author: HARRIS, J.

text:
    David PORTWOOD, Appellant/Cross-Appellee, v. Christine PORTWOOD, Appellee/Cross-Appellant.
    Case No. 5D17-2713
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Mark A. Skipper, of Law Office of Mark A. Skipper, P.A., Orlando, for Appellant/Cross-Appellee.
    Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Appellee/Cross-Appellant.
   HARRIS, J.

Christine Portwood ("Former Wife") filed a motion with the trial court seeking to enforce the alimony obligations contained in her final judgment of dissolution of marriage and seeking to hold David Portwood ("Former Husband") in contempt for failure to pay alimony. Both parties have appealed the trial court's order, which confirmed Former Husband's alimony obligation but found that he could not be held in contempt for non-payment under principles of res judicata. We agree with Former Wife in her cross-appeal that the trial court erred in concluding that res judicata barred consideration of her motion for contempt and reverse on that ground. In all other respects, we affirm.

In 2007, the trial court entered a final judgment dissolving the parties' marriage. That final judgment incorporated a marital settlement agreement in which the parties agreed that Former Husband would pay two forms of spousal support-non-modifiable monthly alimony and "additional alimony" in an amount equal to the monthly mortgage payment on the former marital residence.

In March 2015, Former Wife filed a motion, seeking to hold Former Husband in contempt for, among other things, failing to pay his monthly alimony obligation. The motion made no mention of Former Husband's additional alimony obligation related to the mortgage. The trial court granted Former Wife's motion and ordered Former Husband to pay the arrearage and to continue making his monthly payments in compliance with the marital settlement agreement. The parties subsequently executed, and the court approved, a joint stipulation that reduced Former Husband's monthly alimony payment. A paragraph in the joint stipulation provided that Former Husband's obligation to make the mortgage payments would remain in effect and not be altered by the other terms of the stipulation. Former Husband unilaterally crossed through this paragraph and initialed it; Former Wife did not.

Even prior to the joint stipulation, Former Husband stopped paying his additional alimony obligation, i.e., the monthly mortgage payment. In April 2017, Former Wife filed a motion for contempt and to compel Former Husband to execute documents that would allow a modification of the mortgage. A month later, she filed an amended motion, again seeking to hold Former Husband in contempt for failure to pay the additional alimony. The trial court entered two orders in response to Former Wife's motions. In its June 28, 2017 order, the court specifically found that the 2015 joint stipulation only modified Former Husband's traditional monthly alimony and that despite his attempt to strike through clarifying language in the 2015 joint stipulation, the mortgage component of Former Husband's alimony obligation remained unchanged. The court then denied the motion to compel the refinance of the mortgage, finding that the original agreement provided that refinancing would be solely at Former Husband's election.

Approximately three weeks later, the court entered the second order declining to to hold Former Husband in contempt for failure to pay the mortgage payments following the 2015 joint stipulation, finding that Former Husband mistakenly believed that he was no longer responsible for those payments. The court then determined that, under principles of res judicata, it could not hold Former Husband in contempt for his failure to pay the mortgage obligation prior to the 2015 joint stipulation. Even though Former Wife argued that she never raised the issue of Former Husband's failure to comply with the mortgage component prior to 2015, the court concluded that she could have raised the issue and therefore res judicata applied. This was error.

Initially, there is no merit to Former Husband's argument that the 2015 joint stipulation, which he unilaterally altered, somehow amounts to an express waiver by Former Wife of her right to receive the additional alimony payments. The trial court did not abuse its discretion in concluding in the first order that the parties only intended to modify Former Husband's traditional alimony obligation, and the decision of the trial court as it relates to the mortgage component of the alimony obligation in the first order is affirmed.

Similarly, the trial court did not abuse its discretion in finding that Former Husband reasonably, albeit mistakenly, believed that the mortgage obligation terminated upon the court's approval of the 2015 joint stipulation. However, the court erred in concluding that res judicata prevented it from considering whether Former Husband's refusal to pay the mortgage payments prior to the joint stipulation could be considered contumacious.

While the trial court was correct that the principle of res judicata applies to all matters that have been or could have been litigated, four identities must occur simultaneously: "(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made." Pearce v. Sandler, 219 So.3d 961, 966 (Fla. 3d DCA 2017) (quoting Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) ). If any of these are not met, res judicata does not bar the second action. Tyson, 890 So.2d at 1209. At a minimum, the first two of the four identities are not met in this case, barring the application of res judicata.

First, with respect to the identity of the thing sued for, this Court has looked to whether the facts and evidence necessary to prove one cause of action are distinct from those needed to prove another. Inter-Active Servs., Inc. v. Heathrow Master Ass'n, 809 So.2d 900, 902-03 (Fla. 5th DCA 2002). Here, Former Wife filed two distinct motions related to two distinct alimony obligations. In her first motion, she sought primarily to recover non-modifiable alimony payments. At no point in the first motion were Former Husband's additional alimony obligations ever mentioned. In the second motion, however, Former Wife sought an order requiring Former Husband to make payments on the outstanding mortgage and sanctions for his failure to do so. Thus, the first identity is not met.

The second identity is similarly absent. "Identity of the causes of action is established where the facts which are required to maintain both actions are identical." Gold v. Bankier, 840 So.2d 395, 397 (Fla. 4th DCA 2003) (quoting Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976) ). Further, although both actions have some overlapping facts, this does not bar the second action under res judicata. Tyson, 890 So.2d at 1210. Here, Former Wife relied on different facts and evidence to prove each motion. In her first motion, she only offered evidence with respect to the non-modifiable alimony obligations. Specifically, she outlined Former Husband's non-modifiable alimony obligations under the marital settlement agreement and made no mention of the mortgage obligation. On the other hand, in the second motion, Former Wife alleged facts to show Former Husband never paid the additional alimony obligations related to the mortgage and that he intentionally tried to prevent Former Wife from making payments on the mortgage herself. Thus, even though there is some overlap in these motions for contempt, both motions clearly required proof of different facts. Thus, the second identity is not met.

The trial court found that res judicata barred the second motion for contempt because the issue of contempt for failure to pay the mortgage could have been raised in the earlier motion and was not. The trial court cited Pearce for the proposition that the "doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised in the first case." 219 So.3d at 966. However, as Former Wife points out, a litigant raising a defense of res judicata must still assert that there has been both a judgment on the merits in a prior suit and that the four identities described above have been met. Id. While both claims in Pearce arose from identical factual circumstances, the motions in this case clearly do not. To the contrary, the motions here contained distinct factual allegations and sought contempt for different forms of alimony. Therefore, the conclusion that res judicata precluded the court from considering the motion for contempt regarding the stipulation mortgage payments was error. That holding is reversed and this case is remanded to the lower court to conduct an evidentiary hearing on Former Wife's motion for contempt.

REVERSED and REMANDED.

EVANDER and LAMBERT, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FIRSTSERVICE RESIDENTIAL FLORIDA, INC., Petitioner, v. Carmen RODRIGUEZ, Ventura at Stonebridge Commons Condominium Association, Inc. and Stonebridge Commons Community Association, Inc., Respondents.
    Case No. 5D18-1980
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 7, 2018 Rehearing Denied January 15, 2019
    Kathryn L. Ender and Justin M. Bleakley, of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
    Nicholas P. Panagakis and Lawrence Gonzalez, II, of Morgan & Morgan, P.A., Orlando, for Respondent, Carmen Rodriguez.
    No Appearance for other Respondents.
   HARRIS, J.

In this premises liability action, FirstService Residential Florida, Inc. ("FirstService"), seeks certiorari relief, requesting that this Court quash the trial court's order compelling production of its work product (i.e., photographs). Because FirstService failed to properly preserve its claim of error for appellate review, we must deny the petition.

Carmen Rodriguez filed a premises liability lawsuit against several defendants, including FirstService. The complaint alleged that Rodriguez slipped and fell on a transitory foreign substance while walking towards the elevator of her condominium, and that FirstService was the property management company that managed the condominium property at the time of the fall. Pre-trial, Rodriguez scheduled a deposition of FirstService's corporate representative, Jessica Gomez. Prior to the deposition, FirstService filed a privilege log, asserting a work product privilege as to, among other things, two photographs of the area near Rodriguez's condominium. During the deposition, Rodriguez asked Gomez questions pertaining to those photographs and FirstService objected, asserting work product privilege.

Following the deposition, Rodriguez filed a motion to compel FirstService to produce the photographs. At the hearing on her motion, Rodriguez argued that she did not have any photos taken on the day of the fall and had no way to recreate the scene depicted in FirstService's two photos. In response, FirstService argued only that Rodriguez had the substantial equivalent of the photographs requested, and as such, the exception to the work product privilege did not apply. The trial court granted Rodriguez's motion to compel and ordered the production of the two photographs.

In the instant petition, FirstService argues for the first time that certiorari relief is warranted because Rodriguez failed to meet her burden of presenting evidence establishing that an exception to the work product privilege exists in this case. FirstService asserts that the trial court's discovery order departs from the essential requirements of the law because, during the motion hearing, Rodriguez "relied on assertions of counsel and did not present evidence sufficient to overcome FirstService's work product objection." Specifically, the petition asserts that Rodriguez

made no evidentiary showing which could overcome FirstService's assertion of privilege. Plaintiff did not cite any deposition testimony, or affidavits in her motion or at the hearing below.... Despite her clear evidentiary burden, Plaintiff presented no evidence whatsoever at the hearing below, and failed to establish that she was entitled to the photographs pursuant to rule 1.280(b)(4). Consequently, the trial court departed from the essential requirements of law by ordering FirstService's privileged work product to be produced.

