author: HARRIS, J.

text:
    Miguel LOPEZ, as Personal Representative of the Estate of Jon Lopez, Appellant, v. WILSONART, LLC and Samuel Rosario, Appellees.
    Case No. 5D18-2907
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Tony Bennett, of Hicks and Motto, P.A., Palm Beach Gardens, for Appellant.
    Sean Michael McDonough, and Jacqueline M. Bertelsen, of Wilson Elser Moskowitz Edelman & Dicker LLP, Orlando, for Appellees.
   HARRIS, J.

The Estate of Jon Lopez (the "Estate") timely appeals the trial court's entry of final summary judgment in favor of Wilsonart, LLC and Samuel Rosario (collectively, "Appellees"). Under Florida's current summary judgment standard, we are compelled to conclude that conflicting evidence remained as to whether Rosario negligently operated his vehicle, which could allow a jury to apportion fault between the drivers. We therefore reverse the summary judgment and remand for further proceedings.

On January 17, 2017, Rosario was driving a freightliner truck eastbound on a six lane highway towards an intersection in Osceola County, Florida. The highway was divided evenly with three lanes for westbound traffic and the other three lanes for eastbound traffic. Rosario drove in the center lane of the eastbound side. As the freightliner approached an intersection, Jon Lopez, driving a pickup truck, crashed into the rear of the freightliner, pushing the freightliner forward into another vehicle. Lopez died as a result of the injuries he sustained from the collision.

Rosario testified in his deposition that he traveled in the center of the three eastbound lanes and began to slow down as he approached the intersection when he felt an impact to the rear of the freightliner. He testified that he was coming close to a full stop, that his wheels were turned straight, and that he intended to continue travelling straight at the moment of the collision. In addition, Rosario's freightliner was equipped with a forward-facing dashboard camera. The footage from this dashcam shows the freightliner travelling in the center lane of the eastbound lanes. As the freightliner gradually came to a stop at a red light, it experienced a large impact, forcing it to veer to the left and crash into the car in front of it. It is undisputed that this impact was the result of being struck from behind by the pickup truck driven by Lopez and that this crash resulted in Lopez's death.

In response to Appellees' motion for summary judgment, the Estate presented the deposition of David Mendez, a witness to the collision, who testified that the freightliner suddenly changed lanes just prior to impact, swerving from the center lane to the left lane. The Estate also presented the affidavit of its expert, who concluded that part of the freightliner was in the right lane of the eastbound side when the collision occurred. This conclusion was based, in large part, on the deposition testimony of Mendez, the independent eye witness.

In their motion for summary judgment, Appellees argued that because Lopez rear-ended the freightliner with his pickup truck, he is presumed negligent under Florida law and that Lopez was the sole cause of the collision. Appellees further argued that Rosario's testimony and the corroborating dashcam footage suggested that Lopez could not overcome the presumption of negligence because the video flatly contradicted Mendez's testimony, rendering it incompetent evidence. The Estate responded, arguing that its expert's affidavit created a genuine issue of material fact as to whether Rosario kept his vehicle in a single lane and that this conflicting evidence created a question of material fact as to Rosario's negligence in operating the freightliner. After a hearing on Appellees' motion, the trial court granted the summary judgment and this appeal followed.

In considering "an appeal from the entry of a summary final judgment, an appellate court should indulge all proper inferences in favor of the party against whom summary judgment was sought." Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995) (citing Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2d DCA 1958) ). "If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied." Doe v. N. Okaloosa Med. Ctr., Inc., 802 So. 2d 1202, 1203 (Fla. 1st DCA 2002) (internal quotations removed).

"A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law." Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Succinctly put, "[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied." Jones v. Dirs. Guild of Am., Inc., 584 So. 2d 1057, 1059 (Fla. 1st DCA 1991).

In this case, the trial court erred when it concluded that the video evidence "blatantly contradicts the eye witness testimony and the opinion of plaintiff's expert." The court relied on Scott v. Harris, 550 U.S. 372, 127 S. Ct 1769, 1776, 167 L.Ed.2d 686 (2007) (applying the very different federal summary judgment standard and concluding that no genuine issue of material fact existed where video footage blatantly contradicted motorists's version of events) and Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) (holding that in first-tier certiorari review of driver's license suspension hearing- not summary judgment- circuit court does not err where it rejects police officer testimony, which is refuted by video evidence). Although both Scott and Wiggins stand for the proposition relied upon by the trial judge-that clear, objective, neutral video evidence can be so contradictory to the opposing party's evidence so as to render that evidence incompetent-it was error to apply those holdings to a summary judgment proceeding under Florida's much more restrictive standard. In fact, by finding that the video evidence, as compelling as it was, completely negated both the independent eyewitness testimony as well as the Estate's expert's opinion, the trial court improperly weighed competing evidence on material facts. "In ruling on a motion for summary judgment, the court may neither adjudge the credibility of the witnesses nor weigh the evidence." Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). "A trial court may not ... consider the weight of conflicting evidence ... in determining whether a genuine issue of material fact exists in a summary judgment proceeding." Juno Indus. Inc. v. Heery Int'l, 646 So. 2d 818, 822 (Fla. 5th DCA 1994).

Here, the video evidence showing Rosario's driving pattern is both compelling that Appellees were not negligent and directly contradictory to the Estate's evidence in opposition to the summary judgment motion. However, in the event this case survives Appellees' inevitable motion for directed verdict at trial, then it would be the jury's job to assess the credibility of the Estate's witnesses as to the cause of the accident and to weigh and compare Appellees' conflicting evidence, including the videotape. By granting final summary judgment, the trial court completely negated the Estate's evidence based on the perceived strength of Appellees' video evidence and, thus, improperly encroached into the jury's province. As a result, we are compelled to reverse the final summary judgment and remand for further proceedings.

In light of the technological advancements in our society that increase the likelihood of video and digital evidence being more frequently used in both trial and pretrial proceedings, we certify the following question to the Florida Supreme Court as one of great public importance:

Should there be an exception to the present summary judgment standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant's video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored?

REVERSED and REMANDED for further proceedings; QUESTION CERTIFIED

WALLIS and LAMBERT, JJ., concur.

      Under Rule 56, Federal Rules of Civil Procedure, the party opposing the motion for summary judgment must come forward with "specific facts showing that there is a genuine issue for trial." Significantly, the trial court is allowed to assess the proof and "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ).

      The video evidence is part of our appellate record and has been reviewed by the panel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gabriel N. TALPA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-568
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Peyton Bush Hyslop, of Hyslop & Greenfelder, PA, Brooksville, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We have for our consideration an appeal from county court where a question of great public importance was certified, and we accepted jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160(e)(2). The Hernando County Court, pursuant to rule 9.030(b)(4), certified the following question to this Court as involving a matter of great public importance:

WHEN A DEFENDANT HAS BEEN FOUND GUILTY OF, OR ENTERED A NO CONTEST PLEA TO A CHARGE OF CONTRACTING WITHOUT A LICENSE (489.127(1)(F) FLA. STAT.), IS THE MEASURE OF RESTITUTION DUE TO THE VICTIM DISGORGEMENT OF ALL MONIES PAID TO THE DEFENDANT BY THE VICTIM WITHOUT REGARD TO ANY VALUE THE GOODS OR SERVICES SO PROVIDED MAY HAVE?

Upon further consideration of the parties' briefs, we decline to accept this appeal and do not answer the certified question. Accordingly, we transfer this appeal to the Fifth Judicial Circuit of Florida, appellate division, pursuant to rule 9.160(f)(2).

EVANDER, C.J., WALLIS and HARRIS, JJ., concur.


author: Per Curiam.

text:
    Larry M. WYNN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-2261
    District Court of Appeal of Florida, First District.
    July 12, 2019
    Larry M. Wynn, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wolf, Roberts, and Jay, JJ., concur.


author: Lewis, J.

text:
    COASTAL CREEK CONDOMINIUM ASSOCIATION, INC., Appellant, v. FLA TRUST SERVICES LLC, as Trustee; Unknown Tenant #1, and Unknown Tenant #2, Appellees.
    No. 1D18-1457
    District Court of Appeal of Florida, First District.
    July 16, 2019
    James Roche of McCabe & Ronsman, Ponte Vedra Beach, for Appellant.
    J. Richard Young of Law Office of J. Richard Young, PLLC, Goldenrod, for Appellee Fla Trust Services, LLC.
   Lewis, J.

Appellant, Coastal Creek Condominium Association, Inc., appeals the trial court's final summary judgment in favor of Appellee, FLA Trust Services LLC, and raises three issues on appeal. We affirm without discussion as to the first and third issues. Appellant argues in the second issue that the trial court erred in interpreting section 718.116(1)(a), Florida Statutes (2017), to limit the present condominium owner's joint and several liability to assessments and related expenses that came due during the immediate prior owner's ownership. For the reasons that follow, we agree and reverse.

BACKGROUND

Tracy Langley and Todd Levraea (the Original Owners) acquired ownership of Unit 142 of Coastal Creek Condominium, the property at issue, by way of a special warranty deed on July 25, 2007. Subsequently, JPMorgan Chase Bank, NA, as mortgagee, obtained a final judgment of foreclosure against the Original Owners, as mortgagors. At the ensuing judicial sale, Homes HQ, LLC (the previous/immediate prior owner) was the successful bidder and a certificate of title was issued to it on June 13, 2016. On July 26, 2016, Homes HQ granted the property by a quit claim deed to FLA Trust (the present owner). In December 2016, the Association recorded a claim of lien against the property.

