author: Levine, J.

text:
    Victor CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-985
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

To convict appellant of the crime of racketeering, the state must prove, in part, that appellant participated in a pattern of racketeering activity. A pattern of racketeering activity is defined as engaging in at least two incidents of racketeering conduct with the last incident having occurred within five years of the first incident. § 895.02(4), Fla. Stat. (2007). In this case, the only two acts that occurred within five years of each other occurred on the very same day. We find that the two predicate acts committed on May 27, 2006-battery and possession of cocaine-are not two separate incidents for the purposes of sustaining a conviction of racketeering. Thus, we reverse and remand for the trial court to vacate appellant's conviction for racketeering.

Appellant was convicted of racketeering based on three predicate acts. The first act, which occurred on July 9, 2000, was resisting an officer without violence. The second and third acts both occurred on May 27, 2006. On May 27, 2006, appellant was initially arrested for battery and then found to be in possession of cocaine.

Appellant filed a direct appeal with this court, but counsel failed to raise any argument as to the more than five-year gap between the 2000 and 2006 predicate acts. Castillo v. State , 170 So.3d 112 (Fla. 4th DCA 2015). Appellant then filed a petition for writ of habeas corpus based on ineffective assistance of appellate counsel. Castillo v. State , 213 So.3d 930 (Fla. 4th DCA 2017). In his petition, appellant challenged only his conviction for racketeering. He did not challenge his conviction for conspiracy to commit racketeering. We found that appellate counsel was ineffective for failing to argue that the two predicate incidents proven did not occur within five years of one another and granted a new appeal only as to the racketeering conviction. Id. at 932.

Whether appellant's two acts committed at the same time constitute distinct predicate incidents under the racketeering statute is a question of law subject to de novo review. Allen v. State , 82 So.3d 118, 120 (Fla. 4th DCA 2012).

Appellant contends that two criminal offenses committed at the same time cannot constitute two separate incidents of racketeering conduct. The state acknowledges that it cannot sustain a racketeering conviction based on the 2000 incident, as it occurred more than five years before the next incident. However, it maintains that the two 2006 offenses-battery and possession of cocaine-are sufficiently unrelated so as to constitute two separate incidents despite their temporal proximity to one another.

A defendant may be convicted of racketeering when he is associated with an enterprise and participates in that enterprise through a pattern of racketeering activity. § 895.03(3), Fla. Stat. A "pattern of racketeering activity" is defined as

engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

§ 895.02(4), Fla. Stat.

This court has previously addressed whether two or more criminal acts committed at the same time constitute separate incidents of racketeering conduct. In State v. Marks , 758 So.2d 1131, 1138 (Fla. 4th DCA 2000), the defendant was alleged to have uttered four perjurious statements over the course of a single deposition. We concluded that while each perjurious statement might qualify as a separate criminal act, the deposition during which they occurred was a single incident of racketeering conduct. Id. Because the statute requires at least two predicate incidents of racketeering conduct, we held that there was no basis for a racketeering charge. Id.

"Incidents" of racketeering conduct under Florida law differ from the predicate "acts" sufficient to sustain a conviction under the federal RICO statute. State v. Russo , 493 So.2d 504, 505 (Fla. 4th DCA 1986). Indeed, this court has determined that, by using the term "incidents," the Florida legislature must have intended to capture a narrower range of conduct than "acts" as used in the federal statute. Id. ; see also State v. Lucas , 600 So.2d 1093, 1095-96 (Fla. 1992) ("[U]nlike cases brought under the federal act, crimes committed at the same time cannot qualify as separate incidents for purposes of proving racketeering conduct under the Florida act."). Thus, at least under the Florida RICO statute as applied to the facts of this case, multiple crimes committed at the same time qualify as only one predicate incident. Castillo , 213 So.3d at 931 n.1.

Also instructive on this point is Watts v. State , 558 So.2d 142 (Fla. 3d DCA 1990). There, the state sought a racketeering conviction based solely on two offenses-in that case, kidnapping and robbery-arising out of a single incident involving a liquor truck. Id. at 143. Citing Russo , the Third District concluded that the kidnapping and robbery were part of a single incident and could not be separated so as to support a racketeering conviction. Id. at 144. The same occurred here, as appellant was found to be in possession of cocaine at the same time as the battery. His possession and battery therefore constituted a single incident. See id.

We find that the state did not prove an essential element of the crime of racketeering: the element requiring that the state prove two incidents of enumerated racketeering conduct within a five-year period. All the state proved in this case was that appellant committed two crimes on one day constituting one incident of racketeering activity. Without a second incident, the state has not proven its case. As such, the trial court erred in not granting judgment of acquittal as to the charge of racketeering. We therefore reverse with directions for the trial court to vacate appellant's conviction for one count of racketeering.

Reversed and remanded with instructions.

Taylor and Forst, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Jerod HARPER, Appellee.
    No. 4D17-1251
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon and Joseph Kimok, Assistant Regional Counsels, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   Levine, J.

In this case, we confront the contours of objective entrapment, which exists when governmental conduct is so "outrageous" as to violate established concepts of due process. We also examine subjective entrapment, which centers on whether the defendant was induced to commit the crime and whether the defendant had a lack of predisposition to commit the offense. We find no objective entrapment because law enforcement did not engage in such "outrageous" conduct to offend "decency or a sense of justice." We further find no subjective entrapment as a matter of law. Rather, the issue of subjective entrapment presented a question of fact that is properly for the jury. Therefore, we reverse the order dismissing charges against the defendant based on entrapment and remand for the trial court to reinstate the charges.

The Violent Intervention Proactive Enforcement Response unit ("Unit") of the Broward Sheriff's Office ("BSO") created the "Hotel Scenario" as part of a reverse sting operation. The Hotel Scenario involved the use of a confidential informant ("CI") to identify people who were actively committing crimes. Once the Unit approved the subject of the investigation, the CI would tell the subject that she has a friend who cleans hotel rooms. The CI would then explain that, while cleaning a room that appeared to be occupied by drug dealers, the friend saw money, jewelry, and drugs, including a kilo of cocaine, in the safe. Next, the friend would offer to provide the room key for someone to commit a burglary, but did not want to be involved herself because she was known at the hotel. If the subject agreed to the burglary, the CI would inform the subject that the friend would drive them and show them the room.

The CI used in this case had a substantial assistance agreement with BSO. The defendant and the CI had known each other since middle school but had not seen each other in several years. The defendant found the CI on Facebook and initiated communications with her via text message.

The CI identified the defendant as a potential target and told the Unit that he had been actively committing burglaries. The Unit reviewed the defendant's criminal history. At the time the CI identified the defendant as a potential target, the defendant had recently been released from prison and was on probation for burglary of a dwelling, dealing in stolen property, and grand theft. The defendant also had a lengthy juvenile record involving burglary, narcotics, and theft.

After the Unit approved the defendant as a subject of this investigation, the CI presented the "Hotel Scenario" to the defendant through an exchange of text messages. The CI asked the defendant if he wanted to make a "kum up" with her, indicating that she wanted to commit a crime. The defendant asked what they had to do and how they were going to make the money. The CI responded that her friend who works in a motel found items in a safe. The defendant asked why the CI needed him, and she responded that she needed someone to lift the safe. The defendant asked what was in it for him. The CI responded a "[h]alf split" "[a]nd an entire day 2 chill wit me;-)." The defendant said that he was in and asked what time. He also said that the CI would have to get him drunk first. The CI responded that he might have to take a few shots because "bizness iz bizness" for her. She then said that afterwards she would buy him drinks because she wanted to go out and celebrate since it was a lot of money. The defendant again stated that he was in. After confirming that the hotel did not have functioning cameras and that the CI would have a car, the defendant stated that he would be ready.

Over the next two weeks, the CI and the defendant continued to exchange text messages. The defendant asked on multiple occasions when they were going to commit the crime. The CI also confirmed on several occasions that the defendant still wanted to commit the crime. In one text message, the defendant told the CI that he wanted to perform a sexual act on the CI, and the CI responded, "Lmao," which is an abbreviation for "laughing my a-- off." After several more days of texts messages, the CI finally texted the defendant to ask if he was ready to commit the crime. He said he was.

