, Appellants, v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Appellee.
    Case No. 5D16-3719
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 29, 2018
    Earl I. Higgs, Jr, of Higgs Law, P.A., Orlando, for Appellant.
    Gina S. Glasgow and Andrew P. Rock, of The Rock Law Group, P.A., Maitland, for Appellee.
   PER CURIAM.

In this breach of contract suit, Larry and Sherri Whitely ("the Whitelys") appeal a final summary judgment entered in favor of American Integrity Insurance Company of Florida ("AIIC"). The Whitelys contend that the trial court erred in entering summary judgment because material issues of fact remained. We agree, and therefore reverse and remand for further proceedings.

The Whitelys purchased an all-risks home insurance policy for their vacation property providing coverage from January 27, 2012, through January 27, 2013. On November 7, 2012, the Whitelys reported a claim for coverage to AIIC for water damage to the property that occurred sometime between October 5 and November 7, 2012. AIIC sent an expert to determine the cause, origin, and duration of the water damage. AIIC's expert determined that a "water release event" in one of the bathrooms exposed the property to water for approximately thirty days. AIIC then denied the Whitelys' claim pursuant to the following exclusionary provision in the Whitelys' policy: "[W]e do not insure ... loss ... caused by ... constant or repeated seepage or leakage of water ... over a period of 14 or more days from within a plumbing ... system."

The Whitelys filed suit for breach of contract, and AIIC moved for summary judgment, arguing that the policy unambiguously excluded the Whitelys' claimed loss based on the undisputed fact that the water exposure occurred for over fourteen days. At the summary judgment hearing, the Whitelys argued in part that the exclusionary provision was ambiguous because it did not clearly address whether the policy covered a loss occurring within the first fourteen days of exposure. The trial court granted summary judgment in favor of AIIC, finding the exclusionary provision to be unambiguous, and subsequently entered final judgment in favor of AIIC.

This Court recently addressed an analogous situation involving the same exclusionary provision. Hicks v. Amer. Integrity Ins. Co. of Fla., 241 So.3d 925 (Fla. 5th DCA 2018). In Hicks, we held that "an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of fourteen days or more does not unambiguously exclude losses caused by leakage or seepage over a period of thirteen days or less." Id. at 927. We concluded that "[i]n an all-risks policy, once the insured establishes a loss within the terms of a policy, the burden shifts to the insurer to prove that a particular loss arose from an excluded cause. Whether such a determination is possible is a genuine issue of material fact precluding summary judgment." Id. at 928 (citation omitted).

Here, both parties recognize that the Whitelys established a loss to the property and that the property was exposed to water for over fourteen days. However, AIIC bore the burden of establishing that the policy excluded coverage for the loss as one "caused by constant or repeated seepage or leakage of water ... over a period of 14 or more days." See id. at 927-28. The evidence at the summary judgment stage established that the loss was "caused by ... leakage of water," but failed to establish that the loss did not occur within the first fourteen days. The undisputed fact that the property was exposed to water for more than fourteen days did not establish that the loss occurred on the fourteenth or later day of exposure pursuant to the exclusionary provision. As in Hicks, "[w]hether such a determination is possible is a genuine issue of material fact precluding summary judgment." Id. at 928. Accordingly, we reverse and remand for further proceedings.

We also write to address the supplemental authority AIIC filed the day before oral argument, which referenced a per curiam affirmance in Zimmerman v. American Integrity Insurance, 212 So.3d 376 (Fla. 5th DCA 2015) (table decision). AIIC, who was also the appellee in Hicks, filed a motion for rehearing and certification in Hicks also citing Zimmerman. AIIC attached the appellate briefs from Zimmerman to its motion in Hicks, although it has not filed the briefs again here. In those briefs, AIIC forcefully argued that the plaintiff in Zimmerman had not raised entitlement to damages for the first thirteen days of leakage to the trial court and therefore failed to preserve the issue for appellate review.

