author: ROTHENBERG, C.J.

text:
    Melitina VALIENTE, etc., Appellant, v. R.J. BEHAR & COMPANY, INC., et al., Appellees.
    Nos. 3D15-1049 3D14-2635 & 3D14-3058
    District Court of Appeal of Florida, Third District.
    Opinion filed June 06, 2018
    Ramon M. Rodriguez, P.A., and Ramon A. Rodriguez, Miami, for appellant.
    Daniels Kashtan, and Joseph W. Downs III and Daniel A. Pelz, Coral Gables, for appellee R.J. Behar & Company Inc.; Conroy Simberg, and Hinda Klein (Hollywood) and Elizabeth A. Izquierdo (Hollywood), for appellee Williams Paving Co., Inc.; Kubicki Draper, and G. William Bissett, Miami, for appellee Melrose Nursery, Inc.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

In these consolidated appeals, Melitina Valiente, as surviving mother and personal representative of the Estate of Yunier Herrera, deceased ("Valiente"), appeals final summary judgments entered separately in favor of three of the defendants below: R.J. Behar & Company ("R.J. Behar"), Williams Paving Co., Inc. ("Williams Paving"), and Melrose Nursery, Inc. ("Melrose Nursery"). Because we find that the trial court correctly applied the Slavin Doctrine , which protects these three defendants from third-party liability in this case, we affirm.

BACKGROUND

On April 4, 2008, Yunier Herrera ("Herrera") was killed when his motorcycle collided with another vehicle at an intersection located in Hialeah, Florida. Valiente filed a lawsuit against the City of Hialeah ("the City"), R.J. Behar, Williams Paving, and Melrose Nursery, among others. The operative complaint alleges that R.J. Behar, Williams Paving, and Melrose Nursery were negligent and responsible for a visual obstruction that caused the fatal accident. Specifically, they were allegedly responsible for the planting of Jatropha Hastata shrubs in the swale area of the intersection where the accident occurred, shrubs which Valiente contends blocked the view of passing motorists and caused the accident that resulted in Herrera's death. The shrubs were planted in 2005 as part of the City's East 1st Avenue Phase III roadway project. R.J. Behar was contracted by the City to design the project; Williams Paving was selected as the general contractor, responsible for the construction of the roadway and swales; and Melrose Nursery was hired by the City to provide landscaping for the project.

During the course of the litigation below, R.J. Behar, Williams Paving, and Melrose Nursery each moved for summary judgment based on the Slavin doctrine, which relieves a contractor of liability for injuries to third parties when the contractor's work is completed, the owner of the property (in this case, the City) accepts the work, and the defect that allegedly caused the injury is patent. Plaza v. Fisher Dev., Inc., 971 So.2d 918, 924 (Fla. 3d DCA 2007). R.J. Behar, Williams Paving, and Melrose Nursery contend that they are not liable for Herrera's death because they completed their work, the City accepted the completed roadway project, and any alleged visual obstruction caused by the Jatropha Hastata shrubs would have been patent.

After conducting two hearings and considering arguments from all sides, the trial court granted summary judgment in favor of R.J. Behar, Williams Paving, and Melrose Nursery, finding that the Slavin doctrine relieved these defendants from liability because if the shrubs had created a visual obstruction, then that obstruction would have been patent when the completed project was accepted by the City more than two years before the subject accident. The trial court subsequently entered a final judgment in favor of each of these defendants. After Valiente's motions for rehearing were denied, she appealed.

ANALYSIS

We review the trial court's entry of final summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ; Ryan v. Nat'l Marine Mfrs. Ass'n, 103 So.3d 1001, 1003 (Fla. 3d DCA 2012).

The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a "reasonably careful inspection " of the contractor's work prior to accepting it as completed; if the owner accepts the contractor's work as complete and an alleged defect is patent, then the owner "accepts the defects and the negligence that caused them as his own," and the contractor will no longer be liable for the patent defect. Slavin, 108 So.2d at 466 (emphasis added); Plaza, 971 So.2d at 924 ("Under the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor's work, and the defects causing the injury were patent."); Fla. Dep't of Transp. v. Capeletti Bros., 743 So.2d 150, 152 (Fla. 3d DCA 1999) (stating that "the liability of a contractor is cut off after the owner has accepted the work performed if the alleged defect is a patent defect which the owner could have discovered and remedied ") (emphasis added).

"[T]he test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care ." Capeletti Bros., 743 So.2d at 152 (emphasis added). While in most cases, the patency or latency of a dangerous condition is a question of fact for the jury, thereby precluding summary judgment, there are exceptions where the undisputed material facts establish that if there was a defect, then that defect would have been patent. Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 507 (Fla. 1992) ; Plaza, 971 So.2d at 925 ; Gustinger v. H.J.R., Inc., 573 So.2d 1033, 1034 (Fla. 3d DCA 1991).

When the Jatropha Hastata shrubs were planted, they were approximately five feet tall and two and one-half feet wide, more than two feet taller than the maximum height set forth in the Miami-Dade County Public Works Manual, and it is undisputed that the presence of the five foot tall shrubs was patent. Nevertheless, Valiente contends that, although the presence and height of the shrubs was patent, the dangerousness posed by the shrubs was nevertheless latent. In support of this argument, Valiente suggests that neither the defendants in this appeal nor the City knew that the shrubs constituted a visual obstruction.

However, as will be discussed more fully herein, what R.J. Behar, Williams Paving, and Melrose Nursery knew or did not know is irrelevant in this case. For purposes of patency under the Slavin doctrine, the relevant question is: if the plantings created a visual obstruction (the alleged dangerous condition), was that dangerous condition latent or patent? And, to reiterate, the test for patency, is not what the City knew, but rather, what the City could have discovered had the City performed a reasonably careful inspection.

On a roadway construction project, any reasonably careful inspection of five foot tall shrubs in the swale of a roadway near an intersection must include looking at the shrubs and other landscaping features to see if they constitute a visual obstruction to passing motorists. By definition, the presence of a visual obstruction is readily ascertainable-either it obstructs your view or it does not. Indeed, the plaintiff's own expert contends that the shrubs caused a visual obstruction immediately upon being planted in 2005. On these facts, because any visual obstruction these shrubs might have posed could have been discovered by the City upon a reasonable inspection, the alleged visual obstruction would have been patent, and therefore, R.J. Behar, Williams Paving, and Melrose Nursery are protected by the Slavin doctrine because the City accepted their completed work.

The dissent accuses the majority of conflating the patency of the condition with the patency of the alleged dangerousness of the condition. The majority does no such thing. What the majority concludes is that because the shrubs themselves were open and obvious, any visual obstruction they might have caused when they were planted in 2005 and accepted by the City in 2006 could have been discovered through the exercise of reasonable care. Thus, if these shrubs created a dangerous condition (i.e., visual obstruction) for motorists on the roadway, the dangerousness of that condition could have been discovered through the exercise of reasonable care before the City signed off on the project.

There is absolutely no evidence in the record on appeal to suggest that if the plantings obstructed the view of motorists and created a dangerous condition, the City could not have discovered the danger prior to accepting the work. Whether the plantings grew over time into a visual obstruction and constituted a dangerous conditions two years later, in 2008, when the fatal accident occurred, is a separate question and must not be confused with the issue on appeal, which is whether the plantings, as they existed in 2006 when the City approved and accepted them, created a visual obstruction and a dangerous condition that could have been discovered had the City exercised reasonable care. Based on the nature of the dangerous condition alleged (plantings that allegedly obstructed the view of motorists), the answer is clearly "yes," as the trial court correctly concluded.

Respectfully, the dissent's discussion regarding summary judgment and its list of cases regarding the general impropriety of granting summary judgment on the issue of whether a party exercised reasonable care is misplaced. While questions of negligence are generally jury questions, the question before the trial court and before this Court on appeal is not whether any of these defendants owed Valiente a duty of care or breached that duty, or whether Valiente's damages were a result of any of these defendants' negligence. Rather, the sole issue in this appeal is whether the Slavin doctrine protects these particular defendants from liability where these defendants completed their work on the roadway project in 2006, the City approved and accepted the work in 2006, and Valiente claims that the shrubs constituted a visual obstruction.

The trial court correctly determined that R.J. Behar, Williams Paving, and Melrose Nursery, which all completed their services to the City in 2006, are protected by the Slavin doctrine because, when the City accepted their work in 2006, the shrubs in question either obstructed the view of motorists and had, therefore, created a dangerous condition or they did not. Either way, the answer to that question was discoverable by the exercise of reasonable care and was therefore patent. In other words, the condition was obvious, and whether that condition was dangerous could have been discovered by the exercise of reasonable care. The plaintiff offered no evidence that open and obvious plantings in the swales of the roadway had created some hidden danger to motorists that could not have been discovered by the exercise of reasonable care. Thus, there were no material facts in dispute precluding summary judgment on the issue of whether the Slavin doctrine applies to these defendants.

The dissent's statement that the "application of [the Slavin ] doctrine requires a determination of whether the City exercised reasonable care in its inspection of the property" is also misplaced because the question is not what the City actually did, but what the City could have done. It is undisputed that the City could have discovered a visual obstruction, if one did exist, by simply looking.

It is important to remember what this lawsuit is about. The plaintiff claims that the foliage of these shrubs blocked Herrera's view on the roadway in 2008. There is no dispute that none of these defendants were under contract for or were involved with any maintenance or inspection of the roadway or plantings since the completion of their work on the project, and the City accepted their work.

The dissent suggests that R.J. Behar, Williams Paving, and Melrose Nursery had some duty to inspect and perform visibility studies of the plantings in question, and that because all of the defense witnesses testified that there were no visual obstructions at the subject intersection, this testimony created a material issue in dispute precluding summary judgment. These arguments, however, suffer from the same infirmity as the arguments already addressed in this opinion-they have no relevance to this appeal.

