text:
    Wayne DUNBAR, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1485
    District Court of Appeal of Florida, Third District.
    JANUARY 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Angela KELLY, Appellant(s)/Petitioner(s), v. Vivian TORRES, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2550
    District Court of Appeal of Florida, Third District.
    JANUARY 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Fredy and Anyela ESCOBAR, Appellant(s)/Petitioner(s), v. TOWER HILL PRIME INSURANCE COMPANY, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-0720
    District Court of Appeal of Florida, Third District.
    FEBRUARY 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Lorenzo WALKER, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2662
    District Court of Appeal of Florida, Third District.
    JANUARY 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Alex KNIGHT, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    CASE NO.: 3D18-0048
    District Court of Appeal of Florida, Third District.
    JANUARY 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jesus MORALES, Appellant(s)/Petitioner(s), v. Silvia GARCIA, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1491
    District Court of Appeal of Florida, Third District.
    JANUARY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    DAMVIX MANAGEMENT, INC., et al., Appellant(s)/Petitioner(s), v. EQUITY GROUP FINANCIAL SERVICES, LLC, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1909
    District Court of Appeal of Florida, Third District.
    FEBRUARY 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Alain ST. LOUIS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2744
    District Court of Appeal of Florida, Third District.
    JANUARY 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    The CREMONA TRUST, etc., et al., Appellant(s)/Petitioner(s), v. MIAMI-DADE COUNTY, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2792
    District Court of Appeal of Florida, Third District.
    JANUARY 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Roman RYABOSHAPKA, Appellant(s)/Petitioner(s), v. Daiva RYABOSHAPKA, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2799
    District Court of Appeal of Florida, Third District.
    JANUARY 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Clifford CLINE, Appellant(s)/Petitioner(s), v. The STATE of Florida, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2677
    District Court of Appeal of Florida, Third District.
    JANUARY 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Jonathan CHERY, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1110
    District Court of Appeal of Florida, Third District.
    JANUARY 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    James HERY, Appellant(s)/Petitioner(s), v. Guy LEWIS, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2680
    District Court of Appeal of Florida, Third District.
    JANUARY 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    SUNSHINE STATE HEALTH PLAN, INC., Appellant(s)/Petitioner(s), v. MEDOPTIONS, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D16-2431
    District Court of Appeal of Florida, Third District.
    November 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    JPMORGAN CHASE BANK, N.A., Appellant(s)/Petitioner(s), v. CITY OF CORAL GABLES, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D15-1182
    District Court of Appeal of Florida, Third District.
    FEBRUARY 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    COASTAL CONSTRUCTION GROUP OF SOUTH FLORIDA, INC., Appellant(s)/Petitioner(s), v. RUS MBR, LLC, etc., et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0062
    District Court of Appeal of Florida, Third District.
    FEBRUARY 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Willie ROGERS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0145
    District Court of Appeal of Florida, Third District.
    JANUARY 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    COSMETIC DERMATOLOGY, INC., Appellant(s)/Petitioner(s), v. Juan MARTINEZ, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2524
    District Court of Appeal of Florida, Third District.
    JANUARY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.

Dismissed.


text:
    JPMORGAN CHASE BANK, N.A., Appellant(s)/Petitioner(s), v. CITY OF CORAL GABLES, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D15-1371
    District Court of Appeal of Florida, Third District.
    FEBRUARY 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Larry INOA, Appellant(s)/Petitioner(s), v. STATE of Florida, DEPARTMENT OF REVENUE CHILD SUPPORT PROGRAM and Vinela Marmolejos, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2569
    District Court of Appeal of Florida, Third District.
    JANUARY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Alfonso RAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2400
    District Court of Appeal of Florida, Fourth District.
    [October 19, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ROLLS-ROYCE, PLC, a foreign profit corporation, Appellant, v. SPIRIT AIRLINES, INC., a Florida Corporation, Rolls-Royce Corporation, a foreign corporation, Rolls-Royce North America, Inc., a foreign profit corporation, IAE International Aero Engines AG, a foreign profit entity, Pratt & Whitney, a division of United Technologies Corporation, a foreign profit corporation, Appellees.
    No. 4D17-1215
    District Court of Appeal of Florida, Fourth District.
    [October 5, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald Hurst NETTLES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-3504 4D16-3505
    District Court of Appeal of Florida, Fourth District.
    [November 9, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Travis L. KENYON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2155
    District Court of Appeal of Florida, Fourth District.
    [November 9, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lauren Ann KIRIMBAI, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2342
    District Court of Appeal of Florida, Fourth District.
    [November 9, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gerald SHIFLET, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2749
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leslie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1939
    District Court of Appeal of Florida, Fourth District.
    [November 30, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arslan ASLAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4339
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jean IDROVO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2254
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas A. DEHAYS, Appellant, v. FLORIDA ATLANTIC UNIVERSITY, Appellee.
    No. 4D17-1981
    District Court of Appeal of Florida, Fourth District.
    [November 16, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David Kelly BREWSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1980
    District Court of Appeal of Florida, Fourth District.
    [April 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jenelle WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3021
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Delroy HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3625
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald Charles STEVENSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3920
    District Court of Appeal of Florida, Fourth District.
    [October 12, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael MOONEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2402
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Russell G. DEPASQUALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1958
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mahlard K. BOYD, Appellant, v. Christopher A. NARDUCCI, Appellee.
    No. 4D17-2893
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BROWARD R.V. INC., and Gigi Stetler, Appellants, v. 4700, LLC, a Florida limited Liability Company, Appellee.
    No. 4D16-3696
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jimmy SPIKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2897
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kirby Colyntheia WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3712
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael VENABLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-525
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlton Anthony FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4322
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kendrick BRACKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-419
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James L. FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2899
    District Court of Appeal of Florida, Fourth District.
    [June 14, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dwayne JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-387
    District Court of Appeal of Florida, Fourth District.
    [June 7, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose Luis LUGO-SAINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3992
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 8, 2018 Rehearing Denied June 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Patrick W. WHAREN, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1151
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied July 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Glenda Faye LAKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-344
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 29, 2018 Rehearing Denied July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John L. GORDON, II, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3639
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 22, 2018 Rehearing Denied June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antwan Jovon JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-611
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 22, 2018 Rehearing Denied June 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carolyn VARNADOE, Appellant, v. WASKEEN LLC, Resource Development Group, Inc., Sherry Keen, Donna M. Johnson, Jacqueline Timmerman And Home Owners Association of Port Buena Vista, Inc., Appellees.
    Case No. 5D17-2139
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tony Shakeem OWENS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2828
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Raymond DELGADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1858
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied June 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Charles DEMICHER, Individually and as Trustee of Sovereign Revocable Trust, Appellant, v. LYON CONDOMINIUM ASSOCIATION, INC. and Mary M. Sondgerath, P.A., d/b/a Sondgerath & Associates, P.A., Appellees.
    Case No. 5D16-3182
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jacob HORNSTRA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1563
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gregory BELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2856
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Clarence Sylvester COBARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-648
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Edward TANNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2794
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keyondrae SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2731
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James H. SCHARFSCHWERDT, Appellant, v. R.J. LARIZZA, State Attorney, Seventh Judicial Circuit, Office of the State Attorney, St. Johns County, Florida and State of Florida, Appellees.
    Case No. 5D17-2590
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Lamar DIXON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-699
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Peppe K. PARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3763
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Donald E. DIAL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1537
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Vernardo GRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3005
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bobbie D. DELOACH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-394
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jason L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1691
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kalin M. HALCHAK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1037
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Clay WING, II, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3340
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Benjamin BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1076
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tawny BLAZEJOWSKI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2659
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Donald Wayne FLANDERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1233
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlos Ivan VICENTE-ABAD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-799
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ricky R. MCCULLOUGH, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-977
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Henry GRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1876
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Cheryl Beth BUDESA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1252
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony SELVESTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3169
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Chance M. CLARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1059
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dominique SHAVUO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-985
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bryan A. BLAYLOCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-866
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.L.S., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3920
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brenton CRABTREE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2377
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Freddie Lee RILEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2971
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Janie SYKES-KENNEDY, Appellant, v. Lisa RENE, as an Interested Person and Qualified Beneficiary of the Lillie S. White Revocable Living Trust Dated February 23, 2006, and Sean Bogle, Esquire, as Guardian Ad Litem of Lillie S. White, et al., Appellees.
    Case No. 5D17-267
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 3, 2018 Rehearing Denied July 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Juan C. DELGADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-747
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Calvin Gene WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3594
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Levine, J.

text:
    STATE of Florida, Appellant, v. Lewis STOUFFER, Clark Jeffrey Thompson, and Craig Turturo, Appellees.
    No. 4D17-2502
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellant.
    Donnie Murrell, West Palm Beach, for appellee Lewis Stouffer.
    Daniel R. Aaronson of Benjamin, Aaronson & Patanzo, PA, Fort Lauderdale, for appellee Clark Jeffrey Thompson.
    David S. Weinstein of Hinshaw & Culbertson, LLP, Coral Gables, for appellee Craig L. Turturo.
   Levine, J.

