author: May, J.

text:
    Frank BELLEZZA, Appellant, v. James MENENDEZ and Crary Buchanan, P.A., Appellees.
    No. 4D17-3277
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Margaret M. Bichler of Trelles & Bichler, North Palm Beach, for appellant.
    Carri S. Leininger of Williams, Leininger & Crosby, P.A., N. Palm Beach, for appellees.
    On Motion For Rehearing
   May, J.

We deny the defendants' motion for rehearing, but withdraw our opinion of March 6, 2019, and substitute the following opinion in its place to correct a factual error.

Protecting attorney-client privilege leads to a reversal of the final judgment in this personal injury case. The plaintiff appeals an adverse final judgment, arguing the trial court erred in two ways: (1) admitting attorney-client privileged evidence; and (2) excluding similar evidence concerning the defendant law firm. We agree on the first issue, rendering the second issue moot, and reverse.

The claim arose from a collision between the defendant law firm's vehicle, driven by one of its employees, and the plaintiff who was walking his bicycle along the street. The plaintiff sued the driver and the law firm ("defendants") for negligence and vicarious liability. During discovery, the defendants requested information regarding the financial relationship between the plaintiff's attorney and his treating physicians. The plaintiff objected to each request.

The trial court found the request did not seek information protected by the attorney-client privilege. The plaintiff then produced records of all payments made between his attorney's firm and the treating physicians, including letters of protection.

The plaintiff moved for a protective order from the defendants' request to depose his attorney, arguing inquiry into his attorney's financial information invaded the attorney-client privilege. The court denied the motion. The plaintiff's attorney was deposed.

Prior to trial, the plaintiff moved in limine to preclude the admission of his lawyer's payments to his treating physicians based on attorney-client privilege, relying on Worley v. Central Florida Young Men's Christian Ass'n , 228 So.3d 18 (Fla. 2017). The trial court denied the motion. The plaintiff then moved the court to reconsider its ruling; the court denied the motion.

The defendants then moved to prevent comments about the defendant law firm's relationship with the same treating physicians. The trial court granted that motion.

Prior to trial, defense counsel announced his intention to call the plaintiff's attorney as a witness. The trial court expressed concern about whether the attorney and her co-counsel had considered Florida Bar Rule 4-3.7, which prohibits an attorney from acting as counsel and a witness in the same case. The plaintiff's attorney left the courtroom. When she returned, she told the court she would no longer serve as counsel.

Plaintiff's counsel again specifically called the court's attention to Worley . There, the supreme court held that certain information concerning treating physicians and their relationship with trial counsel is protected by attorney-client privilege and not discoverable. Worley, 228 So.3d at 23. The trial court responded that it had already gone through this and the "horse has left the barn." The court denied counsel's request to revisit the issue.

During voir dire, defense counsel asked the jurors whether they would have an issue with the plaintiff's attorney's credibility because she was both the plaintiff's attorney and a witness in the trial. One juror expressed that it would be foolish not to question the attorney's credibility since she knows too much. The plaintiff asked the court to strike the juror and moved for a mistrial. The court struck the juror, but reserved ruling on the motion for mistrial. The court ultimately denied the motion.

At trial, the plaintiff testified he first saw a chiropractor, and later an orthopedist. He had neck surgery, which rendered his pain more manageable. At the time of trial, his medical bills totaled $ 184,976.

He did not remember who referred him to either doctor. He did not remember telling anyone who referred him to those doctors. However, his cousin testified that the plaintiff told him his attorney referred him to his treating physicians.

On cross examination, defense counsel asked the plaintiff what he knew about his attorney's relationship with his treating physicians. He responded that he was unaware of any relationship. And, when asked what he knew about his attorney paying the doctors large amounts of money over the years, he declined any knowledge.

Before the treating orthopedist testified, the plaintiff proffered his testimony would show the defendant law firm also referred clients to the treating physicians. The court adhered to its prior ruling that this evidence was irrelevant and inadmissible.

The treating orthopedist reviewed the plaintiff's MRI, which revealed cord compression, abnormal discs, and edema in the bone and the neck where there was cord compression. The surgery confirmed his impression that the MRI showed the plaintiff's discs were very fragile. He opined the plaintiff's symptoms were caused by trauma from the accident; not from age-related processes.

The orthopedist ultimately assigned a permanent impairment rating of 12% to the body as a whole. He estimated the plaintiff's future care would cost $ 3,000 to $ 5,000 a year. A radiologist opined the plaintiff's symptoms were related to the injuries from the accident, and not from other age-related spinal changes.

A trauma neurosurgeon hired by the defendants conducted a compulsory medical examination of the plaintiff. In reviewing the plaintiff's MRI, he saw no signs of trauma. He disagreed that cervical surgery was necessary. He testified that it was "pure speculation" that the plaintiff would need future surgery. He found the medical bills for the cervical fusion excessive and not in line with the usual and customary fees for such a procedure.

Prior to the defense calling the plaintiff's attorney as a witness, the plaintiff renewed his motions to preclude her testimony and for mistrial. The court denied both motions.

During her testimony, defense counsel questioned the plaintiff's attorney about the letters of protection, her name appearing on the plaintiff's medical records, and the amount of money paid by her firm's trust account to the treating physicians over the course of five years. She admitted to having a personal relationship with a couple of the doctors associated with the treating physicians. She also admitted she refers some of her clients to those treating physicians and negotiates bills on their behalf.

During the jury's deliberation, it submitted the following question: "When did the relationship between [the attorney] and plaintiff [begin]?" The court responded the record did not indicate a date.

The jury found the defendant driver negligent, but apportioned 57 ½% of the fault to the plaintiff and 42 ½% to the defendant. It determined damages to be $ 20,916.33.

The plaintiff subsequently moved for a new trial, arguing the trial court erred in permitting the defense to admit evidence and elicit testimony regarding payments from his attorney's trust account to the treating physicians. The court denied the motion.

The trial court entered final judgment for the defendants. From this judgment, the plaintiff now appeals.

The plaintiff argues the trial court's errors in admitting irrelevant financial information concerning the treating physicians, requiring his attorney to testify, and excluding similar evidence concerning the defendant law firm, entitle him to a new trial. The defendants respond that any error was harmless because the plaintiff's attorney's limited testimony on these issues could not have impacted the verdict.

We review orders on motions for new trial for an abuse of discretion. Botta v. Florida Power & Light Co. , 197 So.3d 1222, 1224 (Fla. 4th DCA 2016).

The plaintiff argues the financial relationship evidence and his attorney's relationship with his treating physicians is not discoverable and was not admissible at trial. This evidence was irrelevant and created insurmountable prejudice. The defendants respond the trial court did not err in admitting the evidence because it did not implicate attorney-client privileged communications and was relevant to the issue of bias.

" 'A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.' " Hayes v. Wal-Mart Stores, Inc. , 933 So.2d 124, 126 (Fla. 4th DCA 2006) (citation omitted). However, " '[t]he trial court's discretion is limited by the rules of evidence.' " Id. (citation omitted).

Here, after discovery, but before trial, the Supreme Court of Florida held that "the financial relationship between a plaintiff's law firm and the plaintiff's treating physician is [not] discoverable." Worley , 228 So.3d at 22. In its analysis, the supreme court held that Allstate Insurance Co. v. Boecher , 733 So.2d 993 (Fla. 1999), which permitted the discovery of financial information between law firms and expert witnesses, is inapplicable to treating physicians. Worley , 228 So.3d at 22.

The supreme court held that bias can be established by admitting letters of protection, which can demonstrate that the physician has an interest in the litigation's outcome or by providing evidence that the physician's practice was based entirely on patients covered by letters of protection. Id. at 23-24. But, attorney-client privilege protects whether the plaintiff's lawyer referred the plaintiff to a particular physician. Id. at 25. Also protected are documents pertaining to agreements between a law firm and treating physicians and the names of other clients who have been referred to treating physicians. Id.

The defendants claim Worley is inapplicable because it deals with the narrow issue of Boecher's application to treating physicians, rendering other statements in the opinion mere dicta. We disagree. While Worley discussed the discovery issue, and not the admissibility of evidence, it is dispositive of the issue here.

Here, pre- Worley , the trial court compelled the discovery of the plaintiff's attorney's financial relationship with the various treating physicians. The documents included: (1) payments by the plaintiff's attorney's firm to the treating physicians over five years and (2) letters of protection between the plaintiff's attorney's firm and the treating physicians. The court also compelled the deposition and trial testimony of the plaintiff's attorney regarding these documents.