Whether any of these defendants had a duty to inspect and perform visibility studies of the plantings in question is obviously a question of duty, which is a separate question not addressed in the motions for summary judgment, the trial court's orders, or on appeal. The sole issue on appeal, regardless of duty, is whether, when the City accepted the work performed by each of these defendants, it relieved each defendant from future liability from any alleged defect that was patent. The issue of duty is, therefore, irrelevant.

Although irrelevant, we also take issue with the suggestion that any of these defendants had a duty or ever performed visual inspections to determine if the plantings in question had created a visual obstruction. R.J. Behar's sole responsibility in this case was to provide design services for the roadway project. These design services did not include the swale plantings. The City and R.J. Behar had previously entered into a contract whereby R.J. Behar would perform engineering and architectural services for the City on an ongoing basis. However, R.J. Behar only had a contractual obligation to complete a task if it was given a purchase order specifying the required work. While there is record evidence that R.J. Behar received a purchase order by the City requiring it to perform design services for the roadway project, there is no evidence that a purchase order was submitted by the City to R.J. Behar requiring R.J. Behar to perform landscaping design services or requiring it to perform construction administration services. Thus, R.J. Behar was never contractually required to design, recommend, or oversee the installation of the landscaping features or to visit the construction site or to monitor, inspect, or correct the work being done on the roadway project. In fact, the record reflects that R.J. Behar never performed these services.

There is unequivocal testimony from both the City's Director of Streets and Storm Water and the president and CEO of R.J. Behar, Robert Behar, verifying that: (1) R.J. Behar was not responsible for the inspection, management, maintenance, and safe condition of the swale areas; (2) R.J. Behar never had any involvement with or responsibility for the trees, shrubs, or other plantings in the swale area; and (3) there were no landscaping features or plantings in the design documents drafted by R.J. Behar except for the inclusion of sod in the swale areas of the project. Accordingly, there is nothing in the record to suggest that R.J. Behar bore a legal duty to protect Herrera from the threat of harm allegedly posed by the shrubs planted by the nursery, a nursery which was hired by the City, not R.J. Behar.

Similarly, the record reflects that Williams Paving, the general contractor for the project, also had no contractual obligation to design the landscaping features for the swales or to plant, maintain, or inspect the landscaping that was independently installed by Melrose Nursery and the City. Williams Paving was, in part, required to construct the roadway and the swales, and to plant sod in the swales. It had no obligation to complete a visibility inspection for the independent landscaping features added after Williams Paving had completed its contractual obligations or to maintain the shrubs planted by Melrose Nursery. The City independently hired Melrose Nursery to provide these landscaping features, and Williams Paving was not hired to maintain or inspect what the City and Melrose Nursery had independently agreed to plant.

In sum, when the City hired Melrose Nursery to provide the landscaping for the swales, uninvolved parties, such as R.J. Behar and Williams Paving, had no duty of care as to those landscaping features. The record also establishes that neither defendant was involved with or inspected any of the landscaping features added after they had completed their work other than the planting of sod in the swales.

The dissent appears to suggest that because the defendants have stated in various discovery responses that they had identified no visual obstruction, that the dangerousness of the condition created by the planted Jatropha Hastata shrubs was latent. First, that is not the test, as discussed above. Second, the record on appeal reflects that none of these defendants had a duty to perform or in fact did perform a visibility study after the Jatropha Hastata shrubs were planted. R.J. Behar conducted no visibility study after the shrubs were planted because the landscaping was not included in the scope of its work nor on its plans. In fact, Robert Behar testified that: (1) it had no oversight function nor inspection duties for this project; (2) its contract with the City did not include performing any visibility study; (3) its plans included no added trees or shrubs because the scope of its work did not include a landscaping function; (4) there were only two "inspections" performed by R.J. Behar: when it began its design work and when the work it was contracted for was completed; (5) these "inspections" were conducted prior to the plantings being installed by Melrose Nursery; and (6) there were no visibility issues at that time . In fact, Mr. Behar testified that the first time he ever saw these plantings was after the accident two years after the project was completed.

The same is true for Williams Paving. Joseph Garcia, whose testimony is relied on by the dissent, also testified in his deposition that the plans provided to Williams Paving only included the existing trees and its contract with the City was to install sod upon its completion of the swales. Thus, like R.J. Behar, any visibility study or inspection it performed was confined to the scope of its work, which did not include the Jatropha Hastata shrubs planted by Melrose Nursery after Williams Pavings' work was completed.

In fact, Alfredo Martinez, the Roadway Construction Supervisor for the City, confirmed that R.J. Behar, Williams Paving, and Melrose Nursery have no liability in this case. He testified that he was the inspector for the project from the beginning through the end of the project. He confirmed that the plans R.J. Behar and Williams Paving were relying on did not reflect any landscaping. He also confirmed that Melrose Nursery was contracted by the City, not R.J. Behar or Williams Paving.

More importantly, Martinez admitted that he personally chose the number, type, and size of the trees or shrubs to be planted in the swales; and he chose the Jatropha Hastata shrubs to keep motorists from parking on the swales and creating an obstruction and because the Jatropha Hastata shrubs do not get too tall or thick and will not cause a visual obstruction. He explained that the shrubs he selected had been trimmed of branches, leaving only an eight-inch plume of foliage at the top of the four-to-five foot plant. He testified that he told Melrose Nursery exactly how many of these shrubs to plant and exactly where he wanted each one planted.

MARTINEZ: Okay. Normally, I will make a list of trees according to the address of each house, how many trees and what kind of trees. Then we will ask the landscaping company to give us an estimate, a proposal for the kind of tree that we want and the amount and the size of the trees. Once that is approved, we issue a PO order to the landscaping company to carry out the work.
Q: Who actually performs the task of selecting the trees and the plants and the shrubs to be planted in the swale areas?
MARTINEZ: I did.
Q: Exclusively?
MARTINEZ: Maybe with the help of Efrain Hill [supervisor for the City]. Nobody else.
Q: So as far as you know, regarding the trees, plants and shrubs that were planted in both the medians as well as the swale areas as part of the East 1st Avenue Project, there was no site plan ever generated or put together identifying where those trees, plants and shrubs were to be specifically planted in both the swale areas and the medians.
MARTINEZ: That is correct. I never seen [sic] one by any company.
....
MARTINEZ: I repeat the same thing again. Melrose did not give a specific instruction as to what type of tree and where to plant the trees.
Q: What instruction or recommendation or advice did Melrose, in fact give the City of Hialeah as it relates to trees, plants and shrubs planted in the swale areas located at or near the southeast corner or the intersection of East 1st Avenue and East 12th Street?
MARTINEZ: No specific instruction.
Q: None whatsoever?
MARTINEZ: None.
....
MARTINEZ: You know, my only discrepancy with what you are saying is that Melrose never told us: "Plant this type of tree at this corner or that corner or this plant there at that address."
Q: I'm just trying-
MARTINEZ: That was-that was done by my discretion right or wrong, but it was done at my discretion.
....
Q: Okay. And let me be specific. Was Melrose Nursery contractually retained by the City of Hialeah to supply the trees, the plants and the shrubs that were planted in the swale areas near the southeast corner of the East 1st Avenue and East 12th Street?
MARTINEZ: That's correct.
Q: As part of the East 1st Avenue Project.
MARTINEZ: As per our instructions.
....
Q: And those instructions were in writing?
MARTINEZ: Yes.
....
MARTINEZ: The instruction was just an address with the type of tree that was supposed to be planted at that address.
....
Q: And clearly, you would go out and inspect after Melrose planted. Whether they were the Jatropha Hastata trees or shrubbery or anything else, you would go out and inspect it after it was planted; correct?
MARTINEZ: That's correct.
Q: If their installation or planting of the trees were in violation of any code or ordinance, whether it was the City of Hialeah or Miami-Dade County or any other ordinance, code, or standard, would you have told them to correct it?
MARTINEZ: Well, you know, there shouldn't be any kind of violation by Melrose. Because we were the one who told them where to inspect-where-where to plant the tree, what kind of tree and where to plant it.
....
Q: So Melrose simply was-what you're saying is Melrose simply planted the trees where the City of Hialeah told them. And whether or not it was in compliance with any code standards or ordinances, the City of Hialeah, through your Department, would have known that; correct?
MARTINEZ: That's correct.

Martinez Dep. (emphasis added).

As this evidence clearly demonstrates, R.J. Behar, Williams Paving, and Melrose Nursery never belonged in this suit in the first place, and the Slavin doctrine protects them from having to defend themselves further in this lawsuit.

CONCLUSION

Valiente's theory in this case is that R.J. Behar, Williams Paving, and Melrose Nursery were responsible for Herrera's death because they were responsible for an alleged visual obstruction caused by the Jatropha Hastata shrubs planted in the swale of the intersection where the motor vehicle accident occurred. However, the City accepted their completed work in 2006, two years prior to the accident, the Roadway Construction Supervisor for the City admitted that he inspected the landscaping after the Jatropha Hastata shrubs were planted, and it is presumed that the City made a reasonable inspection of that work prior to accepting it. If the shrubs created a visual obstruction, the obstruction could have been revealed had the City performed a reasonably careful inspection. Thus, any visual obstruction that may have existed would have been patent and, if any visual obstruction did exist, the dangerousness of that condition would equally have been patent. For these reasons, we find no error in the trial court's entry of final summary judgment in favor of R.J. Behar, Williams Paving, and Melrose Nursery because they are protected by the application of the Slavin doctrine. We also find that Valiente's remaining arguments are without merit, and we therefore decline to specifically address them here. Accordingly, we affirm.

Affirmed.

FERNANDEZ, J., concurs.

