author: Per Curiam. Wolf, J., dissenting.

text:
    Christopher Maurice BELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-1319 1D17-1539 1D17-1540 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    May 10, 2018
    Andy Thomas, Public Defender, and Kathryn Lane and Jasmine Russell, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Holly N. Simox, and Daniel Krumbholz, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Christopher Bell was charged in three separate cases with three separate burglaries. He had three separate trials and got three separate guilty verdicts. He then filed three separate motions for new trial, each raising the same two arguments: (1) that the trial court erred in denying motions for judgment of acquittal and (2) that the verdict was contrary to the weight of the evidence. The presiding judges denied the motions, discussing only the sufficiency-of-the-evidence arguments. In his three appeals, which we consolidate for disposition, Bell argues that the judges erred by applying the wrong legal standard. We review this issue de novo. See Fergien v. State , 79 So.3d 907, 908 (Fla. 2d DCA 2012).

Motions for judgment of acquittal and motions for new trial are decided under different standards. Compare Fla. R. Crim. P. 3.380(a) (directing a court to enter a judgment of acquittal in response to a defense motion when "the court is of the opinion that the evidence is insufficient to warrant a conviction") with Fla. R. Crim. P. 3.600(a)(2) (directing a court to grant a new trial if "[t]he verdict is contrary to law or the weight of the evidence"). While the former tests the sufficiency of the evidence, the latter requires the trial court to weigh the evidence and determine credibility just as a juror would. See Fergien , 79 So.3d at 908. This Court has previously reversed the denial of a new-trial motion when the trial court applied, or appeared to apply, the wrong legal standard. See Palmer v. State , 196 So.3d 1289 (Fla. 1st DCA 2016) (reversing after trial court applied a sufficiency-of-the-evidence standard instead of weight-of-the-evidence standard); Spear v. State , 860 So.2d 1080 (Fla. 1st DCA 2003) (reversing because "the trial court's findings indicate that the court may have applied" the incorrect standard).

Here there is nothing to indicate the trial judges applied the wrong standard. Bell raised both sufficiency-of-the-evidence and weight-of-the-evidence arguments in his new-trial motions. While the judges' oral rulings only addressed the standard for the sufficiency arguments, it does not follow that the judges applied the sufficiency standard to the weight-of-the-evidence arguments. Cf. Adams v. State , 417 So.2d 826, 828 (Fla. 1st DCA 1982) ("Although the motion for new trial raised the weight of the evidence issue, the order denying the motion is worded in such a way as to indicate the trial court may have limited itself to the sufficiency of evidence standard."). The judges had separate legal issues before them, and the record does not suggest that they applied the same standard to both. In other words, Bell has not met his burden to demonstrate error on appeal.

AFFIRMED .

Osterhaus and Winsor, JJ., concur; Wolf, J., dissents with written opinion.

Wolf, J., dissenting.

While I agree that reversal is not required if a trial judge rules on a motion for new trial and "there is nothing [in the record] to indicate the trial judge applied the wrong standard," here it is at the very least unclear what standard the trial court used. In such cases reversal and remand for clarification are required by precedent. See, e.g., Adams v. State , 417 So.2d 826, 828 (Fla. 1st DCA 1982) (reversing where the order denying the motion for new trial was "worded in such a way as to indicate the trial court may have limited itself to the sufficiency of evidence standard") (emphasis added).

In this case, appellant made a motion for a new trial, arguing: (1) the verdict was contrary to the weight of the evidence; and (2) the court erred in denying appellant's motion for judgment of acquittal.

In denying the motion, the court made the following ruling:

All right. The motion is denied. We dealt with this at the trial. I don't know that there's-I can add much more to it. It is a circumstantial evidence case from the standpoint of intent. Most cases of burglary usually are circumstantial in nature as far as proof of the defendant's intent. I think there's evidence here that would rebut, if believed by the jury, which it was apparently, that would rebut the reasonable hypothesis of innocence that hereby the defense was essentially I just went to trespass, is essentially what the defense is arguing, and you've got-you've got forced entry and some of the other pieces of evidence that would support that it was done with an intent to go in and commit the act of theft. So I'm-I'm denying it.

(Emphasis added). The trial court made no mention in its ruling of the manifest weight of the evidence test that it was supposed to apply in ruling on a motion for new trial.

In a criminal case, motions for judgment of acquittal and for new trial are decided under different tests. Compare Fla. R. Crim. P. 3.380(a) (directing judgment of acquittal when the trial court "is of the opinion that the evidence is insufficient to warrant a conviction"), with Fla. R. Crim. P. 3.600(a)(2) (directing new trial when "verdict is contrary to ... the weight of the evidence"). On the one hand, a motion for judgment of acquittal tests the sufficiency of the evidence; a trial court must determine "whether the evidence presented is legally adequate to permit a verdict." Geibel v. State , 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). On the other hand, a motion for new trial tests the weight of the evidence; a trial court must weigh the evidence and determine credibility just as a juror is required to do. Id. Case law is uniform that where it is ambiguous or unclear which standard has been applied by the trial court, reversal is required.

In Jordan v. State , No. 1D17-2818, 244 So.3d 1178, 2018 WL 1886471 (Fla. 1st DCA Apr. 20, 2018), this court recently determined where the trial court's words "implied" that it was using the wrong standard, we were required to reverse. In Spear v. State , 860 So.2d 1080 (Fla. 1st DCA 2003), we found that "[b]ecause the trial court's findings indicate that the court may have applied the sufficiency of the evidence standard instead of the weight of the evidence, we reverse ...." (Emphasis added).

This interpretation is consistent with a long line of cases from other districts. In Fergien v. State , 79 So.3d 907 (Fla. 2d DCA 2012), much like the instant case, the defendant's motion for new trial included an argument that the verdict was against the manifest weight of the evidence. The State's response focused on the verdict's legal sufficiency, and the trial court's order denying the motion referred only to its ruling on the motions for judgment of acquittal. The Second District reversed because it was "unable to conclude that the trial court properly determined that the motion for new trial should be denied based on the weight rather than the sufficiency of the evidence." Id. at 908.

In Geibel , 817 So.2d at 1044-45, the Second District held that it was reversible error for the trial court to deny a motion for new trial by simply saying, "I don't see that I have any legal basis to grant a new trial, so I'll deny the motion." The Second District reversed because it could not tell whether the trial court applied the proper standard. Id.

In Fulword v. State , 29 So.3d 425 (Fla. 5th DCA 2010), the trial court orally denied a motion for new trial based on the manifest weight of the evidence stating, "Well, I think clearly the matter of credibility of witnesses is a matter for the jury, as is the issue of intent." The Fifth District reversed because it did not appear the trial court applied the right standard. Id.

In Lee v. State , 117 So.3d 848, 849 (Fla. 5th DCA 2013), the Fifth District stated, "In the present case it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial. Indeed the State agrees that because the record on the issue is ambiguous, a new hearing on [the defendant's] motion is appropriate. We agree." The Fourth District in Velloso v. State , 117 So.3d 903, 906 (Fla. 4th DCA 2013), cited this legal principle with approval, stating, "Even if it were simply unclear as to whether the trial court applied the correct standard, reversal ... would be required." (Emphasis added).

The wording of the order in this case, especially the previously emphasized words, indicates the trial court was utilizing the sufficiency of the evidence standard rather than the manifest weight of the evidence standard in ruling on the entire motion.

In the first part of the order, the judge stated he was denying the motion because he dealt with it at trial. This statement indicates he used the sufficiency of the evidence standard, because the manifest weight of the evidence standard would not have been at issue during the trial. In addition, the judge's reference to there being evidence that would rebut the reasonable hypothesis of innocence, if believed by the jury, also appears strictly to deal with the sufficiency of the evidence standard. The judge's concluding statement focused on the sufficiency of the evidence to demonstrate intent, which was also a reference to the sufficiency of the evidence standard.

In cases such as this where a motion for new trial is based at least in part on the argument that the verdict was against the manifest weight of the evidence, and the trial court only made statements related to the sufficiency of the evidence standard in denying the motion, precedent requires us to reverse and remand for the trial court to rule on the motion using the correct standard.

      In cases 17-1319 and 17-1539, counsel argued this issue as the sole basis for reversal. In case 17-540, counsel filed an Anders brief, asserting there was no colorable basis for reversal. In that case, we directed counsel to file a supplemental brief raising this issue, and counsel ably did so.

      In Geibel v. State , 817 So.2d 1042 (Fla. 2d DCA 2002), the Second District appears to say that even if there is no indication that the sufficiency of the evidence standard was applied, reversal was required. It is unnecessary for us to go that far in this case because there are many indications that the wrong standard was utilized.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    DOMINO'S PIZZA, LLC, Appellant/Cross-Appellee, v. Yvonne WIEDERHOLD, as personal representative of the Estate of Richard E. Wiederhold, Appellee/Cross-Appellant.
    Case No. 5D16-2794
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Dinah S. Stein and Mark Hicks, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Richard S. Womble and Christine V. Zharova, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellant/Cross Appellee.
    John S. Mills and Courtney Brewer, of The Mills Firm, P.A., Tallahassee, for Appellee/Cross Appellant.
   ORFINGER, J.