In 2017, the Association filed against FLA Trust and Unknown Tenants #1 and #2 a verified complaint for lien foreclosure and damages. The Association alleged that it levied assessments against the property for common expenses during the ownership of FLA Trust and any former owners with whom FLA Trust is jointly and severally liable pursuant to section 718.116, Florida Statutes, and that FLA Trust has failed to pay assessments and related expenses that have come due since August 15, 2015. The Association sought to foreclose its claim of lien for delinquent assessments for FLA Trust's proportionate share of assessments and related expenses.

In its answer and affirmative defenses, FLA Trust admitted that assessments have come due during its ownership of the property, which are due and owing to the Association, but argued that the Association has demanded payment to which it is not entitled. Specifically, FLA Trust asserted that pursuant to section 718.116(1)(a), Florida Statutes, the present owner shares joint and several liability with only the previous owner and, therefore, FLA Trust's joint and several liability is limited to the assessments that came due during Homes HQ's ownership of the property from June 13, 2016, through July 26, 2016. FLA Trust also filed a counterclaim, in which it argued that upon acquiring ownership of the property, Homes HQ became jointly and severally liable with the Original Owners for all unpaid assessments that came due from July 25, 2007, through June 13, 2016; maintained that FLA Trust is not responsible for assessments that came due during the Original Owners' ownership because section 718.116(1)(a) limits such liability to "the previous owner"; and sought a judgment declaring who is responsible for the assessments and related expenses incurred during the Original Owners' ownership.

The Association and FLA Trust filed competing motions for final summary judgment, disputing whether pursuant to section 718.116(1)(a) FLA Trust's joint and several liability is limited to assessments that came due during Homes HQ's ownership or also encompasses assessments that came due during the Original Owners' ownership. At the hearing on the parties' motions, the trial court explained that the disputed issue concerned the amount FLA Trust owed in assessments-all the prior unpaid assessments, as contended by the Association, or only the assessments that came due during its ownership and the immediate prior owner's ownership, as argued by FLA Trust-, and the parties agreed that the issue was dispositive. Much of the discussion at the hearing focused on the Third District's Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc. , 105 So. 3d 637 (Fla. 3d DCA 2013), line of cases interpreting the 2013 version of the statute. The trial court ultimately interpreted section 718.116(1)(a) as limiting FLA Trust's joint and several liability to assessments that came due during the immediate prior owner's ownership. The court explained that it felt bound to follow the Third District's decisions interpreting the statute in that manner, and were it not for those decisions, it would interpret the statute such that Homes HQ's liability for unpaid assessments that came due during the Original Owners' ownership flowed to FLA Trust. Accordingly, the trial court entered a final summary judgment in favor of FLA Trust. This appeal followed.

ANALYSIS

An order granting summary judgment is reviewed de novo. Convergent Techs., Inc. v. Stone , 257 So. 3d 161, 166 (Fla. 1st DCA 2018). Likewise, an issue of statutory interpretation is reviewed de novo . Whitney Bank v. Grant , 223 So. 3d 476, 479 (Fla. 1st DCA 2017). The polestar of statutory interpretation is legislative intent, which is to be determined by first looking at the actual language used in the statute. Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State , 209 So. 3d 1181, 1189 (Fla. 2017). If the statutory language is clear and unambiguous, the court may not resort to the rules of statutory construction and the statute must be given its plain and obvious meaning. Id. The court must give effect to all parts of the statute and avoid readings that would render a part thereof meaningless, and it must read all parts of a statute together in order to achieve a consistent whole. Id. The court may not construe a statute in a way that would extend, modify, or limit its express terms or its reasonable or obvious implications. Id. The statute's plain meaning must control, unless it leads to an unreasonable result or a result that is clearly contrary to legislative intent. Id. If the statutory language is ambiguous, however, the court should look to the rules of statutory construction to help interpret legislative intent, which may include the examination of the statute's legislative history. Hardee Cty. v. FINR II, Inc. , 221 So. 3d 1162, 1165 (Fla. 2017). Additionally, "amendments enacted shortly after controversies as to the interpretation of the original act arise may be considered useful guidance for the original intent." Id. at 1166-67.

Section 718.116(1)(a), Florida Statutes (2017), which is part of the Condominium Act, provides as follows:

A unit owner , regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the owner may have to recover from the previous owner the amounts paid by the owner. For the purposes of this paragraph, the term "previous owner" does not include an association that acquires title to a delinquent property through foreclosure or by deed in lieu of foreclosure. A present unit owner's liability for unpaid assessments is limited to any unpaid assessments that accrued before the association acquired title to the delinquent property through foreclosure or by deed in lieu of foreclosure.

(Emphasis added.) The last two sentences of the statute were enacted on July 1, 2014. See Ch. 2014-133, § 10, Laws of Fla.

The issue before us is whether, pursuant to section 718.116(1)(a), the present owner of a condominium unit is jointly and severally liable with the previous owner for unpaid assessments that came due during the ownership of both the previous owner and the original owner (as contended by the Association) or only for unpaid assessments that came due during the ownership of the previous owner (as argued by FLA Trust and found by the trial court).

The Third District has addressed this issue in a series of cases-in which the association was the previous owner and the 2013 version of section 718.116(1)(a) applied-and held that (1) a condominium association is a unit owner within the meaning of the statute, and (2) a present owner is solely responsible for assessments coming due during its ownership and is jointly and severally liable for assessments that came due during the immediate prior owner's ownership, but is not responsible for assessments that came due during the original owner's ownership. See Bona Vista Condo. Ass'n, Inc. v. FNS6, LLC , 194 So. 3d 490, 491-93 (Fla. 3d DCA 2016) ; Aventura Mgmt., LLC v. Spiaggia Ocean Condo. Ass'n., Inc. , 149 So. 3d 690, 692-93 (Fla. 3d DCA 2014) ; Park W. Prof'l Ctr. Condo. Ass'n, Inc. v. Londono , 130 So. 3d 711, 712 (Fla. 3d DCA 2013) ; Aventura Mgmt., LLC , 105 So. 3d at 637. Shortly after the Third District interpreted section 718.116(1)(a), the Legislature amended the statute by adding the last two sentences, whereby it expressly excluded the association from the term "previous owner." Before we proceed to interpret the 2017 version of section 718.116(1)(a), which applies in this case, we note that the fact that the association was an intervening owner in the foregoing cases does not appear to have had a bearing on the Third District's analysis.

The parties' primary focus is on the following statutory language: "Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title." FLA Trust's and the Third District's reliance on the singular definite article "the" before "previous owner" is misplaced. The phrase "the previous owner" pertains to the person with whom the present owner has joint and several liability, not to the period of ownership during which the present owner is liable for unpaid assessments-the latter of which is at issue. Reliance on the phrase "the previous owner" is also unpersuasive because the previous owner is jointly and severally liable with the original owner, and the use of the singular definite article does not foreclose the reasonable interpretation that the previous owner's liability for assessments unpaid by the original owner flows to the present owner. The phrase "all unpaid assessments that came due up to the time of transfer of title" is more on point and lends further support for that interpretation. If the Legislature intended to limit the present owner's joint and several liability to unpaid assessments that came due during the previous owner's ownership, it could have simply said, "a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due during the previous owner's ownership."

Moreover, we cannot read the foregoing sentence in isolation; rather, we must read together and give effect to all parts of the statute to achieve a consistent whole and avoid an interpretation that would render a part of the statute meaningless. Unlike the 2013 version of the statute that applied in the Third District cases, the version applicable in our case states that the term "previous owner" does not include an association that acquires title and goes on to provide that "[a] present unit owner's liability for unpaid assessments is limited to any unpaid assessments that accrued before the association acquired title to the delinquent property through foreclosure or by deed in lieu of foreclosure." There is only one reasonable interpretation of this provision: when the previous owner is the association, the present owner is liable only for unpaid assessments that accrued before the association acquired ownership; that is, during the original owner's ownership. This provision essentially skips the period of the association's ownership and absolves the present owner of liability for assessments unpaid during that time, while maintaining the present owner's liability for assessments unpaid during the original owner's ownership. In other words, it provides that the present owner is liable for unpaid assessments that came due during the ownership of the original owner, but not for unpaid assessments that came due during the ownership of the association as previous owner.

When the statutory provisions are read together, the legislative intent is unambiguous: the present owner is jointly and severally liable with the previous owner for unpaid assessments that came due during the ownership of both the previous owner (unless it was the association) and the original owner. Therefore, FLA Trust is jointly and severally liable with Homes HQ for assessments that were unpaid by not only Homes HQ, but also the Original Owners. Accordingly, we reverse the final summary judgment. We certify conflict with the Third District's decisions in Bona Vista Condominium Association, Inc. v. FNS6, LLC , 194 So. 3d 490 (Fla. 3d DCA 2016), Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc. , 149 So. 3d 690 (Fla. 3d DCA 2014), Park West Professional Center Condominium Association, Inc. v. Londono , 130 So. 3d 711 (Fla. 3d DCA 2013), and Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc. , 105 So. 3d 637 (Fla. 3d DCA 2013), to the extent they limit the current owner's joint and several liability pursuant to section 718.116(1)(a) to unpaid assessments that came due during the ownership of the immediate prior owner, and not the original owner.

REVERSED ; CONFLICT CERTIFIED .

B.L. Thomas and Roberts, JJ., concur.


text:
    Emanuel L. O'NEAL, Petitioner, v. The FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1617
    District Court of Appeal of Florida, First District.
    July 12, 2019
    Emanuel L. O'Neal, pro se, Petitioner.
    Ashley Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wolf, Roberts, and Jay, JJ., concur.


text:
    Michael GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1281
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Michael Green, pro se, Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In his petition for habeas corpus, the appellant attempts to collaterally attack his judgments and sentences for the third time. The trial court correctly determined that the appellant is not entitled to relief. A petition for habeas corpus is not available to seek collateral postconviction relief. Baker v. State , 878 So. 2d 1236, 1242 (Fla. 2004). If we review the appellant's petition as a motion for postconviction relief, the motion is time-barred because the appellant's judgments and sentences became final more than two years prior to him filing the instant motion. See Fla. R. Crim. P. 3.850(b) ; Green v. State , 169 So. 3d 1166 (Fla. 1st DCA 2015) (Table).

