text:
    Curtis Joe MORNING, Appellant, v. Christopher E. ZEEK and Susan M. Zeek, Appellees.
    Case No. 5D16-194
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 30, 2018
    Patrick J. Deese, of Patrick J. Deese, P.A., Melbourne, for Appellant.
    Michael Faro, of Faro & Crowder, P.A., Melbourne, for Appellees.
   PER CURIAM.

AFFIRMED.

TORPY, BERGER and GROSSHANS, JJ., concur.


source: Caselaw Access Project

author: Forst, J.

license: Public Domain

text:
    RESTORATION 1 OF PORT ST. LUCIE, a/a/o John and Liza Squitieri, Appellant, v. ARK ROYAL INSURANCE COMPANY, Appellee.
    No. 4D17-1113
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Scott Millard of Cohen Grossman, Maitland, and Gray R. Proctor of Fox & Loquasto, P.A., Richmond, Virginia, for appellant.
    Kenneth B. Bell and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A., Tallahassee, for appellee.
   Forst, J.

Appellant Restoration 1 of Port St. Lucie sued appellee Ark Royal Insurance Company for breach of contract and sought a declaratory judgment determining that a clause in an insurance contract requiring the signatures of all insureds and mortgagees for an assignment of benefits violated Florida law. Ark Royal successfully moved to dismiss the complaint. Restoration 1 now appeals the dismissal order, arguing that Ark Royal's anti-assignment provision was illegal. As explained below, we disagree and therefore affirm.

Background

The facts of this case are straightforward. In 2012, Ark Royal issued a homeowner's insurance policy to John and Liza Squitieri ("the insureds"). The policy contains a condition that "[n]o assignment of claim benefits, regardless of whether made before a loss or after a loss, shall be valid without the written consent of all 'insureds,' all additional insureds, and all mortgagee(s) named in this policy." The policy names PNC Bank, N.A. as a mortgagee.

Approximately four years later, the insureds' home suffered water damage. Mrs. Squitieri, without the consent of her husband or the mortgagee, contracted with Restoration 1 to provide cleanup services and signed an assignment of benefits agreement assigning "any and all insurance rights, benefits, proceeds and any cause of action under any applicable insurance policies" to Restoration 1.

Restoration 1 subsequently completed the clean-up work and submitted a claim to Ark Royal for $20,305.74. Ark Royal refused to pay the full amount of the claim, stating it was unable to recognize the assignment because "[t]he portion assigning benefits from your claim does not have all the required signatures."

Consequently, Restoration 1 sued Ark Royal for breach of contract and sought a declaratory judgment determining that a clause requiring the signatures of all insureds and mortgagees for an assignment contravened Florida public policy. Ark Royal moved to dismiss, arguing the assignment was invalid pursuant to Ark Royal's insurance policy agreement with the insureds. Restoration 1 filed a response and a cross-motion for partial summary judgment.

The trial court granted Ark Royal's motion to dismiss on the basis that "the Assignment of Benefits fails to comply with the subject policy's unambiguous condition that claims assignments be executed by all insureds and mortgagees." Restoration 1's appeal followed.

Analysis

We review the granting of a motion to dismiss de novo. Habitat II Condo., Inc. v. Kerr , 948 So.2d 809, 811 (Fla. 4th DCA 2007).

I. West Florida Grocery

Restoration 1 argues that the trial court's dismissal of its breach of contract claim and declaratory judgment action should be reversed because the restriction against assignment violates a common law rule in this state, as pronounced by our Florida Supreme Court over one hundred years ago in West Florida Grocery Co. v. Teutonia Fire Insurance Co. , 74 Fla. 220, 77 So. 209 (1917). There, the supreme court recognized the "well-settled rule that the provision in a policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss." Id. at 210-11. The court thus held that because the insureds were trying to assign their post-loss benefits, in which the insurer did not have an interest, "such consent [by the insurer] was not necessary to its validity, [and so,] the condition was superfluous." Id. at 211.

In rebuttal, Ark Royal explains that the exception set forth in West Florida Grocery is simply that an insurance company cannot condition an assignment of rights upon the insurer 's consent. A significant difference exists between requiring the insurer's consent and requiring the consent of the insureds and mortgagees. Ark Royal argues against extending this "narrow common law exception" to create a new public policy rule that prohibits any burden on any assignment whatsoever. It maintains that the Florida Legislature, and not the courts, is best suited for making public policy determinations.

In fact, the parties do not disagree that a contractual "blanket" ban on all assignments would be impermissible. See Better Constr., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh , 651 So.2d 141, 142 (Fla. 3d DCA 1995). Nor do they disagree that Florida courts have continually declined to enforce insurance contract provisions that, like in West Florida Grocery , require insurer consent for an assignment of benefits, finding "that post-loss insurance claims are freely assignable without the consent of the insurer." See Start to Finish Restoration, LLC v. Homeowners Choice Prop. & Cas. Ins. Co. , 192 So.3d 1275, 1276 (Fla. 2d DCA 2016) (quoting Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co. , 185 So.3d 638, 643 (Fla. 2d DCA 2016) ); see also Sec. First Ins. Co. v. State, Office of Ins. Regulation , 177 So.3d 627, 628 (Fla. 1st DCA 2015) ("On this point we find an unbroken string of Florida cases over the past century holding that policyholders have the right to assign such [post-loss] claims without insurer consent."); Citizens Prop. Ins. Corp. v. Ifergane , 114 So.3d 190, 195 (Fla. 3d DCA 2012) ("Post-loss insurance claims are freely assignable without the consent of the insurer."); Gisela Invs., N.V. v. Liberty Mut. Ins. Co. , 452 So.2d 1056, 1057 (Fla. 3d DCA 1984) ("A provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss.").

II. Security First

The narrow question presented in the instant case is whether common law or public policy prohibits an assignment of benefits provision in an insurance contract that requires the consent of all the insureds and the mortgagee before any assignment. In Security First Insurance Co. v. Florida Office of Insurance Regulation , 232 So.3d 1157 (Fla. 5th DCA 2017), the Fifth District recently addressed this question and answered it in the affirmative, finding such a restriction invalid. Accord Restoration 1 CFL, LLC v. ASI Preferred Ins. Corp. , 239 So.3d 747 (Fla. 5th DCA 2018).

The Fifth District's Security First case originated as an appeal from an order entered by the Commissioner of the Department of Insurance, Office of Insurance Regulation ("OIR"). Id. at 1157. That order upheld OIR's disapproval of Security First's request to amend its policy language in the same fashion as the instant case, "restrict[ing] the ability of policyholders to assign post-loss benefits absent the consent of all insureds, all additional insureds, and all mortgagees named in their policies." Id. at 1157-58.

In addition to the OIR order, the Security First opinion primarily based its holding on West Florida Grocery , interpreting that case to mean that any restriction on an assignment of benefits was unenforceable, even those restrictions not limited to requiring insurer consent. Id. at 1158-59. The court explained: "A hundred years ago the Florida Supreme Court recognized, in [ West Florida Grocery ], that 'it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.' " Security First , 232 So.3d at 1158 (second alteration in original) (quoting W. Fla. Grocery , 209 So. at 210-11). Accordingly, Security First struck down an assignment of benefits provision that required the consent of the insureds and mortgagees. Id. at 1159. The assignment of benefits provision in Security First is nearly identical to the one in the instant case. See id. at 1158 n.1.

III. Disagreement with Security First

We initially note that, in contrast to Security First , OIR disapproval is not at issue in the instant case. Ark Royal submitted the required certified, informational filing detailing this particular insurance contract to OIR, and OIR has not indicated any disapproval of the specific language in question-even though it is statutorily required to retroactively disapprove of any policy forms that do not meet the requirements of the insurance code. §§ 627.410(3), .411(1), Fla. Stat. (2018).

The Security First opinion "disagree[s]" with the insurance company's argument "that case law only applies to provisions requiring the insurer's consent." 232 So.3d at 1158. However, none of the cases cited in Security First discuss a condition on assignment that requires the consent of the insureds and mortgagees. See Sec. First Ins. Co. v. State, Office of Ins. Regulation , 177 So.3d 627, 629 (Fla. 1st DCA 2015) (affirming OIR's denial of a request to approve a provision requiring the insurer 's consent to post-loss assignment of benefits); One Call Prop. Servs. Inc. v. Sec. First Ins. Co. , 165 So.3d 749, 753 (Fla. 4th DCA 2015) (discussing a general assignment provision, rather than the limited provision at issue in Security First and the instant case); Cont'l Cas. Co. v. Ryan Inc. Eastern , 974 So.2d 368, 377 n.7 (Fla. 2008) (citing to West Fla. Grocery and Better Constr. in dicta); Accident Cleaners, Inc. v. Universal Ins. Co. , 186 So.3d 1, 2 (Fla. 5th DCA 2015) ("[T]he sole issue before [the] court is whether section 627.405 requires a post-loss assignee to have an insurable interest at the time of the loss."); Better Constr., Inc., 651 So.2d at 142 (the two paragraph opinion does not discuss the terms of the "no-assignment" provision, merely citing to West Florida Grocery for the proposition "that a provision against assignment of an insurance policy does not bar an insured's assignment of an after-loss claim").

