text:
    Craig SIMMONS, Appellant, v. JACKSON MEMORIAL HOSPITAL, etc., et al., Appellees.
    No. 3D17-2291
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Akbar Law Firm, P.A., and Mutaqee N. Akbar and Brandi J. Thomas (Tallahassee), for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and Korissa Lepore, Assistant County Attorney, for appellee Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SCALES, J.

Appellant Craig Simmons, the plaintiff below, appeals a circuit court order granting appellee, the defendant below, Jackson Memorial Hospital's (the "Hospital") motion to dismiss Simmons's amended complaint with prejudice. We reverse the trial court's dismissal order because the allegations in Simmons's amended complaint do not establish, as a matter of law, that Simmons's lawsuit against Hospital is a claim for medical malpractice that requires compliance with the notice provision of section 766.106 of the Florida Statutes.

I. Facts and Procedural Background

Simmons was a resident psychiatric patient at a facility operated by Hospital. On October 11, 2013, another resident psychiatric patient, Gerald Allen, came into Simmons's room and beat Simmons with a metal handrail that Allen had removed from a hallway wall of the hospital. Simmons suffered injuries to his face and head.

Simmons sued Hospital for negligence, and in his multi-count amended complaint, Simmons alleged that Hospital had an affirmative duty both to (i) provide security to Simmons, and (ii) train its staff to recognize and address emergency situations such as the assault on Simmons. Simmons alleged that Hospital breached these duties by failing to correct the situation before the assault on Simmons occurred, and by failing to properly train its staff members to provide proper supervision and control of their psychiatric patients.

Hospital moved to dismiss Simmons's amended complaint, asserting that, irrespective of how Simmons's counts were labeled, Simmons's claims were actually medical malpractice claims, and that dismissal, therefore, was required because Simmons did not provide Hospital with the pre-suit notice required by section 766.106(2)(a) of the Florida Statutes. Focusing on both the allegations of Simmons's amended complaint and the relevant statutory language of Florida's medical malpractice act, chapter 766 of the Florida Statutes (2013), Hospital argued that (i) Simmons's complaint - alleging Hospital's failures of security, supervision and training - essentially asserted a "breach of the prevailing professional standard of care," § 766.102(1), Fla. Stat. (2013) ; and (ii) Simmons's alleged damages arose "out of the rendering of, or the failure to render, medical care or services." § 766.106(1)(a), Fla. Stat. (2013). These allegations, according to Hospital, were sufficient to bring Simmons's claim within the ambit of chapter 766, requiring compliance with chapter 766's conditions precedent.

Agreeing with Hospital's argument, the trial court granted Hospital's motion, and dismissed Simmons's amended complaint with prejudice. Simmons timely appealed.

II. Standard of Review

"The determination of whether a complaint alleges a claim for medical malpractice is a legal one and is, therefore, reviewed de novo." Nat'l Deaf Academy, LLC v. Townes, 242 So.3d 303, 308 (Fla. 2018). "Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any 'doubt' as to whether a claim is for ordinary negligence or medical malpractice should be 'generally resolved in favor of the claimant.' " Id. at 309 (quoting J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945, 947 (Fla. 1994) ).

III. Analysis

A negligence claim constitutes medical malpractice when the claim arises out of the "rendering of, or the failure to render, medical care or services." § 766.106(1)(a), Fla. Stat. (2013). Statutory restrictions on a medical malpractice claim make a plaintiff's litigation path significantly more formidable than a claim that sounds in ordinary negligence. For example, medical malpractice has a shorter statute of limitations period than negligence; pre-suit notice to the defendant is a condition precedent to bringing a medical malpractice claim; and, there are more restrictions on proof in a medical malpractice action. See generally, Townes, 242 So.3d at 308-09.

As a result of the statutory obstacles imposed on medical malpractice claimants, this Court's appellate decisions have delved into the distinction between a medical malpractice and an ordinary negligence claim, concluding that the determinative factor is whether the plaintiff, in order to prevail, must rely upon the medical negligence standard of care as set forth in section 766.102(1). See, e.g., Acosta v. Healthspring of Fla., Inc., 118 So.3d 246, 248-49 (Fla. 3d DCA 2013) (concluding that hospital's failure to transport patient timely did not implicate medical negligence standard of care, and therefore sounded in ordinary negligence); S. Miami Hosp., Inc. v. Perez, 38 So.3d 809, 811-12 (Fla. 3d DCA 2010) ; Tenet S. Fla. Health Sys. v. Jackson, 991 So.2d 396, 399-400 (Fla. 3d DCA 2008) (concluding that allegations a nurse and hospital failed to render appropriate medical care and treatment implicated medical negligence standard of care so that the claim was a medical malpractice claim); Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469-70 (Fla. 3d DCA 2006) ; Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356, 357-58 (Fla. 3d DCA 2003) (concluding that plaintiff's claim that hospital's dietary plan had exacerbated her food poisoning sounded in medical malpractice because the plan was part of plaintiff's medical treatment).

We elaborate on two of these cases from our Court to better illustrate how the applicable standard of care determines whether the plaintiff's claim is one for medical malpractice rather than ordinary negligence. In South Miami Hospital, Inc. v. Perez, the plaintiff alleged the defendant was negligent in leaving the patient unrestrained and unattended in his hospital bed. We determined that the complaint's allegations could be proven only through evidence that the provider's conduct fell below the prevailing medical standard of care, so that the plaintiff's claim was one for medical malpractice. Perez, 38 So.3d at 812. By contrast, in Quintanilla v. Coral Gables Hospital, Inc., a nurse injured a patient by spilling scalding hot tea on the patient's legs. This Court concluded that the plaintiff's claim did not implicate the nurse's medical skill or judgment; therefore, the claim sounded in negligence rather than medical malpractice. Quintanilla, 941 So.2d at 470.

Similarly, in Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011) - a case from our sister court relied upon heavily by Simmons - Joseph, a fourteen-year-old psychiatric resident patient was attacked by another patient who had bullied Joseph during the weeks preceding the attack. Joseph had asked to be separated from the attacker, but the hospital staff refused his request, and Joseph suffered a severe injury to his eye after the attacker punched him. Id. at 915. Joseph sued the psychiatric facility for ordinary negligence. In determining that Joseph's claim was one for negligence rather than for medical malpractice, the court concluded that no "psychiatric treatment decisions resulted in [Joseph's] exposure to the injury he suffered." Id. at 919-20. The court held that a claim is one for medical malpractice when a defendant is liable under the medical negligence standard of care set forth in section 766.102(1). Id. at 917. The court declined to adopt the approach that "everything that happens in a psychiatric care facility is psychiatric treatment." Id. at 919.

While these appellate decisions seem to focus on the requisite standard of care implicated by the plaintiff's allegations, our Florida Supreme Court recently amplified this approach by focusing also on the act from which the claim arises. Specifically, our Supreme Court concluded:

[W]e hold that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. This inquiry involves determining whether proving the claim requires the plaintiff to establish that the allegedly negligent act 'represented a breach of the prevailing professional standard of care,' as testified to by a qualified medical expert.

Townes, 242 So.3d at 311-312 (quoting § 766.102(1), Fla. Stat. (2013) ).

In Townes, a nurse, hired by the defendant residential treatment facility for the disabled, injured a patient by employing an aggressive hold technique to prevent the patient, who had been diagnosed with several disorders, from continuing to vandalize the defendant's facility. Id. at 306. The record reflected that, while only a doctor could authorize this aggressive hold technique as part of a patient's medical plan, whether to employ the hold in any given situation was a decision made by the most senior person present who is trained and qualified to administer the hold. Id. at 307. The record also reflected that all of the defendant's employees - including non-medical personnel - were so trained and qualified. Id. The nurse's use of the aggressive hold technique allegedly resulted in the patient falling and injuring her leg to the extent that the patient's leg required amputation. The patient sued the facility for ordinary negligence. Id. at 306.

The trial court determined that, because the patient's injuries arose out of the facility's rendering of medical care and services, the claim was a medical malpractice claim. The trial court granted the defendant's summary judgment motion because the patient had not provided the facility with the statutorily required pre-suit notice. Id. at 307-08. The Fifth District reversed, concluding that the aggressive technique employed by the nurse to restrain the patient was unrelated to treatment or diagnosis of any medical condition, and therefore the claim was one for ordinary negligence rather than medical malpractice. Id. at 308.

In approving the Fifth District, the Florida Supreme Court focused not only on the standard of care implicated by the claimant's allegations, but also upon the actual act causing the claimant's damages. The Townes court concluded that the aggressive hold caused the patient's injuries, and proof that the defendant's nurse negligently applied such hold "will not require testimony from a medical expert on the professional standard of care." Id. at 314. The Court concluded that the defendant's administering of the aggressive hold may have been required to control the patient, but was not part of an effort by staff to provide the patient with any medical care or services. In sum, the Court determined that the plaintiff's claims sounded in ordinary negligence because, for a negligence claim to be a medical malpractice claim, "the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill." Id. at 311 (emphasis supplied).