AFFIRMED .

Lewis, B.L. Thomas, and Roberts, JJ., concur.


text:
    Levory W. HICKMON, Appellant, v. RACHEL BUSHEY REESE, P.A., Appellee.
    No. 1D19-0171
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Levory W. Hickmon, pro se, Appellant.
    Rachael E. Reese of O'Brien Hatfield, P.A., Tampa, for Appellee.
   Per Curiam.

We treat Appellee's "notice of confession of error and request for remand" as Appellee's answer brief. However, we decline to accept the concession, and we affirm. See Perry v. State , 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (a confession of error is not binding upon an appellate court) (citations omitted); see also Markham v. N. Fla. Evaluation & Treatment Ctr. , 248 So. 3d 1274 (Fla. 1st DCA 2018).

Appellant claims that the trial court abused its discretion by dismissing his civil complaint for monetary damages with prejudice because he was entitled to amend it pursuant to Florida Rule of Civil Procedure 1.190(a). However, the record reflects that Appellant never presented this argument to the trial court below nor attempted to amend his complaint. Generally, "the rule of preservation applies to the improper dismissal of a complaint with prejudice." Shelswell v. Bourdeau , 239 So. 3d 707, 708 (Fla. 4th DCA 2018) (citing Vorbeck v. Betancourt , 107 So. 3d 1142, 1147 (Fla. 3d DCA 2012) ). "For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation." Holland v. Cheney Bros. , 22 So. 3d 648, 649-50 (Fla. 1st DCA 2009). When there is no indication that an argument challenging a motion to dismiss was first presented to the trial court, the argument will be deemed waived on appeal. See Metro. Cas. Ins. Co. v. Tepper , 969 So. 2d 403, 405 (Fla. 5th DCA 2007), approved , 2 So. 3d 209 (Fla. 2009).

Because Appellant's claim is not preserved for appellate review, we decline Appellee's confession of error and affirm.

Ray, C.J., and Bilbrey and Jay, JJ., concur.


text:
    Michael Steven RATLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4184
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Michael Steven Ratley, pro se, Appellant.
    Ashley Moody, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Michael Ratley appeals the trial court's order denying his Motion for DNA Testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Appellant argues that the trial judge had previously disqualified himself from the underlying case and thus erred in ruling on Appellant's motion. We agree. Therefore, we vacate the order under review and remand this case to the trial court so a successor judge can rule on the motion. See Davis v. State, 849 So. 2d 1137, 1138 (Fla. 1st DCA 2003) ("Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect."); Adderley v. State , 224 So. 3d 776 (Fla. 5th DCA 2017).

VACATED and REMANDED .

Ray, C.J., and B.L. Thomas and Winokur, JJ., concur.


text:
    CDC CAPITAL INVESTMENTS, LLC, as Trustee, Appellant, v. FREEDOM MORTGAGE CORPORATION, et al., Appellee.
    No. 1D18-2965
    District Court of Appeal of Florida, First District.
    July 22, 2019
    Ian P. Hudson of King Hudson PLLC, St. Petersburg, for Appellant.
    Cynthia L. Comras, David Rosenberg, and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellee.
   Per Curiam.

AFFIRMED .

Tramontana v. Bank of New York Mellon , 230 So. 3d 601 (Fla. 2d DCA 2017) ; Snowden v. Wells Fargo Bank , 172 So. 3d 506 (Fla. 1st DCA 2015).

Lewis, Makar, and Bilbrey, JJ., concur.


author: BILBREY, J.

text:
    Charles SMITH III, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3907
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Charles Smith III, pro se, Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   BILBREY, J.

Charles Smith III appeals the summary denial of his motion for postconviction relief. In his motion, Appellant raised a Brady violation and a claim of ineffective assistance of counsel for failure to seek suppression, among other claims. Appellant alleged he would not have pled guilty had he known of the Brady violation or of the possibility of suppression of the testimony of certain witnesses. A Brady claim is cognizable in a postconviction motion. See Wickham v. State , 124 So. 3d 841 (Fla. 2013). Similarly, failure to seek suppression may be a basis for postconviction relief. See Douglas v. State , 67 So. 3d 1119 (Fla. 1st DCA 2011). While the trial court attached record excerpts to its order, these attachments do not conclusively refute the legally sufficient claims made in grounds one and three of the motion. Accordingly, Smith is entitled to an evidentiary hearing on these claims. Fla. R. Crim. P. 3.850 ; see Freeman v. State , 761 So. 2d 1055 (Fla. 2000).

The order denying relief is VACATED , and the cause is REMANDED for further proceedings.

Wolf and Osterhaus, JJ., concur.

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


text:
    Gerald Francis BOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-237
    District Court of Appeal of Florida, First District.
    July 23, 2019
    Andrew Michael Bonderud of The Bonderud Law Firm, P.A., Jacksonville, for Petitioner.
    Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is dismissed for lack of jurisdiction because Petitioner has not shown irreparable harm. See Bailey v. State , 245 So. 3d 1015 (Fla. 1st DCA 2018).

Lewis, Makar, and Bilbrey, JJ., concur.


text:
    R.C.O., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4515
    District Court of Appeal of Florida, First District.
    July 23, 2019
    Andy Thomas, Public Defender, and Kasey Helms Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

On appeal, R.C.O. raises two issues. First, R.C.O. argues that the trial court erred in finding him guilty of the lesser-included offense of improper exhibition of a dangerous weapon because the petition for delinquency did not contain the necessary elements for that lesser-included offense. Because we find the first issue dispositive, we decline to address R.C.O.'s second issue.

The petition for delinquency alleged that R.C.O. committed an aggravated battery upon his mother by intentionally touching or striking her against her will and while doing so, used a deadly weapon. After the parties presented all of the evidence, the trial court found R.C.O. guilty of the category two lesser-included offense of improper exhibition of a dangerous weapon. One of the necessary elements of improper exhibition of a dangerous weapon is exhibiting the weapon in a "rude, careless, angry, or threatening manner." § 790.10, Fla. Stat. (2018) ; Fla. Std. Jury Instr.

(Crim) 10.5. Because the petition for delinquency did not include this element, we are compelled to reverse. See K.D. v. State , 69 So. 3d 1020, 1021 (Fla. 3d DCA 2011) (vacating adjudication for trespass in a conveyance because the petition for delinquency failed to include a necessary element of the permissive lesser-included offense).

REVERSED .

Lewis and Roberts, JJ., concur; B.L. Thomas, J., dissents without opinion.


text:
    Brian A. HALLMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D18-4070 1D18-4071 1D18-4072 1D18-4073
    District Court of Appeal of Florida, First District.
    July 23, 2019
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Brian A. Hallman, appeals four revocation orders in which the trial court found that he violated probation by committing the new law offense of dealing in stolen property. Appellant argues, and the State concedes, that the revocation was improperly based solely on hearsay evidence. Because we agree with Appellant and accept the State's concession, we reverse Appellant's revocation and remand with instructions that his probation be reinstated. See Melton v. State , 65 So. 3d 96, 97 (Fla. 1st DCA 2011) ("While hearsay is admissible at a probation revocation hearing, a revocation of probation may not be based solely upon hearsay evidence, and where the state seeks to revoke probation based on a violation ... by the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense."); see also Johnson v. State , 962 So. 2d 394, 397-98 (Fla. 2d DCA 2007) (reversing a revocation order where the only evidence linking the appellant to the stolen items was hearsay); J.F. v. State , 889 So. 2d 130, 131 (Fla. 4th DCA 2004) (reversing the revocation order where the only proof of possession of the stolen property by the appellant was based upon hearsay).

REVERSED and REMANDED with directions.

Lewis, Makar, and Bilbrey, JJ., concur.

      We have consolidated Appellant's four appeals for purposes of this opinion.


text:
    Rodney STEWART, Former Husband, Appellant, v. Darla Jane STEWART, Former Wife, Appellee.
    No. 1D18-3348
    District Court of Appeal of Florida, First District.
    July 23, 2019
    E. Jane Brehany of E. Jane Brehany, P.A., Pensacola, for Appellant.
    Jill W. Warren of the Law Office of Jill W. Warren, PLLC, Pensacola, for Appellee.
   Per Curiam.

This is the second time this matter is before us. The first resulted in our opinion in Stewart v. Stewart , 237 So. 3d 450 (Fla. 1st DCA 2018), in which we reversed and remanded portions of the lower tribunal's amended final judgment of dissolution to recalculate the value of certain assets. The lower court subsequently revisited the valuations discussed in our prior opinion and issued a remand order. We now review those portions of the lower court's remand order concerning the court's valuation of the personal property of the marriage and what was referred to as the marital home located at Arnie's Way.

Without further comment, we affirm the trial court's valuation of the personal property based on Former Husband's own amended financial affidavit. As to the Arnie's Way property, Former Husband argues that the trial court erred by listing it as a marital asset. Former Wife concedes the point. Therefore, we reverse that portion of the remand order and distribution table and remand to the trial court to correct the error and proceed accordingly.

REVERSED and REMANDED .

Lewis, Roberts, and M.K. Thomas, JJ., concur.


text:
    Frederick CLARKE, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES/The DIVISION OF RISK MANAGEMENT, Appellees.
    No. 1D18-2087
    District Court of Appeal of Florida, First District.
    July 23, 2019
    Pat T. DiCesare, II, Lakeland, and Bill McCabe, Longwood, for Appellant.
    Allyson A. McInvale of Brady Law Group, PLC, Tampa, for Appellees.
   Per Curiam.

