text:
    WELLS FARGO BANK, N.A., Appellant, v. Maria del C. RENDON a/k/a Maria del Carmen Rendon, etc., et al., Appellees.
    No. 3D17-408
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2018
    Carlton Fields Jorden Burt, P.A., and Michael K. Winston and Dean A. Morande (West Palm Beach), for appellant.
    Maria del C. Rendon a/k/a Maria del Carmen Rendon, in proper person.
    Before ROTHENBERG, C.J., and LAGOA and LUCK, JJ.
   ROTHENBERG, C.J.

Wells Fargo Bank, N.A. ("Wells Fargo") appeals from an order entering final summary judgment in favor of Maria del C. Rendon, etc., et al. (collectively, "Rendon") based on the trial court's determination that the action was barred by the expiration of the applicable five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2015). For the reasons that follow, we reverse.

On June 30, 2009, Wells Fargo filed a residential foreclosure action against Rendon, alleging that there had been a default under the note and mortgage held by Wells Fargo due to Rendon's failure to make the payment due on February 1, 2009, and all subsequently due payments. Further, Wells Fargo declared the full amount payable under the Note and Mortgage to be due. In October 2011, the trial court dismissed the case without prejudice due to Wells Fargo's failure to appear at the non-jury trial.

In December 2015, Wells Fargo filed a second action to foreclose on Rendon's property. The complaint alleged that Rendon failed to make "the payment due for February 1, 2009, and all subsequent payments have not been made" and declared the full amount due under the note and mortgage to be accelerated.

Rendon then moved for summary judgment, arguing that the second foreclosure action was time-barred by the five-year statute of limitations. § 95.11(2)(c), Fla. Stat. (2015). Specifically, Rendon asserted that the December 2015 action was Wells Fargo's second attempt to foreclose on the same real property based on Rendon's failure to make the mortgage payment due on February 1, 2009. Further, because Wells Fargo accelerated the mortgage provisions in the first foreclosure action filed in June 2009, the second foreclosure action was time barred as it was commenced more than five years after the first foreclosure action was filed. The trial court agreed and entered final summary judgment in favor of Rendon. Wells Fargo's appeal followed.

We review the trial court's entry of summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We conclude that the trial court erred by determining that Wells Fargo's second foreclosure action was barred by the five-year statute of limitations. Because Wells Fargo's complaint specifically alleged that Rendon missed the February 1, 2009 payment and "all subsequent payments " (emphasis added), Wells Fargo's complaint survived the alleged expiration of the statute of limitations. See Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825, 826 (Fla. 3d DCA 2016) ("Because the Bank's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments , and the action was filed within five years of a default payment, we agree with the trial court's conclusion that the action survived the asserted statute of limitations bar.") (citing Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 944-45 (Fla. 3d DCA 2016) (en banc) (emphasis in original) ); see also Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009, 1019 (Fla. 2016) ("[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.... [T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a 'separate and distinct' default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked."); Nationstar Mortg., LLC v. Silva, 3D16-1936, 239 So.3d 782, 2018 WL 1177360 (Fla. 3d DCA Mar. 7, 2018) ; Bank of New York Mellon Corp. v. Anton, 230 So.3d 502, 504 (Fla. 3d DCA 2017) ("Given the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (i.e., August 1, 2008), is of no moment: by alleging that Anton failed to make the payment due on August 1, 2008 'and all subsequent payments,' the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014.") (emphasis in original). Accordingly, we reverse the entry of final summary judgment in favor of Rendon and remand for further proceedings.

Based on our resolution of the above issue, we find it unnecessary to address the remaining issue raised by Wells Fargo.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM. FERNANDEZ, J., concurring.

license: Public Domain

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Adalberto GARCIA, et al., Respondents.
    No. 3D18-0479
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2018
    Patricia Salman, Assistant Regional Legal Counsel, for petitioner.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General; Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for respondents.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

The state department of children and families petitions for a writ of certiorari from the trial court's order involuntarily committing defendant Adalberto Garcia to the department after Garcia was found incompetent to proceed with his pending felony lobster-catching charges. We grant the petition because the trial court exceeded its jurisdiction by requiring the department to involuntarily commit Garcia where there was no evidence of a substantial probability that he would regain competency to proceed in the reasonably foreseeable future, as required for involuntary commitment under Florida Statutes section 916.13(1)(c).