Post- Worley , that discovery is no longer permitted as it violates attorney-client privilege. While letters of protection may be admitted to establish bias, any further inquiry regarding the "cozy agreement" between a law firm and a treating physician is disallowed. Id. at 26. If that information is not discoverable, it certainly is not admissible.

We similarly find error in the trial court compelling the plaintiff's attorney to testify at trial. While the plaintiff's attorney was initially identified as the person with the most knowledge of the financial records, the firm identified an alternative individual who could testify prior to the deposition. In compelling the plaintiff's attorney's testimony, the court forced her to testify regarding her trust account, payments made to the treating physicians, and her personal relationships with these physicians. In short, she was compelled to testify to the prejudice of her own client.

" [Florida Rule of Civil Procedure] 1.310(b)(6) does not require-or for that matter even contemplate-that the corporation produce the witness with the 'most knowledge' on the specified topic(s), and the witness is not required to possess any personal knowledge at all." Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc. , 109 So.3d 329, 334 (Fla. 4th DCA 2013). The rule "gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf." Id. at 335.

Here, however, the court compelled the attorney to attend a deposition and testify at trial. Once this testimony was admitted, it became the central focus of the defendants' case. Using this evidence, the defendants argued the attorney essentially created the lawsuit. The jury asked the court about when the attorney's relationship with the plaintiff began.

The plaintiff next argues the trial court erred in excluding evidence that the defendant law firm had made similar referrals and had similar financial relationships with the treating physicians. We agree, but because we hold that the evidence of the plaintiff's attorney's referral of the plaintiff to his treating physicians and other payments to those physicians is protected by attorney-client privilege, it is unnecessary for us to address this issue further. Such evidence from the defendant law firm is similarly protected by attorney-client privilege.

The central theme of the defendants' case was the plaintiff's attorney's financial relationship with the treating physicians. It was raised in opening statements, throughout testimony, and in closing argument. Because we now hold Worley prohibits the discovery and admission of attorney-client privileged information concerning the relationship between the plaintiff's attorney and the treating physicians, and the financial information concerning that relationship, we reverse and remand the case for a new trial.

Reversed and remanded for a new trial.

Gross and Damoorgian, JJ., concur.

      The court relied on existing precedent that permitted this discovery prior to the supreme court's decision in Worley v. Central Florida Young Men's Christian Ass'n , 228 So.3d 18 (Fla. 2017). Brown v. Mittelman , 152 So.3d 602 (Fla. 4th DCA 2014) ; Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay , 133 So.3d 1178 (Fla. 4th DCA 2014).

      The defendants also argue the plaintiff waived any attorney-client privilege when he told his cousin that his attorney referred him to his treating orthopedist. While the plaintiff may have waived this one piece of information, he did not waive the privilege as to his other treating physicians and his attorney's trust account information.


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    Chad GODWIN, Appellant, v. Stephanie GODWIN n/k/a Stephanie Ann Festa, Appellee.
    No. 4D18-2228
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Christen C. Ritchey of Johnson & Ritchey, P.A., Boca Raton, for appellant.
    Jennifer Labbe of Trial Lawyers Group, Wellington, for appellee.
   Conner, J.

In this case, Chad Godwin ("the Former Husband") and Stephanie Godwin n/k/a Stephanie Ann Festa ("the Former Wife"), filed competing motions for contempt, each alleging the other violated provisions of the final judgment regarding shared parental responsibility for their minor children. The trial court granted each party's motion in part, adjudicating both parties in contempt of court.

The Former Husband appeals the order adjudicating him in contempt, asserting two grounds for reversal. The Former Husband argues the trial court erred by: (1) finding him in contempt where the parties' marital settlement agreement and the final judgment did not contain language which clearly prohibited the alleged contemptuous conduct; and (2) improperly granting a modification of the parties' marital settlement agreement and the final judgment without the Former Wife filing a proper petition for modification. Additionally, the Former Husband appeals the order denying his request for attorney's fees and costs, after the trial court found the Former Wife in contempt. We agree with the Former Husband's arguments, and explain our analysis for reversing the trial court's rulings and remanding for further proceedings.

Background

The marriage between the parties was dissolved in 2013. A marital settlement agreement ("MSA") was incorporated into the final judgment, including provisions for timesharing of the parties' two minor children. The parties subsequently executed multiple stipulations modifying their MSA. Among these were the parties' Second and Fourth Stipulations, which were adopted by corresponding orders modifying the original final judgment.

The Second Stipulation clarified that all communications between the parties must only concern issues related to the children, and for non-emergency matters, must only take place through the OurFamilyWizard.com website, and must be professional, factual, and non-confrontational.

The Fourth Stipulation modified the provisions of the original MSA concerning shared parental responsibility and decision-making authority. Subsection (a) of the stipulation provided that the parties would have shared parental responsibility and that they would confer and attempt to agree on major decisions involving the children, but that if they were unable to agree, the Former Husband would have the decision-making authority with respect to the children's education, medical, and extra-curricular activities. Subsection (b) of the stipulation emphasized that regardless of decision-making authority, the Former Wife would continue to be informed of medical appointments, school functions, and extra-curricular activities and to be entitled to attend. Subsection (b) further stated:

The parent with whom the children are enjoying timesharing, or that parent's designee , shall be responsible to transport the children to their activities or appointments. In the event the parent, or that parent's designee , enjoying timesharing is not able to transport the children to the [sic] their activities or appointments , the other parent (or his/her designee ) shall be permitted to transport the children.

(emphases added).

Additionally, the MSA and modifying stipulations contain provisions regarding the award of attorney's fees and costs. The parties' original MSA provided:

In the event of any litigation between the parties to enforce the terms of this agreement, the non-defaulting party shall be entitled as a matter of right to an award of attorneys' fees and costs associated with such litigation from the defaulting party.

More specifically, the parties' Second Stipulation contained the following:

All terms, provisions, obligations and conditions of this agreement are enforceable through the contempt powers of this court. More specifically, all monetary contribution/reimbursement provisions and any obligations to consent, cooperate and/or execute and provide documents are enforceable by the full contempt powers of this court. In an effort to minimize and reduce future non-compliance and potential future litigation, the parties specifically acknowledge, agree and stipulate that if either party is required to file a court action to enforce the provisions of this agreement/stipulation or to compel the other party to comply with any of the terms, obligations and conditions of this stipulation that party shall be entitled to 100% of their attorney fees and costs incurred in such action, regardless of need or ability to pay. Additionally, if either party is able to provide proof/evidence that the other party has failed to comply with this agreement or that the other party has violated this agreement (i.e. unauthorized communication, improper communication , failure to execute documents or cooperate as required, etc.) then the party who has violated the agreement shall pay 100% of the attorney fees incurred in establishing such violation. In any such case/matter/issue the court shall determine and decide, and include such finding in any order/report, which party has violated any particular term of this agreement and shall specifically order that party to pay the other parties [sic] attorney [sic] fees/costs associated with such action/matter/issue(s).

(emphases and bold emphasis added). Likewise, the Fourth Stipulation provided:

In the event of any litigation between the parties to enforce the terms of their written agreements adopted as Orders of this Court, including this Stipulation, the prevailing party shall be entitled to an award of attorney fees and costs.

The Former Husband filed a motion for civil contempt and enforcement against the Former Wife, alleging the Former Wife violated the terms of subsection (b) of the Fourth Stipulation by refusing to transport the children to their dance and football activities during her timesharing, and failing to allow the Former Husband to transport them, causing the children to repeatedly miss these activities. The Former Husband requested attorney's fees in connection with bringing the motion. Thereafter, the Former Husband filed a second motion for contempt and enforcement, in which he alleged that the Former Wife violated the Second Stipulation by communicating through OurFamilyWizard.com about issues not specific to the children. The Former Husband again requested attorney's fees.

Subsequently, the Former Wife filed her own motion for contempt, alleging that the Former Husband repeatedly violated subsection (a) of the Fourth Stipulation by failing to confer and consult with her on various decisions involving the children's schooling, extra-curricular, and medical issues and appointments. The motion also complained of an incident in which the Former Husband brought his girlfriend to their daughter's doctor's appointment that resulted in an altercation between the Former Wife and the girlfriend at the doctor's office, whereby both were asked to leave. The Former Wife argued the Former Husband routinely appoints his girlfriend "as a pseudo medical care proxy to appear at [doctor's] appointments and intrude in medical decision making for the minor children[.]" The Former Wife argued this was a violation of HIPAA and her right of privacy. In addition to seeking contempt sanctions for violation of subsection (a) of the Fourth Stipulation, the Former Wife requested the trial court's "equitable intervention" in enforcing the provisions of subsections (a) and (b) by "striking the provision [of subsection (b) ] regarding appointing designees as it is in direct violation of the Florida Constitutional Right to Privacy." The Former Wife also requested attorney's fees.