In this workers' compensation appeal, Claimant raises three issues. Because competent substantial evidence supports the denial of permanent total disability (PTD) benefits, we affirm the that issue without further comment. We find merit in Claimant's remaining two issues - whether the JCC erred in denying his claim for temporary partial disability (TPD) benefits and whether the JCC erred in denying his related claim for the payment of penalties and interest, as well as attorney's fees and costs from the Employer/Carrier (E/C).

Background

In 2003, Claimant injured his neck when a service elevator at Raymond James Stadium came down and hit him on the head when he was assisting the Tampa Police Department in a pre-game sweep of the stadium for bombs. Claimant subsequently underwent a cervical discectomy and fusion in March 2004 under the care of Dr. Amann. Claimant was thereafter referred by Dr. Amann for pain management treatment that began in 2005 under the direction of Drs. Khan and Vargas and continued through at least the time of the February 2018 hearing. Claimant also developed psychiatric symptoms, diagnosed as depression, that required a course of treatment that began in March 2014 with Dr. Pandya.

As found by the JCC, Dr. Amann opined that Claimant reached neurosurgical maximum medical improvement (MMI) in June 2010, assigned an 8% permanent impairment rating, and assigned permanent work restrictions. Dr. Vargas testified that Claimant reached MMI from a pain management perspective in September 2017, assigned a 10% permanent impairment rating, and also assigned permanent work restrictions. Dr. Pandya opined that Claimant would reach MMI on February 13, 2018, five days post-hearing, and did not assign any permanent psychiatric restrictions. Thus, Claimant reached overall MMI on February 13, 2018.

After Claimant's release to return to work following his cervical surgery, he worked for several employers. The TPD claim at issue arose following the end of Claimant's employment with his last employer, Mike's Golf Carts, on June 30, 2014. While employed there, Claimant was paid an average of $100 per week. Claimant took off work at the end of June 2014 to attend to matters relating to his father's death, and there was no job available at Mike's Golf Carts on his return. Claimant received temporary benefits at various times since his injury, with the last payment concluding on June 30, 2014. Claimant has not worked since that date.

The JCC denied the claim for payment of TPD benefits in their entirety from July 1, 2014, and thereafter, on grounds Claimant voluntarily limited his income by not working. Accordingly, the JCC also denied the claims for payment of penalties and interest as well as E/C-paid costs and attorney's fees.

Analysis

A JCC's findings in regard to a claim for TPD benefits are reviewed for competent substantial evidence. See Wyeth/Pharma Field Sales v. Toscano , 40 So. 3d 795 (Fla. 1st DCA 2010). Whether the JCC used the correct legal standard is reviewed de novo. See Banks v. Allegiant Sec. , 122 So. 3d 983, 985 (Fla. 1st DCA 2013) ("Our review of an erroneous application of the law is de novo. Application of an incorrect rule of law is reversible error.") (citation omitted).

In Toscano we addressed an employer/carrier's affirmative defenses to claims for payment of TPD benefits. Noting that

[a]lthough the express "voluntary limitation of income" defense has been removed from the statute, section 440.15(4)(a) "pins remuneration on what the employee 'is able to earn' post-injury." Fardella v. Genesis Health, Inc. , 917 So. 2d 276, 277 (2005). Additionally, this court has analogized the statutory defense of "refusal of suitable employment" found in section 440.15(6) to a voluntary limitation of income defense. See Moore [v. Servicemaster Commercial Servs. ], 19 So. 3d [1147,] 1152 [ (Fla. 1st DCA 2009) ] (holding, although an employer is not required to continually reoffer a job to avail itself of statutory defenses based on an unjustified voluntary limitation of income, the employer must establish the continued availability of the job for each applicable period to obtain the continued benefit of the defense).

40 So. 3d at 801.

Here, the JCC made no findings as to whether a job was available to Claimant when he returned to Florida. The JCC's order recited Claimant's work history since the date of the accident. But without more, this does not rise to the level of a finding that Claimant refused suitable employment. The E/C argued in their brief and at oral argument that there was a break in the causal connection between Claimant's workplace injury and any loss of earnings. While there is support for this argument in the record, the JCC did not make any findings on the break in causal connection, and we cannot do so on appeal. See Featured Props., LLC v. BLKY, LLC , 65 So. 3d 135, 137 (Fla. 1st DCA 2011) (holding that an appellate court cannot make factual findings).

As explained in Bueno v. Workman , 20 So. 3d 993, 998 (Fla. 4th DCA 2009), we "cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so." Because the JCC failed to use the correct legal standard in evaluating Claimant's claim for TPD benefits, we reverse and remand for further findings. If the Claimant is found to have refused "employment suitable to" his capacity, section 440.15(6), Florida Statutes (2003), applies. However, if Claimant is found to have left his employment at Mike's Golf Carts "without just cause" then TPD benefits "shall be payable based on the deemed earnings" of Claimant just as if "he had remained employed." § 440.15(7), Fla. Stat. (2003).

Accordingly, we AFFIRM the denial of PTD benefits, REVERSE the denial of TPD benefits, penalties, interest, costs, and attorney's fees, and REMAND for proceedings consistent with this opinion.

Wolf, Lewis, and Bilbrey, JJ., concur.

      Judge Lewis was substituted for an original panel member in this proceeding after oral argument. He has viewed the digital recording of oral argument.


text:
    Zhonterius Deontervan JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1160
    District Court of Appeal of Florida, First District.
    July 23, 2019
    Andy Thomas, Public Defender, Lori A. Willner and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The appellant appeals the trial court's order imposing restitution in the amount of $3,228.52. We affirm the trial court's finding that it had jurisdiction without comment, but write only to address the appellant's challenge of the amount of restitution ordered.

The appellant claims the trial court's award was not supported by competent, substantial evidence. Given his arguments on this issue and the State's concession of error, we reverse the amount of restitution and remand for a new restitution hearing.

AFFIRMED in part, REVERSED in part, and REMANDED .

Roberts, Makar, and Kelsey, JJ., concur.


text:
    Timothy J. MANKO, Appellant, v. Laurie A. MANKO, Appellee.
    Case No. 5D18-3883
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 23, 2019
    Timothy J. Manko, Deltona, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Timothy J. Manko appeals the trial court's order holding him in contempt and denying his motion to abate his support obligations owed to Laurie Manko. We affirm the trial court's order save for the award of attorney's fees. We are compelled to reverse the attorney's fees award because the trial court failed to make a determination as to need and ability to pay. See Jones v. Jones, 671 So.2d 852, 854-55 (Fla. 5th DCA 1996) (reiterating that trial court must consider need and ability to pay under section 61.16, Florida Statutes, in order to award attorney's fees in post-dissolution contempt proceedings); see also Hardman v. Koslowski, 107 So.3d 1246, 1248 (Fla. 1st DCA 2013) ("Because the contempt action arose in the context of a dissolution action, the trial court was required to determine need and ability to pay before imposing this monetary sanction." (citing § 61.16(2), Fla. Stat.)); Worthington v. Harty, 677 So.2d 1371, 1372 (Fla. 4th DCA 1996) ("As chapter 61 is applicable, ability to pay and need must be considered by the court before ordering payment of attorney's fees in contempt proceedings incident to enforcing orders relating to support or custody." (citing Armstrong v. Armstrong, 623 So.2d 1216, 1218 (Fla. 4th DCA 1993) )).

Accordingly, we reverse the trial court's order, in part, and remand for further proceedings.

Affirmed, in part; Reversed, in part; and Remanded.

BERGER, EDWARDS and EISNAUGLE, JJ., concur.


author: BERGER, J.

text:
    Wesley WHITTINGHAM and Andrea Brown, Appellants. v. HSBC BANK USA, NA AS TRUSTEE FOR the HOLDERS OF DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-OA1, Appellee.
    Case No. 5D18-1512
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 24, 2019
    Nicholas A. Vidoni, of Vidoni Law PLLC, Cocoa, for Appellants.
    Shawn Taylor and Brandi Wilson, of Deluca Law Group, PLLC, Ft. Lauderdale, for Appellee.
   BERGER, J.

Wesley Whittingham and Andrea Brown ("Borrowers") appeal the trial court's order vacating two separate orders issued on October 14, 2013, and February 20, 2018, under Florida Rule of Civil Procedure 1.540(b)(4). The 2013 order was a case management order dismissing the foreclosure case without prejudice after the parties failed to appear at the case conference. The 2018 order vacated a summary final judgment of foreclosure in favor of HSBC Bank USA, NA as Trustee for the Holders of Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA1 ("Bank"), and again dismissed the case without prejudice. Borrowers raise four arguments on appeal. We find dispositive Borrowers' argument that judicial estoppel prevented Bank from challenging the 2018 order that it requested, and reverse.

On August 27, 2010, the trial court rendered a summary final judgment of foreclosure against Borrowers and in favor of Bank, which it had signed four days earlier. The foreclosure sale was set for December 15, 2010. But, a week prior to the sale, Bank filed an ex parte motion to cancel it. The trial court granted the motion and cancelled the sale. The next year, in October 2011, Bank filed a motion to vacate the final judgment, stating that it did not wish to proceed with the case. Bank also asked the trial court to withdraw the original documents and dismiss the case without prejudice. Bank, however, never noticed the motion for a hearing, and the trial court did not rule on it at that time.

Two years later, in 2013, on its own motion, the trial court set and held a case management conference. Neither party attended. Based on their nonattendance, the trial court issued a case management order on October 14, 2013, which dismissed the case without prejudice and gave the parties forty-five days to file additional pleadings. More than a year later, on December 9, 2014, Bank filed a motion to withdraw the original documents from the court file. In the motion, Bank decelerated the loan, withdrew its demand for immediate payment, and reinstituted the loan as an installment loan. Ten days later, the trial court granted the motion. Bank then filed a separate foreclosure action in October 2015, which was set for trial in May 2018.

