text:
    Jaiquan HAGANS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1458
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Stephen R. HESSENAUER and Diane L. Hessenauer, Appellants, v. J.P. MORGAN CHASE BANK NATIONAL ASSOCIATION, Appellee.
    Case No. 5D18-395
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mary QUEEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-129
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Julius T. SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3408
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Errick HOLMES, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2537
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jasper ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2530
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven Harold CLARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1960
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Govanny ALVARADO-RUIZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1766
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joshua John GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3755
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ralph Harold PENROD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3176
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher MCCALLUM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2412
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Justin Alan KAEGAEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1565
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Hilario Solorzano MEDINA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3877
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher James GARLAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2189
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dorian F. CALLOWAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1202
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony J. LOSTAGLIO, Appellant/Cross-Appellee, v. Suzanne ADAMS, Steven Adams, Tedd Annis, Bruce Bedner, Denise Bedner, Charles A. Bedner, Suzanne M. Bedner, Stephen W. Bedner, Maria Y. Bedner, William F. Dudley, Jr., et al., Appellees/Cross-Appellants.
    Case No. 5D17-2542 5D18-177
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Nathan Jahad WRIGHT, Appellant, v. DEPARTMENT OF REVENUE and Jade Ashley Yates, Appellees.
    Case No. 5D17-3881
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Kuntz, J.

text:
    James A. MACHIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2787
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

James Machin raises four issues in this appeal of his convictions, and we affirm three without comment. For his fourth issue, Machin argues the court erred when it failed to hold a hearing to evaluate his competency after appointing a competency expert. The State agrees that the record does not contain an order finding Machin competent to proceed and argues the "the proper course of action under the pertinent case law would be to remand this case to the trial court to make a nunc pro tunc competency evaluation." We agree in part with the State's recommendation, vacate Machin's convictions, and remand for a nunc pro tunc competency determination if such a determination is possible.

Before trial, Machin moved for the appointment of an expert to examine him for competency to proceed. See Fla. R. Crim. P. 3.210(b). The court granted the motion and appointed an expert who subsequently recommended the court find Machin competent to proceed. But the record does not include a transcript of an evidentiary hearing or a written order finding Machin competent to proceed.

The failure to hold a hearing or issue a written order finding Machin competent to proceed requires us to vacate Machin's convictions because "competency requires strict adherence to the Florida Rules of Criminal Procedure 3.210 - 212." Dortch v. State , 242 So.3d 431, 432-33 (Fla. 4th DCA 2018) (en banc), review granted , No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018) (citations omitted). "And, once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing." Monte v. State , 51 So.3d 1196, 1202 (Fla. 4th DCA 2011) (citations omitted).

After finding reasonable grounds to question competency, a court must:

1) enter an order appointing experts and scheduling a competency hearing;
2) hold an evidentiary hearing; and
3) "issue a written order making findings as to the competency of the defendant as is specifically required by Rule 3.212(b)."

Hawks v. State , 226 So.3d 892, 894 (Fla. 4th DCA 2017).

Generally, the failure to find a defendant competent after previously finding reasonable grounds to question his competency would entitle the defendant to a new trial. Id. (citation omitted). But a retroactive determination of competency may be possible in this case. See, e.g. , id. at 894-95.

If the court determines a retroactive determination of competency is possible and finds Machin was competent to proceed, the court must reinstate the convictions. See id. at 895. But if the court determines a retroactive competency determination is impossible, the court must adjudicate his current competency and, if found competent, proceed to a new trial. See id. ; see also Dortch , 242 So.3d at 433.

Vacated and remanded for further proceedings.

Warner and Damoorgian, JJ., concur.


author: Conner, J.

text:
    LAKE WORTH SURGICAL CENTER, INC., Petitioner, v. Crereser GATES, Joshua Ruleman and Arnold Ruleman, Respondents.
    No. 4D18-2774
    District Court of Appeal of Florida, Fourth District.
    [February 27, 2019]
    Matthew D. Grosack, Frances G. De La Guardia and Benjamin J. Tyler of Holland & Knight LLP, Miami, for petitioner.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for respondents Joshua Ruleman and Arnold Ruleman.
   Conner, J.

Lake Worth Surgical Center, Inc. ("Petitioner"), a non-party provider, petitions for certiorari review of an order allowing discovery of alleged proprietary and trade secret information without a confidentiality order. Petitioner does not challenge the required production, but argues the trial court departed from the essential requirements of law by denying the request for a confidentiality order. Because the trial court ordered the disclosure of trade secret information related to Petitioner's internal cost structure for billing and did not impose any confidentiality protections, we grant the petition as to some information and deny the petition as to other information.

Background

In the underlying negligence case, the plaintiff ("Plaintiff") is suing Joshua and David Arnold Ruleman ("Respondents") for damages resulting from a car accident. Plaintiff was treated at the surgical center operated by Petitioner and was billed for its services. In contention are two charges: one for an arthroscopic knee surgery and one for the supplies used during that surgery.

Respondents served Petitioner with a non-party subpoena requesting the following billing information: (1) two examples of reimbursement rates Petitioner has received from insurance carriers for each service provided to Plaintiff without naming the carriers; (2) the approximate percentage for the last three years of Petitioner's practice that treated patients involved in personal injury litigation or a pre-suit claim; and (3) the amounts collected for services unrelated to the underlying litigation that Petitioner previously provided to Plaintiff on two different dates. Respondents believe that Petitioner accepts far less on the charges for the majority of their patients than what it had charged Plaintiff for the surgery at issue in the underlying litigation.

Petitioner moved for a protective order to prohibit disclosure of confidential financial information. Petitioner primarily objected to the request for examples of reimbursement rates from unnamed insurers arguing that insurance reimbursement rates and the makeup of the center's patients are trade secret. At the hearing on the motion, Petitioner contended that: (1) Respondents' counsel intend to share the information with other clients; (2) Respondents' counsel represents the interests of an insurance company and disclosing what other insurers pay would disadvantage Petitioner the next time it negotiates contracts with insurers; and (3) what other insurance companies pay is confidential and proprietary.

Because Respondents' subpoena only requested that Petitioner provide a corporate representative with knowledge of these issues, and the trial court was not asked to rule on specific questions, the trial court denied the motion for protective order.

During the deposition of the corporate representative, Petitioner objected to a number of questions on the grounds that the requested information was a confidential trade secret and instructed the representative to not answer.

A hearing was held on Petitioner's objections to the deposition questions. Petitioner requested that the trial court enter "basic confidentiality protections" for any of the questions it required Petitioner's representative to answer, restricting use of the information to the underlying litigation and prohibiting disclosure to third parties. Of the six questions Petitioner objected to, the trial court overruled four objections. In so doing, the trial court required Petitioner to answer: (1) what amount it was paid for services provided to Plaintiff for surgery for an unrelated slip and fall accident; (2) what amount it was paid for services provided to Plaintiff for another surgery related to the slip and fall; (3) for the last three years, what was the approximate percentage of Petitioner's practice that treated patients involved in a pre-suit claim or personal litigation; and (4) two examples of contracted reimbursement rates with unnamed insurance carriers for the surgery Plaintiff received for the injury being litigated.

Petitioner asked the trial court to consider a confidentiality order citing Columbia Hospital (Palm Beaches) Ltd. Partnership v. Hasson , 33 So.3d 148 (Fla. 4th DCA 2010), where we found the trial court erred by not providing confidentiality protection for similar information. The trial court denied the request and entered a written order overruling Petitioner's objections to the four deposition questions described above.

