text:
    Matthew MARRAFFINO, Appellant, v. STERICYCLE/SEDGWICK CMS, Appellees.
    No. 1D18-2639
    District Court of Appeal of Florida, First District.
    November 30, 2018 Rehearing Denied January 7, 2019
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   Per Curiam.

In this workers' compensation case, Claimant appeals the Judge of Compensation Claim's (JCC's) dismissal of his claim for temporary partial disability (TPD) benefits for lack of jurisdiction. In dismissing the claim, the JCC reasoned that adjudication of the claim would require him to resolve the same issue concerning the date of maximum medical improvement (MMI)

that is on appeal in Marraffino v. Stericycle/Sedgwick CMS , Case Number 1D18-0757 (Marraffino I ). We reverse because the JCC continued to retain jurisdiction over claims to entitlement to benefits becoming due at different times from those addressed in the prior order.

Under section 440.15(4)(a), Florida Statutes (2014), TPD benefits are payable if MMI has not been reached and the medical conditions resulting from the injury create restrictions, not an absolute prohibition, on a claimant's ability to return to work. See, e.g. , Wyeth/Pharma Field Sales. v. Toscano , 40 So.3d 795, 799 (Fla. 1st DCA 2010). The date of MMI is defined as "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based on reasonable medical probability." § 440.20(10), Fla. Stat. (2014). A finding of MMI is precluded where a claimant is entitled to remedial care - i.e., where there is a reasonable expectation that the necessary treatment will bring about some degree of recovery - even if that treatment ultimately proves ineffective. See Delgado v. Omni Hotel , 643 So.2d 1185, 1186 (Fla. 1st DCA 1994) (citing Rolle v. Picadilly Cafeteria , 573 So.2d 94, 97 (Fla. 1st DCA 1991) ); see also Rosa v. Progressive Emp'r Servs. , 84 So.3d 472 (Fla. 1st DCA 2012).

Here, Claimant sustained a compensable injury to his right knee on December 10, 2014. In September 2017, Claimant filed a petition for benefits seeking, among other things, payment of TPD benefits from August 19, 2017, and continuing. On January 22, 2018, the JCC entered an order awarding nine days of TPD benefits but denying TPD benefits after August 28, 2017, because he found that Claimant was at MMI as of that date. That order and finding is the subject of the appeal in Marraffino I . Prior to any disposition in Marraffino I , Claimant filed another petition for benefits seeking TPD benefits allegedly payable after August 28, 2017. In the order currently on appeal, the JCC found he had no jurisdiction and dismissed the TPD claim without reaching the merits.

Our standard of appellate review here is de novo. See Jacobsen v. Ross Stores , 882 So.2d 431, 432 (Fla. 1st DCA 2004) (holding subject matter jurisdiction is reviewed de novo).

In his order, the JCC found that the prior order included any subsequent claims for TPD benefits because Claimant sought benefits "to the present and continuing ." As authority, the JCC misplaced his reliance on McDonnell Douglas Corp. v. McDonald , 620 So.2d 1146 (Fla. 1st DCA 1993). The court in that case - based on previous opinions - struck language that awarded temporary partial disability benefits "through the present and continuing" to substitute the following: "to the date of the hearing and for so long as such benefits are proper ." Id. (emphasis added) (citing Rodeway Inn v. Bryant , 615 So.2d 857, 858 (Fla. 1st DCA 1993) ); Workman v. McDonnell Douglas Corp ., 590 So.2d 1035, 1036-37 (Fla. 1st DCA 1991) ; Wiley Jackson Co. v. Webster , 522 So.2d 987, 988 (Fla. 1st DCA 1988) ). Contrary to the JCC's assumption, the point of the substituted language was to avoid an "open-ended" award of ongoing benefits that would not be subject to challenge. See e.g., Webster , 522 So.2d at 988.

Claimant concedes the claim for TPD benefits before the date of the January 22, 2018, order was properly dismissed and thus limits this appeal to claims after the date of that order. But, in the appealed order here, the JCC went on to find that he lacked jurisdiction over later TPD benefits even assuming the prior order concerned only the time period through January 22, 2018. The JCC concluded he did not have jurisdiction to address that claim because it required resolution of the same issue on appeal in Marraffino I - specifically, whether Claimant was at MMI on August 28, 2017.

The JCC's conclusion, however, is based on the faulty premise that once Claimant was at MMI, he must forever stay at MMI. This court previously recognized that a change of condition may entitle a claimant to further remedial care even after assignment of a date of MMI. See, e.g., Ivey v. City of Sarasota, 533 So.2d 881, 881-82 (Fla. 1st DCA 1988) (citing Oak Crest Enter, Inc., v. Ford , 411 So.2d 927, 929 (Fla. 1st DCA 1982) ). Furthermore, "workers' compensation benefits, by design, are to be paid in real time." Benniefield v. City of Lakeland , 109 So.3d 1288, 1291 (Fla. 1st DCA 2013).

Here, Claimant is seeking entitlement to TPD benefits which allegedly became due at a different (i.e., later) time period from that denied in the prior order. Although the JCC "noted" that Claimant was making the same argument that he is not at MMI and that the circumstances had not changed, this is a question of fact that goes to Claimant's prima facie case. In other words, the JCC here could ultimately find that Claimant has not met his burden of proving entitlement to the subsequent benefits not covered by the prior order, but it does not follow that he lacked the jurisdiction to do so.

For the forgoing reasons, we reverse the order below and remand for consideration of the merits of the claim for TPD benefits payable after January 22, 2018.

REVERSED and REMANDED for further proceedings consistent with this opinion.

Wolf, Lewis, and Wetherell, JJ., concur.

      This determination will depend largely on the disposition of Marraffino I because (a) the underlying issue in that case is whether any additional treatment Claimant may receive on his knee short of a total knee replacement (such as the HA injections awarded in the order on appeal in this case) is remedial or palliative, (b) the JCC found in the order on appeal in Marraffino I that additional injections "would only constitute palliative care," and (c) at the hearing in this case, Claimant was asserting that he is no longer at MMI solely because the HA injections sought in the current petition for benefits (and awarded in the order on appeal in this case) are, and always have been, remedial in nature.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Kenneth PRITZ, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellee.
    Case No. 5D17-2117
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018 Rehearing Denied January 10, 2019
    Robert Bruce Snow, of Robert Bruce Snow, P.A., Brooksville, for Appellant.
    Lisa J. Augspurger, of Bush & Augspurger, P.A., Orlando, and Audra Michelle Bryant, of Bush & Augspurger, P.A., Tallahassee, for Appellee.
   EVANDER, J.

Kenneth Pritz ("Appellant") appeals a final summary judgment dismissing his whistle-blower complaint and the denial of his motion to amend complaint. Because the trial court's rulings were based on an erroneous application of the law of the case doctrine, we reverse.

Appellant was the assistant superintendent for the Hernando County School District ("the School District"). In December 2013, the superintendent informed Appellant that he would be "physically housed at the Plant Operations site of the school district and [would] fulfill the job responsibilities of Manager of the Warehouse and Purchasing." The transfer was to take place immediately, but Appellant would retain his title and current salary. Appellant alleges that shortly thereafter, the superintendent had a memorandum sent from Appellant's computer, and purportedly written by Appellant, to numerous school officials. The memorandum falsely purported to express Appellant's "excitement" about his job transfer. Upon learning of the superintendent's improper action, Appellant notified the recipients of the email that he had not written, authorized, or sent the memorandum. Appellant also sent a written complaint to the chairman of the Hernando County School Board ("the School Board"), asserting that the superintendent's actions violated certain statutes and educators' code of ethics provisions, and that the information set forth in his letter was disclosed pursuant to section 112.3187(5), Florida Statutes -a provision within Florida's Whistle-blower's Act ( sections 112.3187 - 112.31895, Florida Statutes (2013) ).

At the end of the school year, the superintendent notified Appellant that he could remain as Manager of the Warehouse and Purchasing, but at a substantially reduced salary. When Appellant declined to agree to the proposed salary reduction, the superintendent notified him that he would not be recommended for reappointment with the School District for the following school year.

After being notified that his contract would not be renewed, Appellant initiated the present action alleging that the School Board violated Florida's Whistle-blower's Act. Thereafter, Appellant filed a motion for temporary reinstatement. The trial court held an evidentiary hearing on Appellant's motion and entered a lengthy order denying same. In its order, the trial court made certain factual findings to support its conclusion that Appellant had failed to establish: 1) that the information disclosed by Appellant to the School Board was a protected disclosure as defined in section 112.3187(5) ; and 2) that he had been "discharged."

Appellant sought certiorari review of the order denying his motion for temporary relief. We denied Appellant's petition "on the merits," but did not elaborate on the reason for the denial. Pritz v. Sch. Bd. of Hernando Cty., Fla. , No. 5D16-1950 (Fla. 5th DCA Nov. 14, 2016).

