text:
    Douglas HERNANDEZ-MOREL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1713
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jose G. SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2376
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-313
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Raymond RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-93
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    R.S.P., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-1325
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Josue CARIUS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1218
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lawrence SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-742
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larry Lorenzo O'BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-354
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nadia VERDONI, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-374
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kervins BONHUER, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-790
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Keith SARJEANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-314
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert MCQUAIG, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-355
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wisnia ETIENNE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D19-441 & 4D19-442
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard Bryson MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-90
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jimmy Jerome RAYE, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-686
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jermaine HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-905
    District Court of Appeal of Florida, Fourth District.
    May 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.M., the mother, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, and Guardian Ad Litem, Appellee.
    No. 4D19-646
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Peter Halilu OYIBO, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-980
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Willie CLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-264
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wisnia ETIENNE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D19-333
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason D. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-803
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nebuchadnezzar WRISPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-475
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles DEVITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-108
    District Court of Appeal of Florida, Fourth District.
    May 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wayne WARNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1744
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 7, 2019 Rehearing Denied June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joseph M. DENNIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3707
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Branden BANKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1634
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 4, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Melanie BARNES and Tony Barnes, Appellants, v. BENNY'S BAR, LLC. and Grace Ohana, LLC., Appellees.
    Case No. 5D18-647
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 4, 2019 Rehearing Denied June 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jontrell Vernod JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1933
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose Eduardo GARAY-MEJIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3621
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 21, 2019 Rehearing Denied June 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jermaine D. JENNINGS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-898
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Diondre D. WEEKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-443
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel Alan BIRO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-4015
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Eugene BARNES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-1055
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Levi JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3561
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Timmy Lee COBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-980
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antwan JORDAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2805
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bobby Lee SAVIORY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-140
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Reggie HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-117
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Peter Anthony MARUN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2848
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Javier ENRIQUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-354
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeramy GRAHAM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-292
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Randolph II PRICE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3956
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terron RAWLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3782
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kevin Javon RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2952
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Andrew W. THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1963
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Julian Christian MCINTOSH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3069
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Xavier CARROLL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2047
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Z.N., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3525
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Emmanuel J. ST. NATTIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-557
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Casey SEAMAN, Appellant, v. Allison L. SEAMAN, Appellee.
    Case No. 5D18-3030
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    IN RE: COMMITMENT OF Oney STEPHENSON, Appellant,
    Case No. 5D18-3905
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dudley ELLIOTT, Appellant, v. State of Florida and DEPARTMENT OF CORRECTIONS, Appellees.
    Case No. 5D19-88
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Wade Dante JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3970
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sherri Lynn GRETEMAN, Appellant/Cross-Appellee, v. Laura BREISCH n/k/a Laura M. Ritter, Appellee/Cross-Appellant.
    Case No. 5D18-2051
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Diana WILLIAMS, Appellant, v. Marc LAKIN, Appellee.
    Case No. 5D18-1724
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shawn MCCLARY, Appellant, v. TT OF LONGWOOD, INC. d/b/a Cory Fairbanks Mazda, Willie Wright and Brian Tokarcyzk, Appellees.
    Case No. 5D18-1496
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    K.R.N., Mother of M.N. a/k/a M.K. and J.K., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3341
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    A.S., Father of O.W. and A.W., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D19-404
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    L.W., Mother of O.W. and A.W., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D19-575
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sherman BALCH, Appellant, v. PENNYMAC LOAN SERVICES, LLC, Stephen Preston, Gioconda Del Socorro Flores, Shingle Creek Reserve At the Oaks Homeowners Association, Inc. and the Oaks Master Property Homeowners Association, Inc., Appellees.
    Case No. 5D18-3171
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roderic BOLING, Appellant, v. WFTV, LLC., WFTV, Inc., and Todd Ulrich, Appellees.
    Case No. 5D18-1659
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Damoorgian, J.

text:
    Eric Carl FISCHER, Appellant, v. Angela Doris FISCHER, Appellee.
    No. 4D18-1635
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellant.
    Kevin M. Rollin of Napier & Rollin, PLLC, Vero Beach, for appellee.
   Damoorgian, J.

Eric Fischer ("Former Husband") appeals the trial court's final judgment dissolving his marriage to Angela Fischer ("Former Wife"). Although Former Husband raises several issues on appeal, we find merit in only two of his arguments, namely that the trial court (1) erroneously included a depleted asset in the equitable distribution scheme and (2) awarded Former Wife attorney's fees without making the requisite findings as to the amount of fees.

The parties were married in 1985 and Former Wife filed her petition for dissolution of the marriage in 2016. In her petition, Former Wife asked the trial court to determine which of the parties' assets were marital and to equitably distribute those assets. Included amongst those assets was a 1985 Corvette. Former Wife also requested attorney's fees in her petition based on her need for fees and Former Husband's ability to pay.

Prior to trial, Former Wife filed with the court an equitable distribution schedule wherein she listed the value of the Corvette at $ 5,000. At the ensuing trial, Former Husband testified that he sold the Corvette for $ 1,500 after Former Wife filed for divorce. No testimony or other evidence was presented by either party as to why the Corvette was sold, what Former Husband did with the funds he received, or if the funds were used for a purpose unrelated to the marriage. With regard to the issue of attorney's fees, Former Wife entered into evidence the billing invoices for the services provided by her attorney which showed a total of $ 10,424 in legal fees and costs. Former Wife's attorney, who charged an hourly rate of $ 300, testified as to each of the billing entries.

In its written final judgment of dissolution of marriage, the trial court listed the Corvette as a marital asset and assigned it a value of $ 3,000. The trial court made no specific findings as to whether Former Husband intentionally dissipated that asset. The trial court also awarded Former Wife $ 5,000 in attorney's fees based on need and ability to pay. The trial court did not set forth any factual findings as to the reasonable hourly rate or reasonableness of the hours expended. This appeal follows.

With respect to the trial court's equitable distribution of the Corvette, it is well established that "it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings." Bush v. Bush , 824 So. 2d 293, 294 (Fla. 4th DCA 2002) ; accord Weymouth v. Weymouth , 87 So. 3d 30, 36 (Fla. 4th DCA 2012). Only where there is "evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court ... make[s] a specific finding that the dissipation resulted from intentional misconduct" can that dissipated asset be included within the equitable distribution. Goldstein v. Goldstein , 90 So. 3d 970, 973 (Fla. 4th DCA 2012) (quoting Roth v. Roth , 973 So. 2d 580, 585 (Fla. 2d DCA 2008) ). Here, there was no evidence of intentional misconduct by Former Husband related to the sale of the Corvette and the trial court made no findings of intentional misconduct. Therefore, the trial court erred in including the Corvette in the equitable distribution scheme.

Turning to the trial court's award of attorney's fees, it is well settled that an award of attorney's fees "must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors."

Powell v. Powell , 55 So. 3d 708, 709 (Fla. 4th DCA 2011). The fact that there is competent, substantial evidence supporting a trial court's award does not obviate the need for specific factual findings in the judgment. Id. Here, the final judgment contains no specific findings regarding the number of hours reasonably expended by Former Wife's attorney or the reasonableness of the hourly rate. The failure to make these findings requires reversal. See Baime v. Baime , 850 So. 2d 606, 606-07 (Fla. 4th DCA 2003).

Based on the foregoing, we reverse and remand with instructions for the trial court to recalculate the equitable distribution schedule without the Corvette and make the specific findings necessary to support the amount of attorney's fees awarded.

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion .

Levine and Klingensmith, JJ., concur.

      On appeal, Former Wife correctly concedes that based on existing case law the Corvette should not have been included in the final equitable distribution scheme and it was inconsistently valued in the final judgment.

      We reject Former Wife's argument that Former Husband waived this issue because he failed to draw the error to the attention of the trial court in his motion for rehearing. See Guardianship of Halpert v. Rosenbloom , 698 So. 2d 938, 940 (Fla. 4th DCA 1997).


author: May, J.

text:
    Neemias RAMIREZ RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1035
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The importance of correctly instructing the jury on the elements of a crime is raised in this appeal of the defendant's conviction and sentence on two counts of sexual battery on a person less than twelve years of age. He argues, and we agree, that the court erred in its instructions to the jury. We reverse and remand the case for a new trial.