The CI and her "housekeeper friend"-who was actually an undercover officer-picked the defendant up and drove to the hotel. This was the first time the defendant saw the CI in person since contacting her on Facebook. The undercover officer gave the defendant the key to the hotel room, which contained money, jewelry, fake cocaine, and half a kilo of cocaine locked in a safe. All of the items in the hotel room were placed there by the sheriff's office. Once inside the room, the defendant went straight for the safe, removed it from the room, and put it in the car. He then went back in and took the currency, jewelry, and fake cocaine.

After his arrest, the defendant waived his Miranda rights. He admitted that the CI did not promise sexual relations or to be his girlfriend in exchange for his commission of the burglary.

Subsequently, the defendant was charged with trafficking in cocaine, burglary of a dwelling, and grand theft. The defendant filed a motion to dismiss based on subjective and objective entrapment. He testified that while he was on probation, he was not committing any crimes and did not have any intention to commit any crimes. The defendant thought a sexual relationship with the CI could be an option or a possibility. On cross-examination, however, the defendant again admitted that the CI never promised him sexual relations or to be his girlfriend.

The trial court granted the motion to dismiss. The trial court found subjective entrapment because the CI, a government agent, induced the defendant with a promise to spend time with him and the defendant was not predisposed to commit this crime. As to objective entrapment, the court found that BSO provided all of the elements of the crime committed by the defendant.

The standard of review of an order dismissing the charging document is de novo. Senger v. State , 200 So.3d 137, 143 (Fla. 5th DCA 2016).

1. OBJECTIVE ENTRAPMENT

We begin our analysis with a discussion of objective entrapment. "Objective entrapment analysis focuses on the conduct of law enforcement and operates as a bar to prosecution in those instances where the government's conduct so offends decency or a sense of justice that it amounts to a denial of due process." State v. Henderson , 955 So.2d 1193, 1194 (Fla. 4th DCA 2007) (citation and internal quotation marks omitted). "[I]n the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution." Munoz v. State , 629 So.2d 90, 99 (Fla. 1993).

"Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent." Bist v. State , 35 So.3d 936, 940 (Fla. 5th DCA 2010). In contrast, "creating nothing more than an opportunity to commit a crime is not prohibited." State v. Laing , 182 So.3d 812, 817 (Fla. 4th DCA 2016). "Law enforcement may provide the facilities necessary to carry out the crime, and the mere use of deceit does not violate due process." Bist , 35 So.3d at 940.

Florida courts have found objective entrapment only in a few circumstances where law enforcement's actions rose to the level of "outrageous" government conduct. See Madera v. State , 943 So.2d 960, 962 (Fla. 4th DCA 2006) (finding due process violation where a CI made promises of an intimate relationship, including sexual relations, if defendant assisted her in obtaining drugs); Farley v. State , 848 So.2d 393, 397-98 (Fla. 4th DCA 2003) (finding due process violation where taskforce illegally manufactured child pornography with intent to lure defendant into purchasing such material); Soohoo v. State , 737 So.2d 1108, 1111 (Fla. 4th DCA 1999) (finding a due process violation where an undercover agent offered defendant a consignment arrangement for the sale of drugs); State v. Finno , 643 So.2d 1166, 1169 (Fla. 4th DCA 1994) (finding due process violation where government agents investigated defendant for several months and, after finding no evidence of criminal activity, showed defendant how to conduct a loansharking operation); State v. Williams , 623 So.2d 462, 466 (Fla. 1993) (finding due process violation where law enforcement illegally manufactured crack cocaine for use in a reverse sting operation).

In finding that BSO violated the defendant's due process rights, the trial court relied on Finno . That case is clearly distinguishable because in Finno , government agents showed the defendant how to conduct a loansharking operation after investigating the defendant for several months and finding no evidence of prior criminal activity. 643 So.2d at 1170. Unlike in Finno , where the defendant was unfamiliar with how to run a loansharking operation, in this case the defendant had a criminal history involving burglaries and BSO did not teach the defendant how to commit a burglary. The defendant, for example, knew to wipe off his fingerprints at the crime scene.

This case is more akin to State v. Blanco , 896 So.2d 900 (Fla. 4th DCA 2005) (en banc). In Blanco , law enforcement received information that drugs were being sold at a bar. An undercover officer went to the bar and sat next to the defendant. The officer told the defendant that he liked to "party," meaning that he liked to use cocaine. After going to the restroom, the defendant told the officer that no one was selling cocaine, but someone was selling "crystal meth." The officer gave money to the defendant, who returned with the drugs. The trial court found that the officer indicated he was socially interested in the defendant by approaching the defendant while he was sitting alone at a bar and striking up a conversation. The trial court concluded this violated due process and dismissed the charges. This court reversed, however, finding that the government's actions did not rise to the level of outrageous conduct required to support a finding of entrapment on due process grounds. Id. at 902. Rather, law enforcement officers merely utilized undercover officers to find dealers after being alerted that drugs were being sold at the bar. Id.

In this case, law enforcement did not engage in the level of outrageous conduct required to support a finding of objective entrapment. Although predisposition of the defendant is not a factor in objective entrapment analysis, see Laing , 182 So.3d at 816, in this case law enforcement presented the defendant with the "Hotel Scenario" only after being informed that the defendant was committing burglaries and confirming that the defendant had a history of committing burglaries. Further, unlike in Madera , 943 So.2d at 962, which found a due process violation where the CI made an explicit promise of sexual relations in exchange for assisting in the commission of the crime, here the defendant admitted that the CI did not make any explicit promises of a sexual relationship.

Federal courts have also declined to find outrageous government conduct in scenarios involving reverse sting operations similar to that employed in this case. See United States v. Cazy , 618 Fed.Appx. 569, 572 (11th Cir. 2015) (finding no outrageous conduct where government agent contacted defendant, after CI advised that defendant was involved in drug-related robberies, and told defendant where drug traffickers kept their cocaine in exchange for defendant promising agent share of stolen cocaine); United States v. Blitch , 773 F.3d 837, 844-45 (7th Cir. 2014) (finding no entrapment where agents, as part of sting operation, promised defendants large sum of money and drugs if they robbed stash house); United States v. Lopez-Mejia , 510 Fed.Appx. 561, 563 (9th Cir. 2013) (finding no outrageous conduct in setting up sting operation with fictional stash house to catch criminals involved in home invasion robberies); United States v. Maurino , 379 Fed.Appx. 861, 862-63 (11th Cir. 2010) (finding no inducement where undercover officer set up reverse sting operation and provided defendant with opportunity to rob cocaine from fictitious stash house; defendant immediately showed interest in participating in the crime and declined invitations to back out of the plan).

In this case, law enforcement simply conducted a reverse sting operation providing the defendant with the means and opportunity to engage in a burglary, and he agreed to participate. Due process was not violated since the state's conduct in this case did not amount to the type of "outrageous" conduct prohibited by the Florida and United States Constitutions.

2. SUBJECTIVE ENTRAPMENT

We next turn to the question of subjective entrapment. Subjective entrapment "is applied in the absence of egregious law enforcement conduct and focuses on inducement of the accused based on an apparent lack of predisposition to commit the offense." Henderson , 955 So.2d at 1194. (citation omitted). Florida Statutes codify the subjective entrapment defense, which provides:

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it .
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

§ 777.201, Fla. Stat. (2014) (emphasis added). Thus, under the three-part test to determine if there is subjective entrapment, one must consider (1) whether a government agent induced the defendant to commit the crime charged; (2) whether the defendant was predisposed to commit the crime charged; and (3) whether the entrapment defense should be evaluated by the jury. Munoz , 629 So.2d at 99.

As to the first question, the defendant must prove by a preponderance of the evidence that an agent of the government induced him to commit the offense. Id. " 'Inducement' includes 'persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.' " Henderson , 955 So.2d at 1195 (quoting Farley , 848 So.2d at 395. "Inducement cannot be found by prompting or creating an opportunity." Marreel v. State , 841 So.2d 600, 603 (Fla. 4th DCA 2003).

The trial court found that the CI induced the defendant with "a promise of some kind of relationship through the promise of spending of additional time with the Defendant." As we have already noted, the CI's statement to the defendant that he would get to spend the day with her is clearly not the type of inducement that was condemned in Madera . The defendant would necessarily spend time with the CI in order to commit the crime. Additionally, the defendant admitted that the CI did not promise him a sexual relationship or to be his girlfriend. However, one could interpret this statement to mean that the CI would spend time with the defendant after the commission of the offense, especially since the CI offered to buy him drinks to celebrate. Because reasonable persons could draw different conclusions from the facts, the trial court cannot determine as a matter of law that the defendant was induced. See Munoz , 629 So.2d at 100 ; cf. Madera , 943 So.2d at 961-62.