On remand, the School Board filed a motion for summary judgment alleging that this court's order denying Appellant's petition for writ of certiorari was "now the law of the case," that there was no justiciable issue of fact, and that the School Board was entitled to entry of final summary judgment in its favor. In granting the School Board's motion, the trial court cited to the law of the case doctrine:

The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.
....
As found by the predecessor Court in its "Order Denying [Appellant's] Motion for Temporary Reinstatement", and as affirmed by the Appellate Court in its Appellate Order, [Appellant] was not discharged and [Appellant] did not make a disclosure protected under the Florida Whistleblower's Act. Those are necessary elements to the cause of action brought under the Florida Whistle-blower's Act. Accordingly, [Appellant] cannot prevail on his cause of action and School Board is entitled to Summary Judgment in its favor.

The law of the case doctrine is "limited to rulings on questions of law actually presented and considered on a former appeal." Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 106 (Fla. 2001) (quoting U.S. Concrete Pipe Co. v. Bould , 437 So.2d 1061, 1063 (Fla. 1983) ). Additionally, the doctrine may preclude "subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court's decision." Id. at 106. However, a corollary of the law of the case doctrine is that a lower court may address issues that were not necessarily addressed by the appellate court. Id. Thus, the law of the case doctrine does not apply where the prior appellate court's decision could have been based on alternative grounds. See Warren v. Shands Teaching Hosp. & Clinics, Inc. , 700 So.2d 702, 704 (Fla. 1st DCA 1997) (holding that an alternative ground for affirmance was not necessarily decided and thus did not trigger law of the case doctrine); see also HSBC Bank USA v. Magua , 243 So.3d 983, 984-85 (Fla. 4th DCA 2018) ; Smith v. City of Fort Myers , 944 So.2d 1092, 1094 (Fla. 2d DCA 2006).

Here, our prior order denying Appellant's petition for writ of certiorari on the merits is the law of the case only as to the limited issue of Appellant's entitlement to temporary reinstatement. There are three reasons why our prior order did not, as the School Board argues, necessarily determine that Appellant had failed to show that he had made a protected disclosure.

First, we did not necessarily deny the petition for certiorari on the ground that Appellant had failed to establish a protected disclosure. We could have denied the petition on the ground that Appellant had failed to show that he had been "discharged"-a requirement to obtain temporary reinstatement under section 112.3187(9)(f).

Second, the trial court made certain factual findings to support its conclusion that Appellant had failed to prove a protected disclosure at the temporary hearing. Although the trial court's factual findings may have been supported by substantial competent evidence, a jury, not the trial court, would be the trier of fact should this case ultimately proceed to a jury verdict.

Third, the trial court's ruling was made after a temporary hearing-prior to the parties having a full opportunity to conduct discovery. Indeed, in its response to the petition for certiorari, the School Board acknowledged that should the petition be denied, Appellant would still have the opportunity to present further evidence after remand:

Here, [Appellant] has suffered no immediate or material injury as a result of the order denying his Motion for Temporary Reinstatement. The order simply states that [Appellant] is not entitled to be reinstated to his former position pending the outcome of the lawsuit. [Appellant's] inability to be reinstated to his former position will not result in material injury for the remainder of the trial. If the jury determines, based on some additional evidence not yet presented, that [Appellant] should prevail on the instant cause of action, he will be entitled to collect lost wages and back pay as part of his damages.

Thus, it would appear that the School Board previously recognized that an unelaborated denial of the earlier petition for certiorari would not trigger application of the law of the case doctrine on remand.

For the reasons set forth above, we reverse the final summary judgment entered by the trial court in favor of the School Board. The trial court's denial of Appellant's motion to amend his complaint must similarly be reversed because the trial court concluded that application of the law of the case doctrine would render Appellant's proposed amendment futile. On remand, the trial court is directed to grant Appellant's motion to amend.

REVERSED and REMANDED.

BERGER and LAMBERT, JJ., concur.

      Section 112.3187(5) provides:
      The information disclosed under this section must include:
      (a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare.
      (b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

      In contrast to the requirement of a party seeking temporary reinstatement under Florida's Whistle-blower's Act to establish a "discharge," a party can prevail on a whistle-blower's claim at trial by proving an "adverse personnel action." Section 112.3187(3)(c) defines "adverse personnel action" to mean:
      the discharge, suspension, transfer, or demotion of any employee or the withholding of bonuses, the reduction in salary or benefits, or any other adverse action taken against an employee within the terms and conditions of employment by an agency or independent contractor.


author: COHEN, C.J.

text:
    Christina ARAJ and Jeffrey Araj, Appellants, v. Jessica Jennifer RENFRO, AS GUARDIAN AND NEXT FRIEND OF Kenneth J. JONES, Appellee.
    Case No. 5D17-130
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018 Rehearing Denied January 10, 2019
    Elizabeth K. Russo and Paulo R. Lima, of Russo Appellate Firm, P.A., Miami, and DeBeaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for Appellants.
    Roy D. Wasson, of Wasson & Associates, Chartered, Miami, and Mark T. Packo, of Ellis Ged & Bodden, P.A., Boca Raton, for Appellee.
   COHEN, C.J.

Christina Araj and Jeffrey Araj (collectively "the Arajes") appeal the final judgment entered by the trial court pursuant to a jury verdict, which awarded Jessica Renfro, as guardian and next friend of Kenneth J. Jones, $6,000,000 in damages. On appeal, the Arajes argue that the trial court reversibly erred by failing to allow amendment of their affirmative defenses to include accord and satisfaction, give a requested jury instruction, and reduce the jury verdict against Mr. Araj pursuant to section 324.021(9)(b)3., Florida Statutes (2011). We reverse and remand for a new trial.

Jones was injured while driving a scooter on the Pineda Causeway in Brevard County. The evidence at trial established that the Pineda Causeway is a limited access facility with a posted speed limit of 55 miles per hour. According to the Florida Highway Patrol, the normal flow of traffic on the causeway is 55 to 65 miles per hour.

The scooter was equipped with a 1.8 horsepower motor and had a top speed of 31.7 miles per hour, which it could not reach when ascending inclines, as it was at the time of the accident. The evidence established that at the time of the accident, Jones was travelling at approximately 28.7 miles per hour.

The Arajes requested the following jury instruction based on sections 316.003(34) and 316.091(2):

Members of the jury you are instructed that no person shall operate upon a limited access facility any bicycle, motor-driven cycle, animal-drawn vehicle, or any other vehicle which by its design or condition is incompatible with the safe and expedient movement of traffic.
You are also instructed that a limited access facility is defined as a street or highway especially designed for through traffic and over, from, or to which owners or occupants of abutting land or other persons have no right of easement, or only a limited right of easement ....

Jones objected, and the trial court sustained the objection, instead giving the jury instruction requested by Jones based on section 316.183(5):

No person shall drive a motor vehicle at such slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

We find the denial of the requested jury instruction to be an abuse of discretion. See Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005) (finding that the trial court abused its discretion in refusing to give a jury instruction when the requested instruction "contained an accurate statement of the law, the facts in the case supported a giving of the instruction, and the instruction was necessary for the jury to properly resolve the issues in the case" (citations omitted) ). Here, the Arajes were entitled to their requested jury instruction because it constituted a correct statement of law, was supported by the evidence, and addressed their theory of the case that Jones was not lawfully driving at the time of the accident because the Pineda Causeway was a limited access facility and the scooter was incompatible with the safe and expedient movement of traffic. This error was highlighted during closing arguments when Jones's counsel argued that "Jones was entitled to be [on the Pineda Causeway] like any other motorist." Further, we reject the argument that because the jury allocated twenty-five percent fault to Jones, any error was harmless. We cannot conclude that the degree of fault allocated by the jury for driving too slowly would have been the same if the jury instead found that Jones was driving on a road on which he was legally prohibited to ride the scooter. See, e.g., Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1254-56 (Fla. 2014).

Because we reverse for a new trial, we decline to address whether the trial court erred in failing to allow amendment of the Arajes' affirmative defenses. There is no reason to not allow such an amendment on remand. Likewise, we do not address whether section 324.021(9)(b)3. was applicable to limit Mr. Araj's liability. Our reversal renders this issue moot.

REVERSED and REMANDED.

EVANDER and BERGER, JJ., concur.


text:
    Jesse Anthony ECKOLS, Appellant, v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, a Subsidiary of Farmers Insurance Group, Appellee.
    Case No. 5D17-2904
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 7, 2018
    Barbara A. Eagan, of Eagan Appellate Law, PLLC, Orlando, and Charles R. Steinberg, of Charles R. Steinberg, P.A., Winter Park, for Appellant.
    Robert Alden Swift, of Cole, Scott & Kissane, P.A., Orlando, for Appellee.
   EVANDER, J.

Jesse Eckols ("Appellant") appeals a final summary judgment entered in favor of 21st Century Centennial Insurance Company ("21st Century"), determining that he was not entitled to uninsured/underinsured motorist ("UM") benefits. Because the exclusion clause relied upon by 21st Century was ambiguous, we reverse.

In September 2012, 21st Century issued a renewal automobile insurance policy for Maria Eckols, her husband, Rene Eckols, and their son, Cody Eckols. The policy declarations listed three covered vehicles-a Ford Taurus, a Ford Mustang, and a Nissan King Cab truck. The policy included $50,000/$100,000 per person/accident in UM coverage for bodily injury "sustained by an insured and ... [c]aused by an auto accident with an uninsured motorist." During the policy period, the Eckols' oldest son, Appellant, was injured when he was struck by an uninsured/underinsured motorist.