In an Amended Information, the State charged the defendant with two counts of sexual battery by "causing his penis to penetrate or have union with the butt of [the victim]." (Emphasis added). The Amended Information was unchallenged. The case proceeded to trial.

At trial, testimony revealed that the victim lived with her father and stepmother during the week and with her mother and her significant other-the defendant-on the weekend. When the stepmother picked the victim up from school following her weekend visit with her mother, she noticed the victim seemed sad and quiet. When she asked the victim if anything had happened and after some prodding, the victim began to cry and told her the defendant had inappropriate contact with her. The victim was seven years old at the time.

After talking to the victim, the stepmother told the father, who called the police. The next day the father and the stepmother took the victim to the clinic to be examined.

By the time of trial, the victim was ten years old. She had difficulty remembering things. Suffice it to say, the victim testified about the defendant's actions, but indicated the inappropriate contact was with her "butt." And, she was inconsistent in her description of what precisely happened.

The detective testified that he contacted the defendant immediately after the victim's child protection team ("CPT") interview. The defendant voluntarily went to the police station where the detective advised him he was not under arrest, was free to leave at any time, and read him his Miranda warnings. The defendant agreed to talk. The defendant initially denied any wrongdoing, but eventually admitted inappropriate contact. His testimony was inconsistent on precisely what happened.

The parties discussed the jury instructions with the court before proceeding to closing arguments. The defendant did not object to the State-prepared instructions but requested a lesser included offense instruction. Regarding the elements of the crime, the court instructed the jury that: "[The defendant] committed an act upon [the victim] in which the sexual organ of [the defendant] penetrated or had union with the butt of [the victim]." (Emphasis added). The instructions further defined union as contact.

The jury returned a guilty verdict on both counts. The court sentenced the defendant to life on both counts. From his conviction and sentence, the defendant now appeals.

The defendant first argues the trial court erred in instructing the jury on the elements of sexual battery by using the word "butt" rather than anus. He argues this amounted to fundamental error. The State responds the trial court did not fundamentally err in using the informal term "butt" rather than the statutory term anus because the totality of the circumstances showed the victim used "butt" to refer to her anus.

" 'Generally speaking, the standard of review for jury instructions is abuse of discretion,' but that 'discretion, as with any issue of law is strictly limited by case law.' " Krause v. State , 98 So. 3d 71, 73 (Fla. 4th DCA 2012) (citation omitted). Where a party fails to object to the jury instructions, we must determine if the error is fundamental. Barnett v. State , 121 So. 3d 643, 646 (Fla. 4th DCA 2013).

The defendant did not object to the jury instructions during the charging conference. He only requested a lesser included offense. This relegates our review to fundamental error.

"Fundamental error is error that 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' " Krause , 98 So. 3d at 73 (citation omitted). "[W]here the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict," fundamental error occurs. Haygood v. State , 109 So. 3d 735, 741 (Fla. 2013).

Sexual battery is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ...." § 794.011(1)(h), Fla. Stat. (2015). "Union permits a conviction based on contact with the relevant portion of anatomy ...." Richards v. State , 738 So. 2d 415, 418 (Fla. 2d DCA 1999). In short, union means contact.

Tirado v. State , 219 So. 3d 146, 149 (Fla. 4th DCA 2017).

Here, the Amended information alleged in both counts that the defendant committed sexual battery by "causing his penis to penetrate or have union with the butt of [the victim]." (Emphasis added). The information cited section 794.011, which does not use the term butt .

The jury instructions tracked the language of the Amended information by using the term "butt "-rather than anus-and provided the following elements of sexual battery:

1. [The defendant] committed an act upon [the victim] in which the sexual organ of [the defendant] penetrated or had union with the butt of [the victim].
2. At the time of the offense, [the victim] was less than 12 years of age.
3. At the time of the offense, [the defendant] was 18 years of age or older.

The instructions further defined union as contact. Significantly, the instructions did not define "butt" or specify that the defendant's act must involve contact with or penetration of the victim's anus.

A review of the record establishes that the issues of "union" and "penetration" were in dispute. It also reflects the victim's testimony that referred to her "butt" even though the defendant referred to the correct anatomical term in part of his statement to law enforcement. This made the distinction between "anus" and butt or buttocks critical to the jury's consideration of the defendant's guilt. Given the instruction, and the disputed factual issues, the jury was left to deliberate and convict the defendant based on conduct less than that required by statute for the crime of sexual battery and its consequent life sentence. This is fundamental error. Haygood , 109 So. 3d at 741. For this reason, we reverse.

Reversed and remanded for a new trial.

Ciklin and Klingensmith, JJ., concur.

      Because the specific details of what occurred are unnecessary to our holding, we decline to include them in this opinion.


author: Ciklin, J.

text:
    Reginald WILLIAMS and Chanel Williams, Appellants, v. PREPARED INSURANCE COMPANY, Appellee.
    No. 4D18-692
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Melissa A. Giasi of Sivyer Barlow & Watson, P.A., Tampa, for appellants.
    Melinda S. Thornton and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for appellee.
   Ciklin, J.

In this breach of homeowners insurance contract suit, Prepared Insurance Company ("the insurance company") was unable to procure the presence of an initial witness who was listed by Reginald and Chanel Williams ("the plaintiffs") but later omitted from their witness list. The insurance company, and ultimately the trial court, placed fault on the plaintiffs and their law firm for the witness's refusal to appear for deposition. As a sanction, the trial court (1) struck the plaintiffs' pleadings, and (2) imposed sanctions on the plaintiffs' law firm for bad faith litigation. We agree with the plaintiffs that the plaintiffs and their law firm cannot be held accountable for the failure of a non-party to appear for a deposition. Additionally, the trial court failed to identify any rule or court order that the plaintiffs and their attorneys failed to obey. We reverse.

After the plaintiffs allegedly suffered damage to their home due to a broken pipe, Chanel Williams was put into contact with Ramon Rodriguez, whom she identified as a "public adjuster." The plaintiffs then retained the Strems Law Firm ("the law firm"), which sent the insurance company a letter advising of its retention and providing contact information for Rodriguez, whom the law firm identified as "our loss consultant."

The insurance company ultimately denied the plaintiffs' home damage claim based on its inability to "properly investigate" the incident. Thereupon the plaintiffs sued the insurance company for breach of contract.

Before the plaintiffs filed their trial witness list, the insurance company sought to depose Rodriguez. It issued notices of deposition duces tecum directed to both Rodriguez and an unnamed corporate representative of the company with whom Rodriguez was affiliated, Let Us Claim Consultants, Inc. Assuming that Rodriguez would appear for deposition as the corporate representative of Let Us Claim Consultants, Inc., the insurance company attempted service of Rodriguez at a Pembroke Pines address which turned out to be a UPS store. Eventually, the insurance company obtained substitute service of Rodriguez at a Miramar address discovered by the insurance company through a search of Florida Division of Corporations records.

Rodriguez did not appear for the December 2015 deposition, and based on the insurance company's motions for rule to show cause, the trial court issued orders to show cause directed to Rodriguez and "the corporate representative" of Let Us Claim Consultants, Inc. For case management purposes, the trial court directed the insurance company to re-notice the depositions and set the show cause hearing for a date after the depositions. The insurance company re-noticed the depositions for May 2016. For this deposition, the insurance company obtained substitute service of Rodriguez at the UPS store in Pembroke Pines. Rodriguez did not appear for deposition.

The insurance company moved for sanctions and to strike the plaintiffs' breach of insurance contract pleadings, alleging in part that the plaintiffs failed to appear for deposition, failed to provide discovery, and that "their own Loss Consultants have failed to appear for deposition." The trial court entered an agreed order in which it provided that the motion was granted in part and denied in part and directed the plaintiffs as a sanction to reimburse the insurance company a small amount of money. The order did not identify the portions of the motion that were granted and denied.

The litigation stretched into 2017. As the trial date approached, the plaintiffs, in January of 2017, listed an engineer/general contractor as their expert witness and asserted that he would testify as to the cost and scope of repairs necessary based on his inspection of the property and information and photographs provided by the plaintiffs. In their trial witness list, the plaintiffs also named Rodriguez as a fact witness and provided Rodriguez's Pembroke Pines address.

