author: Gross, J.

text:
    Herman FARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-683
    District Court of Appeal of Florida, Fourth District.
    [May 29, 2019]
    Carey Haughwout, Public Defender, and Kai Li Aloe Fouts, Special Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Herman Farrell appeals his conviction of first-degree murder for shooting his lifelong friend, Sean Fleming. We reverse because where the sole defense to the crime was self-defense, the trial court erred in excluding evidence of the victim's prior act of violence which was known to the defendant.

Both Farrell and the victim were drug dealers and, according to the testimony at trial, drug users. The two eyewitnesses to the shooting, Jacqueline Hutchinson and Nicole Bazini, partied and did drugs with Farrell and the victim. Things began to go downhill when Farrell got angry because when he woke up his gun and some drugs were missing. During Farrell's angry search for his property, he learned that the victim had his things. The victim put the gun in a sock, taunted Farrell with it, and refused to give it back.

The shooting occurred outside of a condominium complex. Hutchinson and Farrell had been driving around together; she said he smoked about thirty Flakka cigarettes and described himself as "a beast." When they got back into the complex, Hutchinson ran into Bazini's unit and told the victim that there was something wrong with Farrell, that he was acting very angry, and that he had kidnapped her.

According to Hutchinson, she and the victim came out of Bazini's unit together. The victim had the sock with the gun in it and was waving it over his head. He said, "You like to beat women. I have your gun. You're not getting it." Hutchinson testified that the victim "never said another word." She said that the victim never threatened Farrell and that when the victim turned to go back into the condominium, Farrell bent down behind her car and opened fire with a handgun.

Bazini testified that Farrell "freaked out" when she told him that the victim had taken his gun and drugs. Knife in hand, she said Farrell dragged Hutchinson by her hair out of the condo. During the day, Bazini witnessed the victim smoking Flakka. Later on, while he was in the process of moving out of Bazini's unit, he tucked the sock covered gun into his waistband. When Hutchinson and Farrell pulled up, the victim pulled the sock and gun out and began to swing it, "like taunting," and left the house to confront Farrell. Bazini did not witness the shooting, but she did hear Farrell say, "I am going to kill you."

On the state's motion, the trial court excluded Bazini from testifying that, in Farrell's presence, the victim had hit her in the back of the head several days before he was killed.

During Farrell's testimony, he claimed that he shot the victim in self-defense. The victim was his best friend and "brother"; they had known each other for thirty years. He suggested that the victim's murder of a mutual friend had cooled their relationship.

Sustaining the state's objection, the trial court precluded Farrell from testifying that he had witnessed the victim beating Bazini three days before the shooting, that he had to stop the victim from kicking Bazini on the floor, and that ever since the victim started smoking Flakka, he had seen him threaten and pull guns on people. Precluded from bringing up specific acts of violence, Farrell was permitted to testify about the victim's reputation for violence in the community.

When the victim walked out of Bazini's condo, Farrell claimed "he was belligerent towards me and pointing the gun at me and threatening me." Farrell shot the victim. When asked what was going through his mind before he fired, Farrell said:

I knew he was not being himself. He was not looking at me as his brother anymore at this point. He was very unpredictable at this point.... He shot and killed somebody that was close to us. At that point I didn't want to become a victim. I had to basically do what I had to do.

He testified that if he had not shot the victim, his fear was that he would get "shot and killed."

Forensic testimony established that Farrell fired twelve shots from an automatic or semi-automatic handgun, with nine bullets hitting the victim.

Farrell challenges the exclusion of evidence about the incident that occurred three days before the killing during which the victim hit Bazini in the back of the head and beat her up, and Farrell had to stop him from kicking her when she was on the ground.

A defendant asserting self-defense lays the predicate for admission of evidence of prior specific acts of violence by the victim by presenting evidence that:

1. He knew about the prior violent act at the time he committed the crime against the victim; and
2. the victim made some overt act at or about the time of the crime which may be reasonably regarded as placing the defendant in imminent danger.

See Williams v. State , 252 So.2d 243, 247 (Fla. 4th DCA 1971). "[A] defendant's knowledge of a victim's specific acts of violence is a precondition to admissibility." Antoine v. State , 138 So.3d 1064, 1076 (Fla. 4th DCA 2014). "A defendant need not be present when the prior acts occur, as long as he or she has knowledge of the acts at the time of the incident in question." Hedges v. State , 667 So.2d 420, 423 (Fla. 1st DCA 1996).