The parties' competing motions for contempt and enforcement were heard at the same time. At the hearing, with regards to the Former Wife's request to strike the provision in the Fourth Stipulation with reference to the appointment of a designee, the trial court reasoned:

Significant other, I do not interpret this that she can do or he can do anything but transport. That is period. And I have no problem with anybody that's safe for the kids. You both work, so okay, that's going to happen. Transport means that you sit in the -- you transport, you take the kid to the event.
....
So that's it. Transport is it. Can't be in the room with the kids, doctors or can't be in parent/teacher conference, can't hold the parent/teacher conference without one of the parents being there. My views are different once you marry somebody, but significant other, that's what that is, to transport.

Thereafter, the trial court entered its order granting in part and denying in part both parties' motions. The trial court granted the Former Husband's motion in part, finding the Former Wife in contempt because her OurFamilyWizard.com emails violated the provisions of the Second Stipulation. As for the Former Wife's motion, the trial court found the Former Husband in contempt "for having his significant other in attendance at the parties' daughter's ... doctor's appointment and acting beyond transport." However, the trial court denied the Former Wife's request to strike the provision of the Fourth Stipulation regarding designees. Instead, the trial court ordered that the provision is

clarified to mean that transport is the sole function of a party's significant other. A significant other may transport the children to doctor's appointments but cannot be in the room with the children or attend parent teacher conferences.

The trial court denied both parties' requests for attorney's fees.

The Former Husband moved for a rehearing, asserting, in part, that he was erroneously held in contempt for an action not prohibited by any court order or stipulation of the parties. He also argued the court's "clarification" of the relevant portion of the Fourth Stipulation was effectively a modification of the MSA and final judgment, for which no petition for modification had been filed. The Former Husband further argued he was entitled to attorney's fees. The trial court denied the motion for rehearing. The Former Husband gave notice of appeal.

Appellate Analysis

The Former Husband appeals the finding and adjudication of contempt against him, as well as the denial of an award of attorney's fees and costs in his favor because the trial court found the Former Wife in contempt for violating the MSA and final judgment. We explain our determinations and reasoning.

Adjudication of Contempt Against Former Husband

On appeal, the Former Husband argues that the trial court erred because it held him in contempt for actions that did not violate the terms of the parties' final judgment or any subsequent order modifying the initial final judgment. The Former Husband also argues that in order to find him in contempt, the trial court, in essence, rewrote the provision in the Fourth Stipulation regarding designees, which was error because the revision granted relief to the Former Wife that she did not request. The Former Husband's arguments raise issues of legal error.

A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.

Harris v. Hampton , 70 So. 3d 747, 748 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman , 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) ). "However, ... '[a] judge cannot base contempt upon noncompliance with something an order does not say.' " Id. at 748-49 (alteration in original) (quoting DeMello , 914 So. 2d at 1093 ). "Under such circumstances, the standard of review is legal error, not abuse of discretion." Id. (quoting DeMello, 914 So. 2d at 1093 ).

"For a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order." Reder v. Miller , 102 So. 3d 742, 743 (Fla. 2d DCA 2012) (quoting Paul v. Johnson , 604 So. 2d 883, 884 (Fla. 5th DCA 1992) ). Additionally, we have held that:

[W]hen a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order. Even though a judgment of contempt is clothed with a presumption of correctness, "[o]ne may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction." Lawrence v. Lawrence , 384 So. 2d 279[, 280] (Fla. 4th DCA 1980) (second alteration in original) (citation omitted).

Keitel v. Keitel , 716 So. 2d 842, 844 (Fla. 4th DCA 1998). Furthermore, "implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt." Id.

We have previously reversed orders of contempt where the underlying order failed to specifically preclude the actions challenged. See, e.g., Wilcoxon v. Moller , 132 So. 3d 281, 287 (Fla. 4th DCA 2014) (finding that the trial court committed reversible error by entering order finding ex-wife in contempt of order providing, that her "current husband shall not be present anywhere that" ex-husband was, in part because the prior order was not specific enough, as to what ex-wife's duties were in the event that current husband refused to stay away from ex-husband, to support any judgment of contempt); Harris v. Hampton , 70 So. 3d 747, 749 (Fla. 4th DCA 2011) (holding that, while directing mother to enroll the child may imply that she is responsible for paying tuition, "implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt" (quoting Keitel , 716 So. 2d at 844 (reversing the trial court's order finding former wife in contempt and reasoning that her relocation out of state with children, implicitly obstructing former husband's visitation rights, could not serve as basis for order of civil contempt, where final judgment of dissolution did not contain express provision prohibiting relocation))).

In this case, the trial court found the Former Husband to be in contempt "for having his significant other in attendance at the parties' daughter's ... doctor's appointment and acting beyond transport." However, the Former Husband correctly points out that nowhere in the final judgment or the orders adopting the parties' subsequent stipulations was the Former Husband precluded from allowing his significant other to attend medical appointments. Additionally, the language of subsection (b) of the Fourth Stipulation does not state that the significant other's participation is limited to transport. Nor does it state that the Former Husband must prevent his significant other from attending or ensuring her contact with the children is limited to transporting them to their appointments. Thus, the Former Husband is correct that the trial court erred in holding him in contempt for having his significant other at his daughter's doctor's appointment and acting beyond transport. Furthermore, to the extent the trial court based its finding of contempt upon the implication that the significant other's activities were so limited, such would also have been erroneous, where, as discussed above, implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.

Additionally, the Former Husband contends the trial court also erred by awarding the Former Wife relief she did not request in her motion and by improperly rewriting the terms of the parties' Fourth Stipulation. It is well settled that "courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error." Worthington v. Worthington , 123 So. 3d 1189, 1190 (Fla. 2d DCA 2013) (quoting Abbott v. Abbott , 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) ). The caselaw also makes clear that in family cases, provisions of final judgments pertaining to timesharing generally cannot be modified unless a party files a petition seeking modification or a party files a written stipulation by the parties asking the court for the modification. See id. Moreover, it cannot be said, based on the record in this case, that the issue was tried by consent. Thus, we agree with the Former Husband that the trial court erred by granting relief without filing and serving a proper petition for modification.

Denial of Award of Attorney's Fees and Costs to Former Husband

The Former Husband argues that the trial court erred in denying his request for attorney's fees and costs incurred in enforcing the MSA, after finding the Former Wife in contempt and in violation of a provision of the MSA. To the extent Former Husband's appeal involves interpretation of the MSA, our review, as with any contract, is de novo. Conway v. Conway , 111 So. 3d 925, 927 (Fla. 1st DCA 2013).

As discussed above, the parties' MSA, as modified by stipulations, contained provisions regarding the award of attorney's fees and costs for enforcement. Specifically, the Second Stipulation contains a clear and unambiguous provision for attorney's fees to the party who establishes a violation of the agreement:

If either party is required to file a court action to enforce the provisions of this agreement/stipulation or to compel the other party to comply with any of the terms, obligations and conditions of this stipulation that party shall be entitled to 100% of their attorney fees and costs incurred in such action, regardless of need or ability to pay. Additionally, if either party is able to provide proof/evidence that the other party has failed to comply with this agreement or that the other party has violated this agreement (i.e. unauthorized communication, improper communication, failure to execute documents or cooperate as required, etc.) then the party who has violated the agreement shall pay 100% of the attorney fees incurred in establishing such violation. In any such case/matter/issue the court shall determine and decide, and include such finding in any order/report, which party has violated any particular term of this agreement and shall specifically order that party to pay the other parties [sic] attorney [sic] fees/costs associated with such action/matter/issue(s).

(emphases added). Notably, the Second Stipulation is arguably more specific and detailed than the two other provisions of the MSA and Fourth Stipulation relating to attorney's fees and costs for enforcement, which state in general terms that the prevailing party is entitled to fees and costs. In the instant case, the trial court found the Former Wife in contempt of the provision in the Second Stipulation regarding communication between the parties because her OurFamilyWizard.com emails violated the terms therein. However, the trial court nevertheless denied the Former Husband's request for attorney's fees.