An Indian River County Sheriff's Office ("IRCSO") detective, as part of an investigation originating in his home county, was the sole affiant on applications and affidavits for search warrants in both Broward and Palm Beach Counties. The trial court granted the motion to suppress evidence that was obtained as a result of both search warrants, stating that the detective acted outside his jurisdiction "under color of office" to obtain both search warrants.

We are asked to determine if the detective had the authority to be the affiant on search warrants and their accompanying affidavits in counties outside his jurisdiction where the detective was investigating a case that originated within his own jurisdiction. We find that the trial court erred in suppressing the evidence and find that the detective could be an affiant for applications and affidavits that would serve as the basis for search warrants outside of his jurisdiction. Therefore, we reverse and remand.

Prior to the suppression hearing conducted by the trial court, the parties stipulated that an investigation of pain clinics began in Indian River County in 2011. IRCSO, the Drug Enforcement Agency, and various other local law enforcement agencies were involved in this joint investigation, which included multiple defendants and various locations in several counties in Florida. As part of the investigation, a detective from IRCSO went to Broward County and Palm Beach County to be the affiant on search warrant applications for the residences of appellees in both counties. The IRCSO detective was the sole affiant on the search warrants. The detective included in the affidavit in support of the search warrants that he is a sworn law enforcement officer from the IRCSO. He also utilized sealed wiretap information that was part of the ongoing investigation in Indian River County.

The search warrants were executed by law enforcement officers with either statewide or local jurisdiction. Subsequently, appellees filed motions to suppress alleging that the IRCSO detective was outside of his jurisdiction when he sought the search warrants in Broward and Palm Beach. The trial court agreed by granting the motion to suppress and finding that the detective acted "under color of office" when being an affiant of the search warrants from Broward County and Palm Beach County. This appeal follows.

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Luna v. State , 154 So.3d 1181, 1183 (Fla. 4th DCA 2015) (citation omitted). "The appellate court defers to the trial court's findings regarding the facts and uses the de novo standard of review for legal conclusions." Id. (citation omitted). To the extent this case involves an issue of statutory interpretation, a de novo standard of review applies. Therlonge v. State , 184 So.3d 1120, 1121 (Fla. 4th DCA 2015).

We begin our analysis by reviewing the plain language of the applicable statutes. Section 933.06, Florida Statutes (2011), states:

The judge must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application. The affidavit and further proof, if same be had or required, must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.

The key provision is that the judge must "have the application of some person for said warrant duly sworn to and subscribed." Id. (emphasis added). Additionally, section 933.18, Florida Statutes, states that "[n]o warrant shall be issued for the search of any private dwelling ... except on sworn proof by affidavit of some creditable witness ...." (emphasis added). The plain language of both statutes refers to the affiant to a search warrant application being "some person" or the affidavit coming from "some creditable witness." Nowhere do the statutes require that an affiant be a member of law enforcement from that jurisdiction, nor do they require the affiant be law enforcement at all. The statutes, individually and collectively, merely require the affiant be "some person" or "some creditable witness."

Further, this court has found that even a private citizen may sign an application for a search warrant. Kaplan v. State , 347 So.2d 659 (Fla. 4th DCA 1977). In Kaplan , in rejecting the contention that a private citizen has no authority to apply for a search warrant, this court stated: "There is no Florida statute or rule restricting private citizens from signing applications for search warrants. Indeed, the firsthand quality of the information sworn to by a private citizen may be superior to hearsay statements presently allowed under the law to support search warrant applications." Id. at 659. Further, this court concluded that "[t]he same safeguards and other legal requirements for the issuance and service of search warrants apply regardless of who signs the application." Id.

Unlike the statutes that state who may be an affiant to a search warrant, the statutes that govern the execution of a search warrant provide that only law enforcement officers may execute a search warrant. Section 933.07(1), Florida Statutes, provides:

The judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of the search warrant, shall thereupon issue a search warrant signed by him or her with his or her name of office, to any sheriff and the sheriff's deputies or any police officer or other person authorized by law to execute process, commanding the officer or person forthwith to search the property described in the warrant or the person named, for the property specified, and to bring the property and any person arrested in connection therewith before the judge or some other court having jurisdiction of the offense.

Additionally, section 933.08, Florida Statutes, states: "The search warrant shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution."

In both of these statutes, the plain language dictates that "any sheriff[,] sheriff's deputies or any police officer or other person authorized by law to execute process" or "any of the officers mentioned in its direction" are the persons statutorily authorized to execute the search warrant. Clearly the legislature knows when to command that the action be performed exclusively by law enforcement or those authorized by law, for example the execution of the search warrant, as opposed to the application for the search warrant where there is no similar command.

Further, other states with similar search warrant statutes have allowed any person to be authorized to apply for a search warrant. See State v. Lewis , 2009 WL 385587, at *2-3 (La. Ct. App. 2009) (affirming denial of motion to suppress where officer obtained search warrant outside jurisdiction and Louisiana statutes allow any "credible person" to apply for a search warrant); Dickey v. State , 816 S.W.2d 832, 834 (Tex. Ct. App. 1991) (affirming denial of motion to suppress where peace officer acting outside jurisdiction obtained search warrant and Texas statute allowed anyone to file an affidavit for a search warrant); see also Hill v. State , 134 Md.App. 327, 759 A.2d 1164, 1173 (Md. Ct. Spec. App. 2000) (declining to "read into the statute an additional requirement that the officer applying for the warrant have the powers of a police officer within the jurisdiction in which the items to be seized are located"); United States v. Freeman , 897 F.2d 346, 348 (8th Cir. 1990) (finding procedural failing did not require exclusion of evidence where search warrant was obtained by department of revenue investigator rather than "peace officer or prosecuting attorney" as required by statute).

In this case, the trial court determined that the IRCSO detective "acted outside of his jurisdiction 'under color of office' to obtain Broward and Palm Beach County search warrants." The trial court relied on State v. Phoenix , 428 So.2d 262 (Fla. 4th DCA 1982), Phoenix v. State , 455 So.2d 1024 (Fla. 1984), and State v. Sills , 852 So.2d 390 (Fla. 4th DCA 2003), to conclude that the detective was improperly being an affiant outside of his jurisdiction. We disagree that the IRCSO detective, by being an affiant for search warrants in Broward and Palm Beach Counties, improperly asserted "official authority to gather evidence not otherwise obtainable." Phoenix , 428 So.2d at 266.

Law enforcement officers may conduct a lawful investigation outside of their territorial jurisdiction if the subject matter of the investigation originated in their own jurisdiction. State v. Price , 589 So.2d 1009, 1010 (Fla. 4th DCA 1991) ; Goodman v. State , 399 So.2d 1120, 1121 (Fla. 4th DCA 1981). In this case, it was undisputed that the investigation originated in Indian River County.

The "power of police to conduct investigations and to gather evidence outside of their jurisdiction" is subject to the "under color of office" doctrine, which is "a limitation on the power of police to conduct investigations and to gather evidence outside their jurisdiction."

Phoenix , 428 So.2d at 266. In Phoenix , this court recognized that evidence obtained "by the unlawful assertion of official authority" should be suppressed. Id.