Appellate Analysis

"Certiorari review is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal." Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc. , 26 So.3d 620, 622 (Fla. 4th DCA 2009) (citation omitted). "Orders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari review." Id.

When a party seeks protection against disclosure of a trade secret or proprietary information, the court must first determine whether the disputed information is in fact trade secret or proprietary. Summitbridge Nat'l Invs. LLC v. 1221 Palm Harbor, L.L.C. , 67 So.3d 448, 449 (Fla. 2d DCA 2011) (citation omitted); see also Westco, 26 So.3d at 622 (holding that where a party claims a document is privileged and the trial court fails to conduct an in camera review or balancing test, the trial court has departed from the essential requirements of the law).

The Florida Legislature has adopted the Uniform Trade Secrets Act and has defined a trade secret as follows:

"Trade secret" means information, including a formula , pattern , compilation , program , device, method , technique , or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

§ 688.002(4), Fla. Stat. (2018) (emphases added).

In the instant case, Respondents are seeking information from Petitioner about the amounts paid for services rendered to Plaintiff on two different dates, the approximate percentage of Petitioner's practice of treating patients who are involved in a pre-suit claim or personal injury litigation over a three-year period, and two examples of contracted reimbursement rates by private health insurance carriers, who have no interest in this case, for the surgery Plaintiff received.

The trial court did not make any specific rulings as to whether any of the information sought was trade secret or proprietary information. However, the Second District has already held that internal cost structure information constitutes a trade secret. Gulfcoast Surgery Ctr., Inc. v. Fisher , 107 So.3d 493, 495 (Fla. 2d DCA 2013) ; Summitbridge , 67 So.3d at 450 (noting that a formula resulting in a price amount may be a trade secret). Similarly, as we observed in Hasson , the parties conceded that the amounts the hospital charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients, constituted trade secret information. 33 So.3d at 149. In the instant case, there was no such concession by Respondents, but we agree with the Second District that internal cost structure information, including methodologies or formulas used to compute pricing and insurance reimbursement rates, constitutes trade secret information that should be protected from disclosure to third parties if obtained through discovery processes. See Fisher , 107 So.3d at 495. However, we also agree with the Second District's distinction made in Summitbridge that not all business information falls within this privilege; namely, the price for a single transaction, such as the amount received for a previous service to a litigant, is not information subject to protection as a trade secret. 67 So.3d at 450.

Applying the statutory definition of trade secret and the case law, we conclude the trial court properly declined to impose confidentiality restrictions on information regarding the amounts paid for services rendered to Plaintiff on two different dates and the approximate percentage of Petitioner's practice of treating patients who are involved in a pre-suit claim or personal injury litigation over a three-year period. We note that Petitioner did not present any evidence to support a finding that the percentage of practice information was trade secret. Like the trial court, we are not persuaded by the argument made to the trial court as to that information. However, we conclude the trial court erred in failing to grant Petitioner's request for confidentiality protection for information regarding the two examples of contracted reimbursement rates by private health insurance carriers for the surgery received by Plaintiff. We quash the portion of the order below denying confidentiality protection for that trade secret or proprietary information. Similar to the disposition in Hasson , we remand the case for the trial court to stay the discovery until the parties have an opportunity to negotiate a confidentiality agreement as to that information. In the event the parties are unable to agree, the trial court shall narrowly tailor any order requiring disclosure in such a way as to protect Petitioner's trade secret interests.

Petition granted in part and denied in part with instructions.

Warner and Damoorgian, JJ., concur.


author: Damoorgian, J.

text:
    Lisa Ann GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2167
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Lisa Ann Grant appeals her judgment and sentence for one count of felony battery. Because the trial court committed fundamental error by instructing the jury on the forcible-felony exception to the justifiable use of force, we reverse.

The victim in this case and Defendant's adult son got into a physical altercation after the victim witnessed what he perceived to be Defendant's son trying to break into the victim's work trailer. During the course of the altercation, the victim placed the son in a chokehold. Defendant then intervened in the altercation and bit off a portion of the victim's ear. Based on the foregoing, the State charged the son with one count of attempted burglary of a conveyance with battery and Defendant with one count of aggravated battery. Notably, the State did not charge Defendant as a principal for the attempted burglary.

At trial, Defendant admitted to the battery but, as her sole affirmative defense, argued that she was justified in using force to defend her son. The court instructed the jury accordingly on both the justifiable use of non-deadly force and deadly force in defense of another. The court also gave the forcible-felony exception instruction and instructed the jury that Defendant's use of force was not justified if the jury found that Defendant's son was attempting to commit, committing, or escaping after the commission of burglary of a conveyance. Defense counsel did not object to this instruction. Defendant was ultimately found guilty of felony battery, a lesser-included offense of aggravated battery, and sentenced to five years in prison.

On appeal, Defendant argues that the trial court erroneously instructed the jury on the forcible-felony exception to the defense of another. This Court generally reviews a trial court's decision to give a jury instruction for abuse of discretion. Gregory v. State , 141 So.3d 651, 654 (Fla. 4th DCA 2014). However, because Defendant failed to preserve the issue by way of a timely, specific objection, she must demonstrate that the error was fundamental. Id. "Fundamental error is error that reaches 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. An erroneous instruction constitutes fundamental error if it negates the defendant's sole defense." Id. (quoting Krause v. State , 98 So.3d 71, 73 (Fla. 4th DCA 2012) ). A claim of fundamental error is reviewed de novo. Smith v. State , 76 So.3d 379, 383 (Fla. 1st DCA 2011).

Defense of another, much like self-defense, is "an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense." Mosansky v. State , 33 So.3d 756, 758 (Fla. 1st DCA 2010) ; see also Keyes v. State , 804 So.2d 373, 375 (Fla. 4th DCA 2001) (recognizing that claims of self-defense and defense of another both involve an admission and avoidance). In asserting defense of another, the defendant acknowledges doing the act charged but seeks to justify it as necessary to protect another from harm. See Smith , 76 So.3d at 383.

Section 776.012 governs the justifiable use of force in defense of person and provides that a person is justified in using force, including deadly force, to defend "himself or herself or another" if the person reasonably believes that it is necessary to use such force. § 776.012(1) - (2), Fla. Stat. (2014). Section 776.041, however, provides an exception to the justifiable use of force in defense of person and states that "[t]he justification described in the preceding sections of this chapter is not available to a person who ... [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041(1), Fla. Stat. (2014) (emphasis added). Relying on the plain language of section 776.041, Defendant argues that the forcible-felony instruction as given in this case erroneously placed the focus on whether the son was attempting to commit or committing a forcible felony instead of whether Defendant , the person asserting the defense, was attempting to commit or committing a forcible felony. We agree.

Although there are no Florida cases analyzing the forcible-felony exception in the context of defense of another, cases analyzing the exception in the context of self-defense make clear that "the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent 'forcible felony' at the time." Giles v. State , 831 So.2d 1263, 1265 (Fla. 4th DCA 2002) (emphasis added); see also Martinez v. State , 981 So.2d 449, 457 (Fla. 2008) ("[I]t is error for a trial court to read the forcible-felony instruction to the jury where the defendant is not charged with an independent forcible felony." (emphasis added) ). Stated differently, the focus is on whether the accused was engaged in a separate forcible felonious act. Whether the defense asserted is defense of another or self-defense does not change the plain language of the statute.