Although Appellant was not a named insured, the Eckols' insurance policy expressly provided UM coverage for a "family member" of the named insured. The policy defined "family member" as "a person related to [named insured] by blood, marriage or adoption and who is a resident of the [named insured's] household." Appellant claimed entitlement to UM benefits as a "family member."

At the time of the collision, Appellant was operating a motorcycle he owned. 21st Century asserted, as an affirmative defense, that Appellant's claim was excluded because Appellant was injured while operating an owned vehicle that was not covered under the policy. The exclusion provision relied upon by 21st Century read:

A. We do not provide Uninsured Motorist Coverage for bodily injury sustained:
1. By an insured while occupying any motor vehicle owned by that insured which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.

(Emphasis in original).

Appellant acknowledged that, at first blush, this exclusion provision would appear to bar his claim. However, Appellant observed that the policy required the definition of boldfaced, italicized words to be given the meanings supplied in the policy and that the policy had defined "owned" to mean having legal title to or legal possession of an "auto" or "trailer." "Auto" was defined by the policy to mean a "four wheel private passenger car, van, pickup, or jeep type automobile designed for operation principally upon public roads with a gross vehicle weight (as determined by the manufacturer's specifications) of 10,000 pounds or less." Thus, Appellant argued that application of the policy's definitions rendered the exclusion provision relied upon by 21st Century ambiguous because Appellant's motorcycle was not a "four wheel vehicle." The trial court rejected Appellant's argument and found that Appellant's claim was barred by the aforesaid exclusion provision.

Section 627.727(9)(d), Florida Statutes (2012), provides that insurers may offer policies for UM coverage containing provisions that do "not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased." However, while insurers are not allowed to provide less UM coverage than required by section 627.727, they are free to provide more coverage than the statute requires. Universal Underwriters Ins. Co. v. Morrison , 574 So.2d 1063, 1065 (Fla. 1990).

Courts generally construe an insurance policy in accordance with its plain language. Auto-Owners Ins. Co. v. Anderson , 756 So.2d 29, 34 (Fla. 2000). If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous. Id. Ambiguous policy provisions are to be construed strictly against the insurer and liberally in favor of the insured. Id. Ambiguous exclusion clauses are construed "even more strictly against the insurer than coverage clauses." Id. This is so because insurers have the responsibility to clearly set forth what damages are excluded from coverage under the policy. Fayad v. Clarendon Nat'l Ins. Co ., 899 So.2d 1082, 1086 (Fla. 2005).

Here, the exclusion provision relied upon by 21st Century is ambiguous as to whether it applies to motorcycles. If one was to use the ordinary and common definition of the terms "motor vehicle" and "owned," we would agree with 21st Century that UM coverage was excluded where the insured was injured while operating his or her motorcycle and that motorcycle was not a covered vehicle under the policy.

However, the policy calls for the application of its own definition of the terms "owned" and "auto." The application of these definitions could reasonably be construed to narrow the undefined term "motor vehicle" to certain specified four-wheeled motor vehicles and thereby render the exclusion inapplicable to motorcycles.

As previously noted, ambiguous insurance policy provisions are to be strictly construed against the insurer, particularly where the policy purports to exclude coverage. Accordingly, we reverse the final judgment entered in favor of 21st Century and remand for further proceedings consistent with this opinion.

REVERSED.

BERGER and WALLIS, JJ., concur.

      Specifically, the policy defined "owned" to mean:
      1. To hold legal title to the auto or trailer ,
      2. To have legal possession of an auto or trailer subject to a lien or security agreement, or
      3. To have legal possession of an auto that is leased or rented to that person under a written contract for a continuous period of six months or more.

      The exclusion provision could reasonably be construed to read as follows if the policy's definitions of "owned" and "auto" were applied:
      We do not provide Uninsured Motorist Coverage for bodily injury sustained by an insured while occupying any four wheel private passenger car, van, pickup or jeep-type automobile designed for operation principally upon public roads with a gross vehicle weight ... of 10,000 pounds or less for which the insured holds legal title or is in legal possession subject to a lien or security agreement or is in legal possession pursuant to a written lease or rental agreement for a continuous period of six months or more, and that motor vehicle is not insured for this coverage under this policy.


author: Per Curiam.

text:
    Jody JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2812
    District Court of Appeal of Florida, First District.
    December 3, 2018 Rehearing Denied January 15, 2019
    Jody Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(5) and 9.141(d)(6)(C).

Wolf, Makar, and M.K. Thomas, JJ., concur.


author: SALTER, J.

text:
    HAYES ROBERTSON GROUP, INC., etc., Appellant/Appellee, v. Timothy Christopher CHERRY, etc., et al., Appellees/Appellants.
    Nos. 3D18-106 & 3D17-2704
    District Court of Appeal of Florida, Third District.
    Opinion filed December 12, 2018
    Dixit Law Firm and Shyamie Dixit and Robert L. Vessel (Tampa), for appellant/appellee.
    Horan, Wallace & Higgins and Darren M. Horan, Key West, and David Paul Horan, Key West; The McKee Law Group and Robert J. McKee (Davie); Lewis Legal Group and Jeannete C. Lewis (Plantation); Brill & Rinaldi, The Law Firm and David W. Brill, Pembroke Pines, and Joseph J. Rinaldi, Jr., Coral Gables; Russo Appellate Firm and Elizabeth K. Russo, Miami and Paulo R. Lima, for appellees/appellants.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   SALTER, J.

These consolidated appeals arise from a tragic death and personal injuries in Key West, Florida, caused in a vehicular collision by an alcohol-impaired, off-duty employee of a restaurant company. In Case No. 3D17-2704, the decedent's estate and three survivors of the accident appeal an adverse jury verdict, the denial of their motion for a new trial, and final judgment. In Case No. 3D18-106, the defendant, Hayes Robertson Group, Inc., doing business as Fogarty's Restaurant ("Hayes Robertson"), appeals the denial of its motion for attorney's fees based on its three pretrial proposals for settlement to the plaintiffs. For the reasons which follow, we affirm the final judgment in favor of Hayes Robertson and we affirm the order denying Hayes Robertson's motion for attorney's fees.

Facts and Procedural Background: Final Judgment on Liability (3D17-2704)

At about 10:15 p.m. on October 31, 2014, an automobile driven by Daniel Mira, Jr. ("Mira"), struck from behind two couples riding Mopeds, seriously injuring all four of the Moped riders; one of the four died as a result of those injuries. The decedent's personal representative and the three survivors are the four plaintiffs in the underlying lawsuit for wrongful death and personal injury in the Monroe County Circuit Court.

Mira was employed as a line cook at Fogarty's Restaurant. On the night of the accident, Mira clocked out and left work a little after 5:00 p.m., went home, and returned about 7:00 p.m. with another off-duty co-worker. Mira and his co-worker had several drinks at the bar in the restaurant. The bartender testified that Mira did not appear to be drunk when he arrived, but did seem impaired after he left the restaurant for about twenty minutes and returned.

By the time Mira prepared to leave the restaurant, around 10:00 p.m., he was intoxicated. The bartender testified that Mira was slurring his speech and could barely walk. As an employee, Mira was entitled to a fifty percent discount on his bar tab, subject to approval by the manager on duty.

The number of alcoholic drinks consumed by Mira while at the bar that evening was disputed. Hayes Robertson never produced a copy of the tab. Hayes Robertson stipulated that three hours after the crash, Mira's blood alcohol level was 0.173 grams per deciliter--more than twice the legal limit. It also stipulated that, at the time of the accident, Mira's blood alcohol level was 0.20 grams per deciliter.

The plaintiffs sued Hayes Robertson, Mira, and Mira's father (as owner of the vehicle driven by Mira at the time of the accident). The claims against Hayes Robertson were based on (1) the liability of an employer which permits its employee to leave the business premises intoxicated, as elaborated in cases such as Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914 (Fla. 4th DCA 1993), and (2) an exception in Florida's Dram Shop Act, section 768.125, Florida Statutes (2014), permitting a claim of liability against one who "knowingly serves a person habitually addicted to the use of any or all alcoholic beverages," for "injury or damage caused by or resulting from the intoxication of such ... person."

Proof that Mira was "habitually addicted" to alcoholic beverages, and that Hayes Robertson knew of that addiction, was vigorously disputed. The plaintiffs retained a forensic toxicologist, Mr. Ronald Bell, as an expert to address (1) "retrograde extrapolation" of blood alcohol content (BAC) levels, and (2) whether Mira was habitually addicted to alcohol.

The first topic, retrograde extrapolation, was resolved by the parties in the stipulation regarding Mira's BAC levels about three hours after the accident and at the time of the accident. The second topic, however, required a detailed inquiry into Mr. Bell's expertise and qualifications.