Further, in relying upon West Florida Grocery , the Security First opinion misquotes (and thereby overstates) the holding in that case. The Fifth District's opinion represents that the supreme court's holding is that "it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss." Sec. First , 232 So.3d at 1158-59. However, the actual quote, without alterations, merely states that "it is a well-settled rule that the provision in a policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss." W. Fla. Grocery , 209 So. at 210-11 (emphasis added).

Thus, by its plain terms, West Florida Grocery does not stand for the pronouncement that any restriction is per se invalid. Instead, the supreme court addressed and invalidated only a provision requiring the consent of the insurer, with the court concluding that it is "superfluous" who the insurer ultimately pays as the insurer will still have to cover the insured loss. Id. at 211. In the instant case, as Ark Royal argued in its motion to dismiss below, it is impossible to brand the contested provision as superfluous-as both of the insureds, as well as the mortgagee, have a vested interest that a reputable, legitimate third-party contractor perform repairs on the home.

In addressing the enforceability of the assignment of benefits provision in the instant insurance contract, we begin with the premise that, generally, absent "some great prejudice to the dominant public interest" or specific pronouncement by the Florida Legislature, courts strive to uphold the parties' freedom of contract. Bituminous Cas. Corp. v. Williams , 154 Fla. 191, 17 So.2d 98, 101 (1944) ("it is a matter of great public concern that freedom of contract be not lightly interfered with"); see also Obolensky v. Chatsworth at Wellington Green LLC , 240 So.3d 6, 11 (Fla. 4th DCA 2018) ; Banfield v. Louis , 589 So.2d 441, 446 (Fla. 4th DCA 1991) ("When a particular contract, transaction, or course of dealing is not prohibited under any constitutional provision, statutory provision, or prior judicial decision, it should not be struck down on public policy grounds unless it is 'clearly injurious to the public good' or 'contravene[s] some established interest of society.' " (quoting Bituminous Cas. Corp. , 17 So.2d at 101 ) ).

The contract here does not prohibit assignment-it imposes a condition, requiring the approval of all insureds and the mortgagee. We cannot say that this restriction (as distinct from the restriction addressed by West Florida Grocery and its progeny) creates "some great prejudice to the dominant public interest."

Conclusion

For the foregoing reasons, we affirm the trial court's dismissal of the complaint and declaratory judgment action and hold that the language of the assignment of benefits provision in the instant insurance contract is enforceable. The central reasoning and holding of West Florida Grocery does not extend to the facts of this case. To the extent that the Fifth District in Security First has expanded upon West Florida Grocery , we certify conflict. Finally, with respect to the public policy concerns of both parties, they are best addressed by the legislature, not the courts.

Affirmed; conflict certified .

Warner and May, JJ., concur.

      We summarily affirm the two other issues raised by Restoration 1 on appeal.

      The trial court expressly dismissed Restoration 1's declaratory judgment action based in part on OIR's inactivity on the matter, stating: "Plaintiff [Restoration 1] requests that this Court act against Ark Royal Insurance Company when the Office of Insurance Regulation has not. Accordingly, Count I of Plaintiff's Complaint (Declaratory Action) is hereby dismissed."

      The 1905 Georgia case relied upon by West Florida Grocery explains: "After the loss, the claim of the insured, like any other chose in action, could be assigned without in any way affecting the insurer's liability." Ga. Coop. Fire Ins. Ass'n v. Borchardt & Co. , 123 Ga. 181, 51 S.E. 429, 430 (1905).


author: Per Curiam.

text:
    FLORIDA HOSPITAL MEDICINE SERVICES, LLC, f/k/a Florida Hospital Medicine Services, Inc., Team Health, Inc., and Team Health Holdings, Inc., Petitioners, v. Elizabeth K. NEWSHOLME, individually and as Attorney-in-Fact pursuant to Power of Attorney on behalf of Brian Newsholme, Justin Newsholme, individually, and Kevin Newsholme, individually, Respondents.
    No. 4D18-294
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Peter R. Goldman and Linda Spaulding White of Broad and Cassel LLP, Fort Lauderdale, for petitioners Team Health Holdings, Inc. and Team Health, Inc.
    William T. Viergever and Timothy D. Kenison of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for petitioner Florida Hospital Medicine Services, LLC.
    David J. Sales of David J. Sales, P.A., Jupiter, for respondents.
   Per Curiam.

Petitioners Florida Hospital Medicine Services, LLC, Team Health, Inc., and Team Health Holdings, Inc., defendants in a medical malpractice suit, seek certiorari review of an order allowing Respondents Elizabeth K. Newsholme, Brian Newsholme, Justin Newsholme, and Kevin Newsholme ("Plaintiffs"), to amend their complaint to add a claim for punitive damages. Petitioners contend that the trial court applied the incorrect legal standard when it determined that Plaintiffs established a reasonable basis for recovery of punitive damages. For the reasons explained below, we agree and grant the petition.

Background

The underlying lawsuit concerns treatment Brian Newsholme received at Palms West Hospital after undergoing knee replacement surgery in April 2013. Plaintiffs allege that Newsholme was misdiagnosed with pulmonary embolisms after the surgery and was given an excessive amount of anticoagulants, which caused him to suffer a stroke and intracerebral hemorrhage. Plaintiffs contend that Newsholme's mistreatment was the result of a hospital policy preventing doctors from working overlapping shifts to allow for coordination of treatment.

In March 2015, Plaintiffs sued several defendants including the hospital, the treating doctors, and West Palm Beach Physician Group, Inc. ("WPB Group"), the entity that employed the doctors. All original defendants other than WPB Group have settled and have been dismissed from the lawsuit. Petitioners were added as defendants in 2017. Plaintiffs allege that WPB Group is a subsidiary or agent of Petitioners and Petitioners are liable both directly and vicariously through WPB Group.

In November 2017, Plaintiffs moved to amend their complaint to add claims for punitive damages against Petitioners. Plaintiffs alleged that Petitioners knowingly condoned, ratified, or consented to the grossly negligent conduct of WPB Group. In support of their motion, Plaintiffs submitted an extensive written proffer and memorandum of law. Petitioners responded that Plaintiffs' proffer failed to support, and even contradicted, their allegations concerning the relationship between Petitioners and WPB Group.

After a hearing, the trial court granted Plaintiffs' motion to amend the complaint. In its order, the court acknowledged that, pursuant to section 768.72(1), Florida Statutes, Plaintiffs needed to make "a reasonable showing by evidence ... which would provide a reasonable basis for recovery of such damages." But the court also declared that it was bound to take Plaintiffs' allegations as true, stating, "[t]he standard of whether a claimant has established a 'reasonable basis' for recovery is similar to that of whether a claimant has stated a cause of action." The court relied on Holmes v. Bridgestone/Firestone, Inc. , 891 So.2d 1188 (Fla. 4th DCA 2005).

The court proceeded to recite Plaintiffs' allegations that WPB Group was Petitioners' agent, that Petitioners exercised complete control over WPB Group, and that Petitioners knowingly condoned, ratified, and consented to WPB Group's actions. The court repeated three times that it was bound to take these allegations as true, and expressly declined to consider Petitioners' argument that the proffered evidence was insufficient to support the allegations. The court concluded that Plaintiffs' allegations and proffer constituted a "reasonable showing" to support their motion.

Petitioners timely sought certiorari review, arguing that the trial court departed from the essential requirements of the law and caused irreparable harm by applying the wrong standard in determining that Plaintiffs established a reasonable basis for recovery of punitive damages.

Analysis

Certiorari jurisdiction lies to review whether a trial court has complied with the procedural requirements of section 768.72(1). Tilton v. Wrobel , 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995) ).

Section 768.72(1) provides that "no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." § 768.72(1), Fla. Stat. (emphasis added). See also Fla. R. Civ. P. 1.190(f). In Bistline v. Rogers , 215 So.3d 607 (Fla. 4th DCA 2017), we held that section 768.72(1)"requires the trial court to act as a gatekeeper and precludes a claim for punitive damage where there is no reasonable evidentiary basis for recovery." Id. at 611.

In Bistline , the trial court also granted a motion to amend the complaint to add a claim for punitive damages. See id. at 610. Relying on Holmes , the court stated that "[t]he standard for determining whether a claimant has established a 'reasonable basis' for recovery [of punitive damages] is similar to that of whether a claimant has stated a cause of action." Id. The court emphasized that it was required to accept the plaintiff's allegations as true and concluded the allegations established a reasonable basis for recovery of punitive damages. Id.

This Court granted certiorari relief in Bistline , explaining that the trial court had misconstrued Holmes and applied the wrong standard to the plaintiff's motion. See id. We held that

Section 768.72(1)"create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper , 658 So.2d at 519 (emphasis added). The procedural protection of this statute requires more than mere allegations. We agree with Petitioners that an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true.

Bistline , 215 So.3d at 610 (alteration in original). We further held that certiorari relief was warranted because "the harm of being subjected to an impermissible punitive damage claim cannot be remedied by an appeal." Id. at 611.