Because Defendant was the person asserting defense of another, the instruction should have asked the jury to determine whether Defendant was attempting to commit or committing a separate independent felony. By instructing the jury that Defendant's use of force was not justified if it found that the son was attempting to commit, committing, or escaping after the commission of a forcible felony, the instruction improperly shifted the focus from Defendant's behavior to the son's behavior without regard to Defendant's knowledge of the surrounding circumstances. See Byrd v. State , 858 So.2d 343, 344 (Fla. 1st DCA 2003) (self-defense instruction improperly shifted the jury's focus from whether the defendant's behavior provoked the incident to whether the behavior of another may have been the initial cause of the use of force). Aside from being a misstatement of the law, the erroneous instruction effectively negated Defendant's only defense and, therefore, vitiated the fairness of her trial. See Smith , 76 So.3d at 387 (holding that an instruction which "gutted" the defendant's key defense was so erroneous as to affect the verdict); Vowels v. State , 32 So.3d 720, 721 (Fla. 5th DCA 2010) (erroneous forcible-felony instruction "led the jury to believe that [the defendant's] theory of self-defense was not available to him" and vitiated the fairness of the trial).

The State nonetheless argues that because section 776.041 provides that the forcible-felony exception applies to the "justification described in the proceeding sections of this chapter," and because defense of another is included in the justification described in the proceeding chapter, by its plain language the statute dictates that the forcible-felony exception must apply to the affirmative defense of defense of another. Any reading of section 776.041 to the contrary would add an exclusion to the statute that the Legislature did not intend. We do not quarrel with the State's argument that the forcible-felony exception applies to a claim of defense of another. Had the State also charged Defendant as a principal to the attempted burglary, then certainly the exception would apply because under that scenario Defendant would have been charged with an independent forcible felony. Defendant, however, was not charged with an independent forcible felony other than the one which she claimed to have committed in defense of another and, therefore, based on the plain language of the statute, the instruction did not apply. See Martinez , 981 So.2d at 454.

The only way in which the instruction as given in this case could have been correct is if the common law alter ego rule applied. This is because under the alter ego rule, "a defendant using deadly force to defend a person who was not entitled to use deadly force would be held criminally liable." State v. Cook , 204 W.Va. 591, 515 S.E.2d 127, 135 (1999) ; see also State v. Hussing , 1994 WL 24289, *3 (Ohio Ct. App. Jan. 27, 1994) ("[O]ne who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault." (citations omitted) ). In other words, if the son was committing a forcible felony and therefore not entitled to use force then, under the alter ego rule, Defendant would stand in the son's shoes and would likewise not be entitled to use force. Florida, however, like nearly all American jurisdictions, abandoned the common law alter ego rule long ago by adopting a "reasonable belief" standard. See § 2378, Fla. Rev. Stat. (1890) (providing that homicide is justifiable "[w]hen committed in the lawful defen[s]e of such person or of his or her husband, wife, parent, child, master, mistress or servant, when there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished ...." (emphasis added) ); see also Marco F. Bendinelli & James T. Edsall, Defense of Others: Origins, Requirements, Limitations and Ramifications , 5 REGENT U. L. REV. 153, 159-60 (1995) (recognizing that nearly all American jurisdictions have abandoned the alter ego rule).

The State further argues that, for public policy reasons, the exception should apply to all defense of another cases when the person being defended is attempting to commit, committing, or escaping from the commission of a forcible felony unless there is evidence that the intervenor reasonably did not know that the person he or she was defending was engaged in a forcible felonious act. We reject this argument because we are bound by the plain language of the statute. State v. Burris , 875 So.2d 408, 410 (Fla. 2004) ("When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.").

In conclusion, we hold that the trial court fundamentally erred in instructing the jury on the forcible-felony exception to the justifiable use of force. Therefore, we reverse Defendant's judgment of guilt and remand for a new trial.

Reversed and remanded for a new trial.

Gross and May, JJ., concur.

      In addition to raising issue with the jury instructions, Defendant also argues that the court erred in denying her motion for judgment of acquittal and motion for new trial based on prosecutorial misconduct; that defense counsel was ineffective; and that the court erroneously assessed victim injury points on her scoresheet. We affirm on these arguments without further comment.


author: Warner, J.

text:
    STEWART AGENCY, INC., d/b/a Earl Stewart Toyota of North Palm Beach, Appellant, v. ARRIGO ENTERPRISES, INC., d/b/a Arrigo Dodge Chrysler Jeep Ram West Palm Beach, and Arrigo Ft. Pierce, LLC, d/b/a Arrigo Dodge Chrysler Jeep Ram Fiat Ft. Pierce, Appellees.
    No. 4D18-813
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Jack Scarola of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, and David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, for appellant.
    Kevin F. Richardson and Christopher J. Ryan of Clyatt, Richardson & Ryan, P.A., West Palm Beach, and Scott N. Richardson of the Law Office of Scott N. Richardson, P.A., West Palm Beach, for appellees.
   Warner, J.

Appellant, Stewart Agency, Inc., a car dealership, appeals a final summary judgment in favor of the appellees, Arrigo Enterprises, Inc., and Arrigo Ft. Pierce, LLC, (collectively "Arrigo") in Stewart's claims for both damages and declaratory and injunctive relief against Arrigo for its alleged unfair and deceptive trade practices under the Florida Deceptive and Unfair Trade Practices Act. The court found that there was no evidence to support the element of causation in Stewart's claims both for damages and equitable relief. We agree and affirm.

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201 - 501.213, Florida Statutes (2016), was enacted to protect the public and businesses from unfair trade practices. § 501.202(2), Fla. Stat. An unfair practice " 'offends established public policy' and ... is 'immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.' " PNR, Inc. v. Beacon Prop. Mgmt., Inc. , 842 So.2d 773, 777 (Fla. 2003) (quoting Samuels v. King Motor Co. of Fort Lauderdale , 782 So.2d 489, 499 (Fla. 4th DCA 2001) ). Section 501.211(1) allows "anyone aggrieved by a violation of" FDUTPA to seek declaratory or injunctive relief, and section 501.211(2) provides that "a person who has suffered a loss as a result of a [FDUTPA] violation ... may recover actual damages ...."

Both Stewart and Arrigo are car dealerships which sell new and used vehicles. Stewart is a Toyota dealership in West Palm Beach. Arrigo sells Dodge, Chrysler, Jeep, Ram, and Fiat vehicles in both West Palm Beach and Fort Pierce.

In its complaint, Stewart brought a claim for actual damages, as well as claims for declaratory and injunctive relief under FDUTPA. Stewart alleged that it accepts cars as trade-ins to complete new or used vehicle sales. In 2013, the Japanese airbag supplier, Takata, publicly acknowledged a defect in its airbag inflators that could cause the airbags to deploy in such a way that they released shrapnel. Thus, the Takata airbags installed in vehicles created a risk of serious injury or death to the vehicles' occupants. The National Highway Traffic Safety Administration ordered a regional recall of Takata airbags in Florida, as high humidity increased the risk of improper airbag deployment. While 34 million vehicles in the United States were affected by the recall, only a small percentage of those vehicles had been remediated due to the unavailability of replacement car parts.

