text:
    Jason LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1183
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Antonio C. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-886
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brandon Seandrae ATWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1122
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew PAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2281
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cory DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2303
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Miguel HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-0843
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Yeniel Tejera PENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-780
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kelly GARRICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1208
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles B. RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1180
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earl BRADDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1209
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sandeep MUNSHI, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2295
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Simeon WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D18-588 4D18-589
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Yessenia SOFFIN and William Jordan Soffin, Appellants, v. CLEAN COAL TECHNOLOGIES, INC., a Nevada Corporation, Douglas Hague, and David Douglas, as Independent Executor of the Estate of C.J. Douglas, Appellees.
    No. 4D17-2751
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deryl BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-944
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tamburello Marquis GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-870
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Renal ST. HILAIRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1166
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert MASEL and Tzipora Masel, Appellants, v. MTGLQ INVESTORS, L.P., Appellee.
    No. 4D18-1227
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BOYLE & DRAKE, INC., Appellant, v. PELICAN VIEW PROJECT, LLC, Appellee.
    No. 4D17-1807
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Willie Joe JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1410
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-824
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alexander M. BERRIAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-754
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2307
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    RED APPLE HOLLYWOOD, LLC, a Florida Limited Liability Company, Appellant, v. MG3 HOLLYWOOD, LLC, a Florida Limited Liability Company; City of Hollywood and City of Hollywood Community Redevelopment Agency For The Downtown District, Appellees.
    No. 4D17-2680
    District Court of Appeal of Florida, Fourth District.
    July 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lee Robert SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-613
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos LORENZO, Appellant, v. PUBLIX SUPER MARKETS, INC., Appellee.
    No. 4D17-2852
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    K.M., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem, Appellees.
    No. 4D18-791
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Frank A. HERNANDEZ, Appellant, v. Jessica R. RIVERA, Appellee.
    No. 4D18-0774
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Adam D. SHEPHERD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-262
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 29, 2018 Rehearing and Rehearing En Banc Denied July 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tony ELOZAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-52
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 10, 2018 Rehearing Denied July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joshua BOUIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-848
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 12, 2018 Rehearing Denied July 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Virgil O'Keith STEWART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3546
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bennie L. WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3126
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michelle THOMAS, as Personal Representative of the Estate of Marcus Thomas, Appellant, v. BETHUNE-COOKMAN UNIVERSITY, INC., Lamar D. Bryant and Marcus Allen and Phi Mu Alpha Sinfonia Fraternity of America, Inc., Appellees.
    Case Nos. 5D16-3842 5D17-683
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carl GEER, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1392
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose Miguel CARDONA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-179
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tracey L. MARMA, Appellant, v. BAYVIEW LOAN SERVICING, LLC, U.S. Bank Trust, N.a., as Trustee for LSF9 Master Participation Trust, the Crossings Master Community Association, Inc. and James Guldi, Appellees.
    Case No. 5D17-1413
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 12, 2018 Rehearing Denied July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ronald K. MAIHLE, Appellant, v. EVERBANK, Appellee.
    Case No. 5D17-578
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 12, 2018 Rehearing Denied July 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Issac B. DENNIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1380
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Varian MARSHALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1212
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Patrick H. PAIGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1039
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jay Vernon MOSS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-654
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael A. WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-382
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lorenzo CUE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4096
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Vito CLARE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4080
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    E.R., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3901
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    M.A., A Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3754
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David DEINE, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3698 5D17-3699 5D17-3700
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Andrew Chase BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3536
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    M.B., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3491
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kent Robert GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3156
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stuart HICKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2984
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlos ORTIZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2746
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel GOMEZ-CORREA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2058
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alexander A. HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1263
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dennis Kay ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1243
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Timothy J. GROSS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1231
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shavonni HEMENEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-881
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlos ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2643
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kelly L. HARDISON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-333
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Velton Devontay CORBETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3185
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keiandre Lenard LOVETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1657
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brandon D. WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-474
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Willie Lee WADDY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-136
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gregory BENDER, Appellant, v. Vidya DEVNANI, Appellee.
    Case No. 5D17-4082
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony SELVESTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3170
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stanford Deon LEWINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2940
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jason BRUBACHER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1193
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Paul DIRENZO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1164
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.H., Mother of L.U., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1386
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael J. HEYLIN, Appellant, v. Anita MUTTERS, as Parent and Natural Guardian of B.J.M., a Former Minor, and B.J.M., Individually, Appellees.
    Case No. 5D17-1878
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Raul Alejandro SALAZAR, Appellant, v. Alma Rosa MARTINEZ f/k/a Alma Rosa Salazar, Appellee.
    Case No. 5D17-1629
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Corey WINTER, Appellant, v. Jim FITZPATRICK and Florida Agricultural Center & Horse Park Authority, Inc., Appellees.
    Case No. 5D17-930
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Larry John EARGLE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-578
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Junior GRANT, Appellant, v. PHH MORTGAGE CORPORATION and Michelle B. Grant, Appellees.
    Case No. 5D17-2682
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Conner, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jan GROSSMAN, as Personal Representative of the Estate of Laura Grossman, Deceased, Appellee.
    No. 4D18-627
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Jason T. Burnette of Jones Day, Atlanta, Georgia, and Charles R.A. Morse of Jones Day, New York, New York, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Jonathan R. Gdanski and Scott P. Schlesinger of Schlesinger Law Offices, P. A., Fort Lauderdale, for appellee.
   Conner, J.

R.J. Reynolds Tobacco Company ("RJ Reynolds") appeals a trial court order denying its motion to dissolve a writ of garnishment and to stay execution of the judgment entered in favor of the appellee, Jan Grossman ("Grossman"), as personal representative of the Estate of Laura Grossman. The judgment was entered in an Engle tobacco litigation case. RJ Reynolds asserts two grounds for reversal: (1) its compliance with section 569.23, Florida Statutes (2017), protects it from execution while appellate review of the final judgment is pending; and (2) there is no final judgment upon which execution can issue because this Court reversed a portion of the final judgment and review is pending in our supreme court. Grossman cross-appeals and argues that section 569.23 is unconstitutional. Because we agree with RJ Reynolds on the application of section 569.23 to the proceedings, we reverse and remand for entry of a stay of execution. We sua sponte dismiss the cross-appeal as an attempt to appeal an order already providing Grossman the full relief he sought. Additionally, there was no ruling by the trial court on the constitutionality of the statute, and no compliance with the notice requirements for that challenge.