In the present case, the trial court cited Holmes in interpreting section 768.72(1)'s "reasonable showing" requirement and, in so doing, applied the wrong standard to Plaintiffs' motion to amend their complaint to add a claim for punitive damages. Notwithstanding Plaintiffs' attempts to distinguish this case from Bistline , it is clear from a reading of the order as a whole that the trial court failed to adequately consider whether the proffer was sufficient to establish a reasonable evidentiary basis for recovery of punitive damages, and simply accepted Plaintiffs' allegations as true, as it did in Bistline. Accordingly, this Court must grant the requested certiorari relief.

Conclusion

"[ Section 768.72(1) ] requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery." Bistline , 215 So.3d at 611. As the trial court failed to comply with the procedural requirements of section 768.72(1), and "[b]ecause the harm of being subjected to an impermissible punitive damage claim cannot be remedied by an appeal, we grant the petition and quash the order on review." Id.

Petition granted.

Taylor, Conner and Forst, JJ., concur.


text:
    Antonio F. DEFILIPPO, M.D. and South Florida Psychiatric Services, Inc., Appellants, v. Gregory H. CURTIN and Hillary B. Curtin, as Successor Co-Personal Representatives of the Estate of Michael J. Curtin, deceased, for and on behalf of the Estate, and the Survivors thereof, Appellees.
    No. 4D17-1477
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Joelle C. Sharman, Jerome R. Silverberg and Cindy J. Mishcon of Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for appellants.
    Todd R. Falzone of Kelley Uustal, PLC, Fort Lauderdale, and Ronald D. Poltorack of Ronald D. Poltorack, P.A., Boca Raton, for appellees.
    ON APPELLEES' MOTION FOR REHEARING
   Per Curiam.

We grant in part and deny in part the appellees' motion for rehearing. We withdraw our opinion issued on July 25, 2018, and substitute the following opinion in its place.

The defendant physician and his medical practice (collectively "the physician") appeal from a jury verdict finding that the physician's negligent supervision of an advanced registered nurse practitioner ("ARNP") caused the death of a patient at a drug detoxification facility. The physician raises several arguments on appeal. We conclude the trial court erred in two respects: (1) by precluding the physician from testifying that he was not at the detox facility when the patient was admitted, and was not notified of the patient's existence until after the patient died; and (2) by instructing the jury that the physician's alleged violation of section 458.348, Florida Statutes (2011), was evidence of negligence. We reverse and remand for a new trial.

Procedural History

The physician served as the detox facility's medical director as an independent contractor. The ARNP was hired to provide nursing services for the facility as an independent contractor.

The ARNP's services included evaluating patients to determine whether they could be admitted into the facility or instead required hospital emergency room treatment. The ARNP was permitted to perform these services pursuant to sections 464.003(2) and 464.012(3), Florida Statutes (2011), which define the acts that an ARNP is permitted to perform under a physician's general supervision.

To perform under the physician's general supervision at this facility, the ARNP executed a "Collaborative Practice Agreement" with the physician. Under the agreement, the ARNP was authorized to perform any service for which she was licensed to practice, including admitting patients into the detox facility. As to the physician's responsibilities, the agreement provided, in pertinent part:

The physician shall provide general supervision for routine health care and management of common health problems, and provide consultation and/or accept referrals for complex health problems. The physician shall be available by telephone or by other communication devices when not physically available on the premises. If the physician is not available, his associate as assigned will serve as backup for consultation, collaboration and/or referral purpose.

When the physician entered into the agreement, he was supervising "probably around eight" ARNPs at five to seven different facilities through similar agreements.

One evening, the patient arrived at the detox facility sometime before 8:00 p.m. At that time, the ARNP, but not the physician, was at the facility. The detox facility staff told the ARNP that the patient had track marks consistent with intravenous drug use. Later in the evening, when the ARNP checked on the patient, he was sitting upright, speaking, and his vital signs were improving. The ARNP's clinical assessment was that the patient was experiencing withdrawal. Her plan was to begin the detox process the next morning.

Significantly, the ARNP did not contact the physician for consultation or review. Thus, the physician did not know of the patient's existence.

The ARNP left the detox facility around 11:00 p.m. Before leaving, she instructed the facility's staff to do a bed check on the patient every fifteen minutes and take his vital signs every thirty minutes.

Tragically, sometime in the early hours of the following morning, the patient died. The detox facility staff did not discover the patient's death until they checked on him hours later.

The medical examiner's autopsy concluded that the patient's cause of death was endocarditis, which is an acute bacterial infection of the inner lining of his heart chamber and valves. The medical examiner further concluded that the patient's recent intravenous drug use contributed to the endocarditis.

The patient's estate later sued the physician, the ARNP, and the detox facility.

The estate's claim against the physician ultimately was pled as a claim for negligent supervision of the ARNP. In the second amended complaint, the estate alleged that the physician violated a duty arising from section 464.012 to "maintain supervision for directing the specific course of medical treatment" rendered by the ARNP. The estate further alleged that the physician failed to comply with section 458.348, Florida Statutes (2011), by exceeding the maximum number of offices he could supervise in addition to his own primary practice location at the time of this incident.

The physician later moved for partial summary judgment, essentially arguing that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute. The trial court denied the motion, holding that, to the extent section 464.012 required an ARNP to work under a physician's supervision, section 464.012 created a duty of care for the manner in which the physician supervised the ARNP.

The estate ultimately entered into a settlement agreement with the ARNP and the detox facility. The estate's case against the physician was set for trial.

Before trial, the physician moved in limine to exclude evidence of his having exceeded the maximum number of offices he could supervise under section 458.348. The trial court denied that motion as well.

During the trial, the trial court sustained the estate's objections to the physician's attempt to testify that he was not at the detox facility during the ARNP's treatment of the patient and did not know of the patient's existence until after the patient's death.

During closing argument, the estate argued that the physician should be held liable because he violated his duties under sections 464.012 and 458.348.

The trial court instructed the jury that the physician's alleged violation of sections 464.012 and 458.348 was "evidence of negligence," and that if it found that he "violated the statute[s], you may consider that fact, together with the other facts and circumstances in deciding whether [he] was negligent." The physician objected to these instructions. The trial court overruled the objection.

The jury returned a verdict finding that the physician's negligent supervision was a legal cause of the patient's death, and the estate's damages amounted to $1,312,000.

Appellate Analysis

The physician raises several arguments on appeal. We conclude the trial court erred in two respects: (1) by precluding the physician from testifying that he was not at the detox facility when the patient was admitted, and that he was not notified of the patient's existence until after the patient died; and (2) by instructing the jury that the physician's alleged violation of section 458.348 was evidence of negligence, because the estate did not present any evidence that such violation caused or contributed to the patient's death. We address those errors in turn.

1. Error in Precluding the Physician's Testimony

On the first error, although "[t]he determination of relevancy is within the discretion of the trial court," and "an appellate court will not overturn that decision absent a clear abuse of discretion," "[a] trial court's discretion in determining the relevancy of evidence ... is limited by the rules of evidence and applicable case law." Thigpen v. United Parcel Servs., Inc. , 990 So.2d 639, 645 (Fla. 4th DCA 2008) (citation omitted).

Under this standard, the trial court erred by precluding the physician from testifying that he was not at the detox facility when the patient was admitted, and that he was not notified of the patient's existence until after the patient died.

Section 90.401, Florida Statutes (2017), defines "relevant evidence" as "evidence tending to prove or disprove a material fact." In our opinion, although the argument cuts both ways, a reasonable juror may have considered whether the physician was present or absent when the patient was admitted as tending to prove or disprove whether the physician negligently supervised the ARNP.

Thus, the trial court erred in precluding the physician from informing the jury that he was not present when the patient was admitted, and did not learn of the patient's existence until the following morning, because the ARNP did not contact him about the patient upon the admission. The error was not harmless, and the evidence was not cumulative. Although other evidence was presented on this point, the physician was not provided the opportunity to testify fully on this key point.

2. Error in Instructing the Jury on Section 458.348

On the second error, our standard of review was detailed in Barton Protective Services, Inc. v. Faber , 745 So.2d 968 (Fla. 4th DCA 1999) :

A trial court is accorded broad discretion in formulating appropriate jury instructions and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury . A decision to give or withhold a jury instruction is to be reviewed under the abuse of discretion standard of review. The party defending the instructions on appeal must show that the requested instructions accurately stated the applicable law, the facts supported giving the instruction , and that the instruction was necessary in order to allow the jury to properly resolve all the issues in the case. If the jury instructions, as a whole, fairly state the applicable law to the jury, the failure to give a particular instruction will not be an error.

Id. at 974 (emphasis added) (citations omitted).

Here, the trial court's jury instruction on section 458.348 was reasonably calculated to confuse or mislead the jury, because the facts did not support giving the instruction, to the extent causation was an issue.

