author: Winsor, J.

text:
    Demeko Ladjuan SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1350
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Andy Thomas, Public Defender, and Kathleen Pafford and Joanna A. Mauer, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Demeko Ladjuan Sims was convicted of armed robbery and petit theft, and he received a life sentence as a Prison Releasee Reoffender. See § 775.082(9), Fla. Stat. Sims now appeals, raising an evidentiary issue, alleging ineffective assistance of counsel, claiming a double-jeopardy violation, and challenging the constitutionality of his sentence. We affirm.

I.

There was a robbery at a Pensacola Quick Mart store. Two masked men entered the store, pointed guns at two clerks, and took one clerk's phone and wallet, along with $700. Store cameras captured video and still photos of the robbery.

Police suspected Sims and another man were involved in a series of armed robberies, including this one. The other man, Joseph Vaughn, was Sims's roommate, and his truck had been under surveillance for a while. About a week after the robbery, officers pulled over Vaughn's truck, found Vaughn and Sims inside, and arrested them both.

In a subsequent interview, Sims initially denied participating in the robbery. But he finally confessed after officers confronted him with surveillance photos showing distinctive markings on the masked robber's pants. Sims ultimately admitted that he and Vaughn had robbed the store using two revolvers, one black and one silver. Following the confession, officers secured a search warrant for Vaughn's truck and the men's apartment. Officers found two revolvers and two camouflage jackets in the truck; in the apartment, they found a pair of pants with the same distinctive markings.

The State charged Sims with armed robbery, grand theft, and possession of a firearm by a convicted felon. The jury convicted Sims of armed robbery and petit theft (as a lesser included of grand theft). The felon-in-possession charge, which had been severed, was later dismissed.

II.

A.

Sims first argues that the court erred in admitting testimony that officers were looking for Vaughn's truck and that it had been under surveillance. According to Sims, the court should have excluded the evidence under section 90.403, which precludes evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." We review this issue only for an abuse of discretion, Hudson v. State , 992 So.2d 96, 107 (Fla. 2008), and we find none. The trial court acted within its discretion in allowing testimony explaining how officers first contacted Sims. Regardless, we conclude that if this were error, it was harmless. See State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986).

B.

Second, Sims argues that his trial counsel should have moved for a judgment of acquittal "on the basis that the state failed to introduce identity and corpus delicti before introducing Sims's admission." Init. Br. at 17. Trial counsel's failure in this regard, Sims maintains, shows constitutional ineffectiveness and a corresponding Sixth Amendment violation.

"With rare exception, ineffective assistance of counsel claims are not cognizable on direct appeal." Ellerbee v. State , 87 So.3d 730, 739 (Fla. 2012). That rare exception applies only when the appellant demonstrates ineffectiveness on the face of the record, "indisputable prejudice," and the lack of any conceivable tactical explanation for counsel's action. Morales v. State , 170 So.3d 63, 67 (Fla. 1st DCA 2015). Here, the record includes nothing to show Sims's counsel should have made the corpus-delicti argument Sims asserts on appeal.

The corpus-delicti rule turns on the "fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed." State v. Allen , 335 So.2d 823, 825 (Fla. 1976). Therefore, before introducing evidence of a confession, the State must show that there was some crime. Burks v. State , 613 So.2d 441, 443 (Fla. 1993) ; see also Allen , 335 So.2d at 825 ("A person's confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime. The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication."). The proof of some crime need not be "overwhelming or uncontradicted," and the State need not prove that the defendant was the culprit before introducing evidence of a confession. Acoff v. State , 180 So.3d 185, 188 (Fla. 1st DCA 2015) ; see also Ramirez v. State , 133 So.3d 648, 651 (Fla. 1st DCA 2014). As long as the State puts on evidence of a crime, it can follow with evidence of an otherwise admissible confession.

Before the State introduced testimony about Sims's confession, it presented testimony from the robbery victims (the Quick Mart employees), and it introduced surveillance video showing two masked men robbing the store. This was sufficient. Any motion for judgment of acquittal based on the corpus-delicti rule would have been meritless, so counsel acted appropriately in not making one. See Hartley v. State , 206 So.3d 836, 838 (Fla. 1st DCA 2016) (counsel not ineffective for failing to make futile objections or motions).

C.

Sims's third argument on appeal is that double-jeopardy principles preclude convictions for both armed robbery and petit theft. The State agrees, confessing error and concluding the petit theft conviction must be vacated. But we are not required to accept the State's confession, and before we reverse any criminal judgment, we must be certain the law requires reversal. Perry v. State , 808 So.2d 268, 268 (Fla. 1st DCA 2002). Here, we cannot agree with Sims or the State on the double-jeopardy argument.

Sims relies on J.C.B. v. State , in which this court held that "[a] charge of robbery necessarily includes the elements of a charge of petit theft in that in proving a charge of robbery under section 812.13, the State must also prove the elements of petit theft under section 812.014(2)(c)." 512 So.2d 1073, 1074 (Fla. 1st DCA 1987). Sims then argues that because petit theft was a necessary lesser included of robbery, he could not be convicted of both. The State bases its agreement on Sullivan v. State , a short opinion in which we reversed a petit theft conviction based on double jeopardy. 631 So. 2d 1142, 1142 (Fla. 1st DCA 1994). We noted that the "dual offenses [petit theft and robbery] arose from a single criminal episode against a single victim," and we held that the lesser conviction must be vacated. Id.

Both Sims and the State have overlooked the Florida Supreme Court's decision in McKinney v. State , which held that double jeopardy does not prohibit dual convictions for robbery and theft. 66 So.3d 852, 856-57 (Fla. 2011). In McKinney , the court explained that "[t]here is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments." Id. at 854. And to determine whether the Legislature authorized separate punishments for robbery and theft, it looked to section 775.021, which provides that "[t]he intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction." § 775.021(4)(b), Fla. Stat. The Legislature provided three "[e]xceptions to this rule of construction," one of which Sims contends is applicable here: "Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." Id. § 775.021(4)(b) 3.

In McKinney , the court rejected the argument that grand theft and robbery fit in this exception. It did so by comparing elements of the statutory offenses and concluding that each offense included an element that the other did not. Id. at 857. Robbery required a showing of "force, violence, assault, or putting in fear," which grand theft did not, and grand theft required proof of the value of property taken, and robbery did not. Id. (quoting statute).

That was enough to show that the exception did not apply, that "neither offense is wholly subsumed by the other" or necessarily included in the other. Id. Thus, there was no double-jeopardy violation.

The same is true here. Sims's first-degree petit theft conviction required proof that he took property valued between $100 and $300. § 812.014(2)(e), Fla. Stat. The robbery conviction required no such showing, but it did require a showing of force or threat, which the theft charge did not. Just as in McKinney , there was no double-jeopardy violation.

D.

Finally, Sims argues that his life sentence was unconstitutional. His sentence was based on section 775.082(9), which requires a life sentence for a "Prison releasee reoffender," defined to include someone who commits robbery within three years after release from prison. Id. Sims argues that under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the Sixth Amendment requires a jury-not a judge-to determine his eligibility for a PRR sentence.

Sims acknowledges that his argument is foreclosed by our decision in Williams v. State , in which we explicitly held "that Alleyne does not require a jury to make the PRR factual determination." 143 So.3d 423, 424 (Fla. 1st DCA 2014). He argues that we should recede from this decision, but we are powerless to do that absent en banc review. Each panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc. Taylor Eng'g, Inc. v. Dickerson Florida, Inc. , 221 So.3d 719, 723 n.3 (Fla. 1st DCA 2017) ; see also In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. R. App. P. , 416 So.2d 1127, 1128 (Fla. 1982) ("[T]he suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.").

Sims also suggests that the Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) -issued after Williams -mandates a different outcome despite Williams . Even if we were otherwise inclined to agree, however, this court has reaffirmed its Williams holding even after Hurst . See Murphy v. State , 227 So.3d 242 (Fla. 1st DCA 2017), cert. denied sub nom. Murphy v. Florida , --- U.S. ----, 138 S.Ct. 1270, 200 L.Ed.2d 424 (2018) ("We affirm in all other respects, and reject, as we have before, the argument that a prison releasee reoffender sentence is unconstitutional if a jury did not make the finding that the defendant was released within the previous three years."). We are therefore bound to reject Sims's argument and affirm his sentence.

AFFIRMED .

Wolf and Jay, JJ., concur.

      To the extent Sims argues that his confession could not be admitted unless the State had proof of the crime and the culprit's identify before obtaining the confession-cf. Init. Br. at 20 ("[T]he corpus delicti and identity of the robbers were obtained from evidence retrieved under a search warrant only after Sims allegedly confessed."); id. at 21 n.1 ("However, a pair of pants with the same distinctive back pockets as seen on one of the suspects in the store video was retrieved from the apartment where Sims was staying after the deputy interrogated Sims, obtained the search warrant and it was executed at the apartment." (emphasis in original) )-Sims misunderstands the rule. The State is not precluded from introducing a confession simply because the confession preceded (or even initiated) the investigation that led to charges.

