text:
    METROPCS COMMUNICATIONS, INC. and MetroPCS Florida, LLC, Appellants, v. Jorge PORTER, Appellee.
    No. 3D17-375
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018. Rehearing Denied April 30, 2019
    Drinker Biddle & Reath LLP (San Francisco), Michael J. Sortz (San Francisco), Carlton Fields Jorden Burt, P.A., Aaron S. Weiss, and Steven M. Blickensderfer, for appellants.
    Dorta Law, Gonzalo R. Dorta, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   PER CURIAM.

MetroPCS Communications, Inc., et al., a wireless telephone service company, appeals from the denial of its request for enforcement of an arbitration provision against Jorge Porter. The issue is whether Porter was on notice of the arbitration provision contained in MetroPCS' terms and conditions of service. Because we conclude Porter was provided with inquiry notice, we reverse the order denying arbitration.

Factual and Procedural Background

Porter filed this putative class action claiming that MetroPCS violated Florida's Deceptive and Unfair Trade Practices Act when it improperly charged Porter and other MetroPCS customers sales tax on the full price of mobile phones purchased using a rebate. MetroPCS moved to compel arbitration of the claim based on a provision found in its terms and conditions of service. The trial court summarily denied MetroPCS' motion. In MetroPCS Communications, Inc. v. Porter, 114 So.3d 348, 348 (Fla. 3d DCA 2013), this court reversed the summary denial "for a determination after an evidentiary hearing of the threshold issue of whether the arbitration clause was contained in a binding agreement between the parties."

On remand, the trial court held an evidentiary hearing where it heard testimony from Porter, Mr. Avila, the former MetroPCS sales agent who sold Porter his phone in 2012, and MetroPCS representative, Ms. Brown. The testimony and documents admitted revealed the process used by MetroPCS to inform its customers of its terms of use. Three different notice methods are germane to Porter's interaction with MetroPCS: (1) written documents at sale; (2) pre-litigation text messages; and (3) post-litigation text messages.

(1) Written documents at sale.

At the hearing, Mr. Avila could not remember Porter or the transaction with him specifically. When asked about the procedure he normally followed in selling MetroPCS phones, Mr. Avila testified he filled out a start of service form in triplicate, keeping the top sheet and giving the customer the remainder of the form. The customer copy of the form warned that use of MetroPCS services acknowledged acceptance of the company's terms and conditions of service and gave a webpage link to those terms and conditions. In addition, the second page of the form entitled "MetroPCS Terms and Conditions of Service" summarized the terms and conditions, including arbitration of any disputes.

Avila further testified he would take the phone out of the box to activate it, and on occasion to transfer data from the customer's prior phone. He would then give the customer the phone and the box the phone came in. The box contained the phone charger, other accessories, if any, and a small booklet. The booklet was a quick start guide which accompanied all phones sold by MetroPCS. The quick start guide also warned that use of MetroPCS services denoted agreement to the company's terms and conditions of use which included arbitration of any disputes.

Porter admitted he was a MetroPCS customer since 2009 and purchased several phones from MetroPCS during that time. MetroPCS provided him with prepaid cellular service for his phones. Porter would receive a text message from MetroPCS alerting him that his payment was due and, around the 26th of each month, he paid in advance for the upcoming month's service. With regard to the purchase of his phones, Porter testified that each time he left the store only with his new phone and a payment receipt. He vehemently denied receiving any packaging or other materials with the phone.

(2) Pre-litigation text messages.

As Porter testified, each month MetroPCS would send a text message to Porter's phone reminding him that his payment was due for next month's service. Porter would then go to a MetroPCS store to make his payment. A screenshot of an August 2012 text message depicted the typical payment reminder: "Please pay $70.00 by 8/26/12 for [account number] to avoid service interruption. Terms&Condition apply." After payment, a second message acknowledged payment and also contained the warning that terms and conditions applied. An example of a payment text message read: "Thank you for your $70.00 pymt on [account number]. Pymt posted on 08/23/12 03:18p. Terms&Conditions apply." Porter understood that the phrase "Terms&Conditions" was a link through which he could access information of MetroPCS's terms and conditions on his phone. However, Porter never accessed the information because he believed he "had no reason to go there."

(3) Post-litigation text messages.

Sometime in 2014, well into the litigation of the instant case, MetroPCS's payment reminder text messages changed. They now expressly referred to arbitration as evidenced by the March 26, 2014 message: "Please pay $75.00 by 03/26/14 for [account number] to avoid service interruption. MetroPCS Terms&Conditions including arbitration apply. See www.metropcs.com/terms." Porter testified he was shocked by the message's reference to arbitration.

Based on the evidence presented, the trial court found that Porter did not receive the purchase documents. Additionally, although it found that Porter received both the pre-litigation and post-litigation text messages, the trial court concluded that the messages did not put Porter on notice of the arbitration provision. Thus, the trial court decided there was no binding agreement to arbitrate and again denied the motion to compel arbitration. MetroPCS appeals this ruling.

Standard of Review

In reviewing an order denying arbitration on the ground that the parties' did not agree to arbitration, this court employs a mixed standard of review. We review the record for substantial, competent evidence to support the trial court's findings of fact and consider de novo its conclusions of law. See Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003) ("The standard of review applicable to the trial court's factual findings is whether they are supported by competent, substantial evidence. However, the standard of review applicable to the trial court's construction of the arbitration provision, and to its application of the law to the facts found, is de novo. " (citation omitted) ).

Discussion

Porter may be compelled to arbitrate his dispute with MetroPCS only if he agreed to do so. See Basulto v. Hialeah Auto., 141 So.3d 1145, 1157 (Fla. 2014) ("Because the buyers have not agreed to the [arbitration clause], they cannot be compelled to arbitrate their claims for monetary relief.").

After a great deal of debate, both courts and legal commentators have concluded that well-settled legal principles of contract formation suffice to decide cases, such as this one, involving contracts entered into and evidenced by electronic means. See, e.g., Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004) ("While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.); Juliet M. Moringiello & William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L. Rev. 452, 455 (2013) ("Soon ... the courts recognized that the legal problems posed by the new technology were no different than those that had been presented in the preceding century and, therefore, judges rejected efforts to change the basic law of contracts." (footnote omitted) ). Hence, we look to those well-settled principles to determine whether the parties here agreed to arbitrate disputes arising from their electronic contract.

The key issues in most cases involving electronic contract formation is notice and manifestation of assent. In Vitacost.com, Inc. v. McCants, 210 So.3d 761, 762 (Fla. 4th DCA 2017), the court described the two types of agreements generally found in internet sales cases which concern issues of notice and assent. "A 'clickwrap' agreement occurs when a website directs a purchaser to the terms and conditions of the sale and requires the purchaser to click a box to acknowledge that they have read those terms and conditions." Id. "A 'browsewrap' agreement occurs when a website merely provides a link to the terms and conditions and does not require the purchaser to click an acknowledgement during the checkout process. The purchaser can complete the transaction without visiting the page containing the terms and conditions." Id. The agreement in this case does not precisely fit within either category, although it is akin to a browsewrap agreement in that Porter completed his transaction with MetroPCS without visiting the web page containing the terms and conditions. As Vitacost.com recognized " '[b]rowsewrap' agreements have only been enforced when the purchaser has actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice." Id. at 763. In Vitacost.com, the agreement was not sufficiently conspicuous because the purchaser had to scroll through multiple pages of products before locating the hyperlink at the bottom of a final webpage.

The notice to Porter via the pre-litigation text messages was more direct. Between the sale and the filing of this action, MetroPCS sent text messages to Porter each month letting Porter know that payment for next month's service was due and then acknowledging payment for the service. These text messages informed Porter that terms and conditions applied to use of the service. The reference to terms and conditions was a hyperlink which Porter could use to read the terms and conditions. The hyperlink was at the end of the short text messages. In marked contrast to the circumstances in Vitacost.com and other browsewrap cases, the hyperlink was not buried in pages of information or hidden at the foot of a web page.

Here notice that terms and conditions applied was conspicuous.

Porter admitted he saw the messages and the trial court found that Porter received the text message. Porter also testified he understood the messages contained a hyperlink which he could use to read the terms and conditions. Porter simply chose not to click on the hyperlink. "[A] person has no right to shut his eyes or ears to avoid information, and then say that he has no notice." Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (Fla. 1932) ; see also Meyer v. Uber Techs., Inc. 868 F.3d 66, 74-75 (2d Cir. 2017) ("Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms.").

Conclusion

Accordingly, because Porter was put on notice that his contract with MetroPCS was subject to arbitration, we reverse the trial court's order denying arbitration on the ground that the parties did not agree to arbitrate disputes arising from their contract. , The case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      If any of the means used by MetroPCS to communicate its terms and conditions of service to its customers reached Porter, his continued use of the company's services constituted assent to the terms and conditions and he must arbitrate. Thus, we will confine our analysis to the one method which we conclude sufficed as notice - the pre-litigation text messages.

      Both parties agree and we concur that the trial court erred in sua sponte extending its ruling regarding arbitration to similarly situated putative class members.

      Although on appeal the parties briefed the issue of unconscionability, the trial court never ruled on the issue because it found that there wasn't a binding arbitration agreement. Having reversed on that ground, we leave it to the trial court to decide the unconscionability issue in the first instance. See Akers v. City of Miami Beach, 745 So.2d 532 (Fla. 3d DCA 1999) ("Appellee would have us affirm the summary judgment nevertheless on the alternative ground that there is insufficient evidence to support a finding of negligence on the part of the City. Because the trial court based its judgment solely on the workers' compensation immunity and this court should not ordinarily decide issues not ruled on by the trial court in the first instance, we reverse the summary judgment and express no opinion as to the legal merits of appellee's alternative ground at this time.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Demetrius Tony JOHNSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1988
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    Ashley Brooke Moody, Attorney General, and Keri T. Joseph, Assistant Attorney General, for respondent.
    Before LOGUE and SCALES, JJ., and LAGOA, Associate Judge.
   PER CURIAM.