Significantly, this court determined that the facts of Phoenix did not limit Martin County deputies from making an arrest in St. Lucie County. Id. at 266-67. In that case, Martin County deputies stopped a truck in St. Lucie County "by using the blue flashing lights of their police car. Guns drawn and pointed, they identified themselves as police officers, ordered the occupants to get out of the truck and lie face down in the grass, and opened the back of the truck where they discovered marijuana." Id. at 264. This court held that the under color of office doctrine "does not prevent officers from making an otherwise valid citizen's arrest just because they happen to be in uniform or otherwise clothed with the indicia of their position when making the arrest." Id. at 266. "Moreover, the mere use of a police car and the fact that the officers identified themselves as officers in stopping the camper-truck is not enough to prevent them from making valid citizen's arrests." Id. at 267. The supreme court approved this decision. See 455 So.2d at 1024-26.

In the present case, like in Phoenix , the IRCSO detective did not use the "powers of [his] office to observe unlawful activity or gain access to evidence not available to a private citizen." Id. at 1025. In applying for search warrants and being the affiant on those applications, the IRCSO detective was not doing anything that a private citizen was not statutorily authorized to do. See id. ; §§ 933.06, 933.18, Fla. Stat.

The fact that the detective in the present case identified himself as a law enforcement officer in the affidavits and applications did not render his actions as an affiant improper. Like in Phoenix where the arrest by Martin County deputies in St. Lucie County with guns drawn and flashing lights on their police cars did not violate the "under color of office" doctrine, similarly here the applications submitted by the detective effectively were as a "citizen" affiant and also did not violate the "under color of office" doctrine.

The "under color of office" doctrine also was not implicated by the detective's reliance on information derived from wiretaps that were authorized by a judicial officer in Indian River County. A police officer who relies on information lawfully gathered in his jurisdiction does not violate the "under color of office" doctrine by utilizing that information subsequently as an affiant to a search warrant even if that search warrant is obtained from another jurisdiction. See Phoenix , 428 So.2d at 266 (stating that one violates the "under color of office" doctrine when an officer gathers evidence not otherwise lawfully obtainable). In this case, the officer did not violate the "under color of office" doctrine because he relied on evidence lawfully obtained, such as information the officer obtained with prior judicial approval. See id.

In suppressing the evidence, the trial court also relied on Sills , but that case is distinguishable because there the officers were acting "under color of office" where, after arresting the defendant for drug trafficking offenses, the officers transported him in handcuffs outside their jurisdiction to his house, where the defendant had advised there were drugs, and obtained a waiver of search warrant. 852 So.2d at 391-93. This case is also unlike Wilson v. State , 403 So.2d 982 (Fla. 1st DCA 1980), and State v. Allen , 790 So.2d 1122 (Fla. 2d DCA 2001), which appellees rely upon on appeal, because in each of those cases the investigation originated outside the officer's jurisdiction.

In conclusion, the plain language of the statutes governs our analysis. When we examine the contours of the statute we need only look at the very text in front of us. As Justice Cardozo once observed, "[w]e have not traveled, in our search for the meaning of the lawmakers, beyond the borders of the statute." United States v. Great N. Ry. Co. , 287 U.S. 144, 154, 53 S.Ct. 28, 77 L.Ed. 223 (1932).

Nothing in the statutes requires that the affiant be a law enforcement officer, nor do the statutes prevent the affiant from being a law enforcement officer. The statutes merely require the affiant be "some person" or "some creditable person." The affiant clearly fits the required statutory criteria.

As such, we rest on the text of these statutes, reverse the order suppressing evidence, and remand for further proceedings.

Reversed and remanded for further proceedings.

Conner and Forst, JJ., concur.


author: Gross, J.

text:
    Marjorie GELBER, f/k/a Marjorie Gelber Brydger, Appellant, v. Gordon Charles BRYDGER, Appellee.
    No. 4D17-295
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant.
    Barry I. Finkel, Fort Lauderdale and Carin M. Porras of Brydger & Porras, LLP, Fort Lauderdale, for appellee.
   Gross, J.

This is a case where the former husband sought a downward modification of alimony once his former wife reached the age of 59 ½ and could access retirement accounts without penalty. We hold that a former spouse's ability to access substantial retirement accounts without penalty is one factor which may be considered as part of the total circumstances in determining if there has been a sufficient change to warrant a downward modification of alimony, provided that a marital settlement agreement or final judgment has not already taken the retirement accounts into consideration in setting alimony.

After a 27-year marriage, Marjorie Gelber and Gordon Brydger divorced on August 31, 2004. The final judgment incorporated a marital settlement agreement ("MSA") which required the former husband to pay $6,375 per month in permanent periodic alimony until either party died or the former wife remarried.

Under the MSA, as part of equitable distribution, the former wife received various retirement and annuity accounts (collectively, "retirement accounts"). Nothing in the MSA required the former wife to invade the retirement accounts for income. The MSA did not take into consideration the eventual income that the former wife would receive from the retirement accounts, without penalty, once she reached retirement age. The MSA made the alimony obligation "modifiable in accordance with Florida Statutes."

In 2014, the former husband filed a supplemental petition for modification of alimony. The former husband had not yet retired and had the ability to pay the alimony required by the MSA. Nevertheless, he sought modification because the former wife's retirement accounts had appreciated and the former wife had reached the age of 59 ½, so she could take distributions from the accounts without penalty.

At trial, the former husband focused on the former wife's financial circumstances. Through the MSA at the time of dissolution, the former wife received the $657,327 in retirement accounts as well as over $500,000 in other investments. Her 2005 monthly income was $3,437 from wages and non-retirement investment accounts. By 2014, the retirement accounts had appreciated to $1,028,965 and her retirement accounts and investments totaled $1,600,000 for which the stipulated return was 3.75%. This yielded a monthly income from investment accounts and retirement accounts of $5,000 per month. In addition to income available from investment and retirement accounts, the former wife had social security disability income of $1,027 per month and pension benefits of $675 per month. Her monthly need was $7,674.

In an amended final judgment, the circuit court found that the former husband demonstrated a substantial change in the former wife's income from $3,400 per month in 2004 to $7,100 per month in 2014 upon turning age 59 ½ when she could access the income from her retirement accounts without penalty. The court found that the change in available income from 2004 to 2014 was "unanticipated" because "the $5,000 a month generated from her retirement assets as of 2014 was not and could not be attributed to her in 2004."

The court found that all of the witnesses testified that the former wife's income from her retirement accounts was not considered or factored into the alimony amount when it was fixed in the MSA.

The court concluded that the former wife's need for alimony was $1,735 per month and reduced the former husband's alimony obligation to that amount, retroactive to the date of the petition.

We write to address the former wife's argument that her ability to access the retirement accounts without penalty at age 59 ½ was not an unanticipated change in circumstances. She argues that such a known event is "foreseeable" and that "[a]limony may not be modified for anticipated changes in circumstances."

As a prerequisite to the modification of an alimony award, the notion of an "anticipated" change in circumstances has crept into Florida law over the years. We often see it argued, as in this case, to preclude changes that were "foreseeable" at the time of the original final judgment. The word choice of "anticipated" has been unfortunate because it has transformed a very different concept into something that it is not.

Concerning modifications of support, maintenance, and alimony agreements or orders, section 61.14(1)(a), Florida Statutes (2017), is primarily concerned with equity and fairness. In the part pertinent to this case, the statute provides:

When the parties enter into an agreement for payments for ... alimony... and the circumstances or the financial ability of either party changes ... either party may apply to the circuit court...for an order decreasing or increasing the amount of ... alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties ... decreasing, increasing, or confirming the amount of ... alimony provided for in the agreement or order.

The statute refers to changed circumstances and financial ability and permits the court to enter orders "as equity requires." The statute makes no reference to a change being "unanticipated."

The term "anticipated change" was injected into Florida law by cases that used the term synonymously to describe something that had been "contemplated and considered" when the original judgment or agreement had been entered. For example, in Jaffee v. Jaffee , the court correctly stated the principle "that an alimony award may not be modified because of a 'change' in the circumstances of the parties which was contemplated and considered when the original judgment or agreement was entered." 394 So.2d 443, 445 (Fla. 3d DCA 1981). Jaffee cogently explained the reason for this rule:

The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass.

Id. In its refusal to reconsider something already "contemplated and considered" by the parties or the court in a family case, the doctrine described by Jaffee is akin to the doctrines of res judicata or collateral estoppel.

