author: LINDSEY, J.

text:
    INTERNATIONAL SECURITY MANAGEMENT GROUP, INC., et al., Appellants/Cross-Appellees, v. William ROLLAND, et al., Appellees/Cross-Appellants.
    No. 3D16-2793
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2018 Rehearing Denied February 28, 2019
    Hicks, Porter, Ebenfeld & Stein, P.A., and Irene M. Porter, Jedidiah Vander Klok, and Christina Flatau, Miami; Mintzer Sarowitz Zeris Ledva & Meyers, LLP, and John J. Goranand Gina E. Romanik, Miami, for appellants/cross-appellees.
    Burns, P.A. and Thomas A. Burns (Tampa); The Pollack Law Firm, and David H. Pollack ; Robert W. Stickney, P.A., and Robert W. Stickney (Ft. Lauderdale), for appellees/cross-appellants.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
   LINDSEY, J.

International Security Management Group, Inc. ("ISMG") and Jorge Acuna appeal ("Acuna") from a final judgment entered after a jury verdict in favor of William and Lisa Rolland (the "Rollands"). The Rollands cross-appeal the trial court's partial denial of their motion for leave to amend the complaint to add punitive damages against ISMG. Because there is a reasonable possibility that the jury could have been misled by the failure to give ISMG and Acuna's requested jury instruction on qualified privilege, we reverse and remand for a new trial on the intentional tort claims. Further, we reverse the trial court's denial of ISMG and Acuna's directed verdict regarding the negligence claims raised by Mr. Rolland, as such claims were legally invalid or unsupported by the evidence. Finally, we affirm the trial court's partial denial of the Rollands' motion for leave to amend the complaint to add punitive damages against ISMG.

I. BACKGROUND

In July of 2011, William Rolland was a professional videographer visiting Miami for work and was scheduled to film an interview with a company executive for a business located at New World Tower in downtown Miami. The Israeli and German consulates were also tenants of New World Tower. Panther Management Services, LLC ("Panther Management") managed New World Tower while the office building was owned by several related entities ("the NWT Owners"). On the day of the incident, Jorge Acuna was the security guard posted to the lobby of New World Tower and was employed by ISMG.

On July 25, 2011, Mr. Rolland was arrested and later indicted by a federal grand jury for making a false or hoax bomb threat against the New World Tower in downtown Miami. A criminal trial was held in December of 2011 and he was found not guilty.

A year and a half later, the Rollands sued the NWT Owners, ISMG, Panther Management, Acuna, Omar Clavero ("Clavero") and Andres Caamano Osuna ("Osuna"). The operative complaint is the third amended complaint which alleged defamation, malicious prosecution and negligence claims against Acuna, Clavero and Osuna based on their statements that Mr. Rolland made a bomb threat. It also alleged negligence claims against Panther, 100 NWT, and ISMG for negligent hiring/staffing, training, and supervision of employees. The case proceeded to a jury trial.

A. The New World Tower Incident

While talking on a cell phone and carrying a large case and camera tripod, Mr. Rolland entered the lobby of New World Tower on July 25, 2011. Acuna observed Mr. Rolland enter the building while talking on a cell phone and carrying a tripod and large black box. Acuna testified that once inside the lobby, Mr. Rolland engaged in an unusually loud cell phone conversation and refused to respond to his questions and offers of assistance. Acuna explained that he grew suspicious and radioed Osuna, the assistant building engineer, to come to the lobby based on Mr. Rolland's unresponsiveness, loud phone discussion, and large black box. Osuna then joined Acuna at the security desk and testified that he also grew suspicious based on Mr. Rolland's behavior and the case, with him in the lobby.

After the phone call ended, Mr. Rolland walked toward the security desk and began speaking directly with Osuna. Both Acuna and Osuna testified that when Mr. Rolland approached, he used expletives and asked whether they had a problem with people talking on the phone in the building lobby. Mr. Rolland, however, denied using expletives and testified that his interaction with Osuna was innocuous. While Acuna assisted other individuals, Osuna proceeded to explain to Mr. Rolland their concerns regarding his large case. Mr. Rolland informed Osuna that he needed to film in and around the building and was scheduled to return the following day to film the building's owner. Osuna explained that before filming in or around the property, Mr. Rolland first needed to obtain security approval from the building. Mr. Rolland testified that he agreed to comply with such a requirement.

At this point, Mr. Rolland left the lobby and began filming the office building from outside on the sidewalk. Clavero, the chief building engineer and Osuna's supervisor, went outside with Acuna to speak with Mr. Rolland, but there was conflicting testimony at trial as to precisely what was said between the men. Mr. Rolland testified that he was in the middle of filming angles of the building when Clavero approached and stated that he could not take pictures. According to Mr. Rolland, he told Clavero that it was a public area and that he was allowed to take pictures, at which point Clavero threatened to call the police. Clavero testified that he approached and repeatedly asked Mr. Rolland what he was doing, but that Mr. Rolland was unresponsive and finally gave an expletive-laden retort that this was America and he could do whatever he wanted. Acuna's testimony was consistent with Clavero's account. However, Mr. Rolland denied using any profanities and stated that Clavero and Acuna never identified themselves to him.

Returning to the lobby, Clavero told Acuna to call Eran Miranda, the director of security for the Israeli Consulate, for his assistance in assessing the situation. Clavero testified that he asked Acuna to call for Miranda's help because Miranda had more experience and training in how to handle such situations. Acuna, Clavero, and Osuna each testified that, shortly after Clavero and Acuna came back inside the lobby, Mr. Rolland stuck his head through a front door and declared that he was returning tomorrow to "blow up the f***ing building." However, Mr. Rolland vehemently denied ever using expletives or making any type of bomb threat. Instead, Mr. Rolland claimed that he was unsure if Clavero actually intended to call the police so he stuck his head back into the lobby to inform someone with New World Tower where he was staying. According to Mr. Rolland, he informed Acuna that he was staying at the Intercontinental Hotel and gave his room number in case the police were actually called.

Miranda subsequently came down to the lobby and was informed of the alleged bomb threat situation by Clavero, while Acuna pointed out Mr. Rolland to Miranda as he walked away down the sidewalk. Miranda then called Officer Wanda Mendez with the City of Miami Police Department to report the purported bomb threat situation. Officer Mendez notified her dispatcher of the New World Tower incident and to send units, stayed in contact with Miranda, and departed for the scene herself. A short time later, Mr. Rolland was taken into custody.

The South Lobby Camera Recording

At the time of the incident, New World Tower had a south lobby camera and north lobby camera. The north lobby camera recorded inside the lobby, and testimony elicited at trial suggested that the south camera lobby would have captured Mr. Rolland filming the outside of the building before re-entering to make the purported bomb threat. The north lobby camera captured most of the interactions Mr. Rolland had inside the lobby on the day of the incident and was relied on by both sides throughout trial. However, the Rollands made no request to preserve either camera recording for the federal criminal case or for the instant civil action. Only the north lobby camera recording was ultimately preserved and downloaded.

During a motion in limine hearing on July 14, 2016, the trial court reiterated that the Rollands' discussion and inquiry regarding the missing south lobby camera recording would be limited to preclude any allegation or inference of evidence spoliation. In responding to concerns from the defendants that the Rollands were attempting to improperly suggest that the south lobby camera recording had been tampered with or deleted, the trial court stated:

THE COURT: All right. Here's what I'm doing. I am not going to permit you to make an allegation that-or an inference-that anybody intentionally destroyed any video footage of the incident, but I will permit you to explain to the jury in detail the conditions upon which this incident occurred, including any cameras that are located on the property and whether or not the camera actually captured the image, to the extent that you know that.

There was conflicting testimony as to who actually downloaded the security camera recording for law enforcement. Acuna, Osuna, and Clavero thought Albert Hammond, an employee for a third party vendor hired to manage the telecom data for New World Tower, had downloaded the video recording. However, Hammond testified that he was never asked to download the security footage of the incident.

Nonetheless, the Rollands' counsel repeatedly brought up the missing south lobby camera recording throughout trial. Counsel for the Rollands stated during opening remarks that, although the south lobby camera would have captured Mr. Rolland filming the outside of the building, "none of that video was given to the FBI." The Rollands repeatedly questioned the individual defendants about who had access to the security camera system, characteristics of that system, what the south lobby camera would have captured, and who has previously downloaded security videos, among other lines of inquiry.

At one point during cross-examination about the missing south lobby camera recording, Clavero was asked whether he wanted to "say it was somebody else because you chose not to download the video showing you going out on to the sidewalk and confronting and harassing my client?" Defense counsel objected, raising the court's prior order from the motion in limine hearing. At the end of Clavero's testimony, the jury asked, among others, "why was only one camera feed given to the FBI" if Clavero was there when Albert Hammond downloaded the video of the incident. However, the trial court sustained a defense objection and refused to ask the juror's question.

Moreover, counsel for the Rollands continued to focus on the security camera system during closing arguments and suggested that various explanations by the individual defendants and the property manager, Shari Simms, were not credible:

Let's talk a little bit about the video footage. There was certainly significant evidence listed on that issue.
We heard testimony from Mr. Osuna and Mr. Acuna and Mr. Clavero. We didn't download the video. We didn't have anything to do with it. We didn't look at it. Because we don't have the passcode, the important passcode that only Mr. Hammond had. But Mr. Hammond was the only one that had it.
How is it possible, first of all, that Ms. Simms didn't even know if it was -- I asked her, I don't know if you took notes on that, was there a passcode? I don't know. And what happened when Mr. Hammond left? The testimony was we called his prior employer. His prior employer who he didn't even work for to get the passcode.
Well, what was the prior employer doing with the passcode for a high security building with colocation tenants that have high security. And what happened when Mr. Hammond got sick and couldn't operate the computer and download video, because it wasn't just the video.
If you listen to the evidence, Mr. Osuna said it was cards, access cards for people when they needed the building, you had the same passcode. So what would happen if Mr. Hammond decided to go on vacation for a week or call in sick, are none of the tenants going to have access? If there's an emergency video, who's going to operate? It does make sense?