In June, in response to a motion to show cause, the trial court entered an order directing Rodriguez and the corporate representative of Let Us Claim Consultants, Inc. to appear for deposition within twenty days or appear before the court on July 6 to explain why they should not be held in contempt. Also in June, the insurance company moved to compel a "better address and for sanctions." The insurance company asserted that in April, the plaintiffs provided the Pembroke Pines address for Rodriguez, but the insurance company's substitute service of Rodriguez at that address, which it had come to discover was a UPS store, had not resulted in Rodriguez appearing for deposition. The insurance company further alleged that the plaintiffs' listing of a UPS store address established that they "knowingly provided an address at which personal service cannot be effectuated, rather than providing a proper service address for their witness, and have further refused to produce their witness for deposition, requiring [the insurance company] to subpoena Ramon Rodriguez." The insurance company requested the court direct the plaintiffs to "provide a proper service address for Ramon Rodriguez, or produce [him] for deposition," and it sought fees and additional costs as a sanction.

A hearing was held, during which counsel for the plaintiffs asserted that the Pembroke Pines address it provided was the address on Rodriguez's estimate and that his law firm did not realize it was an incorrect address. Plaintiffs' counsel also stated that he had conducted a Google search "last night" and found an Orlando address related to Let Us Claim Consultants, Inc.

The trial court directed plaintiffs' counsel to "provide [the insurance company] with an address within ten days from the date hereof and to call Mr. Rodriguez and say that there's a subpoena coming, and if he dodges it, then we'll take it up directly with him and he may be down here with BSO."

After the hearing, the plaintiffs and their law firm provided an Orlando address for Rodriguez. Of note, the plaintiffs also amended their witness list to omit Rodriguez.

Rodriguez's deposition was set for August 30. After unsuccessful attempts at service but before the deposition date, the insurance company moved to compel compliance, strike the plaintiffs' pleadings, and impose fees and costs as sanctions, alleging in part that the plaintiffs had "outright refused to produce Ramon Rodriguez ... the person who was disclosed on [the law firm's] Letter of Representation as an agent of the firm ... and a witness disclosed on the Plaintiff's witness list for trial." The insurance company asserted that its numerous attempts at service at the Orlando address were unsuccessful. It further asserted that the plaintiffs' law firm had not put Rodriguez on notice that he would be served at the Orlando address, as the process server's notes reflected that on one occasion, someone was home but would not answer the door, and on another occasion, Rodriguez's father told the process server that Rodriguez was working in Miami.

After the insurance company filed its motion to compel compliance, strike pleadings and impose sanctions and before the motion was heard, it obtained service on Rodriguez at the Orlando address on August 22. Predictably, Rodriguez again failed to appear. The insurance company filed a supplemental motion reciting that it served Rodriguez on August 22 and, in a separate motion, moved for an order to show cause directed to Rodriguez. In its motion, the insurance company pointed out that the plaintiffs and their law firm were arranging the scheduled deposition: "[Plaintiffs'] counsel provided a better address for Ramon Rodriguez and the deposition was coordinated and rescheduled for August 30, 2017."

Rodriguez failed to appear on August 30 and during a hearing held in early 2018, the trial court entertained the insurance company's motion to once again compel compliance, strike pleadings, and impose fees as sanctions.

Subsequently, the trial court entered a written order striking the plaintiffs' pleadings and imposing fees as sanctions against the plaintiffs' law firm. The court found that based on the letter of representation sent by the law firm to the insurance company, Rodriguez was an agent of the law firm. The court then recounted the history of the insurance company's attempts to depose Rodriguez, including its July 2017 order compelling the plaintiffs to provide another address for Rodriguez and to put Rodriguez on notice that he would be served with a subpoena. The court then held: "[The insurance company] has been attempting to obtain the deposition of witness Ramon Rodriguez, and has been prejudiced by the time, expense, and inability to prepare a proper defense at trial based on his failure to appear."

The trial court found that striking of the plaintiffs' pleadings was the only sufficient remedy, and it then addressed and applied the Kozel factors first finding that plaintiffs' counsel and thus the plaintiffs' law firm of record was willfully disobedient:

Strems Law Firm is experienced and has been handling this case since the claim was initially reported to [the insurance company]. They ... have repeatedly failed and/or refused to (1) assist [the insurance company] in obtaining the deposition of Ramon Rodriguez, despite admonitions to warn Ramon Rodriguez that ignoring or dodging a subpoena would have consequences; (2) appear for duly noticed depositions; and (3) participate in meaningful discovery as it pertains to the loss consultant who was held out to be an agent of Strems Law Firm and the Plaintiffs.

The trial court observed that plaintiffs' counsel failed to appear at the August 30, 2017 deposition and that his non-appearance indicated plaintiffs' counsel "was aware, or strongly suspected, that the deposition would not proceed." Additionally, the court made a finding that counsel had previously been sanctioned:

Although the Court has previously reserved as to the issue of the amount of fees and costs to be awarded, the Court has specifically granted a Motion to Compel Better Address and for Sanctions regarding Ramon Rodriguez. The Court has also found that Ramon Rodriguez, upon proper notice, should be compelled to come before the Court and demonstrate good cause for his failure to appear. Considering that Ramon Rodriguez has been held out as an agent of the Plaintiffs and Strems Law Firm, a sanction against him is a sanction against the Plaintiffs and Strems Law Firm.

Notably, as to the plaintiffs themselves, the trial court did not find that the plaintiffs were involved in any act of disobedience, but it observed that "the Plaintiffs[ ] retained Ramon Rodriguez as their public adjuster and failed to produce the public adjuster agreement and contract."

The trial court then found that the insurance company was prejudiced by the conduct of the plaintiffs and their law firm, as it had incurred significant fees and costs and had "been deprived of testimony by the first person who saw the loss after the Plaintiffs themselves." The court further found that the plaintiffs' counsel did not provide "reasonable justification" for "non-compliance." The court rejected the plaintiffs' and law firm's assertion that they provided all addresses they could find for Rodriguez. The trial court found that Rodriguez was an agent of the Strems law firm and summed up its findings by holding that the delay in the litigation negatively impacted the judicial administration of the case, as the matter had to be postponed. The court found that no other sanction but striking the pleadings would remedy the noncompliance. The court also imposed fees and costs, payable by the plaintiffs' law firm, for bad faith conduct.

In a separate order, the trial court granted the insurance company's second motion for better address, and it ordered the plaintiffs to provide a better address within ten days. The court ultimately entered a final judgment in favor of the insurance company.

On appeal, the plaintiffs argue that the order under our review should be reversed because the trial court failed to identify the order or rule the law firm failed to obey, erred in sanctioning them for conduct of a non-party, and made findings not supported by the record.

Analysis

" Florida Rule of Civil Procedure 1.380 governs sanctions for failure to comply with discovery orders and provides that a trial court may enter '[a]n order striking out pleadings,' " among other remedies. Precision Tune Auto Care, Inc. v. Radcliffe , 804 So.2d 1287, 1290 (Fla. 4th DCA 2002) (alteration in original); see also Fla. R. Civ. P. 1.380. A trial court's imposition of sanctions for discovery violations is reviewed for an abuse of discretion. See id. "While sanctions are within a trial court's discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is 'the most severe of all sanctions which should be employed only in extreme circumstances.' " Ham v. Dunmire , 891 So.2d 492, 495 (Fla. 2004) (quoting Mercer v. Raine , 443 So.2d 944, 946 (Fla. 1983) ). "[A] deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness." Id. (quoting Mercer , 443 So.2d at 946 ).

To ensure that a party and an attorney of record's mere negligence during the discovery process does not result in dismissal of a complaint with prejudice, the Florida Supreme Court has developed a required procedure. In Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993), the supreme court "articulated a test identifying six factors pertinent in the determination of whether a dismissal with prejudice is a warranted response to an attorney's behavior." Ham , 891 So.2d at 496. The court must consider the following:

1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id. (quoting Kozel , 629 So.2d at 818 ). "Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative." Id. (quoting Kozel , 629 So.2d at 818 ).

Finding a wholesale dismissal was the only reasonable option, the trial court entered an order striking the plaintiffs' pleadings. The order under appeal contains 29 paragraphs of factual findings which essentially recount the history of the insurance company's attempts to depose Rodriguez, and Rodriguez's continued failure to appear for deposition even after he was subpoenaed.