Demetrius Tony Johnson petitions this Court for a writ of habeas corpus. In 1997, a jury convicted Johnson of armed robbery (count 1), attempted second degree murder (count 2), and burglary with assault and battery while armed (count 3). He was sentenced to a term of thirty years on each of the three counts, his sentences to run concurrently. This Court affirmed his conviction in Johnson v. State, 725 So.2d 1273 (Fla. 3d DCA 1999). Johnson filed a Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence pertaining to his sentencing on count 3, and this Court, upon the State's confession of error, remanded for resentencing in Johnson v. State, 934 So.2d 482 (Fla. 3d DCA 2004). The trial court resentenced Johnson to three years on count 3, to run concurrently with his thirty-year sentence.

Since his conviction, Johnson has filed numerous post-conviction motions and petitions in the trial court, and appeals and petitions in this Court. In 2011, the Miami-Dade County Circuit Court issued an order barring Johnson from filing further pro se motions at the trial court level, which Johnson appealed and which this Court affirmed in Johnson v. State, 94 So.3d 596 (Fla. 3d DCA 2012) (table). This trial court order described numerous, repetitive - though fruitless - attacks by Johnson on his thirty-year sentence. Thereafter, Johnson devised new post-conviction arguments, which are present in the instant petition: (i) double jeopardy; (ii) an alleged flaw in the trial court's 2011 bar on further pro se filings; (iii) improper jury instructions; and (iv) conviction based on improper charging document as it pertained to a "weapon."

Johnson's petition in the instant case is identical to his petition for writ of habeas corpus to this Court in 2017, which we denied in Johnson v. State, 245 So.3d 718 (Fla. 3d DCA 2017) (table). These points were also raised to this Court in somewhat similar fashion in a petition for belated appeal in 2015, which we denied in Johnson v. State, 184 So.3d 533 (Fla. 3d DCA 2016) (table). We conclude that Johnson's arguments are successive, and therefore, we deny the petition and issue the following show cause order.

ORDER TO SHOW CAUSE

Johnson is hereby directed to show cause, within forty-five days of this opinion, as to why he should not be prohibited from filing any further pro se appeals, petitions, motions or other pleadings related to his criminal appeal in circuit court case number 96-40835.

If Johnson does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any further and unauthorized filings by Johnson will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018).

Petition denied. Order to show cause issued.

      Johnson v. State, 245 So.3d 718 (Fla. 3d DCA 2017) (table); Johnson v. State, 184 So.3d 533 (Fla. 3d DCA 2016) (table); Johnson v. State, 108 So.3d 1102 (Fla. 3d DCA 2013) (table); Johnson v. State, 94 So.3d 596 (Fla. 3d DCA 2012) (table); Johnson v. State, 50 So.3d 1146 (Fla. 3d DCA 2010) (table); Johnson v. State, 44 So.3d 594 (Fla. 3d DCA 2010) (table); Johnson v. State, 36 So.3d 106 (Fla. 3d DCA 2010) (table); Johnson v. State, 17 So.3d 298 (Fla. 3d DCA 2009) (table); Johnson v. State, 11 So.3d 957 (Fla. 3d DCA 2009) (table); Johnson v. State, 995 So.2d 504 (Fla. 3d DCA 2008) (table); Johnson v. State, 982 So.2d 698 (Fla. 3d DCA 2008) (table); Johnson v. State, 973 So.2d 454 (Fla. 3d DCA 2007) (table); Johnson v. State, 972 So.2d 191 (Fla. 3d DCA 2007) (table); Johnson v. State, 970 So. 2d 838 (Fla. 3d DCA 2007) (table); Johnson v. State, 951 So.2d 848 (Fla. 3d DCA 2007) (table); Johnson v. State, 917 So.2d 201 (Fla. 3d DCA 2005) (table); Johnson v. State, 934 So.2d 482 (Fla. 3d DCA 2004) ; Johnson v. State, 848 So.2d 327 (Fla. 3d DCA 2003) (table); Johnson v. State, 825 So.2d 396 (Fla. 3d DCA 2002) (table).

      This Court earlier denied habeas relief on this latter argument. See Johnson v. State, 108 So.3d 1102 (Fla. 3d DCA 2013).


author: LOGUE, J. SUAREZ, Senior Judge (dissenting).

text:
    Yosvani GONZALEZ and Yenisleidy Perez, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D17-2609
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellants.
    Cole, Scott & Kissane, P.A., and Kathryn L. Ender, Scott A. Cole, Mark D. Tinker, and Aram P. Megerian (Tampa); Hinshaw & Culbertson LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   LOGUE, J.

Yosvani Gonzalez and Yenisleidy Perez (the "Homeowners') appeal from a final summary judgment entered in favor of Citizens Property Insurance Corporation ("Citizens"). While the affidavits filed by Citizens met its burden as the movant for summary judgment, the affidavits filed by the Homeowners did not satisfy their burden as the opponents. Accordingly, we affirm.

Facts

The Homeowners sued Citizens, their property insurance carrier, for water damage to the interior of their home due to a leak in their roof. In their complaint, they alleged the roof leak was created by a wind storm event which occurred on or around July 17, 2013. The over-arching issue in the lawsuit was whether the leak in the roof was due to a wind storm event (covered by their policy) or normal wear and tear (not covered by their policy).

Citizens moved for summary judgment asserting that the leak was caused by normal wear and tear of a roof beyond its useful life and no genuine issue of fact existed in this regard. Citizens grounded its motion on two affidavits based on two separate inspections of the damaged roof. One inspection was conducted two days after the loss occurred and the other nine months after the loss occurred. Both inspections took place before the roof was replaced. The claims adjuster and roofing contractor who conducted the inspections found no evidence of wind damage. Both attributed the roof leak to wear and tear due to age. The roofing contractor indicated that the roof was twenty-one years old and beyond its useful life. He described in detail cracks in the roof membrane and the loss of the seal on the roof which he attributed to normal age-related deterioration of the roof.

To oppose the summary judgment, the Homeowners filed two affidavits by Al Brizuela, a registered engineer. The first affidavit is entirely conclusory. In it, Mr. Brizuela does little more than announce "the roof leak was the result of a one-time wind event on or about 7/17/2013" and broadly disagree with the opinion of the roofing contractor: "[t]his opinion by [the roofing contractor] is not backed by any scientific evidence and there is no evidence to support the application of these allegations to the subject house or roof." Significantly, Mr. Brizuela had not inspected the property at the time he signed his first affidavit and he gives no basis for his opinion.

Mr. Brizuela then submitted a second affidavit based on an inspection. In it and the attached "Proof of Loss Evaluation and Assessment Report," Mr. Brizuela opined that "openings [in the roof] were created by strong wind and rain events that took place between June 29th and July 3rd, 2013." (Emphases omitted). His opinion in this regard was based first upon his "eye witness account" in which "[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge." He did not describe what the damage to the roof looked like. He admits, moreover, that his inspection of the roof occurred one year after the Homeowner had entirely replaced the damaged roof. He did not explain how he was able to observe "damages to the roof" when the damaged roof had been replaced one year earlier.

Secondly, he finds that the roof was subject to "high winds between June 29th and July 3rd, 2013 when winds up to 60 mph were recorded near the property." In particular, he opined that the subject property experienced 60-mph winds because Miami-Opa Locka Airport, which is located more than three miles from the subject property, recorded wind "gusts" of 60 miles per hour of unknown duration on June 29, 2013. Significantly, the claimed date of loss was two weeks later on or about July 17, 2013. Moreover, Mr. Brizuela admitted "Predicting wind at other locations, wind speed from a particular direction at a particular time, with an acceptable degree of accuracy is currently highly inaccurate."

Analysis

This Court reviews a trial court's ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. "Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015).

A court considering summary judgment must avoid two extremes. On the one hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez-Gurri Corp. v. McLeod, 238 So.3d 347, 350 (Fla. 3d DCA 2017). On the other hand, a "party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict." Perez-Rios v. Graham Cos., 183 So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1108 (Fla. 4th DCA 2000) ).

We hold that the two affidavits submitted by Citizens were sufficient to meet its burden as movant for summary judgment. It therefore became the burden of the Homeowners, as the parties opposing the motion, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to subsection (f) of the rule; or (2) file "summary judgment evidence on which the adverse party relies," pursuant to subsection (c) of the summary judgment rule. Fla. R. Civ. P. 1.510.

The Homeowners chose the second option and filed affidavits in opposition. In this situation, the law of Florida shifts the burden to present evidence from the movant to the party opposing summary judgment:

If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result - that is, evidence sufficient to generate an issue on a material fact. When analyzed in this fashion the summary judgment motion may be categorized as a "pre-trial motion for a directed verdict." At least it has most of the attributes of a directed verdict motion.
The initial burden, therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent's witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.

Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782-83 (Fla. 1965) (citations omitted).

In this regard, the Rule requires that "opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary judgment must identify "admissible evidence that creates a genuine issue of material fact." Panzera v. O'Neal, 198 So.3d 663, 665 (Fla. 2d DCA 2015) (citing Rooker v. Ford Motor Co., 100 So.3d 1229, 1231 (Fla. 2d DCA 2012) ). The purpose of this requirement is "to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief." Alvarez v. Fla. Ins. Guar. Ass'n, Inc., 661 So.2d 1230, 1232 (Fla. 3d DCA 1995) (quoting Pawlik v. Barnett Bank of Columbia Cty., 528 So.2d 965, 966 (Fla. 1st DCA 1988) ).