      Even if the petit theft conviction did not require proof of value, it is not clear there would have been a double-jeopardy violation. Unlike in Sullivan , where the offenses were "against a single victim," 631 So.2d at 1142, there were multiple victims here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clarence LEFLORA, Jr., an Individual, Appellant, v. ROYAL AMERICAN MANAGEMENT, INC., a Florida Profit Corporation, Appellee.
    No. 3D17-1767
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018
    Goldberg & Rosen, P.A., and Judd G. Rosen, Zachary D. Bodenheimer, and Khristopher R. Salado, for appellant.
    Cole Scott & Kissane, P.A., and Kathryn L. Ender, and Maria D. Vera, for appellee.
    Before LAGOA, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Carbonell v. BellSouth Telcomms., Inc., 675 So.2d 705 (Fla. 3d DCA 1996) ("A party seeking a continuance bears the burden of showing, by affidavit, the existence and availability of other evidence, its relevance, the efforts taken to produce it, and that any failure to do so is not the result of the movant's inexcusable delay." (citing Fla. R. Civ. P. 1.510(f) ) ).


author: LAGOA, J.

text:
    Michael I. LIBMAN, Appellant, v. FLORIDA WELLNESS & REHABILITATION CENTER, INC., et al., Appellees.
    No. 3D18-1568
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018
    Law Offices of Michael I. Libman, P.A., and Michael I. Libman ; Stuart B. Yanofsky, P.A., and Stuart B. Yanofsky (Plantation), for appellant.
    Ricardo A. Banciella, P.A., and Ricardo A. Banciella, Miami, for appellees.
    Before LAGOA, SCALES, and LINDSEY, JJ.
    ON MOTION TO DISMISS
   LAGOA, J.

Appellees Florida Wellness & Rehabilitation Center, Inc., Cereceda & Associates, D.C., P.A., Mark A. Cereceda, D.C., P.A., and Mark A. Cereceda, D.C. (collectively, "Appellees") move to dismiss Appellant Michael I. Libman's ("Libman") appeal of the trial court's order titled Final Summary Judgment Against Michael I. Libman. For the reasons set forth below, we dismiss the appeal for lack of jurisdiction.

Libman and Stuart Yanofsky ("Yanofsky"), both attorneys, filed a single-count first amended complaint against Appellees alleging breach of contract. The complaint alleged that between 2005 and 2009, Libman and Yanofsky entered into an oral contract with Appellees to bring suit against various insurance companies for monies due for medical services provided by Appellees. It was further alleged that the oral contract provided for the payment of attorney's fees by settlement or court award and that if Appellees decided to dismiss a case, discharge the attorneys, or otherwise not continue with a case, Appellees would be responsible for attorney's fees and costs. Finally, the complaint alleged that "without permission and consent" from Libman and Yanofsky, Appellees entered into a global settlement with an insurance company, circumventing their "right and entitlement to fees."

Appellees filed an answer, affirmative defenses, and counterclaims. Specifically, each appellee filed counterclaims against Libman for breach of fiduciary duty, disgorgement and/or forfeiture of attorney's fees, and legal malpractice. Appellees subsequently filed a motion for summary judgment against Libman on the breach of contract claim. On June 28, 2018, the trial court entered an order titled "Final Summary Judgment Against Michael I. Libman," which stated that Appellees' "motion for Summary Judgment is hereby GRANTED" and dismissed Libman's amended complaint. Appellees' counterclaims against Libman were not a subject of the order and remain pending below. Libman subsequently appealed from the trial court's June 28 order.

Appellees filed a motion to dismiss the appeal, arguing that the order is not appealable under Florida Rule of Appellate Procedure 9.110(k), which allows for review of partial final judgments "that dispose[ ] of a separate and distinct cause of action that is not interdependent with other pleaded claims." Fla. R. App. P. 9.110(k). Specifically, Appellees argue that the claims asserted in their still-pending counterclaims are interrelated with the breach of contract claim asserted in the amended complaint, and thus the appeal is premature.

As an initial matter, we note that the trial court's order merely grants Appellees' motion for summary judgment and does not contain language that enters judgment. "An order that merely grants a motion for summary judgment is not a final order. For an order to be final, it must constitute an entry of a judgment: it is the final judgment that is appealable, not an order simply granting a motion." Ball v. Genesis Outsourcing Sols., LLC, 174 So.3d 498, 499 (Fla. 3d DCA 2015) (citation omitted); cf. HSBC Bank USA v. Buset, 216 So.3d 701 (Fla. 3d DCA 2017) (finding portion of order granting motion for involuntary dismissal which contained language entering judgment to be appealable as a final order). We therefore lack jurisdiction to entertain an appeal from the trial court's order to the extent that it grants Appellees' motion for summary judgment.

Our analysis, however, does not end here because the trial court's order also dismissed Libman's amended complaint. A trial court's order dismissing a complaint may "be a final order for appeal purposes." Carnival Corp. v. Sargeant, 690 So.2d 660, 661 (Fla. 3d DCA 1997) ; see also Bd. of Cty. Comm'rs of Madison Cty. v. Grice, 438 So.2d 392, 394 (Fla. 1983) ("An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is."). However, "[f]or a final order to be appealable as a 'partial final judgment' under Rule 9.110(k)... that final order must be entirely independent from other pleaded claims. " Herbits v. City of Miami, 197 So.3d 575, 578 (Fla. 3d DCA 2016) (emphasis in original). "If all claims arise from the same set of facts, an order resolving fewer than all of the counts is not appealable under Rule 9.110(k)." Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So.3d 559, 562 (Fla. 3d DCA 2015) (holding that the trial court's order purportedly adjudicating appellant's claim was not appealable under rule 9.110(k) as appellant's claim arose from the same set of facts as appellee's counterclaim and third party claim); see also Bardakjy v. Empire Inv. Holdings, LLC, 239 So.3d 146 (Fla. 3d DCA 2018) (concluding that final judgment was not appealable under rule 9.110(k) and dismissing appeal as premature where issues and facts related to pending counterclaims were intertwined with claims and defenses raised in appeal); Skop v. P3 Grp., L.L.C., 67 So.3d 1194 (Fla. 3d DCA 2011) (finding that the trial court's order dismissing second amended complaint was not a final appealable order because claims asserted in second amended complaint were "inextricably intertwined" with defendant's pending counterclaims).

Here, we find that the trial court's order is not a final appealable order under rule 9.110(k). A review of the record shows that Libman's breach of contract claim is inextricably intertwined with Appellees' still-pending counterclaims. Each counterclaim arises from the alleged oral agreement that formed the basis of Libman's breach of contract claim. In short, Libman's breach of contract claim is "interdependent with other pleaded claims," i.e., Appellee's counterclaims. It is well-established that "[p]iecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit." S. L. T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974). Accordingly, we grant Appellees' motion to dismiss the appeal for lack of jurisdiction. Our dismissal is without prejudice to any party's right to appeal from a subsequent final appealable order.

Appeal dismissed.

      In its entirety, rule 9.110(k) states:
      (k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.

      We note that whether the trial court's ruling is a "judgment" or "order" is not determinative of our analysis under rule 9.110(k). See De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259 (Fla. 3d DCA 2016) (en banc) (stating that the term "judgment" as used in the Florida Rules of Civil Procedure includes final "orders").


author: PER CURIAM. LOGUE, J. (concurring).

text:
    The STATE of Florida, Appellant, v. Darryl BROWN, Appellee.
    No. 3D17-2452
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed.

LOGUE, J. (concurring).

I concur for the reasons stated in the trial court's well-reasoned order which I would adopt as this court's own:

BACKGROUND
Brown was charged in this case with possession of a firearm by a convicted felon. He seeks to suppress the firearm, which was seized from the glove compartment of his vehicle following a traffic stop. On August 27, 2016, Officer Desiree Zayas conducted a traffic stop of a vehicle driven by Brown after observing the vehicle commit a traffic violation. Officer Anthony Jimenez responded to the scene shortly thereafter as a backup unit. During the encounter, Officer Zayas asked Brown on two separate occasions whether the vehicle contained any weapons. Both times, Brown responded that it did not. A search of the vehicle's glove compartment by Officer Jimenez, however, revealed the firearm which is the subject of the Defendant's motion. The question presented for this Court to examine is whether Officer Jimenez's search of the vehicle following the traffic stop was justified.
ANALYSIS
The standards for assessing the constitutionality of a protective search of the passenger compartment of a vehicle for weapons in the absence of probable cause to arrest were outlined by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Supreme Court extended a Terry protective search for weapons to the passenger compartment of a vehicle during a lawful investigatory stop, holding that a police officer who is performing a traffic stop may conduct a limited search of the vehicle for weapons if the officer "possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons'. Id. at 1049-50, 103 S.Ct. 3469 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). In State v. Dilyerd, 467 So.2d 301, 304 (Fla. 1985), the Florida Supreme Court applied the standard enunciated in Long and characterized two questions as "determinative" in its analysis of an officer's protective search of a vehicle: "(1) was the stop itself justified and, (2) did the deputy possess a reasonable belief based on specific and articulable facts, along with rational inferences, which justified his belief that the occupants of the car were dangerous and might gain control of weapons within the car." Brown does not dispute that the stop itself was justified. He does, however, challenge whether Officer Jimenez possessed a. "reasonable belief based on specific and articulable facts, along with rational inferences, which justified his belief that [Brown] was dangerous and might gain control of weapons within the car."
At the suppression hearing, Officer Zayas testified that she initially approached Brown's vehicle with her weapon drawn because she felt that Brown was trying to-hide something. She further testified that she was concerned Brown was hiding something and concerned with his movements. The officer, however, did not articulate any specific movement that led to her belief that Brown was dangerous and might gain control of a weapon. She testified that, despite retrieving his driver's license and registration from the sun visor, Brown turned his body towards the center of the vehicle. However, the body camera footage revealed that Brown only did so after receiving permission from Officer Jimenez in order to retrieve his insurance paperwork from the center console. Furthermore, while Officer Zayas may have suspected that Brown was hiding something, there was no testimony indicating that she in fact witnessed Brown hide (or attempt to hide) something in the vehicle.
Officer Jimenez, who arrived on scene shortly after Officer Zayas, testified that he was concerned for officer safety based on what he had been told by Officer Zayas. He further testified that, when he first arrived, one of the officers (presumably Officer Zayas or Rodriguez) told him that Brown was reaching for something. Officer Jimenez, himself, did not observe Brown reach for anything in the vehicle. He testified that Brown was cooperative and never removed his hands from the steering wheel throughout his interaction with the Defendant, but he became concerned when Brown looked at the glove compartment. However, Officer Jimenez acknowledged that it was possible that Brown was looking at him since the officer was standing in the same direction as the glove compartment, relative to Brown.
The specific facts articulated by the officers fail to demonstrate that their fear of immediate danger was objectively reasonable so as to justify a protective search of the vehicle.
The officer's suspicions that Brown was hiding something, alone, are insufficient to justify a weapons search. There must be specific, articulable facts that demonstrate that the officer's belief that the occupant of the vehicle is dangerous is reasonable. Brown's brief look at the glove compartment, without more, does not support a finding that it was reasonable to believe he was dangerous or might gain control of a weapon in the car. The Court recognizes that it must look to the totality of the circumstances. However, a review of the body camera footage demonstrates that Brown was cooperative throughout the encounter. Officer Jimenez testified to this fact as well. Brown kept his hands on the steering wheel as directed by Officer Zayas except for when he needed to search for his license, registration, and insurance paperwork. Brown did not make any suspicious movements that were discernable in the body camera footage. Nor did either officer testify that they witnessed a particular movement. While Officer Zayas testified that she felt Brown was hiding something, a feeling or a "hunch" is not enough to justify a protective search. Therefore, the Court finds that the officers did not have a reasonable and articulable suspicion of danger justifying the search of Brown's car as protective, as Long requires.


text:
    Ebony SWEETING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-959
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein and James Odell, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Ebony Sweeting ("Sweeting") appeals her conviction and sentence for one count of battery of a law enforcement officer. Because comments made by the State's prosecutor during closing argument improperly shifted the burden of proof, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of November 17, 2016, three members of the Miami-Dade Police Department-Detectives Daryl Glover ("Detective Glover") and Eduardo Rios ("Detective Rios"), and Officer Dennis Colon ("Officer Colon")-were searching for Khalid Harvey ("Harvey"), later identified as Sweeting's nephew, who they believed had committed a burglary and whose last known address was Sweeting's residence. Upon their arrival at Sweeting's residence, the officers knocked on the front door of the house. One of Sweeting's sons opened the door, and another of Sweeting's sons approached the door. The officers informed the two men that they were searching for someone with the last name "Harvey." In response, Sweeting's sons demanded to see the officers' search warrant. After Sweeting's sons stepped outside the house, Sweeting stepped into the threshold of the front door. The officers informed her of their purpose, to which she responded by asking to see a search warrant.

Conflicting testimony was presented at trial as to what happened after Sweeting asked to see a warrant. Officer Colon testified that he informed Sweeting a search warrant was unnecessary because they were not there to search her home. He further testified that he then saw Harvey inside the residence, informed the detectives of Harvey's presence, and politely asked Sweeting to step aside as she was standing right in front of the door. Officer Colon testified that when Sweeting refused, Officer Colon placed his hand on her to move her to the side, and in response, Sweeting hit Officer Colon with a "closed fist" and warned him that she would hit him again if he touched her a second time. Detectives Glover and Rios testified that they did not witness Sweeting strike Officer Colon as they were focusing on Sweeting's sons, but that they each heard a sound described as skin to skin contact. Sweeting testified that after she asked to see a search warrant, Officer Colon told her he did not "have to show [her] or give [her] anything" and pushed her out the front door. As a result, she became upset and started shouting profanity at Officer Colon. She testified, however, that she never intentionally struck Officer Colon.

After the alleged striking incident, Officer Colon handcuffed Sweeting and took her into police custody. On December 16, 2016, the State filed an information charging Sweeting with one count of intentional battery of a law enforcement officer in violation of sections 784.03 and 784.07(2)(b), Florida Statutes (2016).

On March 1, 2017, the case proceeded to trial. After the trial court denied Sweeting's first motion for judgment of acquittal, defense counsel presented Sweeting's above testimony. Sweeting again moved for judgment of acquittal, on which the trial court reserved its ruling.

During closing argument, Sweeting's counsel repeatedly commented that the State's case and the officers' testimony "[made] no sense," i.e., calling into question the credibility of the State's witnesses. In its rebuttal, the State's prosecutor made the following comments, to which defense counsel objected:

[STATE]: ... [W]hen [Sweeting] took the stand, she became a witness in this case. And when she became a witness in this case, you have the opportunity to gauge her story, gauge her demeanor, and evaluate her the same way you would evaluate any other witness in this case.... There are very high stakes for her. And when you think about what she told you, when you think about what you heard, I want you to think about the details that she gave you. I want you to think about her story. Think about this. Because both sides agree that the officers came to find her nephew. They came to arrest her nephew. But, if you believe Ms. Sweeting, they were so focused on her, they forgot about the nephew. That both Officer Colon and Detective Glover were so focused on her, one had her handcuffed this way, one had her handcuffed this way, both holding it like she was an animal of some sort, holding her like this. They were so focused on her nobody was watching the guy they came for. No one was looking for the person they were there to arrest. Ladies and gentlemen, that's ridiculous.
....
[DEFENSE]: Objection, degradation of defense.
THE COURT: That'll be overruled. Ladies [sic] gentlemen, what the lawyers say is not evidence nor is it your instruction on the law. You will make your own decision on what evidence to believe and what evidence to disbelief....
....
[STATE]: ... Ladies and gentlemen, this case comes down to credibility. This case comes down to who you believe. Do you believe Ms. Sweeting who has everything to lose? Do you believe Ms. Sweeting, who is [sic] story does not make sense ... because according to her, she was moved from place to place by officers and officers at one point in time she'd been moved from our house to another street to somewhere else, there were six officers and five cars, all about her. She wasn't even the person that they came there to find.
....
[STATE]: Thank you. But, she's the person all of these officers are focused on. That's ridiculous. Or, do you believe the police officers?
[DEFENSE]: Objection, misstatement of the law.
THE COURT: Ladies and gentlemen, that's overruled. I will instruct you on the law and I will instruct you on the rules to use while you weigh the evidence. It's going to be up to you to decide to believe or disbelieve whatever evidence you choose during your deliberations.

(emphasis added). Thereafter, the jury retired to begin its deliberations. During the deliberations, the jurors sent out a question asking, "Can we get a copy of the police report to see which officers were actually there and were on the report?" The trial court informed the jurors that the report was not introduced into evidence and that they "must rely on that evidence to decide the case."

The jury subsequently found Sweeting guilty of intentional battery of a law enforcement officer. Sweeting moved for post-trial acquittal, or alternatively, a new trial. The trial court denied Sweeting's motion, withheld adjudication, and sentenced Sweeting to one day of probation to end upon Sweeting exiting the courthouse. This timely appeal ensued.

II. STANDARD OF REVIEW

We review a trial court's ruling on the propriety of comments made during closing argument for an abuse of discretion. Braddy v. State, 111 So.3d 810, 837 (Fla. 2012). "Where the comments were improper and the defense objected, but the trial court erroneously overruled defense counsel's objection," the harmless error standard of review applies, which places " 'the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.' " Cardona v. State, 185 So.3d 514, 520 (Fla. 2016) (quoting Ibar v. State, 938 So.2d 451, 466 (Fla. 2006) ).

III. ANALYSIS

On appeal, Sweeting contends that certain comments made by the State's prosecutor during closing argument, over defense counsel's objection, impermissibly shifted the burden of proof to Sweeting, and that these erroneous comments were not harmless beyond a reasonable doubt. We agree.

Generally, " 'wide latitude is accorded a prosecutor during closing argument' and 'the control of those comments is within the discretion of the trial court'

absent an abuse of that discretion." Mitchell v. State, 118 So.3d 295, 296 (Fla. 3d DCA 2013) (quoting Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989) ). The State has the burden of proving every essential element of a crime beyond a reasonable doubt. A prosecutor, however, "must not misstate the burden of proof." Covington v. State, 842 So.2d 170, 172 (Fla. 3d DCA 2003). Indeed, it is "reversible error for a prosecutor to make arguments that shift the burden of proof in a case" during closing argument. Mitchell, 118 So.3d at 296 ; accord Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998) ("While wide latitude is permitted in closing argument, this latitude does not extend to permit improper argument. Here, the prosecutor's closing argument enunciated an erroneous and misleading statement of the State's burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt." (citation omitted) ). In determining whether allegedly improper comments constitute reversible error, the comments "should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record." McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001).