Domino's Pizza, LLC, appeals a final judgment entered in favor of Yvonne Wiederhold, as personal representative of the estate of Richard E. Wiederhold. Domino's argues that the trial court should have granted directed verdicts on Mrs. Wiederhold's claim as a surviving spouse under the Wrongful Death Act, sections 768.16-.26, Florida Statutes (2012) (the "Act"), because she was not married to Mr. Wiederhold at the time of his injury; and that as a matter of law, it was not vicariously liable for the actions of its franchisee, Fischler Enterprises of C.F., Inc., because it did not control Fischler's day-to-day operations. Domino's also seeks a new trial based on Mrs. Wiederhold's improper closing arguments, which it claims denigrated its defense, referenced facts not in evidence, mischaracterized the law, and expressed counsel's personal beliefs or evoked the "golden rule." Mrs. Wiederhold cross-appeals, arguing that the trial court erred by denying her request for an award of Mr. Wiederhold's medical expenses paid by Medicare and insurance.

For the reasons set forth below, we affirm the denial of the directed verdicts on the issues of Mrs. Wiederhold's status as a "surviving spouse" and on Domino's vicarious liability. However, we reverse and remand for a new trial on liability and damages based on Mrs. Wiederhold's improper closing argument. We also find merit in Mrs. Wiederhold's cross-appeal claim. On retrial, all medical expenses paid by or on Mr. Wiederhold's behalf should be considered by the jury.

FACTS AND PROCEDURAL BACKGROUND

In January 2011, Richard Wiederhold swerved into the median to avoid a vehicle that had pulled out in front of him. His vehicle drifted through the median and back across the roadway, flipped over once or twice, and came to rest in a ditch. The collision immediately rendered him a quadriplegic. The other vehicle was driven by Jeffrey Kidd, who was delivering pizza for Domino's franchisee, Fischler. One month after the accident, Mr. Wiederhold sued Domino's, Fischler, and Mr. Kidd, claiming that Mr. Kidd negligently caused his injuries and that Fischler and Domino's were vicariously liable. Several months later, Mr. Wiederhold married his girlfriend, who was an uninjured passenger in the accident. In March 2012, Mr. Wiederhold died, and his now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff. She then filed an amended complaint to include a claim for wrongful death damages as Mr. Wiederhold's surviving spouse. In June 2013, Fischler was dismissed from the lawsuit after it settled with Mrs. Wiederhold for $1 million. That same month, the trial court allowed the attorneys representing Fischler and Mr. Kidd to withdraw from representing Mr. Kidd due to alleged irreconcilable differences. Mr. Kidd represented himself from that point forward, including at trial.

Prior to trial, Domino's filed several motions for summary judgment, which argued, among other things, that Mrs. Wiederhold was not a surviving spouse under the Act because the Wiederholds were not married at the time of the injury, it was not vicariously liable because it did not exercise control over Fischler's day-to-day operations, and all but one claim for medical and hospital expenses were barred because no claims had been filed in Mr. Wiederhold's probate proceeding. The court denied Domino's motions that challenged Mrs. Wiederhold's status as a surviving spouse under the Act and Domino's vicarious liability. However, the trial court granted Domino's motion that Mrs. Wiederhold could only recover $1165.67 for medical expenses that were claimed in the probate proceedings. At the jury trial, Domino's renewed its motion for summary judgment on the vicarious liability issue and moved for directed verdict on the surviving spouse issue. The court denied both motions.

Ultimately, the jury rendered a verdict against Domino's, finding that: (1) Fischler was an agent of Domino's at the time of the crash; (2) Mr. Kidd's negligence was ninety percent of the legal cause of Mr. Wiederhold's injury and death; (3) total expenses incurred for home renovations to accommodate Mr. Wiederhold's injuries were $114,660; and (4) Mrs. Wiederhold's damages for "loss of her husband's companionship and protection and for her mental pain and suffering as a result of [Mr. Wiederhold's] injury and death" totaled $10 million.

Domino's filed a timely renewed motion for directed verdict, judgment notwithstanding the verdict, or alternative motion for new trial or new trial on damages, renewing its earlier arguments, and additionally arguing that certain objected-to and unobjected-to comments made by Mrs. Wiederhold's counsel in closing argument warranted a new trial. Specifically, Domino's sought a new trial based on Mrs. Wiederhold's closing arguments, many of which were related to her theme that Domino's business model and its defense of this case was a "greedy charade" designed to control the activities of its franchisees to maximize profits, while contending that it lacked sufficient control of its franchisee's activities to avoid vicarious liability. The trial court denied Domino's motions and entered a final judgment against Domino's for ninety percent of the verdict amount, less the $1 million setoff for the Fischler settlement, for a total judgment of $8,103,194 in favor of Mrs. Wiederhold and the estate. This appeal and cross-appeal follow.

ANALYSIS

On Direct Appeal

A. Is Mrs. Wiederhold a Statutory Survivor?

Domino's first argues that one's status as a survivor is determined on the date of injury, and thus, we must reverse the wrongful death award to Mrs. Wiederhold because she is not a survivor under the Act.

This is a matter of statutory construction subject to de novo review. Citizens Prop.Ins. Corp. v. Perdido Sun Condo. Ass'n, 164 So.3d 663, 666 (Fla. 2015). "The starting point of statutory interpretation is the language of the statute itself." Herrin v. City ofDeltona, 121 So.3d 1094, 1097 (Fla. 5th DCA 2013) (citing GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007) ). "If statutory language is clear and unambiguous, 'there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " Id. (quoting A.R. Douglass, Inc. v.McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ). "However, if a statutory provision is ambiguous, courts may employ rules of construction and extrinsic aids to discern legislative intent." Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ).

A wrongful death action must "be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20, Fla. Stat. (2012). The Act defines "survivors" as "the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." Id. § 768.18(1). Where the legislature has defined a term, courts are bound to follow that definition. Streeter v.Sullivan, 509 So.2d 268, 272 (Fla. 1987). Section 768.21 specifies the types of damages that may be awarded to "each survivor" and additional types of damages for certain survivors, including a "surviving spouse." It states, in pertinent part:

All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury .
....
(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

§ 768.21(1), (2), (5), Fla. Stat. (2012) (emphasis added). However, while the statute defines who survivors are, it does not answer the question presented in this case of when their status as a survivor is determined.

Although the Act does not specify whether a "surviving spouse" must be married at the time of injury or the time of death, that alone does not render the term unclear or ambiguous if the common and ordinary meaning leads to clear and unambiguous results. Univ. of Fla. Bd. of Trs. v. Andrew, 961 So.2d 375, 376 (Fla. 1st DCA 2007) ; see Statev. Nichols, 892 So.2d 1221, 1227 (Fla. 1st DCA 2005) (holding failure of statute to define term does not necessarily render statute ambiguous). The common and ordinary meaning of the term "survivor" is "esp. a person remaining alive after an event in which others have died." Survivor, The Oxford American College Dictionary (2002 ed.). Black's Law Dictionary defines "survivor" even more succinctly as "[o]ne who outlives another." Survivor, Black's Law Dictionary (9th ed. 2009). By extension, the common and ordinary meaning of a "surviving spouse" is a married person who outlives his or her husband or wife. Consequently, applying the plain meaning of these terms, we conclude the term "surviving spouse" is necessarily determined on the date of the other spouse's death because one cannot be a survivor before that date. Accord King v. Font Corp., 612 So.2d 662, 664 (Fla. 2d DCA 1993) ("[I]t seems clear that the definition of 'survivors' in section 768.18, Florida Statutes (Supp. 1990), determines survivorship at the moment of the wrongful death."); see Snyder v. Alamo Rent-A-Car, Inc., 790 So.2d 1262, 1262 (Fla. 5th DCA 2001) (Sharp, J., concurring specially) (noting that this Court's affirmance was based on King ); Thomas D. Sawaya, 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 20:1 (2017-18 ed.) ("The definition of survivor in this statute determines survivorship at the time of the decedent's death." (citing King, 612 So.2d at 664 )).

This conclusion is consistent with cases recognizing that wrongful death actions accrue on the date of the decedent's death. See, e.g., Love v. Hannah, 72 So.2d 39, 41 (Fla. 1954) ("The plaintiffs' right of action under the wrongful death statute must be determined by the facts existing at the time of the death of decedent."); Phlieger v. NissanMotor Co., 487 So.2d 1096, 1098 (Fla. 5th DCA 1986) (reiterating that supreme court held, in Love, that plaintiff's right of action under wrongful death statute must be determined by facts existing at time of decedent's death); Bruce v. Byer, 423 So.2d 413, 414-15 (Fla. 5th DCA 1982) ("The general rule is that a cause of action for wrongful death accrues upon the date of the decedent's death.").