Background

Grossman brought an Engle -progeny lawsuit against RJ Reynolds after the death of his wife, who he alleged was addicted to cigarettes and died of lung cancer. Grossman alleged multiple claims, including strict liability, fraud by concealment, conspiracy to commit fraud by concealment, and negligence, among others. The jury apportioned fault for compensatory damages, but the trial judge declined to reduce the compensatory damages by comparative fault. Judgment was entered against RJ Reynolds for compensatory and punitive damages. On appeal, we held that the trial court was required to reduce the compensatory damage award by the parties' comparative fault as determined by the jury. R.J. Reynolds Tobacco Co. v. Grossman , 211 So.3d 221, 229 (Fla. 4th DCA 2017).

After our decision, both sides sought review by our supreme court. The court denied review of RJ Reynolds's petition. As of the date of this opinion, review of Grossman's petition is still pending.

After judgment was entered against it, RJ Reynolds posted an initial bond in compliance with section 569.23, and subsequently increased the amount of the bond. After petitioning our supreme court for review, Grossman moved for a writ of garnishment, which was issued by the trial court clerk of court. When the writ was served on a bank used by RJ Reynolds, several millions of dollars were debited from accounts held by RJ Reynolds. RJ Reynolds filed an emergency motion to dissolve the writ of garnishment and to confirm a stay of execution. It argued that the judgment Grossman was seeking to satisfy was not final, as it was pending review by our supreme court. Additionally, it argued that it had posted a supersedeas bond that automatically stayed execution during review of the case by both our supreme court and the United States Supreme Court or until the time for filing a certiorari petition had expired.

The trial court denied RJ Reynolds's motion to dissolve the writ or confirm a stay of execution, reasoning that the only appeal pending was Grossman's petition (as opposed to review sought by RJ Reynolds) and that any review by the United States Supreme Court would be "futile," given recent case law by that court. RJ Reynolds gave notice of appeal. Subsequently, Grossman cross-appealed, contending section 569.23 is unconstitutional.

Appellate Analysis

Insofar as RJ Reynolds's appellate challenges are based on interpretation and application of statutes, our review is de novo . Kane v. Stewart Tilghman Fox & Bianchi, P.A. , 197 So.3d 137, 139 (Fla. 4th DCA 2016). Grossman's constitutionality challenges are also reviewed de novo . City of Ft. Lauderdale v. Dhar , 185 So.3d 1232, 1234 (Fla. 2016).

Section 569.23(3), Florida Statutes, provides that tobacco settlement signatories such as RJ Reynolds can stay execution of Engle -related judgments by posting bond. See R.J. Reynolds Tobacco Co. v. Hall , 67 So.3d 1084, 1087-89 (Fla. 1st DCA 2011). Subsection (a)1., dealing with Florida court appeals of such judgments, provides:

In civil actions against a signatory, or a successor, parent, or affiliate of a signatory, to a tobacco settlement agreement brought by or on behalf of persons who claim or have been determined to be members of a former class action that was decertified in whole or in part, the trial courts shall automatically stay the execution of any judgment in any such actions during the pendency of all appeals or discretionary appellate reviews of such judgment in Florida courts , upon provision of security as required in this paragraph. All security shall be provided through the posting with or payment into the registry of the clerk of the Supreme Court.

§ 569.23(3)(a) 1., Fla. Stat. (2017) (emphasis added).

RJ Reynolds argues that by posting a $15 million bond, it is statutorily entitled to an automatic and continuous stay of execution processes until thirty days after the end of all appellate proceedings in Florida. Additionally, it argues that the bond posting means that the automatic stay extends to any review proceedings filed in federal court after state court review proceedings have ended. No issue was raised below or on appeal by Grossman regarding the sufficiency of the bond posted. What Grossman contests is RJ Reynolds's assertion that the stay under section 569.23(3) applies to any future review sought by RJ Reynolds in federal court. Because there currently is no appellate review pending in any federal court, we decline to address that issue. This Court has no authority to issue an advisory opinion. State v. Barati , 150 So.3d 810, 813 (Fla. 1st DCA 2014).

The record establishes that RJ Reynolds posted a sufficient bond pursuant to section 569.23(3)(a) 1., and is entitled to a stay of execution. We therefore conclude the trial court erred by not staying the writ of garnishment. However, we are satisfied that the trial court did not err in declining to dissolve the writ of garnishment. See Freedom Insurors, Inc. v. M.D. Moody & Sons, Inc. , 869 So.2d 1283, 1285 (Fla. 4th DCA 2004) (affirming trial court stay of garnishment, rather than dissolution of the writ, because debtor had filed supersedeas bond in appeal from underlying judgment); Fla. Steel Corp. v. A. G. Spanos Enters., Inc. , 332 So.2d 663, 665 (Fla. 2d DCA 1976) (explaining that because a supersedeas has the effect of suspending the proceedings, it is more appropriate to grant a stay, rather than dissolve a writ of garnishment).

Additionally, the parties put forth arguments regarding whether garnishment proceedings are appropriate as to the portion of the final judgment awarding punitive damages, which was not reversed in the prior appeal before this Court. We need not address those arguments, in view of our disposition regarding the application of section 569.23(3)(a) 1. and RJ Reynolds's entitlement to a stay of execution.

We also dismiss the cross-appeal attacking the constitutionality of section 569.23. There is no order from the trial court explicitly addressing the constitutional arguments Grossman asserted below, and we do not construe the rulings of the trial court to implicitly address the constitutionality of the statute. A cross-appeal is intended to "call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which appellee believes itself entitled." Webb Gen. Contracting Inc. v. PDM Hydrostorage, Inc. , 397 So.2d 1058, 1059-60 (Fla. 3d DCA 1981). Below, Grossman was accorded the full relief he sought in the circuit court. Having failed to obtain a ruling on the constitutionality of section 569.23, he should not be permitted to present arguments regarding his constitutional challenge on appeal. Further, we agree with RJ Reynolds's argument that the trial court could not have properly considered the constitutionality of the statute because the notice requirements of Florida Rule of Civil Procedure 1.071 and section 86.091, Florida Statutes (2017), requiring notice to the Attorney General or state attorney of the judicial circuit where the action is pending, were not complied with. Thus, we follow the general rule that the constitutionality of a statute be considered first by the trial court. Dickinson v. Stone , 251 So.2d 268, 271 (Fla. 1971).