Factual Background and Procedural History

On August 2, 2017, a Monroe County sheriff's deputy found the eighty-one year old Garcia walking with a five pound bucket full of Florida spiny lobsters. There were twenty-nine lobsters in the bucket caught out of season, with eight of the lobsters smaller than the minimum allowable size. Garcia was arrested on felony lobster violations and booked in the Monroe County detention center.

While still in custody, the trial court ordered that Garcia be evaluated for competency to stand trial. Dr. Tanju Mishara conducted the competency evaluation on November 20, 2017. Dr. Mishara opined that Garcia was not competent to stand trial because of his impairment "due to cognitive decline into dementia which happens to many seniors his age." Dr. Mishara also believed that while Garcia met the criteria for involuntary commitment, "it [was] quite doubtful that his competency can be restored." "[I]t is likely," Dr. Mishara explained, "that his dementia will progess, and he will experience more cognitive function loss with time." "[G]iven his age, treatment [was] not likely to restore his competence to proceed appreciably." Dr. Mishara recommended that Garcia be placed in a senior assisted living facility where he would be supervised for his self-care needs.

The trial court held a non-testimonial competency hearing on February 26, 2018, where it received Dr. Mishara's written report as evidence. Based on Dr. Mishara's report, the trial court found Garcia incompetent to proceed with the trial in the case. The trial court also found that Garcia met the criteria for commitment to a treatment facility as provided in section 916.13(1), and committed Garcia to the department to be placed in a secure mental health treatment facility. The sheriff was directed, within fifteen days, to transport Garcia to the treatment facility designated by the department.

The department moved for rehearing and reconsideration of the trial court's commitment order. In the rehearing motion, the department highlighted the part of Dr. Mishara's report where she opined that it was doubtful Garcia's competency could be restored. The department also pointed the trial court to the involuntary commitment statute, section 916.13(1), which provides that the defendant may be involuntarily committed only on a finding by clear and convincing evidence that there's a substantial probability he will respond to treatment and will regain competency to proceed in the reasonably foreseeable future. The department cited to a case from the Fifth District Court of Appeal, Department of Children & Families v. Ewell, 949 So.2d 327 (Fla. 5th DCA 2007), where the appellate court granted the department's certiorari petition after the trial court ordered the defendant involuntarily committed without evidence the defendant could be restored to competency. The trial court denied the rehearing motion on March 12, 2018.

The next day, the department served a petition for writ of certiorari. Like the rehearing motion, the department petitioned to quash the trial court's involuntary commitment order because there was no evidence supporting the trial court's finding that Garcia met the requirement for involuntary commitment that there be a substantial probability he will respond to treatment and regain competency in the near future.

We ordered Garcia and the Attorney General's office to respond to the department's petition. Garcia responded that we should grant the certiorari petition because all competent evidence-i.e., Dr. Mishara's report-indicated that Garcia was not restorable, and therefore, he could not be committed to the state hospital under section 916.13(1). The Attorney General, in her response, agreed:

DCF asserts that the law prohibits their assuming the care and custody of Mr. Garcia. The cited statute, section 916.13, Florida Statutes, places into DCF's care subjects who have a "substantial probability" of responding to treatment for their mental illness. Dr. Tanju T. Mishara's report suggests that Mr. Garcia does not meet that criterion.
Although DCF is in the best position to assess its responsibilities under the regulations, the above-cited statute appears to supports its current contention. Hence, the State asks that this Court rule accordingly on the question of Mr. Garcia's placement.

Jurisdiction

"Certiorari jurisdiction lies to rectify a trial court order to the [d]epartment to assume treatment responsibilities for an individual beyond what is required by statute." Dep't of Children & Families v. C.Z., 201 So.3d 78, 81 (Fla. 3d DCA 2015). "Certiorari jurisdiction lies to review DCF's claim that the trial court has acted in excess of its jurisdiction by ordering DCF to undertake responsibilities beyond what is required by statute." Dep't of Children & Family v. Amaya, 10 So.3d 152, 154 (Fla. 4th DCA 2009). Finally, "certiorari does lie where there is irreparable harm if entities such as ... HRS, and [the county] are required to pay for treatment or transportation of the detainee and there is no adequate remedy on appeal considering the non-party status of these petitioners." State Dep't of Health & Rehab. Servs. v. Myers, 696 So.2d 863, 865 (Fla. 4th DCA 1997).