We recognize that our conclusion conflicts with Kelly v. Georgia-Pacific, LLC, 211 So.3d 340 (Fla. 4th DCA), review denied, No. SC17-714, 2017 WL 4769091 (Fla. Oct. 23, 2017). In Kelly, the majority concluded that

the plain language of the Wrongful Death Act indicates that the legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent's injury. The definition of "survivor" in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of "injury." §§ 768.18(1), 768.21(1) - (2), Fla. Stat. (2015). Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

Id. at 345.

We agree that although the definition of "survivors" is limited to familial relationships, nothing in that definition limits those terms to familial relationships existing at the time of injury . As the Kelly dissent observed, "The statute defines 'survivors' as including 'the decedent's spouse' without any other limitation." Id. at 348 (Taylor, J., dissenting). Thus, "[i]t would be inappropriate for this Court to read any more into [the statutory definition] than what is plainly there." Streeter, 509 So.2d at 272. "Even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." Forsythe v. LongboatKey Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) (quoting Van Pelt v.Hilliard, 75 Fla. 792, 78 So. 693, 694 (1918) ).

Moreover, if, as posited by the Kelly majority, survivorship is determined at the time of injury, then children born or adopted by the decedent after the date of injury would not be considered survivors. Likewise, a spouse who divorces a decedent after the date of injury would be considered a survivor. This would be contrary to established precedent holding that such determinations are made at the time of the decedent's death. See, e.g., Powell v. Gessner, 231 So.2d 50, 51 (Fla. 4th DCA) ("[T]he status of a child in respect to its right to sue for the wrongful death of a parent is determined at the time of the death of the parent."), opinion adopted, 238 So.2d 101 (Fla. 1970). It also would be contrary to the legislative intent expressed in section 768.17, Florida Statutes (2012), which states, "It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16 - 768.26 are remedial and shall be liberally construed." See also Wagner, Vaughan, McLaughlin &Brennan, P.A. v. Kennedy Law Grp., 64 So.3d 1187, 1191 (Fla. 2011) (noting that Act is "designed to substitute the financial resources of the wrongdoer for the resources of the decedent, in an attempt to meet the financial obligations of the decedent, ... and to prevent a tortfeasor from evading liability for his or her misconduct when such misconduct results in death").

The Kelly majority's reliance on the Act's damage provisions to limit the definition of survivors is unconvincing. It concluded that the phrase "from the date of injury," repeatedly used in the damages section, "indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury." 211 So.3d at 345. While it is appropriate to read all sections of the Act together to determine the meaning of its terms, see, e.g., BellSouth Telecommunications, Inc. v.Meeks, 863 So.2d 287, 290 (Fla. 2003) ("To ascertain the meaning of a specific statutory section, the section should be read in the context of its surrounding sections."), we agree with the Kelly dissent that the damages provisions do not limit who may recover, but rather, only limits what a survivor may recover. See Kelly, 211 So.3d at 349 (Taylor, J., dissenting). In fact, the legislature's frequent differentiation between the "date of injury" and the "date of death" in section 768.21 demonstrates its awareness that these may be two different dates in a given case. Given this recognition, it is illogical to conclude that the legislature would not also have recognized that a decedent's legal relationships and obligations may change between the date of injury and date of death. Yet, the Kelly majority's conclusion limits such relationships and obligations to those present on the date of injury. If the legislature intended to limit survivors to those existing on the date of injury, it could have done so. Cf. § 440.16, Fla. Stat. (2014) ("Relationship to the deceased giving right to compensation under the provisions of this section must have existed at the time of the accident, save only in the case of afterborn children of the deceased.").

Even if such a limitation is read into the statute based on the damages language, it would, at best, create an ambiguity as to whether survivors are determined on the date of injury or the date of death. And, as we have already noted, the legislature has instructed that the Act is to be liberally construed to achieve its purposes. Cf. Ellis v.Humana of Fla., Inc., 569 So.2d 827, 829 (Fla. 5th DCA 1990) (construing Act liberally to hold that "a posthumous child is a 'survivor' of its father (or mother if the child survives the death of the mother) under the Florida Wrongful Death Act").

Finally, as the Kelly dissent noted, virtually every out-of-state case to address this issue has held that a spouse is not required to be married at the time of injury to pursue a statutory wrongful death claim. See, e.g., Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838, 840 (1974) ("Nothing in the language of this statute states or implies that the husband must be married to the wife at the time the injuries from which she subsequently dies are inflicted. Therefore, we agree that the right of action accrues at the time of the death of the wife."); Corley v. State, Dep't of Health & Hosp., 749 So.2d 926 (La. Ct. App. 1999) (affirming judgment for "surviving spouse," who was not married to decedent at injurious treatment, based on clear terms of wrongful death act); Radley v. Le Ray Paper Co., 214 N.Y. 32, 108 N.E. 86, 87 (1915) (affirming judgment for decedent's wife under wrongful death act as she was married to decedent when he died; it was "immaterial" that they were not married when decedent was injured); Du Bois v. Cmty. Hosp. of Schoharie Cty., Inc., 150 A.D.2d 893, 540 N.Y.S.2d 917, 918 (1989) (following Radley and stating that "widow's rights as a distributee or beneficiary of the decedent are not affected by when the marriage occurred as long as the parties were married at the time of the decedent's death"); DeVine v.Blanchard Valley Med. Assocs., 103 Ohio Misc.2d 40, 725 N.E.2d 366, 369 (Ohio Ct. Comm. Pleas 1999) (rejecting application of marriage at time of injury rule to Ohio wrongful death statute because statute was exception to common law and provided more damages than consortium claim); Gross v. Elec. Traction Co., 180 Pa. 99, 36 A. 424 (1897) (affirming wrongful death judgment in favor of decedent's widow despite not being married to him at time of injury because she was his wife at time of death); see also Walsh v. Armstrong WorldIndus., Inc., 700 F.Supp. 783 (S.D.N.Y. 1988) (following Radley and rejecting argument that spouse was marrying into claim). Although the Kelly majority distinguished these cases because they did not interpret the Act or Florida common law, they are nevertheless persuasive because many of them interpret similar language and hold that the plain language of such statutes allows such claims.

For these reasons, we affirm the trial court's ruling allowing Mrs. Wiederhold to recover as a surviving spouse. We certify express and direct conflict with Kelly on this issue.

B. Is Domino's Vicariously Liable for An Automobile Accident Involving Its Franchisee?

Under Florida law, vicarious liability may arise in various ways. Of relevance here, a franchisor may be held vicariously liable under an agency theory for the tortious acts of a franchisee, or a franchisee's employee, when the franchisor has direct control of, or the right to control, the day-to-day operations of the franchisee. See Mobil Oil Corp. v.Bransford, 648 So.2d 119, 120 (Fla. 1995) (explaining that franchisor creates "agency relationship with a franchisee if, by contract or action or representation, the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee"); Hickman v. Barclay's Int'l Realty, Inc., 5 So.3d 804, 806 (Fla. 4th DCA 2009) (explaining it is right of control, not actual control or descriptive labels employed by parties, that determines agency relationship); see also Goldschmidt v. Holman, 571 So.2d 422, 424 n.5 (Fla. 1990) (explaining that actual agency relationship requires "(1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent"). Applying the "control" test to a franchise is not an easy undertaking because franchises have independent aspects to them, but they must also retain some control over the use of their names, goods and services. Font v. Stanley Steemer Int'l, Inc., 849 So.2d 1214, 1216 (Fla. 5th DCA 2003). Whether the franchisor's control is sufficient to establish an agency relationship "depends in each case upon the nature and extent of such control as defined in the agreement or by the actual practice of the parties." Id. at 1216-17.

Here, Domino's contends that as a matter of law, it was not vicariously liable for the automobile accident because it had no control over Fischler's day-to-day operations. Domino's asserts that the only evidence of control amounted to nothing more than "brand maintenance requirements and activities." See, e.g., Bransford , 648 So.2d at 120-21 (upholding summary judgment where record did not establish that franchisor had "directly or apparently participated in some substantial way in directing or managing acts of the franchisee, beyond the mere fact of providing contractual franchise support activities").

The existence of an agency relationship is ordinarily a question for the trier of fact to decide. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla. 2003). However, a court may determine the absence of an agency relationship as a matter of law when the evidence is capable of but one determination and there is no evidentiary question for the jury to resolve. Font, 849 So.2d at 1216. While Domino's points to evidence supporting its position that it had no control over Fischler, it ignores abundant evidence of control to the contrary. Domino's argument is simply an invitation for this Court to reweigh the evidence or recharacterize its control as being limited to brand maintenance activities. We decline that invitation. The trial court properly determined that this issue was a question of fact for the jury to resolve.