The focus is on whether the affidavits show evidence of a nature that would be admissible at trial; if so, any questions regarding relative credibility or weight of that evidence compared to other evidence cannot be resolved on summary judgment but must be left for the trier of fact. Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999) ("In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence.").

Thus, for example, an affidavit averring a pilot had sometimes in the past allowed other persons in a plane to pilot aircrafts did not create an issue of fact as to whether the pilot was allowing another person to pilot the aircraft during a particular fatal crash: "[i]t is well established that affidavits, such as those presented by plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment." Morgan v. Cont'l Cas. Co., 382 So.2d 351, 353 (Fla. 3d DCA 1980) (citing Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1961) ).

Similarly, an affidavit that summarily states a property was used for certain purposes without providing any supporting details and the basis for such knowledge does not "set forth such facts as would be admissible in evidence" and therefore cannot be used to defeat summary judgment. Stolzenberg v. Forte Towers S., Inc., 430 So.2d 558, 559 (Fla. 3d DCA 1983) (quotation omitted). See, e.g., Pino v. Lopez, 361 So.2d 192, 193 (Fla. 3d DCA 1978) (Plaintiff's affidavit in opposition to the motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts.).

Along the same lines, the principle that "no weight may be accorded [to] an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning," Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981), applies with equal force in the context of summary judgment motions. See, e.g., Panzera, 198 So.3d at 665 (purely speculative opinion testimony is not admissible evidence and cannot be relied on to create a material issue of fact to defeat summary judgment).

Here, the Homeowners' expert's opinion that the leak in the roof on July 17, 2013, was created "by strong wind and rain events that took place between June 29th and July 3rd, 2013" was based on his inspection of the subject roof. But he inspected the "damage" a year after the damaged roof was replaced. Nevertheless he asserted that during his inspection, "[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge." Unless there somehow occurred a suspension of the general laws of physics and common human experience, one cannot normally observe "damages to the roof" after the damaged roof was replaced. De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259, 264 (Fla. 3d DCA 2016) (en banc) ("A judge is not required to check his or her common sense in the robing room."). If there were some unusual and abnormal circumstances which would allow such observation, it was incumbent upon the expert to identify those matters. Absent a description of the physical appearance of the wind damage or other explanation, Mr. Brizuela's expert opinion rests, at best, on conjecture and surmise. It lacks the required "discernible, factually-based chain of underlying reasoning" necessary for an expert opinion to be admissible in evidence. See, e.g., Samter, 393 So.2d at 1145.

Similarly, the Homeowners' expert admits that using the wind speed from one location to determine the wind speed at a different location "is currently highly inaccurate." Yet he proceeded to do precisely what he said could not be done accurately. He hypothesized that wind gusts recorded more than three miles from the subject property two weeks before the loss prove that sustained winds at the subject property were the cause of a loss occurring two weeks later. Setting aside the discrepancy in the dates, this basis of his opinion also fails. An expert opinion that relies upon information that the expert himself testifies is untrustworthy does not qualify as "the product of reliable principles and methods" under the statute governing expert opinions. Alvarez v. All Star Boxing, Inc., 258 So.3d 508, 513 (Fla. 3d DCA 2018).

For these reasons, the trial court was correct. The Homeowners' affidavits opposing summary judgment did not create a genuine issue of material fact to defeat Citizens' summary judgment motion. Accordingly, summary judgment was properly granted.

MILLER, J., concurs.

SUAREZ, Senior Judge (dissenting).

I respectfully dissent.

The issue on appeal is one that trial courts face every day and have for years. The issue is whether competing expert affidavits create an issue of fact such that summary judgment cannot be entered. The trial court determined that the Homeowner's expert affidavit did not create a material issue of fact and granted summary judgment. To arrive at its decision, the trial court impermissibly entered the province of the jury by making findings of fact, weighing the competing evidence presented in the two affidavits and making determinations as to the credibility of the experts and the evidence presented. These are all issues for the finder of fact to determine at trial. They are not issues to be determined by the trial court at the summary judgment phase. I would, therefore, reverse the summary judgment and remand for further proceedings in the trial court.

It is undisputed that the Homeowners own property located in Hialeah, Florida and purchased a homeowners' insurance policy through Citizens, which was effective from June 3, 2013 through June 3, 2014. At the summary judgment phase it was undisputed that there was water damage to the interior of the home caused by a leak in the roof. The entire issue in the case is whether, as Citizens argues, the leak was caused by wear and tear to the roof and, therefore, not a covered loss under the policy or, as the Homeowners argue, was caused by a physical loss to the roof that allowed water to enter and would, arguably, be covered by the policy.

On appeal, the Homeowners argue that the trial court erred in granting summary judgment in favor of Citizens. Specifically, the Homeowners assert that the evidence before the trial court showed that there was a genuine issue of material fact as to the cause of the loss, and that the trial court improperly weighed the evidence and assessed the credibility of the expert witnesses. I agree on both points.

"A trial court may enter a summary judgment when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter of law,"

Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789,790 (Fla. 3d DCA 2010). "If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991). Significantly, in considering a motion for summary judgment, a trial court is not permitted to weigh material conflicting evidence or adjudge the credibility of the witnesses. Garcia v. First Cmty. Ins. Co., 241 So.3d 254, 257 (Fla. 3d DCA 2018). But that is exactly what the trial court did.

Based upon my review of the record and affidavits filed in this case, I would find that there are genuine issues of material fact as to the cause of water damage to the Homeowners' property that preclude the entry of summary judgment. In its amended motion for summary judgment, Citizens argued that "the leakage and seepage [that entered the property] is due to the wear and tear, marring, and deterioration of the roof" rather than a covered peril. Citizens relied upon Brown's affidavit, in which he concluded that the "[t]he roof leak claimed in this matter ... is the direct result of normal wear and tear of the roof system and the leak is not through a wind storm intrusion." In their memorandum of law in opposition to Citizens' amended motion for summary judgment, homeowners relied upon Brizuela's second affidavit in support of their assertion that the roof leak was caused by a covered peril, i.e., exterior roof openings caused by "wind uplift." Specifically, homeowners relied upon Brizuela's statement in his affidavit that moisture entered the property through openings "created by strong wind and rain events that took place between June 29th and July 3rd, 2013. The strength of the winds during this period ranged from 34 up to 60 mph. These damages were observed inside the property when in a 2-day period more than 4 inches of rain fell on the property." The conflicting affidavits of Brown and Brizuela establish a genuine issue of material fact regarding the cause of loss. As a result, no summary judgment should have been entered. See id. at 258 ; Charles E. Burkett & Assocs., Inc. v. Vick, 546 So.2d 1190, 1191 (Fla. 5th DCA 1989) (holding that conflicting affidavits created a genuine issue of material fact and that summary judgment should not have been entered).

The trial court impermissibly weighed the evidence and assessed the credibility of witnesses in granting Citizens' amended motion for summary judgment. In announcing its ruling, the trial court stated that it was "adopt[ing] and incorporate[ing] by reference" Citizens' argument that Brizuela's affidavit and report did not create a genuine issue of material fact as they were based upon an inspection conducted four years after the loss. Indeed, during the hearing, the trial court stated that "[m]y position is that why didn't [homeowners'] inspection take place sooner like [Citizens'] did, two days after the event and then nine months after." The trial court further stated that an opinion based upon an inspection conducted two days or nine months after the alleged damage "has a higher degree of accuracy, at least for this court," than one that occurs four years later. Any issues as to the credibility and accuracy of Brizuela's opinion due to the timing of his inspection, however, are for the trier of fact, not the trial court in a summary judgment proceeding. Garcia, 241 So.3d at 258 ("The consideration of the timing of Brizuela's inspection of the property in relation to that of [insurer's] engineer, however, goes to the credibility and weight of Brizuela's opinion regarding the cause of loss. It is well-established that issues of credibility and weight of the evidence are not appropriate in a summary judgment determination."); see also Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 346 (Fla. 3d DCA 1999) (stating that witness credibility "was a matter within the province of the trier of fact and not the court on a motion for summary judgment"); Juno Indus., Inc. v. Heery Int'l, 646 So.2d 818, 822 (Fla. 5th DCA 1994) ("The trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding.").

In the opinion, the majority determines factual issues, weighs the conflicting evidence and determines credibility of the witnesses. Again, these are issues for the trier of fact and not for the summary judgment phase. In referring to the Homeowner's affidavit, the majority opinion states:

Here, the Homeowners' expert's opinion that the leak in the roof on July 17, 2013, was created "by strong wind and rain events that took place between June 29th and July 3rd, 2013" was based on his inspection of the subject roof. But he inspected the "damage" a year after the damaged roof was replaced. Nevertheless he asserted that during his inspection, "[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge." Unless there somehow occurred a suspension of the general laws of physics and common human experience, one cannot normally observe "damages to the roof" after the damaged roof was replaced.... If there were some unusual and abnormal circumstances which would allow such observation, it was incumbent upon the expert to identify those matters. Absent a description of the physical appearance of the wind damage or other explanation, Mr. Brizuela's expert opinion rests, at best, on conjecture and surmise. It lacks the required "discernible, factually-based chain of underlying reasoning" necessary for an expert opinion to be admissible in evidence.

The majority then goes on to state:

Similarly, the Homeowners' expert admits that using the wind speed from one location to determine the wind speed at a different location "is currently highly inaccurate." Yet he proceeded to do precisely what he said could not be done accurately. He hypothesized that wind gusts recorded more than three miles from the subject property two weeks before the loss prove that sustained winds at the subject property were the cause of a loss occurring two weeks later. Setting aside the discrepancy in the dates, this basis of his opinion also fails. An expert opinion that relies upon information that the expert himself testifies is untrustworthy does not qualify as "the product of reliable principles and methods" under the statute governing expert opinions."