Whether the Court's holding in Townes will transform an admittedly grey area into one that is black and white remains uncertain. But the application of Townes to the instant case plainly requires reversal of the trial court's dismissal order. In this case, Simmons was attacked in his room by a fellow psychiatric patient. Hospital, citing the now disapproved First District decision in Shands, argues that this unfortunate event implicated the medical malpractice standard of professional care - i.e., staff training and staff supervision of patients - thus giving rise to a medical malpractice claim. Townes instructs, however, that, because the act causing Simmons's injury did not directly result from Hospital's provision of medical care or services requiring staff's professional judgment or skill, Simmons's claim is not one for medical malpractice. Simmons's alleged injuries, like those suffered by the plaintiffs in Townes, Joseph, and Quintanilla, were not occasioned by acts directly related to medical care or treatment implicating an inquiry into the medical malpractice standard of care articulated in section 766.102(1).

IV. Conclusion

Based on our de novo review of Simmons's amended complaint, we are unable to conclude that the act from which Simmons's claim arises - the attack on Simmons by Allen - is directly related to Hospital's medical care or services, which would require the use of professional judgment or skill. Therefore, we do not characterize Simmons's claims as ones for medical malpractice; and consequently, Simmons was not required to give Hospital pre-suit notice pursuant to section 766.106(2)(a).

Reversed and remanded.

      In addition to a negligence count, Simmons asserted claims for "strict vicarious liability" and "gross negligence" against Hospital, along with a battery count against Allen.

      After pre-suit investigation and before filing a complaint for medical malpractice, a claimant must notify each prospective defendant of the intent to initiate litigation.

      The statute of limitations for a medical malpractice claim is two years, see § 95.11(4)(a), Fla. Stat. (2013), while the statute of limitations for a negligence claim is four years. See § 95.11(3)(a), Fla. Stat. (2013).

      See § 766.106(2)(a), Fla. Stat. (2013).

      See § 766.102, Fla. Stat. (2013).

      This statute reads, in relevant part, as follows:
      In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider ..., the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.
      § 766.102(1), Fla. Stat. (2013). The alleged "breach of the prevailing professional standard of care" must be testified to by a qualified medical expert. § 766.102(5), Fla. Stat. (2013) ; see Townes, 242 So.3d at 309.

      The Florida Supreme Court accepted jurisdiction in Townes, finding conflict between the Fifth District's opinion in Townes v. National Deaf Academy, LLC, 197 So.3d 1130 (Fla. 5th DCA 2016) and the First District's opinion in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla 1st DCA 2015). In Shands, a psychiatric patient took an employee's unattended keys and badge, escaped the hospital grounds, and was hit and killed by a truck on a nearby highway. The First District's opinion - disapproved by the Florida Supreme Court - concluded that the plaintiff's case sounded in medical malpractice because it required proof of the adequate confinement of a psychiatric patient. Id. at 332-34. We note that the trial court in the instant case did not have the benefit of the Florida Supreme Court's decision in Townes when it adjudicated Hospital's motion to dismiss.

      See footnote 7, supra .


source: Caselaw Access Project

author: Rowe, J.

license: Public Domain

text:
    Anthony Delane WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5447
    District Court of Appeal of Florida, First District.
    August 1, 2018 Rehearing Denied September 21, 2018
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

After a jury trial, Anthony Delane Washington was convicted of first-degree murder and burglary with an assault or battery. On direct appeal, he argues that his convictions and sentences should be vacated because the incriminating statements he made to the police should have been suppressed. We disagree and affirm.

I. Facts

Washington was a suspect in the murder of Alphonso Doss because he was having an affair with Doss's wife. Washington was first interviewed by police nine days after the murder. A second interview was conducted six months later after Washington voluntarily drove himself to the police station. The interview began around 10:17 p.m. and continued until the early morning hours of the following day.

Approximately twelve minutes after Washington entered the interrogation room and before any questioning began, the following exchange occurred between Washington and Detective Monroe:

MONROE: All right, you have the right to remain silent. If you understand that, just put, put your initials right there for me. All right. Uh, anything you say can and will be used against you in a court of law. If you understand that just put your, initials there for me. Uh, you have the Right to talk to a lawyer and to have them present with you while you're, being questioned. If you understand that put your
WASHINGTON: Do I need that?
MONROE: What's that?
WASHINGTON: Do I need him?
MONROE: A-a lawyer? I'm, I'm not a lawyer. I can't really tell you that stuff. Uh, if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. If you understand that put your initials there. Uh, you can decide at any time to exercise these Rights and not answer any questions or make any statements. All right. Lastly, I have carefully read and listened to the above information. I fully understand my Rights. If you understand that? Put your initials there for me. And if you could sign there if you agree to everything we just went, went over. I think there's a place to print, address and stuff in there.

Thirteen minutes later, Washington inquired again about his right to counsel:

WASHINGTON: Yeah, I mean if you got something, do I need to call my lawyer, or call (inaudible) I mean at, if you got me as a suspect I mean.
MONROE: Well listen, I can't, I can't give you legal advice, okay? I can tell you right now that, we wanna hear, we wanna give you the opportunity to talk to us and that's why we're here.
WASHINGTON: Okay.

The interrogation continued for over ninety minutes before the following exchange occurred between Washington and Detectives Monroe and Singletary:

WASHINGTON: So will I walk outta here tonight?
MONROE: Well, we don't know what you're gonna tell us Anthony.
SINGLETARY: We won't know the answer to that.
MONROE: Until you tell us.
SINGLETARY: Until we even know what happened. Cause only you, how will we, how will we know that?
WASHINGTON: Can I call my lawyer?
SINGLETARY: We can't tell you no.
MONROE: Sometimes, there comes a time, in your life Anthony where, you have to make a decision, all right? And you as a father know, with your children, that they're gonna have things come up in their life, and you being raised the way that you were, I know, that you want them to make the right decisions, to be honest, to be truthful, to be good, good hearted young men. That's how we raise our, our children. I have a son. I would want to raise him the same way, all right? Part of being a father, is not only, giving the right example to your children, but setting the example.
WASHINGTON: Okay.
MONROE: So ten years from now, fifteen years from now, you need to be able to look at your kids in their face and say look, I did the right thing. I led by example. I told the truth.
WASHINGTON: Let's get this on the way. Um. He came in lit. I was sitting on the bed. We had, we exchanged words, uh, I told him what I thought.

Before Washington could proceed with his statement, the detectives were asked by their supervisors to exit the interrogation room for a few minutes. When they returned, Detective Monroe reminded Washington of his rights:

MONROE: All right Anthony, um, something I want to address with you, okay? Um, here's the deal, okay? A minute ago, all right, and the most important thing here is that we've, we've made a conscious decision, that you're gonna be a good father and you're gonna led by example, not by, doing as I do, you know, you know that whole saying where you know, you don't do it but you tell it you got something or someone else to do it.
WASHINGTON: Yeah.
MONROE: Okay, a minute ago, okay, you brought up talking to a lawyer. All right, we went over at the beginning of this whole thing, your - your Rights, okay?
WASHINGTON: Yeah.
MONROE: Now, I want you, I wanna ask you again, all right, you went over, you know your Rights, okay, but you also know what's, what you're about to tell us. Okay? Now, listen, we, if you want to call your lawyer, you can call your lawyer.
SINGLETARY: Yeah, like I said, we can't tell you no.
MONROE: Okay, but if you don't wanna call your lawyer, and you wanna continue to tell us what you're about to tell us, listen, man to man, you can do that. And I will respect you from sitting over there and me sitting over here, because like I said, we both have kids. We both have sons. And we know what's, what's right and what's wrong.

After considering this statement for almost thirty seconds, Washington continued to speak to the detectives.

WASHINGTON: Okay.
MONROE: Okay? So,
WASHINGTON: That what, that's what I wanna ask you, man to man, sitting here, am I walking out that door?
SINGLETARY: Like I told you before, we don't know what you're gonna tell us.
MONROE: Until you tell us.
SINGLETARY: And, I told you, if you tell us something, that is not clear to us, and is a violation of law, we will confer with the State Attorney, before we make a decision on what we're gonna do.
WASHINGTON: Tonight?
SINGLETARY: Tonight. Tonight.

Washington paused to consider this response. Then, he proceeded to make incriminating statements about the circumstances surrounding Doss's murder.

Washington moved to suppress his statements, arguing that they were not freely and voluntarily given because the detectives ignored his repeated requests for counsel and downplayed the significance of the Miranda warnings. After considering argument from counsel and viewing the video recording of Washington's interrogation, the trial court found that there was no delay in the administration of Washington's rights and that there was no indication that he was intimidated, coerced, or deceived into waiving his rights. The court further found that Washington never clearly and unequivocally requested counsel during the interrogation. The trial court denied the motion to suppress and the case proceeded to trial.

A jury found Washington guilty of first-degree murder during the commission of a burglary and burglary with an assault or battery. Washington was sentenced to concurrent terms of life imprisonment and thirty years' imprisonment. This timely appeal follows.

II. Standard of Review

A trial court's ruling on a motion to suppress is subject to a mixed standard of review. The court's factual findings will be affirmed if they are supported by competent, substantial evidence. Scott v. State , 151 So.3d 567, 573 (Fla. 1st DCA 2014). The trial court's conclusions of law are reviewed de novo. Id.