As an opinion subheading to the portion of the case containing this discussion, the Jaffee court used this: "No Unanticipated Change of Circumstances." The choice of adjective was unfortunate, since "anticipate" conveys the notion of something that will happen in the future. The legal principle explored in Jaffee concerned matters that had been contemplated or considered in the past, in a judgment or agreement; it does not penalize a party for failing to raise a matter that had not yet happened. Two of the cases cited in Jaffee have language consistent with its statement of the rule. See Withers v. Withers , 390 So.2d 453, 455 (Fla. 2d DCA 1980) (indicating that a substantial change of circumstances is one "which circumstances must not have been present and contemplated at the time of the final judgment"); Ashburn v. Ashburn , 350 So.2d 1158, 1158 (Fla. 2d DCA 1977) (stating that a change of circumstances "is not a substantial change if it had been contemplated in the final judgment.").

Some cases have cited to the subheading in Jaffee rather than the rule it explains. See , e.g. , Penland v. Penland , 442 So.2d 1054, 1055 (Fla. 1st DCA 1983) (stating that "[a]limony may not be modified for anticipated changes in circumstances"). This has opened the door for foreseeability arguments in modification proceedings, untethered from the underlying legal principle.

In Pimm v. Pimm , the Florida Supreme Court did not employ an "anticipated/foreseeability" analysis in deciding that a former spouse's retirement is a change of circumstances that may trigger a modification of alimony. 601 So.2d 534 (Fla. 1992). Citing to Withers , the court restated the Jaffee rule that a substantial change of circumstances sufficient to justify a modification must be a "change ... not contemplated at the time of final judgment of dissolution." Id. at 536. The court expressly held that the failure of an MSA or final judgment to consider what would happen upon a spouse's retirement "should not preclude consideration of a reasonable retirement as part of the total circumstances in determining if sufficient changed circumstances exist to warrant a modification of alimony." Id. at 537. Retirement is certainly something that can be "anticipated" during a divorce. Yet the Supreme Court focused not on what the parties should have anticipated but on what was actually considered in the property settlement agreement entered 13 years before the motion for modification. Id.

Like the situation in Pimm , the MSA in this case was silent as to what would happen once the former wife reached an age where she could access the funds in retirement accounts without penalty. This was not a case where the retirement accounts had been taken into consideration to determine the former wife's current income in a final judgment or MSA. Compare , Niederman v. Niederman , 60 So.3d 544 (Fla. 4th DCA 2011). The MSA made alimony "modifiable in accordance with Florida Statutes" and section 61.14(1)(a) makes alimony modifiable "as equity requires" where circumstances have changed. Finding no abuse of discretion, we affirm the trial court's order granting modification, including the issues raised on the cross-appeal.

Warner and Taylor, JJ., concur.

      "Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits." W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc. , 35 So.3d 79, 82-83 (Fla. 4th DCA 2010).

      "For the doctrine of collateral estoppel to apply to bar relitigation of an issue, five elements must be present: '(1) an identical issue must have been presented in the prior proceedings; (2) the issue must have been a critical and necessary part of the prior determination; (3) there must have been a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings must be identical; and (5) the issues must have been actually litigated.' " Criner v. State , 138 So.3d 557, 558 (Fla. 5th DCA 2014) (quoting Cook v. State , 921 So.2d 631, 634 (Fla. 2d DCA 2005) ).

      "Anticipate" is commonly defined as "to realize beforehand; foretaste or foresee." The Random House Dictionary of the English Language 64 (1967).

      Of the cases cited in Jaffee , Waller v. Waller employs a foreseeability concept in holding a change of circumstances to be insufficient for modification because the change was "one which can reasonably be said to have been anticipated." 212 So.2d 352, 353 (Fla. 3d DCA 1968).

      We distinguish Kreiser v. Kreiser , 505 So.2d 40 (Fla. 4th DCA 1987), relied upon by the former wife. There, this court rejected a former husband's attempt to eliminate his alimony obligation. Few facts are set forth in the opinion, but it appears that we found that the "unwritten agreement" "recited into the record" contemplated that the wife would receive corporate stock which would provide the wife with additional assets and income. Id. at 41. Read in this way, Kreiser is consistent with Pimm and the rule elaborated upon in Jaffee .


author: Damoorgian, J.

text:
    Raul SANCHEZ and Carmen De Jesus Santana, Appellants, v. Billy MARTIN, Appellee.
    No. 4D17-1731
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Paul L. Nettleton of Carlton Fields Jorden Burt, P.A., Miami, for appellants.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Jeff S. Abers of Fazio, DiSalvo & Abers, P.A., Fort Lauderdale, for appellee.
   Damoorgian, J.

Raul Sanchez and Carmen De Jesus Santana ("Defendants") appeal the judgment entered against them following a jury trial in Billy Martin's ("Plaintiff") automobile negligence action. Finding merit in Defendants' argument that the trial court erred in instructing the jury on aggravation of a preexisting condition, we reverse.

In 2014, a county public transit bus collided with a vehicle driven by Defendant Santana after she pulled in front of the bus. Plaintiff, who was a passenger on the bus, fell from his seat as a result of the impact. Complaining of back pain, Plaintiff was taken by ambulance to a hospital, evaluated, and discharged that same day. In the months thereafter, Plaintiff sought medical treatment for lower back pain and stiffness which he claimed was caused by the accident. Following an evaluation and a series of x-rays, which revealed a moderate amount of arthritis and some degenerative disc disease, Plaintiff was initially diagnosed with a lower back sprain and began receiving physical therapy. Plaintiff eventually underwent an MRI which indicated that he suffered from diffuse idiopathic skeletal hyperostosis ("DISH"). The MRI also purportedly showed that Plaintiff had a three-level disc herniation in his lower back.

At trial, Plaintiff's only theory of liability was that Defendant Santana's negligence caused the accident and that the impact of the accident caused the three-level disc herniation in his lower back. Although Defendants admitted negligence, they disputed both causation and damages. Specifically, Defendants argued that the accident did not cause any of the alleged injuries and that Plaintiff's subjective complaints of pain, stiffness, and spasms were related to his various preexisting degenerative conditions.

In support of his theory, Plaintiff presented the testimony of Dr. Hinkes, the orthopedic surgeon who treated him after the accident. Dr. Hinkes testified that Plaintiff had three herniated discs in his lower back and that within a reasonable degree of medical certainty the injury was caused by the accident. In arriving at this conclusion, Dr. Hinkes relied on his records, Plaintiff's MRI, and Plaintiff's representation that he did not have back problems prior to the accident. Dr. Hinkes conceded, however, that there was no way of conclusively determining whether the herniation of those three discs occurred before, during, or after the accident by looking at the MRI alone. On cross-examination, Dr. Hinkes acknowledged that the MRI indicated Plaintiff suffered from DISH and that Plaintiff had this condition for a long time. He also acknowledged that over time, DISH can cause spasms, pain, stiffness, and various complications. Dr. Hinkes testified, however, that Plaintiff's DISH was located above the three herniated discs. Dr. Hinkes did not testify that Plaintiff's reported injuries from the accident caused an aggravation or activation of a preexisting condition.

Defendants, in turn, presented the testimony of Dr. Garcia, the orthopedic surgeon who performed Plaintiff's compulsory medical examination, and Dr. Raskin, the diagnostic radiologist who reviewed Plaintiff's MRI. Dr. Garcia opined that if Plaintiff did sustain an injury from the accident, it was a non-permanent strain/sprain to the lower back. Dr. Garcia further opined that the MRI showed no objective findings that would indicate recent trauma, but rather showed findings consistent with advanced degenerative changes stemming from Plaintiff's DISH, arthritis, and degenerative disc disease. Moreover, as to the three-level disc herniation testified to by Dr. Hinkes, Dr. Garcia explained that any such herniation was caused over the course of several years by Plaintiff's disc osteophyte complex and not by an acute traumatic event.

During cross-examination, Plaintiff's counsel asked Dr. Garcia whether the accident could have aggravated any of Plaintiff's preexisting conditions. Dr. Garcia responded that there was "no evidence that it aggravated the preexisting condition" and that "the indications of spasm in the neck and the lower back would be most consistent with a sprain/strain, not with an aggravation of a preexisting condition." Plaintiff's counsel thereafter generally asked whether having a preexisting condition could make a person more susceptible to injury, and Dr. Garcia responded that it could.