Our opinion denying AIIC's motion in Hicks cogently sets forth why relying on a per curiam affirmance for precedential value is generally inappropriate. See Hicks v. Amer. Ins. Co. of Fla., No. 5D17-1282, 241 So.3d 925, ----, 2018 WL 1020272 (Fla. 5th DCA May 18, 2018). This Court issues per curiam affirmance opinions for many reasons. Failure to preserve error is just one, but it demonstrates why per curiam affirmances are rarely, if ever, of any precedential value.

The opinion denying rehearing in Hicks also demonstrates why AIIC's argument based on Zimmerman was improper. See id. AIIC's position that Zimmerman mandated a different result in Hicks was undermined by its argument in Zimmerman that the dispositive issue was not preserved for review. Here, AIIC's reliance on Zimmerman as supplemental authority, knowing that it had argued that an issue central to this case had not been preserved for review, is likewise inappropriate and disingenuous.

REVERSED and REMANDED

COHEN, C.J., TORPY and EISNAUGLE, JJ., concur.

      The Whitelys also presented deposition testimony from their own expert; the expert opined that the loss originated from a "sudden and accidental plumbing leak" that occurred for less than twenty-six days but more than fourteen days.

      We reject the Whitelys' ambiguity arguments pertaining to this clause of the exclusionary provision.


text:
    Dale DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1470
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied August 20, 2018
    Dale Daniels, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Bilbrey, Winokur, and Jay, JJ., concur.


author: COHEN, C.J.

text:
    STATE of Florida, Appellant, v. Bryant Santana RIVERA, Appellee.
    Case No. 5D17-4016
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 6, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellee.
   COHEN, C.J.

Bryant Rivera entered an open plea to a charge of possession of alprazolam, a third-degree felony. § 893.13(6)(a), Fla. Stat. (2017). The trial court withheld adjudication of guilt and sentenced Rivera to one day in the county jail with credit for time served. The State appeals Rivera's sentence, arguing that the court erred by withholding adjudication of guilt pursuant to section 775.08435, Florida Statutes (2017), or alternatively, by withholding adjudication of guilt without placing Rivera on a term of probation under section 921.187, Florida Statutes (2017). "The legality of a sentence is a question of law, and thus, subject to de novo review." Montgomery v. State, 230 So.3d 1256, 1258 (Fla. 5th DCA 2017) (citing Pinkard v. State, 185 So.3d 1289, 1289-90 (Fla. 5th DCA 2016) ).

At sentencing, the State represented that Rivera had two prior felony withholdings of adjudication unrelated to the instant charge. On appeal, the State alternatively argues that even if Rivera had only one prior felony withholding, as suggested by the court at sentencing, the court erred in failing to make the findings mandated by section 775.08435(1)(d) 2.

Section 775.08435(1), Florida Statutes, limits the power of the trial court to withhold adjudication. In pertinent part, subsection (d) prohibits withholding adjudication of guilt on third-degree felonies if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony. § 775.08435(1)(d), Fla. Stat. (2017). An exception exists if the state attorney requests in writing that adjudication be withheld or the court makes written findings that withholding adjudication is justified under the circumstances in accordance with the factors set out in section 921.0026, Florida Statutes. Id. § 775.08435(1)(d) 1.-2. However, the court cannot withhold adjudication if the defendant has two or more prior withholdings of adjudication on felonies that did not arise from the same transaction as the current offense. Id. § 775.08435(1)(d).

The State also argues that the court erred in withholding adjudication without placing Rivera on a term of probation. Section 921.187(1)(c), Florida Statutes, provides that the court may "[p]lace the offender on probation with or without an adjudication of guilt" if the court does not impose a prison sentence. Section 948.01(2), Florida Statutes, further provides that "the court ... may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt. In either case, the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation." Finally, Florida Rule of Criminal Procedure 3.670 provides that "where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation." See also State v. Messina, 13 So.3d 153, 154 (Fla. 4th DCA 2009) (finding withholding of adjudication without imposition of probation to be illegal); State v. Penn, 881 So.2d 67, 68-69 (Fla. 5th DCA 2004) (noting that trial court erred by withholding adjudication without imposing probation).