III. Analysis

It is well-settled that police officers must immediately stop an interrogation when a suspect clearly and unequivocally requests counsel at any time during a custodial interview. Davis v. United States , 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Failure to do so requires suppression of any statements made after the suspect has invoked his right to counsel. Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, the police are not required to stop an interview when a suspect makes an equivocal or ambiguous request for counsel. State v. Carter , 172 So.3d 538, 540 (Fla. 5th DCA 2015). Statements such as "maybe I should talk to a lawyer" are not unequivocal requests for counsel. Id. These types of statements do not require the police to ask clarifying questions as long as the suspect was properly advised of his rights. Spivey v. State , 45 So.3d 51, 54 (Fla. 1st DCA 2010). "The suspect must 'articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.' " Id. (quoting State v. Owen , 696 So.2d 715, 718 (Fla. 1997) ). When determining whether a suspect's statement was an unequivocal request for counsel, a reviewing court must consider the totality of the circumstances. Deviney v. State , 112 So.3d 57, 72 (Fla. 2013). Along with the suspect's words, the suspect's conduct may indicate an invocation of the right to remain silent. Id.

Often, a suspect will not invoke the right to counsel, but instead, will ask the interrogating officer questions about his rights. When "a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer."

Almeida v. State , 737 So.2d 520, 525 (Fla. 1999). If the officer properly answers the question, the interrogation can resume - assuming the suspect does not invoke his rights. Id. The supreme court emphasized that law enforcement officers are not required to "act as legal advisors or personal counselors for suspects." State v. Glatzmayer , 789 So.2d 297, 305 (Fla. 2001). "All that is required of interrogating officers ... is that they be honest and fair when addressing a suspect's constitutional rights." Id.

Washington argues that his incriminating statements should have been suppressed because he made multiple unequivocal requests for counsel and the detectives did not provide simple and straightforward answers when he inquired about his rights. Washington identifies three portions of the interrogation in which he asserts he invoked his right to counsel, which we will address in turn.

A. "Do I need that?/Do I need him?

At the beginning of the interview, Washington asked whether he was a suspect in the murder of Doss. Detective Monroe explained that he was trying to eliminate individuals as suspects and that Washington needed to fill out the waiver form before the interview could proceed. Washington was asked to initial each of the statements if he understood them. Detective Monroe assured Washington that the use of the form did not mean that Washington was a suspect. When Detective Monroe read the statement informing Washington of his right to an attorney, Washington asked, "Do I need that?" and "Do I need him?"

Washington asserts that these questions invoked his right to counsel and that the interrogation should have stopped. But we find that these questions were not unequivocal requests for counsel. See Walker v. State , 957 So.2d 560, 571-74 (Fla. 2007) (holding that suspect's statement, "I think I may need a lawyer," and question asking detectives whether he needed counsel were not unequivocal requests for counsel). Rather, these questions by Washington amounted to requests for advice about his rights. And Detective Monroe satisfied the requirements of Almeida and Glatzmayer by temporarily stopping the interrogation to explain to Washington that he was not an attorney and could not advise Washington about whether an attorney was needed. Washington did not invoke his right to counsel and indicated his continued willingness to talk to the detectives after being fully advised of his rights. The interview was properly continued.

B. "Do I need to call my lawyer?"

Almost fifteen minutes after signing the waiver form, Washington asked if he was a suspect and inquired, "do I need to call my lawyer?" Detective Monroe informed Washington that he was not qualified to give legal advice and that he wanted to hear what Washington had to say. Although Washington again asserts that his right to counsel was invoked, we conclude that his question "do I need to call my lawyer?" was not an unequivocal request for counsel. See Spivey , 45 So.3d at 55 (holding that the statement "I mean if I am being held and I'm being charged with something I need to be on the phone calling my lawyer" was not an unequivocal request for counsel). Rather, it was a prefatory question about his rights. See State v. Hineline , 159 So.3d 293, 297-98 (Fla. 1st DCA 2015) (holding that the question "do you think I'm going to need a lawyer" was not an unequivocal request for counsel, but a prefatory question requiring a simple and straightforward response). Again, Detective Monroe satisfied the requirements of Almeida and Glatzmayer by informing Washington that he could not provide legal advice. Washington did not invoke his rights and indicated his continuing willingness to speak to detectives after being fully advised of his rights. The interview was properly resumed.

C. "Can I call my lawyer?"

After ninety minutes of questioning, Washington asked whether he would be able to leave the police station that night if he told the detectives his story. The detectives repeatedly declined Washington's request for them to guarantee that he would be able to leave the station; rather, they assured him that if there was any question regarding the legality of his actions they would contact the State Attorney's Office that night to resolve the issue. Washington then asked, "Can I call my lawyer?" Detective Singletary responded, "We can't tell you no." After pausing for ten seconds with no response from Washington, Detective Monroe suggested that Washington should consider how he could set a good example for his son by doing the right thing.

Then, when Washington began to make a statement about the night in question, the interview was stopped by the detectives' supervisor. After two minutes, Detective Monroe resumed the interrogation and explained to Washington, "if you want to call your lawyer, you can call your lawyer." Detective Singletary confirmed that they could not tell him not to call his lawyer. Washington again asked about leaving the station, and the detectives repeated that they could not answer that question without knowing what Washington would tell them. After consideration of these answers, Washington made the incriminating statements that were used against him at trial.

Whether the question "Can I call my lawyer?" unequivocally invokes the right to counsel depends on the context in which the suspect poses the question. In some circumstances, courts have found the question to unequivocally invoke the right to counsel. See United States v. de la Jara , 973 F.2d 746, 750-51 (9th Cir. 1992) (finding the question was an unequivocal request for counsel where the interrogating officer told another officer that it sounded like the suspect had invoked his right to counsel because the suspect "had just asked to call his attorney"); see also Kamyab v. Uribe , 2009 WL 1520022, *15-16 (C.D. Cal. May 29, 2009) (finding the question an unequivocal request for counsel without further explanation); Laurito v. State , 120 So.3d 203, 204-06 (Fla. 5th DCA 2013) (finding that the question "Can I make a phone call so I can get a lawyer?" when asked immediately after an officer gave the Miranda warnings was an unequivocal request for counsel). In other circumstances, courts have held that the question "Can I call my lawyer?" does not invoke the right to counsel but is merely a prefatory question about the suspect's rights. See Ford v. Hall , 546 F.3d 1326, 1339 (11th Cir. 2008) (finding the question was ambiguous where the suspect had just been informed that the police believed he was responsible for the crime in question and the interrogating officer advised the suspect that he could call a lawyer); Dormire v. Wilkinson , 249 F.3d 801, 805 (8th Cir. 2001) (finding the question was not unequivocal where the suspect had just asked if he could contact his girlfriend and officers could reasonably believe the suspect was merely inquiring about whether he had the right to call counsel); United States v. Laughlin , 2012 WL 3065404, *20-21 (N.D. Ga. July 6, 2012) (finding the question did not invoke the right to counsel where the interrogating officer's clarifying questions led the suspect to state that he was not finished talking to the police); United States v. Brown , 2006 WL 2314057, *16 (D. Minn. Aug. 9, 2006) (finding that the question did not invoke the right to counsel based on the suspect's answers to the clarifying questions asked by the detectives).

Here, considering the context surrounding the question, we conclude that Washington did not unequivocally invoke his right to counsel. The detectives had read the Miranda rights over ninety minutes before this point in the interrogation. The detectives had just described incriminating evidence they had against him when Washington asked if he was free to leave and if he was going to "walk outta here tonight." Immediately after asking those questions, Washington inquired, "Can I call my lawyer?" The question was reasonably interpreted by the detectives to be an inquiry by Washington about whether he could contact an attorney as opposed to expressing a desire to terminate the interview and speak with counsel at that precise moment.

In response, the detectives answered Washington's question simply and directly in compliance with the requirements of Almeida and Glatzmayer. The record, including the unredacted video recording of the interrogation, demonstrates that the detectives did not steamroll Washington, play good cop/bad cop, or talk over him in an effort to coerce his confession. Cf. Ross v. State , 45 So.3d 403, 424-25 (Fla. 2010) (holding that a confession was involuntary when the police made the deliberate decision to delay the giving of the Miranda warnings until several hours into the custodial interrogation and the lengthy interrogation was conducted in a highly accusatory manner). The video recording of the interrogation shows that the detectives paused after answering Washington's questions to allow him to consider his rights. It was only after a long pause that Detective Monroe resumed the interrogation. Washington did not thereafter invoke his right to counsel and indicated his willingness to speak to the detectives after being fully advised of his rights.

Because Washington did not unequivocally invoke his right to counsel, and the detectives provided straightforward and simple answers to Washington's questions about his rights, we hold that the trial court properly denied Washington's motion to suppress.

AFFIRMED.

WETHERELL and JAY, JJ., concur.


author: Per Curiam.

text:
    Derrick ALLEN, Appellant, v. R.M. SCORE, Senior Clerk, T.R. Washington, Senior Class Officer, J.N. Been, Lieutenant, Michael Booker, Acting Warden, and Richard D. Comerford, Superintendent, Santa Rosa Correctional Institution, and Julie L. Jones, Secretary, Florida Department of Corrections, Appellees.
    No. 1D17-2902
    District Court of Appeal of Florida, First District.
    August 1, 2018 Rehearing Denied September 26, 2018
    Derrick Allen, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kenneth S. Steely, Assistant Attorney General, Tallahassee, for Appellees.
   Per Curiam.

Appellant challenges the trial court's order dismissing his action against Appellees in which he alleged that he was wrongfully disciplined at his correctional institution. The court dismissed the action with prejudice for a number of reasons, including the failure to state a cause of action for damages in tort, the untimeliness of the filing, res judicata and collateral estoppel, and immunity of the individual defendants. We affirm.