Bank subsequently filed a notice of hearing on its October 2011 motion to vacate the 2010 final judgment in this case. On February 20, 2018, the trial court, ex parte, granted the October 2011 motion to vacate and dismissed the case without prejudice. Shortly thereafter, Borrowers filed a rule 1.540(b)(4) motion to vacate the 2013 case management order, which had also dismissed the case without prejudice. They characterized the order as an involuntary dismissal and argued that it was void because the trial court lacked jurisdiction to involuntarily dismiss the case after it had rendered the summary final judgment. Bank also filed a similar motion, which not only sought to vacate the 2013 case management order, but the 2018 order as well. Similar to Borrowers, Bank claimed that both orders were void because the trial court lost subject matter jurisdiction to enter them after the final judgment was rendered. Bank also maintained that the 2010 final judgment was still enforceable, and thus, a new foreclosure sale date should be set.

At the subsequent hearing on the parties' motions, the trial court inquired why Bank had previously moved to vacate the 2010 final judgment. Bank responded:

Well, Your Honor, fundamentally what we thought we were able to do is clean up the Court docket. We knew that we were advancing on a 2015 case, it was already set for trial, and we didn't want there to be an issue where there was an outstanding judgment. Subsequent to the Court granting that order though, after partly reading counsel's arguments on their motion to vacate, they titled it a motion to vacate a judgment but they're actually trying to vacate an order of dismissal, but after reviewing their case law we believe that it was error for us to have renoticed it just as it was error for Your Honor to have granted it.

Bank then proceeded to argue that the motions and orders were void because the trial court lost jurisdiction to enter them one year after the 2010 final judgment was rendered. The trial court agreed and vacated, as void, all orders entered after August 23, 2011.

On appeal, Borrowers contend that, regardless of whether the 2018 order was void, judicial estoppel bars Bank from challenging it. They maintain that under estoppel principles a party who accepts the benefit of an order is estopped from urging error upon the same order. We agree.

Judicial estoppel provides that "[o]ne who assumes a particular position or theory in a case is judicially estopped in a later phase of that same case, or in another case, from asserting any other or inconsistent position toward the same parties and subject matter." In re Adoption of D.P.P., 158 So.3d 633, 639 (Fla. 5th DCA 2014) (citing Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41-42 (Fla. 1st DCA 1970) ). There are four elements to judicial estoppel in Florida:

[1] A claim or position successfully maintained in a former action or judicial proceeding [2] bars a party from making a completely inconsistent claim or taking a clearly conflicting position ..., [3] to the prejudice of the adverse party, [4] where the parties are the same in both actions, subject to the "special fairness and policy considerations" exception to the mutuality of parties requirement.

Salazar-Abreu v. Walt Disney Parks and Resorts, U.S., Inc., 44 Fla. L. Weekly D119, D120, --- So.3d ----, 2018 WL 6816757 (Fla. 5th DCA Dec. 28, 2018) (footnote omitted) (quoting Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005) ); accord Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla. 2001) (quoting Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610-11 (Fla. 1934) ). Prejudice "occurs when 'the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.' " Salazar-Abreu, 44 Fla. L. Weekly at D121 n.2 (quoting Grau, 899 So.2d at 400 n.3 (quoting New Hampshire v. Maine, 532 U.S. 742, 751, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) )). Judicial estoppel applies even in the context of void orders. Johnson v. State, Dep't of Rev. ex rel. Lamontagne, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) ("A party may forfeit the right to seek relief even from a void judgment if the party's actions or statements have had the effect of ratifying the judgment or conceding its propriety." (citing Starks v. Howard, 611 So.2d 52, 53-54 (Fla. 3d DCA 1992) )).

In this case, the undisputed facts demonstrate that all of the elements of judicial estoppel are present. There is a mutuality of parties. For the majority of this case, and for more than six years, Bank has maintained the position that it wanted to voluntarily vacate the 2010 final judgment and voluntarily dismiss the case without prejudice. In fact, Bank stated in its 2014 motion to withdraw the original documents from the case file that it was decelerating the loan, withdrawing its demand for immediate payment, and restoring its installment status. Bank was successful in maintaining that position when, in the 2018 order, the trial court granted its 2011 motion to vacate the final judgment and dismiss the case without prejudice.

Six weeks later, Bank took a conflicting position when it sought to have the 2018 order vacated. This conflicting position prejudiced Borrowers, who did not contest this case as Bank has been pursuing a position favorable to them from the time it cancelled the judicial sale in 2010 until after the trial court granted the motion to vacate the final judgment in February 2018. In fact, based on the assumption that the 2010 final judgment was vacated, Bank filed a new foreclosure complaint in 2015 on the same mortgage, which Borrowers have actively contested from the onset and in which the parties had set a May 2018 trial date. Consequently, judicial estoppel bars Bank's change of position in its motion to vacate the 2018 order, which it had obtained just six weeks earlier, vacating the 2010 final judgment. See Salazar-Abreu, 44 Fla. L. Weekly at D120 (quoting Grau, 899 So.2d at 400 ); In re Adoption of D.P.P., 158 So.3d at 639 (citing Griffin, 237 So.2d at 41-42 ); Johnson, 973 So.2d at 1239. Accordingly, we reverse the order granting Bank's rule 1.540(b)(4) motion.

REVERSED.

ORFINGER and EISNAUGLE, JJ., concur.


text:
    Anthony FERRER, Petitioner, v. Rosanna FERRER, Respondent.
    Case No. 5D18-2990
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    Anthony Ferrer, Orlando, pro se.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Respondent.
   PER CURIAM.

This Court earlier dismissed Petitioner's Petition for Certiorari Review of Order stemming from Orange County Circuit Court Case Number 2015-DR-008503-O. Because it appears that Petitioner's filings are abusive, repetitive, malicious, or frivolous, Petitioner is cautioned that any further pro se filings in this Court asserting claims stemming from the identified case number may result in sanctions such as a bar on pro se filing in this Court. See State v. Spencer , 751 So.2d 47 (Fla. 1999).

ORFINGER, COHEN, and EDWARDS, JJ., concur.


author: GUIDRY, Justice

text:
    Roger BURCHFIELD and Carol Burchfield v. Forrest H. WRIGHT, M.D., Thomas Renda, M.D., and Willis Knighton Medical Center
    No. 2017-C-1488
    Supreme Court of Louisiana.
    June 27, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
   GUIDRY, Justice

In this medical malpractice case, the defendant surgeon ordered pre-operative tests including a chest x-ray and an electrocardiogram ("EKG") before performing non-emergency gallbladder surgery on the plaintiff. However, the defendant did not review the results of these tests prior to performing the surgery, but had he done so, the tests would have alerted him to potential issues with the plaintiff's heart necessitating the ordering of a cardiac consult prior to surgery. Although the surgery itself was successful and uneventful, some thirty or so hours after discharge, the plaintiff suffered a heart attack and eventually had to undergo a heart transplant. The plaintiff and his wife brought suit against the defendant alleging medical malpractice. The defendant surgeon settled, and the Louisiana Patients' Compensation Fund ("PCF") intervened.

After a trial against the PCF, the jury declined to find the plaintiffs had proven the defendant's failure to review the test results and to refer his patient to a cardiologist before performing the surgery had caused the patient to suffer the subsequent heart attack that ultimately necessitated a heart transplant. Instead, the jury found the plaintiffs had proven the defendant's breach of the standard of care had resulted in the loss of a less than even chance of a better outcome. The jury awarded the plaintiffs lump sum general damages, which the trial court in its judgment made subject to the Medical Malpractice Act's limitation on the total amount recoverable by the plaintiffs, La. Rev. Stat. 40:1231.2.

The court of appeal found legal error in what it deemed to be a "patently inconsistent" jury verdict in light of the verdict form, thereby necessitating de novo review of the case. Following its review, the court of appeal nonetheless found the jury's determination that the plaintiffs had proven a lost chance of a better outcome was clearly supported by the record. The court of appeal then awarded general damages (affirming the trial court's award), but it also awarded special damages, including past medicals, future medicals, and lost wages, which it did not subject to the Medical Malpractice Act's limitation on the total amount recoverable. Because we find error in the court of appeal's decision, we hereby reverse that decision and reinstate the jury's verdict, its award of lump sum general damages, and the trial court's judgment.

FACTS and PROCEDURAL HISTORY

Referred by his gastroenterologist to resolve gastric complaints, Roger Burchfield, then age 58, was admitted to Willis-Knighton Medical Center on August 14, 2013, for non-emergency gallbladder surgery, specifically a laparoscopic cholecystectomy, to be performed by Forrest Wright, M.D. Though Dr. Wright ordered a pre-operative chest x-ray and EKG, which were completed, neither the chest x-ray nor the EKG was read by Dr. Wright prior to the surgery. The x-ray would have revealed Mr. Burchfield had congestive heart failure, while the EKG indicated possible left atrial enlargement, nonspecific intraventricular block, and two possible prior heart attacks, a septal infarct and an inferior infarct. None of these ailments was apparently known to the patient, according to his testimony at trial.

Mr. Burchfield was placed under general anesthesia and Dr. Wright performed the surgery successfully. There were no intraoperative complications, and, with no apparent complications, Mr. Burchfield was discharged later that day. Upon discharge, Mr. Burchfield returned home and initially had no issues eating or walking. Approximately thirty hours later, Mr. Burchfield began experiencing edema in his lower extremities and difficulty "getting comfortable." On August 16, 2013, he presented to a local emergency room where he was determined to be in critical condition, and was transferred back to Willis-Knighton and admitted to the intensive care unit.