These are the types of arguments an attorney would make to the finder of fact in the hope of convincing the finder of fact that in weighing the conflicting expert evidence (one expert opines the water damage is due to wear and tear and the other expert opines it is due to uplift caused by wind), the expert's opinion based on these facts is not as reliable as the opposing opinion based on the facts presented by the opposing expert. In other words, the majority, as did the trial court, is looking at these facts and is determining that these facts are not reliable and do not support the expert's opinion and, therefore, the expert is also not credible. Again, the weighing of conflicting evidence and the determination of the credibility of the witness are issues to be determined by the trier of fact and are not, as has been done here and by the trial court, issues to be determined at the summary judgment stage.

For these reasons I would reverse and remand for further proceedings.

      The roofing contractor hired by Citizens, who testified to having 45 years of experience, averred in his affidavit:
      11. Upon physical inspection of the flat front roof, I found that the membrane is well worn, there are cracks to the membrane, a topical sealer that has been applied, and some of the cracks extend completely through the top membrane. Edges of the roof membrane are no longer sealed to the metal drip edge allowing water leakage.
      12. The previously mentioned conditions on this flat front roof are consistent with normal wear and tear and the mentioned repairs are considered only a temporary fix for any issues since topical sealants will deteriorate from exposure to the sun's UV Rays.
      13. Upon inspection of the back flat roof, I observed it is in a similar condition as the front flat roof, but it does have a different membrane used as the cap sheet. There are similar cracks in the cap sheet, a topical sealant has been applied along the laps of the material, and the edges of the roof system are no longer sealed to the metal drip edge.
      14. The conditions mentioned regarding the back flat roof are considered as normal wear and tear of the system as it ages.
      15. The roof leak claimed in this matter ... is the direct result of normal wear and tear of the roof system and the leak is not through a wind storm intrusion.

      Although he expressly states the roof was replaced ("the roof was replaced before we inspected"), he also states "[w]e would recommend the replacement of the roofing system if the homeowner has not done it yet."

      Harvey Building has been continuously cited for over sixty years and remains the black letter law today. See, e.g., The Fla. Bar v. Mogil, 763 So.2d 303, 307 (Fla. 2000) (citing Harvey Building with approval); Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) (same); Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So.3d 383, 389 (Fla. 2d DCA 2018) (same); Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So.3d 602, 610 (Fla. 4th DCA 2013) (same); Juarez v. New Branch Corp., 67 So.3d 1159, 1160 (Fla. 3d DCA 2011) (same); Cassady v. Moore, 737 So.2d 1174, 1178 (Fla. 1st DCA 1999) (same); Magma Trading Corp. v. Lintz, 727 So.2d 377, 378 (Fla. 5th DCA 1999) (same).

      The policy at issue provides:
      COVERAGE A - DWELLING and COVERAGE B - OTHER STRUCTURES
      We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property.
      ....
      We do not insure, however, for loss:
      ....
      2. Caused by:
      ....
      h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.
      i. Any of the following:
      (1) Wear and tear, marring, deterioration;


author: MILLER, J.

text:
    Ashley RIERSON, Appellant, v. David DEVEAU, et al., Appellees.
    No. 3D18-0246
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019 Rehearing Denied April 23, 2019
    Seiden Law and Henry A. Seiden (Delray Beach), for appellant.
    Vernis & Bowling of The Florida Keys, P.A., and Gaelan P. Jones and Scott C. Black ; Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. and Robert I. Buchsbaum, (Hollywood), for appellees.
    Before SALTER, and MILLER, JJ., and LEBAN, Senior Judge.
   MILLER, J.

Ashley Rierson, appeals the final judgment rendered in this personal injury action in favor of appellees, David Deveau, Latrice Pla, Abraham Baker, and Donald Lassman, as Chapter 7 Trustee of the Bankruptcy Estate of David Deveau. Rierson raises five issues on appeal. For the reasons set forth below, we conclude that the trial court abused its discretion in denying appellant's motion for a new trial. Thus, we reverse and remand for a new trial.

FACTS

Appellant, Rierson, suffered catastrophic injuries after she was struck by Deveau's motor vehicle while she was traversing a three-lane roadway in Monroe County, Florida. The impact from Deveau's vehicle propelled Rierson into another lane of traffic, where she was struck again by a vehicle operated by Pla and owned by Baker.

Florida Highway Patrol Trooper Juan Sanchez responded to the scene shortly after the accident. Trooper Sanchez conducted a lengthy investigation and ultimately concluded that Deveau was at fault for failing to avoid the accident. Deveau was cited for violating section 316.130(15), Florida Statutes (2018), which provides:

Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.

Deveau entered a plea of nolo contendere to the citation, and was thereafter adjudicated guilty.

Immediately prior to trial, Deveau sought and obtained orders in limine prohibiting any and all reference to the traffic citation and the contents of the accident report. At trial, appellees contested both liability and damages. Rierson relied heavily upon the testimony of Trooper Sanchez in establishing her theory of the case. During closing argument, Deveau's counsel told the jury that Trooper Sanchez had not "rendered a single opinion about fault in [the] accident." A specific, contemporaneous objection was overruled by the trial court. Deveau's counsel then further argued that Trooper Sanchez had not reconstructed the accident and had no opinion as to whether Deveau "use[d] the lane appropriately," or as to whether or not Deveau was negligent.

Following deliberations, the jury returned a verdict of no liability as to all appellees. Rierson sought a new trial, which was denied by the trial court. This appeal ensued.

ANALYSIS

We review a trial court's denial of a motion for new trial based on improper closing arguments for an abuse of discretion. See, e.g., Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006). Where the issue of alleged improper closing argument is properly preserved, the trial court should grant a new trial if the argument was "highly prejudicial and inflammatory."

See, e.g., Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999) (citation omitted). In order "[t]o determine whether the challenged statements and arguments were in fact prejudicial, the statements cannot be evaluated in isolation but must be placed and evaluated in context." Engle, 945 So.2d at 1272 (citing State v. Jones, 867 So.2d 398, 400 (Fla. 2004) ).

Here, Rierson contends the closing argument improperly suggested that Trooper Sanchez did not issue a citation to Deveau for the accident. "It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error, which in appropriate circumstances will warrant a new trial." Moore v. Taylor Concrete & Supply Co., 553 So.2d 787, 789 (Fla. 1st DCA 1989) ; see also Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla. 1956) ; Budget Rent A Car Sys., Inc. v. Jana, 600 So.2d 466, 467 (Fla. 4th DCA 1992) (holding that police officer's testimony that a citation had been issued to other driver was improper and should have resulted in mistrial); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991) (holding that statement by police officer that there was no improper driving on the part of defendant motorist required a new trial, as statement was tantamount to a declaration by officer that no traffic summons had been issued in the case); Estate of Wallace v. Fisher, 567 So.2d 505, 508 (Fla. 5th DCA 1990) (holding that admission of officer's testimony regarding issuance of traffic citation was prejudicial and reversible). In Albertson v. Stark, 294 So.2d 698, 699 (Fla. 4th DCA 1974), the Fourth District Court of Appeal explicated the rationale for the rule as follows:

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror's determination of fault on the part of the respective drivers.

See also Soto v. McCulley Marine Servs., Inc., 181 So.3d 1223, 1226 (Fla. 2d DCA 2015) ("The negligence standard employed by juries is not the same as the standard used by individual law enforcement officers when deciding whether to write a ticket.").

In Elsass v. Hankey, 662 So.2d 392 (Fla. 5th DCA 1995), the Fifth District Court of Appeal considered whether the lower court erred in failing to grant a motion for mistrial made during closing argument in a personal injury case. There, the cited driver, Cecil Hankey, obtained an order in limine precluding any reference to his traffic citation at trial. Nonetheless, during closing argument, his attorney argued: "I didn't hear [the investigating officers] say it's Cecil Hankey's fault." Id. at 393. Concluding that the argument impermissibly suggested to the jury that Hankey was not charged by law enforcement with causing the accident, the court reversed and remanded for a new trial. The court noted: "In this case, the argument was especially egregious in light of the fact that Cecil Hankey was the one to whom the investigating officers issued a citation for the accident." Id.

Likewise, in Diaz v. FedEx Freight E., Inc., 114 So.3d 224 (Fla. 5th DCA 2012), the trial court granted a motion in limine precluding testimony regarding the issuance of a citation or the assignment of fault. Nonetheless, at trial, the traffic homicide investigator testified he "was given no reason to feel there was any fault on the part of the [driver of appellee's] vehicle." Id. at 226. The Fifth District Court of Appeal held that, although a lack of traffic citation was not directly referenced, the investigator's opinion of "no fault" improperly implied that the driver was not cited, necessitating reversal.

Here, the statements by Deveau in closing argument that Trooper Sanchez had not "rendered a single opinion about fault in [the] accident" and had not formulated opinions regarding negligence or the propriety of Deveau's lane usage were improper, as the reasonable inference to be drawn was that Deveau was not cited for causing the accident. Thus, we conclude that the trial court indeed erred in overruling Rierson's objection.

As there is some legal authority that "testimony regarding whether a party is charged with a traffic violation does not constitute per se reversible error," we turn our analysis to whether the error is harmless. Wainer v. Banquero, 713 So.2d 1104, 1105 (Fla. 4th DCA 1998). Appellees, as "the beneficiary of the error [have] the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, [appellees, as] the beneficiar[ies] of the error must prove that there is no reasonable possibility that the error contributed to the verdict." Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (emphasis supplied).