The case of Mitchell is instructive. In Mitchell, the defendant was charged with animal cruelty, and "the case turned on whether the jury should credit the version of events told by [a witness] or [the defendant]." 118 So.3d at 296. During closing argument, the prosecutor commented, " 'What the defense is asking you do is to believe that every single witness in this case is a liar, because that's what would have to happen for this man over here to be not guilty. Every single person has to be a liar except him.' " Id. This Court, while noting the prosecutor's "attempt[ ] to argue that defendant's version of events was contradicted by much of the testimony presented by the other witnesses" was appropriate, found that the prosecutor's comment "implied that the defendant had a burden to prove that all the State's witnesses were lying in order to establish his innocence." Id. at 297.

The State contends that, unlike in Mitchell, the prosecutor's comments did not imply that it was Sweeting's burden to prove the officers were not lying, but instead were proper arguments on why the officers' testimony was credible and Sweeting's testimony was not. Indeed, an attorney may argue credibility of witnesses if the argument is based on the evidence presented at trial. See Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012) ; Covington, 842 So.2d at 172. However, as this Court has previously emphasized, "[t]he test for reasonable doubt is not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt." Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992) (holding that a prosecutor's comment that " '[y]ou have to believe [the defendant's] story over the story of those police officers that saw him that night to have reasonable doubt' " was an erroneous, burden-shifting comment); see also Gore, 719 So.2d at 1200 (finding that the prosecutor's argument asking the jury "to determine whether [the defendant] was lying as the sole test for determining the issue of his guilt" as improperly shifting the burden of proof to the defendant); Paul v. State, 980 So.2d 1282, 1283 (Fla. 4th DCA 2008) (finding that the prosecutor's comment that " 'if [the defense attorney] wants to present theories of how she believes this case should play out, there's got to be some level of proof from that [sole witness] was lying' " improperly shifted the burden of proof to the defendant and that the error was not harmless) (emphasis removed);

Atkins v. State, 878 So.2d 460, 461 (Fla. 3d DCA 2004) (holding the prosecutor's comment that the victim " 'would have to be a liar' " for the jury to find the defendant not guilty shifted the burden of proof, as it "implied that the jury could ignore defendant's argument that acquittal was proper if it believed the victim's identification was a mistake because defendant did not prove the victim was lying"); Covington, 842 So.2d at 172-73 (determining that a prosecutor's comment that the case " '[came] down' " to who the jury believed was in error).

As counsel for Sweeting conceded at oral argument, the prosecutor's multiple comments describing Sweeting's testimony as "ridiculous" were invited in light of defense counsel attacking the officers' credibility during closing. See Scott v. State, 66 So.3d 923, 930 (Fla. 2011). However, the prosecutor went beyond questioning Sweeting's credibility, and instead, shifted the State's burden of proof onto Sweeting when the prosecutor argued that "[t]his case comes down to who you believe," either the officers or Sweeting. This statement impermissibly implied that the jury had to believe Sweeting's story over the officer's story in order to acquit her. While not containing an explicit mention of "the burden of proof," the prosecutor's comment nonetheless impermissibly shifted the State's burden of proof in a criminal case to Sweeting.

Our analysis, however, does not end here. We must now address whether the error was harmless beyond a reasonable doubt. "[B]urden shifting issues are subject to the harmless error analysis set forth in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)." Torres-Matmoros v. State, 34 So.3d 83, 85 (Fla. 3d DCA 2010). "The harmless error test ... places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." DiGuilio, 491 So.2d at 1138. "Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence," but rather, the focus of the test "is on the effect of the error on the trier-of-fact." Id. at 1139.

The State argues that any error in the prosecutor's comments during closing argument was harmless, as the error did not contribute to the jury's verdict beyond a reasonable doubt. Specifically, the State notes that after the prosecutor's erroneous comment, the trial court stated, "I will instruct you on the law and I will instruct you on the rules to use while you weigh the evidence. It's going to be up to you to decide to believe or disbelieve whatever evidence you choose during your deliberations," and later instructed the jury at several points that it was the State's burden to prove the elements of the charged crime beyond a reasonable doubt. We conclude, however, that the error was not harmless beyond a reasonable doubt.

First, Sweeting's objection to the erroneous statement of law was overruled. Moreover, the trial court's instructions following the prosecutor's comments were not sufficiently curative, as they did not "erase the confusion created by the burden shifting comment" to the jury, but simply addressed "the rules to use while ... weigh[ing] the evidence." See Paul, 980 So.2d at 1283 (finding the trial court's instructions "did not sufficiently erase the confusion created by the burden shifting comment," as it "failed to specifically rebuff the State's comment ... [and] appeared to consent to the accuracy of the prosecutor's comment when it overruled the objection and stated to the jury that the State is allowed to comment on the evidence"); see also Schoenwetter v. State, 931 So.2d 857, 872 (Fla. 2006) (determining an instruction to be sufficiently curative where the defense's objection was sustained, "the prosecutor admitted the mistake, ... the trial judge gave a curative instruction[, and] and the jury indicated that it understood the curative instruction"). We further note that the prosecutor made no attempt to correct the burden shifting comment. Cf. Torres-Matmoros, 34 So.3d at 85 (finding a prosecutor's misstatement of the burden of proof to be harmless error where "[t]he sole statement made by the prosecutor regarding reasonable doubt, even if viewed as a burden shifting argument, was immediately corrected by the prosecutor"); Covington, 842 So.2d at 174 (finding a prosecutorial comment that was subsequently clarified to be harmless error where it was "an isolated mention by the prosecutor followed by a correct statement of the burden of proof"). Finally, while alone not dispositive, the jury's request to "get a copy of the police report" that was not in evidence in order to determine which officers were actually present and on the report confirms our conclusion that there exists a reasonable doubt as to whether the prosecutor's comments confused the jury on which party had the burden of proof.

As in Mitchell, "because the issue of the credibility of the two conflicting witnesses was at the heart of the case, the State cannot establish that there was 'no reasonable possibility that the error contributed to the conviction.' " See 118 So.3d at 298. As such, we cannot conclude that the error was harmless beyond a reasonable doubt.

IV. CONCLUSION

For the foregoing reasons, we reverse Sweeting's conviction and sentence and remand the case for a new trial.

Reversed and remanded for a new trial.

      The State contends that Sweeting's argument is not preserved for appeal, as defense counsel did not specifically or contemporaneously object to the comments at issue as impermissibly shifting the burden. The record, however, is clear that defense counsel objected to the statements as a "misstatement of the law." This Court has previously characterized similar statements that improperly shifted the burden of proof as misstatements of the law. See, e.g., Rodriguez v. State, 27 So.3d 753, 755-56 (Fla. 3d DCA 2010) ; Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992). As such, we find Sweeting's argument properly preserved for appellate review.


author: WALLIS, J.

text:
    VANACORE CONSTRUCTION, INC., Appellant, v. Carolyn E. OSBORN, Michael Royals, Debra Royals and Stephanie L. Winnek, Appellees.
    Case No. 5D18-598
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Robert M. Klein, Houston S. Park, III, Andrew M. Feldman, and Thomas E. Jablonski, of Klein Glasser Park & Lowe, P.L., Miami, for Appellant.
    Peter A. Robertson, William Douglas Stanford, Jr., and Thomas J. Tollefsen, of The Robertson Firm, St. Augustine, for Appellees.
   WALLIS, J.

Vanacore Construction (Builder) appeals the non-final order denying its motion to compel arbitration and stay proceedings. Builder contends the lower court erred when it found the claims brought by Carolyn Osborn, Michael Royals, Debra Royals, and Stephanie Winnek (Homeowners) were not arbitrable under the New Home Construction Contracts (the contracts) that they executed with Builder and when it found that an unenforceable provision within the arbitration agreement was not severable. We agree and reverse.

Builder was the developer of a subdivision located in Volusia County. Homeowners entered into respective contracts with Builder for the purchase of two homes within the subdivision. The contracts are materially identical, containing an arbitration provision, stating:

In the event of a dispute, which the parties cannot resolve, the parties agree to binding arbitration before a general BUILDER licensed to do business in the County of Volusia. The parties hereby stipulate and agree that the decision of the arbitrator shall be binding upon them and be submitted to a court of competent jurisdiction for enforcement.... However BUILDER may, in lieu of arbitration, purchase the property back from the BUYER for the original contract price, plus the BUYER'S closing costs, plus any upgrades/change orders for which the BUYER has already paid BUILDER. This will be the total price paid. No other costs (real or implied), fees, or allowances will be paid by BUILDER.

In 2017, Homeowners sued Builder to recover for alleged water intrusion in their homes and other various construction defects. The complaint asserted claims for negligence, statutory violations of the Florida Building Code, and violation of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA).

Builder moved to compel arbitration based on the language of the contracts' arbitration provisions. The lower court denied the motion, finding that there is not a valid arbitration agreement and that there are not arbitrable issues.