C. Is Domino's Entitled to a New Trial on Liability and Damages Based on Mrs. Wiederhold's Improper Closing Arguments?

We review for an abuse of discretion a trial court's denial of a motion for new trial based on improper closing arguments. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006). We apply different standards to a ruling on a motion for new trial based on improper closing arguments depending on whether the comments challenged as improper are preserved or unpreserved. For preserved comments, "the trial court should grant a new trial if the argument was 'so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.' " Id. (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005) ). For unpreserved comments, a new trial should be granted if the comments are improper, harmful, incurable, and damage the fairness of the trial such that the public interest requires a new trial. Murphy v. Int'l Robotic Sys., Inc. , 766 So.2d 1010, 1027-31 (Fla. 2000). We do not review each of the allegedly improper comments in isolation; instead, we examine the entire closing argument while paying specific attention to both the objected-to and the unobjected-to arguments in order to determine whether the cumulative effect of any impropriety deprived the objecting party of a fair trial. E.g., Braddy v. State, 111 So.3d 810, 837 (Fla. 2012) ; Card v. State , 803 So.2d 613, 622 (Fla. 2001).

1. "Greedy Charade" Comments.

Domino's contends that this Court should grant a new trial based on the comments of Mrs. Wiederhold's attorney that its agency defense was a "greedy charade." In the first instance, without objection, Mrs. Wiederhold's attorney stated that Domino's had employed a "greedy charade" when it inserted exculpatory language into its franchise agreement with Fischler while controlling every aspect of the Fischler franchise:

Now, there's a disconnect here, because on the one hand you hear Mr. Devereaux say there's no right of control and then you see these documents that indicate overwhelming control of Mr. Fischler. Domino's would like for you to do nothing more than to disregard the realities, the realities, the evidence that you heard in this case and look to their documents that say things like: You are not an independent contractor. Well, labels, gentlemen, they don't work here. Labels don't control because if labels did control any of us, it could hire someone, control them, have them do what we want to and not call them an agent or an employee, we'd call them an independent contractor. They don't let people do that. That label doesn't work, that dog is not going to hunt. You can put it in there. You can say we're not principals and agent, but you are. And you have to question in your mind as you listen to the evidence do they put that in there to avoid the risk that they don't want to have while they enjoy the benefit of profit and they have the control. Of course, they do. This is a -- I want to use the phrase "greedy charade," and they know it. A charade comes in two forms, one of which we're talking about right now. And it's whether they are -- whether they have a right of control. We all know it now. You saw it by -- Mr. Devereaux testified. You get to evaluate his testimony and evaluate him as a witness.

(Emphasis added).

In the second instance, occurring immediately thereafter, Mrs. Wiederhold's attorney argued that Domino's "abandonment" of Mr. Kidd at trial was further evidence of its "greedy charade." Domino's objected on the ground that it was not accurate to claim that it had the responsibility to defend Mr. Kidd. The trial court agreed and informed the jury to disregard the last statement made by Mrs. Wiederhold's attorney:

I don't think I need to talk about that anymore other than to say that Domino's, Mr. Devereaux, the whole team up in Ann Arbor, Michigan. And Mr. Fischler and Mr. Kidd are out there making pizza to their specifications in the stores, with store specifications, delivered by a team member like Jeffrey Kidd. They are a huge -- they are a huge cheerleader for those moneymakers. But let that agent or its employee act negligent for a brief moment, fail to use reasonable care and cause a tragedy and they'll abandon that team member. Leave him sitting at the table by himself.
[DOMINO'S COUNSEL]: Judge, excuse me. May we approach?
(The following Bench Conference took place outside the hearing of the jury.)
[DOMINO'S COUNSEL]: Judge, we strongly object to the statement that's just been made. This man is not the employee of Domino's. We did not abandon him. He had his own insurance company. He had his own insurance policy. He was employed and covered by the insurance company for the franchisee. They chose to withdraw his defense when they decided to settle the case. To say that's our responsibility is highly improper and I move for a mistrial.
[WIEDERHOLD'S COUNSEL]: It's not grounds for a mistrial, Your Honor. That's exactly what they have done. They control Mr. Fischler. They control the drivers and when it comes time to be in this courtroom they won't have nothing to do with that risk. It's exactly what they've done, and it's a very fair comment.
THE COURT: Well, first of all, you're not getting a mistrial.
Second of all, you settled with Fischler. You cannot use that settlement to make the situation into your advantage. So either I'm going to tell them to disregard the last sentence or you are going to correct it.
[WIEDERHOLD'S COUNSEL]: I'll let Your Honor do it.
THE COURT: Okay. Thank you.
(The Bench Conference ended.)
THE COURT: Jurors, the last statement that was made by plaintiff's counsel was inaccurate and you shall disregard it .
[WIEDERHOLD'S COUNSEL]: But when something like this happens, something tragic, Domino's wants nothing to do with the risk. We don't permit that under our law. ...

(Emphasis added).

The third instance occurred when Mrs. Wiederhold's attorney argued that Domino's attempted use of a portion of the investigating officer's, Trooper O'Quinn, deposition testimony was part of its "greedy charade" to mislead the jury. In his closing argument, Domino's counsel argued that expert accident reconstruction analysis showed that Mr. Wiederhold would have been able to avoid colliding with Mr. Kidd if he had simply braked instead of swerved. He then stated, "Trooper O'Quinn testified via videotape, and he said that Mr. Wiederhold told him that he just swerved left. So was there a braking by Mr. Wiederhold before he entered the median?" Mrs. Wiederhold's attorney responded in rebuttal:

With all due respect to my friend for the defense, you remember Mr. Womble just stood up here and told you that Trooper O'Quinn told you that Mr. Wiederhold said I just swerved left. That was all he said. That's all that Mr. Womble said. Do you remember that? This is part of the greedy charade because that's not all that Trooper O'Quinn testified about. Trooper O'Quinn was asked were you able to get any information from him that was helpful to you in the crash investigation referring to Mr. Wiederhold and Trooper O'Quinn testified in this courtroom, "He advised me that a vehicle had turned out in front of him. He really couldn't give -- he gave me a vague description. He says a lighter color two-door vehicle with Domino's delivery sign on the roof." It's part of the greedy charade to stand up and deny that which you know to be true. That they had a right of control.

(Emphasis added). Domino's simply objected to this comment as "repetition of 'greedy charade' " without further explanation. It later moved for a mistrial on this comment based on the use of testimony not in evidence.

The fourth instance occurred after Mrs. Wiederhold's attorney, without objection, referred to Domino's agency defense and the money it spent on its accident reconstruction animation as another example of its "greedy charade":

You tell them what you think about the charade, about the agency and right of control and the $40,000 they spent to come up with that animation. And she from the very beginning has said, "Somebody pulled out in front," and so did Mr. Kidd. You see that justice is done and tell them what you think about their verdict.

(Emphasis added).

We agree that Mrs. Wiederhold's first "greedy charade" comment improperly denigrated Domino's defense. See Allstate Ins. Co. v. Marotta, 125 So.3d 956, 960 (Fla. 4th DCA 2013) (stating improper to suggest that defending claim in court is improper or that defendant should be punished for contesting damages); Fasani v. Kowalski, 43 So.3d 805, 809 (Fla. 3d DCA 2010) ("The law is clear that it is improper for an attorney to disparage an opposing party's defense of a case or to suggest that a party should be punished for contesting a claim."). The third "greedy charade" comment argued facts not in evidence. See Shoaf v. Geiling, 960 So.2d 41, 43 (Fla. 5th DCA 2007) (stating prejudicial error to play portion of deposition not in evidence during closing argument). The fourth "greedy charade" comment, urging the jury to "tell [Domino's] what you think" about its agency and comparative negligence defenses, was an improper "send a message argument." See, e.g., City of Orlando v. Pineiro, 66 So.3d 1064, 1070 (Fla. 5th DCA 2011) (finding comment that money verdict would help to tell decedent's parents jury recognized wrong was done was improper "send-a-message" argument); KlosterCruise Ltd. v. Grubbs, 762 So.2d 552, 554 (Fla. 3d DCA 2000) (finding comment that jury should "tell them [Norwegian] by your verdict in this case to do something about this" was improper "send a message" argument). However, while these comments were improper, Domino's either did not object or objected on other grounds.

With respect to Mrs. Wiederhold's second "greedy charade" comment, which was preserved, we agree that Mrs. Wiederhold's argument that Domino's abandoned Mr. Kidd at trial was false and highly prejudicial, even with the trial court's curative instruction. The comment was inflammatory for two reasons. First, Mrs. Wiederhold's counsel tied it to his "greedy charade" attack on Domino's defense. Second, the jury was told that Mr. Kidd was representing himself; saw Domino's corporate representative sitting at one table with Domino's lawyers and Mr. Kidd sitting at a separate table by himself; and watched Mr. Kidd's feeble attempts to participate in the trial.