The defendant need only show the " 'slightest evidence' of an overt act by the victim 'which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm.' " Quintana v. State , 452 So.2d 98, 100 (Fla. 1st DCA 1984)

(quoting Hawthorne v. State , 377 So.2d 780, 787 (Fla. 1st DCA 1979) ).

Once the proper predicate is laid, "all doubts as to the admission of self-defense evidence must be resolved in favor of the accused." Smith v. State , 606 So.2d 641, 643 (Fla. 1st DCA 1992). "The right to testify includes the right to testify fully, without perjury, to matters not precluded by a rule of evidence." Wilson v. State , 12 So.3d 292, 297 (Fla. 4th DCA 2009).

Evidence of the victim's prior violent act of beating up Bazini, was relevant, and admissible, and erroneously excluded. The issue was preserved for appellate review.

There are two distinct pieces of evidence that should have been admitted:

(1) The defendant's testimony that he knew about the specific act of violence was admissible and relevant to show "the reasonableness of the defendant's apprehension to support a self-defense claim." State v. Smith , 573 So.2d 306, 318 (Fla. 1990).
(2) Bazini's testimony about the violent act was admissible and relevant to corroborate the defendant's testimony. Id.

We reject the State's argument that the issue was not preserved because defense counsel only provided the court with a modicum of information regarding the desired testimony, and did not proffer the specific content which would have preserved the issue for appellate review.

We find Woodson v. State , 483 So.2d 858 (Fla. 5th DCA 1986), distinguishable. There, defense counsel sought to introduce evidence of a victim/law enforcement officer's reputation. When the court excluded the testimony, counsel did not make a proffer. The trial court was aware of the "general thrust and content" of the expected testimony because counsel told the court that he wanted to establish the officer's "harassment of people in doing this kind of thing." Id. at 859. The appellate court found the proffer insufficient because the defendant failed to show the "relevancy and materiality" of the anticipated testimony. Id.

In contrast, here, in support of the State's motion in limine, the prosecutor told the court of the content of Bazini's testimony - that the victim hit Bazini three times in the head. Statements of counsel can constitute a sufficient proffer. Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 104.3 (2018 ed.). As for the defendant's anticipated testimony, he was placed on the stand outside of the presence of the jury and testified on the record about the incident. Sufficient to show the relevancy and materiality of the excluded testimony, these proffers were adequate to preserve the issue for appellate review.

Here, Farrell testified to the "overt act" necessary for admission of evidence of the victim's prior violent act by saying that the victim took the defendant's loaded Smith and Wesson 40-caliber automatic handgun and approached the defendant while brandishing it. Such conduct by the victim just prior to the shooting could be reasonably regarded as placing Farrell in imminent danger. See Quintana , 452 So.2d at 100. The defendant established the relevance of the prior violent act by establishing that he had knowledge of the incident because he was present at the time it occurred. Finally, Farrell established the materiality of the incident by testifying that the victim committed a violent act against Bazini a few days before he was killed. The defendant thus laid an adequate foundation for the admission of the evidence. "[A]ll doubts as to the admission of self-defense evidence must be resolved in favor of the accused." Smith , 606 So.2d at 643 ; see also Wilson v. State , 971 So.2d 963, 965 (Fla. 4th DCA 2008) (reversing where the defendant laid the proper predicate for admission of evidence of the victims' prior violent acts and the jury convicted the defendant without hearing any evidence of the history between the defendant and the victims); Grace v. State , 832 So.2d 224, 226 (Fla. 2d DCA 2002) (where the defendant asserted self-defense and laid the proper predicate for admission of evidence of the victim's prior violent acts, exclusion of the evidence was reversible error).

Finally, we conclude that the exclusion of evidence of the victim's prior violent act was not harmless error. This court may reverse a trial court's judgment excluding evidence "when a substantial right of the party is adversely affected." § 90.104(1), Fla. Stat. (2017). "When a defendant's sole defense is self-defense, it may be prejudicial error to exclude competent evidence supporting that defense." Mohler v. State , 165 So.3d 773, 775 (Fla. 2d DCA 2015) ; see also Hughes v. State , 36 So.3d 816, 817 (Fla. 1st DCA 2010) ("Given that Appellant's entire case rested on the theory of self-defense, we are unable to say that the error in excluding the testimony regarding his knowledge of his girlfriend's prior acts of violence had no effect on the jury's verdict despite the fact that the jury heard testimony about some of the acts."); Smith , 606 So.2d at 643-44 ("Considering the nature of the evidence in this case, especially the conflicts between the theories offered by the two sides and the fact that the erroneously excluded evidence went to appellant's only defense, the error must be considered harmful.").