INTRODUCTION

I respectfully dissent from the majority's opinion affirming the trial court's final summary judgment in favor of defendants R.J. Behar & Company (a roadway design consultant and engineering company), Williams Paving Company (a general contractor), and Melrose Nursery, Inc. (a nursery and landscaping company), because the trial court misapplied the Slavin doctrine, and because there unquestionably remain material issues of disputed fact regarding whether the dangerousness of the condition was obvious and whether the City exercised reasonable care.

ANALYSIS

1. The Slavin Doctrine

In Slavin v. Kay, 108 So.2d 462, 466 (Fla. 1959), the Florida Supreme Court held that "[b]efore accepting the work [of a contractor] as being in full compliance with the terms of the contract, [a property owner] is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author." This court further defined the contours of the " Slavin doctrine" in Florida Department of Transportation v. Capeletti Bros., Inc., 743 So.2d 150, 152 (Fla. 3d DCA 1999) : "Generally, the liability of a contractor is cut off after the owner has accepted the work performed if the alleged defect is a patent defect which the owner could have discovered and remedied." Accordingly, the Slavin doctrine applies to "cut off" a contractor's liability when two things have occurred: (1) the owner has accepted the work performed; and (2) the alleged defect is a patent defect that the owner in the exercise of reasonable care could have discovered and remedied.

Importantly, as to the question of patency, we held in Capeletti that "the test ... is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care ." Id."If the dangerousness of the condition was not obvious, then the defect is latent, and the contractor is not automatically relieved of liability." Id.

2. Summary Judgment in Negligence Cases

It is apodictic that, when reviewing summary judgment, we are required to view the facts in a light most favorable to the non-movant, and to draw every reasonable inference in the non-movant's favor. Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass'n, Inc., 127 So.3d 1258, 1268 (Fla. 2013) ; Holl v. Talcott, 191 So.2d 40, 43-44 (Fla. 1966). "If the record on appeal reveals the possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment should be reversed." Carbajo v. City of Hialeah, 514 So.2d 425, 425 (Fla. 3d DCA 1987). See also Leybovich v. SecureAlert, Inc., 237 So.3d 1104 (Fla. 3d DCA 2017) ; Piedra v. City of N. Bay Vill., 193 So.3d 48 (Fla. 3d DCA 2016) ; Aguero v. First Am. Ins. Co., 927 So.2d 894 (Fla. 3d DCA 2005) ; Copeland v. Florida New Inv. Corp., 905 So.2d 979 (Fla. 3d DCA 2005) ; Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000).

Trial courts should proceed with even greater caution when deciding summary judgment motions in negligence cases, especially where the issue is whether a party exercised reasonable care. Although the majority's decision is premised upon the Slavin doctrine, application of that doctrine requires a determination of whether the City exercised reasonable care in its inspection of the property. Whether or not a party exercised reasonable care lies at the very heart of a negligence claim, and is generally a question for the factfinder to determine. See, e.g., Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) (acknowledging: "Summary judgments should be cautiously granted in negligence and malpractice suits"); Talcott, 191 So.2d at 46 (observing that "summary judgment procedures should be applied with special caution in negligence actions"); Kala Invest., Inc. v. Sklar, 538 So.2d 909, 913 (Fla. 3d DCA 1989) (explaining "it is 'peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of care' ") (quoting Orlando Exec. Park v. Robbins, 433 So.2d 491, 493 (Fla. 1983) (receded from on other grounds by Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla. 1995) ) ); Marks v. Delcastillo, 386 So.2d 1259, 1264 n.8 (Fla. 3d DCA 1980) (observing: "The precautions deemed necessary in discharging a particular duty of reasonable care are ordinarily for the jury to decide"); Holley v. Mt. Zion Terrace Apts., Inc., 382 So.2d 98, 100 (Fla. 3d DCA 1980) (acknowledging: "Under our system, it is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of care"). And as we have previously held in cases involving the very same issue: "Whether or not a condition is latent or patent is ordinarily a question for the jury. Thus, summary judgment is usually inappropriate." Capeletti, 743 So.2d at 152 (citing Kala, 538 So.2d at 916 ).

While there are, of course, circumstances in which summary judgment on a negligence claim could properly be granted, the instant case is not one of them, and provides no principled basis to deviate from these well-established general rules.

3. Issues of Fact Remain in Dispute: Whether the Five-Foot Shrubs Created a Dangerous Condition and, if so, Whether the Dangerous Nature of the Condition Could Have Been Discovered Had the Owner Exercised Reasonable Care

When viewed in a light most favorable to Valiente (as the non-moving party) the record evidence shows:

The claims in this case arose out of a fatal automobile accident at an intersection in the City of Hialeah. The City had contracted with the defendants, each of which provided services as part of a 2005 roadway project that involved planting shrubs in the swale area of the intersection where the accident occurred.

R.J. Behar was responsible for inspecting the project and for performing visibility studies, including assessing visibility issues for traffic at the intersection where the fatal accident occurred.

Melrose Nursery planted the shrubs at the intersection in question. The shrubs were five feet tall when Melrose planted them, twice the permissible height.

Williams Paving was the general contractor for the project. Williams Paving's responsibilities included inspecting the roadway and swale areas to identify and remove or correct any safety violations, including any visual obstructions.

The operative complaint alleged, inter alia , that these defendants negligently planted (or caused to be planted), or failed to remove or maintain certain shrubs in the swale, causing a visibility obstruction and leading to the accident which resulted in the death of Yunier Herrera.

The defendants answered the complaint and each denied that they knew or should have known that any visual obstructions or dangerous conditions existed at the subject intersection.

Following discovery, each of the defendants moved for summary judgment based upon the Slavin doctrine. Each defendant asserted that, because the City of Hialeah (the owner of the property) accepted the property after construction was complete, and because the alleged visual obstruction was a patent condition, the defendants were entitled to judgment as a matter of law. The trial court agreed, granting summary judgment in favor of the defendants. In affirming, the majority opinion conflicts with this court's own precedent, and fails to consider the record evidence which reveals that genuine issues of material fact remain in dispute.

Interestingly, both the majority and this dissent rely upon the very same excerpt from the very same case in support of our respective conclusions: "[T]he test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care." Capeletti, 743 So.2d at 152.

The majority, however, appears to focus on the very last clause ("had the owner exercised reasonable care"), see Maj. Op. at 547, while I would suggest the proper focus is on the entire portion of that clause ("whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care.")

The majority holds that

the test for patency, to reiterate, is not what the City knew, but rather, what the City could have discovered had the City performed a reasonably careful inspection.
On a roadway construction project, any reasonably careful inspection of five foot tall shrubs in the swale of a roadway near an intersection must include looking at the shrubs and other landscaping features to see if they constitute a visual obstruction to passing motorists. By definition, the presence of a visual obstruction is readily ascertainable-either it obstructs your view or it does not. Indeed, the plaintiff's own expert testified that the shrubs caused a visual obstruction immediately upon being planted in 2005. On these facts, because any visual obstruction these shrubs might have posed could have been discovered by the City upon a reasonable inspection, the alleged visual obstruction would have been patent, and therefore, R.J. Behar, Williams Paving, and Melrose Nursery are protected by the Slavin doctrine because the City accepted their completed work.

Maj. Op. at 547 (underscore emphasis added).

The majority implicitly determines that the mere existence of these five-foot shrubs in the swale necessarily renders them a "visual obstruction." In doing so, however, the majority conflates the patency of the condition (five-foot shrubs in the swale) with the patency of the dangerousness of the condition (five-foot shrubs creating a visual obstruction for motorists). This glosses over the most significant distinction drawn in Capeletti: that summary judgment relief under Slavin is inappropriate where the condition is obvious, but where it remains in dispute whether the dangerousness of the condition was obvious.

The issue in this case is: (1) whether the five-foot shrubs planted in the swale created a dangerous condition; and (2) if so, whether such a dangerous condition was obvious in the exercise of reasonable care.

The majority posits:

On a roadway construction project, any reasonably careful inspection of five foot tall shrubs in the swale of a roadway near an intersection must include looking at the shrubs and other landscaping features to see if they constitute a visual obstruction to passing motorists.

Maj. Op. at 547. I take no issue with this statement. However, the majority relies upon this statement to hold that, as a matter of law , the City did not exercise reasonable care in its inspection because, had it done so, it necessarily would have discovered that the five-foot shrubs created a dangerous visual obstruction.

I don't deny that this may ultimately be a reasonable finding of fact for the jury to make at the conclusion of a trial. It might even be a reasonable inference to draw if we (or the trial court) were permitted to draw reasonable inferences in favor of the moving party at the summary judgment stage. But neither we nor the trial court are permitted to do so, because all evidence must be viewed, and reasonable inferences resolved, in favor of the non-moving party.

Instead, the record evidence and its inferences, viewed in a light most favorable to Valiente, establish the following:

•R.J. Behar, in response to a request for production seeking all visibility studies it conducted at the subject intersection, responded: "None; there were no visibility issues at that location ." (Emphasis added.)
•Williams Paving was the general contractor retained by the City for the Project. Joseph Garcia, the Safety and Traffic Supervisor for Williams Paving, testified in deposition that Williams Paving was to identify and remove visual obstructions in the roadway and swales, including anything over three inches tall. Mr. Garcia acknowledged that, in similar previous projects, he had identified and removed visual obstructions caused by plants, trees and shrubs. Mr. Garcia testified that in the instant project there were no visual obstructions at the subject intersection. (Emphasis added.)
•Ron Smith, another Williams Paving employee, averred in his affidavit that "At no time prior to April 2008 was Williams Paving aware of any alleged dangerous condition or any visual obstructions occurring in the intersection of East 1st Avenue and 12th street caused by trees/shrubs or plants." (Emphasis added.)
•Melrose Nursery, in response to a request for admissions, admitted that it "did not know that the ... shrubs it sold and planted in the swale areas ... created a visual obstruction to motorists." (Emphasis added.)
•The City stated under oath, in answer to an interrogatory, that "[t]o the best of [the City's] knowledge and belief, there were no dangerous conditions and/or visual obstructions found in the swale area ...." (Emphasis added.)
•The City's Roadway Construction Supervisor, Alfredo Martinez, testified at deposition that after the shrubs were planted in the swale he inspected the work and would not have paid Melrose unless he was satisfied that it was in compliance with all applicable codes. Mr. Martinez further testified that the shrubs in question were "behind the line of sight", meaning "anyone driving in any direction should be able to see on-coming traffic" because the shrubs were "not interfering with the line of sight."