Section 458.348(4), Florida Statutes (2011), provides, in pertinent part:

(a) A physician who is engaged in providing primary health care services may not supervise more than four offices in addition to the physician's primary practice location . For the purpose of this subsection, "primary health care" means health care services that are commonly provided to patients without referral from another practitioner, including obstetrical and gynecological services, and excludes practices providing primarily dermatologic and skin care services, which include aesthetic skin care services.
(b) A physician who is engaged in providing specialty health care services may not supervise more than two offices in addition to the physician's primary practice location . For the purpose of this subsection, "specialty health care" means health care services that are commonly provided to patients with a referral from another practitioner and excludes practices providing primarily dermatologic and skin care services, which include aesthetic skin care services.

(emphasis added).

Although the estate claimed that the physician was subject to subsection (b)'s "two office" limit, while the physician claimed he was subject to subsection (a)'s "four office" limit, the evidence was undisputed that the physician violated either subsection by supervising ARNPs at five to seven different facilities in addition to his primary practice location.

However, the estate presented no evidence to prove that the physician's violation of section 458.348 proximately caused the patient's death. See Collins v. Sch. Bd. of Broward Cty. , 471 So.2d 560, 563 (Fla. 4th DCA 1985) (to prevail on negligent supervision theory, a plaintiff must prove the basic elements of negligence: (1) a legal duty; (2) the negligent breach of that duty; and (3) that the negligent breach of that duty proximately caused the injury).

More specifically, the estate presented no evidence that the reason why the ARNP did not contact the physician, or that the physician was unaware of the patient's admission, was because he was "spread too thin" or unreachable due to supervising too many offices in addition to his primary practice location. Rather, the evidence was undisputed that the ARNP did not contact the physician about the patient because, as she testified, "[i]n my clinical decision, he was okay to stay. And typically [the physician] would depend on me to be able to see and give a proper and quality assessment, which I did. I could not have known [the patient] ha[d] bacterial endocarditis."

Because the estate presented no proximate cause evidence, the trial court's jury instruction that the physician's violation of section 458.348 was "evidence of negligence," and that if the jury found that he "violated the statute[s], you may consider that fact, together with the other facts and circumstances in deciding whether [he] was negligent," was reasonably calculated to confuse or mislead the jury. Without proximate cause evidence, the jury instruction served no purpose. Thus, the trial court erred in giving the instruction.

This error was not harmless. Because the trial court gave the jury instruction, a reasonable possibility exists that a juror who believed the estate did not prove its negligent supervision claim may nevertheless have held the physician liable simply because he violated section 458.348. See Special v. W. Boca Med. Ctr. , 160 So.3d 1251, 1256 (Fla. 2014) ("To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.").

Conclusion

Based on the foregoing errors, we reverse and remand for a new trial. We conclude without further discussion that all other arguments of error which the physician raises are without merit or moot.

Reversed and remanded for new trial.

Gross and Conner, JJ., concur.

Gerber, C.J., concurs in part and dissents in part with an opinion.

I concur with the majority's opinion to reverse for a new trial based on the two errors discussed above.

I respectfully dissent in part because the trial court committed a third error, that is, by denying the physician's motion for partial summary judgment, which argued that, as a physician, he owed no duty of care under section 464.012, because ARNPs are the subject of that statute.

Our review of the trial court's denial of summary judgment involving statutory interpretation and duty of care is de novo. See Major League Baseball v. Morsani , 790 So.2d 1071, 1074 (Fla. 2001) ("The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo.");

BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003) ("Statutory interpretation is a question of law subject to de novo review."); Moore v. State, Fla. Fish & Wildlife Conservation Comm'n , 861 So.2d 1251, 1253 (Fla. 1st DCA 2003) ("Duty of care is a question of law and as such our review is de novo. ").

Applying de novo review, "[t]he law is settled that a statute creates a duty of care upon one whose behavior is the subject of the statute to a person who is in the class designed to be protected by the statute, and that such duty will support a finding of liability for negligence when the injury suffered by a person in the protected class is that which the statute was designed to prevent." Palmer v. Shearson Lehman Hutton, Inc., 622 So.2d 1085, 1090 (Fla. 1st DCA 1993) (emphasis added).

In my opinion, section 464.012 does not create a duty of care upon physicians, because physicians' behavior is not the subject of section 464.012.

Chapter 464 is entitled "Nursing." Section 464.001, Florida Statutes (2011), states that chapter 464's Part I is entitled the "Nurse Practice Act." Section 464.002, Florida Statutes (2011), states:

The sole legislative purpose in enacting this part is to ensure that every nurse practicing in this state meets minimum requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

(emphasis added).

Further, section 464.012, Florida Statutes (2011), proscribes the steps by which a nurse may become certified as an "advanced registered nurse practitioner" (ARNP), and describes the acts which an ARNP may perform. As a prelude to describing the acts which an ARNP may perform, section 464.012(3), Florida Statutes (2011), provides:

An advanced registered nurse practitioner shall perform those functions authorized in this section within the framework of an established protocol that is filed with the board upon biennial license renewal and within 30 days after entering into a supervisory relationship with a physician or changes to the protocol. The board shall review the protocol to ensure compliance with applicable regulatory standards for protocols. The board shall refer to the department licensees submitting protocols that are not compliant with the regulatory standards for protocols. A practitioner currently licensed under chapter 458, chapter 459, or chapter 466 shall maintain supervision for directing the specific course of medical treatment.

(emphasis added). It is from this single emphasized sentence that the estate argued, and the trial court found, a statutory duty of care exists under section 464.012 for those physicians who supervise ARNPs.

I disagree with that finding. Given chapter 464's title of "Nursing," chapter 464's Part I title of "Nurse Practice Act," section 464.002's plain language statement that the "sole legislative purpose in enacting this part" is to regulate nurses, and section 464.012's wholesale discussion of ARNPs, it cannot be logically concluded from the single emphasized sentence that physicians' behavior is the subject of section 464.012, from which a duty of care may be created upon physicians.

Rather, ARNPs' behavior is the subject of section 464.012, from which a duty of care may be created upon ARNPs. As applied, if an ARNP performs acts not supervised by a practitioner currently licensed under chapter 458, chapter 459, or chapter 466, then an ARNP may be held liable under section 464.012. Cf. Siegel v. Husak , 943 So.2d 209, 213-14 (Fla. 3d DCA 2006) (ARNP owed no specific duty to patient when ARNP was "acting under the specific direction and orders of [the physician] when she made her 'nursing diagnosis.' The actual responsibility for the diagnosis lay with [the physician].").

Based on the foregoing, I would reverse for a new trial on not just the two errors discussed in the majority opinion, but also on this third error.

      As a result of our reversal on the two issues above, we do not reach the physician's argument that the trial court also erred by granting the estate's request to allocate 100% of the liability upon the physician, after the jury had found the physician 20% liable and the detox facility 80% liable as a Fabre defendant. That issue is moot.


author: Gross, J.

text:
    Patrick Michael LANGEL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-2121
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Jordan M. Showe of Robert J. Watson, P.A., Stuart, for petitioner.
    No appearance for respondent.
   Gross, J.

This petition for writ of prohibition arises from a "Stand Your Ground" hearing where the circuit court ruled that petitioner was not entitled to immunity from prosecution. We deny the petition.

In February 2016, petitioner Patrick Langel killed the victim by shooting him in the head. Petitioner sped away from the scene, crashed his vehicle, and tried to hide from police. He is charged with manslaughter with a firearm.

Petitioner contends that the trial court erred in denying his claim of self-defense immunity from prosecution by placing the burden on him to prove his entitlement to immunity by a preponderance of the evidence. See Bretherick v. State , 170 So.3d 766, 779 (Fla. 2015) (confirming that the defendant bears the burden of proving entitlement to immunity by a preponderance of the evidence); Joseph v. State , 103 So.3d 227, 230 (Fla. 4th DCA 2012) ("Petitioner had the burden of proving his entitlement to self-defense immunity by a preponderance of the evidence."); Peterson v. State , 983 So.2d 27, 29 (Fla. 1st DCA 2008) ("[T]he trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.").

Petitioner asserts that the trial court should have applied a 2017 amendment to the self-defense law, which places the burden on the state to disprove a prima facie claim of self-defense immunity. The offense, and the immunity hearing in this case, both predate the effective date of the amendment. The trial court denied Petitioner's motion for reconsideration, which sought to apply the amendment retroactively, and this petition followed.

Retroactivity of the 2017 Amendment

In our recent decision in Hight v. State , 253 So.3d 1137, 2018 WL 3769191 (Fla. 4th DCA Aug. 8, 2018), we agreed with the third district in Love v. State , 247 So.3d 609 (Fla. 3d DCA 2018), rev. granted , No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018), that because the 2017 amendment to the "Stand Your Ground" self-defense law is at least partially substantive, it cannot be applied retroactively. See Smiley v. State , 966 So.2d 330, 334 (Fla. 2007) ("[A] statute that achieves a remedial purpose by creating substantive new rights or imposing new legal burdens is treated as a substantive change in the law.") (citation and internal quotation omitted) ); Art. X, § 9, Fla. Const. ("Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed."). But see Martin v. State , 43 Fla. L. Weekly D1016c, --- So.3d ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) (concluding that the 2017 amendment is procedural and can be applied retroactively), notice invoking discretionary review filed , No. SC18-789 (Fla. May 17, 2018) (stayed pending disposition of Love ); Commander v. State , 246 So.3d 1303 (Fla. 1st DCA 2018) (accepting the state's concession of error in failing to apply the amendment retroactively).