Here, neither the defendant nor the eyewitnesses to the shooting were paragons of probity. As discussed above, Farrell's testimony was relevant to show that his apprehension of the victim was reasonable. Bazini's testimony was relevant to corroborate the defendant's testimony that the violent incident occurred. In closing argument, the prosecutor highlighted the absence of any testimony that corroborated the defendant's claim that the victim was violent:

The only person that testified, remember, that [the victim] was violent and aggressive was the defendant. He had an interest in the outcome of the case. He is a two-time convicted felon.
Jacqueline Hutchinson, Nicole Bazini. Both testified and were consistent that [the victim] when he used drugs was not aggressive, was not violent. He was euphoric, irritable, not aggressive and not violent.

Where a defendant's entire defense hinges on self-defense, "the reasonableness of the apprehension in the mind of the defendant at the time of the slaying" is a crucial fact. Williams , 252 So.2d at 247. We cannot say that "there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

Reversed and remanded for a new trial .

Taylor and Levine, JJ., concur.

      Farrell also challenges the exclusion of an incident where the victim pulled a gun on Hutchison. Defense counsel did not proffer evidence that Farrell knew about this prior violent act, so the necessary predicate was not laid to establish the relevancy of the testimony. See Singh v. State , 36 So.3d 848, 851 (Fla. 4th DCA 2010) (no error excluding prior violent act evidence where there was no testimony that the defendant knew of the specific prior violent act); Covington v. State , 302 So.2d 483, 484 (Fla. 2d DCA 1974) (no error excluding evidence of victim's prior violent acts that were unknown to the defendant).


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Racquel SCHOT, Appellant, v. Kevin SCHOT, Appellee.
    No. 4D18-1607
    District Court of Appeal of Florida, Fourth District.
    [May 29, 2019]
    Jose C. Bofill of Bofill Law Group, Miami, for appellant.
    Kenneth A. Gordon and Brent V. Trapana of Brinkley Morgan, Fort Lauderdale, for appellee.
   Levine, J.

The wife appeals a supplemental final judgment modifying a parenting plan. We affirm that part of the judgment that gives the husband equal timesharing and ultimate decision-making for healthcare and education decisions. However, we reverse the other parts of the judgment that contain modifications that were neither pled nor proven.

The parties divorced in 2015. A marital settlement agreement and parenting plan were incorporated into the final judgment of dissolution. The husband moved for modification, seeking ultimate decision-making authority for healthcare and education as well as equal timesharing. As a basis for modification, the husband cited the "failure to thrive" diagnosis of the youngest child, the parties' disagreement over which school the children should attend, and the wife's behavior at timesharing exchanges.

The trial court granted the husband's petition for modification, finding competent substantial evidence of a material, unanticipated change. It placed particular emphasis on the circumstances surrounding the failure to thrive diagnosis and also relied on the issues surrounding the children's school and timesharing exchanges. The trial court granted the husband's requests for ultimate decision-making as to healthcare and education as well as his request for equal timesharing. However, in addition to granting the requested relief, the trial court made additional modifications to the parenting plan that were neither pled nor proven.

A trial court's order modifying a parenting plan is reviewed for an abuse of discretion. See Wade v. Hirschman , 903 So.2d 928, 935 (Fla. 2005). "However, it is well-settled that a trial court's authority and discretion in a modification proceeding is substantially more restricted than at the time of the original [parenting plan] determination." Sanchez v. Hernandez , 45 So.3d 57, 62 (Fla. 4th DCA 2010).

"[M]odification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances" and that modification is in the "best interests of the child." § 61.13(2)(c), Fla. Stat. (2018). The party seeking modification "bears an 'extraordinary burden' to satisfy the 'substantial change in circumstances' test." Sanchez , 45 So.3d at 61-62. That party must "prove more than merely an acrimonious relationship and a lack of effective communication in order to show a substantial change." Id. at 62 ; see also Bazan v. Gambone , 924 So.2d 952, 956 (Fla. 3d DCA 2006) ; Korkmaz v. Korkmaz , 200 So.3d 263, 266 (Fla. 1st DCA 2016).