Stewart alleged that due to market conditions, it was required to accept vehicles equipped with defective Takata airbags as trade-ins, but it was a deceptive and unfair trade practice to sell such cars to consumers without replacing the defective airbags. Thus, Stewart was forced to store the vehicles with this condition at considerable expense until they could be remediated, during which time the vehicles would lose resale value. This caused Stewart to incur significant business expenses.

Arrigo, a business competitor within the same market area, also accepted used vehicles with Takata-airbag defects. The complaint alleged that Arrigo engaged in deceptive and unfair trade practices by selling those vehicles, for which replacement parts were not available, to consumers and by failing to inform prospective purchasers of the recall. It alleged that Arrigo affirmatively misrepresented the Takata-recall status of the vehicles and the ability to remediate the recalls. In addition, Arrigo engaged in "bait and switch" tactics of inducing prospective customers' interest in Takata-airbag vehicles by advertising the cars at an attractive price without disclosing the recall, and "then redirecting the potential customer[s'] interest to more expensive cars by discussing the Takata recall issues." Through these deceptive practices, Arrigo was able to make sales that it otherwise would have been unable to make, and it did not incur the expense of storing the vehicles until they could be remediated.

Arrigo answered denying the allegations that it engaged in deceptive practices and asserted affirmative defenses. It argued, among other things, that Stewart's damages were not caused by Arrigo's conduct, as Stewart's decision not to sell the cars with Takata airbags pre-dated any alleged conduct by Arrigo. Arrigo also moved to dismiss Stewart's claim, alleging that Stewart voluntarily decided to accept cars with unremediated Takata airbags and did not have actual damages.

Discovery revealed that Stewart admitted that it had been selling unremediated Takata-airbag vehicles to customers until June 1, 2016, and it stopped doing so after a television reporter interviewed Stewart's representatives. Four months later, Stewart filed suit against Arrigo, and Arrigo stopped the retail sales of the defective vehicles.

In requests for admission, Stewart admitted that Arrigo was not the cause of Stewart's decision not to sell at retail a used car with an unremediated Takata airbag, and it would not sell such vehicles regardless of whether Arrigo sold them. Further, Stewart sold unremediated Takata-airbag vehicles to wholesalers without control or restriction as to how those vehicles were subsequently re-sold. In answers to interrogatories, Stewart stated that it did not know at the time of its answers of any car sales by Arrigo that involved an unfair or deceptive trade practice.

James Arrigo, the owner and president of Arrigo Enterprises, testified in deposition that prior to Stewart filing the lawsuit, his dealership did sell vehicles with unremediated Takata airbags, but this practice was discontinued "shortly after" his dealership was sued by Stewart. Although his dealership did not have a policy of restricting the sale of such vehicles, it did have a policy of identifying any vehicles with recalls or damage. A window sticker on its used, for-sale vehicles identified whether the cars were subject to any recalls, although the sticker did not detail the recalls or indicate if they were Takata-related. Instead, the sticker instructed purchasers to ask for a CARFAX report from the dealer. That report would reveal to a prospective purchaser the specific recalls. Arrigo did not know of any sales where the recall status of the cars was affirmatively misrepresented, nor did his dealership engage in any bait-and-switch tactics described in Stewart's complaint.

Arrigo testified that there were few costs involved in remediating the vehicles with Takata airbags. After the adoption of his policy to stop selling cars with unremediated Takata airbags at retail, he began selling the cars at wholesale, and his business as a whole made more profit.

Relying on Stewart's admissions, Arrigo moved for summary judgment, contending that there was no evidence of any of the three essential elements of a FDUTPA claim for actual damages, including: a deceptive or unfair trade practice; causation; or actual damages to Stewart. As to the declaratory and injunctive relief claims, Stewart was not "aggrieved" by a FDUTPA violation because it decided on its own not to sell unremediated cars, and any injury to Stewart was entirely speculative. Stewart responded, filing the aforementioned deposition of James Arrigo. The trial court granted Arrigo's motion on all counts. It concluded that there was no evidence of causation for either the damages claim or the declaratory and injunctive relief claims. From this judgment, Stewart appeals.

This Court reviews de novo a trial court's decision to grant summary judgment to a party. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000) ("Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law."). The moving party has the burden to show the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the non-moving party. Craven v. TRG-Boynton Beach, Ltd. , 925 So.2d 476, 479-80 (Fla. 4th DCA 2006). If the movant tenders competent evidence in support of its motion, the burden then shifts to the non-moving party to come forward with opposing evidence. Id. at 480.

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201 - 501.213, Florida Statutes (2016), prohibits "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce ...." § 501.204(1), Fla. Stat. (2016) ; see Baptist Hosp., Inc. v. Baker , 84 So.3d 1200, 1204 (Fla. 1st DCA 2012) (noting FDUTPA protects both the consuming public and legitimate business enterprises from such practices). FDUTPA must be "construed liberally to promote" the policy of "protect[ing] the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." § 501.202(2), Fla. Stat. To bring a FDUTPA claim for damages, a plaintiff must establish three elements: 1) a deceptive act or unfair practice; 2) causation; and 3) actual damages. Baptist Hosp. , 84 So.3d at 1204.

As we noted in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. , 169 So.3d 164, 169 (Fla. 4th DCA 2015) :

Our supreme court has defined an "unfair practice" as "one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers ." PNR, Inc. v. Beacon Prop. Mgmt., Inc. , 842 So.2d 773, 777 (Fla. 2003) (emphasis added) (citations omitted) (internal quotation marks omitted). Additionally, it has defined "deception" as "a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment ." Id. (emphasis added) (citation omitted) (internal quotation marks omitted).

While an entity does not have to be a consumer to bring a FDUTPA claim, it still must prove the elements of the claim, including an injury to a consumer. Id.

First, there was no evidence that Arrigo committed an unfair or deceptive trade practice that injured a consumer. In answers to interrogatories, Stewart could not identify any transaction where Arrigo sold a vehicle with a Takata recall notice without disclosing that information to the consumer. Stewart's own admissions provide evidence in support of Arrigo's motion. See Fla. R. Civ. P. 1.510(c) (providing parties may rely on "affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence"). Furthermore, James Arrigo's deposition, filed by Stewart, did not create a genuine issue of material fact as to whether Arrigo committed an unfair trade practice that caused Stewart's alleged damages. Because Stewart did not come forward with counterevidence to create a genuine issue of fact as to this issue, summary judgment was proper. See Navellier v. Shortz , 207 So.3d 287, 288 (Fla. 4th DCA 2016) (finding where party moving for summary judgment comes forward with evidence negating material issue of fact, non-moving party must show the existence of the issue).

Second, the evidence was undisputed that Arrigo's sales of cars with unremediated Takata airbags were not the proximate cause of damages to Stewart. Section 501.211(2), Florida Statutes (emphasis added), provides that, "In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages ...." Through requests for admission, Stewart admitted that Arrigo was not the cause of its decision to stop selling cars with unremediated airbags at retail, and Stewart would have stopped selling those cars regardless of Arrigo's actions. Furthermore, Stewart conceded that it did not stop selling the unremediated cars until June 2016, after being interviewed by a television reporter, which was only a few months before Stewart sued Arrigo and Arrigo also stopped selling such cars. "[C]ausation [under FDUTPA] must be direct, rather than remote or speculative." Lombardo v. Johnson & Johnson Consumer Cos., Inc. , 124 F.Supp.3d 1283, 1290 (S.D. Fla. 2015) (quoting Hennegan Co. v. Arriola , 855 F.Supp.2d 1354, 1361 (S.D. Fla. 2012) ).