The closest the trial court came to identifying a discovery violation related to the plaintiffs' law firm by finding that the law firm "ha[s] repeatedly failed and/or refused to (1) assist [the insurance company] in obtaining the deposition of Ramon Rodriguez, despite admonitions to warn Ramon Rodriguez that ignoring or dodging a subpoena would have consequences; (2) appear for duly noticed depositions; and (3) participate in meaningful discovery as it pertains to the loss consultant who was held out to be an agent of [the law firm]."

As to the law firm, it appears the trial court based sanctions in part on the failure of the law firm to appear for Rodriguez's August deposition. But the court identified no authority requiring the law firm to appear. The court found that the law firm's waiver of appearance at the deposition indicated the law firm "was aware, or strongly suspected, that the deposition would not proceed," and that the law firm thus engaged in misconduct. Rodriguez exhibited a pattern of not appearing at depositions, so it was not necessarily unreasonable for the law firm to waive its appearance at the Orlando deposition. The law firm's election to not appear at the deposition does not equate to misconduct and the trial court's findings are not supported by the record.

The trial court also seemed to base sanctions on the failure of the law firm or plaintiffs to participate in meaningful discovery, but the court did not identify any discovery orders the plaintiffs violated. We have scoured the record and find nothing which would support the trial court's order or its decision to involuntarily dismiss the lawsuit.

To the extent the trial court found that the law firm failed to obey the court's order and inform Rodriguez that he was required to be available for a subpoena, the record reveals no evidence supporting such a finding.

Finally, to the extent the trial court was focused on the law firm's failure to produce Rodriguez for a deposition, the trial court did not cite to any authority requiring the law firm to do so and we ourselves are unaware of any. Rodriguez is not the type of witness a party is required to produce, such as an expert or corporate representative. Cf. State Farm Mut. Auto. Ins. Co. v. Swindoll , 54 So.3d 548, 552 (Fla. 3d DCA 2011) ; Precision Tune Auto Care , 804 So.2d at 1288. He is a fact witness. While sanctions can be based on a party's failure to provide an address for its witness, see Jones v. Publix Super Markets, Inc. , 114 So.3d 998, 1004 (Fla. 5th DCA 2012), the trial court's findings reflect that the law firm did provide a valid address-the Orlando address-and that Rodriguez was served there. The trial court did not find that the Orlando address was not provided in a timely fashion.

The trial court also erred in basing a finding of noncompliance on a determination that Rodriguez was an agent of the law firm. The original letter of representation sent by the law firm to the insurance company provided that the insurance company could speak to "Rodriguez or any of our agents" about specified topics. To the extent the letter of representation sent by the law firm to the insurance company gives the appearance of an agency relationship between the firm and Rodriguez, the evidence and record was insufficient to establish that Rodriguez's failure to appear for deposition fell within the scope of any such agency relationship.

Ironically, because the trial court's finding of a discovery violation was erroneous and unsupported by the record, there was never a need for the trial court to engage in a Kozel analysis in the first instance.

The trial court also sanctioned the plaintiffs by imposing fees and costs based on its inherent authority to award fees for bad faith litigation. The trial court's discretion to exercise its inherent authority to impose attorney's fees for bad faith conduct is reviewed for an abuse of discretion. See Goldman v. Estate of Goldman , 166 So.3d 927, 929 (Fla. 3d DCA 2015). Aside from fees based on statute, rule, or contract, trial courts have the "inherent authority ... to assess attorneys' fees for the misconduct of an attorney in the course of litigation." Moakley v. Smallwood , 826 So.2d 221, 224 (Fla. 2002). "The inequitable conduct doctrine permits the award of attorney's fees where one party has exhibited egregious conduct or acted in bad faith." Bitterman v. Bitterman , 714 So.2d 356, 365 (Fla. 1998). But the "doctrine is rarely applicable," and is "reserved for those extreme cases where a party acts 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' " Id. (quoting Foster v. Tourtellotte , 704 F.2d 1109, 1111 (9th Cir. 1983) ).

Because the trial court erred in striking the plaintiffs' pleadings based on their law firm's "failure" to produce Rodriguez for deposition, it follows that it also erred in imposing attorney's fees based on the same theory. The record does not support a finding of bad faith against the plaintiffs' law firm.

The plaintiffs also challenge the validity of the February 2018 order requiring them to provide a "better" address for Rodriguez. We agree with the plaintiffs that the trial court erred in entering the order, as the plaintiffs had already provided an address and Rodriguez was served at that address.

Based on the foregoing, we reverse and remand for further proceedings. The remaining issues raised on appeal are either moot, unpreserved, or without merit and we decline to address them.

Reversed and remanded.

Taylor and Levine, JJ., concur.

      "Public adjuster" is defined as follows:
      A "public adjuster" is any person, except a duly licensed attorney at law as exempted under s. 626.860, who, for money, commission, or any other thing of value, prepares, completes, or files an insurance claim form for an insured or third-party claimant or who, for money, commission, or any other thing of value, acts on behalf of, or aids an insured or third-party claimant in negotiating for or effecting the settlement of a claim or claims for loss or damage covered by an insurance contract or who advertises for employment as an adjuster of such claims. The term also includes any person who, for money, commission, or any other thing of value, solicits, investigates, or adjusts such claims on behalf of a public adjuster.
      § 626.854(1), Fla. Stat. (2015).

      Kozel v. Ostendorf , 629 So.2d 817 (Fla. 1993).


author: Rowe, Cymonie S., Associate Judge.

text:
    Yvonne R. SHERRER, M.D., Appellant, v. Stephanie HOLLINGSWORTH, individually, Appellee.
    No. 4D18-830
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Mark Hicks and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and John Mauro and Carol Glasgow of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Scott Schlesinger and Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale, Crane Johnstone of Johnstone Law, P.A., Fort Lauderdale, and Peter J. Somera, Jr., and Paul M. Silva, M.D. of Somera & Silva, LLP, Boca Raton, for appellee.
   Rowe, Cymonie S., Associate Judge.

After a three-week jury trial, a medical doctor appeals a multimillion-dollar verdict asserting that the trial court erred because: 1) the court improperly instructed the jury concerning informed consent, 2) the patient's counsel's conduct and improper comments during opening statement warranted a new trial, and 3) the jury award was contrary to the manifest weight of the evidence. Of these issues, we reverse only on the issue concerning informed consent.

Factual Background

Patient, Stephanie Hollingsworth, sued her doctor, Yvonne R. Sherrer, and the hospital where she was treated. In her operative pleading, the patient asserted that the doctor failed to properly treat her necrotizing vasculitis in a timely manner with the drug Cytoxan when she was a patient at the hospital. Cytoxan was the brand name for "Cyclophosphamide," a chemotherapy agent that is used to kill the cells that are driving vasculitis in patients with rheumatic diseases. The patient's sole claim against the doctor was for medical negligence. The doctor asserted an affirmative defense of informed consent. Specifically, in her defense, the doctor asserted that the patient properly executed informed consents pursuant to sections 768.46 and/or 766.103, Florida Statutes, and therefore said allegations cannot impose liability.

At the trial, the only issue tried was the negligence claim. The issue of informed consent was not tried. During the charge conference, the parties agreed to the general negligence instruction. The next day, however, the patient sought to add an instruction concerning informed consent. The patient argued that the evidence supported that the doctor's negligence could be based on the doctor's failure to give the patient sufficient information regarding Cytoxan.

The doctor objected. The doctor argued that the informed consent instruction should not be given because that issue was never raised during the trial, that theory of liability required expert testimony, and that there was no expert testimony to support the informed consent theory.

Over objection, the trial court instructed the jury as to both general negligence and informed consent. The jury found the doctor negligent, and the patient was awarded $ 15,591,619.00 in damages. This appeal followed.

Analysis

A trial court's decision to give or withhold a jury instruction is reviewed under the abuse of discretion standard of review. Barton Protective Servs., Inc. v. Faber , 745 So. 2d 968, 974 (Fla. 4th DCA 1999).

On appeal, the doctor argues that the trial court abused its discretion by giving an instruction on informed consent because the issue was not pled, tried by implied consent, or supported by the evidence. In response, the patient asserts that the informed consent issue was not properly preserved for appellate review under the two-issue rule because the doctor agreed to a general verdict form instead of requesting a special verdict form to split the general negligence claim apart from the informed consent claim.