Thus, while the presence of these five-foot shrubs may have been open and obvious, it remains a disputed issue of fact whether the dangerousness posed by the presence of these five-foot shrubs was open and obvious.

The instant case is analogous to Brady v. State Paving Corp., 693 So.2d 612 (Fla. 4th DCA 1997). In Brady, plaintiffs were injured when their car drove into an area where water had ponded on an expressway under construction, causing the driver to lose control and the car to roll over. Plaintiffs sued the Department of Transportation, alleging that it knew or should have known of this dangerous condition. Plaintiffs also sued several of the companies involved in the construction of the expressway, alleging that the condition was a latent defect.

The plaintiffs' expert testified in deposition that the ponding condition was open and obvious. The trial court, in apparent reliance on this concession from plaintiffs' expert, granted summary judgment in favor of the companies involved in the construction. The Fourth District reversed, noting that (1) the testimony of the plaintiff's expert was contradicted by evidence that the ponding problem was not open and obvious; and (2) the Department of Transportation had inspected and could not even detect the existence of a problem. Id. at 613.

The Brady court held that, despite the fact that the presence of the water on the roadway was a readily observable and patent condition, a genuine issue of material fact remained as to whether the dangerousness of the condition was patent.

This court, in similar circumstances, has held to like effect: the fact that a condition may be patent does not mean, as a matter of law, that the dangerousness or defective nature of the condition is patent. See, e.g., Parrot Jungle & Gardens Ltd., Inc. v. Andrews, 959 So.2d 303 (Fla. 3d DCA 2007) (reversing summary judgment and holding that, although monkey bars allegedly built too high from the ground and, contrary to industry standards, without a proper safety surface below, genuine issue of material fact remained as to whether the defective nature of the condition was patent); Kala, 538 So.2d at 913 (reversing summary judgment granted by the trial court under Slavin and holding, "the test for patency is not whether the object itself or its distance from the floor was obvious to Kala, but whether the defective nature of the object was obvious to Kala with the exercise of reasonable care); Foster v. Chung, 743 So.2d 144, 147 (Fla. 4th DCA 1999) (reversing summary judgment in a lawsuit alleging negligence from an accumulation of water on a roadway resulting in an accident because "although the water on the road may have been obvious, the depth of the water was not .... The test under Slavin would not be whether the water itself was obvious, but rather the dangerous nature of the water was obvious") (quoting Brady, 693 So.2d at 613 ) ).

The same result should obtain in this case. While the presence of the five-foot shrubs in the swale of the intersection was open and obvious, this does not establish, as a matter of law, the open and obvious dangerousness of the five-foot shrubs.

CONCLUSION

Given the record below, genuine issues of material fact remain in dispute regarding whether the five-foot shrubs created a condition whose dangerous nature was obvious had the City exercised reasonable care. By affirming the trial court, the majority's decision fails to properly apply the Slavin doctrine as established by the Florida Supreme Court, and conflicts with this court's decision in Capeletti.

We should reverse the final summary judgments entered by the trial court, and I therefore respectfully dissent.

      Slavin v. Kay, 108 So.2d 462 (Fla. 1959).

      We note that the evidence suggests that the shrubs did not create a visual obstruction when they were planted in 2005. Alfredo Martinez, the roadway construction supervisor for the City during the project, testified that he personally selected the plantings, including the Jatropha Shrubs, and supervised the planting. He testified that when the shrubs were planted in 2005, they were four or five feet tall and trimmed of all foliage except for a small amount of leaves, approximately eight-to-ten inches, at the top of the trees. Thus, the evidence actually suggests that if a visual obstruction existed in 2008 when this accident occurred, it was caused by the growth of the shrubs and/or the maintenance or lack of maintenance of the shrubs. If true, then the defendants' liability to Herrera had long expired because none of them were hired by the City to maintain the swales or plantings after the project was completed and accepted by the City.

      Where appropriate, Melrose Nursery, Inc., Williams Paving Company, and R.J. Behar & Company are referred to collectively as "defendants."

      The Slavin doctrine has also been held to apply to design engineers and architects. See Easterday v. Masiello, 518 So.2d 260 (Fla. 1988).

      Valiente relied for this assertion on a Miami-Dade County Public Works Manual, which provided that the maximum height allowable for such shrubs is two and one-half feet.

      In this regard, the majority opinion makes only a passing reference: "Valiente suggests that neither the defendants in this appeal nor the City knew that the shrubs constituted a visual obstruction." Maj. Op. at 547. As can be seen, however, Valiente does not merely "suggest" that defendants claimed a lack of knowledge; instead, Valiente presented record evidence establishing that defendants themselves asserted that there were no visual obstructions at the location.


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    Jeffrey GABRIEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1363
    District Court of Appeal of Florida, Fourth District.
    June 27, 2018
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

In this appeal from appellant's conviction for grand theft, appellant contends that the prosecutor's closing argument merits reversal on multiple grounds. After the prosecutor implied to the jury in closing argument that mere presence at the scene of a crime was sufficient to support a conviction, the court refused to give appellant's requested instruction on "mere presence." The trial court erred in failing to give the appellant's instruction. It also erred in overruling appellant's objection to the prosecutor's references to facts beyond the evidence. Further, the prosecutor referenced facts not in evidence and made several comments negatively reflecting on appellant's right to a jury trial. Because we cannot conclude that the cumulative effect of all of the comments were harmless beyond a reasonable doubt, we reverse.

In 2015, the State charged appellant, Jeffrey Gabriel, by information with one count of petit theft under section 812.014, Florida Statutes (2015), alleging he knowingly obtained the property of American Express, merchandise at a value of $300 or more but less than $5,000. The State also charged Claudel Thermidor, co-defendant, with criminal use of personal identification information, grand theft, and fraudulent use of a credit card. At trial, a detective testified that he had responded to a home burglary where the homeowner's American Express card was taken. The detective contacted American Express, and he learned the card had been used on the same day as the burglary at several retail stores about a block away from the home. Surveillance footage from the stores showed the co-defendant Thermidor, appellant, and another person checking out of the stores. The footage caught Thermidor handing the stolen credit card to the cashier to purchase merchandise, some of which was handed to Thermidor by appellant.

The detective arrested appellant, who gave a statement. He admitted to being with Thermidor at the stores, claiming he was shopping with Thermidor because Thermidor owed him money over a card game. While the detective took fingerprints from appellant, none matched anything at the scene of the burglary.

Co-defendant Thermidor confessed to his participation and testified at appellant's trial. In consideration of his confession, the State put him in a pretrial intervention program (PTI).

Thermidor knew appellant from his neighborhood, but he wasn't really a friend-more of an acquaintance. Appellant called him on the day of the crimes, saying he had something to show Thermidor. Appellant eventually showed him the credit card that they used in the stores. Appellant did not tell him from where he got it. It was Thermidor's idea for them to go shopping with the card. Thermidor's friend, John, went with them. Appellant gave Thermidor the card to use at the registers, and Thermidor purchased items, some of which were handed to him by appellant.

The State played the surveillance videos to the jury. Thermidor identified himself and appellant in the video. In it, Thermidor is seen handing the credit card to the cashier while both appellant and Thermidor's friend stand by holding merchandise.

On cross-examination, Thermidor admitted he entered PTI and confessed to his crimes with the hopes his charges would be dropped. He paid restitution to American Express. He admitted that in his sworn PTI statement, he confessed he used the stolen card, but he did not mention appellant's involvement. Thermidor conceded that, as part of PTI, he was required to cooperate with the State regarding appellant's prosecution and to testify against appellant.

After additional evidence from an American Express representative was presented, the State rested. The court denied appellant's motion for judgment of acquittal. He presented no witnesses. At the charge conference, appellant requested a "mere presence" instruction, informing the jury that mere presence at the crime scene is insufficient to prove participation. The court denied the appellant's request, but it ruled that appellant could make that argument during closing. The court ruled that it would read the standard instruction on principal liability, which provides:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he] [she] had done all the things the other person or persons did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually [commit] [attempt to commit] the crime.
To be a principal, the defendant does not have to be present when the crime is [committed] [or] [attempted].

Fla. Std. Jury Instr. (Crim.) 3.5(a).

The prosecutor commenced her closing argument, telling the jury that, "we're all here because [appellant] refuses to take responsibility for his own actions on May 7, 2015. That's why we are here." She contrasted appellant to Thermidor, who "did take responsibility for his actions on that day" and testified against appellant. She repeated this theme multiple times throughout the closing argument.

As the prosecutor discussed Thermidor's recitation of events, she told the jury that in Thermidor's statement to the detective, he confessed and said, "I knew what I did was wrong, but I got the card from [appellant]." Defense counsel objected that those facts were not in evidence, as the court had disallowed the detective to testify regarding Thermidor's confession to the detective. The court overruled the objection.

During the defense's closing argument, counsel consistently attacked Thermidor and the unreliability of his testimony. He argued that the videos only showed "mere presence" of appellant, which was insufficient to show participation without Thermidor's testimony, stating:

there is no evidence to prove that [appellant] participated in this theft; this theft and this fraud that Mr. Thermidor admitted to you and has confessed to I don't know how many times now.
That leaves us with [appellant's] mere presence at the store. The law in Florida says mere presence, even mere knowledge, but mere presence without any participation is not enough to commit .
So if mere presence is not enough, that leaves you with what? The only witness that mattered in this case, Claudell Thermidor. Every word that man spoke yesterday was covered in reasonable doubt. I think you could ask that guy what time it is and he would equivocate and would not be sure. Even simple questions from the State he wasn't sure about.