As Stewart's admissions showed that there was no disputed issue of material fact as to both the existence of a violation of the statute and the causation element of the damages claim, the court correctly entered summary judgment on its claim for actual damages.

The court also properly granted summary judgment on Stewart's claims for a declaratory judgment and injunctive relief as to the unfair and deceptive trade practices. Section 501.211(1), Florida Statutes (emphasis added), provides:

Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.

In Ahearn v. Mayo Clinic , 180 So.3d 165, 171 (Fla. 1st DCA 2015), the court noted that the legislature did not define "aggrieved person." The statute provides that "anyone aggrieved" may obtain declaratory or injunctive relief under subsection (1), but "a person" who suffers actual damages may recover for a violation of FDUTPA under subsection (2). Id. Because the legislature used different terminology in the different subsections, the court determined that principles of statutory construction dictated that the legislature intended two different meanings. Id. at 171-72. The court then looked to Black's Law Dictionary for the definition of "aggrieved": "1. (Of a person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights. 2. (Of a person) angry or sad on grounds of perceived unfair treatment." Id. at 172. It adopted the second definition, because it concluded that the first definition was "synonymous with damaged or suffered a loss," which would have been the same as those persons who could recover under section 501.211(2). Id.

The claimant in Ahearn , however, was an individual seeking class standing for other individual consumers asserting claims. Here, Stewart is a business entity, and the Black's Law Dictionary definition utilized by the First District applies only to persons, not entities. While corporations are "persons" under the law, they do not share the characteristics of humans, such as being "angry or sad." Therefore, the definition used by the First District does not apply to corporations. Instead, if we are to use Black's Law Dictionary definitions, the first definition would apply.

The requirement for an entity to show an invasion of legal rights to seek equitable relief under section 501.211(1) is not synonymous with the requirement to show entitlement to actual damages under section 501.211(2), because entities frequently do not suffer actual damages from unfair and deceptive practices of competitors. Instead, their damages are frequently special or consequential damages, and thus, not compensable under section 501.211(2). See City First Mortg. Corp. v. Barton , 988 So.2d 82, 86 (Fla. 4th DCA 2008) (indicating consequential or special damages are not recoverable as "actual damages" under FDUTPA). For instance, in Wyndham Vacation Resorts, Inc. v. Timeshares Direct, Inc. , 123 So.3d 1149 (Fla. 5th DCA 2012), the court noted that an entity would be entitled to an injunction to prevent the unauthorized use of trade secret information or to prevent deceptive misrepresentations by a competitor which could create consumer confusion and loss of good will, where actual damages were not shown. See also Pepsico, Inc. v. Distribuidora La Matagalpa, Inc. , 510 F.Supp.2d 1110, 1116 (S.D. Fla. 2007) (finding that an entity was entitled to an injunction to prevent trademark infringement which constituted unfair competition that would result in consumer confusion and loss of goodwill).

To obtain a declaratory judgment or injunction, an entity must show that it is "aggrieved by a violation" of FDUTPA. We held in Caribbean Cruise Line that although a claimant does not have to be a consumer to state a claim for actual damages under section 501.211(2), to satisfy all of the elements of a FDUTPA claim, it must show that a consumer was injured or suffered a detriment. Caribbean Cruise Line , 169 So.3d at 169. Similarly, here, under section 501.211(1), an entity may bring an equitable claim under FDUTPA, but only if it presents evidence of the required elements. In other words, to state a claim for equitable relief, an entity must show (1) that it is aggrieved, in that its rights have been, are being, or will be adversely affected, by (2) a violation of FDUTPA, meaning an unfair or deceptive practice which is injurious to consumers. Further, "for someone to be aggrieved, the injury claimed to have been suffered cannot be merely speculative." Ahearn , 180 So.3d at 173 ; see Macias v. HBC of Fla., Inc. , 694 So.2d 88, 90 (Fla. 3d DCA 1997).

Because Stewart admitted that Arrigo's actions (even if they did constitute unfair practices to consumers) did not cause Stewart to stop selling the unremediated vehicles, Stewart did not show that it was adversely affected, thus it failed to satisfy the first element. In addition, any losses of vehicle sales suffered by Stewart would be entirely speculative and require building an inference upon an inference. As to the second element, there was no evidence that any consumer was injured by any unfair practice, as there was no evidence that Arrigo made any misrepresentations regarding the unremediated vehicles that it may have had on its sales lot.

We therefore affirm the final summary judgment, and agree with the trial court that no disputed issues of fact remain.

Affirmed.

Damoorgian and Levine, JJ., concur.

      With respect to the first element of unfair and deceptive trade practice, the evidence shows that Arrigo made customers aware of recalls, but it may not have specifically and affirmatively informed the customer of the Takata airbag recall. Instead, on the window sticker of each vehicle for sale, it informed the customer that there were recalls and that the customer should ask the dealer for a CARFAX report. In Arrigo's motion to dismiss and initial motion for final summary judgment, Arrigo noted that the Federal Trade Commission has never prohibited the sale of vehicles with open recall notices. The commission did not require the disclosure of recalls on vehicles during the time period involved in this suit. See 16 CFR §§ 455.1 -455.4. As shown in the record, an amendment to those regulations in November 2016 requires that dealers notify consumers that they should check for open recalls on vehicles that they intend to purchase by visiting safecar.gov. Arrigo's reporting that the vehicle is subject to a recall on the window sticker appears to comply with the amended FTC regulations.

      Because state court decisions on FDUTPA claims are rare, this Court looks at the opinions of the United States District Courts for guidance. Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cty., Inc. , 169 So.3d 164, 168 (Fla. 4th DCA 2015).


author: Per Curiam.

text:
    Rekha SHAH, Appellant, v. TRANSDERMAL DELIVERY SOLUTIONS CORP., Kenneth Kirby, and Long Vu, Appellees.
    No. 4D18-1088
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant.
    Jack J. Aiello and Devin S. Radkay of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.
   Per Curiam.

Plaintiff, Rekha Shah, appeals an order denying her motion for relief from a judgment of dismissal pursuant to Florida Rule of Civil Procedure 1.540(b). The court dismissed the case after plaintiff missed the court's deadline to file a demand for arbitration. Plaintiff contends the trial court erred because plaintiff's counsel missed the filing deadline due to excusable neglect. We agree.

In the underlying action, plaintiff and her late husband sought to rescind a stock sale pursuant to Chapter 517, Florida Statutes. Defendants responded with a demand for arbitration pursuant to the sales contract. Because mediation was a precondition to the right to arbitration, the parties agreed to attend mediation first. Accordingly, the court issued an order abating the trial proceedings pending mediation, noting that if mediation resulted in an impasse and the parties did not file for arbitration by August 1, 2017, "this case shall be dismissed for lack of prosecution."

The parties reached an impasse at mediation. When plaintiff did not file a demand for arbitration by the court's deadline, the case was dismissed.

Nine days after the missed deadline, plaintiff moved for relief from the dismissal. Plaintiff's counsel contended he missed the deadline due to excusable neglect because of a misunderstanding between counsel and his legal assistant. In support of this motion, counsel submitted an affidavit from his legal assistant wherein the legal assistant explained that this was her first time handling an arbitration case with the American Arbitration Association ("AAA"). Based on a misreading of an AAA form, the legal assistant believed that the initial request for mediation she filed also served as a demand for arbitration. Therefore, when counsel asked her if she filed the demand for arbitration before the court deadline, she mistakenly informed counsel that she had. The legal assistant learned that a separate demand for arbitration was required and that plaintiff had missed the deadline when she contacted the AAA to obtain a list of potential arbitrators.