Here, the issue of liability was vigorously disputed. Rierson was rendered comatose and unable to communicate immediately following the accident, thus Trooper Sanchez was the sole witness at the scene upon whom she could rely to advance her theory of the case. The argument to the jury that Trooper Sanchez did not find fault or any assignment of negligence, was not only untrue, but also improperly implied the imprimatur of a perceived objective authority on Deveau's conduct, effectively divesting the jury of the need to conduct an independent analysis of the dispositive preliminary issue.

The prejudice resulting from the improper closing statements was further compounded by the fact that the orders in limine prevented Rierson from addressing the depth of the Trooper's investigation or his opinion regarding fault. It is axiomatic that "it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented." State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 74 (Fla. 2d DCA 2013) (quoting JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 115 (Fla. 4th DCA 2010) ). As in Elsass, 662 So.2d at 393, the argument was particularly grievous, as Deveau was indeed the one to whom the investigating officer issued a citation for the accident. See Iowa Nat'l Mut. Ins. Co. v. Worthy, 447 So.2d 998, 1000 (Fla. 5th DCA 1984) ("An order in limine should only be used as a shield and never to gag the truth and permit other evidence to mislead the jury."); see also Carnival Corp. v. Pajares, 972 So.2d 973, 975-76 (Fla. 3d DCA 2007) (holding that closing argument statements commenting on a witness's failure to offer testimony regarding information excluded by a motion in limine was improper because the statements implied the defendant "had no favorable testimony to provide" on the issue); Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485 (Fla. 3d DCA 1997) (granting a new trial where counsel, after succeeding in excluding evidence, raised in closing opposing counsel's failure to present the excluded evidence).

Under these circumstances, "[w]e cannot disregard the likelihood that [the] comments influenced jurors, however subtly, in their determination," that Deveau bore no responsibility for the accident and we conclude appellees have not demonstrated harmless error. White v. Consol. Freightways Corp. of Del., 766 So.2d 1228, 1233 (Fla. 1st DCA 2000).

Thus, we conclude the trial court abused its discretion in denying the motion for new trial. Accordingly, we reverse the trial court's denial of appellant's motion for new trial, and remand with directions to vacate the judgments entered in favor of the appellees and grant appellant a new trial on the issues of liability and damages.

Reversed and remanded.

      Section 316.066(4), Florida Statutes (2018) provides: "Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal ." (emphasis supplied).

      With regard to the standard of review, Florida courts have noted "a stronger showing is required to reverse an order allowing a new trial than to reverse an order denying a motion for new trial." State Farm Fire and Cas. Co. v. Higgins, 788 So.2d 992, 1006 (Fla. 4th DCA 2001) (quoting Cenvill Cmtys., Inc. v. Patti, 458 So.2d 778, 781 (Fla. 4th DCA 1984) ); see also ESCA Inv., Inc. v. Tarraza, 239 So.3d 1285, 1286 (Fla. 3d DCA 2018) (citing Castlewood Int'l Corp v. LaFleur, 322 So.2d 520, 522 (Fla. 1975) ("A heavy burden rests on appellants who seek to overturn [an order granting a new trial], and any abuse of discretion must be patent from the record.") ). Moreover, "the closer an issue comes to being purely legal in nature, the less discretion a trial court enjoys in ruling on a new trial motion." Van v. Schmidt, 122 So.3d 243, 258 (Fla. 2013) (quoting Tri-Pak Mach., Inc. v. Hartshorn, 644 So.2d 118, 119 (Fla. 2d DCA 1994) ).

      See State v. DiGuilio, 491 So.2d 1129, 1135 (1986), for a discussion comparing the per se reversible rule and the harmless error rule.

      We reject the argument that Rierson opened the door to Deveau's improper closing argument statements. See, e.g., Soto, 181 So.3d at 1226 ("Arguing that a defendant violated a provision of law that is relevant to the determination of negligence simply does not open the door to admitting a law enforcement officer's decision on whether to issue a citation for that violation.").

      As we reverse on these grounds, it is unnecessary to address the allegations of juror misconduct arising out of the foreperson's concealment of her true identity and past litigation history. We assign no error to the remaining issues.


text:
    Harvey JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-288
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    Harvey Jackson, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Affirmed. See Jackson v. State, 175 So.3d 368 (Fla. 3d DCA 2015).


author: SCALES, J.

text:
    PHILIP MORRIS USA, INC., et al., Appellants, v. Kenneth GLOGER, etc., Appellee.
    No. 3D18-341
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019 Rehearing Denied April 30, 2019
    King & Spalding LLP, and William L. Durham II and Val Leppert (Atlanta, Georgia), for appellant R.J. Reynolds Tobacco Company; Shook, Hardy & Bacon LLP, and Laura K. Whitmore (Tampa); Arnold & Porter Kaye Scholer LLP, and Keri L. Arnold and Geoffrey J. Michael (Washington, DC), for appellant Philip Morris USA Inc.
    Crabtree & Auslander, and John G. Crabtree, Key Biscayne, Charles M. Auslander, Linda A. Wells, Brian C. Tackenberg, Key Biscayne and Emily Cabrera, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   SCALES, J.

In this Engle progeny wrongful death action, Phillip Morris USA Inc. and R.J. Reynolds Tobacco Company, the defendants below (collectively, the "tobacco defendants"), appeal a final judgment entered pursuant to a jury verdict in favor of the plaintiff below, Kenneth Gloger, as personal representative of the estate of his wife, Irene Gloger. The tobacco defendants challenge various aspects of the trial conducted below, one of which merits discussion and warrants reversal. Specifically, because we conclude that the trial court abused its discretion in permitting Mr. Gloger to testify, without limitation, that Mrs. Gloger's initial, treating physicians (both oncologists, who did not testify at trial) told the Glogers that Mrs. Gloger had primary lung cancer caused by smoking cigarettes, we reverse the final judgment and remand the case for a new trial.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

In July 2011, Kenneth Gloger, as personal representative for the estate of his deceased wife, Irene Gloger, filed the instant wrongful death action against the tobacco defendants and others in the Miami-Dade County Circuit Court. The second amended complaint alleged, in relevant part, that: (i) Mrs. Gloger had contracted lung cancer as a result of smoking cigarettes manufactured, advertised, marketed, and sold by the tobacco defendants; (ii) Mrs. Gloger's death, on November 22, 1996, was a direct and proximate result of her addiction to smoking the tobacco defendants' cigarettes; and (iii) the Glogers and their children have Engle class member status. The tobacco defendants specifically denied these allegations.

The lower court ordered that trial be conducted in two phases. In phase 1, the jury verdict form asked the jury to decide: (i) whether Mrs. Gloger was addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of lung cancer and death; (ii) whether smoking cigarettes manufactured by the tobacco defendants was a legal cause of Mrs. Gloger's lung cancer and death; (iii) the percentage of fault between Mrs. Gloger and the tobacco defendants; (iv) whether concealment or omission of material information concerning the health effects or addictive nature of smoking cigarettes sold by the tobacco defendants was a legal cause of Mrs. Gloger's lung cancer and death; and (v) whether the furtherance of the tobacco defendants' agreement with other tobacco companies to conceal or omit material information concerning the health effects or addictive nature of smoking cigarettes was a legal cause of Mrs. Gloger's lung cancer and death. Based on these findings, the jury was asked to award compensatory damages and to determine whether an award of punitive damages was warranted. In phase 2, the jury verdict form asked the jury to determine the amount of punitive damages to award against the tobacco defendants.

Prior to trial, on October 6, 2017, the tobacco defendants filed a motion in limine seeking to exclude, as hearsay, any out-of-court statements made to the Glogers by non-testifying doctors about the origin and progression of Mrs. Gloger's cancer. Specifically, the tobacco defendants sought to preclude Mr. Gloger from testifying that the two oncologists (Drs. Sinkovics and Altemose) who, in 1995 and early 1996, initially treated Mrs. Gloger for her cancer, told the Glogers that Mrs. Gloger had lung cancer caused by smoking cigarettes.

At a subsequent hearing, the trial court ruled on the tobacco defendants' motion in limine, finding that the oncologists' statements to the Glogers were not hearsay because the statements were being offered not for their truth (i.e., whether Mrs. Gloger had lung cancer ), but to show the "effect on listener" (i.e., the emotional impact Mrs. Gloger's diagnosis with cancer had on Mr. Gloger). The trial court held that the subject statements were relevant to support Mr. Gloger's damages claims for pain and suffering; specifically, the statements demonstrated "when the damages started to flow."

When defense counsel requested that the trial court give a limiting instruction to the jury that the oncologists' statements be considered only for the "explicit purpose of the effect on the listener to Mr. Gloger for his damages," the trial court initially denied the request, explaining:

THE COURT: [Mr. Gloger is] going to claim that he's suffering because someone told him his wife is dying of cancer. And if it was lung cancer, fine. The issue still remains, is it lung cancer. Just because - there's going to be evidence going both ways as to whether her lung cancer was the cause of her death. You'll be able to argue that if the jury - I'm not going to instruct them. But you can certainly argue that.... I'm sorry [Mr. Gloger] began to suffer, but that doctor that told him that was wrong. You're going to find that he [sic] didn't die of lung cancer and, therefore, his suffering - we feel bad for him, but - Just like every other case, you have to prove that someone wasn't hurt because of what my client did.

(Emphasis added).