As to the second element of subjective entrapment, the defendant must prove lack of predisposition. Munoz , 629 So.2d at 99. Predisposition is of paramount importance since, as Justice Cardozo stated, "The state has, indeed, no interest to be promoted by the prosecution of the innocent." Union Exch. Nat'l Bank of New York v. Joseph , 231 N.Y. 250, 131 N.E. 905, 906 (1921). Predisposition refers to "whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense." Munoz , 629 So.2d at 99. Once the defendant meets his burden of showing no predisposition, the burden shifts to the prosecution to rebut the defendant's evidence beyond a reasonable doubt. Id. Predisposition can be shown through evidence of the defendant's prior convictions. Id. ; Story v. State , 355 So.2d 1213, 1215 (Fla. 4th DCA 1978). "[P]redisposition to commit the offense can [also] be inferred from evidence that the defendant readily acquiesced in the commission of the proposed offense." Story , 355 So.2d at 1216 ; see also Gonzalez v. State , 571 So.2d 1346, 1350 (Fla. 3d DCA 1990) ("[T]he prosecution may prove predisposition by showing that the defendant had prior convictions for similar crimes ... or that the defendant showed ready acquiescence to commit the crime.") (citation and internal quotation marks omitted).

Although the defendant testified that he was not committing any crimes and did not have any intention to commit any crimes, the state presented evidence that the defendant readily agreed to the burglary, continued to communicate a desire to commit the burglary, and never wavered in his commitment. The CI did not put any pressure on the defendant and did not need to repeatedly ask him in order to get him to agree to the crime. In fact, the defendant initially contacted the CI. Cf. State v. Ramos , 632 So.2d 1078, 1079 (Fla. 3d DCA 1994) (finding inducement where the CI contacted the defendant fifteen or sixteen times to convince him to get involved in the drug transaction). Additionally, the defendant had an extensive criminal history including, significantly, convictions for burglary and was on probation for burglary at the time of the crime. In light of the state's evidence rebutting the defendant's evidence of lack of predisposition, the trial court could not find inducement as a matter of law.

The third question is whether the issue of entrapment should be submitted to a trier of fact. Munoz , 629 So.2d at 100. Section 777.201 directs that the issue of entrapment be submitted to the trier of fact. Additionally, the first two questions under the subjective test ordinarily present questions of disputed facts to be submitted to the jury as the trier of fact. Munoz , 629 So.2d at 100.

[I]f the factual circumstances of a case are not in dispute, if the accused establishes that the government induced the accused to commit the offense charged, and if the State is unable to demonstrate sufficient evidence of predisposition prior to and independent of the government conduct at issue, then the trial judge has the authority to rule on the issue of predisposition as a matter of law because no factual "question of predisposition" is at issue.

Id. (citations omitted). Thus, the question of predisposition must be submitted to a jury "when factual issues are in dispute or when reasonable persons could draw different conclusions from the facts." Id.

Here, the trial court erred in holding the defendant was entrapped as a matter of law. Reasonable persons could draw different conclusions from the CI's statement that the defendant would get to spend the day with her. See id. Additionally, the defendant readily acquiesced in the commission of the crime and had an extensive criminal history. See State v. Aldrich , 448 So.2d 1254, 1254 (Fla. 4th DCA 1984) (finding trial court erred in holding defendants were entrapped as a matter of law where defendants readily acquiesced in the commission of the crime). Therefore, this matter should have been decided by the jury as a trier of fact. "The factual dispute between the State and the defendant prevents the resolution of subjective entrapment on a motion to dismiss. A jury may very well find the defendant not guilty on the basis of subjective entrapment. That, however, is a decision for another day." Blanco , 896 So.2d at 902.

In sum, law enforcement did not engage in the type of "outrageous" conduct required to constitute objective entrapment. Additionally, under the facts of this case, a court cannot determine as a matter of law whether the defendant was induced. Rather, in this case whether the defendant was subjectively entrapped presents a question for the jury as the trier of fact. Therefore, we reverse the dismissal order and remand for further proceedings.

Reversed and remanded.

Forst, J., and Artau, Edward L., Associate Judge, concur.

      The ;-) is an emoticon that is commonly understood to depict a "wink."


author: Conner, J.

text:
    Hilton M. WIENER, Appellant, v. THE COUNTRY CLUB AT WOODFIELD, INC., A Florida Corporation, Appellee.
    No. 4D17-2120
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Daniel A. Hershman of Hershman Law, P.A., West Palm Beach, for appellant.
    James N. Krivok of Dicker, Krivok & Stoloff, P.A., West Palm Beach, for appellee.
   Conner, J.

Hilton M. Wiener ("Wiener") appeals the final judgment against him in favor of The Country Club at Woodfield, Inc. ("Woodfield Club"). The issue we decide is whether the trial court erred in interpreting the pretrial stipulation in a manner that narrowed the factual issues to be tried pertaining to liability, resulting in the deprivation of a fair trial. From the record on appeal, we conclude that the trial court failed to consider the intent of the parties as evidenced by the statements within the pretrial stipulation and incorrectly interpreted the stipulation in a manner that limited the evidence at trial, denying Wiener a fair trial. For those reasons, we reverse.

Background

Woodfield Club is a corporation which operates a country club in a residential community. Wiener was a homeowner in the residential community, which obligated him and his wife to purchase a club membership, pursuant to the master declaration of covenants for the residential community.

From approximately February 2004 through May 2011, Wiener used facilities as a club member and paid all dues in accordance with invoices issued by Woodfield Club. However, starting in June 2011, Wiener stopped paying dues because he moved out of the home in response to his wife filing for divorce.

Article X, Section 18(b) of the master declaration of covenants provides for the transfer of membership obligations in the event joint homeowners divorce:

b. In the event Members are legally separated or divorced, title to the Membership, including all rights and benefits given to the holder thereof, shall vest in the spouse awarded the Membership by judicial determination or settlement, provided such spouse fulfills the eligibility requirements for Membership in the Club. Both of the divorced or legally separated Members shall be required to give written notice to the Club designating the person who is entitled to the rights and privileges of the Membership within five (5) days after the divorce or legal separation is declared final. Until written notice has been provided to the Club, both spouses shall remain responsible for the payment of all dues, fees, charges and assessments associated with the Membership. Upon termination of co-habitation, only one Member may use the Membership. If both parties fail to designate one person, the Membership privileges shall be determined as follows:
(1) The person resident in the Property shall be deemed to be the Member entitled to use the Club Facilities.

Wiener's wife was granted exclusive use of the home in January 2013, while their divorce was pending. The divorce became final in December 2013, at which time Wiener's interest in the home was awarded to the ex-wife. In July 2014, Wiener executed a quit claim deed transferring his interest in the home to his ex-wife. The ex-wife sold the house to a third party in June 2015, and the club membership for the property was transferred to the third-party purchaser.

Woodfield Club sued Wiener in July 2014 for breach of contract. Wiener filed an answer alleging that the court order awarding his ex-wife exclusive use and possession of the home and subsequent divorce decree denied him access to Woodfield Club and its facilities, therefore absolving him from any obligations. Upon the case being scheduled for trial, the parties filed a joint pretrial stipulation.

Section I of the pretrial stipulation was entitled: "Stipulated Facts Which Require No Proof at Trial." Paragraph P of Section II stated:

Defendant's obligation to pay dues, assessments and other charges due Plaintiff terminated on June 23, 2015.

June 23, 2015 is the date ownership of the house was transferred to the third-party purchaser, triggering membership requirements for the new owner.