(emphasis added). Later, he reiterated that, "Mere presence is not enough. Mere knowledge isn't even enough. The only evidence or testimony that [appellant] knew what Mr. Thermidor was doing that day came from Mr. Thermidor, not a reliable source."

In rebuttal, the prosecutor argued that the court would not instruct that mere presence was insufficient. Her comments suggested that the defense was not accurate in his explanation of the law.

Let's talk about what defense counsel said about the principal theory again. I will show it to you one more time. You will not see anywhere in any of your jury instructions that mere presence at the scene of a crime is not enough. What you are going to see is that the person who is being charged as a principal does not even have to be at the scene of a crime to be a principal . I will show it to you again.

(emphasis added). Defense counsel objected, but the trial court allowed the prosecutor to continue, and she again told the jury that presence was sufficient:

This what you will have with you when you go back into the jury room. To be a principal the defendant does not have to be present when the crime is committed.
We can even do one better than that. He was at the scene of the crime when it was committed. It's on the video and everyone saw it.
Ladies and gentlemen, use your common sense. I'm asking you to bring your common sense back there with you. [Appellant] was in on it.

(emphasis added). After rebuttal, defense counsel contended he correctly stated the law and that the prosecutor's argument suggested that he had misstated the law. Appellant again requested a special instruction that mere presence is not enough, but the court denied the request.

The jury convicted appellant of the lesser-included offense of petit theft. This appeal follows.

Appellant argues that the court erred in allowing the prosecutor's argument regarding the defense's contention that "mere presence" was insufficient to prove participation. He contends the State's argument improperly suggested to the jury that defense counsel was misrepresenting the law, and the court erred in refusing to give the special jury instruction on mere presence once the prosecutor had misled the jury on the issue. We agree.

"While wide latitude is permitted in closing argument, see Breedlove v. State , 413 So.2d 1, 8 (Fla. 1982), this latitude does not extend to permit improper argument." Gore v. State , 719 So.2d 1197, 1202 (Fla. 1998). Misleading a jury on the law constitutes improper argument. See Evans v. State , 177 So.3d 1219, 1234-35 (Fla. 2015). We have repeatedly held that, "[m]ere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation." T.W. v. State , 98 So.3d 238, 242 (Fla. 4th DCA 2012) (alteration in original) (quoting Theophile v. State , 78 So.3d 574, 578 (Fla. 4th DCA 2011) ); see also Dorsainville v. State , 203 So.3d 1010, 1012 (Fla. 4th DCA 2016) ; A.B., A Child v. State , 141 So.3d 647, 648 (Fla. 4th DCA 2014).

A defendant is also entitled to instructions which support his or her theory of defense if there is any evidence to support it. See Funchess v. State , 126 So.3d 1107, 1110 (Fla. 4th DCA 2012). While appellant is not challenging the trial court's initial denial of his request for a "mere presence" instruction, the trial court denied the special instruction because it opined that the standard instruction adequately covered the issue of presence. We fail to understand this logic, as the standard instruction states that the defendant does not need to be present to be a principal in the crime. It does not cover the situation where a defendant is present, but he or she takes no action in support of the actual crime. Nevertheless, we do not hold that the trial court erred in denying the request for the mere presence instruction prior to closing argument.

The situation changed, however, when the prosecutor attacked defense counsel's argument that "mere presence" does not constitute sufficient evidence of participation in a crime. She implicitly told the jury that defense counsel was misleading them on the law by telling them that mere presence at a crime scene is not enough to be convicted as a principal. She argued that the legal principle, that mere presence at the crime scene is not enough, was not included in the jury instructions, but that a principal could be convicted even if he was not present. Thus, this was not only a misleading statement regarding the law, but also an improper impugning of the defense counsel's argument. The trial court erred in denying appellant's objection.

The court additionally erred in failing to grant the appellant's renewed request for the "mere presence" special instruction after the prosecutor's improper argument. At that point, it was clear that the trial court's original ground for denying the instruction, i.e., that it was covered by the standard instruction, was refuted by the prosecutor's argument. See Graves v. State , 937 So.2d 1286, 1288-89 (Fla. 4th DCA 2006) (noting the court's failure to give a requested jury instruction is error if calculated to mislead the jury).

The State contends that the prosecutor's argument was simply in rebuttal to defense counsel's argument that only the unreliable testimony of Thermidor connected appellant to the crimes, as the video showed appellant's mere presence at the transactions conducted by Thermidor. However, the prosecutor's argument was misleading and suggested that mere presence at the scene was sufficient to prove the crime. In short, misleading arguments are not proper rebuttal.

The trial court also erred in overruling appellant's objection to the prosecutor's comments in closing argument which injected facts not presented in evidence. In discussing Thermidor's testimony, the prosecutor mentioned Thermidor's first statement to detectives in which he said that he got the credit card from appellant. The statement had not been admitted during the trial, but it bolstered Thermidor's trial testimony by showing that his testimony was consistent with his earlier confession to the authorities. After the court overruled appellant's objection, the prosecutor then stated that when Thermidor met with the detective, "he didn't know anything about a [PTI] program. His story is the same. When he was arrested on May 19, 2015, it's the same story he told you yesterday [in trial] ...." Appellant's objection was again overruled.

"A prosecutor must confine his closing argument to record evidence and 'must not make comments which could not be reasonably inferred from the evidence.' " See Spoor v. State , 975 So.2d 1233, 1235 (Fla. 4th DCA 2008). In Spoor , the defense had argued in closing that the victim's identification of the defendant was suspect because she had not noticed the extensive tattoos on his arms. Id. at 1234. During rebuttal, the prosecutor said that the defendant had gotten the tattoos after the crime, but before the trial, so that he could show them in court and challenge the victim's identification. Id. We held that such argument, which injected facts not in evidence, was improper, and we remanded for a new trial. Id. at 1235 ; see also Howard v. State , 152 So.3d 825, 829 (Fla. 2d DCA 2014) (finding fundamental error where conviction was based on witness's testimony, and the State improperly bolstered that testimony during closing by referencing information not in evidence).

The prosecutor's argument that Thermidor's testimony was consistent with his earlier statement to the police, which was never introduced, was offered solely to bolster Thermidor's testimony against the defense counsel's attacks on Thermidor's reliability. It was not a fair inference from the admitted evidence.

Given the importance of Thermidor's credibility at trial, any error was not harmless. Thermidor was the only witness who directly inculpated appellant, and he was required to testify against appellant as part of his PTI. Defense counsel was never able to cross-examine Thermidor on the excluded statement. See Brinson v. State , 153 So.3d 972, 975-76 (Fla. 5th DCA 2015) (holding it was improper for prosecutor to refer to facts not in evidence to bolster the victim's credibility). Moreover, during deliberation, the jury asked to see the detective's investigative report, indicating that it may have been a close call for them to decide appellant's complicity. See Linic v. State , 80 So.3d 382, 393 (Fla. 4th DCA 2012) ("Where, as here, it may have been a close call for the jury and the prosecutor improperly injected facts and inferences that were not supported by the evidence," there was error).

Finally, the prosecutor commented numerous times in closing argument on what she termed appellant's "refusal to take responsibility" for his actions, and she repeatedly compared him to Thermidor, who pled guilty. She repeatedly commented the jury was "here" in court because of appellant's failure to take responsibility. During her opening statement, the prosecutor began, "Ladies and gentlemen of the jury. The reason we are here today is because the defendant, [appellant], is refusing to take responsibility for his actions." She also began her closing argument with the same "refusal to take responsibility" argument and repeated this line multiple times through her argument.

These comments implicate defendant's right to a trial by jury. The State's theme-that appellant refused to take responsibility-violated his right to a fair jury trial and to remain silent. "It is improper for a prosecutor to comment on a defendant's exercise of his right to a jury trial." Evans , 177 So.3d at 1236 (citing Bell v. State , 723 So.2d 896, 897 (Fla. 2d DCA 1998), where prosecutor improperly commented the "only one reason we're here" was because the defendant had the right to a trial). By emphasizing appellant's failure to plead and contrasting him with Thermidor, the prosecutor violated his right to a fair trial.

A prosecutor's argument that the defendant did not want to take responsibility for his actions was found to violate the defendant's right to a fair trial in State v. Jones , 734 So.2d 670, 672 (La. Ct. App. 1999). Just as in this case, the prosecutor in Jones compared the co-defendant, who pled guilty and testified against the defendant, to the defendant who pled not guilty and went to trial. Noting that, "[a]n accused has the absolute right not to plead guilty," the court concluded that the prosecutor's comments undermined that right and the presumption of innocence accorded to every defendant. Id. at 672-73. The court concluded that this was a structural error in the trial which could not be harmless, noting the presumption of innocence is vital to a fair trial. Id. at 673.

While we do not hold that the prosecutor's comments constituted a structural defect in the trial, we condemn the prosecutor's pervasive use of appellant's "refusal to take responsibility" by going to trial. Such comments denigrate the fundamental principles of the right to jury trial and presumption of innocence. When the prosecutor plans the entire theory of the case around attacking these principles, the defendant is denied a fair trial.

Because of the prosecutor's improper comments, which do not constitute harmless error, we reverse appellant's conviction and sentence and remand for a new trial.