Section 776.032(4), Florida Statutes (2017), enacted by Chapter 2017-72, Laws of Florida, became effective June 9, 2017, and provides:

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

§ 776.032(4), Fla. Stat.

Nothing in the plain language of the statute indicates an intent to retroactively apply the amendment to offenses committed before its effective date. "[T]he Legislature's inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law." Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc. , 67 So.3d 187, 196 (Fla. 2011). Petitioner contends that the legislative history of the amendment shows that the Legislature was responding to the Supreme Court's decision in Bretherick and seeking to clarify what its intent had been all along. However, Bretherick was not decided in a legal vacuum. Petitioner's argument ignores district court of appeal decisions that established the preponderance of the evidence standard and placed the burden on the defendant for many years before the Legislature changed the law.

We conclude that, for retroactivity purposes, the 2017 amendment is a "criminal statute" that substantively alters criminal law, not a purely procedural change. The statute creates new legal rights for those asserting a claim of self-defense immunity - by making it easier to establish the right to immunity - and imposes new legal burdens on the state to maintain a prosecution. Thus, this criminal statute "is treated as a substantive change in the law" that cannot be applied retroactively under the Florida Constitution. Smiley , 966 So.2d at 334.

As the Supreme Court explained in Smiley , "[w]ith regard to article X, section 9, the term 'criminal statute' is defined in a broad context." 966 So.2d at 337. A "criminal statute" is "an act of the Legislature as an organized body relating to crime or its punishment ... defining crime, treating of its nature, or providing for its punishment ... [or] deal[ing] in any way with crime or its punishment." Id. (quoting Washington v. Dowling , 92 Fla. 601, 109 So. 588 (1926) ). Article X, section 9 of the Florida Constitution is "broad and comprehensive" and includes "within its scope and meaning all those acts of the Legislature as an organized body which deal in any way with crime or its punishment." Washington , 109 So. at 610-11.

The 2017 amendment altered a legal standard, the quantum of proof required to establish immunity from prosecution. Even if the statute has procedural aspects in its shifting of legal burdens, it has a substantive effect on the right to immunity and falls within the broad scope of article X, section 9 of the Florida Constitution. See Com. v. Sargent , 349 Pa.Super. 289, 503 A.2d 3, 6 (1986) ("A statute establishing a burden of proof is difficult to classify as either a procedural rule or a rule affecting substantive rights and seems to contain elements of each."). We agree with the third district in Love that the amendment's procedural provisions are intertwined with substantive rights. 247 So.3d at 611. The statute is not purely procedural, and article X, section 9 of the Florida Constitution bars retroactive application.

Petitioner's Claim Lacks Merit

Petitioner states no basis for relief as the trial court properly determined that he is not entitled to immunity from prosecution. Petitioner did not testify and has never provided an account of what led to the shooting. There are no witnesses, video, or other evidence of what transpired at the time of the shooting. Although petitioner admits he shot the victim, he presented no evidence that he acted justifiably in using deadly force, which requires a showing that he "reasonably" believed that the use of deadly force was "necessary to prevent imminent death or great bodily harm." See § 776.012(2), Fla. Stat. Nor did he show that the use of deadly force was necessary "to prevent the imminent commission of a forcible felony." Id. Petitioner did not show any of the circumstances in section 776.013(2) that create a presumption of fear of death or great bodily harm.

To raise a "prima facie claim of self-defense immunity from criminal prosecution" under section 776.032(4), a defendant must show that the elements for the justifiable use of force are met. Ordinarily, this will require the defendant to testify or to otherwise present or point to evidence from which the elements for justifiable use of force can be inferred. Only then would the burden shift to the state to "overcome the immunity" by clear and convincing evidence. § 776.032(4), Fla. Stat.

Petitioner's speculative claim is based upon equivocal circumstantial evidence that, in his view, shows the victim was attempting to rob petitioner. Petitioner relies heavily on the fact that the victim's closed pocket knife was found on the ground beneath the victim's body.

We agree with the trial judge that the totality of the evidence overwhelmingly contradicts petitioner's theory and that he is not entitled to immunity from prosecution. Even if the 2017 amendment were applied, petitioner failed to state a "prima facie claim" for immunity, so the burden would not have shifted to the state to disprove the claim. Additionally, we conclude that, assuming petitioner raised a prima facie claim, the evidence presented at the hearing refuted it clearly and convincingly.

The undisputed evidence shows that petitioner met the victim for the first time at a bar on the night of the shooting. After the bar closed, petitioner followed the victim to the motel where the victim would be staying. Both were intoxicated. The victim was shot in the head above the right eye. His body was found outside the open door of his vehicle, which was still running. He was face up on the parking surface with his right foot on the driver-side door sill. The victim had a small baggie with cocaine residue in his front pants pocket. On the ground beneath his left shoulder was a closed pocket knife with a four-inch blade. Co-workers identified the knife as the victim's. Police found a spent shell casing (matched forensically to petitioner's gun) on the ground outside on the passenger side of the victim's vehicle. The passenger-side door and window were closed and had no bullet holes. No significant blood spatter was found in the vehicle.

After the shooting, petitioner fled the scene in his own vehicle at a high rate of speed. He crashed and abandoned his vehicle in a field. Petitioner discarded the gun and hid from police. He surrendered after a K9 unit closed in on his position. Petitioner did not give police an account of what led to the shooting. At the time of his arrest, he did not assert that the victim had tried to rob him or that he shot the victim in self-defense. Petitioner did not testify at the hearing, and he has never provided any account of what transpired in the motel parking lot.

In support of his theory that the victim attempted a robbery, petitioner points to evidence that, while at the bar drinking, the victim was waiting for his paycheck to be deposited electronically to his bank account. He was expecting the deposit by midnight and records showed that the victim checked his bank account nine times that night. The victim did not pay his bar bill, and witnesses testified that the victim seemed "aggravated" or "agitated" by the deposit delay. The victim tried to borrow $50 from a friend. Petitioner argues this gave the victim a motive to rob petitioner with the knife. According to petitioner, he was an easy target because of his drunkenness, and the victim "was out of money and out of cocaine and noticeably 'agitated' about it."

Petitioner notes that the post-mortem toxicology report showed that the victim had a .165 blood alcohol level reading, with a low level of cocaine and cocaine metabolites in his system. Petitioner presented testimony from the medical examiner that the bullet transected the victim's brain stem allegedly causing instant death. The medical examiner testified that the victim would have dropped anything in his hand at the time of the shooting, and this showed the victim was holding the knife in his hand when he was shot. Petitioner argues that blood spatter on the victim's right hand shows he was holding the knife near his face when shot.

Video from the bar showed that the victim and petitioner left the bar at about 1:22 a.m. after last call. Just before leaving, the victim shook petitioner's hand and gave him a "bro-hug" embrace. Petitioner followed the victim out the door about two seconds later. The victim then drove to the nearby motel where he planned on staying with a co-worker. Records showed that the victim sent a text message at 1:26 a.m. confirming that he would be spending the night in the co-worker's motel room and that "he was comeing" [sic]. Videos from another nearby motel showed the victim's vehicle travelling on the roadway, followed immediately by petitioner's vehicle, at about 1:36 a.m. This camera later captured petitioner's vehicle speeding away after the shooting at 1:41 a.m.

In its order, the trial court noted that petitioner was larger than the victim. The victim was 5' 7? and 131 pounds. Petitioner was 5' 10? and 170 pounds. Among other things, the trial court found that it "defies reason" that the victim intended on robbing petitioner but did not have time to open the pocket knife, while petitioner had time to react, pull out his semiautomatic handgun, chamber a round, and shoot the victim in the head. The court noted that no evidence was presented regarding how petitioner carried his gun or that he kept a round in the chamber. There was no evidence to explain why petitioner followed the victim to the motel, and the evidence that the victim sent a text message at 1:26 a.m. to tell the co-worker he was coming to stay in the motel room was contrary to petitioner's theory that the victim was planning a robbery. Finally, the court noted that the victim's vehicle was stopped near a dumpster with its lights on and engine running and not in a marked parking space, which suggests the victim may have stopped suddenly or unexpectedly.

The trial court concluded: "[T]here is no evidence to support the theory that [the victim] pulled his knife first or that he issued some form of threat of a robbery. The more likely fact scenario, given the fact that the pocket knife remained in a closed position, is that [Petitioner] was the first to draw a weapon." We agree.

Under any standard, the trial court did not err in denying petitioner's claim of self-defense immunity based on these facts. This petition lacks merit and is denied with prejudice.

The petition for writ of prohibition is denied.

May and Ciklin, JJ., concur.