Dr. Raskin testified that the MRI showed no traumatic disc herniation. Rather, consistent with Dr. Garcia's assessment, Dr. Raskin opined that the MRI showed that Plaintiff had disc osteophyte complex, DISH, and bone calcifications, conditions which take years to develop and which could not have been caused by the accident. During cross-examination, Plaintiff's counsel asked Dr. Raskin whether trauma from an automobile accident could either aggravate or cause a spine problem, and Dr. Raskin responded that it could. Unlike Dr. Garcia, however, Dr. Raskin was not specifically asked whether the accident aggravated or activated any of Plaintiff's preexisting conditions.

During the charge conference, Plaintiff requested the following aggravation of preexisting condition instruction:

If you find that [Defendant Santana] caused a bodily injury, and that the injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or physical defect, you should attempt to decide what portion of [Plaintiff's] condition resulted from the aggravation or activation. If you can make that determination, then you should award only those damages resulting from the aggravation or activation. However, if you cannot make that determination, or if it cannot be said that the condition would ... exist apart from the injury, then you should award damages for the entire condition suffered by [Plaintiff].

Defendants objected, arguing that the evidence and arguments presented at trial did not support the instruction and that the instruction would serve only to confuse or mislead the jury. Plaintiff countered that it was "an alternative way of looking at the evidence." The trial court gave the instruction over objection and the jury ultimately awarded Plaintiff in excess of $1.5 million for his past and future medical expenses, future lost earnings, and pain and suffering. This appeal follows.

It is well established that "[i]nstructions to the jury must be predicated upon facts in proof. Therefore, it is, of course, improper to charge on an issue where either no material evidence or no evidence at all has been submitted." Winn-Dixie Stores, Inc. v. Nall , 302 So.2d 781, 781 (Fla. 3d DCA 1974) ; see also Carmona v. Carrion , 779 So.2d 337, 339 (Fla. 2d DCA 2000) ("A trial court cannot give a particular jury instruction on an issue unless material record evidence supports that instruction.").

The Second District's holding in Carmona is instructive. In that case, the plaintiff sued the defendants for the injuries to her neck and back following an automobile accident. Carmona , 779 So.2d at 338. At trial, it was revealed that the plaintiff suffered a work-related injury years prior and that the symptoms she complained of following the automobile accident at issue were similar to those caused by the work-related injury. Id. The plaintiff's expert, however, opined that the injuries for which the plaintiff sought compensation were caused by the automobile accident and were unrelated to the prior work-related injury. Id. The defendants' medical expert agreed that the plaintiff's "current complaints were not related to the earlier work-related injury." Id. Nonetheless, the plaintiff requested that the jury be instructed on aggravation of preexisting injury. Id. Over objection, the court gave the instruction and the jury ultimately returned a verdict in favor of the plaintiff. Id. at 338-39. The appellate court reversed, holding that the trial court erred in giving the instruction because the record contained no material evidence supporting such an instruction. Id. at 339. To the contrary, the court pointed out that "the jury heard specific, direct evidence from both [the plaintiff's] expert and the [defendants'] expert that [plaintiff's] injuries were in no way related to the prior incident." Id. The court also found that the error was not harmless because, after reviewing the evidence and the jury's verdict, it could not "determine whether the aggravation instruction influenced the jury in deciding the amount of damages to be awarded." Id.

In the present case, just as in Carmona , the jury heard specific, direct evidence from both Plaintiff and Defendants' experts that any injuries Plaintiff may have sustained from the accident did not cause an aggravation or activation of a preexisting condition. Specifically, Dr. Hinkes testified that the three-level disc herniation was caused by the accident and that the DISH Plaintiff had was located above the three herniated discs, thus implying that the injury and preexisting condition were unrelated. Dr. Garcia, in turn, testified that the disc osteophyte complex in the lower back predated the accident and that Plaintiff's subjective complaints of lower back pain and spasms were "consistent with a sprain/strain, not with an aggravation of a preexisting condition." Likewise, Dr. Raskin testified that the MRI showed no traumatic injury.

Simply put, the record in this case contains no material evidence supporting the aggravation instruction. In fact, Plaintiff readily admits in his brief that he "has never believed or suggested that his injuries came from an aggravation of a pre-existing condition." Nonetheless, Plaintiff maintains that by introducing evidence of his preexisting conditions, Defendants provided the material record evidence needed to support the instruction. We disagree. Defendants merely presented evidence of the preexisting conditions to rebut Plaintiff's contention that the accident caused him any permanent injury. In other words, evidence of Plaintiff's preexisting conditions was introduced to show "a continuing course of conduct over many years from which the jury could reasonably conclude that [Plaintiff's] condition immediately prior to trial was a natural result of the development of a disease which was engendered or began many years ago." Llompart v. Lavecchia , 374 So.2d 77, 80 (Fla. 3d DCA 1979).

Based on our review of the record, we cannot say that there was no reasonable possibility that the erroneously given instruction did not contribute to the verdict. See Special v. W. Boca Med. Ctr. , 160 So.3d 1251, 1265 (Fla. 2014). As causation was inextricably entwined with the nature and extent of the damages in this case, we reverse and remand for a new trial on the issue of causation and damages only. See Owen v. Morrisey , 793 So.2d 1018, 1026 (Fla. 4th DCA 2001) (holding that in situations where "causation is inextricably entwined with the extent and nature of the damages," on remand "the case should be treated as one in which the trial court has directed a verdict on negligence and it remains for the jury to determine what damages, permanent or non-permanent, were caused by the negligence"); see also Hernandez v. Gonzalez , 124 So.3d 988, 990 (Fla. 4th DCA 2013) (recognizing that a defendant can admit negligence while disputing causation and damages).

Defendants also argue that Plaintiff's counsel made several improper comments during closing argument. Although we need not reach the merits of this issue in light of our disposition on the instruction issue, we caution Plaintiff's counsel "to be vigilant in crafting closing arguments that fall within the confines of permissibility." Philip Morris USA, Inc. v. Tullo , 121 So.3d 595, 602 (Fla. 4th DCA 2013).

Reversed and remanded for a new trial.

Forst and Klingensmith, JJ., concur.


text:
    Anthony Thomas ROWE, Appellant, v. MACAW HOLDINGS I, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D17-2645
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Michael J. Pike and Daniel Lustig of Pike & Lustig, LLP, West Palm Beach, for appellant.
    Richard B. Warren and Michael L. Grant of Warren & Grant, P.A., Palm Beach Gardens, for appellee.
   Gross, J.

We reverse a default final judgment of eviction for the failure of the trial court to hold the evidentiary hearing required by statute where there is a dispute regarding the amount of rent to be posted in the court registry in a commercial eviction action.

Anthony Rowe ("Tenant") entered into a commercial lease with Macaw Holdings I, LLC ("Landlord") to rent property for the purpose of operating a gym.

"Fixed rent" was defined in section three of the lease as "21,500 per month, inclusive of [Initial Operating Expenses] + percentage share of utilities and sales tax." Relevant to this appeal, section 11 of the lease governed partial destruction of the premises, and provided for a reduction in fixed rent proportionately to the extent to which repair operations interfered with the operation of the business:

Partial destruction of the Premises shall not render this Lease void or voidable, nor terminate it except as specifically provided in this Lease. If the Premises are partially destroyed during the Term of this Lease, Lessor shall repair them when such repairs can be made in conformity with governmental laws and regulations, within 180 days of the partial destruction. Written notice of the intention of Lessor to repair shall be given to Lessee within 60 days after any partial destruction. Fixed Rent will be reduced proportionately to the extent to which the repair operations interfere with the business conducted on the Premises by Lessee . If the repairs cannot be made within the time specified above, Lessor shall have the option to make them within a reasonable time and continue this Lease in effect with proportional rent rebate to Lessee as provided for in this Lease. If the repairs cannot be made in 180 days, and if Lessor does not elect to make them within a reasonable time, either party shall have the option to terminate this lease.

(Emphasis added).

Roof problems materialized early in the lease. The tenant said that water damage occurred and debris from roof repairs damaged gym equipment.