Builder subsequently moved to sever the portion of the arbitration agreement that allows Builder to purchase the property from Homeowners in lieu of arbitration and for reconsideration. The parties refer to this portion of the arbitration agreement as the "buy-back provision." The lower court denied the motion, finding that severing the buy-back provision would be akin to rewriting the contract and eliminating the parties' ability to bargain.

Builder appeals the lower court's denials, arguing that the lower court should have ordered arbitration because the allegations in the complaint are based on defects arising from and relating to its performance obligations under the contract. Builder additionally argues that the buy-back provision does not go to the essence of the agreement, and, therefore, it should have been severed from the agreement and arbitration should have been ordered.

Pursuant to Florida's Arbitration Code, a court must consider the following three elements when deciding if it should compel arbitration: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999). The issue in this case relates to the first two elements discussed in Seifert.

Because arbitration provisions are contractual in nature, they are subject to the rules of contract interpretation. Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013). The determination whether a dispute must be arbitrated "turns on the parties' intent," which is manifested in the plain language of the contract itself. Maguire v. King, 917 So.2d 263, 266 (Fla. 5th DCA 2005). In general, courts favor arbitration provisions and "will try to resolve an ambiguity in an arbitration provision in favor of arbitration." Jackson, 108 So.3d at 593. Thus, if the language of the arbitration provision is sufficiently broad, courts will apply a liberal construction and require arbitration. Tubbs v. Hudec, 8 So.3d 1194, 1196 (Fla. 2d DCA 2009).

Two types of arbitration provisions have emerged-those that are narrow in scope and those that are broad in scope. Jackson, 108 So.3d at 593. Narrow arbitration provisions generally require arbitration for claims or controversies "arising out of" the subject contract, whereas arbitration provisions that are broad in scope usually require arbitration for claims or controversies "arising out of or relating to" the subject contract. Id. When a contract contains a narrow arbitration provision, arbitration is only required when a litigant's claims have a direct relationship with the terms and provisions contained in the contract. Id. In contrast, when a contract contains a broad arbitration provision, the court will compel arbitration when the party's claims have a "significant relationship" to the contract. Id. The test to determine whether a "significant relationship" exists has been described as follows:

A "significant relationship" between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a "contractual nexus" between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties' unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

Id. (internal citations omitted).

Here, the parties entered into contracts with broadly worded arbitration provisions, suggesting that the parties intended to arbitrate any dispute that arises between them. Thus, if the claims raised by Homeowners have a significant relationship to the contract, arbitration would be required, even if the claims sound in tort. See Jackson, 108 So.3d at 593.

In their complaint, Homeowners alleged that water intrusion in several areas of their homes caused stucco, sheetrock, and block to be deformed. They also claimed that they informed Builder of these problems, and Builder was unable to remedy the problems or offer acceptable repair protocol. Homeowners therefore alleged that Builder was negligent, committed statutory violations of the Florida Building Code, and violated FDUTPA.

Contrary to the lower court's findings, arbitrable issues exist here. All of the allegations raised in the complaint relate to the construction of Homeowners' residences. While Homeowners present their claims as torts, at their core, the allegations are that Builder did not adequately construct portions of their homes, which led to their damages. When applying the significant relationship test discussed in Jackson, the underlying claims and the facts on which they are based bear a significant relationship to the content of the building contracts the parties executed. Moreover, the claims contained in the complaint could easily have been brought as a breach of contract case. Unlike cases where courts have found claims are not arbitrable because the causes of action were wholly unrelated to the contracts at issue, here, the allegations contained in the complaint are directly related to the subject of the contract-the construction of Homeowners' homes. Finally, even though Builder may owe the public general statutory duties and a duty to act in a non-negligent manner, here, the relationship between Homeowners and Builder is directly related to the presence of the contract. Therefore, because the claims raised in Homeowners' complaint bear a significant relationship to the construction contracts, it was error for the lower court to find that they were not subject to the arbitration provision contained in the contracts. See Maguire, 917 So.2d at 267-68 (holding trial court erred in refusing to compel arbitration for tort claims related to fraud and negligent misrepresentation where those claims arose from and were related to obligations that parties assumed under the contract.)

Builder additionally argues that the lower court erred by denying its request to sever the buy-back provision. If a court finds that a provision contained in a contract is illegal or unenforceable, it can sever that provision and enforce the remainder of the contract under certain circumstances. Gessa v. Manor Care of Fla., Inc., 86 So.3d 484, 490 (Fla. 2011). In particular, a contract is severable "where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other." Id. (quoting Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 821-22 (Fla. 1953) ).

Although the buy-back provision contained in the arbitration agreement limits the damages Builder has to pay in the event it chooses to purchase the property, this limitation on damages does not go to the heart of the financial agreement. In addition, if the buy-back provision is severed, a valid arbitration agreement still exists and the parties are still obligated to comply with the terms of the contract. Therefore, it is apparent that the buy-back provision does not go to the essence of the arbitration agreement or the construction contracts. Accordingly, it was error for the lower court to refuse to sever the buy-back provision and compel arbitration. See Hochbaum ex rel. Hochbaum v. Palm Garden of Winter Haven, LLC, 201 So.3d 218, 223 (Fla. 2d DCA 2016) (holding provision which violates public policy severable from contract despite lack of severability clause in contract where offending provision did not go to essence of agreement and did not require that arbitration be conducted in accordance with certain rules).

Because the lower court erred in refusing to compel arbitration and in refusing to sever the buy-back provision, we reverse and remand. On remand, the lower court shall sever the buy-back provision and enter an order compelling arbitration. We additionally note that Builder requested in its motion to compel arbitration that the trial court stay the litigation pending completion of arbitration. We grant that relief and instruct the trial court to stay the proceedings until arbitration has been completed.

REVERSED and REMANDED with Instructions.

TORPY and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    UNITED STATES FIRE INSURANCE COMPANY and Oxford Shops of South Florida, Appellants, v. Virginia HACKETT, Appellee.
    No. 1D16-5745
    District Court of Appeal of Florida, First District.
    December 14, 2018
    William H. Rogner and Andrew R. Borah of Hurley, Rogner, Miller, Cox and Waranch, P.A., Winter Park, for Appellants.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellee.
   Per Curiam.

The JCC erroneously interpreted section 440.28 of the Florida Statutes as not authorizing an Employer/Carrier to petition for modification of previously-granted medical benefits. The JCC likewise erred in refusing to compel the Independent Medical Examination that the E/C requested. We reverse.

Deceit as to Claimed Attendant Care.

Claimant suffered a compensable low back injury in 1985, but stopped seeing her authorized physician in 2012. The E/C has nevertheless been paying for 24 hours of attendant care every day, which for several years has been provided exclusively by Claimant's husband and daughter. Claimant's husband claimed to provide attendant care from 8:00 p.m. to 8:00 a.m. daily, and Claimant's daughter claimed to provide attendant care from 8:00 a.m. to 8:00 p.m. daily (in exchange for the E/C's paying each of them $31,143.84 a year). Claimant, her husband, and her daughter signed off on their time sheets.

After Claimant stopped seeing her authorized physician, the E/C conducted surveillance, which demonstrated that Claimant was not receiving all of the attendant care for which the E/C had been paying. The E/C petitioned for modification under section 440.28, asserting that Claimant had failed to participate in provided care and therefore could not substantiate a need for that care to be continued, and that Claimant had engaged in fraudulent reporting of attendant care hours received. The E/C sought an IME to establish Claimant's actual need for attendant care related to the compensable injury.

After an evidentiary hearing, the JCC found that the "evidence is clear that [the daughter] is not providing the twelve hours a day of home attendant care she is being compensated for by the E/C." The JCC concluded the claimed attendant care was the product of "deceit" in which the Claimant and her husband were "complicit." The JCC nevertheless denied the E/C's petition because, while the evidence established deceit, it did not establish Claimant's medical condition. Although the E/C had requested an IME to obtain precisely that evidence, the JCC concluded that she lacked jurisdiction to compel treatment or allow the E/C to obtain medical evidence from Claimant.

Scope of Section 440.28.

We review the JCC's interpretation of the statute de novo. Lombardi v. S. Wine & Spirits , 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Claimant argues that section 440.28 provides no point of entry for an E/C to compel an IME on the basis of allegedly changed circumstances; and that IMEs are available solely as provided in section 440.13(5), which Claimant argues does not apply here. We reject Claimant's argument that we should interpret section 440.28 as providing a point of entry only for disputes involving monetary benefits. We adhere to our previous interpretation of section 440.28 as encompassing both monetary and medical benefits awarded in compensation orders.

The statute in question, entitled "Modification of orders," provides in pertinent part as follows (emphasis added):

Upon a judge of compensation claims' own initiative, or upon the application of any party in interest , on the ground of a change in condition or because of a mistake in a determination of fact, the judge of compensation claims may ... review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.

§ 440.28, Fla. Stat. (2016).

Under the plain language of the statute, "any party in interest" may initiate review of a case for modification of an order. We have previously allowed this statute to extend to the provision of medical benefits. In Camus v. Manatee County School Board , 923 So.2d 1266 (Fla. 1st DCA 2006), the claimant petitioned for additional attendant care hours as well as additional monetary compensation, and the E/C petitioned to reduce or eliminate the attendant care obligation based on a change in the claimant's condition. Id. at 1267. We reversed and remanded for the JCC to consider the testimony of claimant's treating physician. Id. at 1268. We accepted without question the E/C's petitioning to reduce or eliminate attendant care benefits under section 440.28. See also Gustafson's Dairy v. Phillips , 656 So.2d 1386, 1387 (Fla. 1st DCA 1995) (holding that term "compensation" as used in § 440.09(3) includes both medical and disability benefits); § 440.25(4)(e), Fla. Stat. (including all orders "making an award or rejecting the claim" as "compensation orders").