Discussion

We agree with the department, Garcia, and the Attorney General that the trial court acted in excess of its jurisdiction when it ordered the department to involuntarily commit Garcia without evidence of a substantial probability he will respond to treatment and will likely regain competency. After a defendant is found incompetent to proceed, he may be involuntarily committed only if the trial court finds by clear and convincing evidence that the defendant meets the following criteria:

(a) The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant's well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant's condition have been judged to be inappropriate; and (c) There is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.

§ 916.13(1), Fla. Stat. (2017) (emphasis added).

Here, the only evidence the trial court had at the competency hearing was Dr. Mishara's report. Regarding the last involuntary commitment criteria-whether there was a substantial probability that the defendant's mental illness would respond to treatment and the defendant would regain competency in the foreseeable future-Dr. Mishara diagnosed Garcia with dementia. Dr. Mishara opined that Garcia's ability to understand was "impaired due to cognitive decline into dementia which happens to many seniors his age." Dr. Mishara believed "[i]t possible that [Garcia's] cognitive impairment from dementia [could] benefit superficially from appropriate treatment, but given his age, treatment [was] not likely to restore his competency to proceed appreciably." Dr. Mishara continued that "it [was] quite doubtful that [Garcia's] competency can be restored," and it was "likely that his dementia will progress, and he will experience more cognitive function loss with time." Given Dr. Mishara's opinion, which was the only one the trial court had to support its conclusion that Garcia met the criteria for involuntary hospitalization, the trial court could not have found by clear and convincing evidence that Garcia's dementia would respond to treatment and Garcia would regain competency in the foreseeable future.

The Fifth District has at least twice granted certiorari petitions from similar involuntary commitment orders where there was no evidence the defendant would respond to treatment or regain competency. The courts' opinions are short and worth quoting in full:

We grant the Department of Children and Families' petition for writ of certiorari and quash the trial court's order of continued commitment of the respondent, Teresa Ann Gilliland, an individual declared mentally incompetent to proceed to trial on two felony charges. The uncontradicted medical testimony presented to the trial court reveals that Gilliland suffers from dementia that will become progressively worse and that there is little or no probability that she will become competent in the future. Therefore, Gilliland no longer meets the criteria for commitment to the Department under section 916.13(1)(c), Florida Statutes. § 916.13(1)(c), Fla. Stat. (2006) ("Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that ... [t]here is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future."); Dep't of Children & Families v. Wehrwein, 942 So.2d 947 (Fla. 5th DCA 2006) (granting petition for writ of certiorari and quashing lower court's order of commitment to Department of Children and Families; holding that although respondent was adjudicated incompetent to proceed to trial, respondent's commitment to the Department was improper under section 916.13(1)(c) because he suffered from a mental illness that was permanent and there was not a substantial likelihood that competency would be restored); Andrews v. Johnson, 941 So.2d 494 (Fla. 1st DCA 2006) (same); Oren v. Judd, 940 So.2d 1271 (Fla. 2d DCA 2006) (same).

Dep't of Children & Families v. Gilliland, 947 So.2d 1262, 1262-63 (Fla. 5th DCA 2007) (alteration and omission in original).

Petitioner, the Department of Children and Family Services, ("Department"), seeks a writ of certiorari quashing the trial court's order committing Respondent, Shannon Edward Ewell, to the Florida State Hospital for treatment to restore him to competency. The only medical expert who evaluated Ewell opined that Ewell will not be able to reach competency through any known therapeutic program. Section 916.13(1)(c), Florida Statutes (2006), requires that before a defendant is committed to the Department for competency restoration, there must be "clear and convincing evidence that ... [t]here is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." Because there was no evidence presented below to support Ewell's commitment pursuant to section 916.13(1)(c), we find the trial court departed from the essential requirements of the law by ordering Ewell's commitment for competency restoration. E.g., M.H. v. State, 901 So.2d 197, 200 (Fla. 4th DCA 2005) (recognizing that "[w]here competent, substantial evidence does not support the trial court's finding regarding competency or involuntary commitment, the trial court has departed from the essential requirements of the law"). Therefore, we grant the petition, quash the order below, and remand this matter to the circuit court for further proceedings.