"[I]t is well settled that in a dissolution of marriage proceeding, the parties are free to agree to obligations the trial court could not order in the absence of an agreement." Taylor v. Lutz , 134 So. 3d 1146, 1148 (Fla. 1st DCA 2014). "Provisions in ordinary contracts awarding attorney's fees and costs to the prevailing party are generally enforced." Lashkajani v. Lashkajani , 911 So. 2d 1154, 1158 (Fla. 2005). Notably, "[t]rial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith." Id. "Where an agreement's terms are unambiguous, a court must treat the written instrument as evidence of the agreement's meaning and the parties' intention." Avellone v. Avellone , 951 So. 2d 80, 83 (Fla. 1st DCA 2007).

Because the plain language of the Second Stipulation clearly and unambiguously provided for an award of attorney's fees to the party required to file a court action to enforce the provisions of the stipulation, we determine the trial court erred in denying the Former Husband's request for attorney's fees. Presumably, the trial court may have denied both parties' requests for fees because it found each to be in contempt of different orders. However, given the above-quoted language coupled with the similar, but more general terms of the MSA and Fourth Stipulation, we reverse the trial court's denial of Former Husband's request for attorney's fees and costs.

Conclusion

Having concluded the trial court erred by: (1) adjudicating the Former Husband in contempt for allowing his significant other to attend a doctor's appointment for the minor child; (2) modifying the terms of the Fourth Stipulation of the MSA and final judgment without the Former Wife filing a proper petition for modification; and (3) denying the Former Husband's motion for attorney's fees and costs incurred to obtain an adjudication that the Former Wife was in contempt for violating the MSA and final judgment, we reverse the provisions of the orders appealed and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Gross and Forst, JJ., concur.

      HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996).


author: Rowe, Cymonie S., Associate Judge.

text:
    Rebecca TAYLOR, Appellant, v. Albert PRICE, Appellee.
    No. 4D18-2835
    District Court of Appeal of Florida, Fourth District.
    [May 22, 2019]
    Rebecca Taylor, Margate, pro se.
    No brief filed for appellee.
   Rowe, Cymonie S., Associate Judge.

In this domestic violence case, the wife appeals the dismissal of her petition for protection against domestic violence that she filed against her husband. The issue is whether the trial court erred when dismissing the petition while accepting the unrebutted evidence from the wife. We find that the trial court erred because there was no evidence to rebut the wife's uncontroverted testimony and no finding that the wife was not credible.

Facts

At the hearing concerning the injunction, only the wife testified. Inter alia, the wife testified that her husband tried to physically force himself on her and that the husband scratched her breast during the incident. The wife testified that the scratch resulted in a significant wound that took days to heal. The wife told the court that she had a photograph of the wound, but she would prefer not to have to expose it and hoped the court would accept her testimony. When the court indicated that the wife had failed to meet her burden for an injunction, the wife asked the court if it would like to see the photograph of the wound. The court declined to see the photograph of the wound stating that the court was taking the wife at her word. The wife's testimony was uncontroverted.

When denying the wife's petition, the court did not make any findings of fact and instead concluded that there was insufficient evidence presented to support an injunction pursuant to section 741.30, Florida Statutes (2018).

Analysis

Section 741.30(1)(a) provides that a family or household member may file a petition for protection against domestic violence if that person is "either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence." Id. Section 741.28(2), Florida Statutes (2018), defines domestic violence as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." Id.

In Rudel v. Rudel , 111 So.3d 285, 291 (Fla. 4th DCA 2013), we stated that:

[W]here the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact cannot be wholly disregarded or arbitrarily rejected. Rather, the testimony should be accepted as proof of the issue for which it is tendered, even though given by an interested party ....

(quoting Ducanson v. Serv. First, Inc. , 157 So. 2d 696, 699 (Fla. 3d DCA 1963) ).

Because the only evidence presented was that of the wife, which was uncontroverted, and because the court did not make findings of fact concerning the credibility of the wife, the court was required to accept the wife's testimony and grant the petition for injunction. The trial court's order dismissing the petition is reversed and remanded with instructions to enter an injunction for protection against domestic violence.

Taylor and Levine, JJ., concur.


author: Klingensmith, J. Forst, J., concurring in part and dissenting in part.

text:
    Francisco Xavier DE ARAGON II, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2010
    District Court of Appeal of Florida, Fourth District.
    [May 22, 2019]
    Carey Haughwout, Public Defender, and Tom Wm. Odom and Paul Edward Petillo, Assistant Public Defenders, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Francisco Xavier De Aragon II, was charged with and convicted of sexually assaulting three six-year-old girls while giving them swimming lessons. Appellant presents three points on appeal, but we choose to address only whether the trial court reversibly erred in denying his request for a permissive lesser-included simple battery instruction on the three lewd or lascivious molestation counts. We find no error in denying the requested instructions and affirm on all issues raised.

Appellant was charged by amended information with five separate counts: sexual battery on A.C. and B.E.; and lewd or lascivious molestation of A.C., B.E. and A.P. During the jury instruction conference, defense counsel requested an instruction on simple battery as a permissive lesser-included offense on the three lewd molestation counts. The State objected, arguing the instruction was not appropriate for the lewd molestation charges, though conceding it would be proper on the sexual battery offenses.

Pointing to Khianthalat v. State (Khianthalat II ), 974 So.2d 359 (Fla. 2008), the State argued that the trial court could not allow the simple battery instruction as a lesser-included offense because the information did not plead a lack of consent and the facts of the case did not support simple battery. The trial court denied Appellant's instruction request and reasoned that simple battery was not subsumed within the lewd molestation offense because "[b]attery requires lack of consent. Lewd or lascivious molestation does not."

Appellant was found guilty of all three lewd molestation charges. This appeal follows.

"[A] trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal." Carpenter v. State , 785 So.2d 1182, 1199-1200 (Fla. 2001) (quoting James v. State , 695 So.2d 1229, 1236 (Fla. 1997) ). But a legal determination based upon undisputed facts as to whether a defendant is entitled to a jury instruction on an alleged permissive lesser-included offense is a question reviewed de novo by this court. See State v. Knighton , 235 So.3d 312, 314 (Fla. 2018). Here, we must determine whether Appellant was entitled to a permissive lesser-included simple battery instruction on the lewd molestation counts.

Lesser-included offenses are either necessary or permissive. See Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). Necessary lesser-included offenses are "subsumed within" the charged offenses. See Stoffel v. State , 247 So.3d 89, 92 (Fla. 1st DCA 2018). Thus, a trial court must instruct the jury on necessary lesser-included offenses. See McKiver v. State , 55 So.3d 646, 649 (Fla. 1st DCA 2011). "In contrast, a permissive lesser-included offense is one where both offenses appear to be separate on the face of the statutes, 'but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.' " Stoffel , 247 So.3d at 92 (alteration in original) (quoting Sanders , 944 So.2d at 206 ).

An instruction on a permissive lesser-included offense is authorized only when two conditions are met: "(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements." Khianthalat II , 974 So.2d at 361 (quoting Jones v. State , 666 So.2d 960, 964 (Fla. 3d DCA 1996) ). A trial court does not err in denying a permissive lesser instruction when either, or both, of the above conditions have not been met. See id.

Our analysis continues with a review of the statutory language and essential elements of the charged offense and the alleged permissive lesser-included offense. See Stoffel , 247 So.3d at 92.

Lewd or lascivious molestation occurs when "[a] person ... intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age[.]" § 800.04(5)(a), Fla. Stat. (2015). It is a life felony to commit lewd or lascivious molestation on or against a child under the age of twelve. See § 800.04(5)(b), Fla. Stat. The lesser-included offense of simple battery is defined as the intentional touching of another against that person's will. See § 784.03(1)(a) 1, Fla. Stat. (2015).

Thus, for Appellant to receive a permissive battery instruction on the lewd molestation charges: (1) the charging instrument must allege the statutory elements of battery, and if so, (2) there must have been evidence presented at trial to establish those elements. See Stoffel , 247 So.3d at 92. Given that lewd molestation also requires intentional touching, it is undisputed that this element was present in the charging instrument and evidence of this element was presented at trial. Accordingly, our analysis is dependent on the second element of battery: whether the touching was against the person's will.

The language of the charging information in the present case followed the lewd molestation statute for each count charged, respectively:

[O]n or about the 19th of May, 2015, in the County and State aforesaid, being a person of the age of eighteen (18) years or older, did intentionally touch in a lewd or lascivious manner the genital area, or the clothing covering it, of [Minor Victim], a person less than twelve (12) years of age, contrary to F.S. 800.04(5)(a) and F.S. 800.04(5)(b).