Taylor and Levine, JJ., concur.


author: EMAS, J.

text:
    The BANK OF NEW YORK MELLON, etc., Appellant, v. Nestor GARCIA, etc., et al., Appellees.
    No. 3D17-2041
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Akerman, LLP, and Nancy M. Wallace (Tallahassee), Eric M. Levine (West Palm Beach) and William P. Heller (Fort Lauderdale), for appellant.
    Corona Law Firm, P.A., and Ricardo Corona and Ricardo M. Corona, Coral Gables; Dennis A. Donet, Miami, for appellee Nestor Garcia.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

Plaintiff below, The Bank of New York Mellon ("Bank"), appeals a final judgment of involuntary dismissal of a foreclosure action entered in favor of Nestor Garcia ("Garcia"). We reverse the final judgment because the trial court erred in ruling that a duplicate of the loan modification agreement was inadmissible under the "Best Evidence Rule," and further erred in concluding that the Bank's action was barred by the statute of limitations.

FACTS AND PROCEDURAL BACKGROUND

In February 2006, Garcia obtained a residential loan from Countrywide Home Loans, Inc. In exchange for this loan, Garcia executed a $312,000.00 promissory note and mortgage in favor of Countrywide. Garcia failed to make his monthly loan payments beginning on April 1, 2008. The Bank became the subsequent holder of the note and, in 2008, filed an initial foreclosure action against Garcia. That initial foreclosure action was dismissed in 2010.

On August 16, 2016, the Bank filed the present foreclosure action, alleging that Garcia defaulted on the note by failing to make the payment due on April 1, 2008 and all subsequent payments. Garcia answered the complaint, admitting that he executed the note, mortgage, and loan modification agreement, but asserted that the action was barred by the statute of limitations. Garcia later filed an amended answer where he again asserted the action was barred by the statute of limitations, but denied he executed the note, mortgage, or loan modification agreement.

At the nonjury trial, the Bank introduced the original note and mortgage, the notice-of-default letter and a payment history reflecting all amounts Garcia paid on his loan. The Bank called a single witness: Laura Elder, a consumer resolution associate at the Bank, who testified as to the default dates, the holder of the note, and the outstanding principal balance.

The Bank sought to introduce into evidence a duplicate of the loan modification agreement executed by the parties. Garcia objected, asserting that, under the "Best Evidence Rule" ( section 90.952, Florida Statutes (2016) ), the original was required. Garcia asserted that section 90.953, Florida Statutes (2016), which provides for admission of duplicates in lieu of originals, was inapplicable because the loan modification agreement is a "negotiable instrument," and thus excluded under the express language of section 90.953. The trial court sustained the objection and denied admission of the loan modification agreement duplicate.

Garcia called no witnesses and offered no exhibits at trial. After both parties rested, Garcia moved for a judgment of involuntary dismissal, relying on Rattigan v. Central Mortgage Co., 199 So.3d 966 (Fla. 4th DCA 2016), and contending that the failure to introduce the loan modification agreement was fatal to the Bank's case. Additionally, Garcia argued that, under Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016), because the initial default date alleged in the complaint (April 1, 2008) was more than five years before the complaint was filed (August 16, 2016), the action was barred by the statute of limitations. The trial court agreed with both arguments, and entered a final judgment in favor of Garcia.

The trial court denied the Bank's motion for rehearing, and this timely appeal followed.

ANALYSIS

Exclusion of a Duplicate of the Loan Modification Agreement

We hold that the trial court erred in excluding a duplicate of the loan modification agreement offered into evidence by the Bank. Evidentiary rulings are generally reviewed under an abuse of discretion standard. See Holt v. Calchas, LLC, 155 So.3d 499, 503 (Fla. 4th DCA 2015). However, to the extent that such ruling is based upon construction of a statute or rule, our standard of review is de novo. Griffin v. State, 980 So.2d 1035 (Fla. 2008) ; Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017).

Section 90.952 provides:

Requirement of originals.
Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

Section 90.953 provides:

Admissibility of duplicates
A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041 , a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

In order to admit a document into evidence, "[a]uthentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

§ 90.901, Fla. Stat. (2016). Authentication requires merely a prima facie showing "that the evidence is what the proponent purports it to be." Mullens v. State, 197 So.3d 16, 27 (Fla. 2016). Once that prima facie showing has been made, the evidence is admissible, and the ultimate question of authenticity is for the factfinder. Gosciminski v. State, 132 So.3d 678 (Fla. 2013).

At trial, the parties stipulated to the admission of inter alia , the original note, mortgage, assignment of mortgage, notice of default, and payment history. The Bank sought admission of a duplicate of the loan modification agreement. The loan modification agreement was signed by Garcia, and contained a notary stamp and the signature of that notary. Garcia objected to the introduction of the duplicate, citing as a basis the Best Evidence Rule. The trial court sustained the objection and excluded the duplicate. Garcia did not raise any question regarding the authenticity of the original nor contend that it was unfair under the circumstances to admit the duplicate in lieu of the original.

Garcia contends here, as he did below, that the duplicate of the loan modification agreement was inadmissible because it is a negotiable instrument and that, under section 90.953, the Bank was required to introduce the original rather than a duplicate. We reject Garcia's premise and hold that the loan modification agreement is not a negotiable instrument; therefore, the Bank was entitled under section 90.953 to introduce a duplicate of the original loan modification agreement and was not required to introduce the original. As our sister court concluded in Liukkonen v. Bayview Loan Servicing, LLC, 243 So.3d 981, 983 (Fla. 4th DCA Mar. 28, 2018) :

A modification to a note, while "as much a part of the parties' agreement [i.e., its terms] as the original note," Rattigan [v. Central Mortgage Co.], 199 So.3d 966, 967 [ (Fla. 4th DCA 2016) ], is not, itself, a negotiable instrument. See § 673.1041, Fla. Stat. (2016) ; see also § 673.1171, Fla. Stat. (2016). Like a mortgage, it "may thus be proved by using a properly authenticated duplicate." [Deutsche Bank Nat'l Tr. Co. v. ] Clarke, 87 So.3d 58, at 61 (Fla. 1st DCA 1985) (quoting Perry v. Fairbanks Capital Corp., 888 So.2d 725, 727 (Fla. 5th DCA 2004) ). No explanation as to why the original was unavailable is required.

See also Wright v. Deutsche Bank Nat'l Trust Co., 245 So.3d 786 (Fla. 4th DCA April 25, 2018). But see McCampbell v. Fed. Nat'l Mortg. Ass'n, 2D16-177, --- So.3d ----, 2018 WL 2424483 (Fla. 2d DCA May 30, 2018).

We agree with our sister court's analysis in Liukkonen and hold that a loan modification agreement is not a negotiable instrument and a duplicate, if properly authenticated, is admissible to the same extent as the original and without need for an explanation as to why the original was unavailable. The trial court thus erred in determining that the loan modification agreement was a negotiable instrument and that a duplicate was inadmissible under sections 90.952 and 90.953.

Dismissal of the Action Based Upon the Statute of Limitations

We further hold that the trial court erred in concluding that the action was barred by the statute of limitations. The verified complaint alleged that "Garcia has defaulted under the covenants, terms and agreements of the Note in that the payment due April 1, 2008, and all subsequent payments , have not been made." (Emphasis added.) It is well-settled that this allegation was sufficient to withstand Garcia's statute of limitations challenge, and the trial court erred in dismissing the action on this basis. As the Florida Supreme Court held in Bartram v. U.S. Bank, N.A., 211 So.3d 1009, 1019 (Fla. 2016), "with 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." See Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc) (holding that, even if the alleged initial default date was more than five years before the complaint was filed, the action was not barred by the statute of limitations where "the bank alleged the failure to pay the October 1, 2006 installment payment 'and all subsequent payments.' ")

We have followed the principles established in Bartram and Beauvais in several decisions indistinguishable in all material respects from the instant case. Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825, 826 (Fla. 3d DCA 2016) (holding: "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 the five years of default payment ... the action survived the asserted statute of limitations bar"); Arnoux v. Bank of New York, 193 So.3d 82, 83 (Fla. 3d DCA 2016) (reaffirming our holding in Beauvais that "the five-year statute of limitations in foreclosure actions does not bar a second foreclosure lawsuit filed on a subsequent payment default if that subsequent default occurred within the five-year period preceding the commencement of the second foreclosure lawsuit.") See also Wells Fargo Bank, N.A. v. Rendon, 245 So.3d 917 (Fla. 3d DCA April 18, 2018) ; Nationstar v. Silva, 239 So.3d 782 (Fla. 3d DCA 2018) ; Bank of New York Mellon v. Anton, 230 So.3d 502 (Fla. 3d DCA 2017).

The trial court's (and Garcia's) reliance upon our decision in Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016) is misplaced, as the foreclosure action in that case was based not upon an allegation of a continuing default (i.e., April 1, 2008 and all subsequent payments), but rather upon an allegation of a single default date that fell outside the statute of limitations period.

CONCLUSION

The trial court erred in entering a final judgment of dismissal in favor of Garcia. We reverse the final judgment and remand for a new trial and for further proceedings consistent with this opinion.

      Section 673.1041, Florida Statutes (2016) provides in pertinent part:
      (1) Except as provided in subsections (3), (4), and (11), the term "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
      (a) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
      (b) Is payable on demand or at a definite time; and
      (c) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain:
      1. An undertaking or power to give, maintain, or protect collateral to secure payment;
      2. An authorization or power to the holder to confess judgment or realize on or dispose of collateral; or
      3. A waiver of the benefit of any law intended for the advantage or protection of an obligor.