Ewell, 949 So.2d at 327-28 (alteration and omission in original).

We also have uncontradicted evidence from the only medical expert who evaluated Garcia explaining Garcia's dementia will get progressively worse, and it is doubtful Garcia will be restored to competency. As in Gilliland and Ewell, the trial court exceeded its jurisdiction when it ordered the department to involuntary commit Garcia after he was found incompetent without evidence that he met the criteria under section 916.13(1)(c).

Conclusion

We quash the trial court's February 26, 2018 order to the extent it committed Garcia to the department for involuntary hospitalization pursuant to section 916.13(1). We remand this matter to the trial court for further proceedings.

FERNANDEZ, J., concurring.

I wholeheartedly concur and write only to express my concern about the level of confidence expressed by Dr. Mishara in the results of the Brief Neuropsychological Cognitive Examination ("BNCE"), a mental status exam, due to the use of an interpreter to administer the test. The BNCE appears to be the test that resulted in the diagnosis of dementia. Dr. Mishara wrote in her report:

To assess mental status BNCE was used. This instrument assesses major cognitive functions usually targeted by neuropsychological testing. Part 1 relates to more conventional types of information processing; and Part 2 subtests are aimed at the processing of novel incomplete and less conventional types of information. This latter is required for successful information processing of executive functions. It tends to decrease earlier and more sharply in those with progressive dementia or other assaults to the brain. His total score in the BNCE was 5 which placed him in the Severe Impairment category. Individuals with scores in this range cannot independently [sic]. His Part 2 score was notably lower than Part 1 meaning that his information processing functions [sic] was significantly compromised. Given his age, dementia adversely affecting the cognitive process was likely. It should be pointed out, however, that having to administered [sic] the BNCE through an interpreter emphasizes that caution be exercised in appraising the accuracy of the results.

(Emphasis added).

      "The [d]epartment also has standing to being such a petition, despite the fact that it was not a party to the criminal case or commitment proceeding." C.Z., 201 So.3d at 81 n.2.

      Those further proceedings could include the state instituting civil commitment proceedings, releasing Garcia, Gilliland, 947 So.2d at 1263, or the trial court, on its own motion, ordering Garcia to be examined by additional experts, Fla. R. Crim. P. 3.210(b). Because our review is by certiorari, we express no opinion on what the trial court should do on remand other than to quash the involuntary commitment part of the trial court's order.


author: EMAS, J.

text:
    90 CWELT-2008 LLC, Appellant, v. YACHT CLUB AT PORTOFINO CONDOMINIUM ASSOCIATION, INC., et al., Appellees.
    No. 3D17-929
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    P.A. Bravo, P.A., Coral Gables, and Paul Alexander Bravo, for appellant.
    GrayRobinson, P.A., and Kristie Hatcher-Bolin (Lakeland), for appellee, JPMorgan Chase Bank, N.A.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   EMAS, J.

90 CWELT-2008 LLC ("CWELT"), the third-party purchaser at a foreclosure sale, seeks review of an order vacating a certificate of sale and a certificate of title, following the trial court's earlier order vacating a final judgment of foreclosure. We affirm, because the order on appeal was properly entered by the trial court pursuant to, and as a result of, its earlier order vacating the final judgment.

The foreclosure case at issue was filed by Yacht Club and Portofino Condominium Association, Inc. ("the Association") against unit owners Craig and Nicole Snyder, for their failure to pay condominium assessments. Prior to the Association's foreclosure case, the Snyders' mortgage company, JP Morgan Chase Bank, N.A. ("JP Morgan"), had also filed a foreclosure action against the Snyders.

In the Association's foreclosure action, JP Morgan was named a party defendant, based upon the interest it claimed in the property by virtue of a prior mortgage. However, JP Morgan was not properly served with the complaint in the Association's case, and JP Morgan never answered the complaint (nor did the Snyders). Following entry of a summary final judgment in favor of the Association on June 16, 2014, the Snyders' unit was sold at a foreclosure sale, and CWELT was the successful bidder. On August 1, 2014 the certificate of sale to CWELT was issued and two weeks later, the certificate of title as well.