Mr. Bell is a Fellow of the American Board of Forensic Toxicology. His summary of qualifications as a "forensic toxicology consultant" includes a bachelor of science degree in chemistry, as well as non-degree graduate coursework in pharmacology. That summary further represents that he is able to "offer consultation and/or expert testimony in the following areas:

• Effects of alcohol on human performance
• Retrograde extrapolation
• Calculations relating blood alcohol level to amount of alcohol consumed
• Effects of drugs on human performance
• Calculations relating drug dose to blood concentrations
• Role that drugs play in a person's death
• Review of laboratory data to determine validity."

Missing from this list of topics is the subject of habitual addiction to alcohol and the medical expertise required to express a qualified diagnostic opinion on that issue. Mr. Bell does not have a medical degree, or any diploma or certification from the American College of Medical Toxicology.

In pretrial proceedings, Mr. Bell provided an affidavit opining that Mira "is an alcoholic."

Anyone who can achieve a blood alcohol concentration exceeding 0.16 [grams per deciliter] and display some degree of function even if poor (walking, talking, etc.), has developed enough tolerance to the overt behavioral effects of alcohol to be defined as habitually addicted to alcohol.

Mr. Bell further relied upon Mira's "Marchman Act" detention about six weeks before the accident, based on "his severe state of intoxication" and Mira's admissions "that he abused alcohol, often binged when consuming alcohol and was an alcoholic."

The only authoritative reference work relied upon by Mr. Bell was a medical textbook, Medical Toxicology: Diagnosis and Treatment of Human Poisoning, by Matthew J. Ellerman, M.D. During a pretrial deposition and additional pretrial testimony before the trial court on the motion to exclude his opinion on habitual addiction to alcohol, Mr. Bell conceded: the laboratory tests upon which he relied were only one criterion of many in Dr. Ellerman's discussion of the medical diagnosis of alcoholism, and he had not assessed the other criteria; medical toxicology is a different specialty from forensic toxicology; he was unfamiliar with the Diagnostic and Statistical Manual of Mental Disorders ("DSM"); the textbooks in the field of forensic toxicology do not address alcoholism; and he did not conduct any laboratory tests indicating that Mira's BAC exceeded .3 grams per deciliter at any time. Mr. Bell did not assess Mira's physiological dependence as manifested by a withdrawal syndrome, nor did he examine Mira's medical records regarding his treatment by a psychiatrist.

Before reaching its decision to exclude Mr. Bell's proffered opinion as to whether Mira was "habitually addicted to alcohol," the trial court also questioned Mr. Bell whether training in forensic toxicology could be a sufficient basis for "diagnosing a person as addicted to alcohol or an alcoholic." Ultimately the court concluded that medical toxicology and the ability to express an admissible opinion on habitual addiction to alcohol were beyond Mr. Bell's experience and qualifications. The trial court did not restrict its ruling in limine to a determination based exclusively on Daubert.

The jury returned a verdict that (1) Hayes Robertson was not negligent in allowing Mira to leave the restaurant in an intoxicated condition before the accident, and (2) Hayes Robertson did not knowingly serve alcoholic beverages to a person habitually addicted to the use of such beverages. The plaintiffs filed a motion for new trial and other post-trial relief, which was denied after a further hearing. The plaintiffs' appeal to this Court, Case No. 3D17-2704, followed.

Facts and Procedural Background: Proposals for Settlement (3D18-106)

Hayes Robertson served proposals for settlement on the three individual plaintiffs at three different points in the pretrial proceedings. The first two sets of proposals offered $500.00 per plaintiff, and the third set of proposals offered $100.00 per individual plaintiff. None of the proposals were accepted and all were thus deemed rejected.

After trial and the defense jury verdict, Hayes Robertson moved for attorney's fees pursuant to section 768.79, Florida Statutes (2017). The individual plaintiffs opposed the motion, contending that the proposals were not made in good faith and that the proposed release of all claims appended to the proposals for settlement rendered the proposals ambiguous and unenforceable.

Following a hearing, the trial court entered a detailed order in January 2018 denying Hayes Robertson's motion and claim for entitlement to attorney's fees. The court canvassed applicable case law and, on the basis of its familiarity with the pretrial and trial proceedings, determined that the offers were not made in good faith.

[There were] two main issues tried in the case and there was substantial evidence admitted as to both claims. Summary judgment was denied because there were material issues of fact on these two points.
* * * * *
[t]he offers of $500.00 and $100.00 did not bear a reasonable relationship to the damages claimed as a result of the automobile versus motorcycle crash that injured the Plaintiffs. At the time each offer was made, the claims against [Hayes Robertson] had merit, and it appeared that Hayes faced at least some exposure. Thus, the court finds that the nominal offers were not made in good faith.

The trial court also concluded that the releases attached to the proposals for settlement were unclear because they could be construed to release more than the offeree-in particular, the releases could be construed to release Mira.

Hayes Robertson appealed the order denying its motion for attorney's fees. That appeal is consolidated Case 3D18-106.

Analysis: Final Judgment on Liability (3D17-2704)

The plaintiffs contend that the trial court erred in, among other things, applying section 90.702, Florida Statutes (2017), and Daubert rather than Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or Marsh v. Valyou, 977 So.2d 543 (Fla. 2007), in assessing the admissibility of Mr. Bell's proffered expert testimony regarding Mira's alleged habitual addiction to alcoholic beverages. The plaintiffs are correct that the constitutionality of section 90.702, an issue in contention at the time the trial court made its decisions on the evidentiary issue, "is a pure question of law subject to de novo review." City of Fort Lauderdale v. Dhar, 185 So.3d 1232, 1234 (Fla. 2016).

After the briefing was completed in these appeals, and only two days before oral argument, the Florida Supreme Court issued its opinion in DeLisle v. Crane Co., 258 So.3d 1219, 2018 WL 5075302 (Fla., Oct. 15, 2018). In DeLisle, the Supreme Court reaffirmed "that Frye, not Daubert, is the appropriate test in Florida courts," 258 So.3d at 1229, concluding that the amendment to section 90.702 was procedural, an incursion into the Supreme Court's jurisdiction to adopt such rules, and thus unconstitutional.

DeLisle also reaffirms that a trial court has broad discretion in ruling on the range of subjects on which a particular proffered expert may provide admissible testimony, and the ruling "will be upheld absent a clear error." Id. (citing Davis v. State, 142 So.3d 867, 872 (Fla. 2014) (quoting Penalver v. State, 926 So.2d 1118, 1134 (Fla. 2006) ). In the present case, we consider the term "habitually addicted" in section 768.125, and the trial court's decision to exclude Mr. Bell's proposed opinion regarding Mira's alleged habitual addiction.

The dictionary provides alternative definitions of "addiction" as pertinent here:

a: the quality or state of being addicted; specif : the compulsive uncontrolled use of habit forming drugs beyond the period of medical need or under conditions harmful to society.
b: enthusiastic devotion, strong inclination, or frequent indulgence.

Webster's Third New International Dictionary, Unabridged, at 24 (1986).

The first definition raises medical and mental health issues regarding compulsion, uncontrolled use, and "habit forming drugs." These issues are similar to those inherent in the American Psychiatric Association's current diagnostic terms for "alcohol use disorder." Such a diagnosis would require a medical professional's interview with the patient (and perhaps others) and any relevant lab tests or physical examinations. And such a diagnosis would not rest on the basis of two BAC reports (months apart) or by a toxicologist considering the testimony of lay witnesses about an individual's habits regarding alcohol.

The second dictionary definition, based on "frequent indulgence" as applied to alcoholic beverages, veers away from medical diagnosis and into the realm of subjective observation. One consumer's "frequent indulgence" may be two beers after work on Friday nights; another's may be so-called binge drinking several times a year; and another's may be daily consumption to the point of losing consciousness. Fact-finding on the basis of that definition seems well within the province of a jury presented with the evidence in the record before us. Given the stipulation between the parties regarding Mira's BAC levels upon arrest and at the time of the accident, Mr. Bell's proffered toxicology testimony would then seem merely to bolster the testimony of lay witnesses with an incomplete attempt at medical diagnosis (hence Mr. Bell's reliance on a reference text on "medical" toxicology).

A review of the legislative history of section 768.125, as enacted in 1980; the separate misdemeanor offense of furnishing intoxicants to a "habitual drunkard" after notice; and the few reported Florida cases on the term "habitually addicted," do provide helpful insight, however.

Initially, section 768.125 was to be numbered 562.51 to follow the "habitual drunkard" statute, section 562.50. Liability for serving a "habitual drunkard" was to be limited to a person convicted of a violation of section 562.50. An amendment removed the conviction requirement and direct link to section 562.50, and the statute in its present form was enacted. Ellis v. N.G.N. of Tampa, Inc., 561 So.2d 1209, 1213-14 (Fla. 2d DCA 1990). The Second District decision in Ellis, which nonetheless retained the written notice requirement of section 562.50, was quashed by the Supreme Court of Florida in Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla. 1991) (" Ellis II").

Though the term "habitual drunkard" was eliminated in the enactment of section 768.125 (but the term "habitually addicted" was retained), the Supreme Court's decision continued to use the terms interchangeably:

We find the cause of action [in section 768.125 ] in this circumstance only requires evidence that the vendor had knowledge that the individual the vendor served was a habitual drunkard. Serving an individual multiple drinks on one occasion would be insufficient, in and of itself, to establish that the vendor knowingly served a habitual drunkard alcoholic beverages. On the other hand, serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard. We agree with the Fifth District Court of Appeal in Sabo v. Shamrock Communications, Inc., 566 So.2d 267 (Fla. 5th DCA 1990), approved sub nom. Peoples Restaurant v. Sabo, [591 So.2d 907 (Fla. 1991) ], that this element can properly be established by circumstantial evidence.