In an earlier attendant-care case, we noted that section 440.28 allows either of the parties, and the JCC, to seek modification of an order due to a change in condition.

Adams Bldg. Materials, Inc. v. Brooks , 892 So.2d 527, 530 (Fla. 1st DCA 2004) ; see also Hardrives of Delray v. Stimely , 670 So.2d 108, 110 (Fla. 1st DCA 1996) (noting that section 440.28 allows petitions for modifications for a change in claimant's condition or mistake in fact determined in earlier order). We approve the E/C's resort to section 440.28 to seek modification of a previous medical benefit awarded, based upon an alleged change in the Claimant's medical condition.

We also conclude that this interpretation of the statute best comports with the intended function of the workers' compensation system of dispute resolution. To bar E/Cs from petitioning for modifications of medical benefits upon evidence of a change in claimants' condition runs afoul of the Legislative intent to decide cases on their merits quickly and efficiently without skewing in favor of either side. § 440.015, Fla. Stat.

Authority for IME

We further reject Claimant's argument that even if the E/C can petition for a modification under section 440.28, there can be no IME to prove the factual basis for the petition. The statute defines an IME as an objective evaluation of the claimant's medical condition "to assist in the resolution of a dispute arising under this chapter." § 440.13(1)(i), Fla. Stat. The statutory provisions governing IMEs authorize the carrier or the employee to select an IME "[i]n any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter." § 440.13(5)(a). The E/C's petition for modification here framed a dispute concerning medical benefits, within the scope of the statute. A JCC has broad discretion to order an IME. Bedwell v. Stone Container Corp. , 174 So.3d 1127 (Fla. 1st DCA 2015) (citing JCC's broad investigatory authority under pre-1990 law in § 440.29(1), Fla. Stat., which continues as a right under post-1990 law). It would be anomalous to recognize an E/C's right to petition for modification of medical benefits, and then refuse to recognize the right to discovery in support of that petition. We decline to prohibit an IME in an E/C-initiated modification proceeding.

In this case, after reviewing the evidence the E/C presented, the JCC concluded that Claimant was complicit in deceit to obtain payment for attendant care benefits that were not actually being provided. In addition, Claimant did not dispute that she had stopped seeing her authorized physician several years earlier, or her husband's testimony that she had elected several years earlier to treat outside the workers compensation system. This evidence was sufficient to support the E/C's request for an IME because a dispute existed regarding a change of condition-namely, the Claimant's refusal of medical care by authorized doctors, and the question of whether she was receiving or required all attendant care benefits the E/C was funding. Because the E/C filed a Petition for Modification initiating litigation as governed by section 440.25, the JCC had jurisdiction to address the Motion to Compel IME.

Conclusion

We REVERSE and REMAND for proceedings on the E/C's petition, including the performance of an IME as the E/C requested.

Roberts, Bilbrey, and Kelsey, JJ., concur.

      The fraud defense under section 440.09(4) is not available for accidents that occurred before the statute's 1994 effective date. Rustic Lodge v. Escobar , 729 So.2d 1014 (Fla. 1st DCA 1999).


author: B.L. Thomas, C.J. Makar, J., dissenting.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. James WHITMIRE, as Personal Representative of the Estate of Evelyn Whitmire, Appellee.
    No. 1D17-1986
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Emily C. Baker of Jones Day, Atlanta, GA; Edward M. Carter and Kenneth M. Grose of Jones Day, Columbus, OH; Charles R. A. Morse of Jones Day, New York, NY; Michael A. Carvin, Jones Day, Washington, D.C.; Kenneth R. Hart of Ausley McMullen, Tallahassee, for Appellant.
    David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, for Appellee.
   B.L. Thomas, C.J.

In this Engle -progeny case, Appellant challenges the trial court's denial of its motion for directed verdict, arguing that Appellee failed to prove individual detrimental reliance, and thus failed to prove fraudulent concealment and conspiracy. Because Engle plaintiffs must prove detrimental reliance on fraudulent statements, and no evidence here supports such reliance, we hold that the trial court erred in denying Appellant's motion for a directed verdict.

Appellee's wife (the decedent) died in 1995 after being diagnosed with lung cancer. Appellee, as the personal representative of her estate, brought wrongful death claims on her behalf against Appellant, arguing strict liability, negligence, fraudulent concealment, and civil conspiracy to fraudulently conceal. Appellee claimed the decedent was a member of the class prospectively decertified in Engle .

The decedent started smoking cigarettes when she was about 14 years old, and normally smoked one or two packs a day. Appellee and the decedent smoked Winston filtered cigarettes, introduced by Appellant in 1954, and later switched to Salem menthol-flavored filtered cigarettes.

The decedent made multiple unsuccessful attempts to quit smoking cigarettes. She did not quit smoking until after her cancer diagnosis, months before her death.

Appellee presented expert testimony that large tobacco companies in the United States, including Appellant, made fraudulent statements regarding the hazards of smoking on December 4th, 1953 and thereafter. Appellant moved for a directed verdict, arguing that Appellee presented no evidence connecting these statements to the decedent's smoking behavior. Appellee argued that, under R.J. Reynolds Tobacco Company v. Martin , 53 So.3d 1060 (Fla. 1st DCA 2010), he was not required to prove the decedent relied on specific statements by Appellant. The trial court denied Appellant's motion for directed verdict.

The jury found that the decedent was addicted to cigarettes containing nicotine, and that such addiction was the cause of her lung cancer and death. The jury apportioned 33% of the responsibility of her death to the decedent, and 67% of the responsibility to Appellant, awarding $3 million in damages to Appellee for the loss of companionship and pain and suffering caused by the decedent's death.

After trial, Appellant renewed its motions for directed verdict, asserting that no testimony connected the decedent's smoking to her reliance on any false or misleading statements by any tobacco company.

The trial court denied Appellant's motion. The court entered final judgment for the full $3 million compensatory award, with no reduction based on the decedent's 33% comparative fault.

The parties do not dispute that this is an Engle -progeny case. Engle was a class action brought against several tobacco companies, including Appellant, on behalf of all Florida-resident smokers who developed smoking-related illnesses, including lung cancer, caused by an addiction to nicotine. 945 So.2d at 1256. The trial was divided into three "phases," with Phase I concerning common issues relating to the defendant tobacco companies' conduct and to the general health effects of smoking. Id. After Phase I, the jury reached a verdict in favor of the class. Id. at 1257. After Phases II-A and II-B, which were intended to determine entitlement and damages for the class representatives and the class, the jury awarded the class representatives $12.7 million in compensatory damages and the class as a whole $145 billion in punitive damages. Id. The tobacco companies appealed, and the supreme court eventually decertified the class and vacated the punitive-damages award. Id. at 1269. However, the supreme court held that some factual findings regarding liability made during Phase I of the trial could be retained for individual actions by Engle class members. Id. at 1254-55.

Analysis

"We review the denial of a motion for directed verdict de novo." Sorel v. Koonce , 53 So.3d 1225, 1227 (Fla. 1st DCA 2011). A directed verdict is proper only "where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Owens v. Publix Supermarkets, Inc. , 802 So.2d 315, 329 (Fla. 2001) ; Fla. R. Civ. P. 1.480.

In Martin , we described an Engle plaintiff's burden of persuasion on the fraudulent concealment claim:

To prevail on the fraud by concealment claim, the plaintiffs had to prove the tobacco companies concealed or failed to disclose a material fact; the companies knew or should have known the material fact should be disclosed; the companies knew their concealment of or failure to disclose the material fact would induce the plaintiffs to act; the tobacco companies had a duty to disclose the material fact; and the plaintiffs detrimentally relied on the misinformation.

53 So.3d at 1068.

Here, the Engle findings establish that Appellant "made a false or misleading statement of material fact with the intention of misleading smokers," and "concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both." Engle , 945 So.2d at 1257 n.4 (emphasis added).

Liability for fraudulent concealment cannot be shown without reliance on a false statement, absent a fiduciary relationship that would create a duty to disclose. See TransPetrol, Ltd. v. Radulovic , 764 So.2d 878, 879 (Fla. 4th DCA 2000) ("A defendant's knowing concealment or non-disclosure of a material fact may only support an action for fraud where there is a duty to disclose"); State v. Mark Marks, P.A. , 654 So.2d 1184, 1189 (Fla. 4th DCA 1995) ("[S]uch duty arises when one party has information that the other party has a right to know because of a fiduciary or other relation of trust or confidence between them."). In a commercial transaction in which "the parties are dealing at arm's length, a fiduciary relationship does not exist because there is no duty imposed on either party to protect or benefit the other." Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp. , 850 So.2d 536, 541 (Fla. 5th DCA 2003).