After a hearing, the court denied plaintiff's motion for relief from judgment and closed the case. The court concluded that the missed deadline was not excusable under the law because it was "not a case of secretarial or clerical mistake, e.g ., failing to calendar a date, computer error or the like." The court reasoned that counsel should not have entrusted the task to his assistant when that was her first time handling an AAA arbitration. The court concluded that, "[n]ot having initiated any of the lawyerly tasks required to comply, plaintiff's counsel should not now be excused from missing the clear Court ordered deadline."

Pursuant to Florida Rule of Civil Procedure 1.540(b), "the court may relieve a party or the party's legal representative from final judgment, decree, order, or proceeding" upon a showing of "mistake, inadvertence, surprise, or excusable neglect."

Fla. R. Civ. P. 1.540(b). "Excusable neglect" includes "inaction result[ing] from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir." Somero v. Hendry Gen. Hosp. , 467 So.2d 1103, 1106 (Fla. 4th DCA 1985). It is a gross abuse of discretion for a trial court to deny relief under 1.540(b) "upon timely application accompanied by a reasonable and credible explanation" for such inaction. Id.

Here, the court erred in denying plaintiff's Rule 1.540(b) motion for relief as plaintiff's motion was both timely and provided a reasonable and credible explanation for the missed deadline based on secretarial error. Although the trial court faulted counsel for entrusting his legal assistant to complete the demand for arbitration form, the form does not require an attorney's signature and instead requires only basic case information such as the parties' and attorneys' names and addresses. Moreover, counsel asked his legal assistant before the deadline if she filed the demand for arbitration and she mistakenly represented she had. This is the type of "secretarial error" and "reasonable misunderstanding" encompassed by Rule 1.540(b)'s "excusable neglect" provision.

For these reasons, we reverse the trial court's order denying plaintiff's motion for relief from judgment and closing the case. The case is remanded with instructions for the trial court to reinstate the case.

Gross, May and Damoorgian, JJ., concur.

      This case was not dismissed for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e).


text:
    Andrea L. LAUX, Appellant, v. Kenneth A. LAUX, Appellee.
    No. 4D18-1172
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Abigail Beebe of The Law Office of Abigail Beebe, P.A., West Palm Beach, for appellant.
    Joseph R. Fields, Jr. of Fields Legal, LLC, West Palm Beach, for appellee.
   Damoorgian, J.

Andrea Laux ("Former Wife") appeals the trial court's order denying her request for attorney's fees in her enforcement action against Kenneth Laux ("Former Husband"). Former Wife argues that the trial court erred by construing the attorney's fees provision in the parties' marital settlement agreement ("MSA") as a waiver of the right to seek fees in future enforcement actions. We agree and reverse.

The parties were divorced in 2014 following a long-term marriage. They resolved the typical issues associated with dissolving a marriage by entering into a MSA, which was incorporated into the final judgment of dissolution of marriage. The MSA contained the following provision:

11. Attorneys Fees . Each party shall be responsible for their respective attorney's fees, if any are incurred.

The MSA was silent as to attorney's fees in future enforcement or modification proceedings.

Sometime later, Former Wife moved for enforcement of the MSA based on Former Husband's failure to provide documents associated with his pension. Former Wife also requested attorney's fees as a sanction pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen , 696 So.2d 697 (Fla. 1997). Following a hearing, the court granted Former Wife's request for enforcement but took the issue of fees under advisement, questioning whether Former Wife waived the right to seek an attorney's fees award by way of the attorney's fees provision in the MSA. The court later entered an order denying Former Wife's requests for attorney's fees without further comment. This appeal follows.

Generally, a trial court's ruling on a motion for attorney's fees is reviewed for abuse of discretion. Mihalyi v. LaSalle Bank, N.A. , 162 So.3d 113, 114 (Fla. 4th DCA 2014). However, because entitlement to attorney's fees in this case depends on the interpretation of a contract, the court's ruling is reviewed de novo. Id.

"When an attorney's fees provision in a marital settlement agreement does not contain specific language waiving attorney's fees in future enforcement or modification proceedings, Florida courts have found that these fees are not waived." Caryi v. Caryi , 119 So.3d 508, 511 (Fla. 5th DCA 2013) (emphasis added) (provision in the MSA stating that "[t]he parties shall each be responsible for his or her own attorneys' fees and costs associated with this matter" did not reflect an intent to waive the right to seek attorney's fees in a future proceeding to establish child support); see also Tucker v. Greenberg , 674 So.2d 807, 809-10 (Fla. 5th DCA 1996) (provision stating that "[e]ach party shall be solely responsible for the payment of his or her own attorney's fees and costs; provided, however, that should a party contest or fail to abide by any of the provision of this Agreement, then said party shall be obligated to pay a reasonable fee to the other party's attorney" did not preclude an award of attorney's fees in future modification proceedings because the provision did not specifically address the issue of attorney's fees in modification proceedings); Planes v. Planes , 477 So.2d 42, 42-43 (Fla. 3d DCA 1985) (provision in MSA stating that former wife waives "any and all claims that she now has, or may ever have, to alimony, suit money, and attorney's fees" did not prevent an award of attorney's fees under section 61.16 in an MSA enforcement proceeding).

In the present case, the attorney's fees provision in the MSA merely provides that "[e]ach party shall be responsible for their respective attorney's fees, if any are incurred." The provision does not address, let alone address with specificity, the issue of attorney's fees in future enforcement proceedings. Accordingly, as there is no specific language in the MSA reflecting an intent by either party to waive the right to seek attorney's fees in future enforcement proceedings, the trial court erred in denying Former Wife's request for fees based on the MSA. Caryi , 119 So.3d at 511 ; Tucker , 674 So.2d at 809-10 ; Planes , 477 So.2d at 42-43.

Accordingly, we reverse the order denying fees and remand for consideration of the appropriateness of a fee award pursuant to section 61.16, Florida Statutes. See Powers v. Powers , 193 So.3d 1047, 1048 (Fla. 2d DCA 2016).

Reversed and remanded.

Warner and Levine, JJ., concur.


author: COHEN, J.

text:
    Craig HOWITT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2695
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019 Rehearing Denied March 22, 2019
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Craig Howitt appeals his convictions for leaving the scene of an accident with death, driving under the influence ("DUI") causing damage to property or injury, and DUI causing death/failure to render aid. We find no merit to Howitt's challenge to his conviction for leaving the scene of an accident with death and affirm. However, we reverse Howitt's convictions for DUI causing damage to property or injury and DUI causing death/failure to render aid and remand for a new trial on those charges.

Howitt was driving his SUV in the early morning hours when he rear-ended and killed the victim, who was operating a motor scooter. Howitt continued driving and eventually stopped after he struck a sign in the median of the road. He exited his SUV, and witnesses observed him briefly staggering around the median before reentering his vehicle. Witnesses urged Howitt to remain at the scene, but he refused.

Because his windshield was cracked, the hood of his SUV was up, and steam was coming from the radiator, Howitt drove down the highway with his head hanging out of the driver's side window. Law enforcement pulled Howitt over a short distance from the scene of the crash. He initially agreed to perform field sobriety tests, but after officers transported Howitt to the police station to conduct the tests, he refused. Howitt also refused to take a breath test.