Id. at 1048-49.

Subsequent district court decisions have applied the Supreme Court's opinion in Ellis II, and the trial court did so in the present case as well. The trial court did not abuse its discretion in excluding Bell's proffered testimony, whether under Daubert and section 90.702, Frye, or Marsh.

Ultimately the jury heard testimony from Mira, his ex-wife, the bartender on duty the night of the accident, his passenger and co-worker, the police officer who arrested Mira at the crash scene, and other Hayes Robertson employees, regarding Mira's consumption of alcoholic beverages, his work record (attendance and performance), and his consumption of other drugs. This evidence comprised the plaintiffs' effort to establish, by circumstantial evidence as in Ellis II, that Mira was a "habitual drunkard" or "habitually addicted" to alcohol.

The jury instructions included a reading of section 768.125 and a charge summarizing the 768.125 claim: that Hayes Robertson was negligent "by the service of alcohol to Daniel Mira, Jr. on the night in question, when [Hayes Robertson] knew or should have known that Daniel Mira, Jr. was habitually addicted to the use of any or all alcoholic beverages." After deliberation, the jury rendered its verdict finding that Hayes Robertson had not knowingly served alcohol to a person habitually addicted to the use of any or all alcoholic beverages. The interrogatory verdict on 768.125 was composite: the jury was not asked separate questions regarding (1) whether Mira was "habitually addicted" to alcoholic beverages and (2) if so, whether Hayes Robertson knew, or should have known that and served him anyway.

Analysis: Order Denying Attorney's Fees (3D18-106)

The abuse of discretion standard of review also applies to our consideration of the trial court's conclusion that the proposals for settlement were not made in good faith. State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314, 315 (Fla. 3d DCA 2013). In this case, the question is whether Hayes Robertson had a reasonable basis at the time of the offers to conclude that its exposure was nominal. Mount Vernon Fire Ins. Co. v. New Moon Mgmt., Inc., 239 So.3d 183, 185 (Fla. 3d DCA 2018). Here, unlike the straightforward insurance policy coverage question in Mount Vernon Fire Ins. Co., a final summary judgment was not obtained by the offeror immediately after making the offer (Hayes Robertson's motions for summary judgment were denied, in the present case), there was ample circumstantial evidence regarding Mira's consumption of alcoholic beverages, letting the liability issues go to the jury under Ellis II, and there was certainly no guarantee that the jury verdict would be for Hayes Robertson.

Trial of the case was bifurcated, so damages were not reached in the liability phase. But the order of magnitude of those damages, if the jury had found liability on either or both of the plaintiffs' causes of action, is obvious from the record. Compensatory damages in a case of wrongful death and three significant personal injury claims would be far from nominal. Here, as in Event Services America, Inc. v. Ragusa, 917 So.2d 882, 884 (Fla. 3d DCA 2005), we find no abuse of discretion in the trial court's assessment of the nominal offers and the prospect that, at the time of the offers, the defendant "had at least some exposure."

For these reasons, we affirm the trial court's order denying an award of attorney's fees based on the proposals for settlement. Our decision on this issue makes it unnecessary to consider the second argument (ambiguity) advanced by the plaintiffs regarding the order denying Hayes Robertson's motion for attorney's fees.

Conclusion

Nothing can alter the tragic aspects of the accident and its impact on the victims, the conviction and imprisonment of Mira for a lengthy term of years, and the effect on several families. But the trial court's careful consideration of the proffered expert witness testimony (particularly with the standards of admissibility in contention in a pending Florida Supreme Court case) and its conduct of the trial and post-trial proceedings were exemplary.

For the reasons detailed in this opinion, we affirm the final judgment in favor of Hayes Robertson as to liability, and we affirm the order denying Hayes Robertson's motion for attorney's fees, in these consolidated cases.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      Retrograde extrapolation uses a BAC level from a blood sample collected at a later time (after an automobile crash, for example) to estimate the BAC at an earlier time (the time of the crash, for example).

      See § 397.675, Fla. Stat. (2014).

      Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      In the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed.), eleven diagnostic criteria are relevant to three sub-classifications of "alcohol use disorder." See https://pubs.niaaa.nih.gov/publications/dsmfactsheet/dsmfact.pdf (site last visited November 27, 2018).

      This statute, section 562.50, Florida Statutes (2018), was originally enacted in 1945. A person providing an alcoholic beverage (or other enumerated types of intoxicants) to a person "habitually addicted to the use" of such beverages or other intoxicants, after being given written notice "by wife, husband, father, mother, sister, brother, child, or nearest relative that said person so addicted is an habitual drunkard and that [the drunkard or person providing written notice is being injured] shall be guilty of a misdemeanor of the second degree ...." § 562.50.

      Murphy v. S. Mut. Mgmt. Corp., 936 So.2d 786 (Fla. 4th DCA 2006) ; Gonzalez v. Stoneybrook W. Golf Club, LLC, Inc., 225 So.3d 891 (Fla. 5th DCA 2017).

      The jury also returned a verdict of no liability on the negligence claim of allowing Mira to leave Hayes Robertson's premises "in an intoxicated condition" the night of the accident. It was undisputed that Mira was "off the clock" as he consumed alcoholic beverages that evening and as he and his passenger left the premises to drive away. We find no error in the conduct of the trial or the jury's verdict on this claim, as this case is entirely distinguishable from the negligence cases relied upon by the plaintiffs, including Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914 (Fla. 4th DCA 1993), and Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994).


author: PER CURIAM.

text:
    Karim CLARKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1986
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 12, 2018
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was convicted of three counts of sexual battery on a mentally defective person based upon three distinct acts involving the same victim during the same encounter. He challenges his convictions on counts I and II, arguing that the evidence was insufficient given the victim's equivocal testimony at trial regarding the alleged acts giving rise to these convictions. Appellant does not challenge his conviction on count III, and we affirm that conviction without discussion. We reverse the convictions on counts I and II but certify a question of great public importance to the Florida Supreme Court.

In March 2013, sixteen-year-old M.H. ("the victim") lived at home with her mother ("Mother"), her brother, her eighteen-year-old sister ("K.H."), K.H.'s four-month-old son, and Appellant, who was K.H.'s twenty-nine-year-old boyfriend. The victim has an IQ of 55. She attends a special school and functions developmentally at approximately a seven-and-a-half-year-old level.

During the early morning hours before daybreak on March 18, 2013, the victim was in bed when Appellant came into her bedroom and sexually battered her. K.H. was awakened by the victim's bedroom door squeaking several times and noticed that Appellant was not in their room. She opened the victim's bedroom door, looked in, and asked the victim why she kept "coming in and out" and whether she knew of Appellant's whereabouts. The victim told her that she did not know where Appellant was, even though he was hiding in her closet at the time. After K.H. went back to her room and closed the door, Appellant left the victim's bedroom and went back to the room he shared with K.H.

The victim went to Mother's bedroom and awakened her. The victim was in her pajamas and crying. She appeared scared. She told Mother that Appellant had touched her. When Mother asked her where Appellant had touched her, the victim demonstrated by putting her right hand on her leg, moving it to her vaginal area, and rubbing and moving her hand up and down. The victim told Mother that she had texted her to try to tell her Appellant was in her room. Mother checked her phone and saw six text messages from the victim. Around 7:00 p.m. that evening, after the victim had showered and changed her clothes, Mother took the victim to the hospital. Hospital personnel called the police.

Marion County Sheriff's Deputy Wilkes interviewed the victim at the hospital. Later, Sheriff's Detective Smith conducted a recorded interview with the victim. During the recorded interview, the victim told Detective Smith that Appellant came into her bedroom while she was half-asleep, removed her covers, moved her leg, put his finger in her private part, and made her feel uncomfortable. The victim also disclosed for the first time that Appellant had "put his tongue ... on my private" and that Appellant dropped his pants halfway and "pushed [his] part in my part."

The State charged Appellant with three counts of sexual battery based upon the three separate acts of oral, penile, and digital penetration or union. The case proceeded to trial approximately a year later. At trial, the victim testified that Appellant put his finger in her "girl part." She demonstrated to the jury what she meant by "girl part" by standing and pointing to her vaginal area. However, contrary to her recorded statement to Detective Smith, which was admitted into evidence pursuant to section 90.803(23), Florida Statutes (2014), the victim specifically denied that Appellant ever touched her with his mouth or penis, though the State asked her several times whether he had done so. She testified that she was sure that Appellant did not ever put his "boy part" in her "girl part." When further questioned by the State, however, the victim acknowledged her recorded statement to Detective Smith, confirmed that her memory was better when she gave her recorded statement, and repeatedly confirmed that she had been truthful when she gave the recorded statement.

The State also introduced collateral crimes evidence from K.H. and L.F., who both testified that Appellant had sex with them when they were sixteen or seventeen years old and Appellant was an adult. K.H. testified to engaging in consensual sexual activity with Appellant, including digital and penile sex. L.F. testified that Appellant forced penile sex upon her.