Reversed and remanded with instructions; cross-appeal dismissed.

Gerber, C.J., and Ciklin, J., concur.

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


author: Warner, J.

text:
    PREMIER COMPOUNDING PHARMACY, INC., a Florida corporation, Appellant, v. Eric LARSON, Appellee.
    No. 4D17-1318
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Raymond M. Christian of Raymond M. Christian, P.A., Palm Beach Gardens, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Jill G. Weiss of Jill G. Weiss, P.A., Palm Beach Gardens, and Robin Bresky and Jeremy Dicker of the Law Offices of Robin Bresky, Boca Raton, for appellee.
   Warner, J.

After succeeding in obtaining an injunction against the appellee for violation of a non-compete agreement, appellant moved for attorney's fees under the terms of the agreement. The trial court denied the fees, refusing to enforce the attorney's fee provision of the agreement. At the hearing on appellant's motion, the court found the agreement invalidly permitted the appellant to obtain a temporary injunction without posting a bond, noting the attorney's fees provision was contained within the same paragraph as the impermissible "injunctive relief without the posting of a bond" language. We reverse, because the attorney's fees provision is enforceable.

Appellee Eric Larson, a licensed pharmacist, entered into an employment contract with the appellant, Premier Compounding Pharmacy, Inc. The agreement contained sections prohibiting appellee from releasing or divulging appellant's confidential information (Paragraph 9), a non-compete agreement (Paragraph 10), and an agreement to secure to the employer any developments or patents produced by the employee during the term of his employment (Paragraph 11). Paragraph 12 of the agreement, entitled "Injunction without Bond," allowed the appellant to obtain an injunction for a violation of paragraphs 9, 10, and 12 of the noncompete agreement. It also contained a provision for attorney's fees, providing in part:

[A] breach of the covenants contained in Paragraphs 9, 10 and 12 of this Agreement will result in irreparable injury to Employer and the only appropriate remedy for such breach would be an injunction. Thus, in the event there is a breach or threatened breach by the Employee of the provisions of paragraphs 9, 10 and 12, the Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee from disclosing in whole or in part any confidential matters or from rendering service to any person, firm, corporation, association or other entity, or from claiming ownership to any invention or development or failing to provide further assurances, and the Employer will be entitled to reimbursement for all costs and expenses, including reasonable attorney's fees (both at the trial and appellate levels) in connection therewith ....

(emphasis added). The agreement also contained a severability clause which stated:

If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.

In 2015, appellant filed a complaint for injunctive relief, alleging that the appellee was discharged and then solicited one of appellant's referring physicians. It claimed appellee was employed with a local competitor as a pharmacist. Appellant sought to enforce its non-compete restrictions through temporary and permanent injunctive relief, requesting attorney's fees and costs, as well as monetary damages.

After a hearing, the court granted Premier temporary injunctive relief. Appellee appealed the temporary injunction, but he voluntarily dismissed the appeal. Appellee then moved for entry of final judgment, requesting the court to find that the non-compete provision was reasonable. The court entered a final judgment of injunctive relief for appellant, reserving its jurisdiction to determine entitlement to attorney's fees and costs.

Appellant moved for attorney's fees and costs, arguing it was the prevailing party and entitled to fees under the employment agreement, particularly paragraph 12, and section 542.335, Florida Statutes (2016). Appellee contended that because paragraph 12 invalidly allowed the issuance of an injunction without bond, it was unenforceable under section 542.335(1)(j), Florida Statutes (2016). He claimed that this would invalidate the entire paragraph, which should be severed from the employment agreement. After a hearing, the trial court accepted appellee's interpretation and denied the motion for attorney's fees. Appellant now appeals. We review de novo a party's entitlement to fees based on the interpretation of contractual provisions. Carlin v. Javorek , 42 So.3d 820, 822 (Fla. 4th DCA 2010).

"As a general rule, contractual provisions are severable, where the illegal portion of the contract does not go to its essence, and, with the illegal portion eliminated, there remain valid legal obligations." Fonte v. AT & T Wireless Servs., Inc. , 903 So.2d 1019, 1024 (Fla. 2005). While paragraphs within a contract may differ from individual provisions or phrases, we examine the contract as a whole to determine the parties' intent. Lalow v. Codomo , 101 So.2d 390, 393 (Fla. 1958).

The essence of paragraph 12 is the employer's entitlement to seek an injunction to prevent the employee from breaching the non-compete clause of the contract. Without the right to obtain an injunction to prevent the employee from working for a competitor, the employment agreement would never protect the employer from an employee who began working for a competitor or taking the employer's customers and secrets. The contract itself states that breach of the various agreements would constitute "irreparable injury" to the employer. Although the paragraph specifies that the "Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee," the words "without the posting of a bond" can be eliminated, and valid legal obligations remain. While section 542.335(1)(j) provides a temporary injunction requires a bond, and a contractual provision waiving a bond will not be enforced, no bond is required for a permanent injunction. Thus, the "no bond" requirement is very limited. The appellant obtained a permanent injunction to secure its very important right to enforce the non-compete clause of the contract.

If paragraph 12 is invalid in its entirety because of the "no bond" requirement for a temporary injunction, then appellant would not be entitled to any injunction at all. Yet, even appellee recognized that appellant could enjoin him from competition pursuant to the terms of the agreement, as appellee himself moved for the entry of a permanent injunction.

Moreover, the severance clause permits the remainder of the contract to stand if the "no bond" requirement is eliminated. It provides that, "If any provision of this Agreement ... shall be held to be invalid or unenforceable to any extent , the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement." (emphasis added). Thus, because the extent of the unenforceability of the provision goes solely to the "no bond" requirement of the injunction, the remainder of the provision and the agreement is still enforceable, including the attorney's fees provision.