Because a lack of informed consent theory of liability was not tried by consent or otherwise, the trial court erred in giving the instruction.

Lack of informed consent is a separate and distinct theory of negligence, different from general medical negligence. See Chua v. Hilbert , 846 So. 2d 1179, 1182 (Fla. 4th DCA 2003) (citing Florida Patient's Comp. Fund v. Sitomer, 524 So.2d 671, 675 (Fla. 4th DCA 1988), quashed on other grounds, 550 So. 2d 461 (Fla.1989) ). As the given jury instruction details, the doctrine of informed consent requires the doctor to give the patient sufficient information concerning a proposed treatment or procedure.

Here, the doctor did not propose Cytoxan as a possible treatment. Stated another way, the doctor's purported failure to offer Cytoxan to the patient had no connection with the informed consent theory of liability. The failure to propose Cytoxan is adjunct and supplement to the general negligence theory.

The trial court instructed the jury on two distinct theories of liability, general negligence and informed consent. While the doctor pled informed consent as an affirmative defense, that affirmative defense was not advanced at the trial. There was no evidence presented and, more importantly, no expert testimony concerning the latter theory. The issue of informed consent was not tried by consent. There was only one theory of negligence presented to the jury, which was supported by the general negligence instruction.

The two-issue rule does not apply here because the informed consent instruction should not have been given at all. The two-issue rule provides that when more than one issue is presented to the jury, and the jury is instructed as to all of the issues presented, without an objection to the use of a general verdict form, appellate reversal is improper without a showing of prejudice. Essentially, the rule requires that the opponent of the jury instruction must distill and highlight the erroneous instruction via the verdict form to preserve the issue on appeal. This rule is based on the premise that the appellate court must be clear that the jury's verdict was based on the erroneous instruction.

See Barth v. Khubani , 748 So. 2d 260 (Fla. 1999).

The two-issue rule applies when there are multiple theories of negligence whether offered by the plaintiff or defendant. For the two-issue rule to apply in this case, both the theory of negligence and the theory of informed consent must be pled, proven, and preserved. In Tomlian v. Grenitz, 782 So.2d 905 (Fla. 4th DCA 2001), approved in part, disapproved in part, Grenitz v. Tomlian , 858 So. 2d 999 (Fla. 2003), we made clear that the two-issue rule did not apply to single theory claims, even if multiple elements of that claim were in dispute.

With these facts, the trial court erred when instructing the jury concerning informed consent. Preservation of the error via the verdict form was not necessary because there was only one issue properly presented to the jury. Requiring the doctor to add an improper issue to the verdict form in order to preserve the error would only have served to highlight the error further.

The informed consent instruction contributed to the jury's finding the doctor negligent because it allowed the jury to find the doctor negligent even if the jury found that the doctor's decision not to administer Cytoxan fell within the standard of care. This added theory of negligence prejudiced the doctor. The prejudicial instruction warrants reversal and a new trial concerning all issues.

Reversed for new trial .

Taylor and Levine, JJ., concur.


author: Klingensmith, J.

text:
    Mary LEON, Appellant, v. Edward PENA and Soris Parajon, Appellees.
    No. 4D18-2071
    District Court of Appeal of Florida, Fourth District.
    [June 12, 2019]
    Alexander Annunziato of Wolfson Law Firm, LLP, Miami, and Douglas F. Eaton of Eaton & Wolk, PL, Miami for appellant.
    Nicole Smith of Rumberger, Kirk & Caldwell, Tallahassee and H. Jacey Kaps of Rumberger, Kirk & Caldwell, Miami, for appellees.
   Klingensmith, J.

For almost ten years, appellant Mary Leon traversed an area in her condominium complex with a broken sidewalk. She did this fully aware of the damage to the pathway, never taking special care to avoid it, and always without incident. That is, until the day she lost her footing and fell over that portion of fractured concrete. Then she sued her landlords Edward Pena and Soris Parajon for injuries from her fall, alleging failure to warn and failure to maintain the premises. The trial court granted summary judgment in favor of the landlords on all claims based on Leon's undisputed knowledge of the path's condition, its open and obvious nature, and her assumption of the risk. For the reasons set forth below, we affirm in part and reverse in part.

Leon testified at deposition that she first noticed a crack in the sidewalk when she moved into the premises almost a decade ago. This damaged section continued to deteriorate over time and gradually expanded. She admitted that the broken portion of the path was noticeably inconsistent with the rest of the well-maintained yard, that she was well aware of it the day she fell and knew there were safer alternatives than walking across that particular area.

When the landlords moved for summary judgment, Leon argued that there remained genuine issues of material fact regarding the obviousness of the dangerous condition that caused her injuries, and that the landlords breached their duty to maintain the premises because they knew about the sidewalk's condition but failed to undertake any repairs. Leon countered the motion with her own affidavit, stating she complained of the damaged pathway to the landlords, and they agreed to fix it but failed to do so. She also alleged that she offered to repair the broken section herself, but this offer was refused. While Leon admitted that she knew the pathway needed repair, she claimed she did not know of the concealed danger that caused the crack to suddenly crumble under her feet.

At the hearing, the trial court entered summary judgment in favor of the landlords and stated:

It's pretty clear from the plaintiff's affidavit, it very much establishes that this was open and obvious to the plaintiff, that it was in need of repair, that this was a damage situation, present from day one of the lease; and therefore, being open and obvious, being apparent, I think this tenant assumed that risk and they continued to walk on it, despite knowing that it was dangerous. Therefore, the motion is granted.

This appeal follows.

The standard of review for an order granting summary judgment is de novo . See Burton v. MDC PGA Plaza Corp. , 78 So. 3d 732, 733 (Fla. 4th DCA 2012).

"A landowner or occupier owes an invitee two independent duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils." Id. at 734 ; see Wolford v. Ostenbridge , 861 So. 2d 455, 456 (Fla. 2d DCA 2003) (recognizing that these two duties are "distinct"); Lynch v. Brown , 489 So. 2d 65, 66 (Fla. 1st DCA 1986) (recognizing that these two duties are "alternative"). In addition to alleging negligence based on breach of the duty to warn of the alleged dangerous condition, Leon also alleges the landlords breached their duty to maintain the premises in reasonably safe condition. The fact that Leon claims a breach of both duties is significant. See Aaron v. Palatka Mall, L.L.C. , 908 So. 2d 574, 578 (Fla. 5th DCA 2005).

The open and obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate those injuries. See id. at 576-77. In other words, the possessor of land may "assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their own senses." Krol v. City of Orlando , 778 So. 2d 490, 493 (Fla. 5th DCA 2001) ; see also Burton , 78 So. 3d at 734.

But while the obvious danger doctrine may discharge the duty to warn in certain circumstances, it does not automatically discharge the landowner's duty to maintain the premises:

The fallacy is in the premise that the discharge of the occupier's duty to warn by the plaintiff's actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from recovery by negating a landowner's or occupier's duty to invitees to maintain his premises in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v. Jones , 280 So. 2d 431 (Fla. 1973), that liability should be apportioned according to fault.

Pittman v. Volusia Cty. , 380 So. 2d 1192, 1193-94 (Fla. 5th DCA 1980) (footnotes omitted); see also Fieldhouse v. Tam Inv. Co. , 959 So. 2d 1214, 1216 (Fla. 4th DCA 2007) ("A plaintiff's knowledge of a dangerous condition ... simply raises the issue of comparative negligence and precludes summary judgment.").

In an analogous case, Lotto v. Point E. Two Condo. Corp. , 702 So. 2d 1361, 1361 (Fla. 3d DCA 1997), plaintiff tripped and fell on a cracked and partially uneven sidewalk she had walked over many times. She sued the condominium association for negligence, alleging breach of both the duty to warn of the sidewalk's dangerous condition and the duty to maintain the cracked sidewalk in reasonably safe condition. Id. The condominium association acknowledged that the particular stretch of sidewalk had been in the same cracked, deteriorated condition for years, but claimed that the sidewalk's condition was not unreasonably dangerous and was so obvious that the association had no duty to warn plaintiff. Id. The trial court granted summary judgment in favor of the condominium association. Id.