The wife argues that a failure to communicate and acrimonious relationship alone are insufficient to warrant modification of custody. However, the present case involves more than a mere acrimonious relationship and lack of communication. Trial testimony showed that after the dissolution of marriage, a pediatrician diagnosed the youngest child, then six months old, with "failure to thrive" due to a failure to gain weight. The husband did not learn about the diagnosis until nearly three weeks later. Significantly, the wife did not advise the husband of the pediatrician's feeding instructions and instead told the husband not to feed the child at night.

The wife told the pediatrician that the husband did not feed the children. The wife blamed the husband for the child's failure to gain weight even though at the time of the diagnosis, the husband had exercised only three overnight visits with the child. It was undisputed that the wife took the children to doctors ninety-one times over a one-year period, including for weight checks right before and right after weekend visitations with the husband. The wife continued to bring the children in for weight checks even after the pediatrician instructed her to stop because so many weight checks were unnecessary.

The husband testified that the wife overfed the youngest child before exchanges and gave the child laxatives. When the husband picked up the children from stays with the wife, the youngest child's stomach was swollen and she would have explosive diarrhea on the car ride home. According to the husband, the explosive diarrhea stopped once he initiated modification proceedings. Notably, the trial court found that it was not a coincidence that once the husband filed his petition for modification, the youngest child stopped having explosive diarrhea and began to gain weight.

The change in circumstances due to the failure to thrive diagnosis supports modification of both timesharing and ultimate healthcare decision-making. See Kasdorf v. Kasdorf , 931 So.2d 257, 258-59 (Fla. 4th DCA 2006) (finding no abuse of discretion in awarding the husband ultimate decision-making authority over the children's medical and dental decisions "due to the acrimony between the parties primarily caused by the wife and her unnecessarily taking the children to doctors for medical treatment"). Modification is further supported by the wife's behavior at the timesharing exchanges. See generally § 61.13(3), Fla. Stat. (2018) (identifying factors to consider in determining best interests of the child). The trial court characterized the exchanges as a "circus" and stated that this "macabre environment ... was meant to enmesh the children and instigate the Father, and clearly was consuming and upsetting to the children."

The parties' inability to agree on which school the children should attend also supports modification of decision-making with respect to the children's education. See Watt v. Watt , 966 So.2d 455, 458 (Fla. 4th DCA 2007). Before the marital settlement agreement and final judgment, the following occurred: the wife unilaterally enrolled the oldest child at an unlicensed school over the husband's objection, and the child later broke her arm at the school. After the marital settlement agreement and during the pendency of the modification proceedings, the husband filed several motions regarding the children's schooling. As a result of the motions, the trial court ordered the parties to enroll the children at a particular school. The wife called the school and made it clear she had no interest in enrolling the children there. Based on the wife's behavior, the school determined that it would not be a "good fit." Subsequently, the husband had to file another motion, which resulted in another order specifying which school the children would attend because of the parties' failure to agree.

However, the modified parenting plan contained additional changes that went beyond matters related to healthcare decisions, education decisions, and timesharing. The husband's pleadings did not request these changes, nor did the husband present evidence on these issues. The United States and Florida Constitutions guarantee the right to due process. U.S. Const. Amend. 14 ; Art. I, § 9, Fla. Const. A trial court violates due process and reversibly errs when it awards relief not sought by the pleadings. McDonald v. McDonald , 732 So.2d 505, 506 (Fla. 4th DCA 1999) ; see also Wallace v. Wallace , 605 So.2d 504, 505 (Fla. 4th DCA 1992) ("Because the wife's motion did not request the relief awarded, and the wife submitted no evidence on this issue, it was error to award such relief.").

As such, we reverse the modifications, deletions, and additions to the parenting plan that were neither pled nor proven at trial. We affirm the modifications as to healthcare decisions, education decisions, and timesharing.

Affirmed in part, reversed in part, and remanded.

Taylor, J., and Rowe, Cymonie, Associate Judge, concur.


author: Conner, J.

text:
    Mark Joel FASSY, Appellant, v. The BANK OF NEW YORK MELLON, successor by merger to the Bank of New York as Successor in Interest to JPMorgan Chase Bank NA as Trustee for Structured Asset Mortgage Investments II Inc., Bear Stearns Alt-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9, Appellee.
    No. 4D18-1548
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Mysha F. Browning and Kendrick Almaguer of The Ticktin Law Group, Deerfield Beach, for appellant.
    Brandi Wilson of DeLuca Law Group, PLLC, Fort Lauderdale, for appellee.
   Conner, J.