At a later hearing, defense counsel again challenged the introduction of the oncologists' statements at trial, suggesting that Mr. Gloger be limited to testifying that Drs. Sinkovics and Altemose told the Glogers that Mrs. Gloger had "cancer, that it was termina[l] cancer, deadly cancer, however the Court finds is fair and appropriate under the circumstances." Citing to section 90.403 of the Florida Statutes, defense counsel argued that limiting Mr. Gloger's testimony in this fashion eliminated the prejudice to the tobacco defendants "under a 403 analysis" without diminishing the impact the cancer diagnosis had on Mr. Gloger when he heard it. Defense counsel emphasized, "[T]hat, to us, is a solution to the problem of letting in back-door testimony about lung cancer from witnesses that are not going to be testifying in the case ...." The trial court declined to limit Mr. Gloger's testimony in such fashion, but agreed to give a limiting instruction when Mr. Gloger testified about what the oncologists told him and Mrs. Gloger.

Defense counsel then filed a legal memorandum arguing that a limiting instruction would be insufficient, arguing again that "the proper remedy is to substitute the word 'terminal' for the word 'lung' when Mr. Gloger tells the jury about the conversations" with Drs. Sinkovics and Altemose. At trial, the lower court denied the tobacco defendants' request, stating its intention to give a limiting instruction.

When Mr. Gloger's trial testimony turned to the conversations he and Mrs. Gloger had with Drs. Sinkovics and Altemose, the trial court gave the following limiting instruction:

THE COURT: Ladies and gentlemen of the jury, Mr. Gloger is now going to testify about things that his doctor told ... his wife and him. And these things involve his wife's diagnosis.
You may consider what Mr. Gloger heard to evaluate the effect that information had on Mr. Gloger. Based on a rule of law relating to hearsay, however, you may not consider what the doctors told Mr. Gloger for the truth of the matter asserted, just the effect the information had on Mr. Gloger.

Mr. Gloger then testified, in relevant part, as follows:

Q. [by Plaintiff's counsel] Back to Dr. Sinkovics, so he's a cancer doctor?
A. [by Kenneth Gloger] Yes.
Q. And he works at St. Joe's cancer center?
A. Yes.
....
Q. And so before you have the treatment, you meet with the cancer doctor, and did this cancer doctor, oncologist, Dr. Sinkovics, tell you what Irene had?
A. He believed that she had lung cancer.
Q. Did he tell you what it was caused by?
A. Said it was probably caused by smoking.
Q. After Dr. Sinkovics treated her for a while and he started some therapy, did there come a time when you transferred to another oncologist, also at the St. Joe's cancer center who took over the care of Irene?
A. Yes, that's correct.
Q. What was his name?
A. His name was Dr. Rand Altemose.
Q. And was Dr. Altemose, likewise, a cancer doctor, oncologist who was responsible for the treatment of your wife?
A. Yes, he was.
Q. And did you talk to Dr. Altemose about the cause of - strike that. Did you talk to Dr. Altemose about his diagnosis for Irene?
A. Yes, we did.
Q. And what did he say?
A. He said it was from smoking, lung cancer.
Q. He said she had lung cancer from smoking?
A. Yes.
....
Q. And did there come a point in time where Dr. Altemose referred you on to Dr. Ruckdeschel[ ] and the Moffitt Cancer Center?
A. Yes.
....
Q. And did you listen to Dr. Altemose and go to Moffitt Cancer Center?
A. Yes, we did.
....
Q. Did Dr. Ruckdeschel explain to you what he believed the - her diagnosis and its cause?
A. Yes, he said she had lung cancer and he believed it was from smoking.
Q. Obviously, this was tough news for you and your wife to hear?
A. Yes, she was very weak at that point.
Q. I'm talking about even going back to Dr. Sinkovics, I'm sorry. Going back to Dr. Sinkovics, back to 1995, the first time you heard it, the second time you heard it, the third time you heard it, or whenever you heard it.
A. Oh, it was devastating. I - I had no idea. I mean, Irene was, for the most part, very healthy prior to this diagnosis.

The jury returned a verdict in favor of the estate, finding R.J. Reynolds Tobacco Company fifty percent at fault, Philip Morris USA, Inc. thirty percent at fault, and Mrs. Gloger twenty percent at fault. The jury awarded $ 7.5 million in compensatory damages ($ 2.5 million to Mr. Gloger, and $ 2.5 million each to the Glogers's two children) and finding punitive damages were appropriate. In phase 2 of the trial, the jury awarded $ 5 million in punitive damages against each of the tobacco defendants ($ 10 million total). On February 4, 2018, the trial court entered a final judgment pursuant to the jury verdicts. This appeal ensued.

II. ANALYSIS

1. The out-of-court statements by Drs. Sinkovics and Altemose were offered to prove the "effect on listener" and, therefore, were not hearsay.

We begin our analysis by deciding whether, as a matter of law, the subject out-of-court statements by Drs. Sinkovics and Altemose were hearsay in this case.

Under the Florida Evidence Code, "[h]earsay" is defined as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2018). While hearsay evidence is generally inadmissible at trial, see § 90.802, Fla. Stat. (2018), if the out-of-court statement "is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case." Penalver v. State, 926 So.2d 1118, 1132 (Fla. 2006) ; see also § 90.401, Fla. Stat. (2018) ("Relevant evidence is evidence tending to prove or disprove a material fact.").

As the surviving spouse in this wrongful death action, Mr. Gloger was entitled to seek recovery for the loss of his wife's "companionship and protection and for mental pain and suffering from the date of injury ." § 768.21(2), Fla. Stat. (2018) (emphasis added); see also Fla. Std. Jury Instr. (Civ.) 502.2(d). Consistent with section 768.21 and the standard jury instruction, the estate's counsel sought to establish Mr. Gloger's entitlement to damages by introducing the oncologists' out-of-court statements to demonstrate the emotional impact (i.e., the "effect on listener") on Mr. Gloger of hearing, for the first time, that his wife had cancer. Because the subject testimony was not offered to prove the truth of what was told to Mr. Gloger by the non-testifying doctors - i.e., that Mrs. Gloger's cancer originated in her lung - it was not hearsay; and, because such evidence was relevant to a material issue in the case (Mr. Gloger's damages), it was admissible at trial. See, e.g. Pitts v. State, 227 So.3d 674, 678 (Fla. 1st DCA 2017) ("If a statement is offered to show the effect on the listener rather than the truth of the statement, as was the case in this instance, it is not hearsay.");

North v. State, 221 So.3d 1235, 1237 (Fla. 2d DCA 2017) (recognizing that "an out-of-court statement may be admissible to establish the material effect that statement had on a listener - regardless of whether that statement was true or not"); Jenkins v. State, 189 So.3d 866, 867 (Fla. 4th DCA 2015) ("Because the excluded testimony was not being introduced for the truth of the matter asserted but rather for the effect on the listener, we find that the trial court erred in excluding the statement as hearsay.").

2. The out-of-court statements by Drs. Sinkovics and Altemose were subject to limitation under section 90.403 of the Florida Statutes.

Having determined that the out-of-court statements by Drs. Sinkovics and Altemose were not hearsay in this case, this Court turns to whether the statements should nevertheless have been excluded or limited under section 90.403 of the Florida Statutes.

a. The trial court's limiting instruction was not effective in this case

Section 90.403 gives the trial court broad discretion to exclude or limit otherwise admissible, relevant evidence if the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2018) ; see Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008). "When a trial court considers the danger of unfair prejudice against the probative value of evidence, proper considerations include 'the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.' " David v. Brown, 774 So.2d 775, 777 (Fla. 4th DCA 2000) (quoting State v. McClain, 525 So.2d 420, 422 (Fla. 1988) ); see also Jones v. Alayon, 162 So.3d 360, 365 (Fla. 4th DCA 2015) (same).

Here, before Mr. Gloger testified about the Glogers's conversations with Drs. Sinkovics and Altemose, the trial court gave the jury a limiting instruction, directing the jury "not to consider what the doctors told Mr. Gloger [about Mrs. Gloger's diagnosis] for the truth of the matter asserted, just the effect the information had on Mr. Gloger." While we recognize that "any prejudicial effect generally can be limited by giving instructions cautioning the jury as to the limited use of the testimony," State v. Baird, 572 So.2d 904, 906 (Fla. 1990), we conclude that, under the particular circumstances of this case, the instant limiting instruction was not effective to assuage the significant prejudice to the tobacco defendants of the jury's hearing that Drs. Sinkovics and Altemose - neither of whom testified at trial - had diagnosed Mrs. Gloger with primary lung cancer.

The origin of Mrs. Gloger's cancer was the critical fact issue presented to the jury during phase 1 of the jury trial. The second amended complaint alleged that Mrs. Gloger's cancer originated in her lungs, which, if true, would qualify her as a member of the class created in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).

Whereas, the tobacco defendants maintained below that Mrs. Gloger was not an Engle class member because her cancer allegedly originated in her thymus gland, which is located in a region of the body between the lungs called the mediastinum.

At trial, the lower court permissibly limited the number of experts per side so as to prevent the presentation of cumulative testimony. See Woodson v. Go, 166 So.3d 231, 234-35 (Fla. 5th DCA 2015). Dr. John Ruckdeschel, the third oncologist to treat Mrs. Gloger for her cancer after Drs. Sinkovics and Altemose, was identified by the estate as its causation expert and testified that Mrs. Gloger had died of cancer that originated in her lung, and that the lung cancer was caused by smoking. In contrast, the tobacco defendants relied upon the testimony of Dr. Kim Geisenger, a pathologist. Dr. Geisenger testified that Mrs. Gloger's cancer originated in the thymus gland.

The Florida Supreme Court has confirmed that an expert witness cannot testify on direct examination "that the expert relied on consultations with colleagues or other experts in forming his or her opinion." Linn v. Fossum, 946 So.2d 1032, 1033 (Fla. 2006). "[S]uch testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination." Id.; cf. Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003) (holding, in a medical malpractice action, that permitting the plaintiff to introduce a treatise "during the plaintiff's case in chief served only to impermissibly bolster the credibility of the plaintiff's experts and diminish the credibility of the defense expert's opinions on the ultimate issue").