Section III of the pretrial stipulation was entitled: "Issues of Law and Fact to be Determined at Trial." Paragraphs F, G, H, and I of Section III stated:

F. Whether Defendant's financial obligation to the Club pursuant to the Membership Agreement was terminated or extinguished by a final judgment of dissolution of Defendant's marriage to his former wife.
G. Whether the Court Order in Defendant's dissolution of marriage proceeding, which awarded Defendant's ex-spouse exclusive use and possession of the Harrington Way property, extinguished or altered Defendant's right to used Plaintiff's facilities under the Membership Agreement.
H. Whether the Court Order in Defendant's dissolution of marriage proceeding, which awarded Defendant's ex-spouse exclusive use and possession of the Harrington Way property, extinguished or altered Defendant's obligation to Plaintiff under the Membership Agreement.
I. Whether Defendant was obligated to pay dues, assessments and all other club charges accruing on Defendant's membership until Defendant's full golf membership was reissued by the Club to a new member pursuant to Plaintiff's Bylaws.

The non-jury trial was conducted by a judge who had not handled the case prior to trial. After the parties made their opening statements and while Woodfield Club was presenting its first witness, the trial judge interrupted examination of the witness to question why the case was proceeding to trial, based on stipulated facts the trial judge read in the pretrial stipulation. The trial judge interpreted the statement in Subsection P of the pretrial stipulation to mean that the parties had agreed that "the defendant's [Wiener's] obligation to pay dues, assessments, and other charges to the plaintiff [Woodfield Club] terminated on June 23, 2015" (the date the membership was transferred to the third-party purchaser), prompting the trial judge to ask, "What are we doing here?"

Wiener argued that the stipulation meant that the June 23, 2015 date was the outside date for liability, and that Subsection P had to be read in context with the other issues framed in the stipulation. The trial judge flatly rejected the argument, contending, "That's not what you stipulated to." Additionally, the trial judge asserted it was his understanding that in the Fourth District, "the pretrial stip controls over the pleadings and anything else." After concluding that Wiener's liability for charges owed for the membership was "a mathematical calculation," the trial judge ended discussion on the timeframe of Wiener's liability for dues and instructed Woodfield Club to provide a proposed judgment. The remainder of the trial was spent calculating the amount due. The trial court entered final judgment in favor of Woodfield Club. After his motions for rehearing and new trial were denied, Wiener gave notice of appeal.

Appellate Analysis

Wiener frames two primary issues on appeal, but we determine those can be consolidated into one issue: Whether the trial court correctly construed the pretrial stipulation when awarding a judgment in favor of Woodfield Club. Additionally, Wiener argues the trial court improperly denied his motions for rehearing and a new trial.

We conduct a de novo review of a trial court's interpretation of a written contract as a question of law "provided that the language is clear and unambiguous and free of conflicting inferences." Ciklin Lubitz Martens & O'Connell v. Casey , 199 So.3d 309, 310 (Fla. 4th DCA 2016) (quoting Commercial Capital Res., LLC v. Giovannetti , 955 So.2d 1151, 1153 (Fla. 3d DCA 2007) ). Pretrial stipulations are interpreted using the same principles for interpreting written contracts. See McGoey v. State , 736 So.2d 31, 34 (Fla. 3d DCA 1999) (citing contract law and explaining that the essence of a pretrial stipulation is "an agreement between the parties" requiring mutual assent).

Orders denying rehearing are reviewed for abuse of discretion. Allard v. Al-Nayem Int'l, Inc. , 59 So.3d 198, 201 (Fla. 2d DCA 2011). Appellate courts also "review orders on motions for new trial for an abuse of discretion." Cent. Square Tarragon LLC v. Great Divide Ins. Co. , 82 So.3d 911, 913 (Fla. 4th DCA 2011).

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980).

"Although [an appellate] court typically reviews the denial of motions for new trial under an abuse of discretion standard, the standard becomes de novo if, as a matter of law, the trial judge applies the incorrect legal standard in denying the motion." Collett v. State , 28 So.3d 224, 226 (Fla. 2d DCA 2010). Because the motions for rehearing and a new trial in this case are grounded in the argument that the trial court improperly interpreted the pretrial stipulation, the appropriate standard of review for the denial of those motions is de novo .

"When construing stipulations, a court should attempt to interpret it in line with the apparent intent of the parties." Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., LLC , 196 So.3d 557, 561 (Fla. 4th DCA 2016). As explained in Travelers Insurance Co. v. VES Service Co. , 576 So.2d 1349 (Fla. 1st DCA 1991) :

A stipulation ... must be carefully examined to determine whether the language used actually discloses a clear, positive, and definite stipulated fact. The statement should not be vague or ambiguous. Nevertheless, it should receive a construction in harmony with the apparent intention of the parties. It is not to be construed technically, but rather in accordance with its spirit, in furtherance of justice, in the light of the circumstances surrounding the parties, and in view of the result that they were attempting to accomplish. 2 Fla. Jur. 2d, Agreed Case and Stipulations, § 6 ; see Federal Land Bank of Columbia v. Brooks , 139 Fla. 506, 190 So. 737 (Fla. 1939).

Id. at 1350 (alteration in original)(emphasis added).

Wiener argues that the trial court refused to consider what the parties intended as to the issues to be tried, as expressed by the pretrial stipulation, and ignored the disputed facts that were detailed in the pretrial stipulation. He further argues that the parties understood a genuine dispute existed as to when his obligation to pay membership charges ended, and the intent of the language interpreted by the trial was to establish the outside date of the period in dispute.

Woodfield Club argues that the facts in the stipulation are binding on the parties, and that Wiener failed to seek relief prior to or at the commencement of trial from the improper selection of words in the stipulation. See Eagle FL VI SPE, LLC v. T & A Family P'ship, Ltd. , 177 So.3d 1277, 1280 (Fla. 2d DCA 2015). Thus, Woodfield Club argues that the trial court did not abuse its discretion.

However, our review of the record indicates that the trial court did not interpret the stipulation "in line with the apparent intent of the parties." See Utopia , 196 So.3d at 561. And, contrary to Woodfield Club's assertion, Wiener contested the interpretation, and Woodfield Club's attorney disingenuously stated he interpreted the stipulation the way the trial court did after the court announced its interpretation.

It is also evident that Woodfield Club clearly thought the June 23, 2015 date was the "outside limit" of liability. The stipulation was filed six months before trial, and Woodfield Club did not move for summary judgment on a contention that there was no dispute of material fact as to the period of liability. Further, as the trial court observed, going to trial made no logical sense, if Woodfield Club believed that Wiener agreed he was liable for dues until June 23, 2015. Moreover, Woodfield Club's assertion of agreement with the trial court's interpretation of the pretrial stipulation is belied by several of its own filings acknowledging a dispute concerning the date Wiener's obligations ended, as well as its statements at trial. For example, its response in opposition to Wiener's motion for summary judgment stated: "The summary judgment evidence before the Court establishes that there are material issues of fact as to when Defendant's obligation to pay dues actually ended ...." (emphasis added). Additionally, in its trial memorandum, Woodfield Club stated:

Based upon the foregoing irrefutable facts the evidence at trial will be conclusive that Defendant remained obligated to pay Club dues until at least July 18, 2014 because defendant was a record owner of the Woodfield Residence until that date.
...
Had Defendant notified the Club that the final divorce decree awarded the Woodfield Residence and the membership to [his ex-wife], the Club would have transferred the Club Membership to [his ex-wife] as of the date of the filing of the divorce decree (i.e. December 4, 2013) and at that point Defendant's obligation to pay dues would have come to an end.

(emphasis added).

Perhaps most tellingly, in its opening statement, Woodfield Club implicitly indicated that the end date for Wiener's liability was for the trial court to determine when it stated that the evidence would show that Woodfield Club was not notified (1) when Wiener's divorce became final, (2) when the house had been awarded to his ex-wife, or (3) that his ex-wife had filled out an application for membership, suggesting three possible dates for the termination of Wiener's liability.

Furthermore, paragraphs F, G, and H of Section III of the pretrial stipulation framed questions to be decided in terms of whether Wiener's financial obligation to pay for his membership or his right to enjoy the use of the facilities were "terminated," "altered," or "extinguished" by the final judgment of dissolution of marriage or the court order granting his ex-wife exclusive use and possession of the residence. Paragraph I framed the question as whether his obligation to pay for membership continued until Woodfield Club issued a new membership to the third-party purchaser of the residence. Those paragraphs within the pretrial stipulation are completely inconsistent with the notion that Wiener agreed his obligations continued until the third-party purchaser acquired the property.