Mark Joel Fassy ("the Borrower") appeals the trial court's order denying his motion for attorney's fees and costs after he successfully obtained an involuntary dismissal of the Bank of New York Mellon's ("the Bank") mortgage foreclosure complaint. The case proceeded to a nonjury trial. After the Bank presented its evidence, the Borrower moved for involuntary dismissal, arguing a lack of standing at the time suit was filed. The trial court entered a written order granting the motion, simply stating that the "case is involuntarily dismissed." However, it is clear from the portion of the trial transcript addressing the motion for involuntary dismissal that the trial court agreed with the Borrower's arguments that the Bank failed to prove standing at the time suit was filed.

After the trial court dismissed the case, the Borrower moved to tax costs and attorney's fees. The trial court entered an order denying both the motion for fees and the motion for costs. We affirm the denial of the fee motion without discussion. We reverse the denial of the motion for costs.

We reject the Bank's argument that the Borrower's arguments on appeal regarding costs are not preserved. The Borrower's motion specifically referenced Florida Rule of Civil Procedure 1.420 (albeit in the context of trying to obtain an award of attorney's fees as an element of costs).

Rule 1.420(d) clearly provides that "[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs." Fla. R. Civ. P. 1.420(d) (emphasis added). In the instant case, the record is clear that the trial court granted an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) after the Bank completed its presentation of evidence in a nonjury trial. "Because the case was involuntarily dismissed, the homeowner is entitled to taxable costs [under rule 1.420(d) ]." Torres v. Bank of N.Y. , 252 So. 3d 274, 274 (Fla. 4th DCA 2018). Similar to the situation in Torres , "any costs awardable to the homeowner flow from rule 1.420 and not from the subject mortgage and/or note." Id.

We affirm the trial court's denial of the motion for attorney's fees. We reverse the trial court's denial of the motion for costs and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., and May, J., concur.


author: Per Curiam.

text:
    Edna CIVIL, Appellant, v. Valery V. CIVIL, Appellee.
    No. 4D18-3217
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Edna Civil, Loxahatchee, pro se.
    No appearance for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150 (Fla. 1979).

Gross, Taylor and Levine, JJ., concur.


text:
    Kenneth BROOKINS, Sr., Appellant, v. Linda BROOKINS, Appellee.
    No. 4D18-3486
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Andrew H. Rappeport of Andrew H. Rappeport, P.A., Bay Harbor Islands, for appellant.
    No appearance for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150 (Fla. 1979).

Warner, Forst and Kuntz, JJ., concur.


text:
    Russell M. CUCIAK, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-437
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Tim Bower Rodriguez of Tim Bower Rodriguez, P.A., Tampa, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals the denial of his pro se motion to withdraw plea after sentencing. Because the trial court failed to appoint conflict-free counsel at a critical stage of the proceedings, we reverse.

Appellant was charged in two separate cases with two counts of felony driving under the influence, possession of marijuana, and possession of paraphernalia. Appellant entered a negotiated plea and received five years of probation. Defense counsel moved to withdraw from the case and, within thirty days of sentencing, appellant filed a pro se motion to withdraw plea and appoint counsel. The trial court granted defense counsel's motion to withdraw from representation. Subsequently, the trial court ordered the state to respond to the pro se motion to withdraw plea. After receiving the state's response, and while appellant was unrepresented by counsel, the trial court summarily denied the motion to withdraw plea. This appeal ensues.

Appellant argues that the trial court erred in denying his motion to withdraw plea without first appointing him conflict-free counsel. He asserts that a motion to withdraw plea proceeding is a critical stage at which criminal defendants enjoy the right to counsel.

"[M]ixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue." Connor v. State , 803 So. 2d 598, 605 (Fla. 2001).

Florida Rule of Criminal Procedure 3.170(l ) provides that a defendant may file a motion to withdraw plea within thirty days after sentencing on certain specified grounds. Florida law recognizes "the thirty-day window provided in rule 3.170(l ) is a critical stage of the criminal proceedings" during which the defendant is entitled to the "guiding hand of counsel to assist in preparing the initial motion to withdraw the plea." Schriber v. State , 959 So. 2d 1254, 1257 (Fla. 4th DCA 2007) (citing Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999) ).