      In the context of civil cases, Florida courts have recognized that "generally in Florida the burden of proof is a procedural issue." Shaps v. Provident Life & Acc. Ins. Co. , 826 So.2d 250, 254 (Fla. 2002). However, we are aware of no Florida Supreme Court case holding that a change to the legal standard applicable to an affirmative defense in a criminal matter (particularly one governing the substantive right to immunity from prosecution) is purely procedural.
      As noted by the Second District Court of Appeal in Martin , 43 Fla. L. Weekly D1016c, --- So.3d ---- n.4, other courts, including the Supreme Court of the United States, have ruled that the burden of proof is substantive. Raleigh v. Illinois Dep't of Revenue , 530 U.S. 15, 20-21, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) ("Given its importance to the outcome of cases, we have long held the burden of proof to be a 'substantive' aspect of a claim.... That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it.") (citations omitted).

      The Legislature has not defined what constitutes a "prima facie claim" of self-defense immunity. The term "prima facie" is a Latin expression meaning "at first face" or "at first appearance." Black's Law Dictionary defines it as: "Sufficient to establish a fact or raise a presumption unless disproved or rebutted." Black's Law Dictionary , 1,228 (8th ed. 2004). The term "prima facie case" has two distinct meanings in law: (1) "The establishment of a legally required rebuttable presumption"; and (2) "A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id. ; see also Georg Nils Herlitz, The Meaning of the Term "Prima Facie," 55 La. L. Rev. 391 (1994). We believe that section 776.032(4) adopts the first definition of a "prima facie case."

      Even if Petitioner had testified or otherwise given an account of events, the trial judge was not required to accept it as true. The trial court would have authority to assess the credibility of a defendant's version of events in light of the other evidence in the case. In a murder prosecution, the victim obviously cannot present a contrary version of events.


text:
    Donovan M. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-303
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    James S. Lewis, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

The sale of a small amount of marijuana from one college student to another took a deadly turn when Appellant Donovan Henry arrived at the apartment of Nicholas Acosta, accompanied by several other individuals, one of whom was carrying a firearm. Although the testimony differs as to whether Appellant's original intention was a drug deal or a drug steal, the interaction ultimately ended in the fatal shooting of Mr. Acosta ("the victim"). Appellant was convicted of second degree murder with a firearm, burglary with a firearm, and robbery with a firearm.

Appellant appeals the conviction (for which he was given a prison sentence of thirty-five years), raising three specific challenges as well as a claim of cumulative error. We affirm on all issues, writing solely to address Appellant's contention that statements made by the prosecution at trial constituted reversible error.

Background

Both Appellant and the State agree that Appellant knew the victim and had arranged to purchase "some weed" from him. Appellant and four other young men (three of whom were co-defendants) went to the victim's university apartment. Appellant testified that his intention was merely to purchase marijuana. He said he did not learn that the three co-defendants intended to rob the victim until they had arrived at the apartment, and one of the co-defendant's pointed a gun at Appellant, and demanded that Appellant go along with the robbery. Appellant further testified that a few seconds after he and the fourth man were invited into the victim's apartment by the victim's girlfriend, the three co-defendants, who wore masks, rushed through the door and the co-defendant with the gun ordered everyone to get on the floor. Appellant testified that he complied and got on the floor. The victim did not get on the floor and was shot twice and killed by the armed co-defendant. The five men then left the apartment, taking the marijuana with them.

The defense strategy at trial was to impress upon the jury that it was nonsensical for Appellant, a college student, to plan to rob an acquaintance and fellow student who would be able to identify him. The defense argued that Appellant's limited participation in the crimes charged was under duress.

Testimony from the State's witnesses contradicted Appellant's account. A co-defendant testified that Appellant had initiated the plan to rob the victim, and knew about the gun beforehand. This co-defendant testified that he overheard Appellant telling one of the other men involved that he did not need to shoot the victim, but could use the gun to beat him. The victim's girlfriend, who witnessed the shooting, testified that Appellant did not get on the ground, but instead joined the shooter and others in yelling at the victim to get on the ground. The State also presented the testimony of a classmate of Appellant's who stated that Appellant had asked him and others on two different occasions if they knew of any marijuana dealers because he (Appellant) and a friend "wanted to buy some weed or buy larger amounts of weed to rip them off."

In closing, the State painted Appellant as the mastermind of the robbery. The tone of the State's closing argument was set at the start:

Members of the jury, as Cesar [sic] laid dying, killed by people that he trusted, people that he thought were his friends, [he] cried out Et tu, Brute? Betrayal and greed, that's what killed Cesar [sic]. And it's the same betrayal and greed that you, Donovan Henry, the Defendant in this case, had and why Nicholas Acosta is dead. Nothing more.
....
When you set it up and you get the gang together, and you go there to do it and you pull it off, and you end up shooting and killing a person, you are responsible.

On appeal, Appellant references the above comment, and several others made by the prosecution during cross-examination and closing, which Appellant argues were "disparaging and prejudicial" and that, collectively, were so extensive that their influence "pervaded the trial," "undermined the impartiality of the proceedings[,] and deprived [Appellant] of his inalienable right to a fair trial."

Analysis

In Spencer v. State , the Florida Supreme Court set forth the standard of review for improper comments made during closing without a contemporaneous objection:

As a general rule, this Court has determined that failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. The sole exception to this general rule is where the unobjected-to comments rise to the level of fundamental error. In order for an error to be fundamental and justify reversal in the absence of a timely objection, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error."

Spencer v. State , 842 So.2d 52, 74 (Fla. 2003) (internal and external citations omitted).

Comments during cross-examination that were properly objected to and overruled are reviewed for an abuse of discretion, see Brinson v. State , 153 So.3d 972, 975 (Fla. 5th DCA 2015), and a trial court's ruling will be upheld unless it is arbitrary, fanciful, or unreasonable. Banks v. State , 46 So.3d 989, 997 (Fla. 2010). Objections to cross-examination comments that are sustained, but for which the defense fails to timely move for a mistrial, are reviewed for fundamental error. Companioni v. City of Tampa , 51 So.3d 452, 456 (Fla. 2010) ; see also Pedroza v. State , 773 So.2d 639, 641 (Fla. 5th DCA 2000).

Acknowledging that most of his challenges were not properly preserved, Appellant argues that the cumulative effect of the prosecutor's improper comments made during cross-examination and during closing argument was fundamental error and, therefore, requires a new trial. Specifically, Appellant contends that the prosecution created "an image of [Appellant] as an evil and violent human being, who harbors an indifference to human life," thus fundamentally depriving Appellant of a fair trial.

A review of the record corroborates Appellant's admission that only a few of the comments that are challenged on appeal were actually objected to at trial, and "other objections were general." Moreover, the trial court sustained several of Appellant's objections during the State's cross-examination of Appellant, and defense counsel never followed up with a request for curative instruction or a motion for mistrial. Other objections were properly overruled, due to the general nature of the objection, such as "improper comment." See Castor v. State , 365 So.2d 701, 703 (Fla. 1978) ("[A]n objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.").

The most objectionable comment during cross-examination was the prosecutor's question to Appellant, "[d]o you just have a complete indifference to human life?" In its answer brief, the State acknowledges that "the question may have been a step too far." We agree, but also agree that the statement, alone, or when considered with any of the other challenged comments, did not rise to the level of fundamental error, particularly when viewed in context. See Mendoza v. State , 964 So.2d 121, 133 (Fla. 2007) ("To constitute fundamental error, improper comments by the prosecutor must be so prejudicial that they would taint the jury's verdict."). Here, the objectionable comment followed Appellant's admission that he failed to assist the victim after the latter was shot, choosing instead to flee with the co-defendants, including the shooter. Moreover, and importantly, Appellant's objection to this comment was sustained by the trial court.

Appellant objected to only two comments made by the prosecution during closing arguments (both objections were overruled). Appellant argues that the "disparaging remarks about [Appellant] during [the State's] closing argument, such as calling him a murderer and a liar, and characterizing him as violent, undermined the impartiality of the proceedings and deprived [Appellant] of his inalienable right to a fair trial" and "were so prejudicial as to constitute fundamental error." We disagree. "Here, on the whole, the comments made during closing were fair comments on the evidence and direct responses to defense arguments, and did not amount to 'fundamental error' which tainted the validity of the trial." Wilchcombe v. State , 842 So.2d 198, 200 (Fla. 3d DCA 2003).

As acknowledged by Appellant, he has the burden on appeal to establish fundamental error, as few of the arguably unacceptable comments were objected to at trial, and the objection to the "complete indifference to human life" statement was sustained by the judge, with no follow-up by Appellant.

We conclude that Appellant has failed to establish fundamental error with respect to statements made by the prosecution during cross-examination and closing. The State characterized Appellant as a "violent criminal," "a murder, an armed robber, and an armed burglar," and someone that the jury "should not like." These characterizations, in the abstract, could be viewed as "step too far" statements. However, when measured as to whether they were proper in the context of the State's effort to establish that Appellant was a willing participant in the burglary and robbery, by gunpoint, of the victim, and in light of the State's evidence supporting its charges, these characterizations of Appellant and his actions did not cross the line, either separately or cumulatively, into the realm of fundamental error.