All of these instances in which Woodfield Club acknowledged a dispute regarding the ending date of Wiener's obligations lead us to conclude that the trial court judge did not construe the stipulation "in accordance with its spirit, in furtherance of justice, in the light of the circumstances surrounding the parties, and in view of the result that they were attempting to accomplish." Travelers , 576 So.2d at 1350. Because the trial court did not take into account the intention of the parties, cutting off all argument regarding the intent of the stipulation, we determine that Wiener was denied a fair trial. Thus, we reverse the final judgment and remand the case for a new trial.

Reversed and remanded for a new trial.

Levine and Forst, JJ., concur.


author: Per Curiam.

text:
    Vincent WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-407
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Vincent Williams was convicted of willfully fleeing and attempting to elude a police officer in an authorized patrol vehicle, as well as resisting arrest without violence. He was ultimately sentenced on both counts, concurrently, to 364 days in jail followed by three years' probation, a one-year suspension of his driver's license, and a $1000 fine. In this appeal, he contends that the court erred in denying his motion for judgment of acquittal because the State failed to prove that the police were attempting to stop him in an authorized police vehicle which prominently displayed the agency insignia and other jurisdictional marking. We affirm on the authority of Dumais v. State , 40 So.3d 850, 852-53 (Fla. 4th DCA 2010) (finding evidence was sufficient to convict defendant of fleeing and eluding a police officer in an authorized patrol vehicle where officers testified that they were chasing the defendant in a "marked" police vehicle and defendant admitted that he knew he was fleeing from the police).

We reverse, however, the $1000 fine, because the State erroneously informed the court that the fine was mandatory. Section 316.1935(2), Florida Statutes (2016), under which appellant was prosecuted, does not include a mandatory fine. It is not clear that the court would have imposed the same fine had it known that the fine was not mandatory. On remand, the trial court may reconsider imposing a fine consistent with a third-degree felony conviction. See § 775.083(1)(c), Fla. Stat. (2016).

Reversed and remanded.

Warner, May and Forst, JJ., concur.


author: Taylor, J.

text:
    Marcus PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4278
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

After a jury trial, appellant was acquitted of second degree murder but convicted of two counts of dealing in stolen property.

We reverse and remand for a nunc pro tunc competency determination, if it is possible under the circumstances. As to all other issues raised, we affirm without further comment.

In June 2013, the trial court entered an order appointing an expert to determine appellant's competency to proceed. At the ensuing hearing, the trial court stated: "I have the competency report in the file. Says he's competent." The following exchange then took place:

[DEFENSE COUNSEL]: I'll stipulate, right, Marcus?
DEFENDANT: Yes.
THE COURT: Well, he's competent.

However, the trial court did not enter a written order finding appellant to be competent.

On appeal, appellant challenges the trial court's competency determination, arguing that the trial court erred by: (1) allowing the defense to stipulate as to his competency; (2) failing to hold a competency hearing or make an independent determination of competency; and (3) failing to enter a written order finding him to be competent.

The issue of whether a trial court fundamentally erred in failing to hold an adequate competency hearing is reviewed de novo. Presley v. State , 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

A defendant cannot stipulate to the ultimate issue of competency, as the trial court has the duty to make an independent determination of the defendant's competency to proceed. Dougherty v. State , 149 So.3d 672, 678 (Fla. 2014). However, when the parties agree, the trial court may determine the issue of competency on the basis of written reports alone. Id. at 679. If the trial court finds the defendant competent to proceed, it must enter a written order so finding. Id. at 678.

"A status hearing may constitute a sufficient competency hearing if the court reviews a written competency evaluation at the parties' direction and makes an independent finding that the defendant is competent to proceed." Presley , 199 So.3d at 1018. Moreover, "[t]he stipulation to determining the issue based on the expert's written reports may be inferred from the context." Rumph v. State , 217 So. 3d 1092, 1095 (Fla. 5th DCA 2017).

For example, in Charles v. State , 223 So. 3d 318 (Fla. 4th DCA 2017), we held that, although there was not an express stipulation to decide the issue of competency solely on the basis of the expert's report, it was apparent from the record that the parties and the judge had agreed to decide the issue of competency on the basis of the written report alone.

By contrast, where the parties have not agreed to decide the issue of competency on the basis of the expert's written report alone, it is error for a trial court to find the defendant competent based on the parties' stipulation to the defendant's competency. See S.B. v. State , 134 So.3d 528, 529-30 (Fla. 4th DCA 2014) (holding that the trial court erred in finding the defendant competent based on the parties' stipulation to the defendant's competency and the court's own review of the doctor's report, as "neither party stipulated to the contents and admission of the doctor's report," and there was never "any form of agreement between the parties and the judge to decide the issue of competency on the basis of the written report alone"); Hanna v. State , 232 So. 3d 1026, 1027, 2017 WL 4417732 (Fla. 4th DCA 2017) (holding that the trial court's reliance on the defendant's stipulation to his competency was erroneous, and declining to infer that the defendant stipulated to the contents of the report where "neither party specifically stipulated to the report , but instead, plainly stipulated to the competency").

The present case is governed by S.B. and Hanna . Here, the parties did not stipulate to the contents of the expert's report, and there was never any agreement between the parties to allow the judge to decide the issue of competency on the basis of the written report alone. Instead, appellant merely stipulated to the ultimate determination of competency. As our court has explained: "Although it can be argued that by stipulating to the report's determination of competency, the parties stipulated to the report and agreed to determine competency based on the report alone, there is nothing in the case law to suggest that such implicit stipulations and agreements are sufficient to satisfy rule 3.212." S.B. , 134 So.3d at 530.

Additionally, it is unclear whether the trial court made an independent determination of appellant's competency. Although the record reflects that the trial court reviewed the expert's report and made the statement, "Well, he's competent," the trial court's finding of competency may have been based, at least in part, on appellant's stipulation to his own competency. On this record, it is impossible to tell whether the trial court truly made an independent determination of competency.

In sum, under our court's case law, appellant's stipulation to his own competency did not constitute an agreement between the parties to allow the judge to decide the issue of competency on the basis of the written report alone. Thus, because the parties did not agree to decide the issue of competency on the basis of the written report alone and because it is unclear whether the trial court made an independent determination of appellant's competency, we reverse and remand for a nunc pro tunc competency determination, if it is possible. See , e.g. , Baker v. State , 221 So. 3d 637, 641-42 (Fla. 4th DCA 2017). If the trial court cannot make a retrospective competency determination or finds that appellant was incompetent to proceed, then the court must order a new trial.

Affirmed in part, Reversed in part and Remanded with instructions.

Levine and Forst, JJ., concur.

      In Charles , the parties never stipulated to the ultimate issue of competency, it was clear from the record that the trial court made an independent determination of competency based on the written report, and the parties declined the trial court's offer of addressing the competency issue further. Id. at 329-30.

      We note that the judge who presided at trial was not the same judge who determined appellant's competency in 2013. Additionally, the trial judge who determined appellant's competency did not have the benefit of the Florida Supreme Court's decision in Dougherty .


text:
    Allan J. DINNERSTEIN M.D., P.A., and Allan J. Dinnerstein, M.D., Appellants, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 4D17-2289
    District Court of Appeal of Florida, Fourth District.
    [September 26, 2018]
    Robert M. Presley of Presley and Presley, P.A., Wellington, for appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Shane Weaver, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Allan J. Dinnerstein, M.D. and his professional association, Allan J. Dinnerstein, M.D., P.A., appeal the trial court's judgment in favor of the Florida Department of Health ("FDOH"), which resulted in the denial of appellants' sovereign immunity claim in a medical malpractice action. Appellants based their claim of immunity on their alleged participation in Florida's Volunteer Healthcare Provider Program. For the reasons stated below, we affirm.

Earlier, appellants had obtained summary judgment declaring that they were entitled to sovereign immunity in the medical malpractice action. However, FDOH appealed, and we reversed summary judgment after concluding that triable issues existed regarding whether Dr. Dinnerstein was acting in his capacity as a volunteer physician when he treated the patient. Fla. Dep't of Health v. Allan J. Dinnerstein, M.D., P.A. , 78 So.3d 26 (Fla. 4th DCA 2011).