We additionally conclude that this appeal is frivolous. Accordingly, the Clerk of this Court is directed to provide a certified copy of this opinion to the Department of Corrections for referral to the appropriate institution for disciplinary procedures. See § 944.279, Fla. Stat. (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

AFFIRMED .

Ray, Kelsey, and Winsor, JJ., concur.


author: Winokur, J.

text:
    TAYLOR, BEAN & WHITAKER MORTGAGE COMPANY and Goshen Mortgage, LLC, as successor in interest to Taylor, Bean & Whitaker Mortgage Company, Appellants, v. Joseph M. WRIGHT and Megan L. Wright, Appellees.
    No. 1D17-1432
    District Court of Appeal of Florida, First District.
    August 3, 2018 Rehearing Denied September 21, 2018
    Cameron H.P. White and Jason R. Hawkins of South Milhausen, P.A., Orlando, for Appellants.
    Lynn Drysdale, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellees.
   Winokur, J.

Appellant, Taylor, Bean & Whitaker Mortgage Company (Taylor), appeals the trial court's entry of Final Judgment, which awarded attorney's fees and costs against Taylor's successor-in-interest, Goshen Mortgage, LLC (Goshen). Florida Rule of Civil Procedure 1.260(c) requires that the substitution of parties occur upon motion to the trial court, which never occurred here. As a result, the lower court erred by sua sponte substituting Goshen as the Plaintiff.

I.

Joseph and Megan Wright entered into a mortgage with Taylor for a property located in Yulee. The Wrights defaulted and Taylor filed a complaint against them. Later in the litigation, Taylor went into bankruptcy and their interest in the Wrights' mortgage was assigned to Goshen. Goshen's counsel filed a Notice of Appearance as Taylor's co-counsel. Goshen, as "successor-in-interest" to Taylor, moved to dismiss the case and to cancel notice of lis pendens , and requested the original mortgage documents back from the court file, which the trial court granted. In turn, the Wrights then moved for a Judgment Awarding Costs and Attorney's Fees.

One of the primary issues at the hearing on the Wrights' motion was whether Goshen was the proper plaintiff in this action, subject to attorney's fees. Goshen and Taylor both argued that Taylor was the proper plaintiff, because Goshen was never substituted as plaintiff, in spite of the fact that it filed a motion to dismiss. The trial court found that Goshen's dismissal of the foreclosure suit as successor-in-interest made Goshen the "de facto" plaintiff. Accordingly, the trial court on its own motion substituted Goshen as the Plaintiff.

After the hearing, the trial court entered the Final Judgment Awarding Attorney's Fees and Costs Against Goshen.

II.

When a trial court's decision is based, in part, on factual findings, it presents a mixed question of law and fact. Gainesville Health Care Ctr., Inc. v. Weston , 857 So.2d 278, 283 (Fla. 1st DCA 2003). The trial court's factual findings are reviewed under a competent, substantial evidence standard. Id. However, the trial court's application of the law to the facts is reviewed de novo . Id.

Florida Rule of Civil Procedure 1.260(c) governs substitution of parties to an action:

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

We find that the trial court did not comply with the requirements of Rule 1.260(c). As such, Goshen was never properly substituted as Plaintiff in this case.

III.

Goshen became Taylor's successor-in-interest when it acquired the Wrights' mortgage. Under this authority, Goshen voluntarily dismissed Taylor's foreclosure action against the Wrights. Rule 1.260(c) permits Goshen to seek dismissal on behalf of Taylor. Moreover, the rule makes clear that a successor-in-interest may continue an action of the original plaintiff "unless the court upon motion " substitutes the successor-in-interest as the plaintiff. Fla. R. Civ. P. 1.260(c) (emphasis added). This never occurred here.

As a result, this case is similar to Tinsley v. Mangonia Residence I, Ltd. , 937 So.2d 178 (Fla. 4th DCA 2006). In Tinsley , the original plaintiff, Vikar Associates, instituted foreclosure proceedings against Mangonia Residence. Id. During the litigation, Vikar assigned its interest in the mortgage to Tinsley. Id. Vikar later moved to substitute Tinsley as the plaintiff, but the trial court never heard the motion. Id. Eventually, the foreclosure proceedings were dismissed. Id. Mangonia then sought attorney's fees from both Vikar and Tinsley, and the trial court awarded them fees from Tinsley. Id. The district court reversed the fee order based on Rule 1.260(c), holding that "[b]ecause no party obtained a court order substituting Tinsley for Vikar, Vikar, as the rule permits, remained as the party pursuing the action, and the court was without jurisdiction to award fees or costs against Tinsley, a non-party." Id. at 180. The same analysis applies here. Taylor remained the proper plaintiff and the court could not order Goshen to pay attorney's fees.

The Wrights attempt to distinguish this case by asserting that, unlike Tinsley, Goshen acted to voluntarily dismiss the action, which had the effect of substituting itself for Taylor and made it the "de facto" plaintiff here. Indeed, the trial court also used this reasoning in its ruling. We disagree. Rule 1.260(c) provides that a party to whom the plaintiff's interest has been transferred can continue an action on behalf of the original plaintiff, including filing a voluntary dismissal. If a successor-in-interest becomes the plaintiff merely by filing a motion in the action, then the specific requirements to substitute parties contained in Rule 1.260(c) becomes meaningless.

A successor-in-interest can become a party to an action by making a motion to the trial court pursuant to Rule 1.260(c). Indeed, Florida courts have recognized that once a plaintiff has assigned its interests in an action a trial court has two options: "(1) to allow the action to be continued in the name of the plaintiff; or (2) to allow [the successor] to be either substituted for or joined with the original party-plaintiff." Levine v. Gonzalez , 901 So.2d 969, 972 (Fla. 4th DCA 2005) (quoting Schmidt v. Mueller , 335 So.2d 630, 631 (Fla. 2d DCA 1976) ). The trial court's unilateral substitution of Goshen as the plaintiff violated the requirements of Rule 1.260(c).

We note that after the voluntary dismissal of Taylor's action by Goshen, the trial court did not have jurisdiction to substitute Goshen as the plaintiff. See Randle-Eastern Ambulance Serv., Inc. v. VASTA , 360 So.2d 68, 68-69 (Fla. 1978) (holding that "a plaintiff's volitional dismissal divests a trial court of jurisdiction to entertain a later request to be relieved from the dismissal" and that a "trial court loses jurisdiction to proceed in any way beyond the announcement of dismissal"). Because the trial court's unilateral substitution of Goshen as the plaintiff occurred several months after the voluntary dismissal, it acted without jurisdiction. While the trial court had jurisdiction to hear the motion for attorney's fees, it did not have jurisdiction to substitute the plaintiff.

IV.

In conclusion, Goshen could dismiss the foreclosure suit as Taylor's successor-in-interest without substituting itself as the Plaintiff. Pursuant to Florida Rule of Civil Procedure 1.260(c), a trial court must rule on a motion for substitution before it can substitute a party to an action. The trial court's sua sponte substitution of Goshen as the Plaintiff was error. We reverse the entry of Final Judgment and remand to the trial court for proceedings consistent with this opinion.

REVERSED and REMANDED .

Wolf and Jay, JJ., concur.

      We reject other issues raised in this appeal.


author: Roberts, J.

text:
    William J. CORMIER III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0691
    District Court of Appeal of Florida, First District.
    August 3, 2018 Rehearing Denied September 20, 2018
    William J. Cormier III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Roberts, J.

The Appellant, William J. Cormier III, appeals from an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

The Appellant was indicted by a grand jury for first-degree murder. The evidence presented at trial reflected that the victim was last heard from on August 27, 2012, when he called a family friend, Patricia Burke, from an unfamiliar number and made plans to meet her at 1:45 p.m. When she arrived at his home at 1:15 p.m., the Appellant was leaving the house. The Appellant told her that the victim was not home, his plans had changed, and he had been delayed. Ms. Burke expressed concern for the victim because he had been in poor health when she spoke to him. After the Appellant left, Ms. Burke waited at the home, hoping to see the victim. The Appellant called her less than ten minutes later from the same number the victim had called from that morning. He told her that he had spoken to the victim, who would not be home for hours, and Ms. Burke should go home.

The evidence reflected that the victim had a collection of Magic: the Gathering cards worth between $50,000 and $100,000. Some of these cards were signed by the creator of the game. In particular, he had a Black Lotus card, which was described as "the number one card you can purchase," as it was an out-of-print card with a low print run. He also had rare cards such as a Time Walk and a Mox Ruby.

The weekend after the victim's disappearance, the Appellant attended a sci-fi convention in Atlanta, where he approached a pair of vendors with a valuable Magic: the Gathering card collection. The Appellant sold them some of the cards for $5,844. His twin brother, Christopher Cormier, was present during the negotiations, but did not participate or receive any money. After the convention, the Appellant, who did not own a car and had been driving a rental car provided by his father, paid cash for a Chrysler Sebring.

On September 3, 2012, the Appellant rented a U-Haul and storage unit in Florida and started emptying the victim's home. He hired a yard service to work on the yard and haul some items from inside the house to a landfill. He told the owner of the yard service that he owned the house and his renters had moved out. When a curious neighbor stopped by, he told the neighbor that the victim was moving in with him. While the Appellant was at the house, his brother, Christopher, injured his arm trying to push open a window, and the Appellant took him to the hospital. The Appellant returned without his brother and continued moving the victim's belongings. The Appellant paid the yard crew and arranged for people to clean the house. He also paid the cleaning crew.