      While Garcia and the trial court relied upon Rattigan v. Central Mortgage Co., 199 So.3d 966 (Fla. 4th DCA 2016), that decision is inapplicable to the instant case. In Rattigan, the Fourth District held that the bank violated the best evidence rule by foreclosing under the terms of a modification without introducing into evidence the original or a copy of the modification. Id. at 967. Instead, a witness merely testified to the terms and contents of the loan modification. Rattigan held: "Without the agreement itself in evidence, testimony regarding the contents of the agreement is not permitted." Id. (citing J.H. v. State, 480 So.2d 680, 682 (Fla. 1st DCA 1985) ). And while not a part of the strict holding, the Rattigan court further observed: "The Bank violated the best evidence rule by virtue of its failure to introduce the modification at trial (either the original or a duplicate with an explanation as to why the original note was unavailable) ...." Id. The Fourth District in Liukkonen subsequently clarified this parenthetical in Rattigan, characterizing it as dicta and holding that a modification to a note "may thus be proved by using a properly authenticated duplicate" and that "[n]o explanation as to why the original was unavailable is required." Liukkonen v. Bayview Loan Servicing, LLC, 243 So.3d 981, 983 (Fla. 4th DCA Mar. 28, 2018).


author: LAGOA, J.

text:
    Susan LANE, Appellant, v. Keith LANE, Appellee.
    No. 3D17-2538
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Abramowitz and Associates, and Jordan B. Abramowitz, Coral Gables, for appellant.
    Kircher Law, P.A., and Peter H. Kircher, Miami, for appellee.
    Before LAGOA, FERNANDEZ, and LINDSEY, JJ.
   LAGOA, J.

Susan Lane (the "mother") appeals from the trial court's "Order on Father's Amended Motion to Authorize Children's Enrollment at Westminster Christian School Etc.," which (1) authorizes Keith Lane (the "father") to file applications for admission of the parties' children to Westminster Christian School ("Westminster") for the 2018-2019 academic year and to enroll the children if they are accepted, and (2) denies the mother's Verified Motion for Contempt and to Compel Father to Comply with Shared Parental Responsibility. We find that the trial court did not abuse its discretion and affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The mother and father were divorced by Final Judgment of Dissolution of Marriage on October 13, 2015, and have two minor children, P.L., born in 2006, and M.L., born in 2007. Pursuant to the Final Judgment of Dissolution of Marriage, the parties have shared parental responsibility for their minor children. For the 2017-2018 academic year, the children attended the public schools serving the district in which the mother lived. Specifically, P.L. attended sixth grade at Palmetto Middle School, and M.L. attended fifth grade at Palmetto Elementary School. The parties disagree over where the children should attend middle school for the 2018-2019 academic year. The mother would like both children to attend Palmetto Middle School, while the father would like them to attend Westminster, a private school. The father is willing to be solely responsible for the costs associated with attending Westminster.

On March 20, 2017, the mother filed a Verified Motion for Contempt and to Compel Father to Comply with Shared Parental Responsibility (the "Motion for Contempt"), arguing that the father violated shared parental responsibility when he took the parties' son to Westminster, without the mother's knowledge or consent, to have him tested to determine eligibility for entrance to the school. On September 14, 2017, the father filed his Amended Motion to Authorize Children's Enrollment at Westminster Christian School at Father's Sole Cost (the "Motion to Authorize Enrollment"). The father alleged that the mother refused to engage in discussions regarding the children's potential enrollment at Westminster. The father argued that Westminster was an excellent fit and well-suited to the talents and activities of the children, that Westminster "outpaces" Palmetto Middle School, and that he agreed to be solely responsible for the cost of attending Westminster. On October 11, 2017, the trial court held a hearing on the mother's Motion for Contempt and the Father's Motion to Authorize Enrollment. Both the mother and father testified at the hearing.

On October 18, 2017, the trial court entered its "Order on Father's Amended Motion to Authorize Children's Enrollment at Westminster Christian School Etc." (the "Order"). In its Order, the trial court granted the father's Motion to Authorize Enrollment, finding that it would be in each child's best interest to enroll at Westminster. The Order authorized the father to file applications for admission to Westminster for the 2018-2019 academic year and to enroll the children if the applications were accepted. The Order further authorized the father to apply for early admission with the understanding that the applications must be submitted before November 1, 2017, and provided that the father shall be solely responsible for the costs charged by Westminster should the children be accepted. The Order also stated that the mother "shall cooperate with and fully support the children's applications to Westminster Christian School and their subsequent enrollment, if accepted." Finally, the Order denied the mother's Motion for Contempt.

The wife's appeal from the Order ensued. The father represented in a May 7, 2018, filing with this Court that the children have been accepted to Westminster for the 2018-2019 academic year and that the first day of school is in August 2018.

II. STANDARD OF REVIEW

A trial court's determination regarding the best interests of a child is reviewed for an abuse of discretion. See Young v. Hector, 740 So.2d 1153, 1158-59 (Fla. 3d DCA 1999) (en banc). A trial court's denial of a motion for contempt is also reviewed for an abuse of discretion. See Dufour v. Damiani, 231 So.3d 486, 488 (Fla. 4th DCA 2017) ; see also Milton v. Milton, 113 So.3d 1040, 1040 (Fla. 1st DCA 2013) ("There is nothing that requires a trial court to hold a person in contempt; the court's determination in this regard is reviewed for abuse of discretion.") (emphasis in original).

III. ANALYSIS

Where, like here, the parents share parental responsibility but cannot reach agreement on a major decision affecting the welfare of their child, such as one concerning education, the dispute should be presented to the trial court for resolution. Dickson v. Dickson, 169 So.3d 287, 289 (Fla. 5th DCA 2015). The trial court must resolve the impasse by determining the best interest of the child. Id. at 290 ; Gerencser v. Mills, 4 So.3d 22, 23-24 (Fla. 5th DCA 2009) ; Sotnick v. Sotnick, 650 So.2d 157, 159-60 (Fla. 3d DCA 1995).

On appeal, the wife argues that the trial court erred by engaging in a prospective best interest analysis where the hearing occurred in October 2017 for an academic year starting in August 2018. The wife relies upon Eisele v. Eisele, 91 So.3d 873 (Fla. 2d DCA 2012), in support of her argument. In Eisele, a final judgment of dissolution was entered on January 18, 2011, when the parties' child was four years old. Id. at 874. On appeal, the former husband argued that the trial court erred in finding that the child could not be home schooled by either party because the child would not reach kindergarten age until approximately twenty months after the date of the final judgment. Id. The Second District found that "it was error for the trial court in this case to determine that it would be in the best interest of the child to not be home schooled by either of her parents twenty months from the date of the final order," and remanded for the trial court to hold a hearing to determine whether it was in the best interest of the child, who was now almost six, to not be home schooled. Id. at 875. We find that Eisele is factually distinguishable from the case at hand. Specifically, the trial court's determination of whether Westminster or Palmetto Middle School was in the children's best interest occurred only ten months out from the start of the subsequent school year, and importantly, only three weeks out from the November 1, 2017, deadline for applications for early admission to Westminster. Given that this ten-month time frame is half that of the twenty-month time frame at issue in Eisele and that the instant case entails an application process rather than a situation addressing home schooling that can be implemented without an application and enrollment process, we find Eisele inapposite.

Next, the wife argues that the trial court erred when it determined that there was sufficient competent evidence that the father had the financial resources to place the children in Westminster in August 2018. Specifically, the wife argues that, pursuant to Herman v. Herman, 170 So.3d 833, 833 (Fla. 3d DCA 2015), the trial court must be presented with financial information before it can make the requisite findings to support an obligation to pay for private school. We find the wife's argument on this point without merit. Herman and Musser v. Watkins, 752 So.2d 141, 142 (Fla. 2d DCA 2000), upon which Herman relies, stand for the proposition that a court cannot order a parent to contribute to private school expenses unless it finds, among other things, that the party has the ability to pay. Here, the trial court is not imposing a private school expense obligation; rather, the father is volunteering to pay the tuition and expenses for Westminster. Regardless, the father testified as to his ability to pay the private school expenses by obtaining a loan from a friend, stating that once his support obligations are eliminated, he will be able to pay for the school without a loan. This evidence was unrebutted, and it was within the province of the trial court to determine the father's credibility on this point. The trial court's finding that "the Father/Former Husband has made the necessary arrangements and has the financial wherewithal to satisfy this obligation" was based upon competent, substantial evidence, and we find no error in the trial court's finding.

The mother also asserts that the trial court's order interferes with her religious beliefs and orders her to enforce the religious beliefs of the husband. It is true that a trial court may not preclude a parent from practicing his or her religion or from influencing the religious training of a child inconsistent with that of the other parent. Steinman v. Steinman, 191 So.3d 954, 956 (Fla. 4th DCA 2016) ; see also Abbo v. Briskin, 660 So.2d 1157, 1161 (Fla. 4th DCA 1995) ("Section 61.13 commands parents to confer on all major decisions affecting the welfare of their child and to reach an agreement as to any required decision. When the matter involves the religious training and beliefs of the child, we do not agree that the court may make a decision in favor of a specific religion over the objection of the other parent."); Mendez v. Mendez, 527 So.2d 820, 820 (Fla. 3d DCA 1987) (affirming a trial court's custody determination when, in ruling, the trial court "conscientiously avoided any interference with the right of the non-custodial parent to practice her religion and avoided the imposition on her of an obligation to enforce the religious beliefs of the father").

The mother's testimony below, however, shows that her principal objection to Westminster was on an educational basis and that she was not completely opposed to a Christian-based school for the children. The mother testified on direct examination that she objected to Westminster because, "It is a Christian-based education system and I don't believe that's important for the children's education." On cross-examination, the wife reiterated, "I do not think it is necessary for them to attend Bible study every day as one of their classes." On further cross examination, when asked if she would "object to any church associated or religion based school," the mother responded, "Not necessarily." Further, when asked the question of "What we are talking about is whether they study the Bible?" the mother responded, "What we are really talking about is their education." Thus, the mother's testimony establishes that her objection to Westminster was not over its religious affiliation or any conflict with her religious beliefs but instead the children's overall education. Additionally, the statement in the Order that requires the mother to "cooperate with and fully support the children's applications to Westminster Christian School and their subsequent enrollment, if accepted," when read in context, is a direction to cooperate in the application and enrollment process and is in no way a directive that the mother enforce the father's religious beliefs over her own when the children are with her. We therefore find that the trial court did not abuse its discretion.