Our decision in Dinnerstein succinctly summarizes the underlying facts that led to the appeal:

In 2005, Dr. [Allan] Dinnerstein, M.D., through his corresponding professional association, entered into a contract with the defendant, the Florida Department of Health, whereby he agreed to participate in Florida's Volunteer Healthcare Provider Program. The Legislature enacted this program in section 766.1115, Florida Statutes, to improve the access of indigent residents to health care by offering health care providers immunity from suit for their agreement to offer free health care to indigent residents. See § 766.1115(2), Fla. Stat. (2005). A volunteer provider may not be named as a defendant in any malpractice action where the care is performed under the health care provider's contract with the Department. § 766.1115(4), Fla. Stat. (2005).
The statute mandates that "[p]atient selection and initial referral must be made solely by the governmental contractor, and the provider must accept all referred patients." § 766.1115(4)(d), Fla. Stat. (2005). "If emergency care is required, the patient need not be referred before receiving treatment, but must be referred within 48 hours after treatment is commenced or within 48 hours after the patient has the mental capacity to consent to treatment, whichever occurs later." § 766.1115(4)(e), Fla. Stat. (2005). The Department's standard contract, signed by Dr. Dinnerstein, contains language based on the statutory language of section 766.1115(4)(e). It requires that a designated agent of the Department must make the referral pursuant to Patient Referral Form, DH 1032, and the health care provider must obtain the approval of the Department prior to delivery of services. Consistent with the statute, the contract included the statutory language regarding emergency treatment.
The Patient Referral Form, DH 1032, informs the patient that the services of the volunteer health care professional are being provided at no charge and that the state is solely liable for any injuries and damages with its liability being limited by sovereign immunity. The patient must sign the form agreeing to the referral.
Diane Carlson, a nurse employed with the Palm Beach County Health Department, was in charge of the Volunteer Health Care Provider Program. Ms. Carlson testified that when Dr. Dinnerstein signed the contract, he was in private practice. However, Dr. Dinnerstein called Ms. Carlson, informing her that he was going to start working at Bethesda Memorial Hospital and that he was going to draw down on his private practice. Dr. Dinnerstein said that he no longer wanted to accept patients from the network. Nonetheless, Dr. Dinnerstein never withdrew from the network and his volunteer contract was still in effect in March 2007.
In 2007, Ludana Prophete was a patient receiving prenatal care at the Lantana clinic of the Palm Beach County Health Department, a designated agency for the Department. On March 5, 2007, Ms. Prophete arrived by ambulance at Bethesda Memorial Hospital in Palm Beach County, complaining of abdominal pain. This appears to be a self-referral and not one made by the clinic. Dr. Dinnerstein has not claimed that he is covered by immunity for his treatment of Ms. Prophete on this date. A nurse made a diagnosis that Ms. Prophete had potential preeclampsia. Dr. Dinnerstein was the physician on call at Bethesda, and he initially saw Ms. Prophete and rendered some treatment. Upon discharge, Ms. Prophete was instructed to return if she experienced other problems. She was also told to keep her next appointment with the Lantana clinic.
On March 8, 2007, Ms. Prophete went to the Lantana clinic for her appointment, where she was seen by a nurse, Sandra Smith. Based upon her examination and Ms. Prophete's complaints, Smith believed that Ms. Prophete was suffering from preeclampsia, which required immediate delivery. Smith called the Labor and Delivery Unit at Bethesda and notified the clerk of Ms. [Prophete's] situation. Smith then arranged for an ambulance to take Ms. Prophete to Bethesda, because that is where the clinic routinely sends its patients requiring hospitalization. On a prescription pad which Smith gave to the paramedics, Smith noted Ms. Prophete's vital signs as well as her symptoms. Smith did not know which physician was on duty, nor did she speak to any doctor regarding Ms. Prophete. She has no responsibility for referring patients to doctors pursuant to the volunteer health program.
Dr. Dinnerstein saw Ms. Prophete at Bethesda on March 8th, where her blood pressure was elevated. He gave her two prescriptions and told her to return the next day to get her blood pressure checked. She returned on March 9th, and Dr. Dinnerstein again examined her and released her, this time instructing her to return in two days to have her blood pressure checked. Unfortunately, Ms. Prophete died two hours after leaving the hospital. Dr. Dinnerstein never billed for his services, although Bethesda did generate a bill, which was later written off as uncollectable.

Dinnerstein , 78 So.3d at 26-28.

After winning the first appeal, FDOH brought a crossclaim against appellants in the underlying medical malpractice action, seeking a declaration that appellants were not under FDOH contract to provide services to Ms. Prophete and, thus, should not be afforded sovereign immunity protection in the medical malpractice action brought against them by the estate of Ms. Prophete. Appellants filed a counterclaim alleging breach of contract and seeking relief against FDOH for declining to afford appellants sovereign immunity protection.

Appellants moved for summary judgment, arguing that Dr. Dinnerstein's compensation arrangement with the hospital where the patient was treated did not impair his right to receive sovereign immunity and that FDOH had anticipatorily breached the parties' agreement under the volunteer provider contract. FDOH also moved for summary judgment, asserting that it had no legal obligation under the parties' volunteer provider contract to extend sovereign immunity to Dr. Dinnerstein for two reasons: (1) the services he provided to Ms. Prophete were not "volunteer, uncompensated services" under Florida law because he was compensated for her treatment through his contract with the hospital, and (2) he failed to obtain a completed referral for the treatment from Ms. Prophete, although she was competent to sign and understand it.

The version of Chapter 766 in effect at the time appellant entered into his contract with FDOH states, in relevant part:

"Contract" means an agreement executed in compliance with this section between a health care provider and a governmental contractor. This contract shall allow the health care provider to deliver health care services to low-income recipients as an agent of the governmental contractor. The contract must be for volunteer, uncompensated services. For services to qualify as volunteer, uncompensated services under this section, the health care provider must receive no compensation from the governmental contractor for any services provided under the contract and must not bill or accept compensation from the recipient, or any public or private third-party payor, for the specific services provided to the low-income recipients covered by the contract .

§ 766.1115(3)(a), Fla. Stat. (2005) (emphasis added). The statute further adds:

(4) CONTRACT REQUIREMENTS.--A health care provider that executes a contract with a governmental contractor to deliver health care services on or after April 17, 1992, as an agent of the governmental contractor is an agent for purposes of s. 768.28(9), while acting within the scope of duties under the contract, if the contract complies with the requirements of this section and regardless of whether the individual treated is later found to be ineligible. A health care provider under contract with the state may not be named as a defendant in any action arising out of medical care or treatment provided on or after April 17, 1992, under contracts entered into under this section. The contract must provide that:
[....]
(d) Patient selection and initial referral must be made solely by the governmental contractor, and the provider must accept all referred patients. However, the number of patients that must be accepted may be limited by the contract, and patients may not be transferred to the provider based on a violation of the antidumping provisions of the Omnibus Budget Reconciliation Act of 1989, the Omnibus Budget Reconciliation Act of 1990, or chapter 395.
(e) If emergency care is required, the patient need not be referred before receiving treatment, but must be referred within 48 hours after treatment is commenced or within 48 hours after the patient has the mental capacity to consent to treatment , whichever occurs later.

§ 766.1115(4)(d)-(e), Fla. Stat. (2005) (emphasis added).

After a hearing on the motions for summary judgment, the trial court entered an order denying appellants' motion and granting FDOH's motion. The court found that it was undisputed that: (1) the patient was not referred by FDOH pursuant to section 766.1115(4)(e) ; (2) Dr. Dinnerstein was paid by Bethesda for the specific and same type of services that were afforded to the patient; and (3) Bethesda was not a contracted volunteer with FDOH.

The trial court concluded that when Dr. Dinnerstein treated the patient at Bethesda, he was contracted to do so and was compensated pursuant to his contract with Bethesda; thus, the subject care was not provided on a volunteer basis. Consequently, the court found that FDOH did not breach its volunteer provider contract with appellants and declined to reach the issue of whether an anticipatory breach occurred.

On appeal, appellants contend that summary judgment for FDOH was in error because: (1) the trial court improperly weighed the evidence and viewed the facts in the light most favorable to FDOH; (2) FDOH anticipatorily breached the contract with appellants; and (3) the evidence obtained after the prior appeal resolved the outstanding factual questions in appellants' favor. We disagree.

We review the trial court's order granting summary judgment de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey , 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). Summary judgment is appropriate only where "there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact," and "the trial court must draw every possible inference in favor of the party against whom summary judgment is sought."