As seen above, the charging instrument clearly fails to allege that the charged offense was committed against the victims' will. Appellant attempts to circumvent the first condition of a permissive lesser-included instruction by claiming the "against that person's will" element of battery was implicitly alleged because the charging instrument claimed that the victims were under the age of twelve, thus entitling them to the conclusive presumption that a child under the age of twelve lacks the capacity to consent to or protect against an unlawful touch. Appellant points to the conclusive presumption embodied within section 794.011(2)(a), Florida Statutes (2014), as instructive:

The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven. Subsections (3), (4) and (5) define sexual batteries involving victims twelve or older. To constitute sexual battery under those subsections, the State must prove the victim did not consent. This requirement recognizes that a person twelve or older has the ability to consent.
In contrast, subsection (2)(a) provides: "[A] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony." This subsection of the sexual battery statute does not explicitly mention consent because it incorporates the presumption that "a child of such immature age is incapable of either consenting to or protesting against the act." As noted by the court in Caulder v. State , 500 So.2d 1362, 1363-64 (Fla. 5th DCA 1986), in a prosecution for sexual battery on a child eleven years of age or younger, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent. Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011.

Khianthalat v. State (Khianthalat I ), 935 So.2d 583, 585-86 (Fla. 2d DCA 2006) (emphases added) (footnote omitted), approved , 974 So.2d 359 (Fla. 2008).

In Khianthalat II , the defendant requested a simple battery instruction as a permissive lesser-included offense to lewd or lascivious battery on a child between the ages of twelve and sixteen. 974 So.2d at 360. There, the defendant argued, as Appellant argues here, "that because the victim is a minor she was not legally capable of consenting to sexual activity; thus, he was entitled to a battery instruction even though the information did not specifically allege and the evidence did not establish that he touched the victim against her will." Khianthalat I , 935 So.2d at 584. The Second District found the defense's argument confused "the unavailability of consent as a defense to a charge of lewd, lascivious, and indecent act with a child with the legal presumption that a child under the age of twelve cannot consent to sexual activity," and proceeded to dissect the defendant's argument by providing a review of the sexual battery statute. See id. at 584-86. Affirming the Second District, the Florida Supreme Court first determined that the conditions for a permissive lesser-included instruction had not been met. Khianthalat II , 974 So.2d at 361. Then, having decided the conditions had not been met, the Florida Supreme Court favorably quoted the Second District's discussion:

The fact that section 800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minor from sexual exploitation. Because in this case the presumption of incapacity to consent is inapplicable and the sexual battery activity was not against the minor victim's will, Khianthalat was not entitled to an instruction on simple battery.

Khianthalat II , 974 So.2d at 362 (emphasis added) (citation omitted) (quoting Khianthalat I , 935 So.2d at 586 ). Pointing to the language indicated, Appellant claims the presumption was not available in Khianthalat because the minor victim was over the age of twelve. Therefore, because the minor victims in this case are under the age of twelve, Appellant contends that the presumption is applicable. We disagree, as the presumption of a lack of consent based on the victim's age cannot be implicitly alleged when consent is not an essential element of the charged offense.

The elimination of consent as a defense and apparent absence of the "against that person's will" element in section 800.04(5) means simple battery may be a permissive lesser-included offense to a lewd or lascivious molestation so long as both conditions are met. See Khianthalat II , 974 So.2d at 361. Here, neither condition was met as to the "against the person's will" element of simple battery; this precluded the permissive lesser-included instruction and the trial court correctly refused to give it. Accordingly, we affirm.

Affirmed.

Gerber, C.J., concurs.

Forst, J., concurs in part and dissents in part with opinion.

Forst, J., concurring in part and dissenting in part.

Appellant appeals from the final judgment of conviction and the final order imposing sentence, making three arguments:

1) the trial court erred in denying Appellant's request for jury instructions on the permissive lesser included offense of battery on the three lewd or lascivious molestation counts; 2) the trial court abused its discretion in admitting the child victims' hearsay statements; and 3) the trial court abused its discretion in denying Appellant's motion for mistrial. I agree with the majority's decision to affirm without comment as to the hearsay and mistrial arguments. As such, I would affirm the conviction on the sexual battery charge. I respectfully disagree, however, with the majority's decision to affirm on the first issue regarding the three lewd or lascivious molestation convictions. I would find that the information alleged all the statutory elements of battery and that the evidence at trial established these elements. Because Appellant requested the instruction, I would reverse and remand for a new trial on the three lewd or lascivious molestation counts.

Background

As part of the school day, students were bused to an aquatic center for swim class where Appellant worked as a swim instructor. The school teachers attended the swim classes to monitor the children. Each class had about twenty to thirty children at a time for a thirty-minute class immediately followed by another group of children.

The three six-year-old girls individually reported to their parents, participated in a videotaped interview with police, and testified at trial that, on the same day, Appellant reached underneath their bathing suits while he was teaching them a front float. One of the girls reported that Appellant put his hand inside of her vagina. Two of the girls reported that Appellant put his hand on top of their vaginas.

Appellant testified on his own behalf. He admitted teaching at the pool on the day at issue but denied the charges. He testified that if his hand went into a student's bathing suit, he would have known.

During conferences on jury instructions, the trial court ruled that Appellant was entitled to an instruction on the charge of unnatural and lascivious act as a permissive lesser offense on the counts charging lewd or lascivious molestation. The defense also requested battery as a permissive lesser included offense on these counts. The State objected, arguing that it was not appropriate for the lewd or lascivious molestation charge, though it would be proper for the sexual battery charge. The trial court agreed with the State, because "battery requires lack of consent. Lewd or lascivious molestation does not." The defense maintained that battery was subsumed within the lewd or lascivious molestation offense. The trial court denied the defense's request, and the jury instructions and verdict forms reflected that ruling.

Appellant was found guilty of one count of sexual battery on a child less than twelve years of age and three counts of lewd or lascivious molestation of a child less than twelve years of age. He was sentenced to two consecutive terms of life imprisonment without possibility of parole.

Analysis

Appellant argued below that he was entitled to a jury instruction on battery as a permissive lesser included offense of lewd or lascivious molestation because the information alleged all the elements of a battery, including the lack of consent element, and because of the legal presumption that children under the age of twelve cannot consent to such a touch. This issue is reviewed de novo "[b]ecause this matter involves a legal determination based upon undisputed facts." Khianthalat v. State (Khianthalat II ), 974 So.2d 359, 360 (Fla. 2008).

As stated by the majority opinion, when requested, a trial court

must give a jury instruction on a permissive lesser included offense if the following two conditions are met: "(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements."

Id. at 361 (emphasis added) (quoting Jones v. State , 666 So.2d 960, 964 (Fla. 3d DCA 1996) ). It is a "longstanding rule" in Florida that "[a]n instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense." Id. (quoting Williams v. State , 957 So.2d 595, 599 (Fla. 2007) ).

The information charging Appellant with lewd or lascivious molestation states in relevant part that the defendant:

being eighteen (18) years of age or older, did intentionally touch in a lewd or lascivious manner the genital area, or the clothing covering it, of [victim], a person less than twelve (12) years of age, contrary to F.S. 800.04(5)(a) and F.S. 800.04(5)(b).

The information tracks the lewd or lascivious molestation statute: "A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ... commits lewd or lascivious molestation." § 800.04(5)(a), Fla. Stat. (2015). It is a life felony for an adult to touch a child in this manner if the child is less than twelve years old. § 800.04(5)(b), Fla. Stat. Battery is an intentional touching against the victim's will. § 784.03(1)(a) 1, Fla. Stat. (2015). Battery is a permissive lesser included offense of lewd or lascivious molestation. Fla. Std. Jury Instr. (Crim.) 11.10(c).

Here, the information clearly alleged an intentional touching. Thus, the first question pertinent to the jury instruction issue is whether the information alleged that the touching was against the will of a victim under twelve years old. The majority found that the information "clearly fails" to allege that the lewd touch was against the victim's will. The majority holds that because consent is not an essential element of the charged offense, the lack of consent element must be expressly stated. I disagree. As recognized by the majority, a permissive lesser included offense exists when the "offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offenses cannot help but be perpetrated once the greater offense has been." (alteration and internal quotation marks omitted) (quoting Stoffel v. State , 247 So.3d 89, 92 (Fla. 1st DCA 2018) ).