B. Acuna's Arrest and Mr. Rolland's Good Character Evidence

Acuna submitted an employment application to ISMG in July of 2007. When Panther Management contracted for ISMG to take over the security services for New World Tower, Acuna was recommended to ISMG because he was already working as a licensed security guard for the building. ISMG performed a seven-year background check on Acuna, which indicated no prior criminal record. In fact, Acuna had previously been arrested, but not convicted, for grand theft and dealing with stolen property in 1993. Specifically, Acuna was accused of stealing approximately 52,000 bottles of perfume while employed as a plant manager for a perfume company in 1993. However, Acuna denied any wrongdoing and adjudication was ultimately withheld after he entered a nolo contendere plea.

To support their claim for negligent hiring, the Rollands sought to introduce evidence of Acuna's 1993 arrest. In particular, the Rollands argued that Acuna should never have been hired to work at New World Tower because a provision in the service contractor agreement between ISMG and Panther Management barred the assignment of any security personnel to New World Tower if "charged or convicted of any crime." Before trial, ISMG filed a motion in limine to exclude any evidence regarding Acuna's arrest record. Although the trial court barred the Rollands from discussing the specifics of Acuna's arrest, it denied the motion in limine and permitted the Rollands to ask questions, over contemporaneous objections, about Acuna's arrest in relation to ISMG's contract with Panther Management.

During trial, counsel for the Rollands repeatedly asked ISMG's corporate representative, Jeffrey Himebaugh, and Acuna's supervisor, Robert Artola, whether either of them knew of Acuna's arrest before he was hired or if Acuna ever received a formal reprimand. Over objections, the Rollands also asked whether ISMG would have employed Acuna if his arrest had been known or whether anyone with ISMG subsequently became aware that Acuna had been charged with a crime. Both Mr. Artola and Mr. Himebaugh stated that an industry-standard background check was performed and did not reveal an arrest from 1993. Both men also testified that Acuna did not have disciplinary reports in his personnel file. Moreover, Mr. Himebaugh explained that, even if made aware of Acuna's arrest, he would have first let the property management company decide what course of action to take because Acuna was recommended to ISMG when ISMG took over security services for the building. Additionally, contemporaneous objections were made when Acuna was asked directly whether he had been charged with a crime and whether he had ever been fired from a previous employer.

During closing arguments, the Rollands' counsel emphasized that the provision in ISMG's contract with Panther Management prohibiting any personnel charged or convicted of a crime from working at New World Tower applied to Acuna. At the end of his closing remarks, counsel for the Rollands told the jury to do what they think is right, reminded them that Acuna still worked at New World Tower, and then asked, "[w]ho unleashed Jorge Acuna on the public?" Defense again made a contemporaneous objection.

In contrast, Mr. Rolland proffered evidence of his good character and professional reputation in order to rebut the accusations that he used expletive-laden language and was aggressive on the day of the incident. Additionally, Mr. Rolland argued that such character evidence was directly relevant to the damages element of his defamation claim. The trial court permitted two clients of Mr. Rolland to testify about his "professional" reputation and that they would still work with him regardless of the New World Tower incident. One client further testified that Mr. Rolland was never vulgar or profane in his professional capacity, and that he hired Mr. Rolland based on his experience and capacity to create a "professional, respectful, and an overall positive image" of the client's company. In addition to the good character evidence referred to throughout closing argument, counsel for the Rollands also asked the jury to consider how much money would be sufficient "to compensate a man who was never arrested before in his life ... [a]nd for 52 years played by the rules." Later, counsel for the Rollands suggested that an award of $10 million on the defamation claim was appropriate "for somebody like Mr. Rolland, who never had a parking ticket."

C. Jury Instructions

Finally, there was disagreement over the final jury instructions regarding qualified privilege defenses to Mr. Rolland's defamation claim. Specifically, the defendants sought to instruct the jury that a presumptive privilege exists for an individual to report a suspected crime to law enforcement, even if that statement is ultimately false. Additionally, the defendants requested a qualified privilege defense for a person to report a suspected crime to another person having a corresponding shared interest or duty in reporting that crime.

On July 28, 2016, the parties met with the trial court to discuss the proposed jury instructions and verdict form. The defendants argued that an additional qualified privilege defense should be included because Acuna had a shared interest with Miranda, as head of security for the Israeli Consulate, in the safety of the building. However, the trial court indicated that it was inclined to submit the Rollands' proposed instructions. The next morning, the defendants submitted a revised proposed jury instruction emphasizing the qualified privilege language they sought to be included:

On the defense of qualified privilege, I instruct you that provided one does not speak with improper motives, which I shall explain in a moment, a person such as Defendants Acuna, Osuna, and Clavero is presumptively privileged to make a statement to law enforcement or the prosecuting government attorney regarding the reporting of a suspected crime prior to the institution of criminal charges, even if the statement is ultimately untrue. Further, Defendants Acuna, Osuna, and Clavero would have a qualified privilege to make the same report of a suspected crime to the head of security at the Israeli Consulate if you find that these Defendants and the head of security at the Israeli Consulate had a shared interest or duty in reporting the alleged bomb threat to police. A person does not, however, have a qualified privilege to make a statement accusing someone of a crime to a private citizen.

(emphasis in original). However, the following instruction submitted by the Rollands was ultimately provided to the jury:

On the defense of qualified privilege, I instruct you that provided one does not speak with improper motives, which I shall explain in a moment, a person such as Defendants Acuna, Osuna, and Clavero is presumptively privileged to make a statement to law enforcement or the prosecuting government attorney regarding the reporting of a suspected crime prior to the institution of criminal charges, even if the statement is ultimately untrue. A person does not, however, have a qualified privilege to make a statement accusing someone of a crime to a private citizen .

(emphasis added).

ISMG and Acuna assert on appeal that the trial court erred by excluding the shared interest qualified privilege to Mr. Rolland's defamation claim. ISMG and Acuna further assert that the erroneous instruction gave a judicial stamp of approval to the Rollands' argument throughout trial that it was a mistake for Acuna to first contact Miranda instead of calling 911. Indeed, the Rollands' counsel emphasized Acuna's failure to first call 911 during opening remarks, throughout trial, and during closing arguments.

D. The Verdict and Appeal

The jury returned a verdict in favor of the Rollands, on Mr. Rolland's defamation, malicious prosecution, negligence, and negligent hiring causes of action, and for Lisa Rolland's loss of consortium claim. However, the NWT Owners, Panther Management, Clavero, and Osuna settled with the Rollands post-trial, and the trial court entered a final order of dismissal with prejudice as to the settling defendants on November 4, 2016. On December 7, 2016, the trial court entered a final judgment pursuant to the jury verdict. The trial court also entered an order on December 7, 2016 denying ISMG and Acuna's post-trial motions, which included a motion for a directed verdict on the Rollands' negligence claims. The instant appeal and cross-appeal ensued.

II. STANDARD OF REVIEW

A trial court's decision on jury instructions is reviewed for abuse of discretion and "should not be overturned on appeal absent a showing of prejudicial error." Gonzalez v. Rose, 752 So.2d 39, 41 (Fla. 3d DCA 2000) (citing Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990) ). Similarly, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007) (citing Blanco v. State, 452 So.2d 520 (Fla. 1984) ). The denial of a directed verdict is reviewed de novo , viewing all evidence adduced at trial and every reasonable inference from that evidence in the light most favorable to the non-moving party. Northrop Grumman Sys. Corp. v. Britt, 241 So.3d 208, 213 (Fla. 3d DCA 2017). A trial court's denial of a motion for new trial based on improper closing remarks is reviewed for an abuse of discretion. See Tanner v. Beck ex rel. Hagerty, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005).

III. ANALYSIS

On appeal, ISMG and Acuna raise the following issues: (i) a new trial is required on the intentional tort claims because the trial court abused its discretion by submitting an erroneous jury instruction that omitted the requested shared interest qualified privilege defense; (ii) a new trial is further required on the intentional tort claims because the trial court abused its discretion in admitting improper evidence during trial; (iii) a directed verdict should have been granted on the negligence claims; and (iv) the trial court erred in denying a motion for new trial based on improper closing arguments made by the Rollands' counsel. Additionally, the Rollands cross-appeal the trial court's denial of their motion for leave to amend their complaint to state a claim for punitive damages against ISMG pursuant to section 768.72, Florida Statutes (2015).

A. Qualified Privilege Jury Instruction

"The failure to give a requested jury instruction constitutes prejudicial error when there is a reasonable possibility that the jury could have been misled by the failure to give the instruction." Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005) (citing Golian v. Wollschlager, 893 So.2d 666, 667 (Fla. 1st DCA 2005) ). In order to demonstrate reversible error based on a the trial court's failure to give a requested jury instruction, a party must establish that: (i) the requested instruction contained an accurate statement of the law, (ii) the facts of the case supported a giving of the instruction, and (iii) the instruction was necessary for the jury to resolve the issues of the case. See Font v. Union Carbide Corp., 199 So.3d 323, 326 (Fla. 3d DCA 2016) (citation omitted) (internal quotation marks omitted). ISMG and Acuna have met this burden.