In Stephens v. State , 141 So. 3d 701 (Fla. 4th DCA 2014), the defendant filed a pro se motion to withdraw plea after sentencing. After counsel withdrew from representation, the trial court summarily denied the motion to withdraw plea. This court found that the trial court erred in considering the defendant's motion without first appointing conflict-free counsel because "[a] motion to withdraw plea is considered a critical stage of a criminal proceeding, and thus a defendant is entitled to counsel." Id. at 702. In a footnote, this court noted that "[h]ad [the defendant's] counsel not withdrawn, our analysis would be different." Id. at 702 n.1.

Applying the law to the facts of this case, we conclude that the trial court erred in considering appellant's motion to withdraw plea without first appointing conflict-free counsel. As such, we reverse and remand for "the trial court to appoint conflict-free counsel to assist [appellant] in drafting his motion. The trial court may then determine whether to summarily deny the motion or to hold an evidentiary hearing." See id. at 702.

Reversed and remanded .

Damoorgian, Levine and Klingensmith, JJ., concur.

      As in Stephens , we note that our analysis would have been different had appellant been represented by counsel at the time of the denial of his motion to withdraw plea.


text:
    Rand HOCH, Appellant, v. Bruce E. LOREN, Kyle Ohlenschlaeger, Esq., and Bruce E. Loren, P.A., d/b/a Loren & Kean Law, Appellees.
    No. 4D18-1407
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    W. Trent Steele of Steele Law, Hobe Sound, for appellant.
    Douglas M. McIntosh and Aleida M. Mielke of McIntosh, Sawran & Cartaya, P.A., Fort Lauderdale, and Michael I. Kean of Loren & Kean Law, Palm Beach Gardens, for appellees.
   Gross, J.

The narrow issue in this case is whether an attorney's cease and desist letter to an opposing party is "published" for the purpose of a defamation action when the attorney sends a copy of the letter to his client. We affirm the order granting the motion to dismiss with prejudice because sending the letter to the client did not amount to a "publication" under the law of defamation.

Appellees are attorneys who were retained by the board of directors of a condominium association to deal with appellant, Rand Hoch, a unit owner at the condominium who was unhappy about certain decisions made by the board. The attorneys sent Hoch a cease and desist letter and sent a copy to their "client." Hoch took offense at the content of the letter and sued the attorneys for defamation. The circuit court dismissed the case for failure to state a cause of action, ruling that the complaint "fail[ed] to allege publication to a third party." The court wrote:

The Court finds that publication of the letter to [the plaintiff] and the firm's client as reflected in the December 20, 2016 letter and as plead in the Amended Complaint, is not publication to a third party as a matter of law .... The Court is persuaded by the case law submitted by the Defendants, particularly American Airlines v. Geddes , 960 So. 2d 830 (Fla. 3d DCA 2007).

Defamation is defined as "the unprivileged publication of false statements which naturally and proximately result in injury to another." Wolfson v. Kirk , 273 So. 2d 774, 776 (Fla. 4th DCA 1973). "Publication of defamatory matter is communication of the statement to a third person." Granda-Centeno v. Lara , 489 So. 2d 142, 143 (Fla. 3d DCA 1986). "There may be publication to any third person." W. Prosser & W. Keeton, The Law of Torts § 113, at 798 (5th ed. 1984); see also Tyler v. Garris , 292 So. 2d 427, 429 (Fla. 4th DCA 1974) (the only requirement is that "the defamatory matter must have been communicated to some third person in order for same to be actionable.").

That said, Florida courts have recognized that certain communications, even though apparently made to "third persons," are not "published" for the purpose of stating a defamation cause of action. To reach this conclusion, courts have employed the legal fiction that the party hearing or seeing the purported defamation is so closely connected with the potential defamation plaintiff or defendant that they merge into a single entity, so there is no publication to a "third person" necessary to the cause of action.

First, Florida courts have found no publication where a corporation is sued for defamation and the defamatory statement was made by one managerial employee of the corporation to another. "When the entity alleged to have committed the defamation is a corporation, the courts have held that statements made to corporate executive or managerial employees of that entity are, in effect, being made to the corporation itself, and thus lack the essential element of publication." Am. Airlines, Inc. v. Geddes , 960 So. 2d 830, 833 (Fla. 3d DCA 2007). In Geddes , the jury found that American Airlines had defamed an employee while investigating misconduct. The third district reversed the verdict, holding:

All communication between American executive/managerial employees are considered to be the corporation talking to itself, and, could not be the basis for any defamation claim because they lacked the essential element of publication to a third party.

Id. at 834.