After Appellant's motion for judgment of acquittal was denied, the jury returned a verdict finding Appellant guilty of all three counts. Appellant contends that the trial court was obligated to grant a judgment of acquittal on counts I and II, which were based upon union or penetration by Appellant's mouth and penis, because the victim's in-court testimony recanted the sole evidence supporting those convictions. Appellant relies primarily on Beber v. State , 887 So.2d 1248 (Fla. 2004), and Baugh v. State , 961 So.2d 198 (Fla. 2007).

In Beber , the Florida Supreme Court reversed a conviction for sexual battery of a minor when the victim partially recanted his videotaped statement that was admitted pursuant to section 90.803(23). The supreme court concluded that the videotaped testimony "standing alone" was insufficient to support the conviction absent "other proper corroborating evidence." 887 So.2d at 1253 (emphasis added).

In Baugh , the victim gave a recorded statement to a police detective that the defendant made her perform fellatio on him and that she had done so twelve different times. 961 So.2d at 201. Although she later recanted, the court admitted the recorded statement under section 90.803(23). Id. at 201, 202. The Second District Court of Appeal upheld the defendant's conviction and concluded that the recorded statement was properly admitted given the following corroborating evidence: (1) the victim's spontaneous statement to her mother that the defendant made her perform fellatio on him; (2) the defendant's "admission" in which he told the victim's mother that he wanted the victim to perform fellatio on him while the mother watched and then to have sex with the mother; (3) the defendant's consciousness of guilt evidenced by his attempted suicide; and (4) the suggestion that the defendant engaged in witness tampering as testified by both a prison inmate and the mother's friend. Id. at 202. The supreme court reversed, holding that none of this so-called corroborating evidence, either individually or collectively, corroborated the victim's statement to the detective concerning fellatio-the basis of the charge against the defendant in that case. Id. at 203.

Here, the State contends that "proper" corroborating evidence was admitted. It argues:

Here, unlike in Beber and Baugh , the State presented evidence corroborating [the victim's] out-of-court statements, and therefore the trial court properly denied judgment of acquittal, notwithstanding M.H.'s trial testimony that Appellant did not touch her vagina with his mouth or penis. Specifically, [the victim's] out-of-court statements to Detective Smith were corroborated by: (1) K.H.'s testimony that she could not find Appellant anywhere inside the house at the time [the victim] asserted that Appellant was hiding in her closet; (2) K.H.'s testimony that she heard [the victim's] bedroom door opening and closing at around the time the assault occurred; (3) [the victim's] repeated text messages to [Mother], begging her mother to come help her as Appellant sexually assaulted her; (4) [Mother's] testimony that [the victim] came to her room crying and upset immediately after the assault, and; (5) the similar fact testimony of [L.F.] and K.H.

Of the listed, purported corroborating evidence, only the similar fact testimony arguably corroborates the specific act of penile penetration. Nevertheless, the weight of this so-called corroborating evidence pales in comparison to that which the Florida Supreme Court rejected as insufficient in Baugh . Although the Baugh victim "totally repudiated" her out-of-court statement, the principle of law apparently applies even to a partially repudiated out-of-court statement, as illustrated in Beber , where the victim repudiated his pre-trial statement that the defendant had performed fellatio on him but continued to maintain that the defendant touched his penis.

Though not specifically argued by the State here, another potentially distinguishing fact in this case is that the victim maintained that her prior statement was given when her memory was better and she confirmed the truthfulness of her prior statement. If the jury accepted that testimony, it could have concluded that her partial in-court repudiation was the product of a memory lapse or diminished intellect, or both. Under these unique facts, arguably, it was for the jury to decide which version of her trial testimony was to be credited. Baugh , however, seems to foreclose such a jury determination.

We are constrained to reverse the convictions on counts I and II on the basis of Baugh . However, we certify the following question to our supreme court as one involving a question of great public importance:

WHETHER BEBER v. STATE , 887 So.2d 1248 (Fla. 2004), AND BAUGH v. STATE , 961 So.2d 198 (Fla. 2007), REQUIRE A COURT TO GRANT A JUDGMENT OF ACQUITTAL WHERE A DEVELOPMENTALLY DISADVANTAGED OR CHILD VICTIM CONFIRMS THE TRUTHFULNESS OF A PRIOR OUT-OF-COURT STATEMENT ADMITTED PURSUANT TO SECTION 90.803(23), FLORIDA STATUTES, AND CONFIRMS THAT SOME CRIMINAL SEXUAL ACT OCCURRED, BUT ALSO OFFERS CONTRADICTORY TESTIMONY AT TRIAL AS TO SOME OF THE SPECIFIC ACTS THAT PURPORTEDLY OCCURRED DURING THE SAME ENCOUNTER?

We affirm Appellant's conviction on count III and reverse Appellant's convictions on counts I and II. Based on our disposition and the State's concession of error regarding score sheet error, on remand, the trial court shall correct the score sheet.

AFFIRMED in part; REVERSED in part, and REMANDED.

BERGER and WALLIS, JJ., concur.

TORPY, J., concurs and concurs specially, in which BERGER and WALLIS, JJ., concur.

TORPY, J., concurring and concurring specially.

Given the precedents from the Florida Supreme Court, I am constrained to concur. If I were deciding this case as one of first impression, I would adopt what appears to be the majority view as expressed in Commonwealth v. Brown , 617 Pa. 107, 52 A.3d 1139 (2012), based upon the thorough analysis and sound reasoning of Pennsylvania's highest court. Apparently, the per se rule adopted by the Florida Supreme Court has been adopted in only two other states, Montana and Massachusetts. Brown , 52 A.3d at 1166. It evolved from dicta that originated in State v. Moore , 485 So.2d 1279 (Fla. 1986). There, the state's only evidence in a murder case consisted of grand jury testimony from two eyewitnesses. The witnesses completely repudiated their grand jury testimony at trial, testifying that they had lied to the grand jury. Moore , 485 So.2d at 1280-81. Although the Fourth District Court of Appeal certified a narrow question to the Florida Supreme Court based on the particular prior inconsistent statements and circumstances presented there, the supreme court rephrased and greatly broadened the question as follows:

IS A PRIOR INCONSISTENT STATEMENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE PRIOR INCONSISTENT STATEMENT IS THE ONLY SUBSTANTIVE EVIDENCE OF GUILT?

Id. at 1281. Answering the rephrased question in the negative, this dicta became the holding in subsequent cases leading to the decisions cited by Appellant and controlling the outcome in this case.

In all of these cases, the prior inconsistent statements were admissible as substantive evidence because they were not hearsay by definition or because they fell within a statutory exception to the hearsay rule. Accordingly, the inherent doctrinal underpinning for the holdings in these cases was the Due Process Clause of the Fourteenth Amendment, not the Florida Evidence Code. For due process purposes, when a conviction is challenged on sufficiency of evidence grounds, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted). Historically, the application of this test rarely results in the reversal of a conviction by jury, even when the evidence is of questionable reliability.

I think the relevant question in Moore was whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt when the sole evidence of guilt was grand jury testimony that had been repudiated under penalty of perjury. Under this construct, I do not necessarily quarrel with the outcome in Moore . What I take issue with is dicta in Moore that unnecessarily lumped all "prior inconsistent statements" into one category. Doing so created a bright-line fiction that ignored the fact that all such statements are not qualitatively equal.

A section 90.803(23) statement, for example, is based upon a legislative determination that this category of out-of-court statements is sufficiently reliable to support a conviction even when the declarant is unavailable at trial. The enactment of this narrow exception to the hearsay rule is grounded in the truism that this particular category of victims cannot always effectively communicate in a trial environment. They are also vulnerable to manipulation when, as is often the case, the defendant is a family member or friend. As a reliability safeguard, the victim's prior out-of-court statement can only be admitted as evidence after the trial judge makes specific findings of reliability based on evidence. I do not know how an appellate court can conclude that no rational jury can convict based on admissible, substantive evidence that is independently tested for reliability during a separate hearing before the trial judge, unless it first concludes that the trial judge's threshold determination was erroneous under the appropriate standard of review.

The per se bright-line rule from the Moore dicta also divests the finder-of-fact of the opportunity to consider the circumstances under which and the extent to which the prior statement is repudiated. In Moore , the witnesses admittedly perjured themselves, either in their grand jury testimony or their subsequent trial testimony. Stated in due process terms, no rational jury could credit anything the witnesses proffered because they demonstrated that they had no regard for the oath. Here, by contrast, the developmentally disabled witness obviously had difficulty communicating during trial. When asked how long Appellant had lived in her home, "a day," "a week," or "a month," she answered, "I don't remember." She described her sex organ as "a girl part" and professed to not know any other name for her sex organ. Although she recalled that Appellant had pulled down his pants "half way," she said she did not remember what he did when he pulled them down. Finally, although she contradicted her recorded statement during her in-court testimony, she also repeatedly confirmed that everything she said in the pretrial recorded statement was true. In my view, a rational jury, who viewed the demeanor of the witness, could have sifted through all of this evidence and reached the conclusion that the contradictions during trial one year after the incident were the product of memory lapses, repressed memory due to stress, diminished capacity for communications, or any combination thereof, rather than a lack of candor.