In very similar factual circumstances, the court in Smart Pharmacy, Inc. v. Viccari , 213 So.3d 986, 991-92 (Fla. 1st DCA 2016), reversed the denial of a temporary injunction which Smart Pharmacy sought to enforce a noncompete agreement, remanding for entry of the injunction after the determination of an appropriate bond. In a footnote, the court addressed the enforceability of the contractual provision which allowed the employer to seek a temporary injunction without bond, concluding that it did not invalidate the remaining provisions of the agreement:

Although Viccari's noncompete agreement provided that it could be enforced "without [Smart Pharmacy] having to post bond or other security," this provision is unenforceable. See § 542.335(1)(j), Fla. Stat. ("[T]he court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond."). This provision does not, however, render the entire noncompete agreement unenforceable as Appellees contend. First, the statute does not preclude the court from enforcing the agreement in its entirety, but rather only prohibits enforcement of the "contractual provision waiving the requirement of an injunction bond " (emphasis added). Second, the noncompete agreement contained a severability clause providing that the invalidity of a provision of the agreement would not affect the validity and enforceability of the remainder of the agreement.

Id. at 991 n.4 (italics original, bold emphasis added). The court did not conclude that no injunction could issue, but simply required that a bond be issued prior to the entry of a temporary injunction.

In its written order denying the fees, the trial court cited only Vital Pharmaceuticals, Inc. v. Professional Supplements, LLC , 210 So.3d 766 (Fla. 4th DCA 2017). The trial court's reliance on Vital Pharmaceuticals to support the denial of fees is misplaced. There, this court found that the defendants, former employees of the plaintiff employer were not entitled to an award of damages following the dissolution of a temporary injunction wrongfully entered against them. Id. at 767-68. The employer never posted a bond for its temporary injunction, and section 60.07, Florida Statutes, provided that "[i]n injunction actions, on dissolution, the court may hear evidence and assess damages to which a defendant may be entitled under any injunction bond , eliminating the necessity for an action on the injunction bond if no party has requested a jury trial on damages." Id. We found the statute "presupposes the existence of a bond because an injunction order requires a bond under rule 1.610(b) and is subject to dissolution until a bond is posted." Id. at 768. Thus, if a temporary injunction is wrongfully issued without a bond, then the party against whom the injunction is entered is not able to collect damages under a bond upon dissolution of the injunction. Id.

The present case is distinguishable from Vital Pharmaceuticals . There, the employee who succeeded in defeating the temporary injunction sought attorney's fees pursuant to statute, not a contractual provision authorizing fees. However, in this appeal, the party who successfully obtained a permanent injunction is seeking attorney's fees. Furthermore, appellant's argument is based on the employment contract and the specific provision for attorney's fees in the contract, not section 60.07, Florida Statutes.

Finally, we distinguish Place at Vero Beach, Inc. v. Hanson , 953 So.2d 773, 775 (Fla. 4th DCA 2007), which the appellee cites to argue that the severance "clause allow[ed] provisions, not portions of a provisions , of the Agreement to be severed." (emphasis in original). In other words, he contends the court correctly struck the entirety of paragraph 12. In Hanson , we found the trial court did not err by refusing to sever only portions of an arbitration clause and instead invalidating the entire arbitration provision. Id. We noted severance of individual parts of the provision would be proper only if "there [was] no 'interdependence between the arbitration clause and the remaining clauses of the agreement which would [require] the trial court to rewrite or 'blue pencil' the agreement.' "

Id. at 775-76 (quoting Healthcomp Evaluation Serv. Corp. v. O'Donnell , 817 So.2d 1095, 1097 (Fla. 2d DCA 2002) ). In contrast, here, the severance clause permits severance of any provision only to the extent of its invalidity, which in this case is the "no bond" requirement. There is no interdependence between the offending clause and the remaining provisions, either within paragraph 12 or other provisions in the agreement. Thus, the trial court was not required to rewrite the agreement in any respect other than to eliminate the "no bond" requirement.

The trial court erred in denying the motion for attorney's fees. The provision of the agreement authorizing the award of fees for this permanent injunction, stipulated to by appellee, is not invalid. We therefore reverse and remand for a hearing to determine the amount of fees.

Reversed and remanded for further proceedings.

Gross and Taylor, JJ., concur.

      While appellee also points to the caption of the paragraph of "Injunction without Bond" as reason to strike the entire provision, section 17 of the agreement provides that, "The captions used in this Agreement are solely for the convenience of the parties and are not used in construing this Agreement." Consistent with that term, we do not use the caption to construe the essence of the agreement.


text:
    David Kelly BREWSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1980
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    David K. Brewster, Ft. Pierce, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Warner, J.

We deny the motion for rehearing but grant appellant's motion for written opinion. We withdraw the per curiam affirmance and substitute the following in its place.

Appellant, David Brewster, appeals an Order Denying Motion for Damages, for Return of Restitution and Compensation, which the court dismissed as untimely filed pursuant to section 961.03, Florida Statutes (2017). The court also ruled that Nelson v. Colorado , --- U.S. ----, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017), requiring the return of fees, costs, and restitution after a conviction has been overturned, could not be applied retroactively. We agree with the trial court and affirm.

Appellant was originally charged in case number 02-720 with grand theft and uttering a forged instrument. In another case, 02-1339, he was charged with executing a scheme to defraud a financial institution, and in a third case, 02-1483, he was charged with counterfeiting a license tag. He entered into a plea agreement with the State on all three charges, whereby he agreed to plead no contest and to pay restitution in 02-720 and 02-1339. In turn, he would be sentenced to a three-year term of probation in 02-1339. The trial court entered a final judgment of conviction and sentence upon the charges.

Subsequently, in 2009, a federal court vacated his conviction in 02-1339. Brewster v. McNeil , 720 F.Supp.2d 1369 (S.D. Fla. 2009). Brewster then filed a motion to correct sentence. He argued that the vacation of his conviction in 02-1339 affected his negotiated plea agreement in the other two cases. The trial court rejected this argument as the restitution payments were part of a plea agreement on all three cases, and the convictions on the other two had not been vacated.

Years later, in 2017, appellant filed in all three cases a "Motion for Damages, For Return of Restitution and Compensation Pursuant to Nelson v. Colorado , 581 U.S. ----, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017)." Appellant sought the return of the restitution amounts paid in 02-720 and 02-1339. He also sought damages for his illegal detention and false imprisonment. The trial court denied the relief on the grounds that the petition was untimely filed pursuant to section 961.03, Florida Statutes (2017), the Wrongful Conviction Act. The court also concluded that neither the U.S. Supreme Court nor the Florida Supreme Court has held that Nelson applies retroactively. The court dismissed his motion for return of restitution and compensation. Brewster now appeals the trial court's dismissal of his motion.