By permitting Mr. Gloger to testify that Drs. Sinkovics and Altemose had also diagnosed Mrs. Gloger with primary "lung cancer," the trial court, albeit unwittingly, provided the estate the means of both (i) circumventing the court's limitation on the presentation of cumulative expert testimony on the critical fact issue presented in phase 1 (the origin of Mrs. Gloger's cancer ), and (ii) bolstering the testimony of the estate's expert, Dr. Ruckdeschel, with the opinions of two colleagues who were not subject to cross-examination at trial. Indeed, immediately after soliciting the subject testimony from Mr. Gloger, the estate's counsel emphasized the fact that all three of Mrs. Gloger's treating oncologists had diagnosed her with primary lung cancer :

Q. Did Dr. Ruckdeschel explain to you what he believed the - her diagnosis and its cause?
A. Yes, he said she had lung cancer and he believed it was from smoking.
Q. Obviously, this was tough news for you and your wife to hear?
A. Yes, she was very weak at that point.
Q. I'm talking about even going back to Dr. Sinkovics, I'm sorry. Going back to Dr. Sinkovics, back to 1995, the first time you heard it, the second time you heard it, the third time you heard it, or whenever you heard it.
A. Oh, it was devastating. I - I had no idea. I mean, Irene was, for the most part, very healthy prior to this diagnosis.

(Emphasis added).

In this instance, we conclude that the trial court's limiting instruction was ineffective in alleviating the significant danger that, on hearing the subject testimony from Mr. Gloger, the jury would conflate its primary charge of determining whether Mrs. Gloger died of primary lung cancer, with its concomitant duty of determining Mr. Gloger's entitlement to damages for pain and suffering stemming therefrom. Cf. Diaz v. FedEx Freight East, Inc., 114 So.3d 224, 227 (Fla. 5th DCA 2012) (concluding that, where liability was at issue, a curative instruction was insufficient to overcome the prejudice created by improper testimony on causation).

b. The trial court should have limited Mr. Gloger's testimony as to the Glogers's conversations with Drs. Sinkovics and Altemose

" Section 90.403 may be applied to limit only a part of a statement or the details of an event or occurrence while admitting the basic statement or testimony." Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 403.1 (May 2018). Though this principle is most commonly applied in the criminal arena, it is equally applicable in civil cases. See, e.g., Honeywell Intern., Inc. v. Guilder, 23 So.3d 867, 870 (Fla. 3d DCA 2009) (concluding that the lower court erred in refusing to redact a portion of a letter introduced at trial because it was unfairly prejudicial under section 90.403 ); MCI Express, Inc. v. Ford Motor Co., 832 So.2d 795, 801 (Fla. 3d DCA 2002) ("Because the comment, 'Goddamn Cubans,' could easily have been rephrased without altering the meaning of the sentence, or detracting from its ostensible relevance, any probative value was outweighed by the prejudice that resulted from having the jury hear it.").

In this case, the tobacco defendants claim that the trial court could have eliminated the substantial prejudice to the tobacco defendants under a section 90.403 analysis by having Mr. Gloger - when testifying as to his conversations with Drs. Sinkovics and Altemose - simply rephrase the term "lung cancer" to "cancer," "terminal cancer," "deadly cancer," or "however the Court finds is fair and appropriate under the circumstances." We agree. As in MCI Express, Inc., rephrasing the subject testimony in such a manner would not have altered the jury's understanding of the testimony; nor would it have diminished the relevance for which it was offered at trial (i.e., establishing the emotional impact that hearing it had on Mr. Gloger). 832 So.2d at 801.

Because the trial court had the discretion, under section 90.403, to decide how to limit Mr. Gloger's testimony, we do not decide which iteration of "lung cancer" proposed by the tobacco defendants was appropriate in this case. Rather, we conclude that the trial court abused its discretion in not, in some fashion, limiting this testimony.

c. The trial court's failure to limit Mr. Gloger's testimony was not harmless error

A trial court's error in the admission of evidence under section 90.403 is subject to harmless error analysis. 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." Id.

Here, the origin of Irene Gloger's cancer was of critical importance in this case as a jury finding that she had primary lung cancer would make her an Engle class member, thus, entitling her estate to the phase 1 common core findings in Engle. Engle, 945 So.2d at 1269. Moreover, Question 1 of the jury verdict form, as phrased, essentially provided that the estate could not prevail in this action unless the jury found that Mrs. Gloger had primary lung cancer :

1. Was Irene Gloger addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of lung cancer and death?
YES ____ NO _____
If your answer to Question 1 was NO, please proceed no further except to sign and date this verdict form and return it to the courtroom. If your answer to Question 1 was YES, please proceed to Question 2.

Given these circumstances, we cannot conclude that the error was harmless, i.e., that there was no reasonable possibility that the error did not contribute to the substantial jury verdict entered in favor of the estate in this case.

III. CONCLUSION

Because the subject out-of-court statements were not introduced to prove that Irene Gloger's cancer originated in the lung, but to demonstrate the emotional impact on Mr. Gloger of hearing, for the first time, that his wife had cancer, the statements were not hearsay. Such evidence was both relevant and material in this wrongful death action to support Mr. Gloger's damages claim and was, therefore, admissible. Nevertheless, under the particular circumstances of this Engle progeny case, the out-of-court statements were subject to limitation under section 90.403 because the limiting instruction given by the trial court did not effectively diminish the significant prejudice to the tobacco defendants of the jury's hearing that Drs. Sinkovics and Altemose had diagnosed Mrs. Gloger with primary lung cancer caused by smoking cigarettes.

We find that the trial court abused its discretion by failing to limit Mr. Gloger's testimony (i.e., rephrasing the term "lung cancer") in a manner that would eliminate the substantial prejudice to the tobacco defendants, without altering the jury's understanding of the testimony or diminishing the relevance for which it was offered. This error was not harmless. Accordingly, we reverse the final judgment and remand for a new trial to be conducted consistent with this opinion.

Reversed and remanded.

      Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      Given our resolution of this matter, we need not, and do not, reach any of the other issues raised on appeal.

      Dr. John Ruckdeschel testified at trial as the estate's expert on causation.

      "The standard of review of a trial court's decision on the admissibility of evidence is generally an abuse of discretion standard. However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Deutsche Bank Nat. Tr. Co. v. Alaqua Prop., 190 So.3d 662, 664 (Fla. 5th DCA 2016) (quoting Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006) ).

      Under Engle, an individual class member is entitled to certain factual findings against the tobacco defendants "as a matter of res judicata without need of further proof." R.J. Reynolds Tobacco Co. v. Schleider, 273 So.3d 63, 2018 WL 6786635 (Fla. 3d DCA 2018). The factual findings include:
      (i) "that smoking cigarettes causes" certain named diseases including COPD and lung cancer ; (ii) "that nicotine in cigarettes is addictive;" (iii) "that the [Engle] defendants placed cigarettes on the market that were defective and unreasonably dangerous;" (iv) "that the [Engle] defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;" (v) "that the [Engle] defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;" (vi) "that all of the [Engle] defendants sold or supplied cigarettes that were defective;" (vii) "that all of the [Engle] defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said defendants;" and (viii) "that all of the [Engle] defendants were negligent."
      Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 424-25 (Fla. 2013) (quoting Engle, 945 So.2d at 1276-77 ) (emphasis added).

      The confusing and misleading nature of the Glogers's conversations with Drs. Sinkovics and Altemose is highlighted by the trial court's pre-trial suggestion that defense counsel simply argue to the jury that the "doctor that told [Mr. Gloger] that [Mrs. Gloger had lung cancer ] was wrong. " See, Section I., supra.


author: SALTER, J.

text:
    Rene PAZMINO and Grace Pazmino, Appellants, v. Lidia GONZALEZ, Appellee.
    No. 3D17-2575
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019 Rehearing Denied May 08, 2019
    Navarro | McKown and Luis F. Navarro, Coral Gables, for appellants.
    Quesada Valdes, PLLC, and G. Frank Quesada, Coral Gables, for appellee.
    Before SALTER, SCALES and MILLER, JJ.
   SALTER, J.

Rene and Grace Pazmino ("the Pazminos") appeal a final order on the motion of Lidia Gonzalez ("Gonzalez") for attorneys' fees. We affirm. We address the issues raised by the Pazminos and, in particular, the propriety of the lodestar multiplier, 2.0, applied by the trial court.

Facts and Background

The underlying circuit court case and a related case arose out of a 2007 real estate and lending transaction whereby Gonzalez was deceived into borrowing and paying $ 230,000.00 for a residence that the sellers (non-parties Oakley and Rosie Walker) understood they were selling for only $ 150,000.00 and in order to mitigate losses in a foreclosure. In a final judgment entered in 2014 after a non-jury trial, the circuit court held that appellant Rene Pazmino and his daughter, Grace Pazmino, along with Rene Pazmino's ex-wife (Ana Cummings, who also acted under an alias of "Maritza Ayala"), committed fraud during the sale of the property to Gonzalez, violated the Florida Deceptive and Unfair Trade Practices Act, sections 501.201 - 501.213, Florida Statutes (2007) ("FDUTPA"), and engaged in other unlawful conduct in the transactions.