On appeal, the Third District agreed the association did not have a duty to warn plaintiff of the sidewalk's condition under the circumstances-plaintiff had walked over the same stretch of cracked sidewalk several times previously and knew of its condition. Id. at 1362. Nevertheless, the court reversed the judgment based on the duty to maintain the premises:

Here we are dealing with one of the sidewalks provided for the use of condominium residents on the condominium grounds. We think there remains a factual issue whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby.

Id. ; see also Burton , 78 So. 3d at 735 ("A pothole is not a natural condition, nor does it create a reasonable risk of harm. A pothole forms when a landowner fails to maintain the property; it is a portion of pavement that has fallen into disrepair. A pothole's obvious nature does not make it, as a matter of law, a reasonably safe condition." (citation omitted)).

As in Lotto , the trial court granted summary judgment because Leon "assumed the risk" by continuing to use the cracked pathway despite her awareness of its deteriorating condition. Leon's knowledge, however, merely raised an issue of fact as to her own comparative negligence. See Burton , 78 So. 3d at 734. While the trial court properly entered summary judgment in favor of the landlords as to the duty to warn, it erred in granting summary judgment on the issue of failure to maintain. We remand this case for further proceedings on that issue.

Affirmed in part; reversed in part and remanded.

May and Ciklin, JJ., concur.


author: PER CURIAM.

text:
    Alan FEUER, Appellant, v. Krassimir IVANOV and Robert Miller, Appellees.
    No. 3D18-0453
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Alan Feuer, in proper person.
    Robert Miller, for appellees.
    Before FERNANDEZ, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Alan Feuer appeals the trial court's order denying his motion to vacate an order of dismissal entered after Feuer failed to appear for a hearing on the court's Notice of Lack of Prosecution and Order to Appear for Hearing (the "Notice"). Feuer contends the notarized affidavit he submitted attesting to him having not received the Notice is sufficient grounds to establish that the trial court abused its discretion in denying his motion to vacate. We disagree. Feuer failed to allege any of the grounds set forth in Florida Rule of Civil Procedure 1.420(e). Accordingly, upon consideration of the record on appeal, as well as the initial brief, we summarily affirm the order on appeal pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.


author: SALTER, J.

text:
    Francesca BAZZICHELLI, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, etc., Appellee.
    No. 3D18-1497
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied MAY 29, 2019
    The AJM Law Group, P.A. and Alix J. Montes, Miami, for appellant.
    Baker, Donelson, Bearman, Caldwell & Berkowitz and Eve A. Cann (Fort Lauderdale), for appellee.
    Before SALTER, LINDSEY, and MILLER, JJ.
   SALTER, J.

The borrower/defendant in a residential foreclosure case, Francesca Bazzichelli, appeals a post-judgment order denying her "Amended Objection to Issuance of Certificate of Title [and] Motion to Vacate Amended Final Judgment and February 2017 Sale," entered in July 2018. The final judgment of foreclosure was entered in April 2014 and amended to reflect a change in the name of the plaintiff (appellee here) five months later.

Following Ms. Bazzichelli's bankruptcy proceedings and a foreclosure sale in February 2017, Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS7 ("Deutsche Bank"), moved to re-open the case to amend its name in the final judgment of foreclosure and certificate of title. Deutsche Bank alleged that the use of an erroneously-abbreviated name for Deutsche Bank in those documents had created an inadvertent title impediment affecting Deutsche Bank's sale of the property to a bona fide purchaser.

Though not denominated as such in the caption or body of the motion, the motion fits comfortably within the rule and case law applicable to the correction of "[c]lerical mistakes" in "judgments, decrees, or other parts of the record and errors therein arising from oversight or omission," which "may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders." Fla. R. Civ. P. 1.540(a) ; see also Keller v. Belcher, 256 So.2d 561, 563 (Fla. 3d DCA 1971) ("clerical mistakes include only errors or mistakes arising from accidental slip or omission and not errors or mistakes in the substance of what is decided by the judgment or order."). Name changes are permitted under Rule 1.540(a) at any time. Howard v. State, 139 So.3d 975, 977 (Fla. 4th DCA 2014).

Ms. Bazzichelli neither alleged nor proved that the amendment altered the substance of the final judgment of foreclosure or the certificate of title as to her. We also reject her further argument that she should be allowed to use the July 2018 order approving the amendment to the final judgment as a new occasion for seeking to have the entire foreclosure judgment and subsequent certificate of sale vacated. As the trial court properly ruled, any errors in the substance of the final judgment or the 2017 amendment should have been (but were not) raised on appeal from those rulings. See DeGale v. Krongold, Bass & Todd, 773 So.2d 630, 632 (Fla. 3d DCA 2000). Ms. Bazzichelli's motion to vacate was properly denied.

Affirmed.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Mirtha LEDO, etc., Appellee/Cross-Appellant.
    No. 3D17-2328
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019 Rehearing Denied June 05, 2019
    King & Spalding LLP and Scott Michael Edson (Washington, DC) and William L. Durham, II (Atlanta, GA), for appellant/cross-appellee.
    Koch Parafinczuk Wolf Susen and Justin Parafinczuk and Austin Carr (Fort Lauderdale); Burlington & Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach), for appellee/cross-appellant.
    Before SALTER, LINDSEY and MILLER, JJ.
   SALTER, J.

R.J. Reynolds Tobacco Company ("R.J. Reynolds") appeals an adverse jury verdict and final judgment in favor of Mirtha Ledo, the personal representative of the estate of her late husband, José Ledo. On cross-appeal, Mrs. Ledo contends that the trial court erred in granting a directed verdict in favor of R.J. Reynolds regarding Mrs. Ledo's claim for punitive damages. Mrs. Ledo's late husband died from laryngeal cancer in 1996. Mrs. Ledo's lawsuit was brought as an " Engle-progeny" case.

Main Appeal-Closing Argument

We affirm the jury verdict and judgment against R.J. Reynolds in the main appeal, and the denial of R.J. Reynolds' motion for a new trial. The trial court carefully considered R.J. Reynolds' objections to the allegedly "pervasive improper and prejudicial closing arguments" by Mrs. Ledo's counsel, sustaining objections when warranted, and admonishing Mrs. Ledo's counsel and providing curative instructions in some instances.

The improper statements in closing, a few instances of overenthusiasm in a two-week trial, were not "so highly prejudicial and inflammatory" that R.J. Reynolds was denied a fair trial. See Philip Morris USA, Inc. v. Cuculino, 165 So.3d 36, 39 (Fla. 3d DCA 2015). The trial court did not abuse its discretion in its rulings on the objections, motions for mistrial, and motion for new trial made by R.J. Reynolds, though applying a somewhat more deferential (federal) standard of review, see also Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094, 1104-05 (11th Cir. 2018).

Cross-Appeal: Directed Verdict on Punitive Damages Claim

Mrs. Ledo's cross-appeal of the trial court's directed verdict on her punitive damages claim is subject to a de novo standard of review. See Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011) ("A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant's case and there is no evidence to rebut it."). The jury returned a verdict form that determined "by clear and convincing evidence that punitive damages are warranted against RJ Reynolds under the circumstances of Plaintiff's design defect claim."

Before the motion for directed verdict was made in this case, the Florida Supreme Court ruled that the individual members of the class could seek punitive damages relating to the two non-intentional tort claims addressed in Engle, negligence or strict liability, in an appropriate case. See Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219 (Fla. 2016). In the present case, the trial court entered an order about two months before trial granting Mrs. Ledo's motion for leave "to plead punitive damages on her non-intentional tort claims of strict liability/design defect (Count I of the Amended Complaint) and negligence (Count VI of the Amended Complaint)." The order cited Soffer, considered the requirements imposed by section 768.72, Florida Statutes (2016), and held that Mrs. Ledo had demonstrated a reasonable basis for asserting her claim for punitive damages. The order determined that Mrs. Ledo's proffer "satisfies the legal requirements of section 768.72."

The Florida Supreme Court also held, in Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 430 (Fla. 2013), that the tobacco defendants in Engle (a group including R.J. Reynolds) were bound by the jury's "Phase I" findings in Engle regarding negligence and strict liability upon a showing that "addiction to smoking the defendants' cigarettes containing nicotine was a legal cause of the injuries alleged." The jury had ample competent, substantial evidence before it to support its verdict that Mrs. Ledo had made this case-specific showing.