The work product privilege is set forth in Florida Rule of Civil Procedure 1.280. Specifically, rule 1.280(b)(4) provides:

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party ... only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

To support its position, FirstService cites CSX Transportation, Inc. v. Carpenter, 725 So.2d 434, 435 (Fla. 2d DCA 1999), which explained that rule 1.280(b) requires a showing, through evidence, that the party seeking discovery needs the materials in the preparation of the case and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means and that assertions of counsel do not fulfill this requirement. FirstService also cites to Florida East Coast Railway v. Jones, 847 So.2d 1118, 1119 (Fla. 1st DCA 2003) ; North Broward Hospital District v. Button, 592 So.2d 367, 368 (Fla. 4th DCA 1992) ; and Winn-Dixie Stores v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983), to support its argument that "bare assertions of counsel are clearly inadequate to show the 'need' and 'undue hardship' required for production of work product documents."

While FirstService's statement of the law is correct, the petition must be denied because FirstService failed to properly preserve this claim of error for appellate review. At no time below did FirstService argue that production of the photographs was not warranted because Rodriguez failed to submit "any deposition testimony or affidavits," but instead improperly relied solely upon the assertions of her counsel to prove her case. Florida courts agree that a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below. See, e.g., Robins v. Colombo, 253 So.3d 94, 97 (Fla. 3d DCA 2018) ; Holt for Thirteenth Judicial Cir., Hillsborough Cty. v. Keetley, 250 So.3d 206, 209 (Fla. 2d DCA 2018) ; US Bank Nat'l Ass'n for CSFB Heat 2006-7 v. Tranumn, 247 So.3d 567, 570-71 (Fla. 1st DCA 2018) ; Hernando HMA, LLC v. Erwin, 208 So.3d 848, 849 (Fla. 5th DCA 2017) First Call Ventures, LLC v. Nationwide Relocation Servs., Inc., 127 So.3d 691, 693 (Fla. 4th DCA 2013).

Here, because the record demonstrates that FirstService did not raise any challenge to the sufficiency of Rodriguez's evidence below, that argument was not preserved for appellate review.

PETITION DENIED.

EDWARDS and BERGER, JJ., concur.


author: Per Curiam.

text:
    Henry James LAGI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3010
    District Court of Appeal of Florida, First District.
    December 3, 2018 Rehearing Denied January 18, 2018
    Henry James Lagi, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Wolf, Kelsey, and M.K. Thomas, JJ., concur.


author: Jay, J.

text:
    Margo DETTELBACH, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D17-3634
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Marcy I. LaHart, Micanopy, for Appellant.
    Ross Marshman, Chief Appellate Attorney, Department of Business and Professional Regulation, Tallahassee, for Appellee.
   Jay, J.

Appellant alleges that the trial court erred in denying her petition for writ of mandamus to compel the Department of Business and Professional Regulation to produce a document that she claimed was improperly withheld in response to her request under the Public Records Act. Because the Department properly withheld a document that was exempt from disclosure until the conclusion of adversarial administrative proceedings, we affirm.

I.

In November 2013, over two years after Appellant filed a complaint against Dr. Ellen Fannon with the Department's Board of Veterinary Medicine, a Veterinary Medicine probable cause panel made a probable cause finding and directed the Department to file a formal complaint against Fannon. The Department served the complaint on Fannon the following month, but did not forward it to the Division of Administrative Hearings. In April of 2014, the probable cause panel met again and found probable cause to initiate disciplinary proceedings against Fannon.

On October 26, 2015, the Department's counsel, Elizabeth Henderson, informed Appellant's counsel that the matter would be presented to the probable cause panel for reconsideration on October 28, 2015. That same day, Appellant's counsel responded by sending a public records request via email seeking "to examine any documents that have been provided to the probable cause panel regarding this matter since the last meeting."

The next day, the Department responded to the request with the following qualifier: "Documents considered confidential under the guidelines of Section 286.011(8), F.S. have not been included as that information is considered attorney-client materials." The Department's response also stated: "Please be advised that DBPR does not monitor requests that have been closed. If a requestor desires to seek additional information, we recommend the creation of a new request." (Emphasis in original).

Appellant's counsel sought further clarification by asking: "Ms. Henderson-based upon the response to my public records request, no documents regarding the complaint against Dr. Fannon have been provide[d] to the probable cause panel, is that correct? Not even an agenda?" Henderson responded:

Your request was for documents that have been provided to the panel since the last time the panel considered the case. That was in April of 2014. Other than the communication between Mr. Bayo [Fannon's attorney] and Ms. Senn [Henderson's assistant], the only other thing that was added to the file was your public records request of October 27, 2014, for any documents that had been added to the file since you had made your previous public records request.

Henderson also stated that if Appellant's counsel wanted the entire 1200-page file again to "let us know, and you will be provided with an estimate for the cost of producing that to you." Appellant's counsel responded that she did not want the entire file, only new materials.

On October 28, 2015, the meeting of the probable cause panel was conducted telephonically. During the meeting, one of the panel members mentioned Henderson's recommendation that the case be closed due to insufficient evidence. Henderson responded:

In preparation for considering referring this case for trial, interviewing the expert, going more carefully through the materials, it looked like we were-we felt fairly solid perhaps on the medical records the more we picked apart at that and interviewed our expert. The Department's in a position now where we do not feel like this case would be something, frankly, that would be a case we would win at the Division. And our recommendation to you at this point is to close the case, because we just do not have enough evidence to overcome our burden at the Division.

After further discussion, the panel members voted to dismiss the case.

Shortly after the meeting, Appellant's counsel emailed Henderson: "I asked repeatedly for copies of what had been provided to the pc panel. Why was I not given a copy of your recommendation that the case be dismissed?" Appellant received the following response:

Please be advised that certain discussions and correspondence between attorney and client-in this instance the attorney is Ms. Henderson and the client is the Board of Veterinary Medicine-may be excluded from public review under the guidelines of Section 286.011(8), F.S. It is the belief of the Department that this information falls within the protections of this Section.

On October 29, 2015, Henderson entered an order closing the case without further prosecution.

On June 25, 2017, Appellant filed in Leon County circuit court a petition for writ of mandamus seeking the Department's production of public records improperly withheld, asserting that section 286.011(8) did not exempt production of the records. Appellant also sought an award of attorney's fees and costs. The trial court issued an order directing the Department to show cause why it should not grant the petition.

On June 30, 2017, the Department provided Appellant's counsel with two memoranda authored by Henderson, the first dated February 26, 2014, and the second dated October 2, 2015. The second memorandum stated in pertinent part: "Department recommends reconsideration of the case in light of the fact that, while probable cause was originally properly found, in preparation for potential litigation, it has become apparent that the evidence is not sufficient to take the case to trial." (Emphasis in original).

Three days later, the Department responded to the show cause order, conceding that section 286.011(8) was not applicable and asserting for the first time that the applicable exemption was provided by section 119.071(1)(d)1., Florida Statutes, which temporarily exempted attorney work product until the conclusion of the adversarial administrative proceeding. The Department argued that Appellant was required to renew the public records request after the disciplinary case was closed on October 29, 2015. The Department further argued that Appellant did not make a timely request for the documents until she filed the mandamus petition, which was moot since the Department provided the requested documents to Appellant on June 30, 2017.

Appellant filed a reply, arguing that the hearing before the probable cause panel on October 28, 2015, was not an adversarial administrative proceeding and that Henderson's memorandum was not prepared for imminent adversarial administrative proceedings. Subsequently, the trial court held a hearing on the petition, which the parties concede was not transcribed.

The trial court entered a final order denying Appellant's petition for writ of mandamus. The court agreed with the Department that the Henderson memorandum was work product and exempt from disclosure until the conclusion of the administrative adversarial proceeding, i.e., the entry of the order closing the disciplinary case against Fannon on October 29, 2015, after which Appellant was required to renew her request for the document. Accordingly, the court concluded that the Department did not unlawfully withhold the document and that Appellant was not entitled to attorney's fees and costs. This appeal followed.

II.

"In Florida, access to public records is constitutionally guaranteed and enforced through the Public Records Act." Lake Shore Hosp. Auth. v. Lilker , 168 So.3d 332, 333 (Fla. 1st DCA 2015). The Public Records Act is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited to their designated purpose. Lightbourne v. McCollum , 969 So.2d 326, 332-33 (Fla. 2007) ; Rameses, Inc. v. Demings , 29 So.3d 418, 421 (Fla. 5th DCA 2010). The state has the burden of showing that requested documents fall within the statutory requirements for exemption from disclosure under the Act. Lightbourne , 969 So.2d at 333 ; Barfield v. Sch. Bd. of Manatee Cty. , 135 So.3d 560, 562 (Fla. 2d DCA 2014). Where purely legal issues are involved as to whether a document is a public record and subject to disclosure, the de novo standard of review applies on appeal. Rhea v. Dist. Bd. of Trs. of Santa Fe Coll. , 109 So.3d 851, 855 (Fla. 1st DCA 2013).