Before trial, Howitt moved to suppress the evidence that he refused to submit to both tests. At the suppression hearing, the Florida Highway Patrol's lead crash investigator testified that the officers involved never read Howitt Florida's implied consent law relating to a breath test, nor did they inform him of any possible adverse consequences for refusing to perform the field sobriety tests. The trial court denied Howitt's motion to suppress. As will be detailed, this was error.

We first address Howitt's refusal to take a breath test. Florida, along with every other state, has an implied consent law that requires drivers to submit to a blood-alcohol concentration test if stopped on suspicion of driving while impaired. See Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 2166, 195 L.Ed.2d 560 (2016). Florida's implied consent statute, section 316.1932(1)(a)1.a., Florida Statutes (2016), provides:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.... The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person's privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

Here, inexplicably, the officers failed to comply with this statutory provision. The issue before us is not the admissibility of a breath test, but rather, the admissibility of Howitt's refusal to submit to such test. In South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that it was not "fundamentally unfair for South Dakota to use the refusal to take [a blood-alcohol] test as evidence of guilt, even though [the defendant] was not specifically warned that his refusal could be used against him at trial." Still, many states have held that if a suspect is not informed of the adverse consequences of refusing to take tests used to investigate suspected intoxication under the state's implied consent laws, evidence of the suspect's refusal to comply cannot be introduced as evidence of consciousness of guilt. See State v. Warren, 957 A.2d 63, 67 (Me. 2008) ("At trial on a charge of operating under the influence, a defendant's refusal to submit to a blood-alcohol test is admissible if, prior to the refusal, the defendant was properly warned of the consequences of failure to submit to a blood-alcohol test."); People v. Lucifero, 146 A.D.3d 811, 45 N.Y.S.3d 166, 168 (2017) ("[T]he law provides for what happens when drivers refuse to take a blood alcohol test. Among the consequences are the automatic revocation of the person's driver license, and the admissibility at trial of evidence that the driver refused to take the test. The only proviso is that these consequences may be imposed only if the driver has been sufficiently warned of them in advance of the refusal." (citations omitted) ).

We previously addressed the admissibility of the refusal to take a breath test in Grzelka v. State, 881 So.2d 633 (Fla. 5th DCA 2004). There, Officers read Grzelka some, but not all, of the implied consent warnings before asking her to submit to a breath test, which she refused. Id. at 634. In finding no error in the admission of her refusal as evidence, we held:

Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla. 2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence.

Id. at 634-35.

In Menna, 846 So.2d at 502-08, the defendant was suspected of shooting her husband. At the hospital, law enforcement asked Menna if she would submit to a brief and noninvasive gunpowder residue test. Id. at 503. Law enforcement did not indicate whether the test was mandatory and did not disclose any adverse consequences that would follow if Menna refused to submit to the test. Id. Rather, they gave her the impression that the test was optional. Id. Menna refused to submit to the test, and the State subsequently charged her with murder. Id. Before trial, she moved in limine to preclude the State from introducing the evidence of her refusal, which the trial court granted, finding Menna's refusal to be a safe harbor. Id. at 503-04.

The Florida Supreme Court agreed, holding that "the trial court here was entitled to conclude on the facts that it 'would be unfair where the police may have led the defendant to believe that he had a right to refuse' to allow Menna's refusal to be used against her ...." Id. at 507 (quoting Herring v. State, 501 So.2d 19, 21 (Fla. 3d DCA 1986) ). Besides consciousness of guilt, alternative explanations existed for Menna's refusal, "including her desire to seek 'safe harbor' or choosing to take the safest possible path totally devoid of negative consequences." Id. at 508. Further, the court noted:

The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible.

Id. at 505.

Unlike the defendant in Grzelka, in this case, by the investigator's own admission, the officers did not read Howitt any portion of the implied consent law or otherwise inform him of any consequences of refusing to take a breath test. Therefore, his refusal was insufficient to establish consciousness of guilt, and the trial court should have granted his motion to suppress his refusal to submit to a breath test. See Menna, 846 So.2d at 502-08.

A similar analysis is required for Howitt's refusal to perform the field sobriety tests. In State v. Taylor, 648 So.2d 701 (Fla. 1995), the Florida Supreme Court addressed the admissibility of such refusals. The arresting officer in the case did not expressly tell Taylor that his refusal could be used against him in court, but told him the purpose of the tests and explained that he would be subject to arrest based upon the available evidence. Id. at 702-05. Stated differently, Taylor's decision to decline the offer to demonstrate a lack of impairment would result in the officer relying upon his observations to determine impairment, which could lead to Taylor's arrest. In finding that the trial court did not err in admitting Taylor's refusal, the supreme court reasoned that because the officer informed Taylor of the possible adverse consequences of refusing to perform the field sobriety tests, his refusal was probative of his guilt. Id. at 704.

Here, as with the breath test, the investigator testified at the suppression hearing that the officers did not advise Howitt of any adverse consequences of refusing to perform the field sobriety tests. As a result, the trial court should not have allowed Howitt's refusal into evidence. Cf. Menna, 846 So.2d at 502-08 ; Taylor, 648 So.2d at 701-05.

The improper admission of evidence is subject to a harmless error analysis. E.g., Denmark v. State, 927 So.2d 1079, 1082 (Fla. 2d DCA 2006). The State has the burden "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). "[T]he harmless error test is not a 'sufficiency of the evidence' test or an 'overwhelming evidence' test because the relative strength of the permissible evidence does not negate the fact that the impermissible evidence may have played a substantial part in the jury's deliberation." Jackson v. State, 107 So.3d 328, 342 (Fla. 2012) (quoting DiGuilio, 491 So.2d at 1136 ).

Based upon our review of the record, we cannot say that the State met its burden of establishing that the admission of the refusal to take a breath test and perform the field sobriety tests constituted harmless error in this case. A reasonable possibility exists that evidence of Howitt's refusal to participate in both tests contributed to his convictions. Cf. Lampkin v. State, 445 So.2d 673, 674 (Fla. 4th DCA 1984) (noting that the "improper admission of actual test results constituted only harmless error where other competent evidence established the appellant's state of intoxication").

Accordingly, we affirm Howitt's conviction for leaving the scene of an accident with death, and reverse and remand for a new trial on the charges of DUI causing damage to property or injury and DUI causing death/failure to render aid.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

EISNAUGLE, J., and JACOBUS, B.W., Senior Judge, concur.

      Sections 316.027(2)(c), 316.193(3)(c)1., and 316.193(3)(c)3.a., Florida Statutes (2016), respectively.

      Law enforcement obtained a blood sample from Howitt without first securing a search warrant, the results of which the court excluded from evidence. See Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State does not challenge this ruling.

      We suspect that law enforcement conflated the provision for securing a breath or urine test under section 316.1932 with section 316.1933, the provision for obtaining a blood sample in cases of death or serious injury when law enforcement has probable cause to believe that a driver is under the influence. The latter does not require that law enforcement read Florida's implied consent warnings to a suspected offending driver.

      Additionally, the court held that the use of Taylor's refusal at trial did not violate the due process clause of either the Florida or federal constitution. Taylor, 648 So.2d at 704.