We review the trial court's ruling de novo, as statutory construction is a question of law. See Bartek v. State , 198 So.3d 1009 (Fla. 5th DCA 2016).

Pursuant to section 961.01, Florida Statutes (2017), the legislature created the Victims of Wrongful Incarceration Compensation Act, permitting compensation to persons wrongfully convicted of crimes. Under the act, a person is entitled to compensation for wrongful incarceration, including costs, fines, and attorney's fees, due to his wrongful conviction. § 961.06, Fla. Stat. (2017). Section 961.03(1)(b) 1., Florida Statutes (2017), requires that a petition for compensation be filed within ninety days of the order vacating the conviction. In appellant's case, the federal court order, resulting in the dismissal of his conviction, was entered in 2009. Under section 961.03(1)(b) 1., appellant should have filed the petition within ninety days of that order in 2009. Instead, appellant filed his petition under section 961.03 in 2017. Thus, the trial court properly found it was untimely.

Appellant seeks to avoid the time bar by contending that Nelson v. Colorado should be applied retroactively to authorize this late-filed petition. We disagree for two reasons. First, Nelson is not the type of change in law which should be applied retroactively. Second, Nelson did not invalidate procedural measures required to assert a compensation claim, and the time limitation is a procedural measure.

In Nelson , the court considered whether the Colorado Exoneration Act violated due process by requiring defendants, whose convictions had been reversed or vacated, to prove their innocence by clear and convincing evidence in order to obtain a refund of costs, fees, and restitution paid. The Supreme Court held that when a criminal conviction is invalidated, the state may not retain funds paid to it by a defendant pursuant to the now invalidated convictions. Nelson , 137 S.Ct. at 1256-58. The Court particularly held that the state may not require a defendant to prove his or her actual innocence in order to secure return of property. Id. at 1256. The Court concluded: "To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated." Id. at 1258.

The Court did not hold that Nelson was to be applied retroactively. Our supreme court established in Witt v. State , 387 So.2d 922, 929 (Fla. 1980), that a decision will be considered retroactive only when it amounts to a major jurisdictional upheaval in the law. It explained that these fall into two categories:

Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia , 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. 2d 982 (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno , 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967) ] and Linkletter [v. Walker , 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed. 2d 601 (1965) ]. Gideon v. Wainwright , of course, is the prime example of a law change included within this category.

Id. In contrast, those decisions which amount to an evolutionary change in the law will not be applied retroactively:

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness , for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30 (emphasis supplied). As Nelson involved procedural fairness in the proceeding, it is an evolutionary refinement of the law, not a major jurisdictional upheaval. See also Regan v. State , 787 So.2d 265, 267-68 (Fla. 1st DCA 2001) (distinguishing between "jurisprudential upheavals" in the law, which warrant retroactive application under Witt , and those changes which are evolutionary refinements).

A second reason that Nelson does not apply is that in Nelson , the Court allowed "minimal procedures" for seeking a refund. Nelson , 137 S.Ct. at 1258. We consider a time limit for seeking a refund as such a minimal procedure. Surely, requiring a defendant to bring a demand for refund within reasonable time limits is not onerous to the defendant and brings reason and order to the refund process.

For the foregoing reasons, we affirm the order dismissing appellant's claim for refund of restitution, and hold that Nelson v. Colorado cannot be retroactively applied to this untimely petition.

Affirmed.

Gross and Levine, JJ., concur.

      The federal opinion explains that he was convicted under section 655.0322(6), Florida Statutes, which was modeled on the federal bank fraud statute, for passing bad checks. The court held that writing a check which is unsupported by sufficient funds is not a fraudulent representation to a bank.


author: Forst, J.

text:
    Ronald G. LENZI, Appellant, v. The REGENCY TOWER ASSOCIATION, INC., Appellee.
    No. 4D17-2507
    District Court of Appeal of Florida, Fourth District.
    [June 20, 2018]
    Louis Arslanian, Hollywood, for appellant.
    Josef M. Fiala of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, and Jeffrey Green of Kaye Bender Rembaum, P.L., Pompano Beach, for appellee.
   Forst, J.

Appellant Ronald Lenzi appeals the trial court's final judgment in favor of appellee The Regency Tower Association, Inc. ("the Association"). Appellant argues that the trial court misinterpreted the declaration of condominium ("the Declaration") by holding that the Declaration enabled the Board of Directors of the Association ("the Board") to unilaterally make any alterations to the common areas of the property. We reject Appellant's arguments and affirm.

Background

Appellant owned a condominium at Regency Tower. In late 2016, the Board voted to alter the flooring in the lobby of the condominium building from Carrara marble to ceramic tile. In response, Appellant filed a petition for arbitration attempting to overturn the Board's decision. Appellant argued that because the Declaration did not include a separate provision detailing the procedure for approving "material" alterations, section 718.113(2)(a), Florida Statutes (2016) precluded the Association from unilaterally making this material alteration. Section 718.113(2)(a) provides that if a declaration "does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions." Id.

The Association disagreed and filed a motion to dismiss for failure to state a cause of action. It explained that the Declaration was not silent since Article XIX, titled "Right of Association to Alter and Improve Property and Assessment Therefor," stated that the Association had the power to make "such alterations or improvements to the COMMON PROPERTY" with merely the approval of the Board. The arbitrator agreed with the Association, and held that the phrase "such alterations or improvements" was broad and encompassed material alterations.

Seeking alternative redress, Appellant filed suit in the trial court, making the same argument that he made in the arbitration. In response, the Association filed a motion for judgment on the pleadings, again arguing that the complaint failed to state a cause of action. The trial court granted this motion, and entered final judgment in favor of the Association.

Analysis

"A trial court's interpretation of a condominium's declaration is ... reviewed de novo." Courvoisier Courts, LLC v. Courvoisier Courts Condo. Ass'n, Inc. , 105 So.3d 579, 580 (Fla. 3d DCA 2012).

"In construing the language of a contract, courts are to be mindful that 'the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.' " Murley v. Wiedamann , 25 So.3d 27, 29 (Fla. 2d DCA 2009) (quoting Taylor v. Taylor , 1 So.3d 348, 350 (Fla. 1st DCA 2009) ).