At Willis-Knighton, it was determined that Mr. Burchfield had suffered an acute myocardial infarction, respiratory failure, along with worsening of his pulmonary edema, congestive heart failure, and bi-lateral pleural effusions. Mr. Burchfield was intubated and placed into a medically-induced coma. A heart catheterization was performed, an intra-aortic balloon pump was placed to allow his heart to pump, and he was placed on a ventilator.

Ultimately, it was determined Mr. Burchfield was not a candidate for heart bypass surgery, so he was transported to Baylor Medical Center in Dallas on August 22, 2013, and evaluated. On September 3, 2013, Mr. Burchfield underwent a heart transplant. He has recovered successfully from this surgery, but was unable to return to his previous profession as a mechanic and will necessarily require medical treatment related to the transplant for the remainder of his life.

Mr. Burchfield and his wife Carol filed a medical malpractice claim naming Dr. Wright, the radiologist, and Willis-Knighton as defendants. The plaintiffs alleged Mr. Burchfield was suffering from congestive heart failure, as revealed by the x-ray, and that Dr. Wright should have either not gone forward with the surgery or taken pre-operative precautions before doing so. Plaintiffs settled their claims against Dr. Wright for $100,000.00, reserving their rights against the PCF for excess damages. The remaining defendants were ultimately dismissed.

A Medical Review Panel concluded Dr. Wright had breached the standard of care by failing to review the pre-operative tests he had ordered. The panel opinion observed that the gallbladder surgery was not an emergency. The panel opined that the chest x-ray report "warranted postponing the surgery until a cardiology consult could be obtained [and that] the failure to review the chest x-ray report and request a cardiology consult was a factor of the resultant damages."

The case proceeded to trial against the PCF. The Verdict Form, which the parties had negotiated and accepted, was answered by the jury in the following manner. Question No 1: "Have the plaintiffs proven, by a preponderance of the evidence, that Dr. Forrest Wright's breach of the applicable standard of care was a substantial factor in contributing to the injuries of Roger Burchfield?" The jury checked the "No" box. The form then indicated: "If your answer is 'yes,' proceed to Question No. 2. If your answer is 'no' then, proceed to Question No. 6." Assuming the jury found causation in Question No. 1, Question Nos. 2-5 concerned damages for past and future pain and suffering, past and future disability, past medical expenses, past lost wages, future lost wages, future medical care, and loss of consortium for Mrs. Burchfield. However, because the jury answered "no" to Question No. 1, it then proceeded as directed on the form to Question No. 6, which provided: "Do you find that Roger Burchfield lost a chance of a better outcome as a result of the breach of the standard of care by Forrest Wright, M.D.?" The jury checked the "Yes" box to Question No. 6. The Verdict Form then instructed: "If your answer to the above question is no, please STOP and have the foreperson sign and call the Bailiff. If 'yes' proceed to Question No. 7." Question No. 7 provided: "What damages do you find that Roger Burchfield and/or Carol Burchfield suffered in connection with a loss of a chance of a better outcome?" The jury answered "$680,000." The Verdict Form was signed and dated by the foreperson.

The trial court later issued a judgment against the Patient's Compensation PCF in the amount of $400,000.00 plus judicial interest from February 20, 2014, and court costs, after crediting the PCF with the $100,000 settlement with Dr. Wright and applying the limitation on damages under the Medical Malpractice Act. The plaintiffs thereafter moved for a judgment notwithstanding the verdict, which the trial court denied.

On appeal, the appellate court agreed with the jury that Mr. Burchfield suffered a lost chance of a better outcome as a result of Dr. Wright's breach of the standard of care, but it found the jury's responses to the Verdict Form were "internally inconsistent, contributing to the troublesome reduction by the trial judge of the jury's award." Burchfield v. Wright , 51,459 p. 4 (La. App. 2 Cir. 6/28/17), 224 So.3d 1170, 1173. The appellate court agreed with the plaintiffs that the trial court had erred in concluding that a lost chance of a better outcome could consist only of general damages, and thereby subject to the Medical Malpractice Act's limitation on the total amount recoverable, reasoning that "the answers to interrogatory numbers one and six on the jury verdict form to be patently inconsistent , leading to an inability of the jury to consider all of the damages suffered by the Burchfields as a result of Roger's heart transplant." Id. [Emphasis in original.] Finding this perceived inconsistency to be legal error, the appellate court reviewed the record de novo and concluded the record clearly supported the jury's determination that Mr. Burchfield had suffered a lost chance of a better outcome. Id. at p. 6, 224 So.3d at 1174. The appellate court found the jury had not been properly instructed on how to quantify the resultant damages on the Verdict Form. The appellate court cited this court's instructions on that precise issue in Smith v. State, Dept. of Health & Hosps. , 95-0038 (La. 6/25/96), 676 So.2d 543, but then it found the trial court had erred in considering the jury's award as general damages and subject to the Medical Malpractice Act's limitation on total recoverable damages, without awarding the plaintiffs past medical awards, future medical care, and lost wages. Id. at pp. 7-9, 224 So.3d at 1175. The court of appeal affirmed the trial court's $400,000 award in general damages, but it additionally awarded past medical expenses of $692,850.64, future medical care, and lost wages of $493,020.00, none of which it made subject to the Medical Malpractice Act's limitation on the total amount recoverable by the plaintiffs. Id. at pp. 9-11, 224 So.3d at 1176-77.

We granted the writ application of the Patient's Compensation Fund to review the appellate court's decision to conduct a de novo review and to award additional and separate damages for past medical bills, future medical care, and lost wages, not subject to the Medical Malpractice Act's limitation on the amount of recoverable damages. Burchfield v. Wright , 17-1488 (La. 12/15/17), 231 So.3d 643.

DISCUSSION

The PCF asserts essentially four assignments of error. First, it contends the court of appeal failed to follow the decisions of this court that provide that the only available recovery in a loss of chance claim is a lump sum award, which is in the nature of a general damage. The PCF argues that, as a result, the appellate court committed a number of interrelated errors by finding that the jury's answers to the Verdict Form were internally inconsistent and that the form did not adequately state the law, by conducting a de novo review, and by rendering separate and distinct awards for general damages, lost wages, and medical expenses. Second, the PCF asserts the court of appeal erred in finding that Mr. Burchfield was entitled to future medical care pursuant to La. Rev. Stat. 40:1231.3, because it is not an available remedy in a claim for loss of a chance of a better outcome. Third, the PCF asserts the court of appeal erred in not applying the Medical Malpractice Act's limitation on the total amount recoverable by the plaintiffs, as provided by La. Rev. Stat. 40:1231.2, which prohibits recovery, exclusive of future medical care and related benefits, from exceeding $500,000.00. Fourth, the PCF asserts the court erred in concluding Mr. Burchfield was deprived of a chance of a coronary bypass when the weight of the evidence is that he was never a candidate for the procedure due to his pre-existing conditions, including congestive heart failure, hypertension, and two, but possibly four, prior heart attacks. The PCF suggests that Mr. Burchfield was deprived of at most a cardiac consult prior to surgery and that the small chance of a better outcome merits a reduction in the lump sum award to $250,000.

The plaintiffs counter the court of appeal correctly conducted a de novo review of the record and properly concluded the plaintiffs' damages were caused by the defendant's medical malpractice. The plaintiffs also note they had pointed out to the court of appeal that the trial court's jury charges did not comport with this court's preferred civil jury charges. The plaintiffs alternatively argue that, under any standard of review, they proved their damages caused by the defendant's medical malpractice exceeded the maximum award allowed under the Medical Malpractice Act. They argue the evidence and expert testimony established that Mr. Burchfield more probably than not would have received a heart bypass instead of a transplant if he had been properly treated and diagnosed by Dr. Wright. The plaintiffs assert the record supports the court of appeal's finding that but for Dr. Wright's breach of the standard of care, Mr. Burchfield would not have experienced the damage he did-a resultant heart attack. The plaintiffs alternatively argue that they are entitled to seek both damages that were definitely caused by the malpractice and additional damages that could be awarded in the form of "lost chance." They claim there was evidence of damages that could have fallen in either category, but the trial court declined to allow multiple awards by the use of erroneous jury instructions and the Verdict Form. Next, the plaintiffs assert that, analyzed as a lost chance of a better outcome case, their damages fully exceeded the medical malpractice limitations on damages, and a lost chance is not limited to general damages, but entitles the plaintiff to full damages-not only general damages, but also medical expenses, lost wages, and lost consortium. As to lost wages, the plaintiffs assert that they are not subject to the Medical Malpractice Act's limitation on recoverable damages because they could reasonably be included as future medical expenses and "related benefits," under La. Rev. Stat. 40:1231.2. Finally, the plaintiffs argue they proved Mr. Burchfield would require future medical care for the rest of his life and thus they were entitled to future medical care not subject to the Medical Malpractice Act's limitation on total recoverable damages.

Essentially, the plaintiffs' theory of the case commences with the assertion that Dr. Wright should have read the EKG and the x-ray reports he had ordered prior to surgery, and that his failure to read those reports, to discern that they revealed Mr. Burchfield was suffering from congestive heart failure and had suffered two prior heart attacks, and therefore to refer Mr. Burchfield for a cardiology consult before conducting the gallbladder procedure constituted a breach of the standard of care. The PCF does not dispute that Dr. Wright's actions constituted a breach of the standard of care. Though he testified he was asymptomatic, Mr. Burchfield's condition prior to the gallbladder surgery was later determined to include congestive heart failure, cardiomegaly, resistant hypertension , coronary artery disease, resistant hyperlipidemia, and two, or possibly four, prior heart attacks. Accordingly, there is no doubt that Mr. Burchfield required medical intervention of some kind. The question, however, was what modality of treatment was required, and did Dr. Wright's negligence deprive Mr. Burchfield of a less invasive treatment, such as a coronary bypass operation, rather than the more serious heart transplant he ultimately received.