A.

Appellant claims that the Department improperly withheld the Henderson memorandum in response to her request under the Public Records Act. Although the Department initially asserted that the document was an attorney-client communication exempt from disclosure under section 286.011(8), Florida Statutes (2015), it subsequently conceded that section 286.011(8) was not applicable. Instead, it asserted that the Henderson memorandum was properly withheld under section 119.071(1)(d)1., Florida Statutes (2015), which provides in pertinent part:

A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings.

The Department claimed that Appellant was not entitled to the document until the conclusion of the adversarial administrative proceeding on October 29, 2015-when the case was closed without further prosecution-and that Appellant did not make a "ripe" request for the document until she filed the mandamus petition, which was rendered moot when the Department provided the requested document to Appellant on June 30, 2017. Although the Department's production of the document mooted Appellant's request for production, the trial court still had to determine whether the Department's withholding of the document until suit was filed was unlawful, entitling Appellant to an award of attorney's fees and costs. Schweickert v. Citrus Cty. Fla. Bd. , 193 So.3d 1075, 1079 (Fla. 5th DCA 2016) ; Mazer v. Orange Cty. , 811 So.2d 857, 859 (Fla. 5th DCA 2002).

Appellant claims that the Department could not withhold the Henderson memorandum under section 119.071(1)(d)1. because the memorandum recommended the dismissal of the case against Dr. Fannon at a meeting of the probable cause panel, which was not an adversarial administrative proceeding. The probable cause panel's decision whether to initiate a disciplinary action under section 455.225, Florida Statutes, is not subject to the requirements of section 120.57, Florida Statutes -which governs adversarial administrative proceedings-because a probable cause determination may be made without the licensee's presence. Dep't of Prof'l Regulation, Div. of Real Estate v. Toledo Realty, Inc. , 549 So.2d 715, 719 (Fla. 1st DCA 1989). However, section 120.57 does apply to disciplinary proceedings instituted under section 455.225 once the probable cause panel makes a determination of probable cause and directs the Department to file a complaint or issue a letter of guidance in lieu of a complaint. See Brown v. Dep't of Prof'l Regulation, Bd. of Psychological Exam'rs , 602 So.2d 1337, 1339-40 (Fla. 1st DCA 1992).

Thus, adversarial administrative proceedings were instituted once the probable cause panel found probable cause and directed the Department to file a formal complaint against Fannon. Henderson's subsequent memorandum to the probable cause panel-which contained Henderson's opinion regarding the strength of the Department's evidence against Fannon-was prepared exclusively for adversarial administrative proceedings relating to the discipline of Fannon. To the extent Henderson recommended that the case against Fannon be dismissed, this did not negate the adversarial nature of the administrative proceedings because the probable cause panel was authorized under section 455.225(2) to continue the prosecution regardless of Henderson's recommendation.

B.

The section 119.071(1)(d)1. exemption "extends to those records that contain [an] attorney's mental impressions, litigation strategy, or legal theory and are prepared exclusively for litigation or in anticipation of imminent litigation." Lightbourne , 969 So.2d at 332. Although it does not use the term "work product," the exemption is analogous to the work product privilege, which "protects documents and papers of an attorney ... prepared in anticipation of litigation." Marshalls of M.A., Inc. v. Witter , 186 So.3d 570, 573 (Fla. 3d DCA 2016). It is very similar to opinion work product which "consists primarily of the attorney's mental impressions, conclusions, opinions, and theories ...." State Farm Mut. Auto. Ins. Co. v. Knapp , 234 So.3d 843, 849 (Fla. 5th DCA 2018) (citation omitted). "[B]ecause proper representation demands that counsel be able to assemble information and plan her strategy without undue interference, opinion work product is generally afforded absolute immunity." Acevedo v. Doctors Hosp., Inc. , 68 So.3d 949, 953 (Fla. 3d DCA 2011) ; see also Andrews v. State , 243 So.3d 899, 902 (Fla. 2018).

Here, it was important that Henderson's memorandum remain exempt from disclosure during the pendency of the adversarial administrative proceedings because disclosure of Henderson's opinion regarding the strength of the Department's case could have prejudiced any effort by the probable cause panel to continue prosecution of the case-if it had chosen to do so. See, e.g., Andrews, 243 So.3d at 901-02 ("Requiring a defendant to reveal ... the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why th[e] witness may be of value to the defense, is 'contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved.' ") (citation omitted); Butler v. Harter , 152 So.3d 705, 712 (Fla. 1st DCA 2014) ("[T]he decision-making strategy and opinions behind petitioner's proposal for settlement includes 'opinion' work product, which is never discoverable.").

C.

Even if the exemption of section 119.071(1)(d)1. was applicable to Henderson's memorandum, Appellant asserts that the Department violated the Public Records Act by failing to reveal that the document existed and by failing to provide it to Appellant in a redacted form. In doing so, she cites section 119.07(1), Florida Statutes (2015), which provides in pertinent part:

(d) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.
(e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute.

Contrary to Appellant's assertion, there is nothing in the statute that expressly requires the Department to identify each document that it asserts is exempt under the Public Records Act. See, e.g., Lopez v. State , 696 So.2d 725, 727 (Fla. 1997) (rejecting defendant's claim that the state attorney failed to adequately identify any statutory exemptions under the Public Records Act where "the state attorney claimed that the withheld documents were work product and not public records") (emphasis added). This court has cautioned that although the Public Records Act is to be construed liberally in favor of the state's policy of open government, "this general principle of statutory construction does not give the courts free rein to engraft their policy judgments into the Act, nor does it authorize the courts to expand the requirements of the Act beyond its plain language." Jones v. Miami Herald Media Co. , 198 So.3d 1143, 1145 (Fla. 1st DCA 2016). The merit of imposing a duty on the Department to identify each document in a record that it asserts to be exempt under the Act-similar to the generation of a privilege log in response to a civil discovery request-is a matter properly addressed to the legislature rather than this court. See, e.g. , Jones , 198 So.3d at 1146-47 ("[A]s DOC correctly argues, the plain language of this statute does not require the agency to state the basis of the exemption applicable to 'each redaction.' Instead, the statute simply requires the agency to 'state the basis of the exemption that [the agency] contends is applicable to the record' and to provide a statutory citation for the exemption.").

To the extent Appellant claims that the Department should have provided the Henderson memorandum in redacted form, there is nothing in the record that shows that Appellant made this argument below. Appellant's position was that the Department violated the Public Records Acts by withholding the entire memorandum, not just portions of it. The Department's response was that the entire memorandum was exempt. Thus, the possibility that only a portion of the memorandum was exempt was not before the trial court and cannot be raised for the first time on appeal. See Aills v. Boemi , 29 So.3d 1105, 1109 (Fla. 2010) (holding that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal); Sunset Harbour Condo. Ass'n v. Robbins , 914 So.2d 925, 928 (Fla. 2005) (holding that an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved).

III.

Because the Department did not improperly withhold the Henderson memorandum under section 119.071(1)(d)1., Appellant was not entitled to attorney's fees and costs. See § 119.071(1)(d)2., Fla. Stat. (2015) ("If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the court."); § 119.12. Fla. Stat. (2015) ("If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees."). Accordingly, we affirm the trial court's order in all respects.

AFFIRMED .

WOLF and WINSOR , JJ., concur.

      For comparison, Florida Rule of Civil Procedure 1.280(b)(6) provides: "When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (Emphasis added). The highlighted language is not included in the Public Records Act.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Denise Lorraine HANANIA, Appellee.
    No. 1D17-2237
    District Court of Appeal of Florida, First District.
    December 10, 2018 Rehearing Denied January 18, 2019
    Rhonda B. Boggess of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    Shea T. Moxon of Brannock & Humphries, Tampa; Michael P. Moran of Morgan & Morgan, Jacksonville, for Appellee.
   Jay, J.

In this appeal from a final judgment awarding uninsured motorist benefits, we affirm in all respects and write only to address State Farm Mutual Automobile Insurance Company's claim that the trial court erred in denying its motion for directed verdict because Denise Hanania ("Plaintiff") improperly stacked inferences to prove that a phantom motorist's negligence caused the Plaintiff's injuries.

I.

In September of 2008, the Plaintiff was a passenger in a Honda minivan, which was crossing the Buckman Bridge in Jacksonville. The Buckman Bridge traverses the St. Johns River and carries four lanes of Interstate 295 traffic in each direction. The Plaintiff-and her sister-in-law-were traveling behind two other vehicles in the second of the four travel lanes.

About a mile onto the bridge, all three vehicles came to a sudden stop because a twelve-foot ladder was lying in the middle of their travel lane. Within seconds of the sudden stop, the minivan was struck from behind by a Coca-Cola service van, causing injuries to the Plaintiff.

Before the collision, two witnesses observed a pickup truck in the right emergency lane. According to the Plaintiff, there was a man standing outside the truck who was "focused on the ladder in the road like he was trying to retrieve it." The driver of the pickup truck was never identified.

The Plaintiff brought a negligence claim against Coca-Cola and its driver and an uninsured motorist claim against State Farm. After the Plaintiff settled with Coca-Cola and its driver, a jury trial was held on the Plaintiff's uninsured motorist claim against State Farm.