The tenant made partial payments of rent. The landlord filed a complaint for eviction and damages for nonpayment of rent. Multiple times, the tenant asked for a hearing to determine the amount of money he would be required to post in the court registry pursuant to section 83.232(2), Florida Statutes (2017), which provides:

(2) If the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning:
(a) Whether the tenant has been properly credited by the landlord with any and all rental payments made; and
(b) What properly constitutes rent under the provisions of the lease.

The circuit court denied the tenant's request for a hearing and required the tenant to post the "fixed rent" of $21,500 per month less amounts paid by the tenant and other credits to which the parties agreed. The tenant failed to make the required payment and the court entered a default final judgment for possession.

The circuit court erred in failing to hold a section 83.232(2) hearing. Under the statute, a hearing is appropriate to determine "[w]hat properly constitutes rent under the provisions of the lease." The lease in this case defined "fixed rent" in section 3; concerning a "partial destruction of the premises," section 11 states that "Fixed Rent will be reduced proportionately to the extent to which the repair operations interfere with the business conducted on the Premises by Lessee."

The lease thus describes the credit to which a tenant is entitled for partial destruction of the premises as a reduction to "Fixed Rent." This case fell under section 83.232(2)(b), which contemplates a hearing on "[w]hat properly constitutes rent" under a lease. The trial court was required to make at least a preliminary determination of the reduction, if any, to which the tenant was entitled regarding the deposit into the court registry required by section 83.232. Like the findings in a temporary relief hearing in a chapter 61 case, a finding at a section 83.232 hearing can be modified after discovery and a final hearing on the merits.

This case is similar to Double Park, LLC v. Kaine Parking 125, LLC , 168 So.3d 278 (Fla. 3d DCA 2015). Like this case, Double Park involved a factual dispute concerning the amount of rent due under the provisions of a lease. The lease contained a provision that if the tenant subletted the property, any amount the tenant received from the subtenant above the "Annual Rent" defined in the lease became additional "Annual Rent" to which the landlord was entitled. Id. at 280. As in this case, the trial court denied an evidentiary hearing on the issue of what amount the tenant was required to post into the court registry under section 83.232 as a result of its sublease. Id. The third district reversed and remanded the case for an evidentiary hearing as to "any additional or excess rental income" the tenant may owe to the landlord "as a consequence of the [tenant's] sublease." Id. at 282.

Both this case and Double Park involve post-lease adjustments to "rent" set forth in a lease. Where there is a dispute as to the amount of such adjustments, section 83.232(2) requires an evidentiary hearing prior to an order requiring the posting of the adjustments in the court registry.

We distinguish this case from more common situations in which a tenant, facing eviction, claims as a defense to the non-payment of rent that the landlord breached some other lease provision not expressly tied to the amount of rent set forth in the lease. Those situations are not controlled by today's decision, which is limited to a lease provision describing an event which expressly alters the amount of rent set forth in the lease.

We reverse the default final judgment and remand to the circuit court for a section 83.232(2) evidentiary hearing.

Gerber, C.J., and Conner, J., concur.


author: Forst, J.

text:
    Joseph Ryan CASTLEMAN, Appellant, v. Jeann Saga BICALDO, Appellee.
    No. 4D17-827
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs, for appellant.
    Michael L. Cohen of Michael L. Cohen Law, West Palm Beach, for appellee.
   Forst, J.

Appellant Joseph Castleman ("Husband") raises multiple issues on appeal from the final judgment of dissolution of marriage between the parties. Unless otherwise addressed in this opinion, we affirm without comment. We find fundamental error requiring reversal and remand with respect to the trial court's (1) finding the relocation statute inapplicable to appellee Jeann Bicaldo ("Wife") in the event she is deported; (2) making a future-based projection of the parties' minor child's best interests by granting Wife permission to take their daughter with her if she is in fact deported; and (3) awarding Wife durational alimony for a period longer than the length of the marriage.

Background

Wife immigrated to the United States from the Philippines to marry Husband. Because of the marriage, she obtained conditional permanent resident status (a Green Card). But, twenty-six months after the marriage, Husband filed for dissolution. At one point, the parties stipulated to staying the case for up to six months while they attempted to reconcile. Husband, however, moved to resume the action two months later. Ultimately, the trial court entered a final judgment of dissolution, and in it awarded Wife durational alimony of $2000 a month for three years.

The trial court also ruled in its final judgment that in the event Wife's application for citizenship is denied, she would be permitted to take the child with her to the Philippines. In making its ruling, the trial court did not comply with the dictates of section 61.13001, Florida Statutes (2017). It reasoned the section did not apply to persons forced to relocate due to deportation.

Analysis

Husband failed to file the trial transcript, thus we review for fundamental error apparent on the face of the judgment. See P.S. v. Dep't of Children & Families , 68 So.3d 421, 421 (Fla. 4th DCA 2011).

A. Parental Relocation with a Child

The trial court committed fundamental error when it found that section 61.13001 (titled "Parental relocation with a child") "applies only to persons wishing to relocate voluntarily, not those who are forced to do so by the government following a change in their marital status."

Subsection (7) of the statute states that "[a] presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person." § 61.13001(7), Fla. Stat. (emphasis added). This subsection sets forth ten specific criteria "the court shall evaluate" with respect to child custody arrangements in the face of "a proposed temporary or permanent relocation," as well as a catch-all "[a]ny other factor affecting the best interest of the child or as set forth in s. 61.13." Id. Section 61.13, Florida Statutes (2017), deals with child support, parenting plans and time-sharing schedules.

There is no language in either section 61.13001 or section 61.13 granting a presumption in favor of a request to relocate with the child merely because the parent's relocation was involuntary, let alone language suggesting the sections are inapplicable. Although Wife may have little choice with respect to her relocation due to a deportation order, this does not lead to the conclusion that she is entitled, without an inquiry pursuant to section 61.13001, to relocate with the child .

In addition to the trial court's fundamental error of making a distinction between voluntary and involuntary parental relocation that is not supported by the plain language of the statute, the court further fundamentally erred in making a prospective-based finding that it was in the child's best interests to move to the Philippines on some future, uncertain date.

In Arthur v. Arthur , 54 So.3d 454 (Fla. 2010), our supreme court reviewed the trial court's authorization of a permanent relocation proposed to occur twenty months from the date of the hearing. Id. at 459. The court determined:

Such a "prospective-based" analysis is unsound. Indeed, a trial court is not equipped with a "crystal ball" that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing , i.e. a "present-based" analysis.

Id.

The trial court's " 'prospective-based' analysis" in the instant case is similarly unsound. Any number of circumstances could change in the twelve to eighteen months it might take to process Wife's application and deport her.

B. The Award of Durational Alimony

The trial court also fundamentally erred when it awarded three years of durational alimony to Wife. Section 61.08(7), Florida Statutes (2017), states that an award of durational alimony "may not exceed the length of the marriage," which is "the period of time from the date of marriage to the date of filing of an action for dissolution of marriage." § 61.08(4), Fla. Stat. As noted above, Husband filed the petition for dissolution twenty-six months from the date of marriage. Thus, the trial court's finding that "[t]he duration of the marriage is just over three years," is not accurate. The statute provides no support for extending the calculation of "the length of the marriage" due to the parties' attempts to reconcile. Durational alimony could be awarded for a period of no more than twenty-six months-the period from the date of marriage to the filing of the dissolution action.

Conclusion

We reverse the portion of the trial court's judgment addressing "parental relocation with a child." However, we do so without prejudice to the trial court's ability to modify the judgment in response to an impending involuntary relocation of Wife. For example, if Wife learns that her application for citizenship has been denied and has good cause to believe that her involuntary relocation from the United States is imminent, she can file a petition to relocate with her daughter pursuant to section 61.13001(3).

As to the award of durational alimony, we reverse and remand with the instruction to reduce the period during which Wife may receive this type of alimony to no more than twenty-six months. However, on remand, the trial court may reconfigure the alimony award. "[A]limony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony." § 61.08(1), Fla. Stat. (emphasis added).

Affirmed in part, Reversed and Remanded in part .

Levine and Conner, JJ., concur.

      As of the date of this opinion, this court has not received notice that deportation proceedings against Wife have commenced.


author: Warner, J.

text:
    C.J.L-M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-836
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Thomasina Moore and Rocco J. Carbone, III, Guardian ad Litem Program, Sanford, for appellee Guardian ad Litem Program.
    No brief filed for appellee Department of Children and Families.
   Warner, J.