The plaintiffs make alternative contentions. Primarily, they contend Dr. Wright's decision to proceed with the surgery directly resulted in, and thus substantially caused, a worsening of Mr. Burchfield's condition, the acute myocardial infarction, and the resultant heart transplant, necessitated by the damage caused by the subsequent heart attack. Thus, they asserted that Dr. Wright's decision to proceed with the surgery, which involved placing Mr. Burchfield under anesthesia and undergoing the laparoscopic surgery, rather than call for a cardiology consult and a workup as a bypass candidate, was a substantial cause of the ultimate heart transplant. As plaintiffs' counsel argued to the jury, the gallbladder surgery was the straw that broke the proverbial camel's back, and that Mr. Burchfield more likely than not could have undergone a coronary bypass and not have been required to undergo the heart transplant and take medications and an immunosuppressant for the remainder of his life. Alternatively, the plaintiffs contend that, even if there was not more than a 50% chance that Mr. Burchfield would have been a candidate for a coronary bypass, there was some chance that he would have been such a candidate and could have had a better outcome than having to undergo a heart transplant. The jury, as the Verdict Form shows, unanimously rejected the plaintiffs' contention that Dr. Wright's failure to call a cardiology consult before proceeding with the surgery was a substantial cause of Mr. Burchfield's condition to worsen, resulting in a heart attack, and having to undergo a heart transplant. Instead, the jury agreed with the plaintiffs' alternative theory that Dr. Wright's breach of the standard of care did deprive Mr. Burchfield of a chance of a better outcome.

For the reasons set forth below, we find the court of appeal misconstrued the theory of lost chance of a better outcome in a medical malpractice case and misapplied our settled jurisprudence on the determination of damages in a lost chance of a better outcome case. In analyzing the issues presented in this case, we must first examine the theory of lost chance of survival and lost chance of a better outcome in the context of medical malpractice cases, the nature of loss of chance damages, and the methodology for determining them.

Medical malpractice has been defined by La. Rev. Stat. 40:1299.41(A)(8) as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

La. Rev. Stat. 9:2794(A)(3) provides that the plaintiff in medical malpractice actions has the burden of proving by a preponderance of the evidence that as a proximate result of the lack of knowledge or skill or failure to exercise the degree of care required, the plaintiff suffered injuries that would not otherwise have been incurred. Thus, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician's alleged negligence and the plaintiff's injuries resulting therefrom. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 2 (La. 10/17/94), 643 So.2d 1228, 1230

The loss of a chance of a better outcome is a theory of recovery recognized in Hastings v. Baton Rouge General Hosp. , 498 So.2d 713 (La. 1986). See also Martin v. East Jefferson General Hosp. , 582 So.2d 1272 (La. 1991). It is not a separate cause of action distinct from a statutory malpractice claim. See Bailey v. Knatt , 16-1130 (La. 10/10/16), 207 So.3d 407. Under this theory of recovery, a plaintiff may carry his burden of proof by showing that the defendant's negligence was a substantial factor in depriving the patient of some chance of life, recovery, or, as in the instant case, a better outcome. The negligence need not be the only causative factor, but it must have increased the harm to the patient. Hastings, 498 So.2d at 720. Consequently, the plaintiff does not have to shoulder the burden of proving the patient would have survived if properly treated; he need only demonstrate the decedent had a chance of survival or recovery that was denied him as a result of the defendant's negligence. Pfiffner, 94-0924, 94-0963, 94-0992, p. 2, 643 So.2d at 1230 ; Martin, 582 So.2d at 1278.

The seminal case from this court is Smith v. State, Dept. of Health and Hospitals , 95-0038 (La. 6/25/96), 676 So.2d 543. We explained as follows:

The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant's negligence and the value of that loss. The question of degree may be pertinent to the issue of whether the defendant's negligence caused or contributed to the loss, but such a tort-caused loss in any degree is compensable in damages.
Allowing recovery for the loss of a chance of survival is not...a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compensable injury caused by the defendant's negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that distinct loss.
Thus, in a medical malpractice case seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor's action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case.

Smith , p. 6, 676 So.2d at 547 [footnotes omitted; emphasis supplied].

Regarding the calculation of damages and the nature of such damages in a loss of chance of survival case, this court in Smith specifically instructed "the factfinder-judge or jury-to focus on the chance of survival lost on account of malpractice as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages." Smith , p. 7, 676 So.2d at 547. The Smith court held that "full recovery is not available for deprivation of a chance of survival of less than fifty percent." Id. The Smith court explained that "[t]o allow full recovery would ignore the claimants' inability to prove by a preponderance of the evidence that the malpractice victim would have survived but for the malpractice, which is a requirement for full recovery." Id. , 7-8, 676 So.2d at 547. The loss of a less-than-even chance of survival is "a distinct injury compensable as general damages" that cannot be calculated with mathematical certainty; thus, the factfinder must make a "subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimants for that particular cognizable loss." Id. , p. 9, 676 So.2d at 548. The jury must consider "the same evidence considered by a jury in a survival and wrongful death action, and the loss-of-chance jury then reaches its general damages award for that loss on that evidence as well as other relevant evidence in the record." Id. , p. 11, 676 So.2d at 549. The jury may consider "all the evidence, including expert medical testimony regarding the percentage chances of survival,...to value directly the lost chance...." Id.

This court reaffirmed its decision in Smith that loss of chance damages are general in nature and extended the loss of chance theory of recovery to claims not only based upon the death of the patient but also to a loss of a chance of a better outcome. Graham v. Willis-Knighton Medical Center , 97-0188 (La. 9/9/97), 699 So.2d 365. The Graham court held that the loss of a chance to save a limb from amputation is a "distinct injury compensable as general damages," and that full recovery for the loss of the limb was not allowed when the chance of saving the limb from amputation is less than fifty percent. 97-0188, p. 16, 699 So.2d at 373. See also Hargroder v. Unkel , 39,009 (La. App. 2 Cir. 10/29/04), 888 So.2d 953, writ denied , 04-2908, 042909 (La. 2/4/05), 893 So.2d 874 (applying Smith and finding the jury erred in failing to consider the degree of loss of chance of a better outcome and to award a lump sum for that element of damage, as is done in any other item of general damages).

Turning to the issues presented in this case, we first find the court of appeal erred in concluding the jury's answers to Question Nos. 1 through 6 were inconsistent or fatally flawed. The parties negotiated and accepted the Verdict Form, and, as the court of appeal noted, the record "is unclear if there was sufficient objection to, or argument for, any proposed jury interrogatory." Burchfield , 51,459, p. 5, 224 So.3d at 1174. Our reading of Question Nos. 1 through 5 clearly shows they were related to plaintiffs' statutory malpractice claim, which required the plaintiffs to prove, by a preponderance of the evidence, that the defendant's breach of the standard of care was a substantial factor in causing Mr. Burchfield's injuries. Thus, to prevail on their claim, the plaintiffs were required to prove that the defendant's negligence in failing to review the preoperative tests caused injury to the plaintiff's heart to such an extent that a heart transplant was necessary, rather than a heart bypass. The thrust of the plaintiffs' claim was that, had Dr. Wright called for a cardiology consult prior to the gallbladder surgery, Mr. Burchfield would have forgone the surgery and at that time would have been a suitable candidate for a heart bypass ; but, by failing to request the consult and proceeding with the surgery, Dr. Wright caused further damage to Mr. Burchfield's heart necessitating a heart transplant.

Clearly, the jury found the plaintiffs failed to make that showing by a preponderance of the evidence. The court of appeal may have implicitly found the jury's determination in this regard was not interdicted by the "inconsistent answers" to the verdict form. See Burchfield , pp. 5-6, 224 So.3d at 1174 ("Notably, in this case, the legal error in the verdict form did not affect all of the jury's findings, i.e., the jury's determination whether [Mr. Burchfield] suffered a lost chance of a better outcome-the record clearly supports that. The problem lies with the determination of the monetary amount of damages for that lost chance...."). Regardless, the court of appeal should have applied a manifest error standard of review to the jury's finding that the surgeon's breach of the standard of care did not cause the heart attack ultimately necessitating the heart transplant. Had it done so, the court of appeal would have concluded, as we do, that there was no manifest error in the jury's finding in that regard.

After finding insufficient proof of the plaintiffs' statutory malpractice claim, the jurors were appropriately directed to disregard Question Nos. 2 through 5, which concerned damages recoverable in a statutory medical malpractice claim, and to proceed to Question No. 6, which was related to the plaintiffs' alternative theory of loss of a chance of a better outcome. To that inquiry, the jury answered in the affirmative, and then was directed to Question No. 7 to award an amount of damages for the loss of a chance of a better outcome. The jury did so, awarding $680,000.00 as a lump sum general damages award.

We find no inherent conflict in the jury's answers to the interrogatories, and the closing arguments by counsel to the jurors certainly expounded upon the precise issues presented to the jury for resolution. The jurors were asked to determine whether the plaintiffs had sufficiently proven that Dr. Wright's negligence had caused the injuries necessitating a heart transplant, and the jury determined the plaintiffs did not meet their burden of proof. The jury was then asked to determine whether Dr. Wright's negligence had deprived the plaintiff of a chance of a better outcome, and the jury responded that it had. The jury then awarded a lump sum general damages award, after considering all the evidence of damages presented by the plaintiffs. There was no jury confusion here, and as the trial judge had anticipated, the jury was able to understand and resolve the issues presented to it. Moreover, as the court of appeal itself specifically concluded, the record clearly supports the jury's determination that Mr. Burchfield suffered a lost chance of a better outcome. Burchfield , 51,459, p. 6, 224 So.3d at 1174. The Patient's Compensation Fund essentially concedes there was sufficient proof of a loss of a chance of a better outcome, though it has argued for a reduced lump sum award.