Following the presentation of the Plaintiff's case, State Farm moved for a directed verdict arguing that (1) there was no evidence that the ladder came from a vehicle other than circumstantial evidence that did not exclude other possible explanations; and (2) even if the ladder came from a vehicle, there was no evidence of a negligent act by the vehicle's owner or operator that caused the ladder to end up on the roadway. The trial court questioned whether there were other plausible-non-vehicular-explanations for the ladder in the road given that the Buckman Bridge was not a pedestrian bridge, that there were no overpasses over the bridge, and that the ladder was located at least a mile along the bridge. When State Farm's counsel replied that a pedestrian could have carried the ladder to that point on the bridge, the trial court rejected that explanation as not being credible and denied State Farm's motion for a directed verdict.

Later, State Farm renewed its motion for a directed verdict. When the court again asked whether there were any plausible theories for how the ladder got on the bridge other than having come from a vehicle, State Farm's counsel did not offer any additional theories, but argued that the Plaintiff's case rested on three inferences-(1) that the ladder came from a vehicle; (2) that the owner or operator of that vehicle was negligent; and (3) that the negligence caused the ladder to end up on the roadway. State Farm contended that the Plaintiff had to establish the first two inferences to the exclusion of all other reasonable inferences.

Counsel further argued that the ladder could have fallen from a vehicle without any negligence of the owner or operator because the ladder could have been secured by faulty or defective equipment. The trial court found this explanation improbable and denied State Farm's motion.

At the conclusion of the trial, the jury returned a verdict finding the phantom motorist sixty percent at fault and the Coca-Cola driver forty percent at fault. After denying State Farm's renewed motion for directed verdict, the trial court entered a final judgment for the Plaintiff. This appeal followed.

II.

The trial court's denial of a motion for directed verdict is reviewed de novo. Broward Exec. Builders, Inc. v. Zota , 192 So.3d 534, 536 (Fla. 4th DCA 2016). The "appellate court must view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant." Weinstein Design Grp., Inc. v. Fielder , 884 So.2d 990, 997 (Fla. 4th DCA 2004).

To prove a prima facie case of negligence ..., circumstantial evidence can be used "as effectively and as conclusively" as direct positive evidence, but if a party "depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences."

Davie Plaza, LLC v. Iordanoglu , 232 So.3d 441, 445 (Fla. 4th DCA 2017) (quoting Nielsen v. City of Sarasota , 117 So.2d 731, 733 (Fla. 1960) ). "The purpose of this rule against stacking inferences is 'to protect litigants from verdicts based on conjecture and speculation.' " Broward Exec. Builders , 192 So.3d at 537 (quoting Stanley v. Marceaux , 991 So.2d 938, 940 (Fla. 4th DCA 2008) ). "In a negligence action, if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the 'exclusion of all other reasonable inferences,' but then stacks further inferences upon it to establish causation, a directed verdict in favor of the defendant is warranted." Id.

Here, State Farm claims that the trial court erred in denying its motion for directed verdict on the Plaintiff's uninsured motorist claim because the Plaintiff improperly stacked inferences-based on circumstantial evidence-to prove that a phantom motorist's negligence caused the Plaintiff's injuries. Specifically, State Farm claims that the Plaintiff stacked the following three inferences: (1) an unidentified phantom motor vehicle was carrying the ladder; (2) the owner or driver failed to make reasonable efforts to secure the ladder; and (3) the owner or driver's failure to properly secure the ladder caused it to fall on the roadway.

However, we conclude that there are only two necessary inferences in this case: (1) the ladder fell on the roadway from a phantom motor vehicle; and (2) the ladder fell from the phantom vehicle because the owner or operator failed to properly secure it.

The trial court correctly found that the first inference was established to the exclusion of all other reasonable inferences, based on Denoia v. Hartford Fire Insurance Co. , 843 So.2d 285 (Fla. 3d DCA 2003). In Denoia , the Third District held that the plaintiff could seek uninsured motorist benefits for injuries he sustained when his vehicle was struck by a twelve to fifteen-foot steel beam lying in the highway where the only plausible explanation for its being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway. Id. at 286-87.

The inference in this case was even stronger than in Denoia given the location of the twelve-foot ladder in the middle of a traffic lane a full mile onto a busy interstate bridge that was inaccessible-by all accounts-to pedestrians. The inference was further bolstered by testimony (1) that a pickup truck had pulled over in the emergency lane; and (2) that the driver of the truck was focused on the ladder as if he was trying to retrieve it, but got in his truck and drove off shortly after the collision occurred.

We also reject State Farm's argument that a directed verdict was mandated by Allstate Insurance Co. v. Bandiera , 512 So.2d 1082 (Fla. 4th DCA 1987). In Bandiera , the Fourth District held that a passenger could not recover uninsured motorist benefits for injuries he sustained when a concrete cinder block was propelled through the automobile's windshield, notwithstanding his claim that there was a permissible inference that the block originated from other vehicles traveling in front of him, where it was just as plausible that the block was thrown at the car by pedestrians standing on the side of the road. Id. at 1083.

As previously explained, it is simply not plausible that the ladder in this case was thrown onto the bridge by a pedestrian. Because the inference that the ladder came from a phantom vehicle was inescapable, it would constitute an acceptable basis for the second inference that the owner or operator of that vehicle was negligent in failing to properly secure it. The Fourth District recognized as much in Bandiera when it observed: "If the inference that the block came from another phantom vehicle is inescapable then it may constitute an acceptable premise for the second inference that the driver of that phantom vehicle was negligent." Id.

Once an initial inference has been established to the exclusion of all other reasonable inferences, any further inference based upon the initial inference is permissible if it is reasonable, i.e., if it accords with logic and reason or human experience. Tillery v. Standard Sand & Silica Co. , 226 So.2d 842, 846-48 (Fla. 2d DCA 1969) (citing Voelker v. Combined Ins. Co. of Am. , 73 So.2d 403, 406 (Fla. 1954) ). "A jury question is presented when the evidence is susceptible to inference that would allow recovery even though there are opposing inferences that are equally reasonable." Castillo v. E.I. Du Pont De Nemours & Co. , 854 So.2d 1264, 1279 (Fla. 2003) ; see also Streeter v. Bondurant , 563 So.2d 729, 732 (Fla. 1st DCA 1990) ("It appears ... that the circumstances established by appellant's evidence are susceptible of a reasonable inference supporting the claim of negligence, and the circumstances are also susceptible of reasonable inferences which refute the claim. In this situation, a jury issue is presented ....").

At a minimum, the inference that the ladder fell from the phantom motor vehicle due to the owner or operator's negligence-as opposed to some other cause such as a product defect-was reasonable. Florida courts have recognized that a truck operator has the responsibility to secure the load the truck is carrying. Denoia , 843 So.2d at 286. Furthermore, the Florida statutes require loads to be secured by multiple methods to prevent them from dropping, falling, or otherwise escaping from the vehicle. See §§ 316.520 & 316.525, Fla. Stat. (2008).

Thus, the trial court properly denied State Farm's motion for directed verdict and submitted the case to the jury.

AFFIRMED .

Wolf and Winokur, JJ., concur.


author: PER CURIAM.

text:
    James WHITE and Theresa White, Appellants, v. RING POWER CORP., Appellee.
    No. 3D16-2869
    District Court of Appeal of Florida, Third District.
    Opinion filed December 10, 2018
    William C. Robinson, Bradenton, for appellants.
    Akerman, LLP, Katherine E. Giddings (Tallahassee), Michael J. Larson (Tallahassee) and Gerald B. Cope, Jr., Miami, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

INTRODUCTION

James White, an employee of Miami-Dade County Transit Authority, was injured while using a crane that Miami-Dade Transit rented from Ring Power Corporation. White was attempting to use the crane to lift a derailed Metro Mover train car and place it back on the tracks. When the wire rope on the crane snapped, the 400-pound "headache ball" (which was attached to the wire rope) fell on White's leg. White sued Ring Power and others for negligence, and the case proceeded to trial against Ring Power only.

The jury returned a verdict in favor of Ring Power, and White appeals, contending: (1) the trial court abused its discretion in excluding certain expert witness testimony offered to support his claim that data from the crane's load moment indicator (LMI) showed prior overloads to the crane, which weakened the integrity of the wire rope, causing it to snap on the day of the accident; (2) the trial court erred in determining (and instructing the jury) that Ring Power did not have a duty to download the crane's LMI data before renting it to Miami-Dade Transit; and (3) the trial court erred in admitting certain defense expert testimony, which White contends constituted new opinions that both surprised and prejudiced White. Each of these errors, White argues, requires a new trial. For the reasons that follow, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

a. The Accident

At the time of the accident, James White was chief shop supervisor at the Lehman train yard, where Metro Mover trains are brought for servicing and maintenance. Miami-Dade Transit rented the subject crane from Ring Power on June 24, 2011. On July 14 (three days before the accident), Miami-Dade Transit employees were using the crane and noticed the wire rope spooled on the drum was cross-braided instead of being "neatly wrapped around the drum" as it should have been. The employees filed reports and notified supervisors of the defective equipment, but the crane was not taken out of service.