Moreover, a comparison of Mrs. Ledo's (a) proffer of evidence at the time of her motion to amend her complaint to add a punitive damages claim, and (b) the evidentiary record at trial, demonstrates that she fulfilled the commitments of her proffer. The jury's verdict, like numerous other verdicts finding liability for punitive damages in Engle-progeny cases in Florida, was based on evidence that (1) a defective product, known by the manufacturers to be addictive, was intentionally and continuously introduced to consumers by the manufacturers, (2) Mrs. Ledo's husband was one of those consumers, and (3) the defective product caused her husband's cancer and death.

On the cross-appeal, therefore, we reverse and remand the order directing a verdict in favor of R.J. Reynolds on Mrs. Ledo's punitive damages claim. We reinstate the jury's finding as to liability on that claim and remand for a new trial limited solely to the amount of such damages. See Soffer, 187 So.3d at 1233.

Affirmed in part, reversed in part, and remanded for a new trial on the limited issue specified in this opinion.

      Such cases assert membership in the class of plaintiffs considered in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).

      "[T]hat all of the defendants sold or supplied cigarettes that were defective." Engle, 945 So.2d at 1277.

      Our disposition of this issue on cross-appeal makes it unnecessary to address Mrs. Ledo's other issues on cross-appeal.


author: Per Curiam.

text:
    Elizabeth CASASANTA, Appellant, v. SAILSHARE 296 LLC, and Wilson Minger Agency, Inc., Appellees.
    No. 1D17-4862
    District Court of Appeal of Florida, First District.
    April 16, 2019 Rehearing Denied June 13, 2019
    ON MOTION FOR WRITTEN OPINION
   Per Curiam.

We have before us Appellant's motion for written opinion. We grant Appellant's motion, withdraw our former opinion from December 27, 2018, and substitute this opinion in its place.

Background

Appellant challenges final summary judgment orders granted in favor of Appellees, arguing that the exculpatory clause in a lease agreement was ambiguous and therefore unenforceable, and void as a matter of public policy.

In 2015, Appellant and her husband entered into a residential lease agreement for a single-family home. Appellant inspected the property and agreed to take it in an "as-is" condition. While living on the property, Appellant brought a negligence action against Appellee Sailshare 296 LLC, the fee simple title owner of the property, and against Appellee Wilson Minger Agency, Inc., the property manager, alleging that a picket fence on the property collapsed, causing injury to Appellant.

In separate motions for summary judgment, both Appellees argued that the exculpatory clause in the lease agreement released them from liability for Appellant's injuries. The exculpatory clause at issue here reads:

The Lessee(s) acknowledge and agree that they have independently examined and inspected the premises and are fully satisfied with the condition of the cleanliness and repair. The Lessee(s) agree that they waive any claims, rights or actions against Landlord, Agent or other person or entity for any alleged failure to disclose any defects in the premises. Lessee(s) further stipulate that they are leasing the property in "As-Is" condition and that no representations as to the present condition or future repair of the premises have been made except for those agreed upon in writing either made part of this agreement or by separate instrument.

The trial court granted final summary judgment in favor of Appellees, finding that the exculpatory language clearly and unambiguously relieved them of any liability for negligence. Appellant timely appealed the trial court's orders.

Analysis

The enforceability of a pre-injury exculpatory clause that does not contain express language releasing a part of liability for negligence is reviewed de novo. Sanislo v. Give Kids the World, Inc. , 157 So.3d 256, 260 (Fla. 2015). In Sanislo , the supreme court held that "the absence of the terms 'negligence' or 'negligent acts' in an exculpatory clause does not render [an] agreement per se ineffective to bar a negligence action." Id. at 271.

The lease agreement in this case supports the trial court's decision to grant summary judgment. Appellant and her husband agreed upfront that they had independently examined and inspected the premises. They raised no complaints about the short, decorative picket fence out front. According to the lease, "no damage existed ... [and the lessees were] fully satisfied with the [property's] condition of ... repair." There was no indication, for instance, of rotting wood, missing slats, or any improper leaning or weakness with the fence. Having acknowledged no problems, lessees rented the property "As-Is" and broadly "waive[d] any claims, rights or actions against the Landlord, Agent or other person or entity for any alleged failure to disclose any defects in the premises." With these terms, we conclude that Appellant waived her claim against Appellees for failing to safely maintain, inspect, and repair a "dangerous" picket fence. See Sanislo , 157 So.3d at 271.

In addition, Appellant's injury did not arise from a defect or a dangerous condition. The fence's modest features were "as apparent to the tenant as they were to the landlord." Menendez v. Palms W. Condo. Ass'n , 736 So.2d 58, 62 (Fla. 1st DCA 1999). Rather, the accident and injury arose from Appellant's poor decision to use an insubstantial decorative fence as a seat. The three-foot fence was made with pointy, dog-eared pickets protruding from the top and was obviously not meant to support her weight. See id. at 61 (limiting the duty to correct defects or dangerous conditions to matters involving "inherently unsafe or dangerous conditions that are not readily apparent to the tenant").

AFFIRMED.

Roberts and Osterhaus, JJ., concur; B.L. Thomas, C.J., concurs in result only with opinion.

B.L. Thomas, C.J., concurring in result only.

I disagree with the majority's holding that the exculpatory clause was enforceable, but I concur with the decision to affirm because the picket fence was not a dangerous defective condition and therefore summary judgment was correctly granted to Appellees.

The Exculpatory Clause

For an exculpatory clause to be considered unambiguous and therefore enforceable, "the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away." Southworth & McGill, P.A. v. Southern Bell Tel. & Tel. Co. , 580 So.2d 628, 634 (Fla. 1st DCA 1991). In Sanislo v. Give Kids the World, Inc. , the supreme court held that "the absence of the terms 'negligence' or 'negligent acts' in an exculpatory clause does not render [an] agreement per se ineffective to bar a negligence action." 157 So.3d at 271. In Sanislo , however, although the clause did not use the word negligence, it expressly waived "any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages ... and physical injury of any kind." Id. at 261. The supreme court held that this clause was unambiguous and therefore enforceable because it had no other reasonable meaning than to bar negligence actions. Id. at 271.

By contrast, the clause at issue here does not clearly state what suits are purportedly waived, and it makes no mention of injuries caused by negligence or of injuries at all. A person of ordinary intelligence reading this clause might believe that, by agreeing to "waive any claims, rights or actions against Landlord, Agent or other person or entity for any alleged failure to disclose any defects in the premises[,]" he or she was merely waiving potential breach of contract or warranty claims for property defects. Such an interpretation is even more reasonable given that the clause was written into the section of the lease describing the lessee's obligations for damage caused to the premises; the clause speaks of "cleanliness and repair" and contrasts responsibility for damage to the property with damage incurred by "ordinary wear and tear." A lessee could therefore reasonably infer that this exculpatory clause governs his or her financial responsibility for repairs, not personal injury lawsuits.

I disagree with the majority's holding that the clause at issue is unambiguous. I would hold that the exculpatory clause could not serve as the basis for a final summary judgment.

Dangerous Defective Condition

In Menendez v. The Palms West Condominium Ass'n, Inc. , this Court held that the absence of a doorscope in an apartment door was not a defect or a dangerous condition, and that the features of the door were "as apparent to the tenant as they were to the landlord." 736 So.2d 58, 62 (Fla. 1st DCA 1999). Because there was no defect, the defendant had no legal duty to correct any defect. Id. Although this Court acknowledged a landlord's duty to protect a tenant under section 83.51, Florida Statutes, the Residential Landlord and Tenant Act, we held that the Act did not impose a duty to install doorscopes. Id.

Similarly, in Fitzgerald v. Cestari , a young child was injured when she ran through a sliding glass door. 569 So.2d 1258, 1258 (Fla. 1990). The supreme court held that the landlord of the property was "relieved from liability for failing to ascertain that the sliding glass door was not made of safety glass as required by the applicable building code." Id. at 1260. The supreme court approved the summary judgment in favor of the landlord, holding:

An ordinary sliding glass door is not the type of "dangerous condition" which a landlord is in a better position than the tenant to guard against. The presence of a sliding glass door on the leased premises was clearly apparent to the lessees who, upon taking possession, controlled the manner in which it was used.

Id. at 1261.