While the trial court correctly recognized that the argument was false because Fischler (or its insurance carrier), not Domino's, had abandoned Mr. Kidd and informed Mrs. Wiederhold that she could not use that settlement to her advantage, its attempted curative instruction-that "the last statement that was made by plaintiff's counsel was inaccurate and you shall disregard it"-was not adequate. This instruction failed to identify the improper statement and failed to explain why the statement was improper. In short, the instruction was inadequate to counteract the prejudicial effect of the statement, especially in light of counsel's other references to Domino's defense as a part of its "greedy charade." See, e.g., R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 764 (Fla. 4th DCA 2016) ("It also goes without saying that curative instructions do not always remedy the damage done by improper argument, and whether such an instruction was sufficient to do so is decided according to the facts, on a case-by-case basis."); Parkansky v. Old Key Largo, Inc., 546 So.2d 1143, 1145 (Fla. 3d DCA 1989) ("A new trial is warranted when an improper comment is likely to result in substantial prejudice to the complaining party ... and where the improper suggestion is of such character that a curative instruction is insufficient 'to destroy [its] sinister influence.' "); Fayden v. Guerrero, 474 So.2d 320, 321 (Fla. 3d DCA 1985) (upholding new trial on damages based on trial court finding improper argument that defendants should not have defended action, but should have given plaintiff $6 million; curative instruction to disregard comment likely failed to vitiate prejudice). As this improper argument was properly preserved by objection and motion for mistrial, a new trial would be warranted if the argument was "so highly prejudicial and inflammatory" that it denied Domino's its right to a fair trial. Engle, 945 So.2d at 1271.

2. "No More" than $10 Million Comment.

Domino's also complains that we should reverse on damages based on the following comment made by Mrs. Wiederhold's counsel because it mischaracterized the law and suggested that the figure had the imprimatur of the court:

And I'm going to suggest to you that in order to make this right, to right this wrong, you will need to move a sum of money from their side of the courtroom to Yvonne Wiederhold's side of the courtroom to pay for what they've taken from her. I'm going to suggest to you that sum is ten million dollars. Now, no more than that. No more than that because it might not be able to be upheld in post-trial motions. We don't want that. But up to that, all will be okay. You're the ones that are going to decide.
[DOMINO'S COUNSEL]: Judge, I'm sorry. May we approach?
(The following Bench Conference took place outside the hearing of the jury.)
[DOMINO'S COUNSEL]: I object to the discussion with the jury that anything more than ten million dollars would be perhaps not upheld after the verdict. It's a backdoor way of suggesting that ten million dollars is an acceptable sum. And he's not entitled to tell them that it's legally an acceptable sum. That's inappropriate.
[WIEDERHOLD'S COUNSEL]: Well, I think I can -
THE COURT: Overruled.

(Emphasis added).

Plaintiffs are allowed to ask for specific amounts, but not suggest that such amounts are legally acceptable or will withstand subsequent challenges. See, e.g., CityProvisioners, Inc. v. Anderson, 578 So.2d 855, 856 (Fla. 5th DCA 1991) (holding plaintiff's comment-"If you give him too much money, the judge can take away some of that money. It's to be-he can order remittitur or cut it down. If you don't give Mr. Anderson enough money, he can't order more money"-was improper statement of law and inappropriate attempt to shift responsibility for verdict from jury to judge). Because Mrs. Wiederhold's comment improperly suggested the $10 million amount would be upheld, it was not a proper subject of closing argument. See id. The trial court erred in overruling the objection.

3. Golden Rule and Personal Opinion.

Finally, Domino's urges that we reverse based on the improper golden rule and personal opinion arguments made by Mrs. Wiederhold's attorney. At trial, after discussing the various versions of how the accident occurred, Mrs. Wiederhold's counsel commented about her decision to follow through with her plan to marry Mr. Wiederhold even after the accident.

[S]he fulfilled her promise and she married him and dedicated her life to taking care of him 24 hours a day, seven days a week, providing the care that he needed to keep him alive. Listening to her testimony I hope you understand now why I told you in openings that I really stand in awe of her. And I think hearing her story and what she did for her husband having to live through and deal with -
....
To live through and deal with what she did is why I am in awe. And how it makes many of us ask this question: Would we be able to do what she did? I know she was faced with it. And when --
[DOMINO'S COUNSEL]: Excuse me, Judge. I have to approach.
THE COURT: Sustained.
[WIEDERHOLD'S COUNSEL]: Makes me ask myself a question --
[DOMINO'S COUNSEL]: Excuse me, Judge. Personal belief of counsel.
THE COURT: Yes, sustained.
[WIEDERHOLD'S COUNSEL]: And the worst of it, listening to her husband ask her to simply take his life. She couldn't do it because him dying -- with him dying, a part of her would die. It is a nightmare story. And they've taken that from her. That's why you must move a sum from their side of the courtroom to hers to pay her for what they took away from her, her husband, Richard Wiederhold ....

(Emphasis added). In its renewed motion for a new trial, Domino's objected that these arguments were not only the expression of counsel's personal beliefs, but also a violation of the golden rule. We agree that these arguments were improper golden rule and personal opinion arguments. See, e.g., SDG Dadeland Assocs. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008) (discussing improper golden rule and personal opinion arguments).

In sum, it was improper for Mrs. Wiederhold's counsel to suggest in closing argument that Domino's agency defense was a "greedy charade." That argument disparaged the manner in which Domino's defended this case-a type of argument that is unfailingly condemned by the courts. See Carnival Corp. v. Pajares , 972 So.2d 973, 977 (Fla. 3d DCA 2007). It was also improper for Mrs. Wiederhold's counsel to advise the jury to "tell [Domino's] what you think" about its agency defense because doing so was clearly a "send a message" argument. See, e.g., Pineiro, 66 So.3d at 1070 ; Grubbs, 762 So.2d at 554. It was equally improper for Mrs. Wiederhold's counsel to argue that Domino's abandoned Mr. Kidd, when he knew full well it was not true. Similarly, Mrs. Wiederhold's attorney made improper golden rule and personal opinion arguments, which encouraged the jurors to decide the case on the basis of personal interest rather than on the evidence. See Metro. Dade Cty. v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992).

Even when viewed in context, these improper comments were numerous, leaving us to conclude that the argument was not designed to "prompt a 'logical analysis of the evidence in light of the applicable law.' " Intramed, Inc. v. Guider , 93 So.3d 503, 507 (Fla. 4th DCA 2012) (quoting Murphy, 766 So.2d at 1028 ). While only some of the comments were properly preserved for our review, in evaluating the errors, we consider "the cumulative effect" of both preserved and unpreserved error. Howard v. Palmer , 123 So.3d 1171, 1174 (Fla. 4th DCA 2013). Having done so, we are unable to conclude that the errors, taken together, were harmless. See Linic v. State , 80 So.3d 382, 393 (Fla. 4th DCA 2012) (holding "unpreserved error can be considered with the preserved error in order to evaluate whether the preserved error is harmless"). We, therefore, reverse the final judgment based on the improper closing argument.

On Cross-Appeal

On cross-appeal, Mrs. Wiederhold maintains that the estate should have been allowed to introduce all medical expenses paid on Mr. Wiederhold's behalf pursuant to section 768.21(6), Florida Statutes. That section states, in pertinent part:

(6) The decedent's personal representative may recover for the decedent's estate the following:
....
(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

§ 768.21(6)(b), Fla. Stat. (2012) (emphasis added).

Mrs. Wiederhold claims that the estate was entitled to recover the $863,056.55 that Medicare and Cigna paid on Mr. Wiederhold's behalf, even though the estate later satisfied their liens for $51,612.49. Domino's disagrees, arguing that Mr. Wiederhold's estate is not entitled to windfall for medical expenses that were not owed by the estate and that had been resolved.

The estate has a right to claim medical expenses paid by or on Mr. Wiederhold's behalf. Id. § 768.21(6)(b) ; Horton v. Channing, 698 So.2d 865, 869 (Fla. 1st DCA 1997) (determining that $425,824.42 paid by insurance providers constituted medical expenses paid on behalf of decedent, and therefore, constituted damages as provided by section 768.21(6)(b), despite fact that plaintiff and estate had no obligation to repay providers). Further, such damages are not subject to reduction when subrogation or reimbursement right exists. § 768.76(1), Fla. Stat. (2012) ; Sutton v. Ashcraft, 671 So.2d 301, 303 (Fla. 5th DCA 1996). "The waiver or relinquishment of such rights does not destroy their character." Sutton, 671 So.2d at 303. "[I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction." Id.; see Centex-Rodgers Constr. Co. v. Herrera, 816 So.2d 1206, 1207 (Fla. 4th DCA 2002) (following Sutton, and noting that disability carrier's release or waiver of its subrogation rights, pursuant to negotiated settlement, does not destroy character of disability payments). In other words, Domino's cannot escape liability for medical expenses paid on Mr. Wiederhold's behalf because she settled those claims. As this Court has explained:

It may seem unfair that, by virtue of a contractual arrangement with the insurance carrier, the survivors received substantially more than their stipulated damages and that the defendants are required to pay the full amount of damages even though part of those damages had been paid. On the other hand, plaintiffs' counsel was ingenious in inducing Allstate, in return for a $95,000 discount on the face amount of the UM coverage, to surrender its subrogation rights and the opportunity to pursue and settle a claim of speculative value. There is no reason that ingenuity should accrue to the benefit of the tortfeasors. Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976). The principle behind the collateral source rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong.

Respess v. Carter, 585 So.2d 987, 990 (Fla. 5th DCA 1991). Based on the plain wording of section 768.21(6)(b), we conclude the trial court erred in prohibiting Mrs. Wiederhold from seeking compensation for medical expenses paid on Mr. Wiederhold's behalf.