Section 718.113(2)(a) states that "there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein." Id. It is undisputed that the lobby is a common element of the condominium, and that replacing the flooring as proposed was a material alteration. The issue before us is whether Article XIX of the Declaration "specif[ies] [a] procedure" the Association must follow to make "material" alterations to the common property. § 718.113(2)(a), Fla. Stat. The Association argues, and the trial court held, that the term "such alterations or improvements" in the Declaration should be construed as covering both ordinary and material alterations or improvements. Under this construction, only Board approval is required.

We have previously explained that, unless they are defined, "terms 'should be given their plain and unambiguous meaning as understood by the "man-on-the-street." ' " Harrington v. Citizens Prop. Ins. Corp. , 54 So.3d 999, 1001 (Fla. 4th DCA 2010) (quoting State Farm Fire & Cas. Co. v. Castillo , 829 So.2d 242, 244 (Fla. 3d DCA 2002) ). "Whether they appear in a statute or in a declaration of condominium, words of common usage should be construed in their plain and ordinary sense." Schmidt v. Sherrill , 442 So.2d 963, 965 (Fla. 4th DCA 1983).

A similar issue was addressed in Martin v. Ocean Reef Villas Association, Inc. , 547 So.2d 1237 (Fla. 5th DCA 1989). There, the homeowner plaintiffs requested the appellate court "to construe the word 'mortgage' to mean only a purchase money mortgage." Id. at 1238. The court refused to do so, stating "[i]n construing a statute or a declaration of condominium, words of common usage should be construed in their plain and ordinary sense." Id. (citing Koplowitz v. Imperial Towers Condo., Inc. , 478 So.2d 504, 505 (Fla. 4th DCA 1985) ). See also Raymond James Fin. Servs., Inc. v. Phillips , 126 So.3d 186, 191 (Fla. 2013) (concluding "[a]s the Legislature did not add the word 'judicial' before the word 'proceeding,' limiting the term 'proceeding' to apply to only judicial proceedings construes this term in a manner contrary to the language of the statute and the Legislature's intent.").

In Benson v. City of Madison , 376 Wis.2d 35, 897 N.W.2d 16 (2017), the court applied the "general-terms canon" to conclude, based on the plain meaning of the word "corporation," that "the general term 'corporation' ... presumptively should be read to include more specific types of corporations." Id. at 24. The "general-terms canon" posits that "[w]ithout some indication to the contrary, general words (like all words, general or not) are to be accorded their full and fair scope [and] are not to be arbitrarily limited." ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 101 (2012) . "[T]he presumed point of using general words is to produce general coverage-not to leave room for courts to recognize ad hoc exceptions ... in the end, general words are general words, and they must be given general effect." Id.

In the instant case, Appellant essentially asks us to "arbitrarily limit[ ]" the scope of the word "alterations," converting it to mean only "non-material alterations." We decline, as it is clear that "alterations" refers to all alterations, not only non-material alterations. In fact, Black's Law Dictionary, although acknowledging that "real-estate lawyers habitually use alteration in reference to a lesser change," nonetheless also recognizes that the word encompasses all manner of alterations: "any addition or improvement of real estate is by its very nature an alteration." Alteration , BLACK'S LAW DICTIONARY (10th ed. 2014) (second emphasis added). If our choice in dealing with a word used in a condominium declaration is to choose between the legal parlance amongst real estate lawyers versus the generally understood definition of the term, we stand with the latter. See Scudder v. Greenbrier C. Condo. Ass'n, Inc. , 663 So.2d 1362, 1367 (Fla. 4th DCA 1995) ("In construing a statute or a declaration of condominium, words of common usage should be construed in their plain and ordinary sense.").

Conclusion

The language of Article XIX of the Declaration provides a manner for the approval of all alterations, material and otherwise, by Board vote. Thus, the Board could, as a matter of law, vote to alter the flooring in the lobby from marble to tile without the approval of seventy-five percent of the unit owners. We therefore affirm the trial court.

Affirmed .

Damoorgian and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    Thelma MULVEY, Appellant, v. Sheila STEPHENS, James Campbell and Nancy J. Campbell, husband and wife, Appellees.
    No. 4D17-1292
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Joshua D. Ferraro of Lesser, Lesser, Landy & Smith, West Palm Beach, for appellant.
    Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellee Sheila Stephens.
   Kuntz, J.

Thelma Mulvey appeals a final judgment finding tortious interference with an expectancy and awarding $60,000 in damages to the appellee, Sheila Stephens. She raises two issues on appeal: the court erred in denying her motion for judgment notwithstanding the verdict (JNOV) because the plaintiff failed to introduce competent substantial evidence in support of her tortious interference claim; and the amount awarded in damages was inconsistent with the testimony. We agree that there was no competent evidence to support a claim for tortious interference with an expectancy. Because we reverse the court's order denying Thelma Mulvey's motion for JNOV and remand for entry of judgment in her favor, we need not address the second issue.

Background

Jack Mulvey ("Decedent") died testate with three surviving children and a spouse. His first wife predeceased him. The Decedent's daughter, Sheila Stephens ("Daughter"), sued the Decedent's second wife, Thelma Mulvey ("Widow"). The Daughter claimed the Widow exerted undue influence on the Decedent and interfered with her expected inheritance. To provide a general understanding of the issues, we break our background discussion in three parts: First, we discuss the Decedent's will and trust; second, the Daughter's attempt to challenge the will in the probate court; and finally, the trial at issue and the Daughter's claim for tortious interference with expectancy.

i. The Decedent's Will and Trust

While married to his first wife, the Decedent established a revocable trust. The trust's assets included a piece of property located in St. Lucie County, known to the family as the "Ranch." The Decedent created the trust for the ultimate benefit of his children and grandchildren. His son, Kevin Mulvey, was the original trustee of the trust. After Kevin Mulvey's death, the Daughter became the successor trustee.

In 1999, after his first wife died, the Decedent married the Widow. Eight years later, after prior unsuccessful attempts to sell the Ranch, the Decedent and the Widow sold a portion of the Ranch to their friends. The initial sale price for the Ranch was $1,150,000, but $758,000 of the sale was in the form of a mortgage given from the buyers to the Decedent. Five months later, the mortgage was amended to prohibit the Decedent and the Widow from "selling, transferring, assigning or in any manner conveying any interest" in the mortgage. A second modification agreement reduced the principal due on the mortgage by $250,000.