Eight months later, on February 11, 2015, JP Morgan moved to quash service of process and set aside the summary final judgment, asserting it had not been properly served with process and, therefore, the subsequent judgment was void. On June 17, 2015, the trial court granted the motion and vacated the final judgment, finding that service of process on JP Morgan was defective, rendering the final judgment void.

On July 16, 2015, a month after the trial court's order vacating the final judgment, JP Morgan filed a motion seeking to unwind the foreclosure sale and to vacate the certificates of sale and title. The following day, CWELT filed a notice of appeal seeking review of the trial court's order vacating the final judgment. However, CWELT failed to timely file its initial brief. This court issued an order advising CWELT of same and advising that the appeal would be subject to dismissal if an initial brief was not filed within ten days. No initial brief was thereafter filed and, on February 5, 2016, this court dismissed CWELT's appeal for its failure to diligently prosecute the appeal. See 90 CWELT-2008, LLC v. Snyder, 208 So.3d 1181 (Fla. 3d DCA 2016) (table).

On March 21, 2017 (more than a year after CWELT's initial appeal was dismissed) the trial court granted JP Morgan's motion to vacate the certificates of sale and title. This appeal followed.

In this appeal, CWELT contends: (1) the trial court had no authority to vacate the final judgment because the motion was not timely filed; and (2) even if the trial court did have such authority to vacate the final judgment, it erred in subsequently vacating the certificates of sale and title because CWELT was a bona fide purchaser without notice of JP Morgan's claim.

CWELT first challenges the propriety of the order vacating the final judgment. However, the only order on appeal is the order vacating the certificate of sale and certificate of title. Having abandoned its prior appeal of the order vacating the final judgment (resulting in a dismissal of that appeal), CWELT may not employ the present appeal to resurrect its challenge to that order.

We find no merit in CWELT's remaining argument, directed to the order vacating the certificates of sale and title. Although it is true that a trial court "may not grant relief that adversely affects the quality of the title to the property" where a bona fide purchaser has acquired the property in a foreclosure sale (see section 702.036, Fla. Stat. (2017) ), this applies only where the "party seeking relief from the final judgment of foreclosure of the mortgage was properly served in the foreclosure lawsuit as provided in chapter 48 or chapter 49." Id. (Emphasis added.) See also Demars v. Vill. of Sandalwood Lakes Homeowners Ass'n, Inc., 625 So.2d 1219, 1222 (Fla. 4th DCA 1993) (holding that a bona fide purchaser retains the title where the final judgment is voidable, not where it is void). Compare Nationstar Mortg., LLC v. Diaz, 227 So.3d 726 (Fla. 3d DCA 2017). In the instant case, the trial court vacated the final judgment upon a determination that the judgment was void for lack of service of process upon JP Morgan, and "[i]t is well settled that a judgment entered without due service of process is void." Del Conte Enters., Inc. v. Thomas Publ'g Co., 711 So.2d 1268, 1269 (Fla. 3d DCA 1998). See also Castro v. Charter Club, Inc., 114 So.3d 1055 (Fla. 3d DCA 2013) ; Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097 (Fla. 3d DCA 2011). Therefore, and as the trial court correctly concluded, section 702.036 is inapplicable and CWELT's reliance upon it unwarranted.

Further, the trial court properly exercised its discretion in vacating the certificate of sale and the certificate of title, as a necessary and logical extension of its prior order vacating the final judgment. In granting relief to JP Morgan from the void judgment, it would make little sense if the trial court was prohibited from granting complete relief by vacating those postjudgment orders entered in direct reliance upon and as a consequence of that now-void judgment. See Fla. R. Civ. P. 1.540(b)(5) (providing that "the court may relieve a party ... from a final judgment, decree, order, or proceeding" where it is shown "that a prior judgment or decree upon which it is based has been reversed or otherwise vacated ...."). See also Austin v. B.J. Apparel Corp., 523 So.2d 675 (Fla. 3d DCA 1988) ; Travelers Commercial Ins. Co. v. Harrington, 187 So.3d 879 (Fla. 1st DCA 2016) ; Nationsbanc Mortg. Corp. v. Gardens North Condo. Ass'n, Inc., 764 So.2d 883 (Fla. 4th DCA 2000). CWELT has not and cannot demonstrate that the trial court's order was a gross abuse of discretion. See Phoenix Holding, LLC v. Martinez, 27 So.3d 791 (Fla. 3d DCA 2010).