The foundation of Mr. Rolland's defamation claim are the statements made to the head of security at the Israeli Consulate located at New World Tower, as well as the subsequent remarks to the City of Miami Police and the FBI regarding the bomb threat that Acuna, Osuna, and Clavero contend Mr. Rolland made on July 25, 2011. The final jury instruction accurately stated that Acuna, Osuna, and Clavero were presumptively privileged to make a statement to law enforcement regarding the reporting of a suspected crime.

Where ISMG and Acuna take issue is the very next sentence of the jury instruction, which provides that "[a] person does not, however, have a qualified privilege to make a statement accusing someone of a crime to a private citizen." Although not necessarily an inaccurate statement of the law, the instruction is nonetheless inadequate and could have reasonably confused or misled the jury because it wrongly suggested that Acuna had no qualified privilege to report the alleged bomb threat to Miranda. There was ample evidence from which the jury could have found that both Acuna and Miranda had an interest in the building's security with respect to a bomb threat.

In defamation cases involving a mutuality of interest in the statement between the speaker and listener, Florida courts have long recognized that such "[a] statement is qualifiedly privileged if made by one who has a duty or interest in the subject matter to one who has a corresponding duty or interest." Knepper v. Genstar Corp., 537 So.2d 619, 622 (Fla. 3d DCA 1988) ; see also Lewis v. Evans, 406 So.2d 489, 492 (Fla. 2d DCA 1981) ("In Florida, a statement made by one having an interest or duty in the subject matter thereof, to another person having a corresponding interest or duty therein, is conditionally privileged, even though the statement may be false and otherwise actionable." (citing Axelrod v. Califano, 357 So.2d 1048, 1051 (Fla. 1st DCA 1978) ("To be qualifiedly privileged the communication must be made by a person having a duty or interest in the subject matter, to another having a corresponding duty or interest.") ) ). The Florida Supreme Court explained the concept of a qualified privilege based on mutuality of interest as follows:

A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation.

Nodar v. Galbreath, 462 So.2d 803, 809 (Fla. 1984) (quoting 19 Fla. Jur. 2d Defamation and Privacy § 58 (1980) ). Moreover, the nature of the shared duty or interest "may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties." Lewis, 406 So.2d at 492 (citing Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12, 14 (1942) ); see also Am. Airlines, Inc. v. Geddes, 960 So.2d 830, 833 (Fla. 3d DCA 2007).

In Geddes, American Airlines and a human resources manager were sued for defamation by an employee, Arthur Geddes. 960 So.2d at 831. American Airlines temporarily suspended Geddes, conducted an internal investigation, and ultimately issued a formal reprimand after a coworker reported that Geddes made a threatening statement during a workplace argument. Id. at 831-32. Geddes alleged generally that American Airlines defamed him by republishing the coworker's statement to others and refusing to silence rumors. Id. at 834. This Court ultimately reversed the judgment entered against American Airlines, holding that any statements made by managerial personnel to non-managerial personnel was qualifiedly privileged because those employees were either witnesses to the internal investigation or had an "interest in the disciplinary practices of their employer and in the safety and security of their workplace." Id. at 834.

Here, ISMG and Acuna contend that Acuna had a qualified privilege to report a suspected bomb threat to Miranda because Acuna, as a security guard for New World Tower, had a shared interest with Miranda, as head of security for the Israeli Consulate located in New World Tower, in the safety of the building. In giving a blanket instruction that no person enjoys a qualified privilege to report a potential crime to a private citizen, without including any instruction on a mutuality of interest privilege, the jury was likely misled into thinking there was no circumstance where Acuna was qualifiedly privileged to report an alleged bomb threat to Miranda. For this reason alone, a new trial is required on the intentional tort claims. See Jacobs v. Westgate, 766 So.2d 1175, 1180 (Fla. 3d DCA 2000) ("A jury instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that they otherwise would not have reached ... regardless of whether it has actually been misled."); see also McPhee v. Paul Revere Life Ins. Co., 883 So.2d 364, 368 (Fla. 4th DCA 2004) ("[T]he test for reversible error arising from an erroneous jury instruction is not whether the instruction misled, but only whether it reasonably might have misled the jury.").

We also disagree with the Rollands' contention that any error by the trial court in denying the requested jury instruction was harmless because it was covered by other instructions and that there was overwhelming evidence of express malice. Under Florida law, a showing of express malice is necessary to overcome the qualified privilege. See Water & Sewer Util. Constr., Inc. v. Mandarin Utils., Inc., 440 So.2d 428, 430 (Fla. 1st DCA 1983) ("Where a qualified privilege exists, the plaintiff must prove express malice or malice in fact in order to recover."). "Once it is determined that a qualified privilege exists, a further examination is necessary to determine whether the speaker lost the privilege because of express malice." Cape Publ'ns, Inc. v. Reakes, 840 So.2d 277, 281 (Fla. 5th DCA 2003).

Here, the Rollands contend that any error was harmless and not prejudicial because the trial court instructed the jury on the law enforcement qualified privilege. According to the Rollands, because the jury found that the statements by Acuna were defamatory, they were necessarily made with express malice sufficient to overcome the law enforcement privilege as well as any shared interest privilege. We disagree.

The jury was instructed that Mr. Rolland's defamation claim was based on allegedly false statements made by Acuna, Osuna and Clavero to "the head of security at the Israeli Consulate housed in the New World Tower, the City of Miami Police, and the Federal Bureau of Investigation" regarding the purported bomb threat. However, the jury was also instructed that no person enjoys a "qualified privilege to make a statement accusing someone of a crime to a private citizen." No finding of express malice is necessarily encompassed in the jury's verdict because they were specifically instructed that statements to a private individual like Miranda are never qualifiedly privileged. Moreover, the statements to Miranda occurred before such similar statements were provided to law enforcement. Accordingly, the jury could have reasonably based its defamation verdict exclusively on the statements made by Acuna to Miranda regarding the bomb threat.

Because the jury was instructed that Acuna had no privilege to report a suspected crime to a private individual like Miranda, the risk of jury confusion was exacerbated by the Rollands' repeated assertion that it was wrong for Acuna, Osuna, or Clavero to contact Miranda before first calling 911. As such, the Rollands are unable to satisfy their burden, as the beneficiary of the erroneous jury instruction, of showing there is no reasonable possibility that the error contributed to the verdict. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) ("To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict."). Based on the foregoing, we are compelled to reverse for a new trial on the intentional tort causes of action due to the prejudice to ISMG and Acuna caused by the trial court's erroneous jury instruction.

B. The Negligence Claims

In addition to the malicious prosecution and defamation intentional torts, Mr. Rolland also raised a general claim for negligence seeking damages from Acuna, Osuna and Clavero for their alleged negligent reporting to law enforcement that Mr. Rolland committed a crime by making a bomb threat. Under the same negligence claim, Mr. Rolland also sought to recover damages from ISMG for its alleged failure to properly investigate the July 25, 2011 incident and for failing to adequately train and supervise Acuna. Mr. Rolland also raised a separate claim against ISMG for the alleged negligent hiring of Acuna. ISMG and Acuna contend the trial court erred in denying their motion for directed verdict because the negligence claims were unsupported by the evidence and legally invalid.

"A defendant is entitled to a directed verdict when 'the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury,' but a directed verdict is improper '[i]f the plaintiff has presented evidence that could support a finding that the defendant more likely than not caused the injury.' " Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Cox v. St. Josephs Hosp., 71 So.3d 795, 801 (Fla. 2011) ).

In reviewing a trial court's denial of a motion for a directed verdict, an appellate court must evaluate the evidence in the light most favorable to the nonmoving party. See Trek Bicycle Corp. v. Miguelez, 159 So.3d 977, 979 (Fla. 3d DCA 2015) (citing Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006) ). Moreover, the motion for a directed should only be granted "where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001) ; Greenberg v. Schindler Elevator Corp., 47 So.3d 901, 903 (Fla. 3d DCA 2010) (citing Banco Espirito Santo Int'l., Ltd. v. BDO Int'l., B.V., 979 So.2d 1030, 1032 (Fla. 3d DCA 2008) ).

It has been recognized in Florida that public policy supports providing redress for individuals who are injured as a result of incorrect reports to law enforcement but are unable to raise a malicious prosecution cause of action. Valladares v. Bank of Am. Corp., 197 So.3d 1, 10 (Fla. 2016) ("[P]ublic policy supports the conclusion that those who are injured as a result of incorrect reports to the police should have access to redress for injuries."). Therefore, the Florida Supreme Court held that:

[A] cause of action is available to one injured as a result of a false report of criminal behavior to law enforcement when the report is made by a party which has knowledge or by the exercise of reasonable diligence should have knowledge that the accusations are false or acts in a gross or flagrant manner in reckless disregard of the rights of the party exposed, or acts with indifference or wantonness or recklessness equivalent to punitive conduct.

Id. at 2.

However, Florida's single publication/single action rule precludes the recasting of defamation claims as additional, distinct causes of action in tort if all of the claims arise from same defamatory publication. See Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla. 1992) ("It is clear that a plaintiff is not permitted to make an end-run around a successfully invoked defamation privilege by simply renaming the cause of action and repleading the same facts."); see also Ovadia v. Bloom, 756 So.2d 137, 141 (Fla. 3d DCA 2000) (explaining that multiple actions are not permitted under the single publication/single action rule when they arise from the same publication upon which a failed defamation claim is based); Edelman v. Kolker, 194 So.2d 683, 684 (Fla. 3d DCA 1967) ("The general rule in Florida is that only one cause of action arises out of a single tort committed on an individual, even though that tort results in damages to both the person and his physical property.").