In 2008, the Decedent restated his trust. According to the restated Trust, the Widow would receive $50,000; Kevin Mulvey would receive 16 acres of the Ranch; the Daughter would receive $65,000 cash; and his other son, Sean Mulvey, would receive $65,000 cash.

In 2010, the Decedent executed a self-proving will, which revoked all previous wills. The 2010 will gave the Widow the residue and remainder of the estate. Significantly, the 2010 will revoked a 2005 will, which was a pour-over will that distributed all assets to the successor trustee of his Trust.

ii. The Daughter's Challenge to the 2010 Will in Probate Court

When the Decedent died in 2011, the Daughter petitioned the probate court for administration of a previous pour-over will executed in 2005, while seeking invalidation of the 2010 will. She argued the 2010 will was the product of the Widow's undue influence on the Decedent, and she alleged that the Decedent lacked testamentary capacity when he executed the 2010 will. After a trial, the probate court found the 2010 will was valid and not the product of undue influence. According to the probate court, "[t]hough the decedent suffered physically, there was no credible, substantial evidence of mental impairment."

iii. The Daughter's Complaint for Tortious Interference with Expectancy

After the proceedings in the probate court, the Daughter filed a complaint in the circuit court for tortious interference with expectancy.

The Daughter's claim proceeded to a jury trial. At trial, the Daughter testified that she heard the Widow make belittling comments to the Decedent and heard her say that "your kids hope you die so they get all your money." The Daughter also testified that after the Decedent's stroke in 2010, he required assistance with grooming, eating, and moving around. During this time, the Widow publicly commented on the number of times he needed her assistance.

As for the sale of the Ranch, the Daughter acknowledged that before its sale, she tried to sell the property for the Decedent. She learned about the sale only after the fact and, at that time, her understanding was the Decedent would receive mortgage payments during his lifetime, and his children would receive any remaining funds from those and any additional payments.

The Daughter stated that she had no evidence that the Widow forced the Decedent to sell the Ranch, and also acknowledged that she never heard the Widow lie to the Decedent. That is consistent with the testimony of each of the other witnesses at trial. Sean Mulvey, the Decedent's son, testified that although he once heard the Widow state "[y]ou're getting nothing out of what your father has," he never heard her lie to the Decedent or try to coerce the Decedent into leaving her any property. Jeremy Mulvey, the Decedent's grandson who had a significant relationship with his grandfather, testified that the Widow never tried to interfere with their relationship. He also never heard the Widow tell the Decedent to leave her the Ranch.

There was one other issue significant to the Daughter. The Daughter claims the Widow blocked her brother, Sean Mulvey, from talking to the Decedent while Sean was in prison for several years. The Daughter claims that the Widow blocked her brother from making collect calls to speak with their father. Sean Mulvey testified that the Widow seemed to resent him and made it difficult for him to speak to the Decedent. However, he did not think his imprisonment changed the Decedent's views of him, and he believed the family would receive the Decedent's assets.

Finally, the Widow herself testified that she and the Decedent did not consolidate their finances. She did not know the Decedent had held the Ranch in a revocable trust. Her understanding was that the Decedent put the Ranch in the name of her and her husband because she loaned him a substantial sum of money and paid many of his bills.

The Widow moved for a directed verdict, arguing the Daughter had presented no evidence to support her claims for tortious interference. The court denied the motion and submitted the case to the jury. The jury found in favor of the Daughter and awarded her $60,000 in damages. The trial court denied the Widow's motion for judgment notwithstanding the verdict, issued a final judgment in accordance with the verdict, and the Widow appeals.

Standard of Review

We review the court's denial of a motion for JNOV de novo . Alterra Healthcare Corp. v. Campbell , 78 So.3d 595, 601 (Fla. 2d DCA 2011). A JNOV is appropriate only when there is no evidence upon which the jury could rely in finding for the non-moving party. Id.

Analysis

A claim for tortious interference of a testamentary expectancy includes: "(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages." Whalen v. Prosser , 719 So.2d 2, 5 (Fla. 2d DCA 1998) (citations omitted). "[T]he law permits a claim for tortious interference of a testamentary expectancy 'if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.' " Wolf v. Doll , 229 So.3d 1280, 1283 (Fla. 4th DCA 2017) (internal quotations omitted).

For example, in DeWitt v. Duce , 408 So.2d 216, 219 (Fla. 1981), our supreme court held the plaintiffs had an adequate remedy to challenge a will in the probate court but failed to do so, barring any claims for tortious interference of expectancy. But the court recognized a distinction for trusts because a revocable trust is "apparently outside of probate jurisdiction." DeWitt , 408 So.2d at 219 (citing Davison v. Feuerherd , 391 So.2d 799 (Fla. 2d DCA 1980) ). We have since recognized that "[t]here are simply too many distinctions, both procedural and substantive, between wills and trusts, for the reasoning of DeWitt , and the purpose of section 733.103(2), as it was articulated in DeWitt , to preclude a claim for tortious interference with expectancy." Martin v. Martin , 687 So.2d 903, 907-08 (Fla. 4th DCA 1997).

This "evolving" tort emanates from the Restatement (Second) of Torts. See DeWitt , 408 So.2d at 218 n.2 ; see also Restatement (Second) of Torts § 774B (Am. Law Inst. 1979) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). It is "an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator's interest rather than the disappointed beneficiary's expectations." Whalen , 719 So.2d at 6.

At issue in this appeal is the second element: intentional interference with expectancy through tortious conduct. The Widow argues that there was insufficient evidence to support the jury's verdict that she tortiously interfered with the Daughter's expectancy. She argues the Daughter failed to present any evidence to establish she committed a tort, or tortious conduct, against the Decedent. In response, the Daughter admits that although there was no direct evidence of the Widow's intentional interference with the expectancy, there was competent and substantial indirect evidence of the Widow's undue influence supporting the verdict.

Generally, "[u]ndue influence must amount to 'over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.' " Henry v. Jones , 202 So.3d 129, 133 (Fla. 2d DCA 2016) (quoting Estate of Kester v. Rocco , 117 So.3d 1196, 1199 (Fla. 1st DCA 2013) ). Merely changing a document such as a trust or will is insufficient because undue influence requires some showing that the alleged tortfeasor took improper actions. See Newman v. Brecher , 887 So.2d 384, 385 (Fla. 4th DCA 2004) ; Restatement (Second) of Torts § 774B cmt. c (1979) (stating that "one who by legitimate means merely persuades a person to disinherit a child and to leave the estate to the persuader instead is not liable to the child."). In other words, it requires actions that are independently tortious. Id. ("In the absence of conduct independently tortious, the cases to date have not imposed liability").