Second, Florida courts have found no publication when a defamatory statement about a plaintiff corporation is made to a managerial employee of the corporation. In Advantage Pers. Agency, Inc. v. Hicks & Grayson, Inc. , 447 So. 2d 330, 331 (Fla. 3d DCA 1984), a corporation could not maintain a cause of action for defamation where the defamatory statement was communicated to "a corporate executive or managerial employee" of the corporation.

In such a case, the statements are, in effect, being made to the management of the corporation and thus to the corporation itself in the person of one of its executive or managerial employees. The corporation has no cause of action for slander under these circumstances as the essential element of publication to a third party is lacking.

Id. Stated differently, a statement to an executive/managerial employee of a corporation is a statement to the corporation itself; the corporation cannot maintain a cause of action for defamation because the only communication was to the corporation itself - there was no publication to the requisite third person.

Third, Florida courts have found no publication where the defamatory statement is made to the plaintiff's attorney. In Maine v. Allstate Ins. Co. , 240 So. 2d 857, 858 (Fla. 4th DCA 1970), we held that statements made to the plaintiff's attorney were not published to a third party for purposes of a defamation claim. See also Gomberg v. Zwick, Friedman & Goldbaum , P.A. , 693 So. 2d 1064, 1065 (Fla. 4th DCA 1997) ("[S]ending the letter to Feinberg did not constitute publication because Feinberg acted as appellant's attorney and received the correspondence on his behalf.").

All three of these situations arose in the context of an agency relationship where the interests of the principal and agent were unified, so that statements to an employee or agent of the principal did not constitute statements to a third party, a necessary element of defamation. Jaar v. University of Miami , 474 So. 2d 239, 245 (Fla. 3d DCA 1985) (stating the general rule that an "employer or principal is vicariously liable for negligent acts of its employee or agent committed within the course and scope of that employment or agency relationship."). "Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent." Goldschmidt, M.D. v. Holman , 571 So. 2d 422, 424 n.5 (Fla. 1990).

In an attorney-client relationship, the attorney is an agent and the client is the principal. "An attorney acts as the client's representative, and representations made to the attorney are representations made to the attorney's client." Cruise v. Graham , 622 So. 2d 37, 39 (Fla. 4th DCA 1993). "Generally, an attorney serves as agent for his client; the attorney's acts are the acts of the principal, the client." Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A. , 537 So. 2d 1134, 1135 (Fla. 3d DCA 1989). Because their interests are so unified, a statement that the attorney makes to his or her client as part of the attorney-client relationship is analogous to the situations presented in Geddes , Hicks & Grayson , and Maine , where there was no publication to a third party because the communication was tantamount to the principal "talking to itself." Geddes , 960 So. 2d at 834 ; see also Woody v. Krueger , 374 N.W. 2d 822, 825 (Minn. Ct. App. 1985) (affirming a summary judgment for defendant, court stated that an attorney did not "publish the alleged defamatory letter" outside of the "protected attorney-client communication").

For these reasons we affirm the final order of the circuit court. We affirm on the cross-appeal without further comment.

Taylor and Ciklin, JJ., concur.


text:
    K.D.G., INC. d/b/a Wildcat, Appellant, v. WESTFIELD INSURANCE COMPANY, a foreign corporation, and Cohen Dania Beach Hotel, LLC, a foreign limited liability company, Appellees.
    No. 4D18-3314
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Michael J. Yates of the Law Offices of Michael J. Yates, P.L., Miami, for appellant.
    Alex P. Rosenthal, Amanda Jassem Jones, and Rhiannon Sforza-Flick of Rosenthal Law Group, Weston, for appellees.
   Per Curiam.

Affirmed . See Lee v. All Fla. Constr. Co. , 662 So. 2d 365 (Fla. 3d DCA 1995).

Damoorgian, Levine and Kuntz, JJ., concur.


author: EMAS, J.

text:
    Tugend DEMIR, Appellant, v. Georg SCHOLLMEIER, Appellee.
    No. 3D17-2578
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018 Rehearing Denied February 19, 2019
    Light & Gonzalez, PLLC, and Gregory Light (Plantation), for appellant.
    Fowler White Burnett, P.A., and Susan H. Aprill (Fort Lauderdale) and Alexandra L. Tifford, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Tugend Demir, the defendant below, appeals from an order denying his motion to vacate a default final judgment entered against him in the amount of $490,551.52. He argued below, and here on appeal, that because the trial court never acquired personal jurisdiction over him, the subsequent default final judgment was void and not merely voidable. We agree.