Here, the picket fence was clearly apparent and was not the type of dangerous condition which the landlord was in a better position than the tenant to guard against. Appellant controlled the manner in which the fence was used, see Fitzgerald , 569 So.2d at 1261, and it is a matter of common understanding that a picket fence is not designed to support the full weight of a person. See Youngblood v. Pasadena at Pembroke Lakes South, Ltd. , 882 So.2d 1097, 1098 (Fla. 4th DCA 2004) (affirming summary judgment because, as a matter of common understanding, a towel rack was not designed to support the weight of a person). Because the picket fence did not constitute a dangerous defective condition, I would affirm the trial court's orders granting summary judgment, under the tipsy coachman doctrine. See Gladden v. Fisher Thomas, Inc. , 232 So.3d 1146, 1147 n.1 (Fla. 1st DCA 2017) ("The 'tipsy coachman' doctrine allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' if there is 'any basis which would support the judgment in the record.' ") (quoting Robertson v. State , 829 So.2d 901, 906 (Fla. 2002) ).

Appellee Sailshare did not argue absence of defect in its summary judgment motion. See Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co. , 476 So.2d 1311, 1315 n.3 (Fla. 3d DCA 1985) ("the 'right for the wrong reason' appellate maxim does not apply in summary judgment proceedings where the issue was never raised in the motion for summary judgment."). However, at the time of Appellee Sailshare's summary judgment hearing, Appellee Sailshare had adopted Appellee Wilson Minger Agency's lack-of-defect argument, and the legal outcome of the issue would apply equally to both Appellees. See Bernard Marko & Assocs., Inc. v. Steele , 230 So.2d 42, 44 (Fla. 3d DCA 1970) (holding that procedural issues "in no way prejudiced" the plaintiff, "because the defendants occupied the same legal position relative to the grounds of the motion for summary judgment"). Thus, because the trial court could properly have granted summary judgment based on the lack of any dangerous or defective condition, I would affirm the orders below on that basis.


author: LINDSEY, J.

text:
    Maria LEON and Pedro Leon, Appellants, v. SUPREME CONSTRUCTION CORP., et al., Appellees.
    No. 3D17-1819
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019 Rehearing Denied July 2, 2019
    Maurice Castellanos, Ft. Lauderdale, for appellants.
    Perry & Neblett, P.A., David Avellar Neblett, Miami, and John A. Wynn, for appellees.
    Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
   LINDSEY, J.

Maria and Pedro Leon ("the Leons") appeal a final judgment entered in favor of Supreme Construction Corp. and Advance Construction and Restoration, Inc. ("Supreme and Advance"), following a jury verdict. For the reasons set forth below, we affirm.

The Leons retained the services of Supreme and Advance to provide flood restoration services at their home. In 2007, Supreme and Advance sued the Leons for non-payment. The complaint was originally filed in Broward County. The Leons moved to dismiss on the basis of improper venue, and the case was subsequently transferred to the Eleventh Judicial Circuit in and for Miami-Dade County where the Leons filed their answer and affirmative defenses.

The trial court in the Eleventh Judicial Circuit set the case for trial on July 1, 2013. The Leons moved to continue the trial on the basis that discovery was not completed. Thereafter, for various reasons, the trial court reset the trial numerous times: November 2013; June 2014; November 2014; and July 2015. The trial did no go forward on any of those dates. The docket does, however, indicate a five minute motion calendar hearing on July 1, 2015.

On May 12, 2016, the trial court signed a standard form order entitled, "Notice of Lack of Prosecution and Order to Appear for Hearing" (the "FWOP Notice"), providing notice, pursuant to Florida Rule of Civil Procedure 1.420(e), of possible dismissal of the case based on a lack of record activity for the prior ten months and setting a hearing for July 26, 2016. However, the FWOP Notice was never docketed. There is, however, a docket entry reflecting a "Notice of Unavailability" on July 25, 2016-the day before the hearing scheduled pursuant to the FWOP Notice.

On July 26, 2016, the same day of the hearing on the FWOP Notice, the trial court entered its "Order on Intent to Dismiss for Lack of Prosecution" (the "FWOP Order"), which declined to dismiss the case for lack of prosecution and ordered that the case remain pending. This order is the basis for this appeal. There is no transcript of what occurred at this hearing in the record. Further, the order does not indicate whether plaintiff and defendant, plaintiff or defendant, or neither, appeared at the hearing. Similarly, although the trial court checked the box indicating the case would remain pending-as opposed to the box indicating that the case would be dismissed for lack of prosecution-the trial court did not indicate the basis for its decision anywhere on the face of the order.

Litigation continued and the case was, once again, set for trial starting July 10, 2017, by way of the trial court's "Order Setting Jury Trial" docketed March 15, 2017. Between the date of entry of the FWOP Order and the Order Setting Jury Trial, motions and responses were filed as the parties readied the case for trial. The Order Setting Jury Trial scheduled calendar call for June 29, 2017. The Leons responded on June 28, 2017 by, once again, moving for a continuance. Then, on June 6, 2017, the Leons filed an "Emergency Motion to Stay Pending Ruling on Defendants' Motion to Vacate FWOP Order Pursuant to Fla. R. Civ. P. 1.540." The case was tried on July 10, 2017, resulting in a jury verdict in favor of Supreme and Advance. This appeal followed.

The only issue the Leons raise on appeal is whether the trial court abused its discretion in declining to dismiss the case for lack of prosecution and allowing the case to proceed. We find it did not. Relying principally on Burdeshaw v. Bank of New York Mellon, 148 So.3d 819 (Fla. 1st DCA 2014), the Leons argue the trial court had no discretion with regard to the FWOP order. They assert dismissal was mandatory because Supreme and Advance failed to establish any of the grounds set forth in Florida Rule of Civil Procedure 1.420(e). Unfortunately for the Leons, we do not know enough to reach that question based on the record before us.

Rule 1.420(e) provides as follows:

Failure to Prosecute. -- In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice , and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute. (Emphasis added.)

First, there is no record of the FWOP Notice being served on all parties as it does not appear on the Clerk's docket. So, we do not know whether all parties received notice and an opportunity to be heard at the hearing on the FWOP Notice. Second, a "Notice of Unavailability" was docketed on July 25, 2016, just one day prior to the hearing on the FWOP Notice. As a consequence of the FWOP Notice having not been docketed, there is no way to know if this filing occurred within sixty days of service of the FWOP Notice. Third, the FWOP Order does not indicate who, if anyone, appeared at the FWOP hearing, nor does it indicate the basis for the court's decision to allow the case to remain pending.

Finally, and most importantly, there is no transcript of the hearing on the FWOP Notice in the record before us. Thus, we are compelled to affirm on that basis along. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); Cudeiro v. Dep't of Revenue ex rel. Fritz, 99 So.3d 520 (Fla. 3d DCA 2011) (citing Starks v. Starks, 423 So.2d 452, 453-54 (Fla. 1st DCA 1982) (finding that without a transcript of the hearing, the appellate court is unable to ascertain whether the lower court erred; noting that "[t]he appellant retains the burden of overcoming the presumption of correctness attributed to a trial court's final judgment. Appellant's burden includes a demonstration of error from the record, which he must supply") ).

Affirmed.

      Notwithstanding the pending motion to dismiss, the Broward County court twice set the case for trial, on August 10, 2010, and March 14, 2011.

      On the face of the FWOP Order, there are five enumerated reasons why a case shall remain pending which track the language of rule 1.420(e). While there is no box to check on the form order, trial judges often circle the applicable reason. These five reasons are as follows:
      1. There had been record activity within ten (10) months prior to service of this Notice and Order to Appear; or
      2. A stay of the action was in effect within the ten (10) months prior to service of this Notice and Order to Appear; or
      3. There has been record activity within sixty (60) days immediately following the service of this Notice and Order to Appear; or
      4. The Court issued a stay of the action within sixty (60) days immediately following the service of this Notice and Order to Appear; or
      5. At least (5) days before the hearing, the party opposing the dismissal established good cause, in writing for the action to remain pending.


text:
    Brian M. CASEY, Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, State of Florida, Respondent.
    No. 1D19-1008
    District Court of Appeal of Florida, First District.
    April 22, 2019 Rehearing Denied June 14, 2019
    Brian M. Casey, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied.

We have determined that the petition raises a frivolous claim. Petitioner is warned that any future filings that this Court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this Court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2018) (providing that a prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

Ray, Osterhaus, and Winokur, JJ., concur.