The State's arguments are well founded. However, the State failed to preserve these issues for appeal by contemporaneous objection. See, e.g., Jackson v. State, 983 So.2d 562, 568 (Fla. 2008) ("To preserve error for appellate review, the general rule is that a contemporaneous, specific objection must occur during trial at the time of the alleged error." (quoting Gore v. State, 964 So.2d 1257, 1265 (Fla. 2007) ) ). Because any error here was not fundamental, see, e.g., State v. Ackerman, 785 So.2d 1229 (Fla. 4th DCA 2001), we are compelled to affirm.

AFFIRMED.

ORFINGER and WALLIS, JJ., concur.


text:
    David ELKIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1750
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    Rocco J. Carbone, III of Law Office of Rocco J. Carbone, III, PLLC, St. Augustine, for Appellant.
    BY ORDER OF THE COURT:
   Appellant's motion for rehearing is granted in part and denied in part. The prior opinion dated February 28, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

PER CURIAM.

David Elkin appeals the postconviction court's denial of his "application for sentencing review by juvenile offender," filed pursuant to Florida Rule of Criminal Procedure 3.802. We reverse and remand for further proceedings.

Elkin was indicted for the capital felony of murder in the first degree on May 30, 2003, when he was sixteen years old. His judgment reflects that he pleaded no contest to a violation of section 782.04(3), Florida Statutes (2002), murder in the second degree, a first-degree felony. The trial court sentenced him on July 13, 2004, to twenty-five years' imprisonment.

Relying on section 921.1402, Florida Statutes, and rule 3.802(b)(3), Elkin applied for sentencing review in January 2017 because he had served "nearly" fifteen years of his twenty-five-year sentence for "second-degree murder." The postconviction court did not consider the merits of Elkin's application. Instead, it erroneously concluded that Elkin could not take advantage of section 921.1402 because he committed his crime before the statute's effective date of July 1, 2014. The supreme court has rejected that view. See Falcon v. State, 162 So.3d 954, 962 (Fla. 2015) (concluding that juvenile offenders whose convictions and sentences were final prior to Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), "may seek collateral relief based on that decision"), receded from on other grounds, Williams v. State, 242 So.3d 280, 288 n.7 (Fla. 2018).

Rule 3.802(b)(3), the provision under which Elkin applied for review, provides that a juvenile offender may seek review "after 15 years, if the juvenile offender is sentenced to a term of more than 15 years under sections 775.082(1)(b)2., 775.082(3)(a)5.b., or 775.082(3)(b)2.b., Florida Statutes." Section 775.082(3)(b)(2)(b) applies to defendants convicted of violations of section 782.04 which are first-degree felonies punishable by a term of years not exceeding life imprisonment where the defendant "did not actually kill, intend to kill, or attempt to kill the victim and is sentenced to a term of imprisonment of more than 15 years" and entitles such defendants to a review after fifteen years in accordance with section 921.1402(2)(c). Elkin has now served more than fifteen years of his sentence, and while his judgment appears to support his entitlement to a sentencing review, both Elkin's application for review and his plea form indicate that Elkin was convicted of second-degree murder with no distinction between second-degree murder, a violation of section 782.04(2), and second-degree felony murder, a violation of section 782.04(3).

Accordingly, we reverse the denial of Elkin's application for review and remand to the trial court to rule on the merits of the application.

Reversed and remanded for further proceedings.

SILBERMAN, BLACK, and LUCAS, JJ., Concur.

      The plea form attached to Elkin's application for review, however, indicates that he pleaded guilty.


text:
    Wendi Michelle SHEPMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1546
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 6, 2018
    Wendi Michelle Shepman, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Wendi Michelle Shepman appeals the summary denial of her Florida Rule of Criminal Procedure 3.801 motion for jail credit. Because the postconviction court did not comply with the procedural requirements for resolving jail credit claims under this rule, we reverse and remand for further proceedings.

Shepman argues on appeal that the court failed to award her jail credit for the period of time from August 13 to August 18, 2016. In summarily denying this motion, the court, without attaching any court records to its order, held that Shepman had failed to show an entitlement to jail credit for this time period because she had not provided evidence that she was in jail. This was error.