Albelo v. S. Bell , 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) (citing Moore v. Morris , 475 So.2d 666 (Fla. 1985) ).

The trial court found that appellants were not "voluntary and uncompensated" providers because they were compensated for Ms. Prophete's treatment through their Bethesda contract and because Bethesda billed for that treatment. To resolve the sovereign immunity issue in this case, however, we need not decide whether the trial court correctly determined that Dr. Dinnerstein's employment and compensation under his contract with Bethesda precluded his eligibility for immunity under the Volunteer Health Care Program. Here, summary judgment for FDOH and against appellant was appropriate because there was no evidence showing that Ms. Prophete was ever even a patient in the volunteer program. See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ("Under the tipsy coachman rule, 'if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support judgment in the record.' ") (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ).

As we pointed out in our Dinnerstein opinion, which reversed the initial summary judgment for appellants, a threshold factual issue remained as to whether Dr. Dinnerstein was acting within his capacity as a volunteer physician when he treated Ms. Prophete. 78 So.3d at 29. This issue turned on whether Ms. Prophete's referral was made to Dr. Dinnerstein through the volunteer program, by way of emergency or the normal referral process. Id. It was undisputed that no referral was made using the normal referral process or within forty-eight hours from the commencement of emergency treatment. Id. Therefore, for the emergency provision to apply, a referral had to have been obtained within forty-eight hours after Ms. Prophete had the mental capacity to consent to treatment. Id. at 29-30. We explained as follows:

Here, it is clear that no referral was executed within forty-eight hours after treatment was commenced on March 8th. Thus, the emergency provision could apply only if a referral was obtained "within 48 hours after the patient has the mental capacity to consent to treatment." If Ms. Prophete had the mental capacity to consent to the terms of treatment in the volunteer network, either on March 8th or March 9th, then the referral requirement was not "dispensed with." Here, as the Department argues, Ms. Prophete was discharged from Bethesda Memorial Hospital on both March 8th and March 9th, suggesting that she would have had the mental capacity to consent to treatment. The fact that Dr. Dinnerstein discharged her two days in a row cuts against his argument below that there was no opportunity for Ms. Prophete to sign the referral form and thus consent to her treatment by him as a volunteer physician.

Dinnerstein , 78 So.3d at 29-30.

Appellants never established that Ms. Prophete lacked the requisite mental capacity to consent to treatment. We stated the following in Dinnerstein :

Under the contract, if the patient had the mental capacity to consent to treatment, the fact that the patient died within the forty-eight hour period from the commencement of treatment would not excuse the lack of a referral. If Ms. Prophete did have the mental capacity to consent, then the requirement of executing the referral form is crucial, because it informs the patient that sovereign immunity would be extended to the health care provider and she would be waiving her right to a full recovery in tort for any medical negligence. It is also mandated by statute.

Dinnerstein , 78 So.3d at 29.

Although Ms. Prophete was a patient of FDOH's Lantana clinic, she was never shown to be associated with the volunteer program, let alone a patient referred through the volunteer program. Ms. Prophete was not informed of and did not consent to participate in the volunteer program. The nurse who prepared her transportation to Bethesda did not have any role with the volunteer program and did not refer Ms. Prophete to a specific doctor at Bethesda as a part of the program. Ms. Prophete happened to be a patient at the Lantana clinic, and the nurse merely used her customary practice of sending clinic patients-with their vitals-to Bethesda for delivery. Because the evidence failed to show that Ms. Prophete was a patient in the volunteer program, Dr. Dinnerstein's treatment of her was not shown to have been as a part of the volunteer program.

In sum, the undisputed facts establish that Dr. Dinnerstein never obtained a referral for Ms. Prophete or her consent to treatment under the volunteer program, and, as such, FDOH did not have a duty to afford him sovereign immunity under the Act. FDOH, therefore, did not breach the parties' contract when it declined to do so. Accordingly, we affirm the final summary judgment orders entered in this case.

Affirmed.

Warner and Levine, JJ., concur.


author: May, J.

text:
    Ashley N. POGUE, Appellant, v. Jennifer GARIB, Appellee.
    No. 4D17-2638
    District Court of Appeal of Florida, Fourth District.
    [October 3, 2018]
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for appellant.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, for appellee.
   May, J.

The defendant in an auto accident case appeals an order granting a new trial on damages only after rejecting an additur. She argues that a successor judge erred in granting the plaintiff's motion for an additur when the jury returned a verdict for the plaintiff for far less than the amount requested. We agree and reverse.

A rear-end collision during stop and go traffic on I-95 led to this litigation. The parties dispute the severity of the accident. But factually, the plaintiff's SUV's airbag did not deploy, and the plaintiff did not report any pain or injuries at the scene. She was neither seen by EMS nor transported to the hospital. Instead, she drove from the accident scene to get her hair washed, and returned to work for the day.

Sometime after the accident, the plaintiff began physical therapy and chiropractic treatment, complaining mainly of injuries to her neck, lower back, hand, and jaw. After months of therapy, she continued to self-treat at home. She received no injections, pain medication, or surgery related to the claimed injuries.

About a year after the accident, the plaintiff filed a negligence action. At trial, the plaintiff admitted she could still do everything she was able to do before the accident, but claimed to be slower. Six months after the accident, she reported to her OBGYN that she had no complaints of back pain, numbness, or weakness.

Her physician, and her only medical expert, testified that he believed she had suffered a permanent injury as a result of the accident. He opined she would need disc replacement surgery, but his medical records reflected a fusion recommendation. He testified she would need future lumbar surgery, but admitted that recommendation was recent because he previously recommended only injections.

The defense medical expert testified the plaintiff's MRI films showed that her neck and back injuries were not due to disc herniation, but rather disc desiccation, which is degenerative in nature and not caused by traumatic injury. He testified the plaintiff did not suffer a permanent injury, and there was no need for future medical treatment. Both doctors testified that it is common to see degenerative conditions in an MRI of someone in their forties.

The plaintiff requested $47,042 in past medicals, $117,000 in future medicals ($108,000 for surgery and $9,000 for epidural injections ), $36,500 for past pain and suffering, and $73,000 for future pain and suffering.

The jury found the defendant's negligence was the legal cause of the injury, and the plaintiff sustained a permanent injury. The jury awarded

• $11,767 in past medicals;
• $9,000 in future medicals;
• $0 in past pain and suffering; and
• $0 in future pain and suffering.

The verdict represented one quarter of the amount of requested past medicals. The amount of future medicals awarded was consistent with only the future epidural injections. The defendant advised the court that the verdict was inconsistent because the jury found a permanent injury, but failed to award damages for pain and suffering.

The parties and trial court agreed about the inconsistency, and drafted a jury instruction. Before the trial court instructed the jury, the plaintiff moved for a mistrial. She argued the verdict was inconsistent and did not agree to the additional instruction. The trial court denied the motion and gave the following instruction:

Under Florida law, if the jury finds that the plaintiff suffered a permanent injury, you must award some damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of disease, or physical defect or loss of capacity for the enjoyment of life sustained in the past and to be sustained in the future. There is no exact standard for measuring such damage. The amount should be fair and just in light of the evidence.

The plaintiff objected to the use of "some damages"; the trial court overruled the objection. The jury deliberated and awarded $500 each for past and future pain and suffering.

The plaintiff moved for an additur or new trial. She argued the $1,000 award for pain and suffering was inadequate as a matter of law based on the evidence. A successor judge heard the motion. During the hearing, the judge admitted that he had not reviewed the entire trial transcript. Nevertheless, the successor judge found the jury instruction concerning pain and suffering damages was a departure from the standard instruction, and resulted in an award that was against the manifest weight of the evidence. The successor judge then awarded an additur of $20,000, indicating that if the defendant rejected the additur, he would order a new trial on damages only.

The defendant rejected the additur, and the successor judge granted a new trial on damages only. From this order, the defendant appeals.

The defendant argues the successor judge abused its discretion in awarding an additur, and then a new trial on damages only, because the jury's award on past and future non-economic damages was consistent with the conflicting evidence. The defendant requests a reversal and reinstatement of the jury's verdict.

The plaintiff responds that the trial court erred in its instruction to the jury, which included the phrase "some damages," in overruling her objection to the instruction, and denying her motion for mistrial. She further argues the additur awarded by the successor judge was in accordance with the law and consistent with the manifest weight of the evidence.