CONCLUSION

We affirm the denial of directed verdicts on Mrs. Wiederhold's status as a "surviving spouse" and on Domino's vicarious liability, and the portion of the judgment related to economic damages for home improvements, which was not contested on appeal. We reverse and remand for a new trial on liability and damages as a result of Mrs. Wiederhold's improper closing argument. On the cross-appeal, we reverse and direct that on re-trial, all medical expenses paid on Mr. Wiederhold's account are compensable. We also certify express and direct conflict with Kelly.

AFFIRMED in part; REVERSED in part; REMANDED; CONFLICT CERTIFIED.

COHEN, C.J. and WALLIS, J., concur.

      This opinion will use the term "Domino's" when referring to the appellant's name in both its regular and possessive forms, as most cases do. See, e.g. , Font v. StanleySteemer Int'l, Inc., 849 So.2d 1214, 1218 (Fla. 5th DCA 2003) ("The Domino's franchise agreement ... mandated the use of Domino's bookkeeping requirements ...."); Parkerv. Domino's Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993) ("This position was supported by an affidavit of Domino's National Director of Franchise Services.").

      Domino's remaining issues are either moot or without merit.

      Domino's does not challenge this award.

      The judgment was entered only against Domino's because an automatic stay was imposed in Mr. Kidd's post-verdict bankruptcy case.

      Domino's did not request a jury instruction on brand maintenance activities.

      The more stringent harmless error test announced in Special v. West BocaMedical Center, 160 So.3d 1251 (Fla. 2014), does not apply here because the trial court sustained the objection and gave a curative instruction. R.J. Reynolds Tobacco Co. v.Robinson, 216 So.3d 674, 683 (Fla. 1st DCA 2017).

      For that reason, we reject Mrs. Wiederhold's alternative argument that she should be entitled to present all of Mr. Wiederhold's medical bills to the jury regardless of whether they were paid on Mr. Wiederhold's behalf.


author: PER CURIAM.

text:
    Jeffrey L. SUTTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-694
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018.
    Jeffrey L. Sutton, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. State v. Mancino, 714 So.2d 429 (Fla. 1998) ; McAllister v. State, 840 So.2d 1163 (Fla. 5th DCA 2003).


author: FERNANDEZ, J.

text:
    Wade K. SEMERENA, etc., Appellant, v. AETNA HEALTH, INC., Appellee.
    No. 3D17-1547
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Lyons & Farrar, P.A., and Marsha L. Lyons, Douglas S. Lyons and Matthew Leon (Tallahassee); Barbara C. McCauley, for appellant.
    Hahn Loeser & Parks, LLP and Robert J. Fogarty (Cleveland, Ohio); Gray Robinson, P.A. and Shari Gerson (Ft. Lauderdale), for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Wade K. Semerena ("Semerena") appeals the trial court's order dismissing his second amended complaint with prejudice and raises several issues on appeal, only one of which merits discussion. Semerena, a retired professor from Miami Dade College ("College") sued Aetna Health, Inc., ("Aetna") for damages arising from the health insurance policy obtained as a result of his employment with the College. Aetna moved to dismiss the second amended complaint with prejudice and a hearing on the motion was heard on February 17, 2017. The trial court granted the motion and dismissed the second amended complaint with prejudice, although no order was entered at the conclusion of the hearing. Instead, the trial court ordered Aetna's counsel to submit a proposed order. A few hours after the hearing, and after the oral pronouncement of the trial court's decision, Semerena filed a notice of voluntary dismissal, pursuant to Florida Rule of Civil Procedure 1.420(a)(1).

On February 21, 2017, despite the filing of the notice of voluntary dismissal, the trial court entered an order, nunc pro tunc to 8:40 am on February 17, 2017, dismissing the second amended complaint with prejudice. Subsequent to the entry of the dismissal order, Semerena filed a motion for clarification and reconsideration, as well as a motion for leave to amend the second amended complaint. The trial court denied those motions.

As codified in Florida Rule of Civil Procedure 1.420(a)(1), the plaintiff has a right to take a voluntary dismissal without further order of the court. We recognized that right in Freeman v. Mintz, 523 So.2d 606 (Fla. 3d DCA 1988), a case procedurally identical to the present appeal on the issue of voluntary dismissal. The right of voluntary dismissal is circumscribed by certain factors not present in this case. Upon the filing of the notice of voluntary dismissal, the trial court lost jurisdiction and was without authority to enter the order of dismissal and all orders that followed pertaining to the plaintiff's subsequent motion for clarification and reconsideration, and on its motion for leave to file a third amended complaint. Id. at 609. Aetna asks us to create an exception to the right of voluntary dismissal to allow a trial court to enter an order of dismissal, nunc pro tunc to the oral pronouncement, even after a notice of voluntary dismissal has been filed, as permitted by the rule. We decline the invitation and reverse the order of dismissal and all orders entered subsequent to the filing of the notice of voluntary dismissal.

Reversed.

      Florida Rule of Civil Procedure 1.420(a)(1) provides, in pertinent part: "Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision ...."


author: Per Curiam.

text:
    Nathan Renner JUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2170
    District Court of Appeal of Florida, First District.
    May 17, 2018
    Nathan Renner Jung, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We reverse the court's summary denial of Appellant's second claim for postconviction relief, which we conclude was facially sufficient. We remand for the trial court to conduct an evidentiary hearing on that claim or to attach portions of the record conclusively refuting it. See Odom v. State , 782 So.2d 510, 510 (Fla. 1st DCA 2001) ; see also Smalls v. State , 973 So.2d 630, 631-32 (Fla. 1st DCA 2008) ("If appellant's allegation is correct, no factual basis existed to support a conviction for burglary of a dwelling. Appellant further claims that he would not have entered his guilty plea but for his counsel's ineffectiveness. As such, appellant's allegations constitute a facially sufficient claim for ineffective assistance of counsel."). We affirm the summary denial of Appellant's remaining claims.

AFFIRMED in part, REVERSED in part, and REMANDED .

Ray, Makar, and Winsor, JJ., concur.


text:
    R.R. and S.B., Appellants, v. NEW LIFE COMMUNITY CHURCH OF CMA, INC., Priscilla Heffield, Ron Heffield, Daniel Heffield, Christian and Missionary Alliance, Inc., et al., Appellees.
    Case No. 5D16-4148
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 18, 2018
    Susan W. Fox, of Fox & Loquasto, P.A., Orlando, Wendy S. Loquasto, of Fox & Loquasto, P.A., Tallahassee, Griffith J. Winthrop, III, of Alvarez, Winthrop, Thompson & Storey, P.A., Orlando, and John K. Overchuck, of Overchuck Law Firm, Orlando, for Appellants.
    David J. Pascuzzi and Steven G. Schwartz, of The Schwartz Law Group, Boca Raton, for Appellees, New Life Community Church of CMA, Inc. and Ron Heffield.
    Scott A. Cole and Melinda S. Thornton, of Cole, Scott & Kissane, P.A., Miami, for Appellee, Priscilla Heffield.
    Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellee, The Christian and Missionary Alliance, Inc.
    Michael A. Sastre and Christian M. Leger, of GrayRobinson, P.A., Miami, for Appellee, The Southeastern District of the Christian and Missionary Alliance.
    No Appearance for other Appellees.
   PER CURIAM.

R.R. and S.B. appeal the partial summary judgment on their negligence and respondeat superior claims against the parents and employer of the alleged abuser in this child sexual abuse case. We are compelled to affirm because the claims were time-barred by the four-year statute of limitations outlined in section 95.11(3)(a), (p), Florida Statutes (1996). In reaching this conclusion, we align ourselves with the Second District in D.H. ex rel. R.H. v. Adept Community Services, Inc., 217 So.3d 1072, 1077-80 (Fla. 2d DCA 2017), and certify conflict with Doe v. Nur-Ul-Islam Academy, Inc., 217 So.3d 85, 90 (Fla. 4th DCA 2017), and Drake ex rel. Fletcher v. Island Community Church, Inc., 462 So.2d 1142, 1144 (Fla. 3d DCA 1984). We recognize that the Florida Supreme Court has accepted jurisdiction to review the conflict between the holding in D.H. and the holdings in Nur-Ul-Islam Academy and Drake. See D.H. v. Adept Cmty. Servs., Inc., No. SC17-829, 2017 WL 4325848, at *1 (Fla. Sept. 29, 2017).

AFFIRMED and CONFLICT CERTIFIED.

TORPY, BERGER and EDWARDS, JJ., concur.