On September 6, 2012, the Appellant emptied the storage unit. The Appellant's brother was present at the time, but unable to help due to his injured arm. The Appellant did not tell the business that he was emptying the unit. It was discovered empty and unlocked during a walkthrough of the premises.

On September 7, 2012, Ms. Burke returned to the victim's house. There were no cars in his driveway, and the house was empty except for an old TV. The victim's father reported his son missing to law enforcement.

Subsequently, the Appellant arrived at his father's house in Georgia, driving a U-Haul. When he opened the back of the truck, his father noticed a horrible smell, like there was a dead animal inside. The Appellant told his father that a dog had died in Pensacola. Subsequently, the Appellant's father saw a number of Magic: the Gathering cards in the house. He also noticed his nephew digging in the backyard.

On September 8th or 9th, the Appellant helped make a barbecue pit in his father's backyard. He bought two-by-fours, stakes, cement buckets, and a mixer for the project. He built the frame and helped pour the concrete. He testified at trial that he had to do most of the work because his brother had hurt his hand.

On September 10, 2012, the Appellant met the two vendors from the sci-fi convention at a restaurant in Tennessee. They were meant to meet in Kentucky, but the Appellant's car broke down, so the location was changed. The Appellant and the vendors spent two to three hours haggling over Magic: the Gathering cards while Christopher watched and left periodically to smoke. The vendors paid $12,021 in cash for the cards, which included a Mox Ruby, a Time Walk, and a Black Lotus. The Mox Ruby card was signed by the creator of the game.

Afterwards, the Appellant's father picked up the Sebring in Tennessee. It ultimately required $2,000 in repairs, which the Appellant paid for. When the Appellant returned from Tennessee, he bought a BMW for $5,100. Later, one of the twins asked their father to throw away some spoons. He discarded them in a dumpster at a Sonic restaurant. He then received a phone call from a Pensacola detective about a missing person. He asked his sons what was going on, and one of them told him that they would remove what was in the backyard. He believed it was the Appellant who said this.

On October 8, 2012, a search warrant was executed at the Appellant's father's home. Beneath a pile of leaves in the backyard, police discovered a concrete slab encased by wood. When the slab was lifted, they found a blue plastic tote. Inside the tote were human remains that were later identified as the victim's. The victim's skull had been shattered by blows that appeared to have been caused by a hammer. Stab wounds and cuts appeared to have been inflicted post-mortem. His body was wrapped in plastic, and there were multiple air fresheners, fragrance oils, and a bag of potpourri inside the tote with him. The spoons discovered inside the nearby Sonic dumpster were identified as the victim's antique spoon collection. Blood in the back of the U-Haul truck rented by the Appellant was matched to the victim.

When the brothers were taken into custody, Christopher simply told the detective that he had not seen the victim in over a month. Meanwhile, the Appellant admitted to the detective that he and his brother had stayed at the victim's home before attending the sci-fi convention and that he had later spoken to the victim by phone. He advised that the victim had asked for help moving to Cantonment. The Appellant claimed to have loaded the victim's belongings and left them at a house in Cantonment with a man named John.

The Appellant's defense at trial was to blame his brother for the murder and claim that several other witnesses were lying. According to the Appellant, his father lied about the smell coming from the U-Haul and about him promising to move what was in the backyard after the police called. The victim's neighbor lied about him saying that the victim was moving in with him, and the owner of the yard service lied about the Appellant representing himself to be the owner of the victim's house. The Appellant admitted to lying to Ms. Burke, but claimed that he did so because his brother showed him a note from the victim indicating that the victim had fled from his home out of fear of people who had previously attacked him. He acknowledged lying during his police interview about helping the victim move to Cantonment, but claimed that his brother told him to do so while they were being arrested.

The Appellant claimed that he purchased the plastic tote, air fresheners, and tarp that were used to conceal the victim's body on his brother's instructions. He testified that he had to sell some of the victim's trading cards to pay for those items because he did not have enough money. He claimed that his brother showed him a note from the victim asking him to sell some of the trading cards due to the victim's financial problems. The Appellant indicated that it fell to him to sell the cards because he had ten years of experience selling Magic: the Gathering cards and kept himself apprised of the cards' prices. However, he denied knowing how valuable the victim's collection was until after he sold the cards. He testified that he packed up the victim's home and organized the cleaning and the yard work because his brother told him that the victim was moving.

At the conclusion of the trial, the Appellant was found guilty of first-degree murder and sentenced to life in prison. His conviction and sentence were affirmed on appeal. See Cormier v. State , 156 So.3d 1076 (Fla. 1st DCA 2015). He then filed the instant rule 3.850 motion, raising seven grounds for relief. The lower court summarily denied the motion, and this timely appeal followed.

In the Appellant's first ground, he raised two subclaims. In subclaim (a), he argued that his attorney was ineffective for failing to investigate and present evidence that he participated in poker tournaments. He alleged that this evidence would counter the State's theory that he committed the murder for monetary gain due to his own poor financial situation.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance a defendant must allege 1) the specific acts or omissions of counsel that fell below a standard of reasonableness under prevailing professional norms and 2) that the defendant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different.

Id. at 690-92, 104 S.Ct. 2052. The prejudice prong requires that the defendant demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See id. at 694, 104 S.Ct. 2052.

Here, the Appellant's trial counsel did present evidence regarding the Appellant's income at the time of the offense. The Appellant's father testified that the Appellant's primary form of income was from playing poker and that he was extremely good at it. He explained that the Appellant played in tournaments, standard cash games, and online poker games. The Appellant also testified that at the time of the offense, he was playing poker semi-professionally. He claimed that he did "extremely well" in tournaments and cash games. He further testified that he had purchased some Magic: the Gathering cards while attending a sci-fi convention in Indianapolis before staying at the victim's house. He indicated that he had earned money from selling those cards. During closing arguments, defense counsel stressed that while the State depicted the Appellant as being in poor financial straits at the time of the victim's murder, the Appellant had income from poker and from his trading cards and a paycheck waiting with his former employer back in Georgia.

Regardless, even if defense counsel had secured additional evidence regarding the Appellant's poker winnings, it would not have changed the outcome of the trial. The Appellant testified that he quit his job at Steak 'n Shake before the murder. He indicated during his police interview that he was unemployed. His father testified that the Appellant was unemployed from the time he went to visit the victim until the victim's body was discovered. Prior to the murder, the Appellant did not own a car, but was driving one his father had rented for him. The Appellant also testified that when he went to buy a plastic tote, some air fresheners, and a tarp at Wal-Mart on August 27, 2012, he did not have enough money for these items, so he had to sell some of the victim's trading cards to pay for them.

The Appellant bought the Sebring after selling the victim's trading cards, although he denied using the victim's money in that transaction. However, he testified that when the Sebring broke down, he had to borrow money from the victim to repair it. He claimed that his brother negotiated a deal with the victim via text messages that required him to sell the Sebring when he returned to Georgia and use the proceeds to repay the victim and buy another car. Instead, he returned to Georgia and bought a BMW, but continued to drive the Sebring up until his arrest.

Given this information, it is clear that the Appellant was not in good financial condition at the time of the murder, regardless of any poker winnings. He did not own a car, could not rent one for himself, and could not afford to buy relatively inexpensive items at Wal-Mart without using the victim's trading card money. By his own testimony, when the Sebring broke down, he could not afford to repair it. Under these circumstances, evidence of his poker winnings would not have disproven the financial motive for the victim's murder. Therefore, this subclaim was properly denied.

In subclaim (b), the Appellant argued that his attorney should have investigated and obtained records that would prove that he had given his father money to pay for the rental car. He alleged that his father did not have the income to pay for the car and that the utilities at his father's home were in the Appellant's name as well. He asserted that this would have undermined the State's evidence that he committed the murder for financial gain. He claimed that this would have changed the outcome of the trial. He also argued that this evidence could have been used to impeach his father's testimony.

This subclaim was properly denied for the reasons already discussed in connection with subclaim (a). By the Appellant's own testimony, at the time of the murder, he did not have the money to pay for air fresheners, a plastic tote, and a tarp. He was later unable to pay for the repairs to his Sebring without borrowing money. Evidence showing that he was helping to pay for a rental car and utilities would only have suggested an additional drain on his financial resources at the time. Therefore, there is no reasonable probability that this evidence would have changed the outcome of the trial.

In the Appellant's second ground, he argued that his attorney was ineffective for failing to call his nephew, Kirk Moksnes-Adamson, to testify at trial. He alleged that Mr. Moksnes-Adamson would have testified that Christopher asked him to dig the hole in the backyard where the victim's body was ultimately discovered. He asserted that this testimony would have created a reasonable doubt as to the Appellant's involvement in the murder.

The Appellant cannot show prejudice. Insofar as he suggests that this testimony would have implicated his brother in the murder, the evidence presented already established his brother's involvement. However, it also established that all of the actions taken to conceal the victim's death and dispose of the victim's property were taken by the Appellant. The Appellant admitted at trial that he lied to Ms. Burke about the victim's whereabouts when she came looking for the victim. He did not testify that his brother told him to lie to Ms. Burke, but indicated that he lied because the victim had fled his house out of fear of some people who had "jumped" him and he did not want to tell Ms. Burke the victim's business.