There is a legal presumption that children under twelve years old are incapable of consenting to the type of touch alleged here. Because of this legal presumption, when a defendant is charged with sexual battery of a child under twelve, the information need not expressly state that the sexual battery was without the consent of the under twelve-year-old victim. Khianthalat v. State (Khianthalat I ), 935 So.2d 583, 586 (Fla. 2d DCA 2006), approved, 974 So.2d 359 (Fla. 2008). "[I]n a prosecution for sexual battery on a child eleven years of age or younger, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent." Id. (citing Caulder v. State , 500 So.2d 1362, 1363-64 (Fla. 5th DCA 1986) ). The lack of consent presumption is not explicitly set forth in section 794.011(2), Florida Statutes (2015) (sexual battery on a child under twelve). Rather, there is an "irrebuttable presumption that children under twelve cannot consent" to the types of touch described in the sexual battery statute. Acevedo v. Williams , 985 So.2d 669, 671 n.2 (Fla. 1st DCA 2008).

In Khianthalat , the defendant was charged with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age. Khianthalat I , 935 So.2d at 584. The information did not expressly state that the act was without the consent of the child victim, who was thirteen years old when she first had sex with the defendant. Id. The defendant asked the trial court to instruct the jury on battery as a lesser included offense, arguing that "because the victim was a minor she was not legally capable of consenting to sexual activity; thus, he was entitled to a battery instruction even though the information did not specifically allege and the evidence did not establish that he touched the victim against her will." Id.

The defendant's argument in Khianthalat was similar to Appellant's argument in the present case: the lack of consent element of battery was present in the information because "lack of consent is presumed by law in a child of tender years." Khianthalat II , 974 So.2d at 361-63. However, the charge in Khianthalat was for a lewd or lascivious battery against a thirteen-year-old child, not a child under twelve. The supreme court, in affirming the lower courts' holding that the defendant was not entitled to the battery instruction, dissected the defense's argument and rejected it. The court explained that the defense confused the unavailability of consent as a defense to lewd or lascivious offenses under section 800.04 (no matter the child's age) with the legal presumption that a child under twelve cannot consent to the sexual activity described in the sexual battery statute. Id. at 361.

In explaining how the defense's argument was flawed, the court looked to the presumptions of consent present in the sexual battery statute, noting that children twelve and older can consent to sex acts; therefore, the court held, the lack of consent must be expressly alleged and proven. Id. ; see § 794.011(3) - (5), Fla. Stat. (sexual battery on a child twelve and older must be without the victim's consent). As offenses under the lewd or lascivious statute are intended to protect children under sixteen from lewd or lascivious offenses regardless of consent, that statute expressly eliminates consent as a defense. See Khianthalat II , 974 So.2d at 362 ; § 800.04(2), Fla. Stat.

The court in Khianthalat II explained that the sexual battery statute draws the line of consent at twelve years old. Because of this presumption, in the prosecution of a sexual battery against a child under twelve, the lack of consent is presumed, and the element is always met. Khianthalat II , 974 So.2d at 362. Children twelve years of age or older but less than sixteen years of age, on the other hand, never get a presumption of the lack of consent element. Accordingly, the court held that "[b]ecause in this case the presumption of incapacity to consent is inapplicable and the sexual activity was not against the minor victim's will, Khianthalat was not entitled to an instruction on simple battery" for his charge under the lewd or lascivious statute. Id. at 362 (emphasis added).

Like the courts in Khianthalat , I would similarly look to the presumption of consent present in the sexual battery statute to determine whether a battery instruction is proper as a lesser included offense of charges under the lewd or lascivious statute, which also draws a line at twelve years old. The victim in Khianthalat was twelve or older but less than sixteen; thus, the legal presumption of the incapacity to consent to the touch was inapplicable. The victims here, in contrast, were under twelve. Thus, the legal presumption is applicable as the victims lacked the capacity to consent to the touch described in the information.

Accordingly, I would hold that the lack of consent element required for battery was alleged in the information because it states that the victims were under twelve years old and describes a touch to which children in that age group lack the capacity to consent. The language in the information that Appellant "intentionally touch[ed] in a lewd or lascivious manner" certain anatomical areas on a child under twelve alleges all the statutory elements of a battery-a touch against the victim's will.

Moreover, unlike the defendant in Stoffel , Appellant did not have the authority, by the nature of his relationship to the child victims, to touch their vaginas for a non-sexual purpose. In Stoffel , like the instant case, the defendant was convicted of lewd or lascivious molestation of a child under twelve and the issue was whether the information was sufficient to allow for the instruction of battery when it failed to explicitly state that the defendant's touch was against the will of the child victim. 247 So.3d at 92. There, the victim was nine years old at the time of the crime and was the defendant's step-daughter. Id. at 91. The offense took place in a movie theater when the defendant asked if he could touch his step-daughter's breasts and she said yes. Id. The defendant requested an instruction on battery as a lesser included offense, which was denied. Id.

The First District rejected the defendant's argument that, because the victim was under the age of twelve, the elements of a battery were met as a matter of law. Id. at 93. This is because "parents and those in loco parentis are privileged to touch their children, non-abusively, against their will." Id. (citing Morris v. State , 228 So.3d 670 (Fla. 1st DCA 2017) ). Therefore, because the defendant was the victim's step-father, he could not be punished for a battery against her because the touch was a crime only if done in a lewd or lascivious manner. Id. ("[E]ither the act of fondling the nine-year old's breasts was a lewd molestation or it was no crime at all, because a non-lewd touching of a child by a parent cannot constitute a battery , absent evidence of physical injury or other factors not alleged or proven here."). Here, however, Appellant was not in loco parentis and his touch of the victims' vaginas was not privileged.

Because I would hold that the information alleged all the facts necessary to establish the elements of a battery, the next question in determining if Appellant was entitled to an instruction on battery is whether there was some evidence adduced at trial establishing the battery. Khianthalat II , 974 So.2d at 361. Each of the victims reported to their parents, participated in a videotaped interview with police, and testified at trial that Appellant used his hand to go underneath their bathing suit to touch the outside or inside of their vagina, and that this touch occurred when they were six years old. Accordingly, both conditions are met, and Appellant was entitled to a battery instruction as requested.

The fact that the trial court instructed the jury on the permissive lesser included offense of unnatural and lascivious act does not subject the issue to a harmless error analysis because "[t]he failure to instruct on the next immediate lesser-included offense, one step removed from the offense of conviction, constitutes per se reversible error." Caruthers v. State , 235 So.3d 931, 933 (Fla. 4th DCA 2017). The offense of unnatural and lascivious act is a permissive lesser included offense of lewd or lascivious molestation, but battery is one step removed from the offense, whereas unnatural and lascivious act is two steps removed. Sherrer v. State , 898 So.2d 260, 261 (Fla. 1st DCA 2005) ; Fla. Std. Jury Instr. (Crim.) 11.8. As a result, Appellant was entitled to the battery instruction with respect to the lewd or lascivious molestation counts, and "[t]he trial court was without discretion to rule otherwise." Wong , 212 So.3d at 361 (citing Khianthalat II , 974 So.2d at 361 ).

Because I would vacate the judgment of guilt and order a new trial on the lewd or lascivious molestation counts, I respectfully dissent from the panel's affirmance on this issue.

      Appellant was also found guilty of sexual battery against A.C. and simple battery (as a necessary lesser-included offense to sexual battery) against B.E.

      Similarly, the type of touch alleged here is "unnatural," allowing for the instruction on the lesser included offense of unnatural and lascivious act under section 800.02, Florida Statutes (2015). The information need not expressly state that the lewd or lascivious touch was also "unnatural." See, e.g. , Wong v. State , 212 So.3d 351, 360 (Fla. 2017) (finding the defendant was entitled to the unnatural and lascivious act jury instruction because the information alleged that the defendant made oral and skin contact with the sexual organ of child victims).

      Barnett v. State , 45 So.3d 963 (Fla. 3d DCA 2010), is factually similar to Stoffel ; the defendant argued he was entitled to a jury instruction on battery as a lesser included offense of lewd or lascivious molestation when the victim was under twelve and was the defendant's step-daughter. The Third District recognized that battery can be a permissive lesser included offense to the charge, but found that the information "did not include any language stating that the touching was against the will of the victim." Id. at 964. The Third District based its decision on Khianthalat II , calling it "[t]he same situation" even though the victim in Barnett was under twelve. Id. Although Barnett does not discuss the issue of privilege, it is distinguishable from the present case for the reasons articulated in Stoffel . Moreover, the Third District stated that the defendant's argument focused on the "unlawful touching" language in the information, claiming that this language was broad enough to include battery. Id. Here, the argument made by Appellant is that the victims' age presumes they did not consent to the touch.


text:
    STATE of Florida, Appellant, v. Casey HANSEN, Appellee.
    No. 4D18-261
    District Court of Appeal of Florida, Fourth District.
    [May 22, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellant.
    Kenneth David Padowitz of Kenneth D. Padowitz, P.A., Fort Lauderdale, for appellee.
   Conner, J.