In Adkins v. State , 183 So.3d 1102, 1104 (Fla. 5th DCA 2015), we explained that:

Under Rule 3.801, a defendant does not have to affirmatively allege that the court records demonstrate on their face an entitlement to relief, nor does a defendant have to attach any documentation to support his or her claim or allege where in the record the information can be located. Under Rule 3.801, if a defendant files a legally sufficient motion, the trial court should grant the additional credit or conduct an evidentiary hearing, unless the motion can be conclusively refuted either as a matter of law or by reliance upon the records in the case. If the summary denial is based on the records in the case, a copy of the portion of the files and records that conclusively proves that the defendant is not entitled to relief shall be attached to the final order. See Fla. R. Crim. P. 3.850 (f)(5),(8); Fla. R. Crim. P. 3.801.

Here, Shepman filed a legally sufficient motion that was not conclusively refuted either as a matter of law or by court records attached to the denial order. Accordingly, we reverse and remand with directions that the postconviction court either grant Shepman the six days of jail credit, conduct an evidentiary hearing, or attach portions of the records that conclusively refute her claim. See id. (citing Blanchfield v. State , 157 So.3d 483, 483 (Fla. 5th DCA 2015) ). Additionally, because Shepman's release from prison on this case appears imminent, upon issuance of our mandate, the postconviction court should expedite its ruling on the motion so the matter does not become moot. See Banks v. State , 211 So.3d 1104, 1106 (Fla. 5th DCA 2017) (citing Maybin v. State , 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) (holding that when a defendant has already completed serving his sentence, any questions regarding the legality of the sentence are rendered moot) ).

REVERSED and REMANDED with directions.

COHEN, C.J., WALLIS and LAMBERT, JJ., concur.

      There appears to be a discrepancy in the spelling of the appellant's last name. In the motion filed below and the Department of Corrections website, it is spelled "Schepman." However, in her initial brief, the last name is spelled "Shepman."


text:
    Marlene ALTEMAR, Appellant/Cross-Appellee, v. LIFESPACE COMMUNITIES, INC., d/b/a Abbey Delray South, Sentry Claims Services and Sentry Casualty Company, Appellees/Cross-Appellants.
    No. 1D16-2129
    District Court of Appeal of Florida, First District.
    July 9, 2018 Rehearing Denied August 15, 2018
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant/Cross-Appellee.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch, P.A., Winter Park, for Appellees/Cross-Appellants.
   Per Curiam.

Claimant challenges an order of the Judge of Compensation Claims (JCC), and the Employer/Carrier (E/C) on cross-appeal challenges another aspect of the order. We find that the JCC accorded a presumption of correctness to the expert medical advisor (EMA) with regard to the Claimant's need for attendant care, and that this presumption was inappropriate because the evidence does not demonstrate a sufficient disagreement in the opinions of the health care providers on that ground. See § 440.13(9)(c), Fla. Stat. (2013) ; Guerra v. C.A. Lindman, Inc. , 146 So.3d 527, 529 (Fla. 1st DCA 2014) (reversing order appointing EMA because there was no disagreement in the opinions of the health care providers, in that the opinions of some of the doctors were stale). The E/C's independent medical examiner did not render a definitive opinion as to whether attendant care benefits were medically necessary at the time of the hearing, or whether the need for attendant care was caused by the compensable accident. As such, the JCC should have considered the EMA's testimony regarding Claimant's need for attendant care without the presumption of correctness ordinarily granted to EMA opinions. See Lowe's Home Ctrs., Inc. v. Beekman , 187 So.3d 318, 319-20 (Fla. 1st DCA 2016) (holding that unsolicited opinions from EMA are treated as any other expert opinion, and not accorded a presumption of correctness).

We reject all other issues on appeal, including the E/C's cross-appeal.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in accordance with this opinion.

Kelsey, Winokur, and Winsor, JJ., concur.


text:
    C. T. T., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-5163 1D17-5164
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

C.T.T. appeals the findings of guilt as to his commission of new law offenses, as well as his violation of probation based on these offenses; we consolidate these appeals for disposition. We affirm the findings of guilt for aggravated fleeing and grand theft auto without further comment, reverse the finding of guilt for leaving the scene of an accident involving damage to unattended property, and remand for correction of the order revoking probation.