Here, Mr. Rolland raised a claim against Acuna for negligent reporting of a crime that was based on the same facts and purported defamatory publication underlying Mr. Rolland's defamation claim. Callaway Land & Cattle Co., v. Banyon Lakes C. Corp., 831 So.2d 204, 208 (Fla. 4th DCA 2002) ("The rule is designed to prevent plaintiffs from circumventing a valid defense to defamation by recasting essentially the same facts into several causes of action all meant to compensate for the same harm." (quoting Messenger v. Gruner + Jahr USA Publ'g, 994 F.Supp. 525, 531 (S.D.N.Y. 1998), vacated on other grounds, 208 F.3d 122 (2000) ) ); Byrd v. Hustler Magazine, Inc., 433 So.2d 593, 595 (Fla. 4th DCA 1983) (rejecting an invasion of privacy claim because it was based on "the same factual allegations and legal argument"

as the defamation claim). Accordingly, we agree with ISMG and Acuna that the trial court erred in denying their motion for a directed verdict on the claim for negligent reporting of a crime.

Mr. Rolland's additional grounds for relief under the negligent reporting of a crime claim are also insufficient. First, Mr. Rolland sought to recover damages from ISMG for its alleged failure to adequately investigate the July 25, 2011 incident. However, such a claim necessarily fails because the record is silent as to how ISMG's purported failure to properly investigate the July 25, 2011 incident contributed in any way to Mr. Rolland's asserted injury. "In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Siegel v. Cross Senior Care, Inc., 239 So.3d 738, 741 (Fla. 3d DCA 2018) (quoting Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1017 (Fla. 1984) ).

Second, Mr. Rolland sought damages from ISMG based on its purported failure to properly train and supervise Acuna. "Liability for negligent supervision or retention, however, occurs after employment begins, where the employer knows or should know of an employee's unfitness and fails to take further action such as investigating, discharge or reassignment." G4S Secure Sols. USA, Inc. v. Golzar, 208 So. 3d 204, 208 n.4 (Fla. 3d DCA 2016) (quoting Malicki v. Doe , 814 So.2d 347, 362 n.15 (Fla.2002) ); see also Iglesia Cristiana La Casa Del Señor, Inc. v. L.M., 783 So.2d 353, 358 (Fla. 3d DCA 2001) (citing M.V. v. Gulf Ridge Council Boy Scouts of Am., Inc., 529 So.2d 1248 (Fla. 2d DCA 1988) ). Here, there was no evidence that ISMG knew or should have known of Acuna's alleged unfitness. Acuna's personnel file did not contain any formal reprimands and neither his supervisor nor the ISMG representative were aware of any disciplinary write-ups prior to July 2011. Acuna was recommended to ISMG by New World Tower after already working directly for the building as a licensed security guard. Moreover, there simply was no evidence to suggest that ISMG failed to provide adequate training.

Finally, Mr. Rolland raised a separate claim against ISMG for negligent hiring. "A claim for negligent hiring arises when, before the time the employee is hired, the employer knew or should have known that the employee was unfit." Malicki, 814 So.2d at 362 n.15. In order for Mr. Rolland to raise a prima facie claim of negligent hiring against ISMG, he must show:

(1) the employer was required to make an appropriate investigation of the employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and (3) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known.

Id. (quoting Garcia v. Duffy, 492 So.2d 435, 440 (Fla. 2d DCA 1986) ).

The Rollands argue that there was substantial evidence of ISMG's failure to conduct an adequate background search on Acuna before hiring him as a security guard for New World Tower. According to the Rollands, ISMG was therefore negligent in hiring Acuna because it failed to discover Acuna's 1993 arrest, which would have precluded his hiring for a position at New World Tower pursuant to the service contract between ISMG and Panther Management.

The record, however, demonstrates that Mr. Rolland is unable to satisfy any enumerated factor articulated in Malicki. The evidence adduced at trial demonstrates that Acuna was already a licensed security guard for New World Tower and was recommended by the building when ISMG assumed responsibility for providing security services. An industry standard seven-year background check was performed prior to Acuna's employment, which indicated no criminal record. Even if made aware of Acuna's 1993 arrest, the ISMG representative testified that he would have let Panther Management make the ultimate decision on a proper course of action because Acuna was a recommended hire by ISMG's client. There also were no formal reprimands in Acuna's personnel file.

Moreover, neither the internal ISMG procedures nor the services contract between ISMG and Panther Management established a duty of care sufficient to provide Rolland a basis of recovery under a negligent hiring cause of action. See Dominguez v. Publix Super Markets, Inc., 187 So.3d 892, 895 (Fla. 3d DCA 2016) ("[I]nternal safety policies do not themselves establish the standard of care owed to the plaintiff."); see also Dent v. Dennis Pharmacy, Inc., 924 So.2d 927, 929 (Fla. 3d DCA 2006) (affirming dismissal of plaintiff's negligence claim where there was no privity between the parties and the plaintiff was not "a known or identifiable third party").

Furthermore, there was no connection between Acuna's 1993 arrest for grand theft and the alleged underlying intentional torts of malicious prosecution and defamation at issue here. Even if known to ISMG, Acuna's arrest almost 23 years prior would not have made Acuna's purported defamatory statements accusing Mr. Rolland of making a bomb threat foreseeable. See Garcia, 492 So.2d at 442 (explaining that even if an employer had known about an employee's previous "conviction for night-prowling or his assault-and-battery charge that had occurred almost twenty years earlier, we do not consider that this knowledge would have made it foreseeable that the employee would react to his dog's death by physically attacking a person who accidentally caused the dog's death"). Thus, admission of Acuna's 1993 arrest was improper and constituted an impermissible attack on character. See Dickinson v. Gonzalez, 839 So.2d 709, 714 (Fla. 3d DCA 2003). Based on the foregoing, a directed verdict should have been entered in favor of ISMG and Acuna on Mr. Rolland's negligence claims.

C. Improper Evidence and Closing Arguments

As previously discussed, we are reversing for a new trial on the intentional tort claims and for entry of a directed verdict in favor of ISMG and Acuna on the negligence claims. As an additional basis for reversal, we address the errors described below.

"A trial court's discretion regarding counsel's improper arguments to the jury is guided by whether the comments and arguments were 'highly prejudicial and inflammatory.' " Fasani v. Kowalski, 43 So.3d 805, 809 (Fla. 3d DCA 2010) (quoting SDG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997, 1001 (Fla. 3d DCA 2008) ). This Court has consistently held that statements by an attorney accusing the opposing party or counsel of hiding evidence and thereby fraudulently preventing the admission of relevant evidence can constitute reversible error. See SDG Dadeland, 979 So.2d at 1001 ("We find that given the absence of any evidence showing that either [Defendant] or its counsel hid evidence or acted improperly, any argument by Plaintiff's counsel implying that defense counsel was hiding evidence was both egregious and prejudicial to [Defendant]."

); see also Sanchez v. Nerys, 954 So.2d 630, 632 (Fla. 3d DCA 2007) (requiring a new trial because "arguments to the jury that defense counsel was 'pulling a fast one,' 'hiding something,' and 'trying to pull something,' was tantamount to calling defense counsel liars and accusing them of perpetrating fraud upon the court and jury"); Emerson Elec. Co. v. Garcia, 623 So.2d 523, 525 (Fla. 3d DCA 1993) (reversing for a new trial where a series of inquiries by plaintiff's counsel accused defense counsel of hiding evidence, putting up roadblocks to the discovery of relevant evidence, and perpetrating fraud).

Considering there was no evidence that the south lobby camera recording was missing because of spoliation or concealment, the pervasive inquiries by the Rollands' counsel into the security cameras and missing recording implied to the jury that the south lobby recording was hidden or destroyed because it would have been unfavorable to the defense. Indeed, the Rollands suggested improper conduct surrounding the missing recording during opening arguments, with counsel for the Rollands declaring that "the only tape when the FBI asked for the tape of the lobby, the only tape given was the tape from the north camera pointing south." Despite a pre-trial limiting instruction, the concealed recording theme was implied throughout trial over objections, even prompting a juror question as to why only one camera feed was provided to the FBI.

Moreover, counsel for the Rollands pointedly attacked the credibility of the defense during closing arguments, telling the jury over defense counsel's objection that "human nature never changes and liars will be liars and they'll stay liars for eternity." While such implications are clearly misleading and prejudicial in general, they are further exacerbated here because any south lobby recording of the front sidewalk outside of the New World Tower lobby has little probative value to Mr. Rolland's intentional tort claims. The security camera system had no audio capability and the south lobby camera would not have captured Mr. Rolland's purported bomb threat inside the lobby. Furthermore, counsel for the Rollands conceded that a request to preserve the south lobby camera recording was never made. Accordingly, these arguments were improper and should be avoided in the future. See Wall v. Costco Wholesale Corp., 857 So.2d 975, 976 (Fla. 3d DCA 2003) (concluding reversal was required because of remarks by defense counsel regarding why the plaintiffs failed to call their daughter as a witness when defense counsel knew the daughter was estranged); see also Johnnides v. Amoco Oil Co., 778 So.2d 443, 443-44 (Fla. 3d DCA 2001).