Conclusion

In December 2015, Appellant and Nicholas Acosta were young men attending college in South Florida, with promising lives ahead of them. One year later, Acosta had been dead for a year and Appellant had just been convicted of murder, burglary and robbery, sentenced to spend the next three decades in prison. This is not necessarily a Shakespearian tragedy, as the State suggested in closing, but it certainly can be characterized as An American Tragedy.

The prosecution questioned and commented regarding Appellant in a brusque fashion, but with few objections that would have provided an opportunity for the trial court to request that the State "tone it down." Absent objections or a request for mistrial for those objections that were sustained, Appellant must demonstrate fundamental error. He has not, as none of the comments-whether considered individually or collectively-were of the type which "reach[ed] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." See Kennedy v. State , 59 So.3d 376, 382 (Fla. 4th DCA 2011) (quoting Brooks v. State , 762 So.2d 879, 899 (Fla. 2000) ). Here, the State presented the testimony of several witnesses that conflicted with Appellant's defense and provided a sufficient evidentiary basis for the guilty verdicts. Thus, upon review of the record and Appellant's arguments of fundamental error, we determine that the trial court's final judgment should be affirmed.

Affirmed.

Warner and May, JJ., concur.

      This co-defendant testified in exchange for being permitted to plea to second-degree murder, rather than first-degree murder.


author: Ciklin, J.

text:
    Lenore MAIO, Appellant, v. Patti D. CLARKE, Appellee.
    No. 4D17-2305
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Jeffrey M. Clyman, Millie Orrico and Trent Steele of Steele Law, Hobe Sound, for appellant.
    Caryn A. Stevens and Eddie Stephens of Ward, Damon, Posner, Pheterson & Bleau, West Palm Beach, for appellee.
   Ciklin, J.

Lenore Maio ("Lenore") appeals an amended final judgment of dissolution of marriage and raises a number of issues. Lenore argues that the trial court erred in failing to find that an oral cohabitation agreement existed before she and her former spouse, Patti Clarke ("Patti"), were married, and that the trial court erred in awarding attorneys' fees to Patti as a sanction. We affirm the trial court's determination with respect to the oral cohabitation agreement. But, we reverse the award of attorneys' fees and we remand for the trial court to make required findings, if it is able to do so, and to modify the award as we explain.

Oral Cohabitation Agreement and Constructive Trust

The two women lived together and shared expenses for a number of years before marrying and divorcing. During their cohabitation and after they married, the women executed testamentary documents leaving their assets to one another. Throughout their cohabitation and marriage, the parties maintained individual bank accounts. Patti testified that she was unaware that Lenore had opened up joint accounts for the women. According to Patti, the parties did not pool their income and assets. Each month, Patti gave Lenore $3,000, an amount representing a portion of her income, to be used to pay a share of household expenses.

Lenore owned a home. Two years after the parties married, Lenore wanted to refinance the mortgage loan by placing Patti's name on the mortgage. Patti agreed to help facilitate the refinance, but only if her name was placed on the deed. Patti's credit and income information was used to obtain a refinance of the loan. Patti was added to the mortgage and Lenore transferred a half share of her interest in the property to Patti.

In the divorce proceedings, Lenore sought one half of Pattie's premarital retirement earnings and sought to have a constructive trust imposed on the retirement account. Lenore claimed that during their premarital cohabitation, the parties pooled their assets, and that Patti promised that her premarital retirement earnings would fund their golden years. However, Patti denied Lenore's claims.

The trial court rejected Lenore's testimony.

"The existence of an oral contract is an issue for the finder of fact. An appellate court reviews a trial court's factual findings for competent substantial evidence." Armao v. McKenney , 218 So.3d 481, 485 (Fla. 4th DCA 2017) (citation omitted). "[A] party who asserts an oral contract must prove its existence by a preponderance of the evidence." St. Joe Corp. v. McIver , 875 So.2d 375, 381 (Fla. 2004). "Florida law recognizes that unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities towards each other 'as long as it is clear there [is] valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations.' " Armao , 218 So.3d at 484 (alteration in original) (citation omitted).

The trial court explicitly indicated in the amended final judgment that it did not believe Lenore's testimony regarding the parties' purported understanding. That makes this case distinguishable from Armao , 218 So.3d at 485 (affirming trial court's finding that parties entered into an oral cohabitation agreement where evidence established that parties agreed to pool "all their income, investments, assets, and inheritances" and use the funds "to pay their current and future expenses"). Instead, the trial court believed Patti. Her testimony established that the parties shared expenses, but that their income and assets were not pooled.

We also affirm the trial court's decision not to impose a constructive trust on Patti's retirement account. "A constructive trust is one raised by equity in respect to property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it should be retained by him who holds it." Provence v. Palm Beach Taverns, Inc. , 676 So.2d 1022, 1025 (Fla. 4th DCA 1996) (citation omitted). "[A] constructive trust is a remedial device with dual objectives: to restore property to the rightful owner and to prevent unjust enrichment." Id. "To impose a constructive trust, there must be (1) a promise, express or implied, (2) transfer of the property and reliance thereon, (3) a confidential relationship and (4) unjust enrichment." Id. Because the trial court believed Patti, the facts did not support imposition of a constructive trust.

Attorneys' Fees as a Sanction

Although we affirm the final judgment to the extent Lenore was not awarded a share of Patti's premarital retirement earnings, we reverse the portion of the judgment awarding Patti attorneys' fees as a sanction. The award of fees was made pursuant to Rosen v. Rosen , 696 So.2d 697 (Fla. 1997). The trial court erred in awarding Rosen fees to Patti as a sanction, as Patti did not plead a need for fees. See Hallac v. Hallac , 88 So.3d 253, 259 (Fla. 4th DCA 2012) (recognizing that in the Rosen context, a trial court may not award fees to a party based on vexatious litigation where the "primary criteria" of section 61.16 are not met: need and ability to pay).

Although Rosen fees were not permissible, a trial court has the inherent power to award fees "where one party has exhibited egregious conduct or acted in bad faith." Id. (quoting Bitterman v. Bitterman , 714 So.2d 356, 365 (Fla. 1998) ). However, "[s]uch awards are rarely applicable and should be reserved for extreme cases in which a party litigates vexatiously and in bad faith." Id. Further, the court must "make an express finding of bad faith and include facts justifying the imposition of the award." Id.

Here, the trial court's findings either lacked merit or did not rise to the level of a finding of bad faith. Fees were awarded based in part on the trial court's belief that Lenore's oral cohabitation agreement and constructive trust claims were barred by specified statutes. But they were not. The trial court also found that Lenore's financial affidavit was fraudulent because she listed expenses she was not paying. This finding is contrary to the evidence, namely Lenore's financial affidavit, wherein she noted that many of the expenses were not currently incurred. The trial court based fees in part on a finding that a claim Lenore made in her petition conflicted with another claim. But the claim was made in the alternative, which is entirely permissible. See Fla. R. Civ. P. 1.110(g). The trial court relied on Patti's claim that she would have settled the case had Lenore's attorney provided case law supporting her oral cohabitation and constructive trust claims. Patti's attorney is board certified, and Lenore's claims had a clear basis in the law. This finding does not establish bad faith.

The trial court also based fees in part on Lenore's withdrawal of her alimony claim shortly before trial, a basis which could support an award of fees as sanctions if the trial court made the required bad faith findings. We reverse the fees award and remand to the trial court to make the necessary bad faith findings, if it can, supporting its award of fees based on the withdrawal of the alimony claim, and to limit any award of fees to time spent on the alimony claim.

Lenore's remaining arguments on appeal are either moot based on the foregoing analysis or without merit.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Gerber, C.J., and Gross, J., concur.


author: Artau, Edward L., Associate Judge.

text:
    Arica MATYJASZEK, Appellant, v. Kevin R. MATYJASZEK, Appellee.
    No. 4D17-3575
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellant.
    Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellee.
   Artau, Edward L., Associate Judge.

The wife appeals from an Amended Final Judgment of Dissolution of Marriage, arguing that the trial court erred in using an improper fraction to measure the marital portion of passive appreciation of the wife's nonmarital real property. We agree and reverse.

Factual Background

The parties married in October 2011. When the parties married, the wife owned a home that she had acquired before the marriage. At the inception of the marriage, the wife's home was worth $126,000 and was encumbered by two mortgages: a first mortgage with a balance of $166,732.38, and a second mortgage with an unspecified balance.

The second mortgage was taken at some point before the marriage. The record is conflicting as to whether the original balance of the second mortgage was $25,000 or $40,000. However, there was no evidence as to the balance of the second mortgage on the date the parties married.

During the marriage, the parties lived in the wife's home and used marital funds to make payments on the first mortgage, but never made payments toward the second mortgage. Additionally, the husband made renovations to the house, but the value of those renovations was not quantified.

The wife petitioned for dissolution of marriage in March 2015. As of a July 2015 valuation date, the wife's home had a market value of $170,000, the first mortgage had a balance of $143,253, and the second mortgage had a balance of $57,095.