The Appellant subsequently bought the tarp, tote, and air fresheners used to dispose of the victim's body. He rented the U-Hauls and the Florida storage locker that were used to transport and store the victim's body and belongings. He negotiated the sale of the victim's trading cards and received the proceeds. He lied to the victim's neighbor about the victim moving in with him and lied to the yard crew about being the owner of the victim's house. Even after his twin hurt his arm and the Appellant took him to the hospital, the Appellant returned to the victim's home and continued moving the victim's belongings. He paid for yard work and cleaning services at the victim's home.

After driving the U-Haul to his father's house, it was the Appellant who explained the smell from the truck. He admitted at trial that he bought the supplies and did most of the work building the barbecue pit that was used to conceal the victim's body. After the Appellant was arrested, he lied to the detective about helping the victim move. While he claimed that his twin told him to tell that story when they were being arrested, Christopher did not tell the detective the same story. Instead, Christopher would only say that he had not seen the victim in over a month.

The Appellant also appears to be the only one who benefitted from the sale of the victim's trading card collection. He bought the Sebring and the BMW after selling the cards and admittedly used money earned by selling the victim's cards to pay for the repairs to the Sebring. No evidence suggested that his brother bought anything with the trading card money.

By contrast, Christopher's contributions to the murder appear to be his initials on a rental agreement for a Georgia storage unit and possibly a request to their father to throw away the victim's spoon collection. Otherwise, Christopher was either passively present during the events while the Appellant did the talking or was not present at all. Furthermore, their father testified that he used to tease the Appellant that he was the husband and his brother was the wife because the Appellant was the "lead twin." Additionally, after the Appellant was arrested, he wrote his father a letter from jail threatening to commit suicide and stating, "I just feel like this is my only choice and if we go to trial, they will go after Chris, too. I will not let that happen. He would not have been in this situation if not for me." Under these circumstances, additional evidence of Christopher's involvement would not have resulted in the Appellant being acquitted at trial.

In the Appellant's third ground, he argued that his attorney was ineffective for failing to file a motion to suppress his statements to the police on the basis that they were made before he was read his Miranda rights. He alleged that he was prejudiced because the prosecutor relied on these statements during trial to depict him as untruthful.

Even assuming that defense counsel's performance could be considered deficient in this regard, given the evidence discussed above, there is no reasonable probability that the outcome of the trial would have been different if the statements had been suppressed. He did not incriminate himself during the interview, and there was overwhelming evidence of his guilt. Furthermore, suppression of his statements would not have prevented the prosecutor from depicting him as untruthful. The evidence reflected that the Appellant lied to Ms. Burke about the victim's whereabouts, to the detective about helping the victim move to Cantonment, to his father about the smell coming from the U-Haul, to the yard crew about owning the victim's home, and to the victim's neighbor about the victim moving in with him. Therefore, this ground was properly denied.

In the Appellant's fourth ground, he argued that his attorney was ineffective for failing to object to the introduction of the victim's autopsy photos. He alleged that the photos were irrelevant and prejudicial, as they only served to trigger an emotional response in the jurors.

"Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2012). "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice ...." § 90.403, Fla. Stat. (2012). "Photographs are admissible if they assist the medical examiner in explaining to the jury the nature and manner in which the wounds were inflicted." Ault v. State , 53 So.3d 175, 198 (Fla. 2010) (internal citations omitted). "Moreover, photographs are admissible to show the manner of death, location of wounds, and identity of the victim." Ault , 53 So.3d at 198 (internal citations omitted).

Here, the photographs were introduced to show how the victim was discovered, wrapped in a tarp inside a plastic bin with numerous air fresheners. This tended to connect the Appellant to the offense due to his admitted purchase of the tarp, plastic bin, and air fresheners on the last day anyone heard from the victim. The photographs were also used to explain the blunt force and sharp force injuries to the victim's head and neck that ultimately caused his death. The medical examiner testified that the photographs would help her explain the type and number of wounds and their location. Additionally, she used the photographs to explain how she determined what type of weapon was used to kill the victim. Lastly, the State introduced photographs to show how the victim was dressed at the time of his death, which was relevant given the question as to when the victim was killed. Under these circumstances, any objection by defense counsel would have been overruled, as the photographs were relevant and that relevance was not outweighed by their prejudicial value. See Hitchcock v. State , 991 So.2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection.").

In the Appellant's fifth ground, he argued that the cumulative effect of counsel's errors in grounds one through four denied him a fair trial. However, because those individual claims of error are meritless for the reasons discussed above, any claim of cumulative error must also fail. See Barnhill v. State , 971 So.2d 106, 118 (Fla. 2007) ("Because all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail.").

In the Appellant's sixth ground, he argued that the State committed a Brady violation by withholding evidence from the defense. The Appellant alleged that surveillance videos that were introduced at trial depicted him renting and returning U-Haul trucks at two different locations. He asserted that if the entire second video was shown instead of the edited version, it would have shown that his father and niece accompanied him to the U-Haul facility, thereby undermining his father's trial testimony. He claimed that he did not have access to the entire second video prior to trial, but expressed his objection to his attorney to the edited version being shown both before trial and while the video was being played.

To establish a Brady violation, a defendant must show that: "(1) the evidence was either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) because the evidence was material, the defendant was prejudiced." Davis v. State , 136 So.3d 1169, 1184 (Fla. 2014). However, "a Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant." Geralds v. State , 111 So.3d 778, 787 (Fla. 2010) (quoting Occhicone v. State , 768 So.2d 1037, 1042 (Fla. 2000) ).

Here, the record reflects that the video was not edited, but fast-forwarded past irrelevant portions. This was done with defense counsel's consent. Furthermore, the Appellant's own allegations indicate that he was aware that there was additional footage in the video that was not played during trial. Under these circumstances, the existence of the full version of the second video is not Brady evidence, as it was known to the defense. Regardless, the Appellant cannot show prejudice in light of the evidence discussed above.

In the Appellant's seventh ground, he argued that his attorney was ineffective for failing to investigate a letter that Christopher sent to the prosecutor before trial. The Appellant alleged that in this letter, his brother took responsibility for the disposal of the victim's body and claimed the Appellant was not involved in transporting or hiding it. The Appellant asserted that his attorney declined to present the letter at trial due to his concern about statements coming in that his brother had made to the detectives. The Appellant indicated that these statements detailed how he stabbed the victim and chased him around the house before killing him with a hammer. The Appellant argued that these statements were easily refuted by the medical examiner's testimony that the stab wounds appeared to have been inflicted post-mortem. The Appellant alleged that this letter would have supported his reasonable hypothesis of innocence and the proceedings may have had a different outcome.

Even assuming that counsel can be deemed deficient for failing to introduce the letter, the Appellant cannot show prejudice. The Appellant does not suggest that his brother claimed responsibility for the murder in the letter, only the disposal of the body. Thus, this letter would not have proven that the Appellant was not responsible for killing the victim. Furthermore, in view of the evidence discussed above, there is no reasonable probability that it would have changed the outcome of the trial.

AFFIRMED .

Rowe and Winokur, JJ., concur.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: KELLY, Judge.

text:
    HASKEL REALTY GROUP, INC., a Florida corporation, Appellant, v. KB TYRONE, LLC, a Florida limited liability company, Appellee.
    Case No. 2D17-1032
    District Court of Appeal of Florida, Second District.
    Opinion filed August 3, 2018
    Samuel J. Heller of Heller Law, PLLC, St. Petersburg, for Appellant.
    Marion Hale and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee.
   KELLY, Judge.

Haskel Realty Group, Inc. appeals from the trial court's order dismissing its fourth amended complaint with prejudice for failure to allege a cause of action against KB Tyrone, LLC. We reverse and remand for further proceedings.

When considering a motion to dismiss for failure to state a cause of action, a trial court must assume the allegations of the complaint are true and resolve all reasonable inferences in favor of the plaintiff. Swope Rodante, P.A. v. Harmon, 85 So.3d 508, 509 (Fla. 2d DCA 2012) ; see also Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002) ("In ruling on a motion to dismiss, the trial court must confine itself to the four corners of the complaint, accept the allegations of the complaint as true, and construe the allegations in the light most favorable to the plaintiff."). "A motion to dismiss tests the legal sufficiency of the complaint and does not determine factual issues." Gann v. BAC Home Loans Servicing LP, 145 So.3d 906, 908 (Fla. 2d DCA 2014) ; see Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc., 137 So.3d 613, 615-16 (Fla. 2d DCA 2014) (stating that a motion to dismiss is not a substitute for a motion for summary judgment). Applying these principles to Haskel's fourth amended complaint, we conclude the allegations in the complaint sufficiently state causes of action for breach of an oral contract, unjust enrichment, and quantum meruit against KB Tyrone.

To state a cause of action for breach of an express oral contract a complaint need only allege facts that establish the existence of a contract, performance by the plaintiff, a material breach of the agreement by the defendant, and resulting damages. Baron v. Osman, 39 So.3d 449, 451 (Fla. 5th DCA 2010) ; Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923, 924 (Fla. 3d DCA 1990). In its count for breach of contract, Haskel alleges that it orally agreed with a representative of KB Tyrone that Haskel would receive a $150,000 commission if it procured a CVS lease for real property owned by KB Tyrone, that Haskel procured the lease, and that KB Tyrone refused to pay the agreed upon commission and, as a result, Haskel was damaged. This was sufficient to state a cause of action for breach of an oral contract, and the trial court erred when it dismissed this count of the complaint.