Next, we address additional improper statements made by the Rollands' counsel during closing argument concerning Acuna's previous arrest and Mr. Rolland's good character. The prejudice arising from the irrelevant admission of Acuna's 1993 arrest was compounded by the repeated references to Mr. Rolland's contrasting good character evidence. In contrast to the negative testimony regarding Acuna's prior arrest and past employment, a positive illustration of Mr. Rolland was painted via testimony regarding his good character, professional reputation, and respectful conduct. Mr. Rolland contends that evidence regarding Acuna's prior arrest was relevant to his claim of negligent hiring against ISMG, while any good character evidence went to establishing damages and to also rebut the accusation that he used profane language or acted aggressively.

Relevancy, however, is not the exclusive metric for admissibility. "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2016). Here, any probative value regarding Acuna's almost 23-year-old arrest, without conviction, was substantially outweighed by the risk of unfair prejudice and confusion of the issues.

Moreover, the remoteness in time and dissimilar facts between his 1993 theft arrest and the alleged torts here further support a determination that discussion of Acuna's 1993 arrest should have been excluded. See Smith v. Hooligan's Pub & Oyster Bar, Ltd., 753 So.2d 596, 600 (Fla. 3d DCA 2000) ("However, 'evidence of a person's character which is offered only as tending to prove the probability that he or she acted in a manner consistent with that character on a particular occasion is generally inadmissible.' " (quoting Pino v. Koelber, 389 So.2d 1191, 1193 (Fla. 2d DCA 1980) ) ); see also § 90.404(2)(a), Fla. Stat. (2016). The prejudicial impact was compounded by related inflammatory statements made during closing arguments by the Rollands' counsel.

During closing, counsel for the Rollands first emphasized that Acuna's prior arrest should have precluded his assignment to New World Tower based on the ISMG contract with Panther Management. The Rollands' counsel then asked the jury to consider how to compensate someone "who was never arrested before in his life," and "for 52 years played by the rules," and "who never had a parking ticket." Counsel for the Rollands then implored the jury to "do what you think is right" before reminding them that "Mr. Acuna still works in the building." At the end of his closing, the Rollands' counsel implored the jury to "validate my client" and asked "[w]ho unleashed Jorge Acuna on the public?" Defense counsel objected and moved for a mistrial on the collective impropriety of the closing comments, which the trial court denied. We agree that these comments are improper.

IV. CONCLUSION

Based on the foregoing, we conclude that the trial court's decision to submit an erroneous jury instruction omitting a valid request for a qualified privilege defense was an abuse of discretion resulting in reversible error. Additionally, because no proper and reasonable view of the evidence could sustain a verdict on the negligence claims, we reverse for the court below to direct a verdict in favor of ISMG and Acuna. We affirm the trial court's partial denial of the Rollands' motion for leave to amend their complaint to state a claim for punitive damages against ISMG.

Reversed in part, affirmed in part, and remanded for additional proceedings.

      On October 8, 2015, the trial court entered an order granting the Rollands' motion to amend their second amended complaint to add a claim of punitive damages against all defendants below. However, on October 21, 2015, the trial court vacated the October 8, 2015 order and granted the Rollands' leave to amend their second amended complaint to state a claim for punitive damages against all defendants below except ISMG.

      While testifying at trial, Acuna referred to the large case Mr. Rolland brought into the lobby as a "box."

      Mr. Rolland testified that he mistakenly thought the business executive he was scheduled to interview the next day was also the owner of New World Tower.

      Officer Mendez testified that, as one of two downtown neighborhood resource officers, she serves as a liaison between the City of Miami Police Department and the downtown community. Officer Mendez further testified that her number was well known in the downtown neighborhood, had previously met Miranda on several occasions, and that calling her is just as effective as calling 911.

      During a videotaped deposition on February 24, 2015, Special Agent Andrew Thomas of the Federal Bureau of Investigation testified that he viewed the lobby security camera footage on the day of the incident and requested a copy of the lobby recording the same or following day. Agent Thomas testified that he personally picked up the security camera recording from Acuna at the security desk a few days later. There was no indication from Agent Thomas' testimony that he requested the south lobby camera recording that depicted the outside of New World Tower.

      Albert Hammond testified that on July 25, 2011, he was employed as a network operation director by a company called TeleSwitch, which was contracted to manage the telecom data center for the entire New World Tower office building. Clavero testified that, while Hammond was the only person who knew the passcode to access the security camera system on the day of the incident, he subsequently contacted TeleSwitch-after Hammond ceased working at New World Tower-to obtain the passcode required to access security camera system.

      The Rollands' counsel also repeatedly asked Acuna and other witnesses about whether Acuna was terminated from a previous security guard position at a bank and if Acuna had purposefully omitted that prior bank employment on his application to ISMG. Acuna strongly denied that he was terminated, explained that he had only been warned not to leave his post for a coffee break, and testified that he voluntarily resigned because of dissatisfaction with post changes.

      We decline to address the cross-appeal, as we find no error in the trial court's decision denying the Rollands' motion for leave to amend their complaint to include a claim for punitive damages solely against ISMG.

      Fridovich v. Fridovich, 598 So.2d 65, 69 n.8 (Fla. 1992) ("[W]e emphasize that the privilege only applies to statements voluntarily made to the police or a prosecuting attorney and not to defamatory statements made to private individuals.").

      At a minimum, the jury should have determined whether a mutuality of interest qualified privilege existed. See Knepper, 537 So.2d at 622 ("Where the circumstances and content of allegedly defamatory statements are clearly disputed by the parties, the jury should determine, under proper instructions from the court, whether or not the communication was privileged.").

      Unlike the instant case, the plaintiff in Valladares "had no cause of action for malicious prosecution because he was never arrested or prosecuted." 197 So.3d at 10.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.W., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-982
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2018 Rehearing Denied February 1, 2019
    Carlos J. Martinez, Public Defender, Miami, and Jeffrey Paul DeSousa and Natasha Baker-Bradley, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Motes v. State, 37 So.3d 301 (Fla. 4th DCA 2010) ; State v. Roy, 944 So.2d 403 (Fla. 3d DCA 2006).


text:
    David S. WALTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-146
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    David S. Walter, in proper person.
    Ashley Brooke Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SCALES and LINDSEY, JJ., and LUCK, Associate Judge.
   PER CURIAM.

Appellant David S. Walter appeals a December 8, 2017 trial court order summarily denying, as successive, Walter's November 20, 2017 post-conviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. Walter's motion alleged he was entitled to a new trial based on newly discovered evidence, to wit, an affidavit of an alleged witness to the crime.

In February of 2017, however, Walter filed a virtually identical motion, along with the same affidavit that accompanied Walter's November 2017 motion. On June 28, 2017, the trial court denied Walter's February 2017 motion. In its order, the trial court expressed that it was unnecessary to address the merits of the claim because the affidavit was legally insufficient in that it lacked a jurat. Toward the end of this order, though, the trial court elaborated by further finding the affidavit lacked credibility and appeared to be an attempt to perpetrate a fraud on the court. Walter did not appeal this June 28, 2017 order.

In this appeal, Walter contends that the trial court erred in finding his November 2017 motion successive on the ground that the trial court did not reach the merits of his February 2017 motion. We disagree. While the trial court's June 28, 2017 order initially indicated that it was unnecessary to address the merits, the order plainly and unequivocally determined that the affidavit upon which Walter's February 2017 motion was based lacked credibility. This constituted a reaching of the merits; and thus, the trial court correctly characterized Walter's November 2017 motion as successive. McKenley v. State, 937 So.2d 223, 225 (Fla. 3d DCA 2006) ("A trial court may dismiss a successive motion for post-conviction relief that had been previously adjudicated on the merits.").

Affirmed.


author: MILLER, J.

text:
    J.A., a Juvenile, Petitioner, v. Kevin HOUSEL, etc., et al., Respondents.
    No. 3D19-0090
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2019.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Ashley Brooke Moody, Attorney General, and David Llanes, Assistant Attorney General, for respondent The State of Florida.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   MILLER, J.

Petitioner, J.A., a juvenile, has applied for the issuance of a writ of habeas corpus directed at the respondent, Kevin Housel, as Regional Director at Florida Department of Juvenile Justice. The petition alleges that J.A. is unlawfully detained in the custody of the Department of Juvenile Justice pursuant to a trial court order finding ten instances of indirect criminal contempt and imposing a sentence of 100 days in secure detention. J.A. premises the application upon allegations of procedural deficiencies in the proceedings below and a legal prohibition on imposing consecutive sentences, as the instances of contempt identified constitute a single, continuous act. For the reasons set forth below, we deny the petition.

FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

On February 6, 2018, the circuit court placed J.A. on probation for petit theft and possession of cannabis. Pursuant to the terms of the probation, J.A. was required by written order to live at her mother's residence and "accept reasonable controls and discipline in that home." While on probation, J.A. was charged with committing a new offense, possession of a controlled substance. On October 9, 2018, at a status conference on the probation violation, following the issuance of numerous pickup orders, the lower court entered an order entitled "Do Not Run Order." The order required J.A. to remain living at her mother's home "unless otherwise ordered" by the court. The order contained the following provisions:

The Child/Respondent is put on notice both verbally and by virtue of this Order that if a Petition for Rule to Show Cause is issued, a hearing may be held on whether the Child/Respondent shall be deemed guilty of contempt.
The Child/Respondent is put on notice that pursuant to F.S. 985.037, Fla[.] Stat. (2017), the child is facing five (5) days for the first day that the Child/Respondent is on run, and no more than fifteen (15) days for each subsequent day. Each day on run is a separate offense of contempt.

(emphasis supplied).