      We note that even if we were to adopt Appellants' argument as to section 95.051(1)(i), Florida Statutes (2011), Appellants' negligence and respondeat superior claims were filed beyond the seven-year repose period provided for in the statute. Likewise, their alternative argument, based on section 95.11(9), Florida Statutes (2010), fails because the subsection does not apply to actions that would have been time-barred on or before July 1, 2010.


author: ROTHENBERG, C.J.

text:
    JOHN S. AND JAMES L. KNIGHT FOUNDATION, INC., a Florida not-for-profit corporation, Appellant, v. URBAN PHILANTHROPIES, INC., et al., Appellees.
    No. 3D17-1563
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018.
    Bilzin Sumberg Baena Price & Axelrod, LLP, and Michael N. Kreitzer, Michael E. Strauch, and James J. Ward, for appellant.
    Fuerst Ittleman David & Joseph, and Christopher M. David, Michael B. Kornhauser, and Jeffrey J. Molinaro, for appellees.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   ROTHENBERG, C.J.

John S. and James L. Knight Foundation, Inc. ("the Knight Foundation") appeals a final judgment in favor of Urban Philanthropies, Inc., et al. (collectively, "the defendants"), which the trial court entered pursuant to three summary judgment orders. We find that there are unresolved issues of material fact regarding whether the parties formed or intended to form a charitable trust, and thus, we reverse.

BACKGROUND

In March 2001, the Collins Center for Public Policy ("the Collins Center"), among others, submitted a grant application for funding to the Knight Foundation, intending to undertake a community development project for the benefit of Overtown. The Knight Foundation awarded $3 million to the Collins Center, with $1.5 million designated for the purchase of real property by an independent non-profit corporation referred to as the "land trust."

The land trust was created to acquire, hold, and facilitate the development of land to benefit the community consistent with the community's vision for redevelopment. In March 2002, the Collins Center established South Florida Smart Growth Land Trust, Inc. ("the Land Trust"), a non-profit corporation, and the Land Trust subsequently purchased real property with the grant funds. In 2013, after approximately a decade of operation, the Land Trust's board of directors voted to transfer, without consideration, all of the Land Trust's properties to Urban Philanthropies, Inc. ("Urban"), a newly established non-profit corporation. Urban subsequently sold all of the properties and deposited the proceeds into an investment account and an annuity owned and controlled by Urban, and instead of using the money to acquire and hold land for the benefit and development of the Overtown community, the money is allegedly being used for other purposes contrary to the intent of the grant.

In December 2015, after allegedly learning about the Land Trust's actions through the media, the Knight Foundation filed suit against Urban and members of the Land Trust's board of directors ("the individual defendants") who had voted to transfer the property to Urban. In its operative complaint, the Knight Foundation alleged breach of fiduciary duty against the individual defendants, unjust enrichment against Urban, and a resulting trust against all of the defendants. As to the claims for breach of fiduciary duty and unjust enrichment, the Knight Foundation sought as relief the imposition of a constructive trust and an award of compensatory damages. In three separately entered orders, the trial court granted the defendants' motions for summary judgment against the Knight Foundation's three claims. The trial court entered a final judgment, and thereafter, the Knight Foundation appealed.

ANALYSIS

We review an order granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ("Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law."). On a motion for summary judgment, if the evidence is conflicting or permits different reasonable interpretations, the issue should be submitted to the trier of fact. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) ("A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.").

The dispositive issue before us in this case depends on the interpretation of documents that allegedly demonstrate the creation of a charitable trust. Although we always begin the interpretation of a legal text by looking to the plain meaning of its terms, if the text is ambiguous, it is appropriate to look to extrinsic evidence to resolve the ambiguity. See Mariani v. Mariani, 125 So.3d 222, 223 (Fla. 4th DCA 2013) (stating that "when the trust instrument is ambiguous, the intent of the settlor may be ascertained from extrinsic evidence"); Menck v. Driscoll, 531 So.2d 1057, 1057 (Fla. 3d DCA 1988) ("[W]hen conflicting legal inferences, particularly concerning the intent of the parties, may be drawn from an ambiguous legal document, or as to the effect even of undisputed facts, the issue is not properly subject to summary adjudication, and may be resolved only after trial.") (quoting Kirsh v. Mannen, 393 So.2d 63, 64 (Fla. 3d DCA 1981) ).

It is possible to reasonably interpret the alleged trust documents in this case in at least two ways. The first way supports the position advocated by the Knight Foundation, that these documents reflect that the Knight Foundation is the settlor in the creation of a charitable trust. The second way, advocated by the defendants, is that these documents only demonstrate that the Knight Foundation accepted an application for a charitable grant, and that they do not demonstrate the existence of a charitable trust. Additionally, the record on appeal demonstrates that there is conflicting extrinsic evidence on the question of whether these documents were intended to create a charitable trust. For example, Hodding Carter III, the CEO of the Knight Foundation when the Land Trust was funded and created, testified that the Knight Foundation intended to create a trust. However, Roderick Petrey, the CEO of Collins Center, testified that the parties did not intend to create a trust. Mr. Carter testified that the trust was intended to ensure the project's longevity, but Mr. Petrey testified that they needed flexibility beyond that offered by a trust in order to revitalize the Overtown community. This conflicting evidence as to the parties' intentions, along with the testimonies of several affiants and deponents, creates a disputed issue of material fact that precludes summary judgment.

CONCLUSION

At the core of the Knight Foundation's complaint is the allegation that it intended to create a charitable trust when it issued the grant to the Collins Center. It is out of this central allegation that the Knight Foundation's claims against the defendants arise. And yet, there is an unresolved dispute of material fact as to the interpretation of the documents and whether the parties intended to create a charitable trust. Therefore, the trial court erred by entering its summary judgment orders against the Knight Foundation. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed.

      Although the explanatory evidence in the record on appeal is limited, the parties appear to agree that the Collins Center no longer exists and the Land Trust has been administratively dissolved.


author: Klingensmith, J.

text:
    Jimeal SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2525
    District Court of Appeal of Florida, Fourth District.
    May 23, 2018
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
    CORRECTED OPINION
   Klingensmith, J.

After this court requested supplemental briefing from the parties to address orders from the lower court that were not contained in the parties' briefs or in the record of appeal, and more particularly the impact of those orders on our prior opinion, we hereby withdraw that prior opinion and substitute this corrected opinion in its place.

Appellant Jimeal Smith appeals the trial court's failure to conduct a separate evidentiary hearing before finding him to be a danger to the community as a violent offender of special concern after revoking his probation. He asserts that the lack of such an evidentiary hearing in this case requires reversal. We disagree, and affirm.

At appellant's probation revocation hearing, the trial court found him to be a violent offender of special concern pursuant to section 948.06(8)(b), Florida Statutes (2016). Thereafter, the trial court discussed whether appellant was a danger to community and stated, "The evidence presented is while on probation, he violates his probation by clocking somebody in the mouth. How can I find that he's not a danger to the community? So the difficulty is his history. That's the problem." The trial court then found that appellant willfully and substantially violated his supervision. Based on the evidence already presented, which appellant had the opportunity to contest, the court concluded that appellant was a danger to the community, and sentenced him to 36 months imprisonment. Subsequently, it entered a written probation revocation order and written findings concerning its ruling that appellant was a violent felony offender of special concern.

"The legality of a trial court's sentencing is reviewed de novo." Whittaker v. State , 223 So.3d 270, 272 (Fla. 4th DCA 2017).

On appellant's point of appeal, Florida Statutes provide that "[i]f the court, after conducting [a recorded violation-of-probation hearing at which both the state and the offender are represented] determines that a violent felony offender of special concern has committed a violation of probation or community control[,]" then the judge must make written findings as to whether that individual poses a danger to the community. § 948.06(8)(e).

Here, the court made an oral pronouncement finding appellant to be a danger to the community due to "clocking somebody in the mouth" while on probation, which was consistent with one or more factors listed under section 948.06(8)(e)(1). See §§ 948.06(8)(e)(1)(a) ("The nature and circumstances of the violation and any new offenses charged."); .06(8)(e)(1)(b) ("The offender's present conduct, including criminal convictions."). These findings were appropriately reduced to writing pursuant to section 948.06(8)(e)(1). Nothing in the statutes requires that a separate evidentiary hearing take place.

Therefore, we affirm the trial court's revocation of appellant's probation, the court's finding that the appellant was a violent offender of special concern, and the court's determination that appellant posed a danger to the community.

Affirmed .

Warner and Ciklin, JJ., concur.


text:
    BANK OF NEW YORK MELLON f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-OH1 Mortgage Pass-Through Certificates Series 2007-OH1, Appellant, v. Julian BURGIEL, Egret's Landing At Lake Mary Homeowners Association, Inc. and Boca Stel, LLC, Appellees.
    Case No. 5D17-1152
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Jennifer Lima-Smith and Tara M. McDonald, of Gilbert Garcia Group, P.A., Tampa, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel, LLC.
    No Appearance for Other Appellees.
   ORFINGER, J.

In this residential foreclosure case, Bank of New York Mellon, f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-OH1 Mortgage Pass-Through Certificates, Series 2007-OH1 ("Bank") appeals a final judgment of involuntary dismissal entered in favor of appellee Boca Stel, LLC for lack of standing. We reverse and remand.

We review de novo a trial court's ruling on a motion for involuntary dismissal. Wilmington Sav. Fund Soc'y, FSB v. Louissaint, 212 So.3d 473, 475 (Fla. 5th DCA 2017). When reviewing the grant of an involuntary dismissal, we "view the evidence and all inferences of fact in a light most favorable to the nonmoving party," and affirm "only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party."

Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). We similarly review de novo whether a party has standing to bring the foreclosure action. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ; Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).

In any mortgage foreclosure proceeding, a party seeking foreclosure must demonstrate that it has standing to foreclose. E.g., Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 45-46 (Fla. 5th DCA 2015) ; McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff must have standing both at the inception of the foreclosure proceeding as well as at the time of final judgment. Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA 2014) ). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section 673.3091 or section 673.4181(4), Florida Statutes. § 673.3011, Fla. Stat. (2014). A holder is defined as, inter alia, "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Id. § 671.201(21)(a).

In this case, Bank's complaint alleged that it acquired the loan and possessed both legal and beneficial interest in the note and mortgage prior to filing the complaint. This language notwithstanding, attached to the complaint was a copy of the note with a blank indorsement, making it payable to the bearer. There is no dispute that the original note entered into evidence at trial was identical to the copy attached to the complaint. This was sufficient evidence to show that Bank had standing both at the inception of the foreclosure proceeding as well as at the time of final judgment; Boca Stel presented no evidence to the contrary.

The combination of the copy of the note attached to the complaint and the later-filed original sufficed to establish Bank's standing to foreclose. Louissaint, 212 So.3d at 476 ; see Wells Fargo Bank, N.A. v. Ousley, 212 So.3d 1056, 1058 (Fla. 1st DCA 2016) ("A copy of a note with a blank endorsement attached to the complaint, with the original filed at trial, is enough to establish standing for the party that filed the complaint."). Thus, the trial court erroneously dismissed Bank's case for lack of standing. Louissaint, 212 So.3d at 476 ; see Bank of N.Y. Mellon v. Heath, 219 So.3d 104, 106 (Fla. 4th DCA 2017) ("Here, Bank established standing because the original note and blank-endorsed allonge was properly authenticated and introduced into evidence at trial, which was identical to the copy of the note and blank-endorsed allonge attached to the complaint.").

We reverse the final judgment of involuntary dismissal and remand for further proceedings.

REVERSED and REMANDED.

PALMER and LAMBERT, JJ., concur.

      The trial court did not err by allowing Boca Stel to participate in the proceedings. Boca Stel took title to the property before Bank filed the foreclosure action. Thus, Boca Stel was an indispensable party. See U.S. Bank Nat'l Ass'n v. Bevans, 138 So.3d 1185, 1188 (Fla. 3d DCA 2014).

      There was also sufficient foundation to admit the business records. The foreclosure litigation specialist established that the records were reviewed for accuracy during the boarding process with which she was sufficiently familiar. See Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 216 (Fla. 5th DCA 2015) (explaining that successor servicer's witness need not have personally participated in boarding process to ensure accuracy of records acquired from prior servicer of subject loan; rather, witness need only "demonstrate[ ] a sufficient familiarity with the 'boarding' process to testify about it"); Channell v. Deutsche Bank Nat'l Tr. Co., 173 So.3d 1017, 1020 (Fla. 2d DCA 2015) (finding that successor mortgage servicer may establish admissibility of prior mortgage servicer's loan records by testimony that successor servicer independently confirmed accuracy of predecessor's records or by offering evidence that records were reviewed for accuracy prior to being integrated into successor servicer's records system); Bank of N.Y. v. Calloway, 157 So.3d 1064, 1072 (Fla. 4th DCA 2015) (stating that successor mortgage servicer "itself may establish trustworthiness by independently confirming the accuracy of the third-party's business records upon receipt").

      For this reason, the trial court's exclusion of the limited power of attorney in this case was not relevant to establish Bank's standing. The excluded limited power of attorney would have only been relevant to the issue of the servicer's standing to foreclose as servicer of the loan. Deutsche Bank Tr. Co. v. Merced, 238 So.3d 438, 441 n. 1 (Fla. 5th DCA 2018) ; see Russell v. Aurora Loan Servs., LLC, 163 So.3d 639 (Fla. 2d DCA 2015) (finding that power of attorney by which trustee that owned mortgage loan granted limited powers to current loan servicer was insufficient to establish that prior loan servicer, and therefore current loan servicer, had standing to foreclose at time it filed the foreclosure action). Here, however, Bank, not its servicer, was the party attempting to foreclose. Merced, 238 So.3d at 441 n. 1. In addition, the trial court's exclusion of the late disclosed document was an abuse of discretion given its failure to consider the factors set out in Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).


text:
    Edith NIEVES and Freddy Matos, Individually and as Husband and Wife, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Case No. 5D17-893
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    R. Barry Morgan, of Morgan Law Office, P.A., Orlando, for Appellants.
    DeeAnn J. Petika McLemore and Charles W. Hall, of Banker Lopez Gassler P.A., St. Petersburg, for Appellee.
   PER CURIAM.

Edith Nieves and Freddy Matos, individually and as husband and wife (collectively "Appellants"), appeal the order setting new trial for all damages following State Farm Mutual Automobile Insurance Company's ("State Farm") rejection of the remittitur for future medical expenses. Appellants argue the lower court erred by granting new trial for all damages because it had only granted remittitur for future medical expenses. We agree. Accordingly, we quash the order for new trial on all damages and remand for a new trial solely on future medical expenses.

Appellants sued State Farm to recover for injuries Edith Nieves sustained in an automobile accident with an uninsured motorist. After trial, the jury returned a verdict finding the uninsured motorist 100% at fault and awarded $1,012,665.60 in damages. Pursuant to the special verdict form, the jury allocated the damages as follows: $26,996.04 for past medical damages, $377,944.56 for future medical damages, $27,375.00 for past non-economic damages, $383,250.00 for future non-economic damages, $13,140.00 for past lost consortium, and $183,960.00 for future lost consortium.

State Farm moved for remittitur, challenging all damages the jury awarded. The trial court denied the remittitur for all damages, except for future medical damages. The trial court found that "not all of the future medical expenses that Plaintiff was awarded were testified to with sufficient certainty" and granted remittitur for future medical expenses only. The order expressly stated, "This remittitur does not affect the non-economic damages or the damages awarded from Plaintiff Matos' consortium claim; those awards remain undisturbed."

Subsequently, State Farm rejected the remittitur and, pursuant to section 768.043, Florida Statutes, the trial court ordered a new trial. However, the lower court included all damages in its order for new trial, stating, "The statute makes clear that the court has no discretion in this matter, and as such, the court must order a new trial as to damages only."

Section 768.043(1), Florida Statutes (2017), provides, in pertinent part:

In any action for the recovery of damages based on personal injury ... arising out of the operation of a motor vehicle, ... wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

"[O]nly when the parties agree with the trial court's amount of remittitur or additur will the remittitur or additur be enforced in lieu of a new trial." Waste Mgmt., Inc. v. Mora, 940 So.2d 1105, 1109 (Fla. 2006). When the parties do not agree, "it is appropriate for the trial court to limit retrial" to one type of damages when "special verdict forms ... reflect that the jurors' error occurred in that area of recovery alone." ITT Hartford Ins. of the Se. v. Owens, 816 So.2d 572, 577-78 (Fla. 2002) ; see Astigarraga v. Green, 712 So.2d 1183, 1184 (Fla. 2d DCA 1998) ("Because the remaining damages were supported by the evidence, they are not subject to remittitur."). Moreover, "to require a new trial as to all damage elements, including those which the record reflects are not in dispute, [results] in a needless waste of time and resources for both the litigants and the trial judge." ITT Hartford, 816 So.2d at 579. Hence, when remittitur is granted solely for one type of damages, and then that remittitur is rejected, the subsequent new trial should be limited to the damages subject to the award of remittitur.

Therefore, a new trial limited to future medical damages was required "[b]ecause the remaining damages were supported by the evidence, [and] they [were] not subject to remittitur." Astigarraga, 712 So.2d at 1184 ; see ITT Hartford, 816 So.2d at 579. Accordingly, we quash the order for new trial on all damages and remand for a new trial solely on future medical expenses.

QUASHED and REMANDED with INSTRUCTIONS.

TORPY, WALLIS and EDWARDS, JJ., concur.

      Post-trial, the parties stipulated to a PIP set-off for past medical expenses. The trial court honored the set-off, thereby reducing this measure of damages without any additional review.

      Moreover, it is common for our court and our sister courts to limit a new trial to one item of damages in the event one of the parties rejects an additur or remittitur. See State Farm Mut. Auto. Ins. v. Harmon, 237 So.3d 423, 424 (Fla. 5th DCA 2018) ; Vickers v. Thomas, 237 So.3d 412, 413 (Fla. 5th DCA 2017), reh'g denied (Jan. 17, 2018); Rasinski v. McCoy, 227 So.3d 201, 204 (Fla. 5th DCA 2017) ; State Farm Mut. Auto. Ins. v. Brewer, 191 So.3d 508, 512 (Fla. 2d DCA 2016) ; Olen Props. Corp. v. Cancel, 178 So.3d 437, 437 (Fla. 4th DCA 2015).