The case proceeded to a final hearing, where the evidence established the facts set forth above. The trial court then entered a Final Judgment of Dissolution of Marriage. The wife moved for rehearing of the Final Judgment, raising the same argument she raises in this appeal. The trial court denied the wife's motion for rehearing, but simultaneously entered an Amended Final Judgment to correct a numerical error.

In the Amended Final Judgment, the trial court purported to apply the formula set forth in Kaaa v. Kaaa , 58 So.3d 867 (Fla. 2010), and Viscito v. Viscito , 214 So.3d 736 (Fla. 3d DCA 2017), to determine the marital portion of the passive appreciation of the home. The trial court found that the marital portion of the passive appreciation of the home was $81,657. In reaching this figure, the trial court did not account for the second mortgage and calculated the debt-to-value ratio at the time of the marriage to be $166,732.38/$126,000 or 1.323. The trial court next multiplied 1.323 by the $170,000 value of the property at the time of the divorce, and then subtracted the $143,253 balance of the first mortgage at the time of the divorce, which yielded $81,657. The trial court then assigned this $81,657 value to the wife's column for equitable distribution purposes, resulting in the wife having to make a $53,911.93 equalizing payment to the husband.

This appeal ensued.

Analysis

The wife argues, as she did below, that the Kaaa fraction cannot be applied to measure the passive appreciation of nonmarital property on which more was owed than it was worth at the time of marriage. The wife points out that this creates an improper fraction-that is, a fraction in which the numerator is larger than the denominator. The wife maintains that an improper fraction is not a mathematically valid measurement of the marital portion of the passive appreciation of the home.

"A trial court's legal conclusion that an asset is marital or nonmarital is subject to de novo review." Mondello v. Torres , 47 So.3d 389, 392 (Fla. 4th DCA 2010). Likewise, a trial court's "calculation of passive appreciation is subject to a de novo review." Hodge v. Hodge , 129 So.3d 441, 445 (Fla. 5th DCA 2013).

Section 61.075(6)(a)1.b., Florida Statutes (2014), defines "marital assets and liabilities" as including the following: "The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both."

In Kaaa , the Florida Supreme Court held that "when a marital home constitutes nonmarital real property, but is encumbered by a mortgage that marital funds service, the value of the passive, market-driven appreciation of the property that accrues during the course of the marriage is a marital asset subject to equitable distribution" under section 61.075, Florida Statutes. 58 So.3d at 872-73.

The Kaaa opinion sets forth a five-step method that a trial court should employ in determining a non-owner spouse's share, if any, of the passive appreciation of the home: (1) the court must determine the overall current fair market value of the home; (2) the court must determine whether there has been a passive appreciation in the property's value; (3) the court must determine whether the passive appreciation is a marital asset; (4) the court must determine the value of the passive appreciation that accrued during the marriage and is subject to equitable distribution; and (5) after the court determines the value of the passive appreciation to be equitably distributed, the court's next step is to determine how the value is allocated. Id. at 872.

Based on the circumstances of the case before it, the Kaaa court approved the following language from Stevens v. Stevens , 651 So.2d 1306 (Fla. 1st DCA 1995), for determining how the appreciated value is to be allocated:

If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage . If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

Kaaa , 58 So.3d at 872 (quoting Stevens , 651 So.2d at 1307-08 ) (emphasis in Kaaa ).

Thus, reading step five of Kaaa in conjunction with the italicized language of Stevens , we conclude that the Florida Supreme Court established the following general formula for allocating the value of passive appreciation to be equitably distributed:

Mortgage Debt at Marriage __________________________ × Value of Passive Appreciation Property Value at Marriage

Turning to the facts of this case, we conclude that the trial court erred in using an improper fraction to calculate the portion of passive appreciation of the wife's nonmarital property that was subject to equitable distribution.

Under step four of Kaaa , the trial court should have determined that the value of passive appreciation that accrued during the marriage and was subject to equitable distribution was $44,000, which was the difference between the $170,000 value of the wife's nonmarital property at the time of the divorce and the $126,000 value of the wife's nonmarital property at the time the parties married. Then, under step five of Kaaa , the trial court should have determined that, because the property had no equity when the parties married, 100% of the value of the passive appreciation was to be allocated as a marital asset.

The purpose of step five of Kaaa is to determine how much of the value of passive appreciation to allocate as marital property and how much to allocate as the owner spouse's nonmarital property. Notably, the Kaaa decision recognized that the debt-to-value ratio was merely a rule to be applied "in general." The Kaaa court did not address a situation where the property started with negative equity, nor did the court hold that the debt-to-value ratio is to be applied even when it leads to a mathematically absurd result. Under step five of Kaaa , it is mathematically impossible to allocate more than 100% of the value of the passive appreciation of the property.

In this case, the answer to the allocation question is set forth in the following language from Kaaa : "If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate." Id. at 872 (quoting Stevens , 651 So.2d at 1307 ). In such a situation, a trial court need not reach the debt-to-value fraction under Kaaa to calculate the marital portion of passive appreciation. Here, because the wife entered the marriage with a property encumbered entirely by a mortgage which marital funds repaid, the entire value-or 100%-of passive appreciation should be included in the marital estate. Thus, the trial court erred in using a debt-to-value fraction of 1.323, which had the effect of falsely inflating the value of the passive appreciation to be allocated.

Therefore, under a correct application of the principles of Kaaa , the entire $44,000 value of the passive appreciation of the home was a marital asset subject to equitable distribution.

Furthermore, although the husband argued below that the paydown of the first mortgage should be treated as a marital asset in addition to the passive appreciation on the property, we note that the husband has not cross-appealed the Amended Final Judgment. And, even if he had, we find that the husband offered no proof below that the total mortgage indebtedness on the property decreased during the marriage.

For the foregoing reasons, we reverse the Amended Final Judgment and remand with instructions for the trial court to value the marital portion of passive appreciation of the wife's property at $44,000 and to adjust the equitable distribution scheme accordingly.

Reversed and Remanded.

LEVINE and FORST, JJ. , concur.

      Because the error appeared for the first time on the face of the Final Judgment, the wife's motion for rehearing was a proper vehicle for preserving the issue for appellate review. See Williams v. Williams , 152 So.3d 702, 704 (Fla. 1st DCA 2014) ("[W]here an error by the court appears for the first time on the face of a final order, a party must alert the court of the error via a motion for rehearing or some other appropriate motion in order to preserve it for appeal.").

      The 2014 version of the statute applies because it was the version in effect when the wife filed the dissolution petition in March 2015. See Busby v. Busby , 671 So.2d 162, 163 (Fla. 4th DCA 1996) (finding that the applicable version of the equitable distribution statute is the one in effect when the petition for dissolution was filed); see also § 11.2421, Fla. Stat. (2014) (adopting the 2014 Florida Statutes, which remained in effect through June 29, 2015).

      In response to Kaaa , the legislature recently amended section 61.075 to establish a new statutory formula-based on the total reduction of mortgage principal by marital funds-for determining the marital share of passive appreciation of nonmarital property during the marriage. See Laws of Fla. 2018, c. 2018-56, § 1, eff. July 1, 2018. The new formula also caps the total marital portion of the property at "the total net equity in the property at the date of valuation," and allows a party to argue that application of the formula would be inequitable under the particular facts of the case. § 61.075(6)(a) 1.c.(IV), (V), Fla. Stat. (2018). If the new statutory formula were applied to this case, the husband would not be entitled to any portion of the value of the wife's home because the total net equity in the property is negative. However, the new version of the statute does not apply to this case.

      Our interpretation of the Kaaa formula differs somewhat from the Third District's interpretation of Kaaa in Viscito v. Viscito , 214 So.3d 736, 738 (Fla. 3d DCA 2017). There, the Third District used the following formula to calculate the marital portion of passive appreciation: the current market value of the property, multiplied by the loan-to-value ratio at the time of the marriage, minus the current mortgage balance. Id.

      To the extent that the $170,000 value at the time of the divorce was attributable to renovations in the home, this value was never quantified. Thus, our analysis will treat the entire amount of appreciation as passive appreciation.

      We disagree, however, with the wife's argument that the marital value of the passive appreciation of the property is $26,747. The wife reached this figure by multiplying $170,000 by 100%, and then subtracting the $143,253 balance on the first mortgage. In other words, the wife's analysis relies upon the Viscito formula, using a coverture fraction of one and considering only the first mortgage.

      Although the parties reduced the first mortgage balance by $23,479 during the marriage, the second mortgage balance simultaneously increased by an unspecified amount. We find that it would have been improper to look at the paydown of the first mortgage in isolation, which is what the husband urged the trial court to do. Under section 61.075(6)(a) 1.b., the husband was required to show that there was an "enhancement in value" of the wife's nonmarital property "resulting ... from the contribution to or expenditure thereon of marital funds."§ 61.075(6)(a) 1.b., Fla. Stat. (2014). Thus, absent proof that the parties reduced the total mortgage indebtedness on the property during the marriage, the husband failed to make a showing that the parties' marital funds created any enhancement in the value of the home apart from passive appreciation.