Affirmed.


author: PER CURIAM.

text:
    Jorge Valvis PAPASTRATI, Appellant, v. Kiriaki PAPASAKELARIOU, Appellee.
    No. 3D16-2921
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Kevin Coyle Colbert, for appellant.
    Nancy A. Hass (Hollywood), for appellee.
    Before SUAREZ, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

We affirm without further discussion and write only to point out the perilous journey undertaken by counsel when they ask the trial court to interpret an order of a foreign jurisdiction without providing the court a proper foundation for interpretation of that order. The trial court was asked to interpret the order of an Aruban appellate court without the benefit of the law of Aruba that rightfully would control that interpretation. Without knowing what is required by the law in Aruba in relation to the appellate court decision, we cannot properly review the trial court's interpretation.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Richard CALIX, Appellee.
    No. 3D16-2784
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.
    Woodward and Reizenstein, P.A., and Philip L. Reizenstein and Bhakti Kadiwar, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Reid v. State, 42 Fla. L. Weekly D1216, 1217, --- So.3d ----, ----, 2017 WL 2348615 (Fla. 3d DCA May 31, 2017) ("[W]e read Atwell[ v. State, 197 So.3d 1040 (Fla. 2016) ] to reject the notion that Florida's current parole scheme provides the individualized consideration of a defendant's juvenile status required under Miller[ v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ]. Since Atwell, and applying its holding, we have reversed trial court orders denying Miller postconviction claims even where, as in Reid's case, the presumptive parole release date was within the defendant's lifetime.") (Citations omitted); Carter v. State, 215 So.3d 125, 127 (Fla. 3d DCA 2017) ("Notwithstanding the fact that he will be reevaluated for the possibility of parole in 2022, we conclude the defendant is correct and that he is entitled to resentencing under sections 775.082(3)(c) and 921.1401.").

      The Florida Supreme Court has stayed the proceedings in Reid pending disposition of Franklin v. State, No. SC14-1442. See State v. Reid, SC17-1377.

      The Florida Supreme Court has stayed the proceedings in Carter pending disposition of Franklin v. State, No. SC14-1442. See State v. Carter, SC17-768.


text:
    John JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2115
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger and Jonathan Greenberg, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed without prejudice to appellant raising a claim of ineffective assistance of trial counsel in an appropriate Rule 3.850 motion. See State v. Smith, No. SC17-576, 241 So.3d 53, 2018 WL 1755386 (Fla. April 12, 2018). See also Partin v. State, 82 So.3d 31, 39 (Fla. 2011) ; Rolling v. State, 215 So.3d 70 (Fla. 3d DCA 2016).


author: FERNANDEZ, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Patsy Elaine DAVIS, as Personal Representative of the Estate of Booker Terry Davis, deceased, Appellee.
    No. 3D16-1994
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Jones Day, Donald B. Ayer (Washington, DC), and Charles R.A. Morse (New York, NY); Carlton Fields Jorden Burt, P.A., Benjamine Reid, and Jeffrey A. Cohen, for appellant.
    Freidin Brown and Philip Freidin; The Mills Firm, P.A., John S. Mills and Courtney Brewer (Tallahassee); The Alvarez Law Firm and Alex Alvarez ; David J. Sales (Jupiter), for appellee.
    Before EMAS, FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

R.J. Reynolds Tobacco Company appeals the trial court's decision to grant a new trial in the underlying wrongful death tobacco case. We find the trial court abused its discretion in ordering a new trial. We thus reverse the trial court's order and remand the case for entry of judgment for R.J. Reynolds in accordance with the jury's verdict. In addition, we vacate the trial court's show-cause order.