Georg Schollmeier, the plaintiff below, was unable to personally serve defendant, and thereafter constructively served defendant by publication under section 49.011. However, and as plaintiff commendably concedes, substituted service by publication under section 49.011 is not authorized for this type of action, which sought a money judgment premised on an alleged breach of contract, breach of fiduciary duty, and breach of statutory duty of loyalty and care. See Drury v. Nat'l Auto Lenders, Inc., 83 So.3d 951 (Fla. 3d DCA 2012).

In the instant case, as in Drury,

because a personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law, the service attempted in this case also is constitutionally deficient. Service by publication confers only in rem or quasi in rem jurisdiction upon a trial court. A personal money judgment necessitates in personam jurisdiction over the defendant.

Id. at 952 (citing Zieman v. Cosio, 578 So.2d 332, 332-33 (Fla. 3d DCA 1991) ) (additional citations omitted). See also Bedford Comput. Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla. 1986) (holding: "If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law"); New England Rare Coin Galleries, Inc. v. Robertson, 506 So.2d 1161, 1162 (Fla. 3d DCA 1987) (reversing order denying motion to vacate default judgment and holding that service of process by publication under section 49.011 was not authorized for an action seeking damages for breach of contract, breach of warranty, fraud and negligent misrepresentation; such service failed to acquire personal jurisdiction over defendant, rendering subsequent default and default judgment void).

It is well settled: "Where substitute service of process is used, strict compliance with the statutes governing this form of service is essential to obtaining valid personal jurisdiction over the defendant(s)." Fed. Nat. Mortg. Ass'n v. Fandino, 751 So.2d 752, 753 (Fla. 3d DCA 2000), and cases cited. We recently explained the consequences flowing from a plaintiff's failure to strictly comply with statutes governing substitute service of process:

The party seeking to establish jurisdiction through constructive service has the burden to establish the validity of service of process. Moreover, because lack of personal service raises due process issues, the plaintiff seeking constructive service must strictly comply with the requirements of Chapter 49 of the Florida Statutes. Therefore, the statute is strictly construed against the plaintiff seeking service under Chapter 49, and absent strict compliance with the statute, service is improper and any resulting proceeding or judgment is void .

Castro v. Charter Club, Inc., 114 So.3d 1055, 1059 (Fla. 3d DCA 2013) (emphasis added) (citations omitted). See also Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1975) (holding that constructive service of process by publication under section 49.011 was void in an action for damages arising out of an alleged breach of contract).

Although a trial court's denial of a rule 1.540 motion is ordinarily reviewed for an abuse of discretion, "[i]f it is determined that the judgment entered is void, the trial court has no discretion, but is obligated to vacate the judgment." Horton v. Rodriguez Espaillat y Asociados, 926 So.2d 436, 437 (Fla. 3d DCA 2006) (quoting Dep't of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992) ). Because the default final judgment entered in this case was void and not merely voidable, the trial court erred in denying the motion to vacate that final judgment. We therefore reverse the trial court's order and remand with directions to enter an order vacating the default final judgment and for further proceedings consistent with this opinion.

      Although plaintiff conceded on the merits that substitute service failed to acquire personal jurisdiction over defendant, plaintiff nevertheless contends that defendant failed to properly preserve the issue below and thus waived it on appeal. We reject this contention. Further, even if not properly preserved, plaintiff's failure to acquire personal jurisdiction over defendant, rendering the subsequent judgment void, can be raised as fundamental error on appeal. Kitchens v. Nationstar Mortg., LLC, 189 So.3d 355 (Fla. 4th DCA 2016). See also Falkner v. Amerifirst Fed. Sav. and Loan Ass'n, 489 So.2d 758 (Fla. 3d DCA 1986) (explaining that a void judgment is a legal nullity, deemed never to have had any legal force and effect, and may be attacked at any time); Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So.2d 658 (Fla. 2d DCA 2007) ; Fisher v. State, 840 So.2d 325 (Fla. 5th DCA 2003) ; M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000). Finally, and given plaintiff's concession, no purpose would be served in remanding the cause for the trial court to consider the issue anew. See New England Rare Coin Galleries, Inc. v. Robertson, 506 So.2d 1161 (Fla. 3d DCA 1987).

      Because we reverse on this ground, we do not reach the merits of the additional points raised in this appeal.


author: PER CURIAM.

text:
    Winfred JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-912
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before SCALES, LUCK, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Seese v. State, 955 So.2d 1145 (Fla. 4th DCA 2007).