The complaint also alleges counts for unjust enrichment and quantum meruit. KB Tyrone argued these claims had to be dismissed because they were negated by the allegations in count one stating that the parties had an express oral contract. This argument has no merit. It is evident from the complaint that Haskel pleaded these counts as alternatives to its claim for breach of an oral contract. The Florida Rules of Civil Procedure clearly permit a plaintiff to state causes of action in the alternative. See Fla. R. Civ. P. 1.110(g) (noting that a party may state as many separate claims as that party has, "regardless of consistency and whether based on legal or equitable grounds or both"); see also Johnson v. Dep't of Health & Rehab. Servs., 695 So.2d 927, 930 (Fla. 2d DCA 1997) (stating that a party may assert inconsistent claims in the same pleading even when the claims are mutually exclusive).

Accordingly, we reverse the order dismissing the complaint and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.


text:
    Victoria L. LOWENSTEIN & Jeffrey B. Lowenstein, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR CREDIT SUISSE FIRST BOSTON MBS HEAT 2004-4, Appellee.
    Case No. 2D16-4252
    District Court of Appeal of Florida, Second District.
    Opinion filed August 8, 2018
    Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellants.
    Michele L. Stocker of Greenberg Traurig, P.A., Ft. Lauderdale; and M. Hope Keating, and Karusha Y. Sharpe of Greenberg Traurig, P.A., Tallahassee, for Appellee.
   KELLY, Judge.

Victoria and Jeffrey Lowenstein appeal from the final judgment of foreclosure, the order denying their motion for rehearing and to set aside judgment, and the "Final Order on All Defendants' Motions." We affirm the final judgment of foreclosure but reverse the portions of the Final Order that deny the objection to the foreclosure sale, the motion to vacate the October 22, 2015, foreclosure sale, and the motion to vacate the order directing the Clerk of Court to issue the certificate of title and disburse funds.

"It is well settled that a foreclosure sale cannot be held while a timely motion for rehearing is pending because enforcement of a final judgment is suspended by the filing of the rehearing motion." 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So.3d 470, 471 (Fla. 3d DCA 2016) ; see also Hoffman v. BankUnited, N.A., 137 So.3d 1039, 1039 (Fla. 2d DCA 2014) (setting aside the foreclosure sale of property because the sale was conducted while Hoffman's timely motion for rehearing was pending); Diaz v. U.S. Bank, N.A., 239 So.3d 151, 152 (Fla. 3d DCA 2018), review denied, No. SC18-306, 2018 WL 2684471 (Fla. June 5, 2018) (holding that the mortgagors were entitled to vacation of the foreclosure sale that was conducted while the mortgagors' motion for rehearing of the foreclosure judgment remained pending). Here, the foreclosure sale was conducted while the Lowensteins' motion for rehearing remained pending. Therefore, we reverse the Final Order and remand with instructions for the trial court to set a new foreclosure sale date and for further proceedings consistent with this opinion. In all other respects, we affirm.

Affirmed in part; reversed in part with directions.

SILBERMAN and MORRIS, JJ., Concur.

      The appellants' counsel filed a suggestion of death informing this court that Victoria Lowenstein died on May 18, 2018. Ms. Lowenstein's death does not affect the disposition of this appeal. See Colucci v. Colucci, 309 So.2d 67 (Fla. 2d DCA 1975) ; Variety Children's Hosp., Inc. v. Perkins, 382 So.2d 331, 336 (Fla. 3d DCA 1980).


author: ROTHENBERG, C.J.

text:
    Jose MUNOZ, Petitioner, v. Carmenza Munoz SALGADO, Respondent.
    No. 3D18-1006
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Sandy T. Fox, P.A., and Sandy T. Fox, Aventura, for petitioner.
    No appearance for respondent.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

Jose Munoz ("the father") petitions this Court for the issuance of a writ of certiorari quashing the trial court's orders granting a verified emergency motion to modify timesharing filed by Carmenza Munoz Salgado ("the mother"). For the reasons that follow, we grant the petition.

On April 13, 2018, a hearing was held on the mother's emergency motion to modify the timesharing plan that was established when the marriage was dissolved in 2010. During the hearing, the mother was permitted to testify and to call as a witness the guardian ad litem for the parents' minor child. Shortly after 5:00 p.m., the trial court halted the proceedings because the time allotted for the hearing had expired. The trial court denied the father's motion to continue the hearing and did not permit the father, who appeared pro se, to finish his cross-examination of the mother, testify, or present evidence, and instead, the trial court ruled that it was granting the mother's emergency motion to modify timesharing.

Because the trial court modified timesharing without giving the father a meaningful opportunity to be heard, the trial court violated the father's right to due process of law. Wolfson v. Wolfson, 173 So.3d 1136, 1138 (Fla. 3d DCA 2015), clarified, 173 So.3d 1146 (Fla. 3d DCA 2015) (granting a petition for writ of certiorari where the trial court entered an order modifying a parenting plan without holding a full hearing where both parties are given an opportunity to present evidence and testify); Cole v. Cole, 159 So.3d 124, 125-26 (Fla. 3d DCA 2013), as corrected (Dec. 18, 2013) ("The right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner.") (internal quotation and alteration omitted).

Although we are mindful that trial courts may, under certain facts, enter a temporary modification of timesharing without holding a full hearing during which both sides are given an opportunity to present evidence, such circumstances are typically limited to cases, for example, where there is a risk of physical harm to the child or where the child is about to be improperly removed from the state. Wolfson, 173 So.3d at 1138 ("Generally, both parties must be given notice and opportunity to be heard on the matter prior to any modification, unless there is an actual, demonstrated emergency situation, 'such as where a child is threatened with physical harm or is about to be improperly removed from the state.' ") (quoting Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006) ). However, "[e]ven in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard." Wolfson, 173 So.3d at 1138 (internal quotation omitted).

The alleged emergency before the trial court, which was contested by the father, was that the parties' minor child would face a longer commute to school and might be forced to take public transit, which could negatively impact the minor child's mental health and performance in school. This concern, while important for the trial court to consider, does not present the kind of emergency situation that would allow the trial court to deny the father a meaningful opportunity to be heard. We therefore grant the petition for writ of certiorari and remand to the trial court with instructions to hold a hearing that affords both the mother and the father a meaningful opportunity to be heard. We express no opinion on the merits of the mother's verified emergency motion to modify timesharing.

Petition granted; orders quashed; remanded for further proceedings.


author: Wetherell, J.

text:
    Lucy Ann HOOVER, Appellant, v. Kristina K. MOBLEY and Chris H. Chambless, in his official capacity as Supervisor of Elections for Clay County, Florida, Appellees.
    No. 1D18-2638
    District Court of Appeal of Florida, First District.
    August 8, 2018
    Lucy Ann Hoover, pro se, Appellant.
    Paul M. Renner and Michael T. Fackler of Milam Howard Nicandri Gillam & Renner, P.A., Jacksonville, for Appellee Kristina K. Mobley.
    No appearance for Appellee Chris H. Chambless.
   Wetherell, J.

In this election case, Lucy Ann Hoover appeals the final judgment ordering the Clay County Supervisor of Elections (SOE) to decertify her as a qualified candidate and remove her name from the ballot for the upcoming Clay County Judge Group 2 election because all of her required qualifying paperwork was not received by the SOE before the end of the statutory qualifying period. We affirm for the reasons that follow.

Facts

The facts-which were mostly undisputed-are set forth in the final judgment:

On May 3, 2018, Hoover met with Lisa Hogan, the qualifying officer for the SOE. At that time, Ms. Hogan provided Hoover with the candidate packet which included the forms that needed to be completed and submitted to the SOE to qualify for the judicial race.
The following morning, on the final day of the qualifying period (May 4, 2018), Hoover decided to become a candidate for the judicial race at issue. At 10:44 a.m. that morning, Hoover arrived at the SOE and submitted a form for the appointment of campaign treasurer and designation of campaign depository (Form DS-DE 9), designating Wells Fargo as her campaign depository. Hoover submitted none of the other required qualifying documents at that time and left the SOE to open a campaign account at the Wells Fargo branch in Green Cove Springs. Wells Fargo indicated it would be unable to open that account by the noon deadline, so Hoover went to a nearby Vystar Credit Union branch and opened her campaign account. At 11:55 a.m., five minutes prior to the close of the qualifying period, Hoover ran into the SOE. It is undisputed that Hoover did not have all her qualifying paperwork completed at that point, or by the close of the qualifying period, as discussed below. It is also undisputed that Hoover was at the SOE prior to the noon deadline. When Hoover arrived at the SOE at 11:55 a.m., there were no other members of the public or other candidates for any office present. Hoover did not have to wait to engage with Lisa Hogan, the SOE qualifying officer.
At 11:56 a.m., Hoover wrote her qualifying check which was received by Ms. Hogan at 11:57 a.m. At 12:01:34 p.m., Lisa Hogan time-stamped as received Hoover's Candidate Oath (DS-DE 303JU). According to Ms. Hogan, although she time-stamped the Candidate Oath as received at 12:01 p.m., she believed that she received it prior to the 12:00 p.m. closing of the qualifying period. Thus, the Court finds the greater weight of the evidence establishes Hoover's completed Candidate Oath form was received by the SOE prior to the noon close of the qualifying period.
The final required qualifying document submitted by Hoover and received by the SOE was the Financial Disclosure (Form 6) required by Fla. Stat. § 105.031(5)(a) 5. It is undisputed that Hoover had not completed nor submitted the Form 6 Financial Disclosure to the SOE prior to the noon May 4, 2018, close of the qualifying period. The video from the SOE reveals Hoover was filling out the Form 6 until 12:10 p.m. when it was handed to Ms. Hogan. The Form 6 was not notarized at that time. Ms. Hogan notarized Hoover's Form 6 at 12:12 p.m. and time-stamped it as received at 12:13 p.m. The undisputed evidence establishes that Hoover's completed and notarized Form 6 was received by the SOE at 12:12 p.m., twelve (12) minutes after the noon qualifying period.
Although Hoover's completed qualifying paperwork was not received by the SOE until after the close of the qualifying period, the SOE accepted her paperwork and qualified her for the judicial race at issue. The SOE accepted the late paperwork because the SOE has an unwritten policy that as long as a candidate is present in the SOE office prior to the close of the qualifying period, it will accept the paperwork and qualify the candidate, even if the candidate is still completing the qualifying paperwork after the noon deadline and the paperwork is not received by the SOE until after the noon deadline.
It is undisputed that nothing prevented Hoover from submitting all the necessary paperwork to qualify for the judicial race other than her waiting until the last minute to complete and submit the required documents.