On the evening of December 26, 2018, J.A. left her home without permission. J.A.'s mother was unable to ascertain her child's whereabouts, and on December 27, 2018, she filed a missing person's report. On December 28, 2018, the trial court entered a pickup order for J.A. J.A.'s location remained unknown until January 4, 2019. On that day, members of the Homestead Police Department discovered J.A. at the Everglades Motel located at 605 South Krome Avenue in Miami-Dade County, Florida. J.A. was taken into custody pursuant to the terms of the pickup order.

On January 7, 2019, the State filed a sworn Petition for Rule to Show Cause, seeking to commence indirect criminal contempt proceedings against J.A. The petition reflected that J.A. had previously been held in indirect contempt for violating the circuit court's Do Not Run Order and sentenced to twenty days in secure detention. It further set forth a recitation of the essential facts upon which the State relied to support a finding of indirect criminal contempt. On the same date, the trial court issued an order to show cause as to why J.A. should not be held in contempt of court for violating the terms of the Do Not Run Order. The sworn petition, filed by the State, was attached to the show cause order, and the facts alleged therein were incorporated into the order by reference. J.A. was further ordered to appear before the trial court on January 10, 2019 for an indirect criminal contempt hearing.

On January 10, 2019, the trial court conducted a full evidentiary hearing on the allegations set forth within the petition and incorporated into the show cause order. At the conclusion of the hearing, the trial court found J.A. to be in contempt of court for ten separate violations of the Do Not Run Order. The court reasoned that each day J.A. failed and refused to remain at home constituted a separate violation of court order, punishable as an individual act. As it was not her first adjudication of contempt, J.A. was sentenced to ten days in secure detention for each violation, all sentences to run consecutive, for a total of 100 days.

LEGAL ANALYSIS

We review a finding of criminal contempt under an abuse of discretion standard. Smith v. State, 954 So.2d 1191, 1194 (Fla. 3d DCA 2007). "While a judgment of contempt is entitled to a presumption of correctness, it must be supported by the record." Id., citing Berman v. State, 751 So.2d 612 (Fla. 4th DCA 1999) and Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977).

We review the legal issues presented de novo . Huber v. Disaster Sols., LLC, 180 So.3d 1145, 1148 (Fla. 4th DCA 2015). Indirect criminal contempt proceedings must adhere to the procedural due process requirements enumerated in Florida Rule of Juvenile Procedure 8.150 and section 985.037, Florida Statutes (2019).

See A.P. v. State, 215 So.3d 662, 662 (Fla. 5th DCA 2017) ; K.M. v. State, 962 So.2d 969 (Fla. 4th DCA 2007).

J.A. contends that the order to show cause was deficient pursuant to Florida Rule of Juvenile Procedure 8.150. Rule 8.150(c) provides, in pertinent part:

An indirect contempt may be prosecuted in the following manner:

(2) Order to Show Cause. On affidavit of any person having personal knowledge of the facts, the court may issue and sign an order to show cause. The order must state the essential facts constituting the contempt charged and require the child to appear before the court to show cause why the child should not be held in contempt of court ... The order must specify the time and place of the hearing, with a reasonable time allowed for the preparation of a defense after service of the order on the child. It must be served in the same manner as a summons. Nothing herein shall be construed to prevent the child from waiving the service of process.

In the instant case, although the trial court entitled the order to show cause "Rule to Show Cause," the court complied with all of the delineated procedural requirements. Prior to issuance, the lower court received an affidavit from the State alleging the essential facts constituting contempt. The court then signed the order to show cause, including all of the essential facts by incorporation and attachment. J.A. was properly served with the order. Counsel was appointed and a hearing scheduled. A full evidentiary hearing was convened and recorded. J.A. was permitted to testify in her own defense. As such, we conclude that due process was properly afforded. See Fla. R. Juv. P. 8.150(c)(5) ; § 985.037, Fla. Stat. (2019).

J.A. further contends that the act of failing to remain at home for ten successive days constitutes, at most, a single act of contempt, thus, the imposition of a ten separate consecutive sentences is illegal. The statute governing juvenile contempt proceedings provides, in relevant part:

(1) CONTEMPT OF COURT; LEGISLATIVE INTENT.-The court may punish any child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto. It is the intent of the Legislature that the court restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility. A child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.
(2) PLACEMENT IN A SECURE FACILITY.-A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction. A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.

§ 985.037, Fla. Stat. (2019).

In J.M. v. Gargett, 101 So.3d 352, 354 (Fla. 2012), the Florida Supreme Court considered whether section 985.037, Florida Statutes "authorizes a trial court to sentence a juvenile to consecutive periods in a secure detention facility where the juvenile has committed multiple violations of a single probation order." The court examined a case in which a juvenile challenged the denial of his petition for writ of habeas corpus following the imposition of consecutive sentences in secure detention for indirect criminal contempt premised upon the failure of the juvenile to adhere to his curfew for three successive days. After closely examining the language set forth in the statute, the court concluded, "[U]nder section 985.037, a juvenile who violates a court order on multiple occasions-and in doing so commits several acts of indirect contempt-may be sentenced to up to five days' secure detention for the first offense, and up to fifteen days' secure detention for each second or subsequent offense." Id. at 356. The court further noted:

To hold otherwise would prohibit a trial judge from punishing individuals, such as the appellant, who repeatedly and intentionally disparage the integrity of the court and interfere with the course and conduct of proceedings before it. A trial court would be powerless to impose more than twenty days of secure detention, no matter how many acts of contempt were committed or how egregious they were.

Id. at 356-57 (quoting K.Q.S. v. State, 975 So.2d 536, 538 (Fla. 1st DCA 2008) ).

Similarly, in J.M.H. v. State, 112 So.3d 692 (Fla. 2d DCA 2013), the Second District Court of Appeal upheld a contempt order imposing consecutive sentences for multiple violations of a single probation order. Citing the holding in J.M., the court stated, "[t]he statutory scheme itself contemplates this exact situation and calls for trial courts to limit contempt sentences to five days for the first instance and fifteen days for each successive instance." Id. at 693.

In the instant case, J.A. previously violated the trial court's command to remain in her home, culminating in a contempt finding and placement in secure detention. Following that violation, in an effort to ensure J.A. would follow its edict, the trial court explicitly forewarned J.A. that any future violation would result in a separate contempt charge for "each day [she remained on the] run." As the Do Not Run Order effectively required J.A. to remain home each day, we conclude that each day that J.A. refused to adhere to the court's requirement constituted a separate violation of court order. To hold otherwise would vitiate the express language of the statute, undermine the trial court's order, which clearly advised J.A. that each day away from home would constitute a separate incident of contempt, and render the court powerless to reasonably distinguish between absconding and fleeting absence in meting out an appropriate punishment.

Having concluded that the trial court complied with all applicable procedural requirements and that the imposition of consecutive sentences was legal under the circumstances demonstrated, the petition for writ of habeas corpus is denied.

Petition Denied.

      Rule 8.150(c)(5) provides: "At the hearing, the child has the following rights: (A) The right to be represented by legal counsel. (B) The right to testify in the child's own defense. (C) The right to confront witnesses. (D) The right to subpoena and present witnesses. (E) The right to have the hearing recorded and a copy of such recording. (F) The right to have a transcript of the proceeding. (G) The right to appeal."

      Section 985.037(4)(b) provides: "If a child is charged with indirect contempt of court, the court must hold a hearing within 24 hours to determine whether the child committed indirect contempt of a valid court order. At the hearing, the following due process rights must be provided to the child: [1] Right to a copy of the order to show cause alleging facts supporting the contempt charge. [2] Right to an explanation of the nature and the consequences of the proceedings. [3] Right to legal counsel and the right to have legal counsel appointed by the court ... [4] Right to confront witnesses. [5] Right to present witnesses. [6] Right to have a transcript or record of the proceeding. [7] Right to appeal to an appropriate court."

      Indeed, if we were to adopt the construction urged by J.A., there would be no incentive for a juvenile to return home at all, knowing, for example, that the trial court could punish a ten-day absconder no more harshly than an overnight violator.


text:
    Wallace C. JONES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2578
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Wallace C. Jones, Jr., in proper person.
    Ashley Brooke Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Pursuant to Rule 9.141(b), Florida Rules of Appellate Procedure, we treat Wallace Jones' petition for writ of certiorari as an appeal taken from an order summarily denying his motion for postconviction relief under Rule 3.850, Florida Rules of Criminal Procedure. Finding no error in the trial court's determination, we affirm.


text:
    DADE TRUSS CO. INC. and Simon Sookdeo, Petitioners, v. Russell BEATY and Wolfram Strauss, Respondents.
    No. 3D18-2253
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019
    Vernis & Bowling of Miami, P.A. and Andrew W. Bray, and Justin D. Siegwald, Miami, for petitioners.
    Schlesinger Law Offices, P.A. and Zane Berg and Cristina Sabbagh (Fort Lauderdale), for respondents.
    Before SALTER, SCALES, and MILLER, JJ.
   MILLER, J.

Petitioners, Dade Truss Co., Inc. and Simon Sookdeo, seek certiorari review of three lower court orders overruling objections to the discovery of materials relating to a disclosed witness. We conclude that the trial court did not depart from the essential requirements of law in overruling preliminary discovery objections and deny certiorari relief with regard to documents claimed to be protected from disclosure by the work-product privilege, as respondents failed to properly preserve objections to certain documents and the trial court has not yet been presented with a privilege log.

FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

On July 26, 2016, respondents, Russell Beaty and Wolfram Strauss, were involved in an automobile accident with Sookdeo. At the time of the accident, Sookdeo was driving a tractor trailer owned by his employer, Dade Truss Co., Inc. The tractor trailer collided with respondents' vehicle, resulting in claimed personal injuries. Respondents filed suit on September 22, 2016. Thereafter, the parties engaged in discovery.

On August 10, 2018, pursuant to a pre-trial order directing witness disclosure and imposing discovery deadlines, petitioners listed private investigator Gary Boggs as a fact witness. On August 27, 2018, respondents issued a notice of subpoena duces tecum for Boggs to appear for deposition. The subpoena duces tecum required Boggs to bring the following items to the deposition:

1. A full and complete copy of your entire original file , regarding RUSSELL BEATY and WO[L]FRAM STRAUSS .
2. Full and complete unedited original version of any and all video, audio, films, photographs, CD's, DVD's, written reports, notes, charts, diagrams, logs, memoranda, bills, invoices, and any other materials utilized in the pre-surveillance and surveillance obtained in this action.
3. Any and all printouts of information regarding, RUSSELL BEATY and WO[L]FRAM STRAUSS , maintained on a computer or saved on computer disks, including, but not limited to, motor vehicle searches, public records searches, corporate searches, information provided by Dade Truss Co., Inc. and/or VERNIS AND BOWLING OF MIAMI, P.A. regarding Russell and Wo[l]fram's address, case information, condition, appointments, etc., e-mails, and correspondence, to and from defense attorneys, or other investigators, billing records, reports, updated provided to Dade Truss Co., Inc. and/or VERNIS & BOWLING OF MIAMI, P.A. regarding the ongoing surveillance of Russell Beaty and Wo[l]fram Strauss, authorizations for additional surveillance, notes and any other information relating to surveillance obtained in this action.

No objection was filed and Boggs duly appeared for deposition on September 19, 2018. Although no deposition transcript has been filed with this court, the parties agree that Boggs testified he was hired to "make personal observations of traffic" at the accident site. Boggs provided testimony regarding his opinions and observations, but at the conclusion of the deposition, Boggs and respondents' counsel indicated that further opinions would be forthcoming. Thus, the deposition was adjourned, to reconvene at a later date.

Later the same day, respondents issued a notice of non-party production, directed at G. Boggs, Inc., a second request for production directed at Sookdeo, and a fourth request for production directed at Dade Truss. All of the discovery requests sought production of documents relating to the opinions, observations, credentials, experience, and writings of Boggs. On September 21, 2018, petitioners filed a non-specified objection to the notice of non-party production.

On October 9, 2018, the trial court convened a hearing on a motion to overrule petitioners' objection to non-party production. At the hearing, petitioners asserted work-product privilege and stated that they had removed Boggs from their witness list. When pressed by the trial court as to whether their intention was to permanently withdraw him from the witness list, counsel equivocated. Noting that the case was over two years old, the trial court overruled the objection and authorized the issuance of a subpoena to G. Boggs, Inc. for various materials.

On October 11, 2018, petitioners filed objections to the second and fourth requests for production. Individualized objections on non-privilege grounds were articulated for all items sought by respondents. Additionally, petitioners raised work product objections in response to six out of the twenty production requests. Petitioners did not file a privilege log identifying the documents they claimed to be privileged. On October 23, 2018, the trial court conducted an additional hearing. At the hearing, the court overruled objections and required document production within ten days. This certiorari petition followed.

LEGAL ANALYSIS

"Certiorari is an extraordinary remedy that is available only in limited circumstances." Charles v. State, 193 So.3d 31, 32 (Fla. 3d DCA 2016). Certiorari review is warranted when a non-final order (1) cannot be remedied on postjudgment appeal, (2) results in material injury for the remainder of the case, and (3) departs from the essential requirements of law. Fernandez-Andrew v. Florida Peninsula Ins. Co., 208 So.3d 835, 837 (Fla. 3d DCA 2017), citing Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla. 2012) ; Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So.3d 292, 293 (Fla. 3d DCA 2016) ; Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804, 807 (Fla. 3d DCA 2014). The first two prongs of the analysis are jurisdictional. Chessler v. All American Semiconductor, Inc., 225 So.3d 849, 852 (Fla. 3d DCA 2016) ("The traditional manner of stating the test for certiorari of a non-final order is somewhat misleading because it places the substantive issue before the jurisdictional issue."), citing Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) ("[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before the court has the power to determine whether the order departs from the essential requirements of the law.").

As "[o]rders granting discovery, including discovery of work product materials, are amenable to certiorari review because appeal after a final judgment in a case where discovery was improperly granted seldom provides adequate redress," the orders under review reflect a potential for the infliction of irreparable injury that cannot be remedied upon postjudgment appeal. McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923, 925 (Fla. 2d DCA 2004), citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) and Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987). Moreover, in the event any of the discovery orders improperly compel the disclosure of documents protected by work-product privilege, respondents would have the potential to gain a tactical or strategic advantage in litigation that could indeed vitiate the fairness of the proceedings. Thus, we have jurisdiction to consider whether the discovery orders depart from the essential requirements of law.

Petitioners contend that Boggs is a retained, nontestifying witness, hence we should rely upon Florida Rule of Civil Procedure 1.280 in reaching our decision. Rule 1.280 provides that:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Fla. R. Civ. P. 1.280(b)(5)(B). Under the rule, if an expert witness is withdrawn, exceptional circumstances must be demonstrated to obtain discovery relating to the facts known to or opinions held by the expert. See e.g., Bailey v. Miami-Dade Cty., 186 So.3d 1044 (Fla. 3d DCA 2015) (holding that the trial court's act of allowing the deposition of estate's retained, non-testifying expert by the opposing party constituted a departure from the essential requirements of law); Nevin v. Palm Beach Cty. Sch. Bd., 958 So.2d 1003 (Fla. 1st DCA 2007) (holding that the findings and opinions of a non-witness expert were protected from discovery under the work-product privilege); Huet v. Tromp, 912 So.2d 336, 338 (Fla. 5th DCA 2005) ("An investigator employed by a party may not be required to produce the work-product of his or her investigations, except in unusual circumstances constituting compelling necessity for the discovery in order to reach the merits of the cause.").

In the instant case, respondents do not contend they have demonstrated exceptional circumstances. Instead, they assert that by presenting Boggs, along with his entire file, for deposition, petitioners waived any work-product privilege. Respondents further argue waiver through failure to file a privilege log. Finally, they correctly note that petitioners did not claim work-product with regard to much of the discovery ordered to be produced by the lower court, thus, again, waiving claims of work-product.

Respondents rely heavily upon the Supreme Court decision in United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), for the authority that the presentation of a witness for testimony vitiates any claim of privilege. "What constitutes a waiver with respect to work-product materials depends, of course, upon the circumstances." Id. at n.14. In Nobles, the defendant hired a private investigator whom he called to testify at trial. The court found a waiver of privilege, effectuated by the presentation of the investigator as a witness. Specifically, the court stated "[r]espondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony." Nobles, 422 U.S. at 239, 95 S.Ct. at 2170-171.

Here, the deposition transcript has not been filed in the appellate record. Thus, our knowledge regarding the content of the deposition is scant, gleaned solely through proffers contained within the lower court hearing transcripts, and we cannot determine under Nobles whether the documents claimed as privileged relate to "matters covered in [Boggs's] testimony."

Respondents assert that petitioners waived any claimed privilege by failing to file a privilege log. Florida Rule of Civil Procedure 1.280(b)(6) requires the creation of a privilege log in conjunction with materials sought to be shielded from production:

Claims of Privilege or Protection of Trial Preparation Materials. 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 supplied). The Fourth District Court of Appeal explicated upon this nuance of timing in Gosman v. Luzinski, 937 So.2d 293, 296 (Fla. 4th DCA 2006) :

Before a written objection to a request for production of documents is ruled upon, the documents are not "otherwise discoverable" and thus the obligation to file a privilege log does not arise. Once the objection is ruled upon and the court determines what information is "otherwise discoverable," then the party must file a privilege log reciting which documents are privileged. If it is not done in that order, then the party faced with an unduly burdensome document request still has to obtain and review all the documents to determine which are privileged, even though the court may later limit the scope of the request if it was unduly burdensome.

In the instant case, petitioners only objected on privilege grounds to party production requests 2, 5, and 10. C.f. Nevin v. Palm Beach Cty. Sch. Bd., 958 So.2d 1003 (Fla. 1st DCA 2007) (refusing to apply waiver of work-product privilege for failure to file a privilege log where an assertion of privilege is category-specific). We conclude that, as it was not asserted below, work-product privilege has not been properly preserved as to party production requests 1, 3, 4, 6, 7, 8, and 9. See Dade Cty. Sch. Bd. v. Soler, 534 So.2d 884, 885 (Fla. 3d DCA 1988) ("DCSB did not object to production of the incident report on the ground of privilege; instead, it objected on the ground that the request was 'overly broad, general, vague and ambiguous.' Thus, the issue of work product privilege was not properly preserved for review.").

We turn our analysis to the remaining party production requests. As petitioners raised multiple objections to party production requests 2, 5, and 10, including privilege, the materials sought in these requests were not deemed "otherwise discoverable" until the lower court overruled the asserted non-privilege objections. Thus, under the plain language of rule 1.280(b)(6), the obligation to file a privilege log did not accrue until the trial court overruled the objections. See Columbia Hosp. Corp. of South Broward v. Fain, 16 So.3d 236, 240 (Fla. 4th DCA 2009) ("[A] party need not file a privilege log until the trial court has decided as a preliminary matter whether the materials sought are "otherwise discoverable.").