On the day of the accident (and three weeks after Miami Dade Transit rented the crane), one of the train cars derailed while in the Lehman train yard. White was called to help re-rail the train. Instead of using a pneumatic jack, workers used the crane to try and lift the train and set it back onto the track. The train car weighed 75,000 pounds. The back portion of the train-the portion the workers were trying to lift-weighed about 36,000 pounds. The lifting capacity of the crane depends on whether it is configured to use "single-part line," or "multiple parts line." Each added line increases the crane's lifting ability.

Although the crane was capable of being configured to a "four-part line," which would enable it to lift 42,000 pounds, White configured the crane to a single-part line, capable of lifting up to 11,640 pounds.

Workers attempted on five occasions to use the crane to lift and re-rail the train. But on each attempt, the crane shut down. On the fifth and final attempt, the wire rope snapped, and the 400-pound headache ball landed on White's leg, causing serious injury and ultimately requiring amputation of White's leg above the knee.

b. The Lawsuit

In September 2011, White filed suit against the crane manufacturer, the manufacturer's subsidiary, the wire rope manufacturer, and the crane lessor (Ring Power). By the time of trial, White had settled with all defendants except Ring Power, on a remaining claim for negligence. White alleged that Ring was negligent in failing to properly inspect and replace the wire rope on the crane before renting it to Miami-Dade Transit, and that previous overloads to the crane diminished the wire rope's integrity, causing it to snap. Ring Power contended that the wire rope snapped due to the workers' failure to properly inspect the wire rope, take the crane out of service when they discovered cross-braiding of the wire rope, and heed the system's warnings and shutdowns during the attempted lift.

c. Pretrial Motions

White retained three experts to opine on the cause of the wire rope snapping: Tom Barth (certified marine crane inspector for the federal government); Lew Barbe (engineer with crane experience) ; and William Mankins (metallurgist). After the witnesses were deposed, Ring Power filed a motion to strike the experts' testimony pursuant to section 90.702, Florida Statutes (2015) (the Daubert standard). Following a hearing, the trial court excluded a portion of the three expert witnesses' proposed testimony, precluding these three experts from interpreting and offering opinions about the data collected and recorded by the crane's load moment indicator.

The trial court found that none of the three experts was qualified to interpret the LMI data and to offer opinions whether the crane was actually overloaded at some time prior to the crane being rented to Miami-Dade Transit. The trial court's exclusion of this testimony was based in part on the deposition testimony of White's own experts that they each lacked knowledge of and familiarity with LMI data and LMI systems.

Prior to trial, Ring Power filed a motion for partial summary judgment on "any and all claims asserted by [White] regarding Ring Power's alleged duty to download LMI data from the PAT System on the crane it rented to Miami Dade ... prior to renting the crane to MDT." Following a hearing, the trial court granted Ring Power's motion for partial summary judgment, finding that Ring Power had no legal duty to download and review the LMI data before it rented the crane to Miami-Dade Transit.

THE TRIAL

a. White's Case-in-Chief

Trial began in September 2016. White's witnesses testified in pertinent part:

Harvey Ford, the track equipment operator, was operating the crane when the wire snapped. He tried several times to lift the train, moving the crane closer and at different angles, but each time alarms sounded and the crane shut down. The "scale" across the top of the crane's interior showed the crane was "maxing out." When Ford informed White, White attempted to assist him in setting up the crane. Ford tried lifting the train two more times, but each time the crane "maxed out." On the last attempt, the wire cable snapped, causing the headache ball to fall, injuring White.

On cross-examination, Ford conceded that, at the time he was operating the crane, he did not know the weight of the train and he did not use the load chart to decide the best way to lift the train. Most significantly, Ford used a single-part line to lift the train. He did not know how much a single-part line could lift, and White did not suggest that Ford reconfigure the crane from a single-part line.

White also testified that he did not know how much weight they were attempting to lift on the day of the accident nor did he know "the maximum load capacity" of the crane configured with a single-part line.

Two expert witnesses testified for White: Tom Barth (a certified marine crane inspector) and Dr. Kenneth Blundell (an engineer). Barth inspected the crane and wire rope following the accident, and testified generally to the OSHA inspection requirements for cranes such as maintenance of the crane's wire cables. He also testified regarding his review of the pre-accident inspections performed on the crane in question. Barth opined that the inspectors who conducted the annual inspection of the subject crane in 2011 "did not do a very thorough job." He further opined that the wire rope broke because "[i]t wasn't well lubricated and it was abused." When Barth inspected the rope, he found it dry. Barth testified that a wire rope should be lubricated once to twice a year depending on environmental conditions (e.g., weather) but that there are no specific standards requiring a rope be lubricated with a specific frequency.

Blundell testified generally about lubrication and reporting requirements for the wire rope. He opined that (1) Ring Power failed to properly inspect, maintain and lubricate the wire rope on the crane; (2) the failure to do so reduced its breaking strength; and (3) because the accident occurred only twenty-three days after Miami-Dade Transit took possession of the crane from Ring Power, Miami-Dade Transit was entitled to rely on Ring Power to properly inspect, maintain, and lubricate the wire rope prior to delivery. Blundell relied, for his opinion that the wire rope lacked lubrication, on the documentation provided to him (i.e. reports), not on a visual examination of the wire rope in question.

Eric Fidler was the product safety director for the crane manufacturer. White read excerpts of Fidler's deposition to the jury in lieu of live testimony. Fidler interpreted the crane's LMI event data recorder and testified about overloads to the crane on the day of the accident. He explained that overloads happen but they are the result of misuse of the crane. Fidler also testified about overloads occurring between August and October 2010, before Miami-Dade Transit rented the crane from Ring Power. Fidler explained that the LMI records overloads based on how the operator programmed the crane. For instance, an operator might have input that he was using a one-part line to lift a load of over 11,600 pounds but then properly reeved the crane with multiple-parts line in accordance with the weight of the load. Under this scenario, Fidler explained, the LMI would record an overload even though the crane was not physically overloaded. He described these "as overloads based on the configuration" and testified that, without knowing whether "this programming was accurately input," he could not know "whether the crane [ ] was actually overloaded" at the times indicated by the LMI data.

b. Ring Power's Case-in-Chief

Ring Power then presented its case, which included in pertinent part:

Pedro Delgado, a crane mechanic with Ring Power, testified that on January 17, 2011 (about five months before the crane was rented to Miami-Dade Transit) he conducted a "thorough inspection" of the crane and spent a couple of days (a total of 14 to 15 hours) repairing and servicing the crane (e.g., electrical repairs, lubrication of the crane and wire rope). Three days later (January 20), Delgado conducted an annual inspection of the crane as required by OSHA, and again checked the lubrication.

Delgado explained that a wire rope is taken out of service if there are more than three broken wire "strings" on the cable. Delgado examined the wire rope after the accident and found it was still lubricated. He also explained that, based on the number of hours used, the crane was relatively new. He did not check the crane's historical LMI data.

Michael Jarriel, a former Ring Power employee, testified generally about the crane's LMI system and the condition of the subject crane after the accident. Jarriel testified that the maximum capacity for a single-part line on the subject crane was 11,600 pounds. After the accident, the wire rope was still lubricated and some of the grease had "ooze[d]" out of the rope during the overload. According to Jarriel, the crane had only 682.6 hours of use, and the life span of a crane is approximately 25,000 hours.

Jarriel further explained that the LMI system shuts down the crane when an operator attempts to use it in an unsafe way. He noted, however, that the LMI relies on the crane operator to input the correct data. Jarriel testified that, depending on the angle of the crane's boom, the LMI can record a false overload. He tested the subject crane and another crane (the identical model and LMI system) by lifting the boom above 75 degrees. In each test, the LMI reported a false overload.

Allen Palmer, an engineer and accident investigator, testified as an expert for Ring Power regarding his examination of the crane after the accident. Palmer concluded that the primary cause of the accident "was that the crane was not properly reeved to be able to lift [the] intended load"; and "[i]t didn't have enough parts of wire rope in it for the intended lift." To be able to lift 38,000 pounds (the approximate weight of the load at the time of the accident), the crane should have been reeved with a five-part line, not a single-part line. He opined that "[t]he load they were attempting to pick up was well over three times the capacity of the crane in the way it was configured at the time of the accident." This, according to Palmer, was the "primary cause of the accident."

Palmer also opined that cross-braiding of the wire rope on the drum and "improper techniques" employed to lift the train were contributing causes of the accident. He testified that: the crane should not have been used that day and should have already been taken out of service until spooled correctly and inspected for damage from the cross-braiding; Miami-Dade Transit employees were aware of the cross-braiding three days before the accident, and this should have been obvious to the crane operator on the day of the accident; and on the day of the accident, Miami-Dade Transit employees failed to heed the LMI warnings and shut down the crane. Palmer provided these opinions to Miami-Dade Transit as part of his post-accident investigation.

Palmer acknowledged that he did not examine the historical LMI data, nor did he examine the strength of the wire rope. He explained, however, that the LMI is used to prevent tipping; it is not necessarily used in connection with the wire rope.

Eric Fidler next testified for Ring Power. Fidler testified generally to the basic components of a crane and LMI. He explained that, when the boom angle is greater than 75 degrees, the LMI will erroneously read this as an overload or a "false overload." Fidler elaborated, explaining that while the LMI data is reliable, it must be interpreted based in part on the information programmed into it by the crane operator. He explained that a recorded overload does not necessarily mean that the wire rope is overloaded or is being damaged.