A trial court's order on a motion for additur or new trial is reviewed for an abuse of discretion. Ferrer v. Serna , 179 So.3d 523, 524 (Fla. 4th DCA 2015). However, a successor judge is not accorded the same deference. Wohlfiel v. Morris , 122 So.2d 235, 237 (Fla. 2d DCA 1960). This is because a successor judge must rely on the written record alone, having not witnessed the trial. Wolkowsky v. Goodkind , 153 Fla. 267, 14 So.2d 398, 402 (1943) (en banc). And, it is critical that the successor judge review the record. Id.

A jury's verdict should not be lightly set aside. Our constitution says that the right of trial by jury must remain inviolate. It has long been well settled in this jurisdiction that where the jury has been properly instructed by the Court and the evidence is conflicting, and the case is one in which a jury of reasonable men could have found the verdict rendered on the evidence submitted to them, a new trial should not be granted.

Id. This calls for a "hands off" approach when the evidence is in conflict and the verdict is supported by the evidence.

Section 768.043(1), Florida Statutes (2017), provides that "a trial court may grant additur if the court determines the amount awarded was clearly inadequate." Ferrer , 179 So.3d at 524. Subsection (2) lists the criteria to consider whether the verdict is inadequate:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2), Fla. Stat.

Additur is only appropriate where the award shocks the conscience of the court. Ferrer , 179 So.3d at 525. The trial court may not award an additur "where the 'evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence.' " Id. (quoting Ortlieb v. Butts , 849 So.2d 1165, 1167 (Fla. 4th DCA 2003) ).

Let's start with the premise set by our supreme court: where a jury finds that a plaintiff has sustained a permanent injury and awards future medical expenses, but no future intangible damages, the verdict is not inadequate as a matter of law. Allstate Ins. Co. v. Manasse , 707 So.2d 1110, 1110 (Fla. 1998). Awards of zero damages for future noneconomic damages are unreasonable ONLY when undisputed evidence of permanent injury and a need for treatment in the future exist. See Garrett v. Miami Transfer Co. , 964 So.2d 286, 291 (Fla. 4th DCA 2017).

Here, the jury found the plaintiff sustained a permanent injury, but originally failed to award any damages for past and future pain and suffering. The trial court instructed the jury to award "some damages" for pain and suffering because it had found the plaintiff suffered a permanent injury. The jury then awarded $1,000 for pain and suffering.

The defendant argues the $1,000 award for past and future pain and suffering was consistent with the conflicting evidence at trial. We agree. This case resembles Ferrer v. Serna .

There, the evidence conflicted on whether the accident caused the plaintiff's arm pain. Ferrer , 179 So.3d at 525. One of the doctors testified the accident caused the symptoms, and the "other testimony was, at best, equivocal, because the doctors were unable to objectively establish the accident caused" the plaintiff's pain. Id. Though she requested nearly $12,000, the jury awarded only $8,000 for past and future medical expenses after finding a permanent injury. Id. at 524.

The plaintiff moved for an additur; the trial court granted the motion. Id. The defendant appealed. Because the evidence was in conflict, we reversed. Id. at 525 ; see also Ortega v. Belony , 185 So.3d 538, 540 (Fla. 3d DCA 2015).

Here, the evidence was similarly conflicting. The plaintiff's doctor, and only medical expert, testified that her injuries were permanent, and though he had not previously done so, he now recommended surgery. The defense expert however testified the plaintiff's injuries were not permanent, and the bulging shown in the MRI was degenerative in nature due to aging. He also testified there was no need for further treatment.

Another defense witness, who surveilled the plaintiff, testified she was out doing normal activities, including bending down, taking care of her kids, and smiling. And, on the day of the accident, the plaintiff left the accident scene to have her hair washed before going to work-without any complaints of pain.

"Damages for pain and suffering are difficult to calculate, have no set standard of measurement, and for this reason are uniquely reserved to a jury for their decision." Ortega , 185 So.3d at 539-40 (citing Pitcher v. Zappitell , 160 So.3d 145, 147 (Fla. 4th DCA 2015) ). Here, the jury considered the evidence and decided to award only $1,000 for pain and suffering. That conclusion is supported by the evidence.

Because the evidence was conflicting, the successor judge erred in granting an additur. See Ferrer , 179 So.3d at 525. The successor judge was not permitted to "sit as a seventh juror," and had no record basis to conclude the jury could not have reached its verdict based on the evidence. Ortega , 185 So.3d at 540 (citation omitted). We therefore reverse and remand for reinstatement of the verdict.

Reversed and remanded for reinstatement of the jury's verdict.

Warner and Forst, JJ., concur.

      It appears the only portions of the trial transcript filed by the time of the hearing were excerpts pertaining to the jury's verdict and the discussion of the proposed jury instruction on pain and suffering damages.


text:
    G.M., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D18-2398
    District Court of Appeal of Florida, Fourth District.
    [October 10, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, for appellant.
    Andrew Feigenbaum of the Department of Children and Families, West Palm Beach, for appellee.
    ON CONFESSION OF ERROR
   Per Curiam.

G.M., the mother, appeals an order requiring her to submit to a psychological evaluation as part of her case plan. The order does not contain the requisite findings that the mother's mental health was "in controversy" and that "good cause" was shown, see § 39.407(15) Fla. Stat. (2018) ; Fla. R. Juv. P. 8.250(b), nor does the record support such a finding, see Wade v. Wade , 124 So.3d 369, 374-75 (Fla. 3d DCA 2013) ; Gasparino v. Murphy , 352 So.2d 933, 935 (Fla. 2d DCA 1977). We accept the state's concession of error and reverse and remand for the trial court to strike the psychological evaluation from the mother's case plan in the disposition order.

Reversed and remanded with instructions.

Gross, Taylor, and Levine, JJ., concur.


text:
    STATE of Florida, Appellant, v. Arnold Steven LAMAR, Appellee.
    State of Florida, Appellant, v. Willie J. Anderson, Appellee.
    Nos. 4D17-3916 4D18-48 Nos. 4D18-32 4D18-47 4D18-336
    District Court of Appeal of Florida, Fourth District.
    [October 10, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellee, Arnold Steven Lamar.
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellee, Willie J. Anderson.
   Per Curiam.

It is sua sponte ordered that consolidated case numbers 4D17-3916 and 4D18-48 shall be consolidated with consolidated case numbers 4D18-32, 4D18-47 and 4D18-336 for all purposes and are affirmed.

Gross and Klingensmith, JJ., concur.

Forst, J., dissents with opinion.

A Palm Beach County Sheriff's Deputy on patrol in the City of Belle Glade encountered the two defendants at 3:00 a.m. The defendants were carrying a white plastic bag. The defendants were detained and ultimately arrested after law enforcement determined that the bag contained stolen items. The defendants were charged with burglary and theft. They filed motions to suppress. The trial court granted the motions, finding that, "[w]hile the initial contact may have been consensual, once the officer started questioning the Defendants about the bag and contents and requested to look inside the bag this became an investigatory stop which required reasonable suspicion that a person has committed, is committing, or is about to commit a crime."

The trial court's finding that the officer "requested to look inside the bag" is contrary to the uncontradicted testimony of the officer that "I asked [the defendants], I just basically said like, hey, where did you guys-you know, where did you get this bag, or what's inside. And one of the males opened up the bag and showed me what was inside." This is not "a request to look inside the bag." Up to the point that the officer semi-detained the defendants for forty-five minutes, this was a consensual encounter. Once the officer viewed the contents of the bag (new watches wrapped in plastic, a woman's purse, mail addressed to individuals other than the defendants), and in light of the totality of the circumstances (including time and place of the encounter and the fact a hurricane watch was in effect), he had the requisite reasonable suspicion that the defendants had committed a crime. See State v. Bullock , 164 So.3d 701, 704-05 (Fla. 5th DCA 2015) ("Reasonable suspicion can develop as a result of direct observations by law enforcement ...."). Accordingly, I would reverse the trial court orders granting the motions to suppress and, thus, I respectfully dissent from the panel's affirmance of the trial court orders.

      The defendants were never told that they were not free to leave, and they indeed did leave, although law enforcement retained the bag's contents and later arrested the defendants after it was determined that several nearby locations had been burglarized.