A mother appeals a final order for adjudication of dependency and order denying her motion to vacate that default order after she failed to appear at an arraignment hearing. She contends that the order was void because she was never served with the petition. We disagree, as she appeared at a shelter hearing, and thus, service of process was not required pursuant to section 39.502(2), Florida Statutes (2018). As she was advised of the arraignment date in the order emanating from the shelter hearing, as well as the consequences of her failure to appear, the court did not err in entering the final order of dependency.

In December 2017, the Department of Children and Families filed a verified shelter petition and notified the appellant mother, C.J.L-M., that her child was taken into custody. The court appointed counsel for the mother and conducted a shelter hearing, which the mother attended. The court found probable cause for removal. The shelter order and notice of hearing listed the date, time, and location of the arraignment hearing (January 10, 2018). It warned in bold, capitalized font, "FAILURE TO APPEAR AT THE ARRAIGNMENT HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THE CHILD AS A DEPENDENT CHILD [.]"

The Department filed the dependency petition on January 9, 2018, the day before the scheduled arraignment hearing. At the arraignment hearing, the mother did not appear, but her attorney was present. He argued the court could not find the mother constructively consented to the dependency order because she was not personally served with the petition. The Department conceded the mother was not served with the petition, but it argued the court had personal jurisdiction over her because she signed for the arraignment date at the shelter hearing and was appointed counsel. The Department contended under section 39.502(2), Florida Statutes, appearance at any hearing before the Court obviates the need for personal service. The court agreed with the Department and entered the final order of dependency, finding the mother constructively consented to the dependency petition.

A week later, the mother moved to vacate the adjudication of dependency. She argued under Florida Rule of Juvenile Procedure 8.225 and section 39.502, Florida Statutes, the clerk was required to issue a summons upon the filing of the dependency petition and to give her at least seventy-two hours' notice of the arraignment hearing. The mother contended actual knowledge of the hearing did not obviate the need for service of the petition. At the hearing on the motion, the court again found that because the mother was given actual notice of the hearing, she constructively consented to the dependency order. The court denied the motion and the mother appeals.

The trial court correctly ruled that the mother's personal appearance at the shelter hearing obviated the need for service of process. Section 39.502(2), Florida Statutes, provides that, "Personal appearance of any person in a hearing before the court obviates the necessity of serving process on that person." This same provision is included in Florida Rule of Juvenile Procedure 8.225(a)(3)(C), which states, "Personal appearance of any person in a hearing before the court eliminates the requirement for serving process upon that person." Because the mother personally appeared at the shelter hearing, no service was required. She also received and signed the notice of the date and time of the arraignment hearing, which included the admonishment that failure to appear at the hearing would result in an adjudication of dependency.

The mother argues that section 39.502(2) should not be construed as obviating the need for the service of the petition for dependency when the parent has personally appeared at the shelter hearing, a distinct proceeding prior to the petition for dependency being filed. Her interpretation is not supported by the statutory language. The only service of process required on the party is service of the dependency petition, and thus, that is the only service which could be obviated by section 39.502. Further, the shelter petition is prefatory to the filing of the dependency petition, and therefore, appearance at that hearing is part of the overall dependency process, even if they are distinct parts of the proceedings involving the child in question.

Florida Rule of Juvenile Procedure 8.305(c)(8) requires that a shelter order contain written findings that "the court notified the parents or legal custodians of the time, date, and location of the next dependency hearing , and of the importance of their active participation in all subsequent proceedings and hearings [.]" (emphasis added). The order issued in this case complied with that requirement. The mother even signed for the arraignment date, reflecting both her presence at the shelter hearing and her acknowledgment of the date and time of the arraignment hearing, as well as the consequences of failing to appear.

The mother's reliance on N.L. v. Department of Children and Family Services , 960 So.2d 810 (Fla. 3d DCA 2007), and S.H. v. Department of Children and Families , 837 So.2d 1117 (Fla. 4th DCA 2003), is misplaced. In both cases, the parent had not appeared at a hearing. Thus, section 39.502(2) did not create jurisdiction over the parent prior to the filing of the petition for dependency. In S.H. , we specifically noted that section 39.502(2) could not apply because, while the parent was present at the courthouse on the day of the arraignment hearing and signed an attendance sheet outside the courtroom, he left before the hearing began. 837 So.2d at 1117-18.

To adopt the mother's position would require us to rewrite the applicable statutes and rules, something we have no authority to do. The trial court correctly ruled that the mother's presence at the shelter hearing obviated the need for service of process of the dependency petition. Her failure to attend the arraignment hearing, of which she had notice through the shelter order, constituted a constructive consent to the adjudication of dependency.

Affirmed.

Taylor and Levine, JJ., concur.

      Although the Department conceded error, the Guardian ad Litem did not. We do not accept the Department's concession of error.

      We note that the same case number is on the shelter order as on the petition for dependency, thus showing that they are part of the same case.

      In N.L. , the mother appeared after the hearing had concluded and the shelter order was entered. 960 So.2d at 811. In S.H. , the petition for dependency was filed and the father failed to appear at the arraignment hearing. 837 So.2d at 1117. The facts in the opinion do not mention that a shelter hearing preceded the petition for dependency.


text:
    Vincent Charles SALERNO, in his individual capacity, and as Personal Representative of The Estate of Susan M. Salerno, Appellant, v. DEL MAR FINANCIAL SERVICE, LLC; Gladstone Law Group, P.A., and South Regional Transportation Authority, Appellees.
    No. 4D17-305
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Richard R. Widell, Winchester, VA, for appellant.
    Hinda Klein of Conroy Simberg, Hollywood, for appellees Del Mar Financial Service, LLC and Gladstone Law Group.
   Warner, J.

The trial court dismissed appellant Estate's complaint charging the employer of the deceased with negligence in her death. The complaint alleged that the employer served alcohol to the deceased during working hours, with knowledge that she was an alcoholic, and then failed to provide supervision for her when the employer ejected her from the premises and she was hit by a train while walking home. Appellant attempts to state a cause of action based upon section 768.125, Florida Statutes (2013), but that statute does not create a cause of action nor is it applicable to these circumstances. Although there is a special relationship between an employer and employee and a duty to protect the employee from imminent harm within the scope of employment, there is no similar duty when the employee is going and coming from work. The employer has breached no legal duty to the employee. We affirm.

"Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal under the de novo standard of review." Regis Ins. Co. v. Miami Mgmt., Inc. , 902 So.2d 966, 968 (Fla. 4th DCA 2005). When ruling on a motion to dismiss for failure to state a cause of action, the court must accept the allegations of the complaint as true. Id.

The second amended complaint alleged that the decedent, Susan Salerno, was employed as a paralegal by both Del Mar Financial Service, LLC, a legal documentation support firm, and Gladstone Law Group, a foreclosure law firm (referred to hereafter as the "employers"). The complaint alleged the employers maintained a bar on their premises and encouraged employees to drink alcoholic beverages during the work day to entice them to work additional hours and produce more work product. It alleged that the employers knew, or should have known, that the deceased was addicted to alcohol because she was required to attend AA meetings. On June 19, 2013, the employers served the deceased so many drinks that she became intoxicated and agitated. At that point, other employees escorted her out of the building, but they provided no assistance. She could not reenter the building because her access had been revoked. The deceased began walking in the direction of her home, which was ten miles away. A train employee observed the deceased walking along the railroad tracks where she was struck by an oncoming train.

The Estate alleged that the employers were negligent in serving the employee alcoholic beverages within the scope of her employment, but then removing her from her place of employment without monitoring her safety or providing her transportation home. It claimed that it was foreseeable that she would walk and be struck by a train. The Estate demanded damages for her wrongful death.

The employers moved to dismiss the second amended complaint on grounds that no cause of action could be stated because section 768.125, Florida Statutes (2013), provides only a cause of action against alcohol "vendors," not a social host or business that gratuitously serves alcohol. Section 768.125 provides:

Liability for injury or damage resulting from intoxication
A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

The trial court granted the motion and dismissed the second amended complaint with prejudice for failure to state a cause of action, agreeing with the employers that section 768.125 did not create a cause of action and a business does not otherwise owe a duty to an inebriated person, except in the limited circumstance that the intoxicated person is inert, citing Preferred National Insurance v. Fat Investors, Inc., 842 So.2d 1068 (Fla. 4th DCA 2003). The Estate now appeals.