Next, Fidler testified regarding historical LMI data sheets provided to him by White's counsel during Fidler's deposition. He explained that these data sheets did not show overloads to the wire rope. Instead, they showed pressure spikes based on the 75-degree angle of the boom. Of the eight pages of historical overloads (372 entries) compiled from the data, Fidler explained, only twelve entries were actual overloads and eleven of those twelve overloads occurred while the crane was rented to Miami-Dade Transit. In sum, the historical overload data, occurring before the crane was rented to Miami-Dade Transit, did not show actual overloads to the wire rope.

After the parties rested, the court held a charge conference on proposed jury instructions. Over White's objection, the trial court gave the following special jury instruction:

The Court has found as a matter of law and instructs you that Ring Power Corporation had no duty to download LMI PAT data which may have been contained on the crane system prior to the accident in question. You may not base a finding of negligence on Ring Power Corporation on any alleged failure to download such data.

The jury returned a verdict in favor of Ring Power, finding there was no negligence on the part of Ring Power which was a legal cause of injury to White.

White moved for a new trial, which the trial court denied, and this appeal followed.

DISCUSSION AND ANALYSIS

1) The trial court did not abuse its discretion in excluding portions of White's experts' testimony regarding LMI data.

White argues that the trial court abused its discretion in excluding a portion of his experts' testimony, preventing White from presenting expert testimony that previous overloads to the crane diminished the wire rope's structural integrity, causing it to snap. However, because none of these experts was qualified to interpret the LMI data or to offer opinions on the significance of this data, the trial court did not abuse its discretion in excluding these portions of the experts' testimony. See Brooks v. State, 762 So.2d 879, 892 (Fla. 2000) (holding it is "within the trial court's discretion to determine a witness's qualifications to express an opinion as an expert, and the court's determination in this regard will not be reversed absent a clear showing of error.").

"Under Frye..., expert opinion testimony is admissible if the expert is qualified and the opinion falls within the witness's expertise." Baan v. Columbia Cty., 180 So.3d 1127, 1132 (Fla. 1st DCA 2015) (emphasis added) (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ). The Daubert standard requires an expert to be "qualified ... by knowledge, skill, experience, training, or education " in order to testify about "scientific, technical, or other specialized knowledge." § 90.702, Fla. Stat. (2015) (emphasis added) (Florida's legislative adoption of the Daubert standard).

Thus, regardless of whether the trial court ultimately applied the Frye or Daubert standard, White was required to make a threshold showing that the witness was "qualified" to render an expert opinion on the issue at hand. See Chavez v. State, 12 So.3d 199, 205 (Fla. 2009) (observing that one of the preliminary determinations which must be made before admitting expert testimony is "whether the witness is adequately qualified to express an opinion on the matter").

The trial court's decision to exclude portions of White's experts' testimony was based upon a finding that these witnesses were unqualified to interpret the LMI data or offer opinions on its significance. This finding is supported by competent substantial evidence, including the experts' own deposition testimony, in which they acknowledged, for example:

Expert witness Barth: He has never been trained to interpret LMI data, never took a course on LMI systems, and stated he "self-trained" regarding LMI data by reviewing the instant accident and reading depositions of other witnesses. Barth acknowledged he was not proficient in reading LMI data, and a review of the deposition establishes that Barth was unfamiliar with the LMI system and had difficulty answering basic questions about its purpose and use.
Expert witness Barbe: Although he certifies crane operators, he does not certify crane maintenance workers, is not a certified crane inspector, and none of his training specifically involves wire ropes. The cranes he inspects do not use LMI systems. He did not know how to download the LMI data on the crane in question, received no training on how to read LMI data, and was unfamiliar with many of the LMI codes contained in the data.
Expert witness Mankins: He conceded to "not being an expert on LMI or this type of data"; "I wouldn't know an LMI if I saw one"; "I have no personal experience with LMI systems, nor do I profess to have any expertise associated with such a system." Mankins did not know the significance of a one-, two- or four-parts line on a crane, and acknowledged "I essentially know nothing about cranes."

None of the three experts had ever interpreted LMI data or used LMI data to investigate the cause of a crane accident or wire rope failure. Instead, all three of White's expert witnesses accepted the LMI data at face value without sufficient knowledge, training or expertise to interpret the data or opine as to its significance. We conclude that the trial court did not abuse its discretion in excluding that portion of their proposed testimony.

2) The trial court did not err in determining that Ring Power had no legal duty to download the LMI data, and did not err in giving a special jury instruction on that issue.

White contends the trial court erred in granting a partial summary judgment, finding as a matter of law that Ring Power had no duty to download the LMI data before delivering the crane to Miami-Dade Transit, and further contends that the trial court compounded this error by instructing the jury to this effect. We find no merit in either contention.

Florida Courts have explained that a party's "duty" to act "may arise from four general sources":

(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.

Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003) (emphasis added); see also Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 389 (Fla. 2015) ("Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case").

Only the fourth category could apply in this case. Under this category, "the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant." McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992) ; see also Limones, 161 So.3d at 393 n. 4 ("[W]hen the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the 'defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others.' ") (quoting McCain, 593 So.2d at 502 ).

To support its argument on the existence of a legal duty, White cites to testimony from Jarriel and Delgado (two Ring Power employees) regarding their training on LMI, and admissions that the LMI data is reliable and has in the past been reviewed following accidents. However, there is no evidence in the record to support the contention that the failure to download or review the LMI historical data foreseeably created a broader "zone of risk" where (1) the crane underwent inspections after the end of each rental period; (2) on January 17, 2011, Delgado conducted a thorough inspection of the crane, including lubricating the entire length of the wire rope by hand; (3) on January 20, 2011, Delgado conducted the annually-mandated OSHA inspection, including inspecting the entire length of the wire rope for damage; (4) White's own witnesses acknowledged there are no known standards, guidelines or manuals requiring such a download; and (5) the OSHA-mandated inspection occurred approximately six months before the crane was rented to Miami-Dade Transit, consistent with OSHA guidelines (as acknowledged by White's own expert) requiring lubrication of the wire rope approximately once a year, depending on weather conditions.

We hold that the trial court properly determined Ring Power did not have a legal duty to download the LMI data before renting the crane to Miami-Dade Transit, and therefore properly granted partial summary judgment on the issue. See Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). ("The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party"). It therefore follows that the trial court did not abuse its broad discretion in so instructing the jury. Making Ends Meet, Inc. v. Cusick, 719 So.2d 926, 927 (Fla. 3d DCA 1998) (holding trial court did not abuse its discretion where the "instructions delivered by the court accurately reflect the law on a cause of action"). See also Font v. Union Carbide Corp., 199 So.3d 323, 326 (Fla. 3d DCA 2016) (observing that "trial courts are accorded broad discretion in formulating jury instructions").

3) The trial court did not abuse its discretion in denying White's motion for new trial based on opinions offered by Fidler during his trial testimony.

White cites two changes in Fidler's opinions between his deposition and trial testimony: (1) that overloads recorded on the LMI data recorder before the date of the accident were "false overloads"; and (2) correcting his deposition testimony regarding the weight sustained by the crane and wire rope at the time of the accident. White argues these were new opinions that both surprised and unfairly prejudiced him, requiring a new trial. We do not agree.

A trial court has broad discretion to exclude witness testimony not disclosed during discovery. Binger v. King Pest Control, 401 So.2d 1310, 1312 (Fla. 1981). "[U]ltimate control over witness disclosure problems" is left "to the broad discretion of the trial judge and focuses on prejudice in the preparation and trial of a lawsuit." Id.; see also Deutsche Bank Nat. Tr. Co. ex rel. LSF MRA Pass-Through Tr. v. Perez, 180 So.3d 1186, 1189 (Fla. 3d DCA 2015) ("[W]hile a trial court has the authority to exclude the testimony of an undisclosed witness, the decision to do so turns in large measure on demonstrated prejudice to the opposing party, as well as the ability to avoid any resulting prejudice and considerations relating to the orderly administration of justice").

As the Florida Supreme Court noted in Binger:

Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court's exercise of discretion are: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Binger, 401 So.2d at 1314.

The Binger analysis is to be applied where, as here, there is a claim of surprise and prejudice resulting from a change in an expert witness' opinion. Allstate Prop. & Cas. Insur. Co. v. Lewis, 14 So.3d 1230, 1234 (Fla. 1st DCA 2009) (holding: "The Binger analysis should be applied where a medical expert changes his or her opinion, resulting in surprise and prejudice to the opposing party and necessitating a new trial"). See also Thompson v. Wal-Mart Stores, Inc., 60 So.3d 440 (Fla. 3d DCA 2011) ; Doctors Co. v. Plummer, 210 So.3d 711 (Fla. 5th DCA 2017) ; Moore v. Gillett, 96 So.3d 933 (Fla. 2d DCA 2012) ; Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999).

Even if aspects of Fidler's live testimony could be said to constitute new or different opinions, the trial court properly denied the motion for new trial, because this testimony did not result in procedural prejudice to White.