(emphasis in original; footnotes omitted).

Trial Court Proceedings

On May 29, 2018, Kristina K. Mobley, the incumbent judge who had timely and properly qualified as a candidate for reelection to the office of Clay County Judge Group 2, filed a complaint challenging the SOE's decision to accept Hoover's qualifying paperwork after the statutory deadline. Mobley sought a declaratory judgment that Hoover is not a duly qualified candidate and an injunction directing the SOE to decertify Hoover as a qualified candidate and remove her name from the ballot for the county judge election. Hoover answered the complaint, and after the parties engaged in discovery, they agreed that the trial court could resolve the case based on the pleadings, depositions, a joint stipulation, and memoranda submitted by the parties. The trial court heard oral argument from the parties on June 19, 2018, and two days later, the court entered a final judgment granting Mobley the declaratory and injunctive relief that she requested in her complaint. On June 25, 2018, Hoover appealed the final judgment to this Court.

Analysis

On appeal, Hoover does not dispute that she submitted one of the required qualifying documents after the statutory deadline, but she argues that the SOE properly accepted the late document and qualified her as a candidate because she was in the SOE's office before the end of the qualifying period. In support of this argument, Hoover relies primarily on Bayne v. Glisson in which this Court held that "physical presence in the office of the [filing officer] by a candidate, or his representative, armed with the necessary qualification papers and fees, making a diligent bona fide effort to present the same to the appropriate official meets the requirement of the [qualifying] Statute." 300 So.2d 79, 82 (Fla. 1st DCA 1974), cert. denied , 301 So.2d 778 (Fla. 1974).

In Bayne , a prospective candidate for a state legislative seat in south Florida sent a representative to Tallahassee to file his completed qualifying paperwork. Id. at 80. The representative arrived at the Secretary of State's office seven minutes before the end of the qualifying period, and when he arrived, the office "was occupied by approximately 100 persons" and "it was impossible to distinguish the election office personnel from the other persons in the mass confusion." Id. The representative asked where he could file the candidate's qualifying paperwork and he was (mis)directed to the room in the office where the paperwork was being accepted. Id. at 81 (noting that the room was the first door on the right , but a receptionist directed the candidate's representative to the first door on the left ). When the representative arrived at the room, he "was met at the door by someone who halted his entrance and informed him that it was too late to qualify." Id. at 80. After the Secretary of State refused to accept the qualifying paperwork, the candidate filed a petition for a writ of mandamus in this Court. Id. The Court granted the petition and ordered the Secretary of State to certify the candidate and place his name on the ballot. Id. The Court noted that its holding-quoted in the preceding paragraph-was in keeping with the Secretary of State's "custom and practice to accept for filing such papers, fees, and assessments as are presented by persons physically present prior to [the qualifying] deadline." Id. at 82.

Hoover's reliance on Bayne is misplaced. First, unlike the candidate's representative in Bayne whose ability to meet the qualifying deadline was hampered by the large crowd, lack of signage, misdirection, and "mass confusion" when he arrived at the Secretary of State's office minutes before the deadline, id. at 80, the evidence here supports the trial court's findings that "there were no other members of the public or other candidates for any office present" when Hoover arrived at the SOE's office and that she "did not have to wait to engage with ... the SOE qualifying officer." Second, unlike the candidate's representative in Bayne who was "armed with the necessary qualifying papers" and "ready, willing, and able" to submit the candidate's qualifying papers prior to the deadline, id. at 79, 82, the evidence here supports the trial court's finding that Hoover "was far from ready, willing, and able to submit the necessary qualifying paperwork by the deadline" because she did not even complete the last of her qualifying paperwork (the financial disclosure form) until 12 minutes after the qualifying deadline.

Accordingly, unlike Bayne where circumstances beyond the candidate's control caused him to miss the qualifying deadline, the evidence here supports the trial court's dispositive finding that "nothing prevented Hoover from submitting all of the necessary paperwork to qualify for the judicial race other than her waiting until the last minute to complete and submit the required documents." Accord State ex rel. Vining v. Gray , 154 Fla. 255, 17 So.2d 228 (1944) (explaining that prospective candidate was not entitled to a writ of mandamus compelling the Secretary of State to place his name on the ballot when his qualifying documents were received after the qualifying deadline because he "took the risk of waiting until too late for starting the necessary documents on the way to the office of the Secretary of State").

We recognize that the public policy of Florida generally favors "let[ting] the people decide the ultimate qualifications of candidates." See State ex rel. Siegendorf v. Stone , 266 So.2d 345, 347 (Fla. 1972) ; Levey v. Detzner , 146 So.3d 1224, 1230 (Fla. 1st DCA 2014) (Makar, J., dissenting from the denial of rehearing en banc) (cited with approval in Wright v. City of Miami Gardens , 200 So.3d 765 (Fla. 2016) ); Bayne , 300 So.2d at 82 (quoting State v. Gray , 69 So.2d 187, 193 (Fla. 1953) ). However, absent special circumstances , public policy considerations cannot override the clear and unambiguous statutory requirement that all of the candidate's qualifying paperwork "must be received by the filing officer by the end of the qualifying period." § 105.031(5)(a), Fla. Stat. (2017) ; Bayne , 300 So.2d at 82 ("A statutory requirement as to the time for filing a declaration of candidacy is mandatory, and a declaration filed too late is a nullity, at least in the absence of special circumstances or special showing of excuse.") (quoting 29 C.J.S. Elections § 114 ); see also Falke , 717 P.2d at 374 (noting that "the weight of case law authority holds that statutory filing deadlines are to be strictly enforced" and disapproving elections office policy pursuant to which "[c]andidates who already are inside [the office] and are in the process of completing their forms are permitted to finish and are deemed to have 'timely filed' when they turn in forms after the deadline"); Butts v. Bysiewicz , 298 Conn. 665, 5 A.3d 932, 940 n.7 (2010) (citing Bayne and cases from other states for the proposition that "in extraordinary circumstances, courts can excuse a failure to comply with mandatory filing deadlines for declarations of candidacy due to (1) an action by the state, particularly election officials, causing the late filing, or (2) the impossibility of compliance"). Here, there were no special circumstances that would excuse Hoover's failure to meet the qualifying deadline, but rather, as in Vining , supra , this is simply a case of a prospective candidate missing the qualifying deadline because she waited until too late to complete the necessary paperwork.

Conclusion

For the reasons stated above (and because we find the other arguments raised by Hoover on appeal to be unpreserved and/or meritless), we affirm the final judgment ordering the SOE to decertify Hoover as a qualified candidate and remove her name from the ballot for the upcoming Clay County Judge Group 2 election.

AFFIRMED.

Bilbrey and M.K. Thomas, JJ., concur.

      The complaint was filed in the Fourth Judicial Circuit, but because Mobley is a sitting county judge in that circuit, it was assigned to a circuit judge from the Seventh Judicial Circuit. See Fla. S. Ct. Admin. Ord. 2018-109.

      Other cases that have cited Bayne have also recognized this distinction. Compare Falke v. State , 717 P.2d 369, 374 (Alaska 1986) (holding that candidate who was still completing his qualifying paperwork after the statutory deadline was not qualified and distinguishing Bayne because "Bayne involved a person who was inside the office ready to file completed papers") (emphasis in original) with Painter v. Shaner , 667 S.W.2d 123, 124 (Tex. 1984) (relying on Bayne to hold that "a candidate who presents himself on the last day for filing at the correct place, armed with all essential documents , but is thwarted in his efforts because he is locked out, is deemed to have timely filed his application for a place on the ballot") (emphasis added).

      Hoover's argument that the SOE should be estopped from disqualifying her as a candidate because she relied to her detriment on its policy that she need only be present in the office at the time of the noon deadline for her qualifying papers to be considered as timely filed was not raised below, and thus, the argument cannot be considered on appeal.