The plaintiff, Patsy Elaine Davis, is the personal representative of the estate of her deceased husband, Booker Terry Davis. Davis sued R.J. Reynolds for Booker's wrongful death. Davis contended that Booker was a member of the class certified in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), alleging that Booker contracted lung cancer in 1994, as a result of his addiction to cigarettes manufactured by R.J. Reynolds, and that he consequently died in 1997.

At trial, Davis had to prove that Booker was a member of the Engle class; he was required to show that he was addicted to smoking and that this was a legal cause of his injuries. In order to prove this, Davis provided her own testimony, as well as the deposition testimony of an addiction expert. R.J. Reynolds countered this testimony by calling its own addiction expert, Dr. Debra Barnett, to testify that Booker was not addicted to cigarettes.

Davis claims that at trial, during an examination of Dr. Barnett, R.J. Reynolds's counsel referred to the outcome of another tobacco case, Fanali v. R.J. Reynolds Tobacco Co., No. 50 2008 CA 000800 (Fla. 15th Cir. Ct. 2015), which prejudicially affected the jury's verdict. During cross-examination, Davis's counsel questioned Dr. Barnett's credibility regarding her opinion that Booker was not addicted to nicotine because, in Fanali, Dr. Barnett testified that a smoker who smoked five packs of cigarettes per day was not addicted. This exchange took place:

Q: And in all those cases [in which you previously testified], those are cases where you found that there was no addiction; correct?
A: Yes, that is true.
...
Q: Okay. And all of them-well, what's the least amount of smoking in any of those cases?
A: I'm not sure if I could accurately recall over all of these years, but-
Q: Okay.
A: -I-I believe that in one of the cases perhaps half a pack per day.
...
Q: Okay. What's the most you have?
[Reynolds' Counsel]: Objection, Your Honor, relevance.
The Court: Overruled.
A: The most amount? Five packs per day.
Q. Five packs a day, and you found that he wasn't addicted?
A: That's correct.
Q: Wow. Five packs a day is-what is that, a hundred cigarettes a day; am I right?

R.J. Reynolds then attempted on redirect to rehabilitate Dr. Barnett after Davis's counsel attacked her credibility. Thus, on its redirect examination of Dr. Barnett, the following exchange took place:

Q: You-you were asked questions about other cases including cases in which you have analyzed smokers who smoked up to five packs a day, do you remember that?
A: That was the highest. I was asked what was the highest. That was the highest.
Q: And, in fact, you told the jury that you actually, under a DSM analysis using your forensic psychiatry, that you concluded that smoker was not addicted; right?
A: That is correct.
Q: And you testified in the trial, a trial of that case, to that effect; right?
A: That is correct.
Q: And the jury agreed with you in that?
[Plaintiff's Counsel]: Judge.
The Court: Sustained.
[Plaintiff's Counsel]: You know, I would like to make a motion.

Davis's counsel objected, and the trial court sustained the objection. Thus, Dr. Barnett never answered the question. Dr. Barnett was excused.

Davis then moved for a mistrial based on the question R.J. Reynolds asked Dr. Barnett regarding his testimony in a previous, unrelated case, and based on the acts of misconduct Davis alleges R.J. Reynolds's counsel committed during trial. The trial court reserved ruling on whether a new trial was warranted until after the jury returned its verdict.

After the five-day trial, the jury returned a verdict that Booker's lung cancer and death was caused by his addiction to the nicotine in cigarettes. In answer to the first question on the verdict form, "Was Booker Davis addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of his lung cancer and death?", the jury answered, "Yes." However, the jury also found that smoking R.J. Reynolds's cigarettes was not the legal cause of Booker's lung cancer and death. They answered, "No," to the second question on the verdict form, "Was smoking cigarettes manufactured by R.J. Reynolds a legal cause of Mr. Davis's lung cancer and death?" The trial court granted Davis's motion for a mistrial due to R.J. Reynolds's "premeditated, willful, and egregious" conduct "designed to influence the jury's perception on a core issue presented in the case." The trial court also entered an order to show cause and ordered R.J. Reynolds to demonstrate why it should not impose sanctions on it. The trial court's "Order Granting Motion for Mistrial and Order to Show Cause" was issued after the jury was discharged. R.J. Reynolds now appeals, as the trial court's order was effectively an order granting a new trial and is thus appealable. State v. Smith, 206 So.3d 92, 93 (Fla. 3d DCA 2016).