Thus, even with the benefit of the Engle findings, plaintiffs claiming fraudulent concealment must prove that they relied to their detriment on false statements from the tobacco companies. Hess v. Philip Morris USA, Inc., 175 So.3d 687, 698 (Fla. 2015) (" Engle -progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims.") (emphasis added). Otherwise, no duty to disclose information would be imposed on the companies in this transaction between a tobacco company and a consumer who purchased cigarettes. The supreme court in Philip Morris USA, Inc. v. Douglas noted that the very reason the Engle class was decertified was " 'because individualized issues such as legal causation, comparative fault, and damages predominate.' " 110 So.3d 419, 424 (Fla. 2013) (quoting Engle , 945 So.2d at 1268 ) (emphasis added). In the context of fraudulent concealment, "causation" includes individual reliance. See, e.g. , Humana Inc. v. Castillo , 728 So.2d 261, 265 (Fla. 2d DCA 1999) (holding that the federal second circuit court properly applied reliance analysis to determine causation and liability in class action).

In Martin , this court analyzed what constitutes sufficient evidence for an Engle plaintiff's fraudulent concealment claim. 53 So.3d at 1069. There, R.J. Reynolds argued that the appellee failed to prove reliance, because she presented no direct evidence that the decedent relied on omissions in information disseminated by the tobacco companies. Id. This court held that direct evidence of reliance was not required:

[T]he record contains abundant evidence from which the jury could infer Mr. Martin's reliance on pervasive misleading advertising campaigns for the Lucky Strike brand in particular and for cigarettes in general, and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health.

Id. (emphasis added).

Here, Appellee argues that, as in Martin , he presented evidence of the decedent's smoking history and of the tobacco companies' pervasive and misleading advertising campaign, from which the jury could infer the decedent's detrimental reliance.

Appellee presented evidence of the decedent's smoking history, and presented extensive expert testimony regarding the tobacco companies' misleading and pervasive campaign, but he presented inadequate evidence from which the jury could infer that the decedent relied to her detriment on any false statements from the tobacco companies. See Food Fair Stores, Inc. v. Trusell , 131 So.2d 730, 733 (Fla. 1961) ("circumstantial evidence in a civil action will not support a jury inference if the evidence is purely speculative and, therefore, inadequate to produce an inference that outweighs all contrary or opposing inferences"). Testimony indicated that the decedent was uninterested in advertisements: Appellee testified that he did not know whether the decedent was influenced by cigarette advertisements and that they had never discussed any statements by tobacco companies; Appellee's son testified that he could not recall the decedent ever expressing interest in a statement from a tobacco company; and Appellee's sister-in-law testified that she had never heard the decedent mention a cigarette advertisement. While Appellee testified that he was "sure" the decedent saw cigarette advertisements on television, he also testified that he did not know if she saw any "statements" from any tobacco companies. Thus, no testimony connected the decedent's smoking to the false information disseminated by the tobacco companies.

While the Engle findings generally establish that Appellant made misleading statements and concealed material information, the supreme court in Engle specifically found that the trial court's Phase I findings on fraud should not be retained, as they "involved highly individualized determinations." Engle , 945 So.2d at 1269.

Appellee argues individual reliance is established through evidence of a plaintiff's "life, knowledge, attitudes, and smoking behavior" that, coupled with the evidence of the tobacco companies' pervasive campaign, would allow the jury to infer that honesty from the industry, rather than perpetuation of the false controversy, would have made a difference to the plaintiff. Counsel argued that a plaintiff who smoked filtered cigarettes has presented evidence from which reliance can be inferred because the word "filter" connotes a healthier cigarette, yet expert testimony established that filters do nothing to make cigarettes healthier. Counsel further argued that the tobacco companies concealed the fact that nicotine was addictive, and expert testimony established generally that smokers have greater success in quitting when they are aware that cigarettes are addictive. Appellee asserts that the decedent would have been more likely to quit if the information about nicotine's addictive nature had been disclosed.

Although evidence here suggested that the decedent believed filtered cigarettes were less harmful, no evidence connected that belief to the tobacco companies' statements other than the word "filter." The Engle class was decertified because issues of causation involve highly individualized findings. Douglas , 110 So.3d at 424. To hold that smoking filtered cigarettes or viewing advertisements establishes sufficient evidence for a fraudulent-concealment claim would eliminate the requirement that plaintiffs must individually show how they relied on the tobacco companies' statements. Appellee's argument that knowledge about the addictiveness of nicotine generally shows that smokers are better able to quit does not show that the decedent relied to her detriment on any tobacco company's statement.

In Martin , we did not state which facts were sufficient to show reliance; we held only that reliance can be proven by circumstantial evidence. 53 So.3d at 1069. This is an unremarkable proposition, as circumstantial evidence can establish civil liability. Voelker v. Combined Ins. Co. of Am., 73 So.2d 403 (Fla. 1954). But circumstantial evidence cannot merely raise an unfounded suspicion or legally sufficient speculation that allows an intentional-tort claim to be submitted to a jury. While Martin holds that detrimental reliance on false statements can be proved through inference, it cannot be read to circumvent the requirements of Engle , Douglas , and Hess that plaintiffs must prove such reliance based on some evidence to support the inference and the supreme court's holdings on the merit of circumstantial evidence to support liability. Trusell , 131 So.2d at 733. The circumstantial evidence must establish individualized reliance by the plaintiff, and this cannot be shown through mere presentation of general evidence of the plaintiff's life and behavior, where, as here, that evidence gives no indication that the plaintiff relied on any false information disseminated by the tobacco companies. To allow such a broad reading of Martin would abrogate the requirement that Engle plaintiffs prove detrimental reliance, and contradict the clear statement in Hess that the plaintiff "must certainly prove detrimental reliance" to prevail on a claim of fraudulent concealment. Hess , 175 So.3d at 698.

To hold a party liable for fraudulent concealment - where there was no duty established as a matter of law and no evidence of any reliance on a false statement - would allow a plaintiff to impose severe consequences on a party where the plaintiff never proved reliance on any false statements. Here, those consequences include allowing Appellee to avoid the jury finding the decedent 33% at fault, and instead to recover the entire damages award despite the jury's decision to the contrary.

In addition to contravening the supreme court's holdings requiring individualized proof in tobacco cases, such a holding would contradict black-letter law on the burden of persuasion in civil cases in which a plaintiff relies on circumstantial evidence to support an inference, here being the inference that because the decedent saw advertising containing false statements about the risks of smoking, she in fact relied on those statements, which resulted in her disease. Trusell , 131 So.2d at 733 : Voelker , 73 So.2d at 405-06. In Trusell , the supreme court relied on its holding in Voelker , reiterating that a jury verdict cannot be predicated on circumstantial evidence that established only potential speculation. Trusell , 131 So.2d at 733. Thus, here, the fact that the decedent saw advertising cannot prove reliance, as she may or may not have internalized the false statements in the advertisements and changed her behavior accordingly. In fact, as noted above, the evidence shows that she did not. There was no evidence admitted that the decedent relied on these false statements; only that she was exposed to the statements. This is not enough. In Trusell, the court noted that "a jury could not reach a conclusion imposing liability ... without indulging in the prohibited mental gymnastics of constructing one inference upon another inference in a situation where, admittedly, the initial inference was not justified to the exclusion of all other reasonable inferences." 131 So.2d at 733 (emphasis added).

Because Appellee failed to present adequate evidence as a matter of law that the decedent relied on fraudulent statements by Appellant regarding the health hazards of smoking cigarettes, we reverse the trial court's denial of Appellant's motion for a directed verdict on the fraudulent concealment and conspiracy claims. We remand for an order granting the directed verdict and reducing the compensatory damage award to deduct the decedent's comparative fault. We need not reach the issue of whether the trial court erred in rejecting Appellant's requested jury instruction requiring the jury to find that the decedent relied on a "statement" to find fraudulent concealment and conspiracy, in light of our holding directing that the verdict be granted for Appellant on fraudulent concealment and conspiracy.

We reject all other arguments raised by Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED .

Winsor, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

A question in this Engle -progeny case is whether there is record evidence from which the jury could infer that Mrs. Whitmire, a life-long cigarette smoker, was aware of the tobacco advertising campaign and that she relied to her detriment on the misinformation it contained. Because the answer is yes, and our decision in R.J. Reynolds Tobacco Co. v. Martin , 53 So.3d 1060 (Fla. 1st DCA 2010) (upholding verdict where reliance was proven by inference), remains applicable law, I cannot join in reversing the verdict.

Mrs. Whitmire began smoking at age fourteen and did so at the rate of one to two packs daily-interrupted only during the pregnancy of her son-until she died in 1995 of lung cancer. She married her husband, also a heavy smoker, in 1968; they met in 1966 when she was nineteen, and he was twenty-three. He later quit smoking in the 1980s, but she could not.

At trial, extensive evidence was presented that tobacco companies, including R.J. Reynolds Tobacco Company ("RJR"), participated in multi-decade, pervasive advertising campaigns that concealed the adverse health effects of smoking from cigarette consumers during the time period when Mr. Whitmire and his wife were heavy smokers and multi-media consumers. Specifically, Mr. Whitmire testified that they watched "a lot" of television together including programs such as I Love Lucy , Gunsmoke , and the Beverly Hillbillies , which were ones featured in the expert testimony about the tobacco companies' misleading advertising campaigns. Mr. Whitmire was "sure" that they saw cigarette advertisements when they watched television together. She watched both local and national news programs (preferring CBS and Walter Cronkite) and some of the early music videos (including a song called "Smoke! Smoke! Smoke!"). Mr. Whitmire recalled that they watched Perry Mason and that her favorite show was Dallas . Mrs. Whitmire kept up on current events. They subscribed to the Tallahassee Democrat (Mr. Whitmire's father was the paper's circulation manager). Mr. Whitmire read the paper every day, Mrs. Whitmire less so. She read Reader's Digest and Life Magazine , the former one of the few magazines that occasionally had anti-smoking articles, albeit a very minor percentage of their overall content.