C.T.T. was charged with violating section 316.063(1), Florida Statutes, which imposes duties on drivers who collide with, and damage, unattended vehicles or property; the unattended property C.T.T. was alleged to have damaged was a tree. At trial, the State proved that C.T.T. fled erratically when law enforcement pursued him. Law enforcement was forced to call off the pursuit for safety reasons, but found the stolen car crashed into a tree shortly after. C.T.T. was found hiding near a house, and asked for the return of his shoes, which lay near the crashed car. While the evidence is sufficient to show that C.T.T. collided with the tree and fled, the State concedes that no evidence was admitted indicating any damage to the tree. See Powell v. State , 28 So.3d 958, 959 (Fla. 1st DCA 2010) (reversing finding of guilt for violating section 316.063(1) where there "was no testimony about any damage to whatever object the vehicle hit"). Although C.T.T. did not preserve this argument at trial, fundamental error exists when the evidence is insufficient to show the commission of any crime. See F.B. v. State , 852 So.2d 226, 227 (Fla. 2003). Because no statute prohibits leaving the scene of a collision where the property struck was undamaged, this finding of guilt must be reversed.

The order revoking C.T.T.'s probation references a petition for violation of probation and states that C.T.T. was found in violation at a hearing, but does not identify the new law offenses the revocation is based on, and must be corrected. See Fowler v. State , 79 So.3d 868, 869 (Fla. 1st DCA 2012) ; Robinson v. State , 74 So.3d 570, 572 (Fla. 4th DCA 2011).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions to correct the order revoking probation.

Wetherell, Rowe, and Winokur, JJ., concur.

      C.T.T. does not argue that he should be resentenced, and we see no reason that resentencing is necessary.


text:
    Morgan Amanda LEPPERT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2238
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 13, 2018
    Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   PER CURIAM.

Pursuant to the Florida Supreme Court's directive in Leppert v. State, 43 Fla. L. Weekly S267, S267 (Fla. June 15, 2018), we withdraw the mandate issued in this case on May 11, 2017, and our previously issued opinion.

Morgan Amanda Leppert was convicted of first-degree murder, burglary with assault or battery, and robbery with a deadly weapon. Leppert raised four issues in the direct appeal of her judgment and sentence, which we affirmed in Leppert v. State, 215 So.3d 146, 147 (Fla. 5th DCA 2017). In her second issue, Leppert argued that the trial court erred in not having a jury determine whether she killed, intended to kill, or attempted to kill the victim. Based upon our precedent in Williams v. State, 211 So.3d 1070, 1073 (Fla. 5th DCA 2017), we held that the trial court did not err in making the written finding required by section 775.082(1)(b), Florida Statutes (2016). In both cases, we certified a question to the Florida Supreme Court as to whether Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), required the jury rather than the trial court to make this finding.

The Florida Supreme Court recently answered this question and held that " Alleyne requires the jury to make the factual finding under section 775.082(1)(b) as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim." Williams v. State, 242 So.3d 280, 294 (Fla. 2018). The court therefore quashed our decisions in Williams and Leppert and remanded the cases for reconsideration. Id.; Leppert, 43 Fla. L. Weekly at S267. The three issues raised by Leppert in her direct appeal that were not related to Williams were not affected by the Florida Supreme Court's determination. Therefore, as to these issues, we affirm without further discussion.

In the case at hand, the jury was instructed on first-degree premeditated murder and first-degree felony murder with burglary or robbery as the underlying felony. The verdict form did not require the jury to specify under which theory it found Leppert guilty. Based upon a similar fact pattern, the Florida Supreme Court determined in Williams that there was no clear jury finding that the defendant actually killed, intended to kill, or attempted to kill the victim and that the error was not harmless. 242 So.3d at 289, 291. The court further held that "[w]here the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b) 2., Florida Statutes (2016)." Id. at 282. Because we conclude that the error was not harmless, we reverse the sentence imposed for the murder conviction and remand for Leppert to be resentenced on that charge pursuant to section 775.082(1)(b) 2.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.