In short, I would adopt the holding in Brown :

[W]e hold that a conviction which rests solely on the prior inconsistent statements of witnesses who testify at trial, where such statements were properly admitted, but recanted at trial, does not offend due process provided the makers of such statements have been made available for cross examination, and, based on the content of the statements as a whole, a finder-of-fact could reasonably find that every element of the offense ... charged has been proven beyond a reasonable doubt.

Brown , 52 A.3d at 1184. Under this test, I would affirm the convictions here.

Under the Florida Supreme Court decisions, whether the statement is the sole evidence apparently depends on whether "sufficient" or "proper" corroborating evidence is introduced. I would make a distinction between this case and cases like Moore and State v. Green , 667 So.2d 756 (Fla. 1995), where the prior statement was completely repudiated and exonerated the defendants from any criminal conduct. Here, by contrast, the victim did not repudiate her out-of-court statement. She contradicted facts related to the details of specific acts perpetrated during the criminal encounter. Although the acts themselves were separate crimes, the victim's direct testimony in court of the related criminal acts and certain other confirmed facts (such as Appellant pulling his pants down) circumstantially corroborated the prior statement.

As for the total repudiation cases, after Baugh , the appellate standard for measuring the "sufficiency" of the corroborating evidence is unclear to me. It should be the same due process standard by which the sufficiency of all evidence supporting a conviction is measured. Using this standard, it is hard for me to reach the conclusion that the Baugh majority reached.

      I note Justice Overton's concurring opinion in Moore expressing his concern about confrontation. I concur in this sentiment.


author: Rowe, J.

text:
    Marion LITTLE, Appellant, v. Joann DAVIS, Appellee.
    No. 1D17-4469
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Rhonda B. Boggess and Amanda L. Ingersoll of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    James G. Biggart, II, of Morgan & Morgan, Tallahassee, for Appellee.
   Rowe, J.

Joann Davis was stopped at a stop sign when the vehicle she was driving was rear-ended by a car driven by Marion Little. Both parties agreed that Little's car was traveling less than five miles per hour before it made contact with the bumper of Davis's car. Initially, Davis did not complain of any injuries. But nine days after the accident, Davis asserted that she had pain in her left arm. Eight months later, she filed suit alleging that she sustained permanent injuries in the accident. The case proceeded to trial, and the jury returned a verdict in favor of Davis, but found that she did not sustain any permanent injury. The jury awarded no damages for pain and suffering. Davis moved for a new trial on grounds that a single question posed by defense counsel to Davis under cross-examination was so prejudicial it warranted a new trial. The trial court granted the motion. Because the record does not support the trial court's ruling, we reverse.

Facts

Liability was not at issue in this case. Little admitted that she caused the accident, but she disputed that Davis sustained permanent injury during the low-speed collision. Further, the parties argued over whether any of the injuries Davis alleged were caused by the accident or were instead related to a pre-existing condition. Evidence of causation was in conflict.

On the one hand, Davis presented the testimony of two physicians, including a neurological surgeon who opined that the injuries to Davis's left arm were caused by the accident.

On the other hand, Little presented the testimony of a biomechanics engineer, who testified that the mechanics of the collision made it "physically impossible" for Davis to develop the injuries she alleged as a result of the accident. Further, a doctor who performed a comprehensive medical examination of Davis testified that Davis's pain complaints could not be explained on any kind of anatomic basis. He also opined that she exhibited conduct consistent with malingering. During defense counsel's cross-examination of Davis, the jury heard evidence regarding Davis's twenty years' worth of medical records related to Davis's prior complaints and car accidents. Davis testified that she could not recall the prior accidents or complaints and that she had never specifically complained of pain in her left arm. Defense counsel then inquired:

DEFENSE: Okay. Isn't it true that as of today, you no longer have any problems with your left arm?
DAVIS: I still have problems with my left arm.
DEFENSE: You still do?
DAVIS: Yes.
DEFENSE: You've lived with your boyfriend, William McNealy for several years; isn't that right?
DAVIS: Yeah. Three years.
DEFENSE: Three years? Okay. He lived with you at the time of this accident?
DAVIS: Yes.
DEFENSE: Okay. If your arm's still injured, how come Mr. Nealy testified that you don't complain to him about problems with your left arm anymore?
PLAINTIFF: Objection; speculation.
DAVIS: (Inaudible).
COURT: Hang on just a second. What's the objection?
PLAINTIFF: The objection is speculation. She's asking why does he think something.
COURT: Restate the question.
DEFENSE: I said if you were - if your left arm is still injured, how come Mr. Nealy testified that you don't complain to him about problems with your arm anymore?
DAVIS: Because I -
COURT: Hang on just a second. What's the objection?
PLAINTIFF: The objection is it's hearsay and it requires her to speculate on the state of mind of another witness that's not even in evidence.
COURT: Sustained.
DEFENSE: Mr. Nealy wouldn't make anything up about you, would he?
PLAINTIFF: Objection.
COURT: Sustained.
DEFENSE: Isn't it true, Ms. Davis, that the problems you're having now are simply the same ones you've had for 20 years?
DEFENSE: No.

The jury returned a verdict in favor of Davis, finding that Little caused the accident. The jurors further found that Davis sustained an injury in the low-speed collision and awarded Davis damages in the amount of her past medical bills. However, the jury found that Davis did not sustain a permanent injury "within a reasonable degree of medical probability." Finding no permanent injury, the jury did not award Davis any damages for past or future pain and suffering.

Davis moved for a new trial on damages. She argued that the jury's verdict finding no permanency was contrary to the manifest weight of the evidence presented at trial. At the hearing on the motion, Davis asserted that the jury was misled by defense counsel's cross-examination questions regarding her boyfriend William McNealy and misperceived the weight of the evidence. She argued that defense counsel's conduct was so prejudicial and incurable that it warranted a new trial. The court expressed its dissatisfaction in defense counsel for inquiring about Davis's boyfriend. The court explained on the record the reasons it found defense counsel's line of questioning to be prejudicial:

COURT: Let me just - you know, I, under the circumstances, did find that to be highly prejudicial and I am going to grant a new trial on damages based on that.
And just for the purpose of the appellate court, if that's taken up, wondering why I'm making that, my observations of Ms. Davis was that she frankly was a very uncommunicative witness. Not that she was the least bit hostile, it's just that she had a lot of difficulty expressing herself both on direct and cross examination, such that on direct examination, my recollection is [Davis's counsel] really struggled to get her to testify to the basics on direct examination, just because she was so unable to express herself verbally. Whether it was shyness or whatever, she was unable to do that.
On cross examination, that caused on cross, I believe, the jury to believe that whatever she was asked on cross was the truth, because I don't think she disagreed with anything you said on cross, to the best of my recollection.
DEFENSE: I didn't ask any questions that she could have disagreed with.
COURT: Well, I mean, there were a lot of just grunts, as I recall, not even - but I really - that bothered me when I heard it, because I remember thinking this jury, it would be easy for them to believe that the boyfriend - that she must have told the boyfriend that she's not hurt.
I am going to grant the new trial on damages because of that and I just wanted to make sure the appellate court understood that. I know my job in part as a judge is to, based upon my experience as both a trial lawyer and a judge and my observations of witnesses and their demeanor and all of those things that go with a trial, that while I have to be very reluctant to substitute my judgment for the jury's in the long run, I do have to make sure the jury is not misled on the testimony. And with this being really a dispute between Dr. Rumana, who was her long time treating physician, and Dr. Rogozinski, who saw her for about 30 minutes, that I think that question itself, although it wasn't answered, it was objected to and the objection was sustained, caused that to be a big part in the jury making their determination as to the permanency, so I'm going to grant the new trial based on that.
...
DEFENSE: So just to be clear for the appellate record, you are granting a new trial solely on the issue of the one hearsay question?
COURT: A highly prejudicial hearsay question.

The written order granting a new trial indicated that the trial court's ruling was "based upon the introduction of certain hearsay evidence during the cross-examination of [Davis], which the Court [found] was unduly prejudicial to the [Davis] and deprived her of a fair trial." This appeal follows.

Analysis

We "begin with the presumption that the trial court properly exercised its discretion, and [ ] will not disturb the trial court's ruling absent a clear abuse of that discretion." Allstate Ins. Co. v. Manasse , 707 So.2d 1110, 1111 (Fla. 1998). The trial court's "decision to grant a new trial is given even greater deference than a court's decision to deny a new trial." Sullivan v. Kanarek , 79 So.3d 900, 903 (Fla. 2d DCA 2012). This is because the trial court "had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record." Johns-Manville Sales Corp. v. Janssens , 463 So.2d 242 (Fla. 1st DCA 1984). But, despite this deference to the trial court, the order granting a new trial must be supported by the record. Moore v. Gillett , 96 So.3d 933, 938 (Fla. 2d DCA 2012). Here, the record does not support the trial court's order.