Mr. Whitmire recalled the time when he and his wife both had colds and "had heard that maybe menthol was a better cigarette," so they "tried them, and we kept smoking Salems the rest of our smoking history." At some point, he broke open a filter and showed her a "dirty brown" residue, noting that the substance was "something that's not going into our lungs," the inference being that the filter was removing harmful substances when, in fact, toxins were not removed. He testified that his wife, up until her diagnosis of lung cancer, did not understand the addictive nature of nicotine; that there was arsenic in cigarette smoke; and that smoking might kill her. Although he and his wife did not hear or discuss specific "statements" from tobacco companies, they never heard any "statement" from the companies in their advertisements that their filters didn't work; that cigarette smoking was harmful; that a regular smoker had a 50% greater chance of dying from a smoking-related illness; or that cyanide, arsenic, and other carcinogens were in cigarette smoke.

The jury was instructed, in part, that the evidence of fraudulent concealment must show that "Mrs. Whitmire reasonably relied to her detriment on the concealment or omission of material facts concerning the health effects or addictive nature of smoking cigarettes or both by [RJR], and if so, whether such reliance was a legal cause of her lung cancer and death." Part of the instruction also said it was unnecessary "that a direct statement be made to Mrs. Whitmire in order that it give rise to the right to rely upon the statement for it is immaterial whether it passes through a direct or circuitous channel in reaching her, provided that it be made with the intent that it shall reach her and be acted upon by the injured party."

As a whole, this evidence was sufficient under Martin to allow a jury to infer that Mrs. Whitmire was aware of or saw the misleading advertisements via the television and other media of the time, that she lacked important information as to the undisclosed harmful health effects of smoking, and that the disclosure of such information would have corrected her misunderstanding about the true nature of the product and potentially changed her smoking behavior. The counter-point is that she was so severely addicted to smoking (reflected in her life-long compulsive smoking from dawn to dusk and sometimes in the middle of the night) that nothing-even truthful disclosures of the severe health effects of smoking-would have persuaded her to change her behavior (her pregnancy being the exception). But these points and counter-points are factual matters the jury was entrusted to assess. Martin , 53 So.3d at 1069 (upholding verdict based on "abundant evidence from which the jury could infer [plaintiff's] reliance on pervasive misleading advertising campaigns ... and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health."); Cote , 909 F.3d at 1108-10, 2018 WL 6167395, at *9-*10 (reversing and remanding for entry of judgment in plaintiff's favor on claims of fraudulent concealment and concealment to fraudulently conceal on similar facts).

On this record, the jury could have believed and sided with either party's narrative or come down somewhere in-between as to the negligence and intentional tort claims (they assigned her 33% of the fault on the negligence claim), precluding a grant of a directed verdict for RJR. See Martin , 53 So. 3d (upholding jury verdict for plaintiff on all claims and assigning 34% of fault); Cote , 909 F.3d at 1102-03, 2018 WL 6167395, at *4 (upholding jury verdict for plaintiff on all claims and assigning her 40% of fault). Rather than a media "hermit" who was isolated from the tobacco companies' advertising campaigns, Mrs. Whitmire fully engaged in the media of the day (TV, newspaper, magazines) to such an extent that her husband said he was "sure" that they saw the misleading cigarette advertisements. On balance, the record evidence is sufficient for the jury to have concluded that she "reasonably relied to her detriment on the concealment or omission by RJR of material information not otherwise known or available or RJR's failure to disclose material facts concerning the health effects or addictive nature of smoking cigarettes" and that this reliance was a cause of her death. For that reason, I cannot join in reversing the verdict in her favor.

      Engle v. Liggett Group, Inc. , 945 So.2d 1246 (Fla. 2006).

      In 2017, the supreme court held that "when a jury finds for an Engle progeny plaintiff on intentional tort claims, the plaintiff's award may not be reduced by comparative fault." Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 305 (Fla. 2017).

      At trial and on appeal, RJR takes the position that the jury instructions must include a requirement that a plaintiff have relied on a specific "statement" versus a non-disclosure, but this position was rejected in Philip Morris USA, Inc. v. Duignan , 243 So.3d 426, 443 (Fla. 2d DCA 2017), which explains convincingly why that is the correct result; see also Cote v. R.J. Reynolds Tobacco Co. , 909 F.3d 1094, 1107, 2018 WL 6167395, at *8 (11th Cir. 2018) (noting Duignan 's "comprehensive review" of Florida fraudulent concealment law in the Engle context and concluding that "Florida courts have consistently held that Engle -progeny plaintiffs are not required to show reliance on a specific statement.").


text:
    A.P., Sr., Father of A.P., Jr. and A.F.-P., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-2937
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Susan Barber, Assistant Regional Conflict Counsel, Tallahassee, and Crystal M. Frusciante, Sunrise, for Appellant.
    Ward L. Metzger of Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, A.P., Sr., appeals an order terminating his parental rights pursuant to sections 39.806(1)(c) and (1)(f), Florida Statutes (2017). Appellant argues that the trial court erred in basing the termination in part upon section 39.806(1)(c), that section 39.806(1)(f) is unconstitutional because the Legislature eliminated the proof-of-nexus requirement in a 2014 amendment, and that termination was not in the children's manifest best interests. We find no merit in Appellant's challenge to the trial court's application of section 39.806(1)(c) in terminating his rights or in his best interests argument. Given such, we decline to address Appellant's constitutional challenge to section 39.806(1)(f). See In re Holder , 945 So.2d 1130, 1133 (Fla. 2006) (explaining that courts are to avoid considering a constitutional question when the case can be decided on non-constitutional grounds); Overstreet v. Overstreet , 244 So.3d 1182, 1184 (Fla. 1st DCA 2018) ("The law requires us to refrain from reaching constitutional questions if we can resolve the case on other grounds."); J.F. v. Dep't of Children & Families , 198 So.3d 706, 708 (Fla. 2d DCA 2016) ("As a result of our conclusion as to this ground [ section 39.806(1)(c) ], we do not need to determine whether termination was authorized under section 39.806(1)(f).").

Accordingly, we affirm the order terminating Appellant's parental rights.

AFFIRMED.

Wolf, Lewis, and Wetherell, JJ., concur.

      Section 39.806(1)(c) provides a ground for termination when a parent "engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services." § 39.806(1)(c), Fla. Stat. (2017).

      Section 39.806(1)(f) provides a ground for termination when a parent "engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling." § 39.806(1)(f), Fla. Stat. (2017). In 2014, the Legislature amended the statute to include the language "[p]roof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required." Ch. 14-224, § 19, Laws of Fla. (2014).


text:
    Ana C. LORENZO, Appellant, v. FOREVER 21 RETAIL, INC., Appellee.
    No. 3D17-2497
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Rubenstein Law, and Miriam Fresco Agrait ; Burlington & Rockenbach, P.A., and Adam Richardson (West Palm Beach), for appellant.
    Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, and Allison C. Heim, Tampa, and Nicole M. Sarasua, Miami, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Encarnacion v. Lifemark Hospitals of Florida, 211 So.3d 275, 278 (Fla. 3d DCA 2017) (affirming summary judgment in favor of defendant and holding that plaintiff's testimony that the substance on the floor was "oily," "dirty," and "dark" was "insufficient to create a jury issue. For such testimony to create a jury issue, the testimony must be accompanied by ... some additional fact or facts from which the jury can reasonably conclude that the substance was on the floor long enough to have become discolored without assuming other facts, such as the substance, in its original condition, was not 'oily,' 'dirty' and 'dark' "); Wilson-Greene v. City of Miami, 208 So.3d 1271, 1273 (Fla. 3d DCA 2017) (reversing summary judgment in favor of the plaintiff, despite evidence that the soup upon which plaintiff slipped and fell was "not hot," because such evidence was insufficient to establish defendant's constructive notice without requiring the fact-finder to impermissibly stack inferences in order to conclude that the soup had been on the floor long enough to cool); Wilson v. Winn-Dixie Stores, Inc., 559 So.2d 263 (Fla. 2d DCA 1990) (holding jury may not speculate as to whether grocery store should have known about a dangerous condition where there was no evidence of how long the substance had been on the floor prior to the plaintiff's fall); Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987) (judgment in favor of plaintiff reversed when jury would have had to stack inferences to conclude that a dinner tray had been overfilled, causing gravy to spill on the floor, later causing plaintiff to slip).


text:
    Tuquincey THOMPKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-398
    District Court of Appeal of Florida, Third District.
    Opinion filed December 18, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LUCK, JJ.
   PER CURIAM.

Affirmed. Franklin v. State, No. SC14-1442 (Fla. Nov. 8, 2018) (reh'g denied Dec. 4, 2018).