Here, there was no evidence of an independent tort committed by the Widow. The Daughter, the Decedent's son, and the Decedent's grandson all testified that they had no evidence the Widow interfered with the Decedent's property. The uncontradicted testimony was that the Widow did not even know the Decedent held the Ranch in a trust. The Ranch was removed from the trust and placed in his and the Widow's names because the Widow loaned him a substantial sum of money and "that was his way of paying it back." There is no other evidence that the Widow had any involvement with the Ranch's ownership or ever sought to exert influence over its ownership.

Nor was there any evidence the Widow lied to the Decedent. It is true that the Daughter testified the Widow made comments about assisting the Decedent after his stroke. But because the Decedent's stroke occurred after the transfer of the Ranch, so too did the comments. Similarly, the Daughter testified that the Widow interfered with her brother's attempts to speak to the Decedent from prison. But, the brother spoke to the Daughter and on occasion spoke to the Decedent. It is unclear whether these calls took place before or after the Ranch was transferred. Regardless, the Daughter could only state that she assumed the Widow blocked the son's calls from prison. Even so, the brother testified that there was no impact on his relationship with the Decedent.

Conclusion

Because there was no evidence of tortious conduct by the Widow, the Daughter could not prevail on her claim for tortious interference with expectancy. The trial court erred when it denied the Widow's motion for judgment notwithstanding the verdict. Accordingly, we reverse the final judgment and remand with instructions to grant the Widow's motion for judgment notwithstanding the verdict.

Reversed and remanded.

Taylor and May, JJ., concur.

      In Martin , we noted that the claim would still be barred by DeWitt "if the trust had been a testamentary disposition incorporated by reference in the will." 687 So.2d at 906. Here, we question whether DeWitt permits the same parties to challenge the same purported tortious conduct in two separate actions, one in the probate court and one in the general civil division. But the Widow does not assert the probate court's decision has preclusive effect on the subsequent civil action. Thus, for purposes of this appeal, we assume it does not.


text:
    Dayana St. Vil LOPEZ, Appellant, v. YO ROOFING AND ASSOCIATES, INC., a Florida corporation, and Scott Allen Voorhees, an individual, Appellees.
    No. 4D17-2075
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Jordan Redavid of Fischer Redavid PLLC, Miami, for appellant.
    James K. Clark of Clark, Robb, Coulombe, Buschman & Charbonnet, Miami, for appellee Yo Roofing and Associates.
   Warner, J.

In this appeal from a final judgment finding the defendant not liable in an auto negligence action, appellant contends that the trial court erred in denying a challenge for cause to a prospective juror. We agree that the court erred, where the juror stated that she could not hold an employer vicariously liable for the negligence of an employee, the plaintiff's theory of liability in this case. The challenge should have been granted. We therefore reverse.

The appellant was involved in an automobile collision with an employee of the appellee, Yo Roofing, who was driving a company truck. She filed suit against the employee for his negligent operation of the vehicle and against Yo Roofing under the theories of vicarious liability and Florida's dangerous instrumentality doctrine. During litigation, the employee died, and the parties agreed to proceed against Yo Roofing only.

The case proceeded to trial. During jury selection, the parties questioned juror Clark, a retired secretary for a carpet company. She was asked if she could render a verdict against a company whose employee was negligent, as opposed to a verdict against the employee himself. She asked counsel her own question: if the employee was drinking, doing drugs, or had a heart attack, why should the employer be responsible for him or her? The plaintiff's counsel then told her to assume that it was a "he said, she said" situation or an honest accident. Then Plaintiff's counsel asked:

[Plaintiff's counsel]: If you believed by a preponderance of the evidence that the evidence showed that the employee was at fault, could you render a verdict knowing that it was against the employer, if that employee was just-because that employee is in the scope of their employment?
[Clark]: I don't think so.
[Plaintiff's Counsel]: You don't think so?
[Clark]: No.

During jury selection, appellant challenged Clark for cause, stating that Clark had said she would be uncomfortable rendering a verdict against an employer for the negligence of its employee. After the court and the defense attorney both said they missed that answer of Clark, the court denied the challenge without further inquiry. Because appellant had exhausted her challenges, and the court refused her request for additional peremptory challenges, Clark actually sat on the jury.

The jury rendered a verdict, finding the employer was not liable. Appellant moved for a new trial, including in her motion portions of the transcript excerpted above. Nevertheless, the trial court denied the motion for new trial. This appeal followed.

"[I]f there is a reasonable doubt about [a] juror's impartiality, the juror should be dismissed for cause." See Bell v. Greissman , 902 So.2d 846, 847 (Fla. 4th DCA 2005). "A new trial is required where the trial court denies a challenge for cause based on a juror's equivocal or conditional responses that are not rehabilitated and where a reasonable doubt exists as to whether the juror possessed the requisite state of mind necessary to render an impartial decision." Id.

In this case, Clark expressed her inability to render a verdict against an employer where the employee was at fault and within the scope of his employment. In other words, she could not find an employer vicariously liable, the sole ground for liability of appellee. There is no question that the juror expressed a bias against holding an employer liable for an employee's negligence. At the very least, there is reasonable doubt as to Clark's ability to render an impartial decision.

In opposition, the appellee contends that appellant should have asked more questions of Clark to establish the extent of her bias or to clarify her opinion. There is no such requirement. Her bias was clearly evident. Appellee also argues that appellant had the duty to bring to the attention of the court the portion of the transcript where Juror Clark expressed her inability to find against an employer. However, the duty to determine the facts is that of the trial court. Here, the answers of the juror were the facts which should have been ascertained by the trial court. If the trial court did not remember the answers, the court should have ordered the court reporter to read that portion of the transcript before denying the challenge. Moreover, once confronted with the juror's answers in the transcript, included in appellant's motion for new trial, the court should have granted the new trial because it had failed to grant the challenge for cause.

Because the court abused its discretion in denying the challenge for cause, which actually resulted in the seating of a biased juror, we reverse and remand for a new trial.

Taylor and Levine, JJ., concur.