The parties agree that the alleged error in this case was not properly preserved. "[W]hen a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court's review of a motion for a new trial." Companioni v. City of Tampa , 51 So.3d 452, 456 (Fla. 2010). Here, although Davis's counsel objected to defense counsel's question regarding McNealy, and the trial court sustained it, Davis's counsel never sought a curative instruction and did not move for mistrial. Thus, our review is for fundamental error. Id. at 454 (citing Ed Ricke & Sons, Inc. v. Green , 468 So.2d 908, 910 (Fla. 1985) ).

In Murphy v. International Robotic Sys., Inc. , 766 So.2d 1010 (Fla. 2000), the Florida Supreme Court set forth a four-part test that trial courts must apply when determining whether a new trial should be granted based on unpreserved error in closing argument. Id. To prevail on a motion for new trial under Murphy , the movant must establish that the challenged argument was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public's interest in our system of justice requires a new trial. Id. at 1028-30. The test outlined in Murphy is not limited to a trial court's review of unpreserved errors made during closing argument. The Florida Supreme Court has since held that the Murphy test also applies to a trial court's review of unpreserved errors related to "instances of attorney misconduct." Companioni , 51 So.3d at 456 ; see also Carnival Corp. v. Jimenez , 112 So.3d 513, 519 (Fla. 2d DCA 2013) (applying Murphy test to review defense counsel's misconduct throughout trial); Platz v. Auto Recycling & Repair, Inc. , 795 So.2d 1025, 1027 (Fla. 2d DCA 2001) (recognizing that the Murphy court "did not expressly limit its holding to closing argument"). A trial court abuses its discretion when it grants a new trial based on an unpreserved error involving attorney misconduct without first applying the four-part test outlined in Murphy . See Black v. Cohen , 246 So.3d 379, 385 (Fla. 4th DCA 2018).

Here, the trial court did not make the four findings required by Murphy and failed to address each requirement at the hearing or in its written order. On this basis alone, the trial court abused its discretion. See McDuffie v. State , 970 So.2d 312, 326 (Fla. 2007) (holding that a trial court "abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence") (internal quotes omitted); see also Companioni , 51 So.3d at 456 (holding that trial court may not grant a new trial based on objections to attorney misconduct which were sustained, but for which no motion for mistrial was requested, without the requirements of Murphy being met); Carnival Corp. , 112 So.3d at 520 (noting that complaining party must successfully establish the four criteria outlined in Murphy before the trial court can grant the party's motion for new trial); Mercury Ins. Co. of Florida v. Moreta , 957 So.2d 1242, 1250 (Fla. 2d DCA 2007) (same); Sawczak v. Goldenberg , 781 So.2d 450, 451 (Fla. 4th DCA 2001) (same).

Further, our review of the record establishes that in this case, the four requirements of the Murphy test cannot be met.

1. Improper conduct

With regard to the first prong of the Murphy test, the question posed by defense counsel during the cross-examination of Davis-"If your left arm is still injured, how come Mr. Nealy testified that you don't complain to him about problems with your arm anymore?"-was improper because it misrepresented the evidence and introduced hearsay testimony from a non-testifying witness. See generally Boyles v. Dillard's Inc. , 199 So.3d 315, 319 (Fla. 1st DCA 2016) (finding improper defense counsel's attempted impeachment of plaintiff's credibility by referring to a deposition that had not previously been introduced into evidence); Moreta , 957 So.2d at 1252 (finding improper defense counsel's closing argument revealing opinion of non-testifying witness).

2. Harmfulness

The second prong under Murphy requires the trial court to determine whether defense counsel's question was harmful. Harmful comments are those that are "so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury," such that "the verdict reached could not have been obtained but for such comments." Id. Defense counsel's question, asked on the first day of a three-day trial, was isolated and unanswered. McNealy was never called as a witness, and his name was never mentioned again. "No reasonable person would conclude that the verdict was fatally tainted by this single remark." Black , 246 So.3d at 385.

Even clearly improper questioning is not harmful under Murphy if the record contains "ample evidence" to support the jury's verdict. See Thompson v. Hodson , 825 So.2d 941, 947 (Fla. 1st DCA 2002) (finding defense counsel's false implication that his client was the only one of plaintiff's doctors being sued was not harmful where the record contained "ample evidence from which a jury could have fairly rendered a defense verdict"); see also Carnival Corp. , 112 So.3d at 521-22. Here, there was ample evidence to support the jury's finding that Davis did not sustain any permanent injury during the low-speed collision. Indeed, Davis's medical records reflected an extensive history of left-arm pain and numbness over a twenty-year period. Further, the jury heard testimony that it was "physically impossible" for Davis to have developed her claimed injuries during the accident. The physician who examined Davis opined that Davis's conduct during her examination was consistent with malingering. A finding that Davis sustained no permanent injury is also consistent with the neurological surgeon's testimony that Davis's surgeries were successful and improved her condition and that Davis would continue to see improvement for up to two years after the surgery. Thus, there was ample evidence to support the jury's verdict that Davis was not entitled to damages for pain and suffering and that Davis did not suffer any permanent injury. Accordingly, on this record, we find that defense counsel's conduct was not harmful under Murphy .

3. Incurability

The third prong outlined in Murphy requires the trial court to determine "that even if [it] had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-argument resulted in an improper verdict." Murphy , 766 So.2d at 1030. This is an "extremely difficult" hurdle, and "rarely will a party be able to satisfy the burden of this prong." Carnival Corp. , 112 So.3d at 522. Davis cannot establish that the harm caused by defense counsel's question, if any, was incurable. Davis's counsel did not request a curative instruction and, even if he had, Davis fails to explain why a general instruction to disregard the objectionable statement would have been ineffective. See id. (noting that an appellant must explain why an instruction to disregard would not cure improper comments). On this record, there is no reason to believe that a curative instruction would not have remedied any potential harm caused by defense counsel's unanswered question.

4. Consideration of the public's interest in the justice system

Finally, the fourth prong requires the moving party to establish that the attorney's misconduct "so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial." Murphy , 766 So.2d at 1030. The category of attorney misconduct that would satisfy this prong is very limited. The court in Murphy provided that conduct appealing to racial, ethnic, or religious preferences would traditionally meet this requirement. Id. Here, the single, isolated question by defense counsel made on the first day of a three-day trial "did not sink to a level of perniciousness at which a new trial is required to maintain public confidence in our system of justice." Platz , 795 So.2d at 1027. The trial court failed to consider this prong before granting a new trial, Davis offered no argument to support it, and our review of the record demonstrates defense counsel's conduct in asking the single, isolated cross-examination question did not amount to an error that seriously affects the basic fairness, integrity, or public reputation of the judicial process.

Conclusion

Because the trial court failed to apply the four-part test outlined in Murphy in ruling on Davis's motion for new trial, and because the Murphy test cannot be met on this record, the trial court abused its discretion. Accordingly, we reverse the order granting new trial and direct the lower court to enter a judgment consistent with the jury's verdict. See Walt Disney Parks & Resorts U.S., Inc., v. Grimes , 248 So.3d 179, 180 (Fla. 5th DCA 2018).

REVERSED and REMANDED with directions.

Lewis, J., concurs; Wolf, J., concurs in result.

      At oral argument, Little's appellate counsel conceded that the question was improper.

      At the hearing on Davis's motion for new trial, the trial court was laboring under the impression that it had in fact given a curative instruction. When the court erroneously recalled that it had given a curative instruction, Davis's counsel compounded the error, agreeing that a curative instruction had been given.


text:
    Patrick SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-3134
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this direct appeal, we affirm Appellant's convictions and sentences for sexual battery and possession of cocaine. We write only to address Appellant's claim that the trial court erred in scoring his prior Georgia burglary conviction as burglary of an occupied structure.

Below and on appeal, the parties disagree whether the underlying facts establish that the store in Georgia was occupied when Appellant burglarized it. However, "neither the trial court nor this court is permitted to consider underlying facts in determining the existence of an analogous Florida offense." Snipes v. State , 793 So.2d 1107, 1108 (Fla. 1st DCA 2001). Instead, only the elements of the out-of-state crime should be considered in determining whether a conviction is analogous to a Florida crime. Dautel v. State , 658 So.2d 88, 91 (Fla. 1995) ; Bracey v. State , 109 So.3d 311, 314 (Fla. 2d DCA 2013) ; Michaud v. State , 2 So.3d 375, 376 (Fla. 4th DCA 2008) ; Montoure v. State , 880 So.2d 793, 794 (Fla. 1st DCA 2004) ; Knarich v. State , 866 So.2d 165, 168 (Fla. 2d DCA 2004) ; Snipes , 793 So.2d at 1108 ; Holybrice v. State , 753 So.2d 621, 623 (Fla. 4th DCA 2000) ; Lee v. State , 675 So.2d 682, 683 (Fla. 1st DCA 1996).

Appellant has not argued below or on appeal that the trial court erred in relying on underlying facts to score the Georgia burglary conviction or that the elements of the out-of-state crime were not analogous to the Florida offense of burglary of an occupied structure. Here, the court will not reverse the trial court's ruling on grounds neither raised nor argued by the parties. Accordingly, we affirm.

AFFIRMED .

Bilbrey, Winokur, and Jay, JJ., concur.