The State of Florida appeals the trial court's final orders withholding adjudication of guilt with respect to defendant, Casey Hansen ("Hansen"). Because the trial court misconstrued case law and did not follow the clear language of the statute defining the crime and punishment for making a false report of a bomb threat, we reverse the judgment and sentence imposed for that crime and remand for the trial court to correct the final orders withholding adjudication of guilt as to the charge of making a false bomb threat.

Background

Hansen was charged by information with one count of false report of a bomb threat and one count of misuse of 911 or 911 system. Hansen entered an open plea of no contest to the charges and moved for a downward departure of his sentence, seeking a withhold of adjudication of guilt as to the false report of a bomb charge. As grounds for departure, Hansen relied on section 921.0026(2)(d), Florida Statutes, asserting he required specialized treatment for a mental disorder unrelated to substance abuse, addiction, or for a physical disability.

Hansen presented testimony in support of the asserted grounds for departure. In opposition, the State argued that section 790.163, Florida Statutes, which criminalizes false reporting of a bomb threat, prohibits withholding adjudication of guilt for the charge as part of a downward departure. The State acknowledged that while the trial court may generally withhold adjudication as to other crimes, in this case, the statute Hansen violated specifically prohibited withholding adjudication of guilt, and instead, contains within it a particular downward departure consideration for a reduced or suspended sentence under certain circumstances which did not apply to the facts of this case.

The trial court discussed State v. Platt , 203 So. 3d 194 (Fla. 5th DCA 2016), which addressed a downward departure where the defendant was charged with false report of a bomb threat. Id. The trial court interpreted Platt to allow the trial court to withhold adjudication of guilt. Relying on Platt, the trial court granted Hansen's motion for downward departure over the State's objection, withheld adjudication, and sentenced Hansen to five years of probation. The State gave notice of appeal.

Appellate Analysis

Hansen was charged with false reporting of a bomb threat in violation of section 790.163, Florida Statutes (2015). The State maintains, as it did below, that the general statute authorizing downward departure did not permit the trial court to withhold adjudication of guilt where section 790.163(2) expressly prohibits withholding of adjudication, and was more recent and more specific than the downward departure statute.

Section 790.163(1), Florida Statutes (2015) defines the crime of making a false report "concerning the placing or planting of any bomb, dynamite, other deadly explosive, or weapon of mass destruction as defined in s. 790.166[.]" § 790.163(1), Fla. Stat. (2015). Section 790.163(2) provides as follows:

Notwithstanding any other law, adjudication of guilt or imposition of sentence for a violation of this section may not be suspended, deferred, or withheld . However, the state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals.

§ 790.163(2), Fla. Stat. (emphases added).

The State focuses on the phrase "notwithstanding any other law" as reflecting the mandatory nature of the prohibition against withholding adjudication in connection with imposing a sentence for a false report of a bomb. The State maintains that section 790.163(2) represents an exception to the law giving the trial court discretion to withhold adjudication of guilt. See Fla. R. Crim. P. 3.670 (allowing a judge to withhold an adjudication of guilt if the judge places the defendant on probation where allowed by law); see also § 775.08435, Fla. Stat. (2015) (describing the felonies for which adjudication of guilt is prohibited).

We agree with the State. As we have previously said:

A specific statute "covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms." Adams v. Culver , 111 So.2d 665, 667 (Fla. 1959). "The more specific statute is considered to be an exception to the general terms of the more comprehensive statute." Floyd v. Bentley , 496 So.2d 862, 864 (Fla. 2d DCA 1986). Next, "when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent." McKendry v. State , 641 So.2d 45, 46 (Fla. 1994) (citations omitted).

Rochester v. State , 95 So.3d 407, 409 (Fla. 4th DCA 2012) (holding that the statutes which "are the legislature's last expression of intent and address the specific sentencing for the type of crime committed in this case" control over "the general mitigating circumstances for sentencing any felony (except a capital felony) contained in section 921.0026."); see also State v. Warner , 50 So.3d 99, 100 (Fla. 4th DCA 2010) (the language of the applicable aggravated fleeing and eluding statute clearly prohibited a withhold of adjudication for the specific statutory violation and because it was the later promulgated statute, such prevailed "as the last expression of legislative intent" regarding sentencing on an aggravated fleeing and eluding charge); State v. Scriber , 991 So.2d 969, 970 (Fla. 4th DCA 2008) (same).

Here, like the cases above, section 790.163(2) addresses specific parameters regarding withholding adjudication of guilt and reduced sentences with regards to the crime of false report of a bomb threat. We disagree with Hansen's argument that the statutory authority to suspend a sentence for the crime includes the authority to withhold adjudication of guilt . Rule 3.670 makes clear that withholding adjudication of guilt is a function of rendering a judgment as to the commission of a crime by the defendant. Fla. R. Crim. P. 3.670. The second sentence of section 790.163(2) does not state that adjudication of guilt can be withheld if the defendant provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals; instead, it provides for a reduction or suspension of the sentence , which pertains to the length of incarceration or supervision. Additionally, although section 790.163 was initially enacted in 1959, as compared to section 921.0026, the downward departure statute, which went into effect in 1998, subsection 2 of section 790.163 was subsequently added in 2002. 2002 Fla. Sess. Law Serv. Ch. 2002-28 § 1. Thus, section 790.163(2) containing the prohibition against withholding adjudication for false report of a bomb threat was enacted after section 921.0026, the downward departure statute. Accordingly, as in the cases cited above, section 790.163(2) is both the more recent and more specific statutory provision concerning the trial court's authority to withhold adjudication of guilt when presented with a motion for downward departure by a defendant charged with making a false report of a bomb threat.

Although the trial court considered Platt , at the sentencing hearing, Platt does not discuss any interpretation of section 793.163(2) because that statutory provision was apparently not argued by the state in that case. Instead, the state's argument in Platt was that the trial court erred because (1) it withheld adjudication of guilt for the offense without a written request from the state as required by sections 775.08435(1)(b) 1. and 2., Florida Statutes (2015), and (2) there was insufficient competent, substantial evidence to support the grounds asserted for a downward departure. Id. at 195. The Fifth District agreed with the state that the grounds for downward departure articulated by the trial court (that the offense was committed in unsophisticated manner and the defendant's cooperation with the state to resolve the offense) were not supported by competent substantial evidence, reversed the portion of the judgment withholding adjudication, and remanded for reconsideration. Id. at 197. However, at the end of the opinion, the Fifth District added a footnote which stated:

Although not properly addressed by the State in this appeal, on remand, we direct the trial court to section 790.163(2), Florida Statutes (2015), "False Report About Planting Bomb, Explosive, or Weapon of Mass Destruction; Penalty," which provides: "[n]otwithstanding any other law, adjudication of guilt or imposition of sentence for a violation of this section may not be suspended, deferred, or withheld."

Id. at 197, n.3.

The record in this case reflects that, in reviewing Platt , the trial court inferred that the Fifth District would not have remanded the sentencing for reconsideration, if a withhold of adjudication were not even a possibility. However, the Fifth District's lack of discussion concerning the merits of section 790.163(2) as precluding a withhold of adjudication does not mean that the statute does not so preclude. Instead, in our view, the Fifth District quoted the portion of section 790.163(2) in its footnote presumably to alert the trial court about the prohibition against withholding of guilt. As mentioned above, one of the arguments raised in Platt involved noncompliance with section 775.08435(1)(b) 1. and 2., Florida Statutes, which makes withholding adjudication of guilt for second-degree felonies improper where the State has not requested a withhold in writing. In any event, the Fifth District's decision not to discuss the application of section 790.163(2) does not preclude the conclusion that 790.163(2) plainly prohibits the trial court from withholding adjudication in such a case and serves as an exception to the general rule.

Having determined that the trial court erred by withholding adjudication of guilt as a permissible downward departure, we reverse the final orders withholding adjudication of guilt as to the charge of making a false bomb threat and remand for the trial court to enter a corrected final order. Because the corrections are ministerial, a resentencing hearing and Hansen's presence is not required. Obas v. State , 238 So.3d 853 (Fla. 4th DCA 2018) (defendant's presence not required for correction of errors in written judgment); Mulligan v. State , 688 So. 2d 984 (Fla. 4th DCA 1997) (defendant's presence not required for entry of written reasons for imposing adult sanctions).