Where the court of appeal further erred, which prompted our grant of supervisory writs, was in the determination of damages allowed for lost chance of a better outcome. The court of appeal declined to follow clear and established jurisprudence from this court, set forth in Smith and Graham , supra . Instead of reviewing the jury's award under that jurisprudence, the court of appeal instead conducted a de novo review based upon a faulty premise regarding the jury interrogatories, and awarded not only general damages, but also separate awards of past medical expenses, lost wages, and future medical expenses.

The court of appeal found the jury had not been given adequate instructions on the verdict form or in the jury charge on how to quantify the damages for lost chance of a better outcome, and questioned whether any part of the award was intended to compensate emotional distress, lost wages, loss of consortium, or past medical expenses. Burchfield , 51,459, pp. 7-8, 224 So.3d at 1175-76. The appellate court, though it properly referred to this court's opinion in Smith, supra , nonetheless, relied on Bianchi v. Kufoy , 2010-607 (La. App. 3 Cir. 12/8/10), 53 So.3d 530, for the premise that in calculating an award for lost chance of a better outcome, a jury may consider what otherwise would be elements of special damages, such as lost wages, and past, present and future medical expenses. Consideration of such damages may be appropriate, keeping in mind that a lost chance of a better outcome envisions a less than 50% chance, and thus not full recovery. But the court of appeal did not stop there. Despite jurisprudence from its own circuit, see Hargroder v. Unkel, supra , note 2, it opined that lump sum damages for a lost chance of a better outcome "may include special damages to adequately compensate a patient, and that 'lump sum' damages should not be limited to the cap for general damages established by the Medical Malpractice Act." Burchfield , 51,459, p. 8, 224 So.3d at 1175.

There is no support for such a conclusion in this court's specific jurisprudence on the issue of the calculation of damages for lost chance of a better outcome. Moreover, to the extent that the Bianchi court's decision might support the court of appeal's approach, we disapprove of that rationale. As we explained in Graham :

When the chance of survival (or in this case of saving the leg from amputation) is less than fifty percent, the court may not award full damages for the loss of life (or loss of the leg). Smith v. State, Dept. of Health and Hosp., 95-0038 (La. 6/25/96), 676 So.2d 543 (1996). Rather, the factfinder, judge or jury, focuses on the chance of survival (or the chance of saving the leg) that has been lost because of the malpractice and "value[s] the lost chance as a lump sum award based on all the evidence in the record, as i[s] done for any other item of general damages." 95-0038 at 7, 676 So.2d at 547. The "loss of a less-than-even chance of survival [or chance of saving a limb] is a distinct injury compensable as general damages which cannot be calculated with mathematical certainty, ... [and] the factfinder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimants for that particular cognizable loss." 95-0038 at 9, 676 So.2d at 548. "The jury's verdict of a lump sum amount of damages can be tested on appeal for support in the record by reviewing the percentage chances and the losses incurred by the tort victim and his or her heirs, and any other relevant evidence, thus providing assurance against speculative verdicts." 95-0038 at 11, 676 So.2d at 549.
Graham , 97-0188, p. 17, 699 So.2d at 373.

The court of appeal in this case failed to apply our jurisprudence in reviewing the jury's lump sum award. The jury was properly charged that it could consider all factors of damages in fashioning a lump sum award for lost chance of a better outcome, including past and future medical expenses and general damages. That charge included:

In a medical malpractice action in which damages are sought for loss of any chance of a better outcome, the fact finder should make a subjective determination of the valuable [sic] of that loss, fixing the amount of money that would adequately compensate the claimants, which may include considering all the evidence of percentages of chance of a better outcome.

The court of appeal was correct that the record contains evidence of the total damages incurred by the plaintiffs: medical expenses for the transplant totaled $692,850.64; medications as a result of the transplant total $1,718.78 per month, with $1,202.77 per month for anti-rejection medication; future medical protocols as necessary for heart transplant recipients; and lost wages of $493,020.00. The court of appeal "affirmed" the trial court's award of general damages of $400,000.00, noting in detail the suffering of the plaintiff and his wife, but recognizing the trial court's application of the Louisiana Medical Malpractice Act's limitation on the total amount recoverable by the plaintiffs. In closing argument, the plaintiffs had argued that general damages for Mr. Burchfield should be between $750,000.00 to $1,000.000 and loss of consortium for Mrs. Burchfield should be between $50,000 and $75,000. As for the value of the lost chance of a better outcome, the plaintiffs argued to the jury that it should be 49% of the total damages, or roughly $1,000,000. Although the jury did not specifically determine a percentage of a better outcome lost by the plaintiffs due to the defendant's failure to review the pre-operative tests, nor was it required to do so, it obviously found a significant percentage for a better outcome was lost when it valued the lost chance of a better outcome at some 35% of the total of the damages award sought by the plaintiffs. Given our review of the record testimony, we cannot say that the amount of $680,000.00 awarded by the jury as a "lump sum" in the nature of general damages was an abuse of the jury's discretion in making such an award. See Graham, supra .

CONCLUSION

For the reasons set forth above, we reverse the decision of the court of appeal and reinstate the jury verdict and the judgment of the district court, awarding the plaintiffs $680,000.00 for the lost chance of a better outcome, and applying the Louisiana Medical Malpractice Act's limitation on the total amount recoverable by the plaintiffs to reduce that amount to $500,000.00, plus judicial interest and costs, subject to a credit for the $100,000.00 paid by the defendant physician.

REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED AND AFFIRMED

      The Panel was composed of two general surgeons and an anesthesiologist. The Panel's opinion did not specify what the "resultant damages" entailed.

      Redesignated as La. Rev. Stat. 40:1231.1(A)(13) by H.C.R. No. 84 of the 2015 Regular Session.

      In Hargroder 888 So.2d 953, 957-58, the Second Circuit explained:
      The damage claimed in this case, loss of a chance of a better medical outcome, has its basis in cases dealing with loss of a chance of survival. Smith v. State Department of Health and Hospitals , 95-0038 (La. 6/25/96), 676 So.2d 543. The issues in a loss of a chance of survival case are whether the tort victim lost any chance of survival because of the defendant's negligence and the value of that loss. The question of degree may be pertinent to the issue of whether the defendant's negligence caused or contributed to the loss, but such a tort-caused loss in any degree is compensable in damages. In such cases, the factfinder is to focus on the chance of survival lost on account of malpractice as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages. Smith v. State Department of Health and Hospitals, supra .

      It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue , 365 So.2d 1330, 1333 (La.1978) ; Canter v. Koehring , 283 So.2d 716, 724 (La.1973).
      The testimonial evidence was conflicting on whether Mr. Burchfield would have been a candidate for a heart bypass, rather than a heart transplant, prior to the gallbladder surgery. As the plaintiffs concede, there was conflicting testimony as to whether the laparoscopic gallbladder surgery itself had directly caused the subsequent heart attack or if the surgery had caused the worsening condition that caused the subsequent heart attack. Moreover, as both the plaintiffs and the court of appeal noted, there was also conflicting testimony among the experts as to whether Mr. Burchfield would have even been a candidate for a heart bypass at the time of the gallbladder surgery. Though the plaintiffs' various experts testified Mr. Burchfield might have been a candidate for heart bypass had a cardiac consult been requested prior to the surgery, the defendant's expert testified otherwise, believing Mr. Burchfield's heart was already too damaged prior to the surgery to be suitable for heart bypass surgery and that only a heart transplant was available to him at that time. See Burchfield , 51,459, pp. 8-9, 224 So.3d at 1175. The plaintiffs have argued that the testimony of the defendant's expert was not credible, while the defendant has pointed out that its expert was the only witness who had performed coronary artery bypass surgeries and also the only witness to have reviewed the heart necropsy report. Regardless, even the court of appeal ultimately reviewed this case under the theory of lost chance of a better outcome rather than a statutory malpractice case. Accordingly, because the testimonial evidence was conflicting as to whether Dr. Wright's negligence caused Mr. Burchfield to have a subsequent heart attack requiring a heart transplant rather than a heart bypass, we find no manifest error in the jury's determination that the plaintiffs failed to carry their burden of proof in that regard.

      In Bianchi , the trial court had determined the physician had breached the standard of care, but that the plaintiff had failed to prove causation. On appeal, the court concluded the plaintiff had proven the physician's negligence had caused the plaintiff a lost chance of a better outcome. The Bianchi court quoted Hargroder v. Unkel, supra , which had relied on our decision in Smith to explain how to value a lost chance as a lump sum award. The plaintiffs sought $176,333.84 in past and future medical expenses and $2,150,000.00 in general damages "subject to the Medical Malpractice cap of $500,000.00." Bianchi , 10-0607, pp. 8-9, 53 So.3d 530. Nevertheless, without specifically discussing the imposition of a "lump sum" general damage award for lost chance of a better outcome, the Bianchi court, in calculating damages, reviewed previously incurred medical expenses, as well as the possibility of future medical expenses, and awarded $100,000 in past and future medical care and related expenses. It then awarded $300,000 in general damages and loss of consortium damages. Thus, the court awarded $400,000 for special and general damages. The Bianchi court did not address whether the Medical Malpractice Act's limitation on recoverable damages would apply, presumably because the total award did not exceed the Medical Malpractice Act's limitation. The Bianchi court certainly did not award the full damages requested by the plaintiffs, and thus may have implicitly accounted for the lost percentage of a better recovery in fashioning its ultimate "lump sum" award of $400,000. Nevertheless, to the extent the Bianchi decision may be interpreted contrary to our holdings in Smith and Graham , we disapprove of that decision.