Finally, the mother argues that the trial court erred in denying her Motion for Contempt, in which she asserted that the husband violated the shared parental responsibility provision in the Final Judgment of Dissolution of Marriage when he took the parties' son to Westminster, without the mother's knowledge or consent, to have him tested to determine eligibility for entrance to the school. The mother fails to cite to any case law standing for the proposition that it is a violation of shared parental responsibility to take a child for academic testing. Moreover, the father did not withdraw P.L. from his school and admit him to another; he simply took P.L. for an admission assessment test. Cf. Sabatini v. Wigh, 98 So.3d 244, 244-245 (Fla. 1st DCA 2012) (affirming trial court's finding that mother was in contempt of shared parental responsibility provision in final judgment where two days prior to start of the school year mother unilaterally enrolled child in a school seventy miles from father's home). "Under Florida law, '[t]here is nothing that requires a trial court to hold a person in contempt' " and we therefore find that the trial court did not abuse its discretion in denying the mother's motion for contempt. Brooks v. Brooks, 164 So.3d 162, 163 (Fla. 2d DCA 2015) (emphasis in original) (quoting Milton, 113 So.3d at 1040 ).

Accordingly, for the foregoing reasons, we affirm the trial court's Order.

This opinion shall take effect immediately notwithstanding the filing of any post-opinion motions.

Affirmed.

      It was established below that the mother was moving from Palmetto Bay to South Miami and would no longer be residing in the Palmetto Middle School district for the 2018-2019 academic year.

      In reaching its conclusion, the Second District Court of Appeal in Eisele, 91 So.3d at 875, cited to Arthur v. Arthur, 54 So.3d 454 (Fla. 2010). In Arthur, the trial court authorized the wife to permanently relocate with the parties' child approximately twenty months after the final hearing. Id. at 455. The Florida Supreme Court held "that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence." Id. at 459. The Court reasoned that such a "prospective-based" analysis is unsound because section 61.13001(7), Florida Statutes (2006), which sets forth the various factors a trial court must consider in reaching a determination on a parent's request for permanent relocation, "could change within the extended time period given by the court before relocation." Id. In contrast to Arthur, this case does not concern the statutory factors at issue where one parent seeks to permanently relocate with a child, but rather, only where P.L. and M.L. should go to school in the next academic year.


author: PER CURIAM.

text:
    Dufirstson NEREE, Appellant, v. Juan Carlos DE LA FUENTE, et al., Appellees.
    No. 3D18-107
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Dufirstson Julio "D.J." Neree, in proper person.
    KYMP LLP, and Juan-Carlos "J.C." Planas, for appellees Guillermo Permuy and Alfredo Quintero.
    Before SALTER, LOGUE and SCALES, JJ.
   PER CURIAM.

Appellant, plaintiff below, Dufirstson Neree, appeals a January 11, 2018 trial court order captioned as an "Order Denying Plaintiff's Motion for Summary Judgment." As is clear from the record on appeal, including the transcript from the January 11th hearing resulting in the entry of the order, the trial court correctly determined that appellant's lawsuit (lower tribunal case no. 16-03245-CA) was barred by the doctrine of res judicata. Indeed, the issues alleged by appellant in case no. 16-03245-CA were resolved adverse to appellant by virtue of the final judgment entered in case no. 16-00013-CA27.

Affirmed.

      Notwithstanding the caption of the order suggesting it is non-final, the content of the order (i.e., closing the case, denying all pending motions, referencing the res judicata effect of lower tribunal case no. 16-00013-CA27) makes clear that the appealed order has ended all judicial labor in the case. Miami-Dade Water & Sewer Auth. v. Metro. Dade Cty., 469 So.2d 813, 814 (Fla. 3d DCA 1985). We therefore have jurisdiction.


author: SALTER, J.

text:
    Joseph MANZARO, Appellant, v. HCA, INC., et al., Appellees.
    Nos. 3D17-2267 3D17-1462 & 3D17-1461
    District Court of Appeal of Florida, Third District.
    Opinion filed July 18, 2018
    Guillermo J. Farinas (Palm Beach), for appellant.
    Lewis Brisbois Bisgaard & Smith and Jerome R. Silverberg and Jeffrey L. Kominsky (Fort Lauderdale); Foley & Mansfield and Kevin P. O'Connor and Mary Street ; Wicker Smith O'Hara McCoy & Ford and Jessica L. Gross, Coral Gables, for appellees.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Joseph Manzaro ("Mr. Manzaro"), as personal representative of the estate of Harmony Nicole Thornton ("Ms. Thornton"), appeals three orders dismissing with prejudice an amended medical malpractice and wrongful death complaint with prejudice for failure to comply with statutory pre-suit requirements. We affirm.

I. Facts; Proceedings in the Circuit Court

These three consolidated appeals arise from the same circuit court lawsuit and a single "Amended Complaint for Wrongful Death & Demand for Jury Trial" (the "Complaint") filed on behalf of Mr. Manzaro in May 2016. The Complaint identified 22 defendants in the caption and introduction, although specific acts and omissions were not alleged as to several of them. Ms. Thornton died at Mercy Hospital on April 23, 2013; the death certificate listed the manner of death as natural, and the causes of death as three preexisting medical conditions arising three months, six months, and six years before her death. An autopsy performed three weeks after Ms. Thornton's death listed the cause of death as "undetermined."

The consolidated cases here are: Case No. 3D17-1461, involving claims against appellees/defendants HCA, Inc., Plantation General Hospital, L.P., Mercy Hospital, HCA Long Term Health Services of Miami, Inc., Northwest Medical Center, Inc., and University Hospital, Ltd. (collectively, the "HCA Defendants"); Case No. 3D17-1462, involving claims against Alberto Manzor, M.D. ("Dr. Manzor"); and Case No. 3D17-2267, involving claims against Steven Cohn, M.D. ("Dr. Cohn"). The cases were separately briefed.

Although the death certificate and autopsy did not suggest medical malpractice or violent crime, the Complaint alleged that Ms. Thornton "mysteriously and suspiciously died" and that her death "was a result of her murder or manslaughter," "hospital homicide," and "attempted involuntary euthanasia."

A. Drs. Cohn and Manzor

Dr. Cohn and Dr. Manzor filed motions to dismiss the Complaint based on Mr. Manzaro's failure to comply with Florida's statutory requirements applicable to claims of medical malpractice (sections 766.201 - .212, Florida Statutes (2015) ), and the expiration of the applicable statute of limitation. Dr. Cohn and Dr. Manzor were not identified individually in any count within the Complaint, nor were there any allegations identifying any individual acts or omissions by those defendants.

Mr. Manzaro mailed Dr. Cohn a notice of intent to initiate litigation on April 13, 2015, but it contained no allegations as to any wrongful acts or omissions by Dr. Cohn. No corroborating expert affidavit was attached.

Mr. Manzaro's notice of intent mailed to Dr. Manzor was returned unclaimed; there is no indication of any subsequent attempt at, or successful, delivery of a presuit notice to Dr. Manzor.

These circumstances, coupled with the passage of the two-year statute of limitations applicable to the claims against these two physicians, culminated in orders dismissing the Complaint with prejudice as to each of them.

B. HCA Defendants

Mr. Manzaro also served a notice of intent on HCA, Inc. ("HCA"), for the HCA Defendants, on April 4, 2015. He contended that his obligation to submit a verified written medical expert opinion (required by section 766.203(2) ) was inapplicable because of HCA's failure to provide relevant medical records to him within ten days, as required by section 766.204(1), waiving the requirement of written medical corroboration (section 766.204(2) ). The sole attachment was the autopsy report stating that Ms. Thornton's cause of death was "undetermined."

The trial court conducted a two-hour hearing to afford Mr. Manzaro an opportunity to demonstrate that he conducted a good faith investigation and that he has a reasonable basis for the claims in the Complaint. The court concluded that Mr. Manzaro failed to fulfill these requirements:

The Certificate of Death asserts that the decedent died of natural causes. The autopsy report of Plaintiff's expert is inconclusive. There is no corroborating expert affidavit. The Miami-Dade State Attorney's Office has to date declined to proceed with charges against anyone related to this matter for homicide.

The trial court also found that there were "scant further details among the facts to explain the actual proximate cause of the wrongful death alleged," and that "It is not at all clear what these doctors and hospitals did or failed to do that constitutes a breach of the standard of care that resulted in wrongful death." Concluding again that the applicable two-year statute of limitations had already run, the court dismissed the Complaint with prejudice as to the HCA Defendants as well.

Mr. Manzaro appealed as to all three orders of dismissal with prejudice.

II. Analysis

As is the case with any complaint dismissed with prejudice, our review is de novo. We assume all of the factual allegations in Mr. Manzaro's Complaint to be true and construe all reasonable inferences from those allegations in his favor. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010).

In cases involving allegations of medical malpractice by health care providers, however, there are additional threshold, objective, statutory requirements within Chapter 766, Florida Statutes, which must be satisfied if the case is to proceed. See Williams v. Campagnulo, 588 So.2d 982, 983 (Fla. 1991) ; Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482, 484 (Fla. 2d DCA 1993).

The trial court properly concluded that there was no reasonable basis for Mr. Manzaro's claims of medical malpractice against these eight defendants, and that there was a failure to comply with the statutory pre-suit requirements for investigation, corroboration, and written notice. Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005). Finally, the trial court's conclusion that the Complaint lacked any cognizable allegations to establish a tolling of the statute of limitations further warranted the dismissal with prejudice.

The three orders of dismissal with prejudice are affirmed.

      The cases were scheduled for oral argument on a consolidated basis. The Court granted the appellant's emergency motion for continuance filed that morning, but in its order advised the parties that the cases would be rescheduled for oral argument "if the panel concludes that oral argument will aid the court in reaching its decision." After a review of the briefs and records in the consolidated cases, the panel has determined that oral argument will not be necessary.