The Estate first argues that section 768.125 does not shield the employers from liability. We agree that the statute does not shield the employers from liability from a duty they might otherwise have, because the statute is inapplicable to the employer in this situation. The statute created a limitation on the existing common law duty of vendors of alcohol. See Armstrong v. Munford, Inc. , 451 So.2d 480, 481 (Fla. 1984) ; Migliore v. Crown Liquors of Broward, Inc. , 448 So.2d 978, 980 (Fla. 1984). The statute also dealt with the serving of alcohol by social hosts. In Bankston v. Brennan , 507 So.2d 1385, 1387 (Fla. 1987), the court held that the statute did not create a cause of action against a social host who served alcohol to a minor. Later, the court concluded that it also did not create a cause of action for a social host serving alcohol to a known alcoholic. See Dowell v. Gracewood Fruit Co. , 559 So.2d 217, 218 (Fla. 1990). As the employers are neither vendors of alcohol nor could they be considered social hosts under these circumstances, the statute has no application.

The Estate contends that Carroll Air Systems, Inc. v. Greenbaum , 629 So.2d 914 (Fla. 4th DCA 1993), is controlling. However, that case does not apply to the factual allegations of this complaint. In Carroll , an employer was held vicariously liable for the actions of its employee in driving while intoxicated and causing a fatal accident. Id. at 915-16. The employee had attended a business meeting where alcohol was served. Id. at 915. The employee was found to be in the course and scope of his employment when the accident happened. Id. at 916. Vicarious liability of the employer arose because the employer had the ability to control the employee, but it failed to exercise that control when it let the employee drive while intoxicated. Id. at 917.

Carroll is distinguishable, because the employee was acting within the course and scope of his employment. Liability was fixed on the employer, not because the employer served alcohol and the employee was intoxicated, but because the employer allowed the employee to drive in the course and scope of his employment while intoxicated. Id. ("[T]he 'fault' of the employer was not in the furnishing of the drinks but in its knowledge, actual or constructive, that Mills was intoxicated and was not in a condition to drive."). Here, the deceased was not in the scope of her employment when she was walking home along the railroad tracks.

The Estate also argues that the employer had a "heightened duty of care" to its employee, which it breached by serving her alcohol and then ejecting her from the premises without supervision to go home. The question is whether there is such a duty of supervision on an employer where the injury to the employee occurs outside the scope of employment.

Although we have found no Florida cases which are directly on point, in Hernandez v. Tallahassee Medical Center, Inc. , 896 So.2d 839 (Fla. 1st DCA 2005), the court addressed the issue of the duty of an employer to an employee travelling to her place of employment. Hernandez, a surgical nurse at the medical center, suffered from an epileptic-seizure disorder, which was known to the hospital and which prevented her from driving to work. Id. at 840. She would normally take a taxi and be reimbursed by the hospital. Id. She also had to take her daughter to daycare before reporting to work. Id. On the day of the accident, she reported that she was sick with symptoms of her disorder. Id. at 840-41. However, the hospital ordered her to report to work, although it knew that she likely would have to drive herself that day, to take her child to daycare before reporting. Id. at 841. She drove to work, but she suffered a seizure along the way, resulting in an accident in which she suffered injuries. Id. She sued the hospital, alleging negligence and basing her complaint on the theory that the hospital's conduct created a foreseeable zone of risk, placing on the defendant the duty to protect against that risk. Id. Noting that the foreseeability of the risk alone does not create a duty, the court explained that a plaintiff must show that the "defendant's conduct created or controlled the risk." Id. As there was a special relationship of employer and employee, the court addressed the question of whether the hospital's conduct created the foreseeable zone of risk, thus giving rise to the duty to protect against the harm.

The court in Hernandez looked to Restatement (Second) of Torts § 314B (1965), which provides:

(1) If a servant, while acting within the scope of his employment , comes into a position of imminent danger of serious harm and this is known to the master or to a person who has duties of management, the master is subject to liability for a failure by himself or by such person to exercise reasonable care to avert the threatened harm.

Id. at 843 (emphasis in original). Commenting on the rule, the court noted:

It is important to observe that the duty the employer owes to the employee under sections 314B and 512 is conditioned upon the employee "acting within the scope of his employment." As a consequence, if the employee's actions cannot be said to be within the scope or course of his or her employment, no duty is placed on the employer to exercise reasonable care to avert the threatened harm. "Scope of employment" is defined as, among other things, "the field of action in which a servant is authorized to act out in the master-servant relationship." BLACK'S LAW DICTIONARY 1374 (8th ed. 2004). This is similar to the definition applied to "course of employment" in the law of workers' compensation: "[T]he time, place, and circumstances under which the accident occurs." Strother v. Morrison Cafeteria , 383 So.2d 623, 624 (Fla. 1980). It follows that if an injury takes place while an employee is outside the scope of employment, the employer cannot be held responsible for same.

Id. Looking to worker's compensation law, the court noted that travelling to and from work was not considered to be in the course and scope of employment:

No doubt the general rule absolving the employer from responsibility for the injury of an employee not in the course of employment was based in large measure on the policy consideration of the attenuated degree of control over the employee's actions, particularly while driving an employee-owned vehicle. If no liability for compensation is fastened upon an employer by the workers' compensation system, a process based not on fault but on the connection between the injury and the employment, for an injury suffered by an employee while going to or coming from work, we similarly cannot conclude that the law of negligence, requiring the showing of a defendant's fault, places liability on an employer for an injury sustained by its employee outside the scope of employment based only upon the employer's knowledge of the threatened harm.

Id. at 843-44 (emphasis added). As a result, Hernandez was not within the scope of employment when she was travelling to work, and the hospital owed no duty to Hernandez, even though it ordered her to report to work, knowing that she had seizures and was not supposed to drive. Id. at 844.

Hernandez involved travelling to work, but the same analysis would apply to travelling from work, as in the case here. The accident occurred while the deceased was walking down the railroad track on her way home. It was outside the scope of her employment. While she became intoxicated during her employment, drinking alcohol was not required in her position, but simply an "enticement" to get her to work longer. She voluntarily drank to the point of intoxication. Although she was ejected from the premises by other employees when she became agitated, she was not in imminent danger of serious harm until she began to walk home along the railroad tracks, which was voluntary on her part. Just as in Hernandez , the employers owed no duty because she was not in the scope of her employment when the accident occurred.

Only one court has found that an employer may be liable where an employee is injured travelling away from work. In Bardy v. Walt Disney World Co. , 643 So.2d 46, 47 (Fla. 5th DCA 1994), Bardy, a Disney employee, became intoxicated while attending a staff party on the Disney premises. He went to his car to lie down. Id. A security guard found him and ordered him to leave the premises. Id. When Bardy told him that he was intoxicated, the guard demanded that he drive away immediately or be arrested. Id. Bardy drove off the premises and got into an accident only 500 feet from the parking lot, causing himself injuries. Id. The Fifth District reversed a summary final judgment in favor of Disney. It concluded that Disney had a duty to its employee and relied on the fact that the security guard ordered an intoxicated person to drive the vehicle, finding an act of misfeasance, rather than nonfeasance:

Disney is not free from all liability as a matter of law. Bardy was an employee of Disney, an invitee on Disney property for social purposes (at least until the invitation was revoked by the guard), and the alcohol he drank (thirty 16 oz. cups of beer) had been supplied by Disney. More important, it was an employee or agent of Disney who allegedly ejected him from the property, ordering him to move the motor vehicle. The driving of a motor vehicle by an intoxicated person is not only obviously perilous to the driver but to others as well , and is a violation of law.

Id. at 48 (emphasis added). However, Bardy is clearly distinguishable from the present case, where the intoxicated deceased was not ordered to leave the work premises in a vehicle, a dangerous instrumentality.

We agree with Hernandez and conclude that in Florida there is no common law cause of action against the employers under the facts of this case. The deceased was voluntarily intoxicated. The employers did not require her to drink alcoholic beverages, and they did not place her in a dangerous instrumentality. Walking down the railroad track was an act of her own volition and remote from her employment. The accident was tragic, but the employers had no legal duty to the employee under the circumstances.

Affirmed.

May and Damoorgian, JJ., concur.