When a trial court grants a motion for a new trial, the court must specify its reasons. Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla. 1978) ; Rule 1.530(f), Fla. R. Civ. P. In the case before us, the trial court did just that; he complied with rule 1.530(f) when he listed in the order under review the question asked to Dr. Barnett about the Fanali case as the reason for which he was granting the motion for a new trial. He specifically stated in the order that the "highly prejudicial and inflammatory" information introduced by R.J. Reynolds's counsel, "which revealed to the jury the existence of a prior favorable defense verdict, regarding the issue of nicotine addiction, which was reached in a different tobacco case" was so prejudicial that "it had a sweeping impact on the jury and affected the trial's outcome." In addition, the court cited to established Florida case law for the proposition that it is improper for "counsel in a civil case to call to the jury's attention the results of a former trial involving the same type of case." The trial court went on to state, "[T]his Court finds that counsel's intentional references and deliberate comments revealing the impressions of another jury on cigarette consumption and nicotine addiction was highly prejudicial to the Plaintiff." The trial court's reason for granting a new trial with regard to this specific ground was very clearly explained in the order. Thus, compliance with rule 1.530(f) was satisfied and is not an issue here.

However, we find that the trial court abused its discretion in ordering a new trial based on R.J. Reynolds's counsel's reference to the Fanali verdict. It is clear from the jury's verdict that they disregarded the expert witness testimony on addiction, so there is no reasonable probability that the objectionable question was so prejudicial or that it had any effect on the jury's verdict. The verdict form first asked, "Was Booker Davis addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of his lung cancer and death?" The jury replied, "Yes." The second question on the verdict form asked, "Was smoking cigarettes manufactured by Reynolds a legal cause of Mr. Davis's lung cancer and death?" The jury rendered a verdict for R.J. Reynolds when they replied, "No," to this question. As such, it is clear Dr. Barnett's testimony and R.J. Reynolds's counsel's question to her did not have any effect on the jury's verdict, as her testimony and R.J. Reynolds's question to her was not related in any way to the issue of the brand of cigarettes that caused Booker's lung cancer and death. The trial court thus abused its discretion in granting a new trial because the record does not support the trial court's reason for granting a new trial. See Philip Morris USA, Inc., v. Danielson, 224 So.3d 291 (Fla. 1st DCA 2017).

Accordingly, we reverse the trial court's order granting a new trial and remand the case to the trial court with instructions to enter judgment for R.J. Reynolds in accordance with the jury's verdict. Because Davis does not have to prepare for a new trial, we vacate the show-cause order.

Reversed and remanded with instructions.

      See, e.g., Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So.2d 404, 407 (Fla. 2d DCA 2006) ; Carroll v. Dodsworth, 565 So.2d 346 (Fla. 1st DCA 1990) ; Wright & Ford Millworks, Inc. v. Long, 412 So.2d 892 (Fla. 5th DCA 1982).

      The trial judge also stated in his order: "In addition, although these remarks alone are sufficient to warrant a new trial, the Court will not ignore other behaviors, on the part of the defense, whose cumulative effect denied Plaintiff the right to a fair trial. This includes statements made by the defense during opening and closing arguments." He then did not go on to identify the specific instances of such misconduct by proper reference to the record. As RJ Reynolds correctly contends, the "Tipsy Coachman" doctrine cannot be used to affirm the trial court's order granting the new trial, as it is not applicable in an appeal from an order granting a new trial. Jones v. Atkinson, 974 So.2d 573, 577 (Fla. 1st DCA 2008). Our independent review of the record does not support a finding of egregious misconduct on the part of RJ Reynolds's counsel that warrants overturning the jury's verdict and conducting a new trial on the alternate basis articulated by the trial judge; i.e., cumulative effect of the conduct of RJ Reynolds's counsel. And it would appear that the trial court did not see such instances of misconduct by RJ Reynolds's counsel during the trial as egregious either, otherwise he surely would have intervened. See Rodriguez v. State, 210 So.3d 750, 757 (Fla. 5th DCA 2017) ; Borden v. Young, 479 So.2d 850, 852 (Fla. 3d DCA 1985).