As petitioners have yet to file a privilege log, the claim of work-product protection as to these three properly preserved production requests is not yet "mature" for review. See Allstate Indem. Co. v. Oser, 893 So.2d 675 (Fla. 1st DCA 2005) (finding that a claim of privilege was not mature until the appellant filed privilege log); Gosman, 937 So.2d at 296 n.1 ("Obviously, if the sole objection to discovery were that it sought privileged documents, then compliance with Rule 1.280(b) [ (6) ] would be required prior to any hearing on the objection as the information contained in the privilege log would be necessary to 'assess the applicability of the privilege or protection.' ").

Finally, with regard to the non-party production request, although a non-party cannot be compelled to file a privilege log, nothing in the trial court's order prevents G. Boggs, Inc. or counsel from segregating documents claimed to be privileged and requesting an evidentiary hearing on that issue. Lyons v. Lyons, 162 So.3d 212, 215-16 (Fla. 4th DCA 2015). Petitioners responded to the non-party production request with a generic written objection, articulating no grounds for relief. Although at the relevant hearing on the respondents' motion to overrule the objection, petitioners orally raised the work-product privilege, the subpoena issued in conjunction with the non-party production notice has not been filed in the appellate record. Without the ability to review the subpoena for non-party production and the relevant deposition testimony, we conclude that the record is deficient to demonstrate a departure from the essential requirements of law. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.").

Based on the record before us, we "treat the circuit court's order as a preliminary ruling that the information is discoverable," noting that privileges claimed with regard to specific documents must be affirmatively asserted through the filing of a privilege log, or the segregation of documents claimed to be privileged by the non-party for further consideration by the trial court. Tedrow v. Cannon, 186 So.3d 43, 49 (Fla. 2d DCA 2016) ; see also Morton Plant Hosp. Ass'n v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007) (declining to address the work-product privilege prior to the filing of a privilege log, and holding the party could file a privilege log after the information was ruled otherwise discoverable).

For the foregoing reasons, the trial court's orders overruling objections and compelling discovery do not depart from the essential requirements of law and we deny the petition for writ of certiorari.

Certiorari denied.


text:
    Larry Kelsey O'BRIEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2082
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019.
    Larry Kelsey O'Brien, in proper person.
    Ashley Brooke Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

Larry Kelsey O'Brien appeals an order summarily denying his Florida Rule of Criminal Procedure 3.801 motion seeking an additional one hundred seventy days of jail credit. Based on the State's concession that the subject order is defective for failure to comply with the requirements of Florida Rule of Criminal Procedure 3.850(f), we reverse the order and remand for proceedings and adjudication pursuant to the applicable provisions of rule 3.850.

Reversed and remanded with instructions.

      Rule 3.801 expressly incorporates portions of rule 3.850 into a proceeding conducted on a motion for correction of jail credit. See Fla. R. Crim. P. 3.801(e) ("The following subdivisions of Florida Rule of Criminal Procedure 3.850 apply to proceedings under this rule: 3.850(e), (f), (j), (k) and (n).").


author: PER CURIAM. SCALES, J. specially concurring.

text:
    Andres Sultan OSECHAS, Petitioner, v. Sarah Correa ARCILA, Respondent.
    No. 3D18-1897
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019.
    Wicker Smith O'Hara McCoy & Ford, P.A. and Alyssa M. Reiter and Brandon J. Hechtman (Fort Lauderdale), for petitioner.
    Michael T. Flanagan; James C. Blecke, for respondent.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Petition denied.

SCALES, J. specially concurring.

I concur in the denial of the petition because the limitations of our review - i.e., the exacting certiorari standard - require this result. At the risk, though, of sounding like a broken record, I again encourage the Florida Bar's Appellate Rules Committee to consider adding to the schedule of non-final appealable orders found in Florida Rule of Appellate Procedure 9.130(a)(3) those orders granting leave to amend a complaint to add punitive damages. Given how such interlocutory orders materially alter the course of civil litigation, I fail to see how the certiorari standard is more appropriate than an appellate standard. TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 520 n.5 (Fla. 3d DCA 2016) ; Levin v. Pritchard, 258 So.3d 545, 548 n.4 (Fla. 3d DCA 2018).

      Primitive people used to listen to music on things called "records" made of vinyl. The record revolved on a platter called a "turntable," and a "stylus" would magically convert into music the hidden indentations in the grooves of such records. Upon encountering a dust particle embedded in such a groove, the stylus would become temporarily unseated from the groove. Because of the turntable's revolution, when the stylus reconnected with the groove, the listener would hear the same portion of the music heard immediately prior to the stylus encountering the dust particle. Hence, the same music repeated over and over until the dust particle became dislodged or the listener manually adjusted the stylus. The aggravated listener often referred to the record containing dusty grooves as a "broken record."


text:
    Luis LA-CASSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2528
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019 Rehearing Denied February 27, 2019
    Luis La-Casse, in proper person.
    Ashley Brooke Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

In two previous decisions, this court found procedural deficiencies in the process leading up to the trial court's orders precluding Luis La-Casse from filing any further pro se pleadings in lower court case number F04-29879. See La-Casse v. State, 255 So.3d 507 (Fla. 3d DCA 2018) and La-Casse v. State, 223 So.3d 1129 (Fla. 3d DCA 2017). In each of those previous decisions, this court reversed and remanded, ultimately directing the trial court to consider La-Casse's responses to the order to show cause and thereafter to enter an appropriate order either permitting or precluding further pro se filings by La-Casse.

Upon remand, a successor trial judge was assigned to this cause. The successor judge conducted a thorough review of the record, including all of La-Casse's responses to the show cause order, and issued an order on November 8, 2018 (and a supplemental order on November 14, 2018) precluding further pro se filings.

La-Casse has now filed a petition seeking this court's issuance of a writ of certiorari, asserting that the trial court departed from the essential requirements of the law in entering the November 8 and November 14 orders prohibiting La-Casse "from filing any petitions and/or motions, unless accompanied by a certificate of merit signed by a member in good standing of the Florida Bar." La-Casse further contends that the entry of these orders constitutes irreparable harm, resulting in a manifest injustice that must be corrected.

We treat La-Casse's petition as a direct appeal from the trial court's orders of November 8 and November 14, rather than a petition for writ of certiorari. Having reviewed the thoughtful and thorough orders of the trial court, as well as the record below, which amply support the trial court's determinations, we affirm.

      The supplemental order was necessitated by La-Casse's filing of a supplemental response to the show cause order. La-Casse's supplemental response was docketed with the clerk on November 7, 2018, but the trial court was unaware of this pleading until after it entered its November 8, 2018 order. Once the trial court was made aware of this supplemental response, the trial court considered the merits of the supplemental response and thereafter entered its supplemental order on November 14, 2018.


text:
    MDXQ, LLC, Appellant, v. MIAMI-DADE COUNTY, etc., et al., Appellees.
    No. 3D18-890
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019
    Cozen O'Connor, and Charles C. Kline, Jason R. Domark and Reid Kline, Miami, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and Christopher J. Wahl, Dennis A. Kerbel and Debra Herman, Assistant County Attorneys, for appellees.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

MDXQ, LLC, appeals the trial court's order granting Miami-Dade County's motion to dismiss and dismissing MDXQ's complaint. In Count One of its complaint, MDXQ sought a writ of mandamus to compel the County to make a "Consistency Determination" on whether the County's proposal to use MDXQ's property for a water treatment plant is consistent with the County's Comprehensive Development Master Plan. MDXQ contended (in the alternative) that, should the trial court determine Miami-Dade County had already made a consistency determination, MDXQ was entitled to a de novo review of that determination pursuant to section 163.3215(3), Florida Statutes (2017).

We affirm the trial court's dismissal order. Upon our de novo review of the allegations in the complaint and its attachments, as well as the plain language of the County's Master Plan and section 163.3215(3), we hold that the trial court properly determined MDXQ failed to establish it had a clear, legal and present right to receive (and Miami-Dade County had a clear, legal and present duty to provide) a consistency determination. See Tucker v. Ruvin, 748 So.2d 376, 377 (Fla. 3d DCA 2000) (holding: "To be entitled to mandamus relief, the "petitioner must have a clear legal right, [ ] respondent must have a clear legal, ministerial duty to perform, and [ ] petitioner must have no other adequate legal remedy available"); Scott v. State, 130 So.3d 741, 742 (Fla. 3d DCA 2014) (noting: "Writs of mandamus are extraordinary remedies that 'may not be used to establish the existence of an enforceable right, but rather only to enforce a right already clearly and certainly established in the law.' ") (quoting Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) ).

The trial court also properly concluded that, in the absence of a development order, a cause of action under section 163.3215(3) was not yet ripe. See, e.g., Tallahassee Mem'l Reg'l Med. Ctr. v. Lewis, 399 So.2d 106, 108 (Fla. 1st DCA 1981) (holding: "Relief cannot be afforded by mandamus as to issues that are unripe for determination").

Affirmed.

      "A comprehensive plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality." Payne v. City of Miami, 52 So.3d 707, 737 (Fla. 3d DCA 2010) (Gersten, J., specially concurring) (citations and quotations omitted). It acts as "a constitution for all future development within the governmental boundary." Id.

      Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002) ("The de novo standard of review is applied when considering an order granting a motion to dismiss"); Walker v. Ellis, 989 So.2d 1250, 1251 (Fla. 1st DCA 2008) (applying a de novo standard of review to the trial court's order dismissing a petition for writ of mandamus).

      Subsection (3) provides:
      Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.
      (Emphasis added.)