      Further, "the fact that the state emphasized this erroneously admitted evidence in its closing argument also may have tainted the validity of the jury's verdict." Allen v. State, 192 So.3d 554, 558 (Fla. 4th DCA 2016) (citing Donaldson v. State, 722 So.2d 177, 185 (Fla. 1998) ).


text:
    Christopher E. MORRIS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-5285
    District Court of Appeal of Florida, First District.
    January 16, 2019 Rehearing Denied March 15, 2019
    Christopher E. Morris, pro se, Petitioner.
    Kenneth Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Lewis, Wetherell, and Winokur, JJ., concur.


author: Winokur, J. Makar, J., dissenting.

text:
    Ashley KNAPP, Appellant, v. Brian KNAPP, Appellee.
    No. 1D17-2869
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Jonathan M. Galler of the Law Office of Jonathan M. Galler, P.A., Boynton Beach, for Appellant.
    No appearance for Appellee.
   Winokur, J.

Ashley Knapp (the former wife) appeals a final judgment dissolving her marriage with Brian Knapp (the former husband), entered in the Circuit Court for Bradford County. We agree that the trial court erred in computing the former husband's child support obligation, which compels reversal.

First, we find that the trial court did not err in rejecting the former wife's venue argument. Before the final hearing, the former wife alleged that she and her children lived in St. Lucie County and that the former husband did not live in Bradford County. But the fact that neither of the parties resided in Bradford County was not, in itself, a basis to rule that venue was improper there. In a dissolution of marriage action, venue lies with "the single county where 'the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.' " Crawford v. Crawford , 415 So.2d 870, 870 (Fla. 1st DCA 1982) (quoting Carroll v. Carroll , 322 So.2d 53, 57 (Fla. 1st DCA 1975) ); see also McGee v. McGee , 145 So.3d 955, 957 (Fla. 1st DCA 2014). Because the former wife never made this argument to the trial court (at least prior to entry of the final order), she did not preserve it for appellate review. See Steinhorst v. State , 412 So.2d 332, 338 (Fla. 1982). ("[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below."); Hentze v. Denys , 88 So.3d 307, 310 (Fla. 1st DCA 2012) ("Because the objection at the hearing was on grounds different than the argument now put forth by the former husband, the present argument is not preserved."). Asking the court to transfer the case to St. Lucie County because she lived there and it would have been more convenient for her was not the same as arguing that Bradford County was the improper venue for this action. The court ruled on the argument before it, which was insufficient to change venue. It was not obligated to schedule a hearing on the improper motion to allow the former wife the chance to change the argument to something that may have been proper.

Second, the former wife argues the trial court erred in calculating child support. The former husband is on active duty in the United States Army. He testified that he is only guaranteed thirty days of leave per calendar year, but would have additional days when not deployed overseas; he was to deploy soon. The final judgment ordered timesharing during the former husband's thirty days of leave, and ordered that he should make best efforts to take his leave while the children are not in school. In addition to dividing time between the parents during Spring, Christmas, and Thanksgiving breaks, the trial court found that the former husband would receive additional leave days from "time to time" when not deployed, and the parties should work together to allow timesharing during these times. The trial court calculated child support on the basis of the children spending 120 overnights with the former husband and 245 with the former wife.

The former wife argues that basing child support on the former husband spending 120 overnights with the children is unsupported by his testimony, as well as the final judgment's timesharing provisions. We agree. It is possible the former husband may spend more than thirty overnights with the children, but no evidence supports a number four times his guaranteed leave. The trial court must correct the husband's child support obligation by using a timesharing figure supported by competent, substantial evidence.

REVERSED and REMANDED .

Winsor, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

The former wife-acting pro se-did almost all she could to present and argue that venue in this case should be transferred: she raised it in her answer/counter-petition (stating "Venue is not proper in Bradford County, Florida."), filed a separate motion seeking transfer and a hearing, raised the issue at the final hearing, and-after hiring legal counsel-moved for rehearing. But the venue transfer issue was never explicitly addressed or ruled upon; the trial court only ruled on its "jurisdiction," not whether venue was proper or ought to be transferred.

The former wife was acting pro se, and used the words "jurisdiction" and "venue" interchangeably at times, but her legal filings made it obvious throughout that she was seeking to move the case from Bradford County (where the former husband visits his mother sporadically when not deployed in his military position) to St. Lucie County (where the former wife and children have continuously lived for two years and where she would be subject to suit). § 47.011, Fla. Stat. (2019). The wife's pro se plea, that the case be lodged in the county where she and the children reside (and where a local court can oversee a parenting plan and settlement agreement), versus in a county a four-hour drive away, where the former husband doesn't live and only occasionally visits his mother (and where, according to the former wife's legal papers, the former wife and former husband "never lived as a married couple" thereby precluding venue in the first instance; that they were married there doesn't support a finding that they lived there), see Carroll v. Carroll , 341 So.2d 771, 772 (Fla. 1977) (venue lies in "county were both partners last present with a common intention to remain married") ), presented a meritorious venue question for the trial court's consideration, one to which the former husband's lawyer did not even respond (former wife had written the lawyer, making clear she sought a change of venue) and one that was entitled to be liberally construed given her pro se status. Ezem v. Fed. Nat. Mortg. , 153 So.3d 341, 343 (Fla. 1st DCA 2014) ("Because [litigant] is pro se, despite their lack of "magic words," [his] filings were entitled to be liberally construed to seek the proper relief.... But the trial court simply denied the motion.").

Because the trial court did not explicitly rule on the matter and thereby made no determination under the applicable standards, see McGee v. McGee , 145 So.3d 955, 957 (Fla. 1st DCA 2014) ; §§ 47.011, 47.122 & 61.13(2)(d), Fla. Stat. (2019), I would reverse and require the issue of venue to be adjudged in the first instance. Nothing in the current record supports that venue in Bradford County is proper; if nothing changes on remand, the case should be transferred to St. Lucie County.

      We reject the former wife's argument that the trial court erred by denying her rehearing based on her allegation of intrinsic fraud, as well as her argument that the trial court erred in using the husband's current income rather than his assumed income following an anticipated promotion.

      We are perplexed by the contention of the dissent that the trial court failed to adjudge the former wife's argument that venue was improper in Bradford County. The former wife filed a motion to dismiss the petition "due to improper jurisdiction," asserting that the divorce should be litigated in St. Lucie County. In her answer to the petition, she referred to her motion "to change Jurisdiction/Venue." It is clear that the former wife used "jurisdiction" and "venue" interchangeably, and that the "jurisdiction" motion contained, for the purposes of this appeal, her venue argument. The trial court filed an order denying the motion to dismiss, so there is no question that the court did adjudge the former wife's venue claim. Moreover, the dissent embraces a position the former wife does not take on appeal: The former wife's brief argues that the court "summarily denied the Motion without any explanation." She never argues-as the dissent now does-that "trial court did not explicitly rule on the matter."

      The dissent notes that the former wife alleged in her "legal papers" that the parties "never lived as a married couple" in Bradford County. This allegation could arguably have supported a change of venue, however the "legal paper" was a motion for rehearing after the final judgment was entered, and a claim that venue is improper "must be stated specifically and with particularity in the responsive pleading or motion," or it is "deemed to be waived." Fla. Fam. L. R. P. 12.140(b)(3) & (7). As the former wife's counsel acknowledged, the "law leaves no doubt that a motion for rehearing is not the proper avenue to challenge a trial court's adverse ruling on venue ...." Nor is it the proper avenue to raise the proper argument for the first time.