Reversed and remanded with instructions.

Gross and Forst, JJ., concur.


text:
    Martavious CARN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1834
    District Court of Appeal of Florida, Fourth District.
    [May 29, 2019]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and sentence for: (1) attempt to commit burglary while armed, (2) aggravated assault with a firearm, and (3) shooting into a building. He argues the trial court erred in a number of evidentiary rulings. We disagree and affirm.

Late one night, the victim heard knocking on his front door. He approached the window near the door and asked who was there. The person at the door answered: "this is Mike." The victim turned on his porch light to see better. The person then asked him to open the door multiple times.

When the person turned toward the window, the victim could see his face clearly. He described him as a black male with a low haircut like a mohawk. He recognized the face but could not think of his name. The victim also saw a firearm.

He thought the person intended to rob or kill him. He immediately retreated from the window, went to the bedroom where his girlfriend was sleeping, woke her up, and they both hid under the bed. His girlfriend called 911 when they suddenly heard a round of shots go off.

At the scene, police collected shell casings as well as unused rounds, but no DNA connected the defendant to the crime. After the police left, the victim went on Facebook to see if he could find the shooter. When he found the person's photos on Facebook, he brought them to the police.

A detective created a photographic lineup that another officer presented to the victim. The detective knew the victim brought Facebook photos to the station, identifying the shooter, but never saw the photos and did not use them in the lineup. The detective put the lineup together using IntelliTect, a database that uses mugshots of individuals who have been arrested.

He chose six individuals similar in sex, age, and facial features. The defendant's photo was third. The victim picked the same person in the photo lineup as the person he found on Facebook. He was "100% sure" about his choice. The victim identified the defendant but admitted that he had never met or spoken to the defendant before; he had only seen him around a few times.

The State charged the defendant with: (1) attempt to commit burglary while armed, (2) aggravated assault with a firearm, and (3) shooting into a building. Before trial, the defendant moved to suppress the out-of-court and in-court identifications, alleging both stemmed from unduly suggestive police procedures.

At the hearing, the detective testified that photo three had a darker gray background than the others. He also agreed that the individuals in photos two and five had thinner faces than the individual in photo three, and those in photos one, four, and six were more medium in their facial sizes. The trial court denied the motion to suppress the identifications, concluding they were not unduly suggestive. We agree and affirm on this issue without further comment.

At trial, the State asked the victim about a $ 20,000 settlement check he received. Defense counsel objected to relevance, which the trial court overruled. The victim testified he kept some cash from the settlement in his house, but had not told anyone and specifically not the defendant.

The defendant moved for judgment of acquittal. He argued the State had neither proven he committed the charged crimes nor had the specific intent to commit an offense within the victim's residence. The trial court denied the motion.

Before trial, prior defense counsel gave notice of an alibi witness, the defendant's cousin, but his trial counsel was unaware of this until the middle of trial. The State objected to the witness because trial counsel failed to list the witness and had not disclosed an alibi defense. The court allowed the defendant's cousin to testify.

Defense counsel also asked to admit a Facebook video that purported to show the defendant walking in front of the stage at a club he claimed to be on the night of the incident. The State objected that the defense had failed to disclose the video. The court held a Richardson hearing.

The trial court found there was a discovery violation, and it was substantial because the video corroborated the defendant's cousin's testimony. The court also found the video prejudicial because it corroborated the defendant's alibi and the club was no longer in business. The court excluded the alibi video, but allowed defense counsel to file it as a proffer.

The defendant testified and unequivocally denied the allegations. He claimed to have gone to a club with his cousin. His cousin took the stage around 1:00 a.m. and they left the club around 3:00 a.m. He then went with his children's mother to pick up their kids and go home.

The defendant's cousin explained that he and the defendant were at the club on the night of the incident. They arrived around 1:30 a.m. He took the stage at 2:45-2:50 a.m. and performed two songs. He believed they all left between 3:05-3:15 a.m. When he got home, he called the defendant to make sure he made it home safe.

The defendant renewed his motion for judgment of acquittal, arguing the State failed to prove a prima facie case of identity, failed to prove attempted burglary, and failed to prove any overt acts amounting to aggravated assault. The trial court denied the motion. The defendant also moved for mistrial based on the exclusion of the alibi video, which the court denied.

The jury found the defendant guilty on all three counts. The defendant moved for new trial, and a judgment of acquittal and/or arrest of judgment, which the court denied. The defendant now appeals.

The defendant argues the trial court erred in excluding the alibi video as the discovery violation was inadvertent and less extreme remedies were available. The State responds that the alibi video was properly excluded because it was highly prejudicial, and its exclusion did not prejudice the defense because the court allowed his alibi witness to testify.

When the state claims defense counsel committed a discovery violation " 'the court must conduct a Richardson hearing to inquire about the circumstances surrounding the [ ] violation of the discovery rules and examine the possible prejudice to the [state].' " Dabbs v. State , 229 So.3d 359, 360 (Fla. 4th DCA 2017) (citation omitted).

"The extent to which sanctions should be imposed for discovery violations depends upon whether the violation was inadvertent or willful, whether the violation was trivial or substantial, and what effect, if any, it had upon the ability of the affected party to properly prepare for trial." State v. Plachta , 415 So.2d 1356, 1358 (Fla. 2d DCA 1982).

"Where the issue involves possible exclusion of defense evidence, the 'extreme sanction of excluding [ ] evidence ... should be used only as a last resort' and 'it is incumbent upon the trial court ... to determine whether any other reasonable alternatives can be employed to overcome ... possible prejudice,' including declaration of a mistrial." McDuffie v. State , 970 So.2d 312, 322 (Fla. 2007) (citations omitted).

Here, the trial court found the discovery violation was not willful, but the video was highly prejudicial. Defense counsel suggested a continuance, publishing the video with a special instruction about the late disclosure, or declaring a mistrial. The trial court excluded the video.

The error in excluding the video is harmless. The video is a video of a video on someone's phone. The quality is poor at best. As the parties agreed, and is readily ascertainable from the video, no person is identifiable without explanation from the witness. Thus, the video offered no proof of an alibi on its own.

As such, the critical evidence was the alibi witness, who the court allowed to testify. Any error in excluding the video was harmless beyond a reasonable doubt. State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

The defendant next argues the trial court erred in allowing the victim to testify regarding his $ 20,000 settlement monies because this information lacked relevancy. The State responds the evidence was relevant to infer the defendant's intent to commit an offense in the victim's home.

We review the admissibility of evidence for an abuse of discretion limited by the rules of evidence. Nardone v. State , 798 So.2d 870, 874 (Fla. 4th DCA 2001).

"Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. "Generally, any evidence relevant to prove a fact at issue is admissible unless precluded by a specific rule of exclusion." Harden v. State , 87 So.3d 1243, 1246 (Fla. 4th DCA 2012). "[E]vidence may be admitted in a criminal case if it is relevant as to the motive for the crime involved." State v. Riechmann , 777 So.2d 342, 365 (Fla. 2000).

Here, the defendant argues evidence of the victim's settlement would have only been relevant if he knew about it. But, the State needed to propose a motive for the robbery, which it did. The State showed the victim had a large sum of money in his home, and the State argued this fact may have been common knowledge within the neighborhood.

The court did not abuse its discretion in admitting the victim's testimony concerning the settlement.

In his fourth argument, the defendant claims the State failed to prove the shooter intended to enter the home and commit a crime within. The State responds the record contains sufficient evidence to infer the defendant intended to commit an offense inside the victim's home. Here, the defendant falsely identified himself as someone the victim knew to gain entry to the victim's home. The use of this false name shows the defendant intended to gain entrance by trickery or deceit. Gordon v. State , 745 So.2d 1016, 1018 (Fla. 4th DCA 1999) (holding "consent to enter obtained by trick or fraud 'is actually no consent' " and therefore entrance obtained this way will support a conviction for burglary). We agree with the State and comment no further on this issue.

Affirmed.

Klingensmith and Kuntz, JJ., concur.

      Richardson v. State , 246 So.2d 771 (Fla. 1971).

      The court did not view the video, but we have reviewed it on appeal. The person the defendant claims is him is barely identifiable.

      We find no merit in the last issue concerning the trial court's denial of the defendant's motion for new trial.