As early as 2012, White knew of Fidler's involvement as a witness in the case, and took his deposition in January 2013, more than three years before trial. At the time of his deposition, however, he had not been designated as an expert by either party. In his deposition, Fidler testified to the LMI data recorded on the day of the accident as well as the historical LMI data recorded during prior uses of the crane. Ring Power later designated Fidler as its expert witness in July 2015, but White did not seek to re-depose Fidler following this expert witness designation.

Moreover, in August 2016 (shortly before trial) White designated Fidler as his own expert witness. In his required expert disclosure notice filed prior to trial, White acknowledged that Ring Power had already designated Fidler as an expert witness; that Fidler testified in deposition "about the data from the crane recorder for the date of accident"; and stated that it was anticipated Fidler would testify "at trial about his findings and conclusions after his review of the evidence about the causes of the accident as it relates to the LMI data from the crane involved in this accident."

The record also establishes that Ring Power called Fidler to testify live only because White insisted on reading to the jury those portions of Fidler's testimony regarding the LMI data.

Prior to calling Fidler to testify at the trial, Ring Power proffered to White and the trial court all the questions it would ask, and even provided many of Fidler's anticipated answers. The trial court ruled that Fidler would not be allowed to offer new opinions, that he could answer questions specifically about the deposition excerpts read to the jury during White's case-in-chief, and that the testimony would cover basic "Crane 101" testimony.

In addition, before Fidler testified, White was given an opportunity to further interview Fidler (which White's counsel did) and to depose Fidler (which White's counsel declined to do), concerning what White asserted were new or different opinions. See, e.g., Fonseca v. Taverna Imps., Inc., 212 So.3d 431 (Fla. 3d DCA 2017) ; Klose v. Coastal Emergency Servs. of Fort Lauderdale, 673 So.2d 81 (Fla. 4th DCA 1996). Nor did White request a continuance of the trial to cure any prejudice he now claims to have suffered. See London v. Dubrovin, 165 So.3d 30 (Fla. 3d DCA 2015) ; Batista v. Walter & Bernstein, 378 So.2d 1321 (Fla. 3d DCA 1980).

We note that the trial court gave careful scrutiny to the proposed testimony of Fidler. It weighed and considered the attendant facts and circumstances, limited the nature and scope of the testimony, and provided safeguards and opportunities to cure any potential procedural prejudice to White. We conclude that the trial court did not abuse its discretion in permitting Fidler's testimony, nor did the trial court abuse its discretion in denying White's motion for new trial. Affirmed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      As described by witnesses at trial, a "headache ball" is a round steel weight with a single hook under it, used to connect the load to the crane and lift the load. The weight of the ball is sized so there is a certain amount of tension always on the wire rope or cable. The ball, in other words, keeps the tension on the line.

      An LMI warns the operator if a load is being lifted in a dangerous way. The LMI monitors several factors, including allowable load, actual load, boom angle, and boom length. When a load is unsafe, it activates an alarm and the crane shuts down. The LMI's data event recorder records this information, including "overloads" to the crane.

      An expert witness explained: "[I]f you wanted to pick [up] something that exceeded 11,600 pounds, you would need more than one-part line, so you would use a hook block with multiple sheaves, and you would take the rope and you would rivet through the additional sheaves and back up through the additional sheaves on the bottom of the boom, and you could - and you could increase the part of the line to, on that model, I think up to at least six parts."

      Theresa White, the wife of James White, was also a party-plaintiff, seeking damages on a derivative claim for loss of consortium. For ease of reference, we refer to appellants collectively as "White".

      White withdrew Barbe as an expert a year before the trial. Barbe's testimony was not proffered, nor was he called to testify at the trial.

      Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      To "reeve" is "to pass (something, such as a rope) through a hole or opening." Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/reeve (last visited November 30, 2018). In the crane context, the amount of times the rope wraps around the sheave (or pulley) on the tip of the boom (the "big arm that goes up from the crane") is called reeving, and dictates the weight that can be lifted.

      After White read to the jury excerpts of Fidler's deposition, Ring Power announced its intention to call Fidler to testify live. White's counsel objected to Fidler's live testimony, contending he was presenting new opinions as a result of his "re-review of the data." The trial court permitted Fidler to testify, but precluded presentation of new opinions.

      In 2015, at the time of the trial court's pretrial ruling on this issue, it remained an open question whether Florida courts were required to continue to follow the Frye standard or whether they should apply the Daubert standard, adopted by the Florida Legislature in 2013. See ch. 2013-107, Laws of Fla. In 2017, the Florida Supreme Court declined to adopt this statutory change to the extent it was procedural, but did not directly answer the question of whether such evidentiary determinations are substantive or procedural. See In re Amendments to Fla. Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017). During the pendency of the instant appeal, the Florida Supreme Court answered this question in DeLisle v. Crane Co., 258 So.3d 1219, 2018 WL 5075302 (Fla. October 15, 2018), holding that section 90.702, as amended in 2013, is procedural and not substantive, and "reaffirm[ing] that Frye, not Daubert, is the appropriate test in Florida courts." Id. at 1229, at *8.

      In fact, Ring Power would not have reviewed or interpreted the LMI data. Instead, it would have had to purchase the necessary software to access and download the LMI data and then send it to Grove USA (the crane manufacturer) for interpretation.

      We also note that the complained-of aspects of Fidler's testimony were consistent with, and reiterated to a large degree, the testimony already provided at trial by expert witnesses Jarriel and Palmer. In fact, Ring Power stated its intention to recall Jarriel to testify, in the event the trial court did not permit Fidler to testify live. Further, White vigorously cross-examined and challenged Fidler on what White asserts were "new" or "different" opinions.

      We affirm without further discussion the other issues raised by White on appeal.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Andy G. STRICKLAND, Appellant, v. PINELLAS COUNTY, Florida, Appellee.
    Case No. 2D17-3984
    District Court of Appeal of Florida, Second District.
    Opinion filed December 12, 2018.
    William D. Slicker, St. Petersburg, for Appellant.
    Ashley N. Donnell, Assistant County Attorney, Pinellas County Attorney's Office, Clearwater, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Andy G. Strickland appeals an order dismissing with prejudice his complaint for declaratory relief against Pinellas County. We affirm because his complaint failed to state a cause of action for declaratory relief.

In June 2017, Strickland filed a complaint in circuit court alleging the following:

On March 4, 2016, his neighbor's dog was "running free" and attacked his dog without provocation. His neighbor then filed an affidavit with Pinellas County Animal Services falsely accusing his dog "of being the aggressor dog." Based solely on that affidavit, which he was not given an opportunity to challenge, Pinellas County Animal Services then sent him a letter entitled "Notification of Dangerous Propensities," informing him that "Animal Services had reason to believe that [his] dog had exhibited dangerous propensities and that if a future incident occurred, [he] could be criminally charged." In response to a letter that he subsequently sent to the Pinellas County Board of County Commissioners on the matter, he received another letter stating that "it has been determined that [his dog] is potentially exhibiting dangerous propensities that could potentially deem him dangerous."

Strickland claimed that the action taken by Animal Services "was agency action that required due process to determine the validity of the allegations in the affidavit" and that the action "was done without due process since [he] was never given the opportunity to dispute what was stated in the [a]ffidavit." He claimed further that he "is in doubt as to his rights due to the threat of criminal prosecution ... and is entitled to have such doubt removed."

Strickland attached to his complaint the two letters that he had received from the County. The first letter-a "NOTIFICATION OF DANGEROUS PROPENSITIES" dated April 6, 2016-was from the director of Pinellas County Animal Services and informed Strickland that in accordance with chapter 767, Florida Statutes, Animal Services had conducted "a dangerous animal investigation" of his dog. The letter stated, in part:

After reviewing the incident of: January 14th, 2015[,] and March 4th, 2016 [,] a decision was made not to classify the animal at this time. While circumstances may not cause your pets to fall into the dangerous category at this time, Animal Services has reason to believe that your dog has exhibited dangerous propensities and it is incumbent on you, the animal owner, to insure that no other incidents occur. If a future incident does occur, depending on the circumstances, you could be charged criminally.
....
Pinellas County has determined that animals not classified dangerous pursuant to State and County law can still pose a serious risk to public health and safety. Although your animal has not been classified as dangerous, you could still be classified as an Irresponsible Pet Owner under section 14-38 of the Pinellas County Code if you are found to have two previous convictions for Animal Safety and Welfare Violations occurring on separate dates.
I emphasize that, at this time, Animal Services did not make a determination to classify your animal(s) dangerous or you as an irresponsible owner. However, steps should now be taken to correct situations that may contribute to its misbehavior.

(Emphases in original.)

The letter set forth sections 767.01, 767.13(2), and 784.05(1), Florida Statutes (2015), which apply to owners whose dogs have caused damage, injury, or death. That version of section 767.13(2), notably, prescribed criminal liability for an owner "[i]f a dog that has not been declared dangerous attacks and causes severe injury to or death of any human ... [and] the owner of the dog had prior knowledge of the dog's dangerous propensities, yet demonstrated a reckless disregard for such propensities under the circumstances."

The letter further advised Strickland of measures that "should now be taken to correct situations that may contribute to [his dog's] misbehavior":

First, I recommend that the animal be sterilized if it has not already been done. Other measures include stronger leashes, repair of fence/gate, secure marked enclosures, muzzle your pet (s) when out on walks, and positive control of your pet(s). You may find Obedience Training to be of great help in preventing a potentially serious problem in the future.