In that final judgment, for example, the trial court found that the loan sought to be enforced by Cummings/Ayala violated Florida's criminal usury statute, and that "$ 83,000.00 of the $ 230,000.00 that Gonzalez was supposedly paying for the property was diverted to Cummings' daughter, Grace Pazmino, and her ex-husband, Rene Pazmino." The trial court also found that the Pazminos, neither of whom was a licensed real estate broker or realtor, engaged in "prohibited practices" as defined in section 494.0025, Florida Statutes (2007), including the receipt of so-called "finder's fees" and the Pazminos' commission of "fraudulent actions."

Because the trial court's rulings in 2014 declared the mortgage to Cummings/Ayala null and void, Gonzalez's damages against each of the Pazminos and Cummings/Ayala, jointly and severally, was limited to $ 16,742.53, "as well as attorneys' fees and costs." The trial court reserved jurisdiction to determine the amount of attorneys' fees to be awarded Gonzalez. This Court affirmed that final judgment in 2015. Cummings v. Gonzalez, 206 So.3d 52 (Table) (Fla. 3d DCA 2015).

Gonzalez then moved to fix the amount of the attorneys' fees to be awarded to her as against the Pazminos and their mortgage company. The trial court conducted an evidentiary hearing, heard the testimony of Gonzalez's attorneys and their expert witness on fees, and reviewed the record. In a detailed, 15-page final order, the trial court addressed the burden of proof, the sufficiency of the time records and expert testimony, and the applicable case law regarding a contingency risk multiplier.

The trial court found that Gonzalez and her attorneys had complied with her standing order for attorneys' fee hearings, regarding the pre-hearing disclosure of time records, invoices, supporting documentation, retainer agreement, and expert affidavit on fees, while:

Neither Cummings nor the Pazminos have ever filed any objections to the hours, the hourly rates or the court costs sought by Gonzalez. Cummings and Pazminos only filed an unfounded claim that Gonzalez had not proven entitlement to trial and attorney's fees, which this Court dismissed.

Following the evidentiary hearing, the trial court found that Gonzalez's attorneys were employed on a contingency basis, "which was necessary in order for Gonzalez to obtain competent counsel, specifically counsel who was unable to mitigate the risk of non-payment, since the client was a domestic service employee with no assets." The court accepted some, but not all of the hours submitted by the attorneys, reducing the claims by over $ 50,000.00. The court considered the appropriateness of a contingent risk multiplier for Gonzalez's trial counsel under Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and the lodestar factors detailed in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), codified in Rules Regulating The Florida Bar 4-1.5(b).

The final order under review awarded $ 13,356.00 in appellate attorneys' fees, trial court attorneys' fees of $ 213,548.00 ($ 106,774.00 as a lodestar, with a 2.0 multiplier), and additional amounts for costs and prejudgment interest from the date of entitlement, as against each of the Pazminos and their Pezaya Mortgage Corporation, jointly and severally. This appeal followed.

Analysis

The standard of review for the trial court's evidentiary findings regarding the attorneys' fee award is for competent, substantial evidence. The trial court's determination to apply a multiplier to the lodestar amount is reviewed for an abuse of discretion. See Citizens Prop. Ins. Corp. v. Laguerre, 259 So.3d 169, 173 (Fla. 3d DCA 2018) ; TRG Columbus Dev. Venture, Ltd. v. Sifontes, 163 So.3d 548, 552 (Fla. 3d DCA 2015).

On appeal, the Pazminos raise two issues. First, they contend the award of fees was pursuant to the FDUTPA fee-shifting provision, section 501.2105(3), citing Schick v. Department of Agriculture & Consumer Services, 599 So.2d 641, 643 (Fla. 1992), and the more recent case of Sanchez v AN Luxury Imports of Pembroke Pines, Inc., 216 So.3d 723, 730 (Fla. 4th DCA 2017). We are unpersuaded by that argument, because the final judgment determining Gonzalez's entitlement to fees and the evidence presented at the hearing also related to the other claims upon which Gonzalez prevailed, including criminal usury, common law fraud, and the conspiracy to defraud undertaken with Ms. Cummings/Ayala. The Pazminos have cited no case establishing a per se rule precluding contingency risk multipliers as to successful claims of that kind.

The Pazminos' second issue attacks the trial court's analysis of the contingency risk factors. There is active disagreement in recent case law as to whether there is a "rare" and "exceptional" circumstances requirement in Florida for such a multiplier. Recent decisions ( Federated National Insurance Co. v. Joyce, 179 So.3d 492 (Fla. 5th DCA 2015), quashed in Joyce v. Federated National Insurance Co., 228 So.3d 1122 (Fla. 2017) (also disapproving such a requirement to the extent raised in State Farm Florida Insurance Co. v. Alvarez, 175 So.3d 352 (Fla. 3d DCA 2015) ) ) suggest that such requirements need not be satisfied so long as the other Quanstrom and Rowe factors are properly assessed, but there are also clear signals that "a full re-examination in a future case of our multiplier jurisprudence" may be warranted. See Joyce, 228 So.3d at 1136 (Canady, J., dissenting; noting the unequivocal repudiation of the use of such multipliers by the United States Supreme Court in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) ).

Under existing Florida precedent, however, this case is a textbook example of one in which a multiplier is warranted, even if the "rare" and "exceptional" standards are applied. The proven facts regarding: Gonzalez's inability to obtain legal assistance, based on her income and the foreclosure commenced by Cummings/Ayala after Gonzalez was defrauded; the duration of the cases and initial appeal before Gonzalez prevailed; the complete elimination of the fraudulently-obtained $ 230,000.00 mortgage; the judgment for money damages for principal and interest paid by Gonzalez; and the trial court's exacting application of Quanstrom and Rowe; all overwhelmingly support the trial court's award, and our affirmance, of the 2.0 contingency risk multiplier.

For these reasons, we affirm the final order awarding attorneys' fees and costs.

      This amount represented a recovery of mortgage payments made by Gonzalez before the loan was held to be criminally usurious.

      In the final order under review, the trial court reported that the Pazminos' mortgage company, Pazaya Mortgage Corporation, had not filed an appearance or participated in any proceeding since the entry of the 2014 final judgment.

      The order under review also awarded appellate counsel fees for Gonzalez's successful appeal in our 2015 affirmance of the final judgment remand for an award of appellate attorneys' fees. No multiplier was sought or awarded with respect to those fees.

      These circumstances are required to overcome the presumption in federal attorneys' fee cases that the lodestar figure, with no further multiplier applied, is reasonable. Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 554, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010).


text:
    William L. MCCLENDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-152
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019 Rehearing Denied April 11, 2019
    William L. McClendon, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 109 So.3d 1180, 1181 (Fla. 1st DCA 2013) ("[S]eparate charges and convictions are not required to support a substantive violation of probation based upon the commission of a new law violation.") (citing Christian v. State, 84 So.3d 437, 445 (Fla. 5th DCA 2012) ).


text:
    PUBLICIDAD VEPACO C.A., et al., Petitioners, v. Nelson MEZERHANE, et al., Respondents.
    No. 3D18-2599
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied May 13, 2019
    Piantini & Associates, P.A., and Albert J. Piantini, Coral Gables; Andrew M. Kassier, P.A., and Andrew M. Kassier, for petitioners.
    Law Offices of Mesa & Associates, P.A., and Manuel Arthur Mesa and Matthew Carcano, Miami; Kula & Associates, P.A., and Elliot B. Kula and William D. Mueller, Miami, for respondents.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   SCALES, J.

Petitioners Albert J. Piantini and Andrew M. Kassier (together, "Petitioners") are two attorneys who purport to represent a faction that allegedly owns an interest in, and has the authority to control the affairs of, two Venezuelan companies, Publicidad Vepaco C.A. and LaTele Television C.A. These companies are the plaintiffs below in litigation, filed in the circuit court in 2011, alleging that certain defendants were involved in a fraudulent banking scheme resulting in the plaintiffs suffering significant damages.

On May 8, 2018, the trial court dismissed the plaintiffs' lawsuit for lack of prosecution. The trial court's May 8, 2018 dismissal order was appealed to this Court via two notices of appeal. Petitioners filed one notice of appeal (appellate case 3D18-1194), and, shortly thereafter, attorney Manuel Mesa filed another notice of appeal. (appellate case 3D18-1424).

We consolidated the two appeals (under 3D18-1424) and relinquished jurisdiction to the trial court to determine who - Petitioners or Mesa - was authorized to represent the appellant companies. We also stayed the appeal until the saga of dueling advocates was resolved.

Upon relinquishment, the trial court conducted an evidentiary hearing and, on December 4, 2018, entered a thorough and detailed order that Petitioners now challenge via certiorari. The challenged order determines that Mesa is properly the counsel of record for the companies and that the Junta had the right to terminate Petitioners as the companies' counsel in this litigation.

Petitioners assert that the trial court departed from the essential requirements of law in construing the panoply of orders rendered by the Venezuelan courts regarding the companies, and that the trial court's factual determinations are not supported by competent substantial evidence. Specifically, Petitioners assert that the orders require approval from the Venezuelan courts for Mesa to represent the companies in the instant litigation, and that such specific authority was not sought, much less acquired.

While we may agree with Petitioners on the general jurisdictional proposition that an order determining which of competing counsel is authorized to represent a litigant is subject to certiorari review, we disagree that the trial court departed from the essential requirements of law and find no error in the trial court's conclusions. See Vill. of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So.3d 19, 20-21 (Fla. 3d DCA 2012).

Petition denied.

      In 2014, during the pendency of the underlying litigation, a Venezuelan judge, pursuant to court order, installed a provisional government oversight board (the "Junta") to manage the affairs of the appellant companies. The Junta hired Mesa as counsel.

      We note that the United States District Court in a related case, Latele Television C.A. v. Telemundo Comunications Group, LLC, Case No. 12-22539 (S.D. Fla. Dec. 3, 2018), has reviewed the subject orders and has reached the same conclusion.