(Emphases in original.)

The second letter, dated May 31, 2017, and signed by an assistant county attorney, stated that Animal Services had "determined that [Strickland's dog] would not be classified as dangerous" and that Strickland "would not be classified as an 'irresponsible pet owner.' " The letter went on to state that Animal Services nonetheless had "determined that [the dog] is potentially exhibiting dangerous propensities that could potentially deem him dangerous" and that Animal Services had provided information "for responsible pet ownership." The letter further stated that "the County has determined that no further action is deemed appropriate."

The County moved to dismiss Strickland's complaint for declaratory relief, arguing that Strickland had failed to allege a justiciable controversy and a bona fide dispute between the County and him. The County asserted that no legal findings had been made regarding Strickland's dog and that the letter from Animal Services served only to warn Strickland of "possible ramifications and relevant law." Strickland responded that his complaint met the requirements for declaratory relief because the letters contained findings that his dog has "dangerous propensities" and he faces the threat of criminal prosecution. He argued that he was "contesting that the County found that [his dog] had allegedly exhibited dangerous propensities without following any due process."

The trial court summarily granted the County's motion to dismiss and dismissed Strickland's complaint with prejudice, stating: "The statement in question, 'We have reason to believe your dog, etc.' is not accusatory and merely reflects the existence of an allegation, a fact that is undisputed. The case presents no justiciable issue."

On appeal, Strickland argues that the trial court erred in dismissing his complaint because he met the standard for declaratory relief. This court reviews the trial court's dismissal de novo. See Ribaya v. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in City of Tampa, 162 So.3d 348, 352-53 (Fla. 2d DCA 2015) ("[W]hen a defendant challenges a complaint for declaratory relief on the ground that it fails to state a cause of action, i.e., that it is legally insufficient, the trial court rules on that motion as a matter of law. In that situation, this court reviews the order de novo as an issue of law." (footnote omitted) ).

A complaint for declaratory relief must allege the following:

(1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of such a claim may depend; (3) the plaintiff is in doubt as to the claim; and (4) there is a bona fide, actual, present need for the declaration.

Id. at 352. "Thus, absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief." Treasure Chest Poker, LLC v. Dep't of Bus. & Prof'l Regulation, 238 So.3d 338, 341 (Fla. 2d DCA 2017) (quoting Santa Rosa County v. Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla. 1995) ).

The trial court correctly dismissed Strickland's complaint because his allegations did not establish a present, bona fide dispute between him and the County that places him in doubt regarding his rights. Although the County stated that his dog exhibits potentially "dangerous propensities," which is a term used in section 767.13(2), designating an animal as having "dangerous propensities" as that term is used in section 767.13(2) is not within the County's authority. See generally § 767.12. At oral argument, the attorney for the County confirmed that the sole purpose of the letters was to inform Strickland that there had been a complaint against his dog but that Animal Services was taking no action based on the results of its investigation. Indeed, both letters emphasized that Strickland's dog had not been classified as dangerous and that while subject to various ordinances and statutes, Strickland does not face an imminent threat of prosecution any more than does any other dog owner. See BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010) ("When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.").

The allegations and exhibits, therefore, establish that Strickland has only a fear that he may be subject to legal consequences if something further happens with his dog. Such a speculative fear is not sufficient to warrant declaratory relief. See Treasure Chest, 238 So.3d at 341 (holding that operator of poker games was not entitled to declaratory relief where it "did not allege that it faces an imminent threat of administrative action or criminal prosecution" but alleged "only that the notices [it received from the regulatory agency] have 'placed it in fear' that it will be criminally or administratively prosecuted"); El Faison Dorado, Inc. v. Hillsborough County, 483 So.2d 518, 520 (Fla. 2d DCA 1986) ("Since the [plaintiff] has failed to allege or demonstrate that there is an imminent threat of prosecution ... for violation of the ordinance, the [plaintiff] has failed to establish its right to a declaratory judgment in these proceedings."). Accordingly, the trial court correctly dismissed Strickland's complaint.

Affirmed.

SILBERMAN and ATKINSON, JJ., Concur.

      Strickland identified the defendant as the Board of Commissioners of Pinellas County, but as the County pointed out below, Pinellas County is the proper entity. See § 125.15, Fla. Stat. (2016) ("The county commissioners shall sue and be sued in the name of the county of which they are commissioners.").

      Section 767.13(2) has since been amended and no longer imposes liability for a dog that has not been declared dangerous. See ch. 2016-16, § 3, Laws of Fla. (effective March 8, 2016).

      This letter was in response to a "notice of claim" letter sent by Strickland's attorney on May 26, 2017, which stated that pursuant to section 768.28, Florida Statutes, Strickland "gives notice that he is in doubt as [to] his rights due" to the first letter he received and "that he intends to pursue an action to clarify his rights."

      If Animal Services had instead preliminarily determined that Strickland's dog was dangerous, Strickland would clearly have been entitled to notice and a hearing before any final determination was made. See § 767.12(1) (requiring animal control authority to investigate reported incidents involving any dog that may be dangerous, allowing an owner the opportunity for a hearing prior to making a final determination, allowing the owner to file a written request for a hearing and requiring a hearing to be held as soon as possible, and then allowing the owner to appeal to the county court).

      Although the County's language regarding the dog's possibly dangerous propensities was intended solely to inform Strickland of negative consequences that he, like any dog owner, could face in the future, we understand how that language might strike just such a fear in a dog owner receiving the letter. The County may wish to consider using less problematic language in the future.


text:
    S.S., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-454
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, J.

S.S. appeals a restitution order imposed against him. Because the State failed to present evidence that S.S. caused the damages for which restitution was sought, we reverse the restitution order.

In its petition for delinquency, the State charged S.S. with grand theft of a motor vehicle, a third-degree felony under section 812.014(2)(c)(6), Florida Statutes (2017). Ultimately, the State and S.S. entered into a plea agreement by which S.S. pled to a lesser-included offense of trespass in a conveyance. As part of the negotiated plea agreement, he was required to pay restitution. The trial court ordered restitution and reserved jurisdiction to set the specific amount.

At the restitution hearing, the owner of the vehicle testified that her car was in perfect condition before the theft, but when it was returned, it had extensive damage, including water damage and removal of the electrical wiring. The State's expert testified that the total cost of damages was $3,310.37, which included costs to replace the sunroof, repair the overhead console, and a service charge. At the conclusion of the hearing, defense counsel argued that the State failed to meet its burden of demonstrating that S.S.'s trespass was the cause of the damage to the car. More importantly, defense counsel pointed out that there was no mention of damage to the car in the police reports, and that it was not until after S.S. entered into a plea agreement that the State, for the first time, produced estimates of damage to the vehicle. Nevertheless, the trial court held that the State met its burden and awarded $3,672.73 in restitution. We find that the trial court erred in ordering restitution based on damages to the vehicle because there was an insufficient nexus between the crime to which S.S. plead, trespass in a conveyance, and the damages actually sustained.

Section 985.437(2), Florida Statutes (2017), provides that a court may order a child to pay restitution "for any damage or loss caused by the child's offense." This statute has been interpreted similarly to the adult restitution statute, section 775.089(1)(a), Florida Statutes (2017), which allows a court to award restitution for "[d]amage or loss caused directly or indirectly by the defendant's offense" and "[d]amage or loss related to the defendant's criminal episode." L.R.L v. State, 9 So.3d 714, 715-16 (Fla. 2d DCA 2009). The "general rule is that a juvenile may be ordered to pay restitution 'for damages that bear a significant relationship to the convicted offense.' " S.M. v. State, 881 So.2d 78, 80 (Fla. 5th DCA 2004) (quoting D.M. v. State, 755 So.2d 752, 753 (Fla. 4th DCA 2000) ).

In G.C. v. State, 944 So.2d 1099 (Fla. 2d DCA 2006), the defendant entered a construction site and took an all-terrain vehicle. As part of a plea agreement, the State nolle prossed the grand theft charge in exchange for G.C.'s plea of no-contest to trespass in a conveyance. The court held that the State could not recover restitution for the loss of the vehicle because "[b]y pleading no contest to trespass, G.C. admitted only to entering or remaining in the vehicle without permission" not grand theft of the vehicle, meaning that the State failed to prove a nexus between loss of the vehicle and G.C.'s trespass. Id. at 1100.

In this case, the State made no attempt to show by competent, substantial evidence a causal relationship between the underlying charged offense and the restitution damages sought. In addition to the lack of evidence in the police report establishing that the vehicle was found in damaged condition, the record evidence only appears to show that S.S. drove the vehicle for a short period of time and slept in the car for a half-hour to an hour. Thus, like in G.C., the State has not shown by competent, substantial evidence that S.S.'s trespass caused the damage to the vehicle.

Because S.S. was not on notice that he would be responsible for damages to the vehicle in which he admitted trespassing, and because the State failed to establish a nexus between the trespass and the actual damage to the vehicle, the trial court erred in ordering restitution. We reverse the restitution order and remand for a new evidentiary hearing.

REVERSED and REMANDED.

EVANDER and EDWARDS, JJ., concur.